[24 FSM R. 124]

APPEAL CASE NO. K7-2016
(Kosrae Small Claim No. 54-16)

Decided: May 19, 2023

BEFORE:

Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice, FSM Supreme Court

HEADNOTES

Appellate Review – Parties

Ordinarily, the proper procedure to be followed when a party to an appeal has died is to effect a substitution under FSM Appellate Procedure Rule 43(a), which provides that if a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the appellate division, the deceased party's personal representative may be substituted as a party. Usually, the decedent's personal representative and the proper party for substitution is the administrator of the decedent's estate rather than the decedent's relatives who are not legal representatives, but, if the estate has been distributed, then a "successor" may be a proper party. Simon v. Tafunsak Mun. Gov't, 24 FSM R. 124, 125 (App. 2023).

Appellate Review – Interpretation of Rules; Appellate Review – Parties

Because FSM Appellate Rule 43(a) is virtually identical to the U.S. Federal Rule of Appellate Procedure 43(a) and the court has not previously construed it, the court may look to U.S. sources for guidance in interpreting that FSM appellate rule. Simon v. Tafunsak Mun. Gov't, 24 FSM R. 124, 126 n.1 (App. 2023).

Appellate Review – Dismissal; Appellate Review – Parties

When an appellant dies with his appeal ready for oral argument and he has no personal representative to substitute and maintain the appeal, the appropriate approach is to dismiss the appeal without prejudice since Appellate Rule 43(a) contains an implied power to dismiss an appeal when, after reasonable efforts have been made to notify the decedent's known survivors, no personal representative has appeared within a reasonable time to maintain the appeal for a deceased appellant. Simon v. Tafunsak Mun. Gov't, 24 FSM R. 124, 126 (App. 2023).

Appellate Review – Dismissal; Appellate Review – Parties

Based on the appellate court's inherent power to control its docket, the court may dismiss an appeal for want of prosecution, but without prejudice to the right of the deceased appellant's personal representative to seek, within a reasonable time, the reinstatement of the appeal on the deceased appellant's behalf, and, if the personal representative does later seek reinstatement of the appeal, the court will determine then if the application is reasonably timely. Simon v. Tafunsak Mun. Gov't, 24 FSM R. 124, 126 (App. 2023).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

This appeal case is dismissed without prejudice. Our reasons follow.

I. CASE POSTURE

The Tafunsak Municipal Government obtained a $799 default judgment against Snyder H. Simon in the Kosrae State Court's small claims division. Simon moved for reconsideration, which the trial court denied. Simon appealed. The parties' appellate briefs have been filed. Oral argument was scheduled for April 30, 2018, but was continued at the parties' request. At some later point, the court learned that the appellant, Snyder H. Simon, had passed away.

On October 21, 2022, a single justice, noting that Simon was deceased, gave the appellee, 30 days to inform the court whether it still intended to pursue its efforts to collect its $799 judgment against Snyder Simon, or now, against his estate. If nothing earlier had qualified, the October 21, 2022 court order qualified as a suggestion of Simon's death on the record.

On March 3, 2023, a single justice ordered Simon's estate to file and serve by April 24, 2023, a memorandum showing cause why this appeal should not be dismissed because, either this appeal had become moot (if appellee Tafunsak Municipal Government is no longer seeking to collect from Simon or his estate or if Simon's estate is not seeking a refund from Tafunsak), or because Simon's estate is no longer interested in this appeal.

Since then, nothing has been filed in this appeal.

II. APPELLATE PROCEDURE RULE 43(a)

Ordinarily, the proper procedure to be followed when a party to an appeal has died is to effect a substitution under FSM Appellate Procedure Rule 43(a). "If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the Supreme Court appellate division, the personal representative of the deceased party may be substituted as a party . . . ." FSM App. R. 43(a). Generally, it is the administrator of the decedent's estate who is the decedent's personal representative and the proper party for substitution rather than the decedent's relatives who are not legal representatives, but, if the estate has been distributed, then a "successor" may be a proper party. George v. Johnithan, 15 FSM R. 455, 457 (Kos. S. Ct. Tr. 2007); See also Damarlane v. FSM, 8 FSM R. 10, 12 (Pon. 1997) (an administrator's identity is not presumed; there must be some designation by a court).

No personal representative has come forward on Simon's behalf. No one has moved under Appellate Procedure Rule 43(a) to substitute a personal representative for Simon. We do not even know if Simon has a personal representative. We only know that our orders have been served on Simon's widow as well as on Tafunsak's counsel. Simon's estate, if a state court probate proceeding has been instituted, may have decided to abandon this appeal, and Tafunsak may have decided not to enforce its money judgment.

III. THE COURT'S BEST COURSE

The procedural posture in this appeal mirrors that in Johnson v. Morgenthau, 160 F.3d 897 (2d Cir. 1998).² In Johnson, the appellate court learned the day before scheduled oral argument that appellant Johnson had died. Id. at 898. That court also did not know if the appellant had a personal representative, but it did know that the one known survivor, his brother, "eschewed any interest in maintaining th[e] appeal." Id. The Johnson court decided that under the circumstances that its best course was "to dismiss Johnson's appeal without prejudice to the right of Johnson's personal representative to seek reinstatement of the appeal on Johnson's behalf." Id. at 898-99. The Johnson court concluded that this disposition was based on the court's inherent power to control its docket and was consistent with other courts' dismissals of appeals for want of prosecution when an appellant's personal representative had not come forward within a reasonable time. Id. at 899. It further concluded that if Johnson's personal representative did come forward seeking reinstatement, the court would then determine, in the circumstances presented, whether the application was timely. Id. at 899 n.2.

We conclude that this is the appropriate approach when an appellant dies with his appeal ready for oral argument and he has no personal representative to substitute and maintain the appeal. Appellate Rule 43(a) contains an implied power to dismiss an appeal when, after reasonable efforts have been made to notify the decedent's known survivors, no personal representative has appeared within a reasonable time to maintain the appeal for a deceased appellant. United States v. Gamble, 655 F.2d 568, 569 (5th Cir. 1981). Based on our inherent power to control our docket, we hereby dismiss this appeal for want of prosecution, but without prejudice to the right of Simon's personal representative to seek, within a reasonable time, the reinstatement of the appeal on Simon's behalf. If Simon's personal representative does later seek reinstatement of the appeal, we will determine then if the application is reasonably timely.

The parties will bear their own costs.

Footnotes:

² FSM Appellate Procedure Rule 43(a) is virtually identical to the U.S. Federal Rule of Appellate Procedure 43(a). We have not previously construed it, although, on one previous occasion, when a class representative of the appellee class passed away, we used Rule 43 to substitute as a class representative, a Yapese chief that the other two class representatives (also Yapese chiefs) agreed should substitute. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM R. 355, 366 (App. 2007). We may look to U.S. sources for guidance in interpreting an FSM appellate procedure rule when we have not previously construed that rule and it is identical or similar to a U.S. counterpart. Andrew v. Heirs of Seymour, 19 FSM R. 451, 452 n.1 (App. 2014).