FSM SUPREME COURT APPELLATE DIVISION

Cite as Alanso v. Pridgen, 15 FSM Intrm. 597 (App. 2008)

[15 FSM Intrm 597]

JOSEPH ALANSO, TINA ALANSO,

and TJ ALANSO,

Appellants,

vs.

MINNIE PRIDGEN and LIKIAKSRUTILFAS,

Appellees.

APPEAL CASE NO. K8-2006

ORDER OF DISMISSAL

Argued:  March 25, 2008

Submitted:  April 11, 2008

Decided:  April 21, 2008

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
 

APPEARANCES:

For the Appellants:   Snyder H. Simon, Esq.

                                 P.O. Box 1017

                                 Tofol, Kosrae FM 96944
 

For the Appellees:   Sasaki L. George, Esq.

                                 Micronesian Legal Services Corporation

                                 P.O. Box 38

                                 Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review ) Decisions Reviewable

      An appellate court is obligated to examine the basis of its jurisdiction, sua sponte, if necessary. Alanso v. Pridgen, 15 FSM Intrm. 597, 598 n.1 (App. 2008).

Appellate Review ) Decisions Reviewable; Appellate Review ) Notice of Appeal

      A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of a timely motion filed in the FSM Supreme Court trial division by any party, 1) for judgment under Rule 50(b); 2) to amend or make additional findings of fact under Rule 52(b); 3) to alter or amend the judgment under Rule 59; 4) for a new trial under Rule 59; or from the entry of the order disposing of a timely motion for any equivalent relief under comparable rules of any state court from

[15 FSM Intrm 598]

which an appeal may lie, and the time for appeal for all parties runs from the entry of the order denying a new trial or granting or denying any other such motion because a notice of appeal filed before the disposition of any of the above motions has no effect. This applies to appeals from the Kosrae State Court for any motion that sought relief equivalent to any of the four enumerated motions. Alanso v. Pridgen, 15 FSM Intrm. 597, 599 (App. 2008).

Civil Procedure ) Dismissal; Judgments ) Alter or Amend Judgment

      A timely-filed motion to reconsider an order of dismissal is considered a Rule 59(e) motion to alter or amend a judgment. Alanso v. Pridgen, 15 FSM Intrm. 597, 600 (App. 2008).

Civil Procedure

      Although the court must first look to FSM sources of law rather than start with a review of other courtsí cases, when an FSM court has not previously construed a civil procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Alanso v. Pridgen, 15 FSM Intrm. 597, 600 n.2 (App. 2008).

Appellate Review ) Notice of Appeal; Judgments ) Alter or Amend Judgment

      The timely filing of a motion to alter or amend judgment destroys a previously filed notice of appeal and even a subsequent notice of appeal if that notice is filed while the motion to alter or amend is still pending. Alanso v. Pridgen, 15 FSM Intrm. 597, 600 (App. 2008).

Appellate Review ) Decisions Reviewable; Appellate Review ) Notice of Appeal

      A notice of appeal filed before the disposition of a Kosrae Rule 59 motion has no effect, and a new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Thus, a December 4, 2006 notice of appeal was of no effect and a nullity because a pending Rule 59(e) motion to alter or amend judgment negated that notice of appeal and when no new notice of appeal was filed in the 42-day period following the December 7, 2006 denial of the Rule 59 motion, the FSM Supreme Court appellate division never acquired jurisdiction over the case. Alanso v. Pridgen, 15 FSM Intrm. 597, 600 (App. 2008).

Appellate Review ) Notice of Appeal; Judgments ) Alter or Amend Judgment

      An order of dismissal is not a final decision if a timely motion under Rule 59 has been made and not disposed of, since the case lacks finality. For that reason, the subsequent filing of a notice of appeal is a nullity and does not deprive the trial court of power to rule on the motion. Alanso v. Pridgen, 15 FSM Intrm. 597, 600 (App. 2008).

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COURTíS OPINION

MARTIN G. YINUG, Associate Justice:

      On March 25, 2008, this appeal came before us for oral argument on the merits. At that time, we noted that the appellants had filed their notice of appeal before the court appealed from had made its ruling on their pending motion for reconsideration of that courtís dismissal of their complaint. We questioned whether, in this circumstance, we had jurisdiction over this appeal. We therefore asked

[15 FSM Intrm 599]

the parties to submit briefs or memorandums on whether, under FSM Appellate Rule 4(a)(4), we had jurisdiction over this appeal. The appellants submitted their memorandum on April 9, 2008. The appellees submitted theirs on April 11, 2008. We then considered the matter submitted for our decision.

      We conclude that we lack jurisdiction to consider the appealís merits. Our reasons follow.

I.  Procedural History

      On October 14, 2005, Joseph Alanso, Tina Alanso, and TJ Alanso filed a complaint, docketed as Civil Action No. 136-05, in Kosrae State Court against Minnie Pridgen and Likiaksru L. Tilfas, alleging breach of contract, fraud, mistake, and seeking a declaration of the partiesí rights. On November 14, 2005, Pridgen and Tilfas filed their answer and a counterclaim, alleging that the Alansos were liable for trespass, conversion, and the negligence of their counsel. The Alansos answered the counterclaim on December 14, 2005. The parties then engaged in discovery.

      On October 26, 2006, while discovery motions were pending and with a status conference set for November 2, 2006, the Kosrae State Court, on it own motion and without notice to the parties that it was considering such a move, issued an order of dismissal on the ground that the alleged contract breach was the failure to transfer ownership of land. Alanso v. Pridgen, 14 FSM Intrm. 479 (Kos. S. Ct. Tr. 2006). On October 27, 2006, the Alansos filed a motion to reconsider the dismissal, and, when the trial court had not acted on it, filed a notice of appeal on December 4, 2006. The trial court denied the motion on December 7, 2006. No notice of appeal was filed after that denial.

II.  Jurisdictional Question

      The Alansos assert that we have jurisdiction. The Alansos contend that FSM Appellate Rule 4(a)(4) has no application to this appeal because, in their view, it only applies to appeals from the FSM Supreme Court trial division. Appellate Rule 4(a)(4) provides:

     If a timely motion under the Rules of Civil Procedure is filed in the Supreme Court Trial Division by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment, or (iv) under Rule 59 for a new trial or for any equivalent relief under comparable rules of any state court from which an appeal may lie, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.

      In making their assertion, the Alansos overlook the phrase after the four enumerated post-judgment motions that reads "or for any equivalent relief under comparable rules of any state court from which an appeal may lie." Thus if the Alansosí motion for reconsideration, under the Kosrae State Court rules, sought relief equivalent to any of the four enumerated motions, then FSM Appellate Rule 4(a)(4) does apply.

      We conclude that the Alansosí motion for reconsideration of the State Courtís dismissal order was a motion to alter or amend the judgment under Kosrae Civil Procedure Rule 59(e), which is identical to FSM Civil Procedure Rule 59(e), and thus equivalent relief to the Rule 59 motion to alter or amend

[15 FSM Intrm 600]

judgment enumerated in Appellate Rule 4(a)(4)(iii). The Alansosí motion was served within ten days of the judgment (the order of dismissal) as required by Kosrae Civil Rule 59(e) and was thus timely. A timely-filed motion to reconsider an order of dismissal is considered a Rule 59(e) motion to alter or amend a judgment. See, e.g., Treuter v. Kaufman County, 864 F.2d 1139, 1142 (5th Cir. 1989); Lewis v. United States Postal Serv., 840 F.2d 712, 713 (9th Cir. 1988). The timely filing of a motion to alter or amend judgment destroys a previously filed notice of appeal and even a subsequent notice of appeal if that notice is filed while the motion to alter or amend is still pending. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61, 103 S. Ct. 400, 403, 74 L. Ed. 2d 225, 229-30 (1982); Treuter, 864 F.2d at 1142; Lewis, 840 F.2d at 714. The Alansosí Rule 59 motion was timely. They were therefore required to file a new notice of appeal after the Kosrae State Court entered an order disposing of their motion. Their failure to do so deprives us of jurisdiction.

      This is because a notice of appeal filed before the disposition of a Kosrae Rule 59 motion has "no effect," and a "new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion." FSM App. R. 4(a)(4). Thus, the December 4, 2006 notice of appeal was of no effect and a nullity. The pending Rule 59(e) motion to alter or amend judgment negated that notice of appeal. When no new notice of appeal was filed in the 42-day period following the December 7, 2006 denial, we never acquired jurisdiction over this case.

      Our decision is in conformance with our earlier decision in Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999), in which we held that a pending motion to reconsider before the Pohnpei Supreme Court appellate division was analogous to the motions enumerated in FSM Appellate Rule 4(a)(4) so that a notice of appeal filed in the FSM Supreme Court while the motion to reconsider was pending had no effect since it was prematurely filed and jurisdiction was thus never transferred to the FSM Supreme Court appellate division.

      The Alansos further contend that, despite Rule 4(a)(4), we have jurisdiction because their appeal is from a final decision of the Kosrae State Court. They rely on FSM Appellate Procedure Rule 4(a)(1)(A), which provides that "appeals may be taken . . . from all final decisions of the trial divisions of . . . the Kosrae State Court." However, the October 26, 2006 order of dismissal was not a final decision because "[i]f a timely motion under Rule 59 has been made and not disposed of, the case lacks finality. For that reason, the subsequent filing of a notice of appeal is a nullity and does not deprive the trial court of power to rule on the motion." 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure ß 2821, at 220-21 (2d ed. 1995). The Alansos also point to Tafunsak v. Kosrae, 6 FSM Intrm. 467, 468 (App. 1994) and Akinaga v. Heirs of Mike, 15 FSM Intrm. 391, 394-96 (App. 2007) to support their contention that we have jurisdiction. However, in those cases, timely notices of appeal had been filed, but not in all of the proper places. In this case, the December 4, 2006 notice of appeal was a nullity and thus no timely notice of appeal was filed.

[15 FSM Intrm 601]

      The Alansos stated at oral argument that there were important issues before the court ) whether the Kosrae State Court has no jurisdiction over a breach of contract case when the alleged breach was failure to convey land title; whether, when an interest in land is involved, the State Court must dismiss the case even though there are tort and breach of contract claims and title to the land is not disputed; whether the State Court should retain jurisdiction over the contract money remedies and tort claims while the Land Court determines whether title was transferred; whether, although the Land Court has exclusive jurisdiction to register land (that is, issue certificates of title), the State Court may exercise concurrent jurisdiction for other land-related issues ) that needed resolution. These are important issues, but since we lack jurisdiction over this appeal, their resolution will have to await another day.

III.  Conclusion

      Accordingly, we dismiss this appeal for lack of jurisdiction.

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Footnotes:

1.  An appellate court is obligated to examine the basis of its jurisdiction, sua sponte, if necessary. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 588 (App. 2008); see also In re Chunn, 106 F.3d 1239, 1241 (5th Cir. 1997); Williams v. Chater, 87 F.3d 702, 704 (5th Cir. 1996).

2.  Although we must first look to FSM sources of law rather than start with a review of other courtsí cases, FSM Const. art. XI, ß 11, when an FSM court has not previously construed a civil procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, see, e.g., Bualuay v. Rano, 11 FSM Intrm. 139, 146 n.1 (App. 2002); Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 n.2 (App. 1999). We have not previously had the occasion to construe the procedural nature of a post-dismissal motion to reconsider.

3.  These U.S. cases construe U.S. Federal Rule of Appellate Procedure 4(a)(4) as it existed between 1972 and 1993, and to which our current Appellate Procedure Rule 4(a)(4) is substantially similar. The U.S. rule was amended in 1993 in such a way that the result in these cases would change.

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