FSM SUPREME COURT APPELLATE DIVISION

Cite as M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7 (App. 2007)

[15 FSM Intrm. 007]

M/V KYOWA VIOLET, its engines, masts, bowsprit,

boat anchors, chains, cable, tackle, rigging, apparel,

furniture and all other necessaries thereunto

appertaining, In Rem, and KYOWA SHIPPING CO.,

LTD., PACIFIC LINE TRADING INC. (PANAMA), and

TORITEC CO. LTD., In Personam,

Appellants/Cross-Appellees,

vs.

THE PEOPLE OF THE MUNICIPALITIES OF RULL AND

GILMAN, YAP STATE, by and through CHIEF

ANDREW RUEPONG, CHIEF THOMAS FALGNIN

and CHIEF JAMES LIMAR,

Appellees/Cross-Appellants.

APPEAL CASE NO. Y1-2006

ORDER DESIGNATING APPELLANT; SCHEDULE;

NOTICE OF FSM APP. R. 46(a) REQUIREMENT

Andon L. Amaraich

Chief Justice

Decided:  May 2, 2007

APPEARANCE:

For the Appellants/Cross Appellees:   David Ledger, Esq.

                                                            Carlsmith Ball LLP

                                                            134 West Soledad Avenue, Suite 401

                                                            P.O. Box BF

                                                            Hagatna, Guam   96932-5027

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HEADNOTES

Appellate Review ) Parties

     Under Appellate Rule 28(h), if a cross appeal is filed, the plaintiff in the court below will be deemed the appellant for the purpose of Rule 28 and 31, unless the parties otherwise agree or the court otherwise orders. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 9 (App. 2007).

Appellate Review ) Briefs and Record

     If a cross appeal is filed, the brief of the appellee must contain the issues and argument involved in the appellee’s appeal as well as the answer to the appellant’s brief and the appellant must prepare and file an appendix that contains the essential and relevant portions of the record. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 9 (App. 2007).

[15 FSM Intrm. 8]

Appellate Review ) Briefs and Record

     The court may shorten or enlarge the periods prescribed for the serving and filing of briefs and may also enlarge the time period for doing any act that is required or allowed under the rules. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 9 (App. 2007).

Appellate Review ) Parties

     In an appeal involving a cross-appeal, when the defendants below, who had filed the initial appeal, have filed an unopposed motion to be deemed the appellants, the court may designate the defendants at trial as the appellants in the appeal case for the purpose of complying with Appellate Rules 28, 30 and 31. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 10 (App. 2007).

Appellate Review ) Briefs and Record

     Within 30 days after service of the principal brief by the appellants/cross-appellees, the appellees/cross appellants must file their principal and response brief. That brief must comply with Appellate Rules 28(a) and (b), except that the brief need not include a statement of the case or a statement of the facts unless they are dissatisfied with the statement in the appellants’ principal brief. In addition, their brief may not exceed a total of 100 pages in length, nor may the respective portions of the brief comprising the principal brief and response brief each exceed 50 pages in length. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 10-11 (App. 2007).

Appellate Review ) Briefs and Record

     The appellants/cross-appellees must, within 30 days after service of the appellees/cross-appellants’ principal and response brief, file their brief that responds to the principal brief in the cross appeal. Their brief must comply with Appellate Rule 28(b), except that it need not include a statement of the case or a statement of the facts unless it is dissatisfied with the appellees/cross-appellants’ statement. In filing the brief, the appellants/cross-appellees may, in the same brief, reply to the appellees/cross-appellants’ response brief. If a reply is made, the combined brief must also comply with Appellate Rule 28(c), and if a combined brief is filed, the brief may not exceed a total of 75 pages in length, with a further restriction being that the portion of the brief comprising the response brief must not exceed 50 pages in length while that portion of the brief comprising the reply cannot exceed 25 pages in length. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 11 (App. 2007).

Appellate Review ) Briefs and Record

     The appellees/cross-appellants may, within 14 days after service of the appellants/cross-appellees’ response brief, file a reply. This reply brief must comply with Appellate Rule 28(c) and must be limited to the issues presented by the cross appeal. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 11 (App. 2007).

Appellate Review ) Briefs and Record

     Parties who have been designated as the appellants in an appeal and cross-appeal for the purpose of complying with Appellate Rules 28, 30 and 31, must undertake the duty of preparing the appendix to the appellant’s brief. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 11 (App. 2007).

Attorney and Client ) Admission to Practice

     All attorneys and trial counselors admitted to practice law before the FSM Supreme Court pursuant to the court’s rules for admission to practice are eligible to appear before the FSM Supreme Court’s appellate division. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 11 (App. 2007).

[15 FSM Intrm. 9]

Attorney and Client ) Admission to Practice

      When attorneys were granted permission to appear pro hac vice before the court’s trial division in the underlying matter at issue in an appeal, but have not been admitted to practice law before the court, they must, if they intend to appear in the appeal, undertake the appropriate action to appear before the appellate division. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 7, 11 (App. 2007).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

     This matter comes before the Court on a motion filed by the above-referenced Appellants/Cross Appellees to have themselves designated as the "appellants" under FSM App. R. 28(h), for the purpose of complying with FSM App. R. 28, 30 and 31. This motion stands unopposed.

     As provided for below, the Appellants/Cross Appellees are hereby designated as the "appellants" in this appeal for the purpose of complying with FSM App. R. 28, 30 and 31. A briefing schedule for the parties is set forth in this Order.

      In addition, counsel for the Appellants/Cross Appellees, David Ledger, Esq., and Stephen C. Smith, Esq., of the law firm of Carlsmith Ball, LLP, and counsel for the Appellees/Cross Appellants, James P. Walsh, Esq., of the law firm of Davis Wright Tremaine, LLP, must comply with the requirements of FSM App. R. 46(a).

I.   Background and Rules of Appellate Procedure

     The Appellants/Cross Appellees (collectively referred to as "Kyowa Violet"), who were the defendants at trial, filed their Notice of Appeal on October 27, 2006. The Appellees/Cross Appellants (collectively referred to as the "People of Rull and Gilman"), who were the plaintiffs at trial, filed their Notice of Cross Appeal on November 1, 2006.

     On April 23, 2007, the Clerk of the Appellate Court issued a notice of record ready, thereby triggering the briefing schedule for the parties. Under FSM App. R. 31, the appellant is required to serve and file a brief within 40 days after the date of notice by the clerk of the appellate division that the record is ready. See FSM App. R. 12. The appellee shall then serve and file a brief within 30 days after service of the brief of the appellant. The appellant may then file a reply brief within 14 days after service of the brief of the appellee.

      Under FSM App. R. 28(h), however, if a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purpose of Rule 28 and 31, unless the parties otherwise agree or the court otherwise orders. In such a case, the brief of the appellee shall contain the issues and argument involved in the appellee’s appeal as well as the answer to the brief of the appellant. FSM App. R. 30 also provides that the appellant shall prepare and file an appendix that contains the essential and relevant portions of the record.

     The Court may shorten the periods prescribed for the serving and filing of briefs. FSM App. R. 31. The Court may also enlarge the time period for doing any act that is required or allowed under the rules. FSM App. R. 26(b).

[15 FSM Intrm. 10]

     In this case, because there is a cross appeal, and because the People of Rull and Gilman were the plaintiffs at trial, they would ordinarily be deemed the "appellants" for purposes of complying with FSM App. R. 28, 30 and 31. As such, the People of Rull and Gilman would be required to file their principal brief within 40 days from the date that the notice of record ready was issued.

     Kyowa Violet would then be required to file its brief which, as provided for under FSM App. R. 28(h), must "contain the issues and argument involved in the appellee’s appeal as well as the answer to the brief of the appellant."

     The People of Rull and Gilman would, in turn, be afforded the opportunity to submit both a reply brief (to the response brief filed by Kyowa Violet that relates to the issues raised in the cross appeal) and an answer brief (to the principal brief filed by Kyowa Violet that relates to the issues raised in the initial appeal).

     Lastly, Kyowa Violet could file a reply brief (to the answer brief filed by the People of Rull and Gilman that relates to the issues raised in the initial appeal).

II.   Pending Motion

     In this case, however, Kyowa Violet seeks to have itself designated as the appellant so that it can file its principal brief first, followed by the brief of the People of Rull and Gilman, which, as noted above, must contain both "the issues and argument involved in the appellee’s appeal as well as the answer to the brief of the appellant." FSM App. R. 28. According to Kyowa Violet, treating the People of Rull and Gilman as Appellants, as provided for under Rule 28(h) "would be very inefficient and in practice would result in an overloading of the [People of Rull and Gilman’s] brief which by necessity would have to serve as its principal brief." Kyowa Violet further argues that "the alternative ) or the temptation ) of the [People of Rull and Gilman] attempting to anticipate the [Kyowa Violet’s] arguments in their opening brief would be even less efficient, not to mention unfair, in giving the [People of Rull and Gilman] the proverbial two bites of the apple."

     Kyowa Violet further states that if it is deemed the appellant for this appeal, it will, as the appellant, comply with FSM App. R. 30, which governs the production of the appendix.

     As noted above, FSM App. R. 28(h) clearly states that the "brief of the appellee shall contain the issues and argument involved in the appellee’s appeal as well as the answer to the brief of the appellant." Thus, the assertion that the People of Rull and Gilman would have to anticipate Kyowa Violet’s arguments, or get two bites at the apple ) or, as the case may be, the appeal ) is simply misplaced.

     Nonetheless, and since the motion by Kyowa Violet is unopposed, the Court will, as allowed by FSM App. R. 28(h), hereby designate Kyowa Violet, who was the defendant at trial and who filed the initial appeal, as the appellant in this case for the purpose of complying with FSM App. R. 28, 30 and 31.

III.   Briefing Schedule

     Accordingly, as the designated appellant, Kyowa Violet shall file its principal brief within 40 days from the date that this Order is issued. This brief shall comply with FSM App. R. 28(a).

     The People of Rull and Gilman shall, within 30 days after service of the principal brief by Kyowa Violet, file their principal and response brief, as provided for under FSM App. R. 28(h). That brief must

[15 FSM Intrm. 11]

comply with FSM App. R. 28(a) and (b), except that the brief need not include a statement of the case or a statement of the facts unless the People of Rull and Gilman are dissatisfied with the statement by Kyowa Violet in its brief. In addition, in complying with FSM App. R. 28(a) and (b), the People of Rull and Gilman’s brief may not exceed a total of 100 pages in length, nor may the respective portions of the brief comprising the principal brief and response brief each exceed 50 pages in length.

     Kyowa Violet shall, within 30 days after service of the principal and response brief by the People of Rull and Gilman, file its brief that responds to the principal brief in the cross appeal. This brief must comply with FSM App. R. 28(b), except that Kyowa Violet need not include a statement of the case or a statement of the facts unless it is dissatisfied with the statement made by the People of Rull and Gilman.

     In filing its brief, Kyowa Violet may, in the same brief, reply to the response brief by the People of Rull and Gilman. If a reply is made, the combined brief filed by Kyowa Violet must also comply with FSM App. R. 28(c). In addition, if Kyowa Violet files a combined brief, in complying with FSM App. R. 28(b) and (c), Kyowa Violet’s brief may not exceed a total of 75 pages in length, with a further restriction being that the portion of the brief comprising the response brief shall not exceed 50 pages in length, see FSM App. R. 28(b), while that portion of the brief comprising the reply may not exceed 25 pages in length. FSM App. R. 28(c).

     The People of Rull and Gilman may, within 14 days after service of Kyowa Violet’s response brief, file a reply. This reply brief must comply with FSM App. R. 28(c) and must be limited to the issues presented by the cross appeal.

     Unless the Court permits, no further briefs may be filed in this case.

     Lastly, having now been designated as the appellants in this appeal for the purpose of complying with FSM App. R. 28, 30 and 31, Kyowa Violet shall undertake the duty of preparing the appendix to the appellant’s brief, as provided for under FSM App. R. 30.

IV.   Appearance of Counsel Pro Hac Vice

      At this time, neither counsel for Kyowa Violet, either David Ledger, Esq., or Stephen C. Smith, Esq., of the law firm of Carlsmith Ball, LLP, nor counsel for the People of Rull and Gilman, James P. Walsh, Esq., of the law firm of Davis Wright Tremaine, LLP, are authorized to practice before this Court.

     Under FSM App. R. 46(a), all attorneys and trial counselors admitted to practice law before this Court pursuant to the Court’s rules for admission to practice are eligible to appear before this Court’s appellate division. Although Messrs. Ledger, Smith and Walsh were granted permission to appear pro hac vice before this Court’s Yap State Trial Division in the underlying matter at issue in this appeal, neither Mr. Ledger, Mr. Smith, nor Mr. Walsh has been admitted to practice law before this Court. Accordingly, if Messrs. Ledger, Smith and Walsh intend to appear in this appeal, they must, within 10 days from the date this Order is issued, undertake the appropriate action to appear before this Court’s appellate division.

[15 FSM Intrm. 12]

V.   Conclusion

     FSM App. R. 27(c) provides that a single justice of this Court may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion. The action of a single justice may be reviewed by the Court.

     In conclusion, and for the reasons set forth above, Kyowa Violet is hereby designated as the "appellant" in this appeal for the purpose of complying with FSM App. R. 28, 30 and 31. The parties shall file their briefs in this appeal in compliance with the schedule set forth above and the Rules of Appellate Procedure promulgated by this Court.

     If counsel for Kyowa Violet, Messrs. Ledger and Smith, and counsel for the People of Rull and Gilman, Mr. Walsh, intend to appear in this appeal, they must, within 10 days from the date this Order is issued, undertake the appropriate action to appear before this Court’s appellate division.

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Footnotes:

1.  Attorney Daniel Berman, who is also representing the People of Rull and Gilman is an attorney admitted to practice law before this Court.

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