[24 FSM R. 69]

APPEAL CASE NO. P8-2022

Decided: March 16, 2023

BEFORE:

Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian Manmaw, Specially Assigned Justice, FSM Supreme Court*

*Chief Justice, State Court of Yap, Colonia, Yap

APPEARANCES:

For the Appellant:                        Salomon M. Saimon, Esq.
                                                    P.O. Box 911
                                                    Kolonia, Pohnpei FM 96941

For the Real Party in Interest:     Kathleen M. Burch, Esq.
                                                    20 Forrest Place
                                                    Atlanta, Georgia 30328

HEADNOTES

Costs – Procedure

When the service costs sought were all for service of documents filed in the trial division, taxation of those costs must be sought in the trial division, not the appellate division, because Appellate Procedure Rule 39 costs are taxed only for certain expenses incurred in the appellate division. Paul v. Lambert, 24 FSM R. 69, 71 (App. 2023).

Attorney's Fees – Court-Awarded; Costs – Disallowed

Attorney's fees are not recoverable as costs under Appellate Rule 39, and neither are an attorney's travel costs. Paul v. Lambert, 24 FSM R. 69, 71 (App. 2023).

Attorney's Fees – Court-Awarded – Private Attorney General; Costs – Procedure

The consideration of and the determination whether attorney's fees should be awarded under the private attorney general theory must first take place in the trial court. Paul v. Lambert, 24 FSM R. 69, 71 (App. 2023).

Costs – Procedure

Reasonable travel expenses, when allowed as costs, must first be considered in the trial division since that is the forum best suited to make the factual findings concerning the unavailability of local counsel and the necessity of travel. Paul v. Lambert, 24 FSM R. 69, 71 (App. 2023).

COURT'S OPINION

PER CURIAM:

I.

On February 20, 2023, the prevailing appellee, Esmond B. Moses, filed the Real Party in Interest's Bill of Costs, Including Request for Attorney's Fees, and Brief in Support Thereof. Moses asks that he be awarded his expenses of $40,350 for attorney's fees (using a multiplier to double his counsel's usual FSM hourly rate) and $3,795.25 for his attorney's travel expenses. He also asks, in an affidavit of Mary Kilmete, his attorney's process server, that he be awarded $100 for service costs incurred in December 2022. Moses contends that he should be awarded his attorney's fees based on the private attorney general theory – when the prevailing party has obtained a substantial benefit for a large class. Moses also asks for his counsel's travel costs from Atlanta, Georgia to Pohnpei to attend the appellate oral argument because, he avers, there was no attorney available on Pohnpei.

On March 2, 2023, Erick Paul filed his Opposition to Motion. In this objection to Moses's bill of costs, Paul contends that attorney's fees are not costs allowable under Appellate Rule 39 and that travel expenses for an off-island attorney cannot be awarded when there was no showing in the record that off-island counsel was necessary.

II.

The $100 service costs in the Kilmete affidavit were all for service of documents filed in the trial division. Appellate Procedure Rule 39 costs are taxed only for certain expenses incurred in the appellate division, not for costs incurred in trial division proceedings. George v. Sigrah, 19 FSM R. 210, 218 (App. 2013). Moses must seek taxation of the $100 service costs in the trial division, FSM Civ. R. 54(d), not the appellate division.

Attorney's fees are not recoverable as costs under Appellate Rule 39. In re Sanction of Sigrah, 19 FSM R. 396, 398 (App. 2014); Nena v. Saimon, 19 FSM R. 393, 395 (App. 2014); Santos v. Bank of Hawaii, 9 FSM R. 306, 307 (App. 2000). And neither are an attorney's travel costs. See Wyandotte Sav. Bank v. National Labor Relations Bd., 682 F.2d 119, 120 (6th Cir. 1982) ("[R]ecovery as costs of attorney's fees . . . and reimbursement of travel costs of counsel incurred in connection with oral argument . . . may not be recovered as costs.").

The consideration of and determination whether attorney's fees should be awarded under the private attorney general theory must first take place in the trial court. See FSM v. Udot Municipality, 12 FSM R. 622, 624-25 (App. 2004) (trial court's original award on the private attorney general theory of attorney's fees for trial court work having been affirmed, matter remanded for trial court to determine the attorney's fees and costs award for the appeal); cf. Pohnpei v. AHPW, Inc., 13 FSM R. 159, 161 (App. 2005) (trial court retains jurisdiction to assess fees and costs even after an appeal has been filed).

Reasonable travel expenses, when allowed as costs, must also first be considered in the trial division since that is the forum best suited to make the factual findings concerning the unavailability of local counsel and the necessity of travel. See Ray v. Electrical Contracting Corp., 2 FSM R. 21, 26 (App. 1985) (trial court may allow attorney's reasonable travel expenses as costs when there is a showing that no attorney was available on the island where the litigation occurred); Salik v. U Corp., 4 FSM R. 48, 49 (Pon. 1989) (travel expenses incurred because off-island counsel was chosen disallowed as costs when no showing of the unavailability of local counsel); Amayo v. MJ Co., 10 FSM R. 371, 386 (Pon. 2001) (counsel's travel expenses disallowed when counsel maintains a local office).

III.

Accordingly, we sustain Paul's objection to Moses's bill of costs and deny that bill without prejudice to any future consideration by the trial division.