FSM SUPREME COURT APPELLATE DIVISION
Cite as Sigrah v. Bank of the FSM, 24 FSM R. 480 (App. 2024)
YOSLYN G. SIGRAH,
Appellant,
vs.
BANK OF THE FEDERATED STATES OF MICRONESIA,
Appellee.
APPEAL CASE NO. P5-2023
(Civil Action No. 2018-011)
ORDER OF DISMISSAL
Decided: May 13, 2024
BEFORE:
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Chang B. William, 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:
Yoslyn G. Sigrah, Esq., pro se
P.O. Box 3018
Kolonia, Pohnpei, FM 96941
For the Appellee:
Debrah Ann Mori Retuyan, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941
* * * *
Before the court can consider an appeal's merits, it is obligated to examine and address the basis of its jurisdiction, even if it must do so sua sponte. This is because jurisdiction is a threshold question. Sigrah v. Bank of the FSM, 24 FSM R. 480, 482 (App. 2024).
A timely notice of appeal from a final decision is a prerequisite to an appellate court's jurisdiction over an appeal. Sigrah v. Bank of the FSM, 24 FSM R. 480, 482 (App. 2024).
In civil cases, an appeal may be taken by filing of a notice of appeal as provided in Rule 3 within 42 days after the date of the entry of the judgment or order appealed from. This time limit is mandatory and jurisdictional and if it is not extended by the grant of a timely Rule 4(a)(5) motion to extend that time period, the appellate division lacks jurisdiction to hear the case. Sigrah v. Bank of the FSM, 24 FSM R. 480, 483 (App. 2024).
The basic rule for the computation of time under Appellate Rule 26(a) is: 1) do not include the day of the entry of judgment in the computation, and 2) if Saturday, Sunday, or a legal holiday is the last day of the appeal, period, the period ends on the next day which is not a Saturday, Sunday, or a legal holiday. Sigrah v. Bank of the FSM, 24 FSM R. 480, 483 (App. 2024).
The general rule about the meaning of "after" is that time "after" an act is computed by excluding the day on which the act takes place. Sigrah v. Bank of the FSM, 24 FSM R. 480, 490 (App. 2024).
Rules are construed in a manner similar to the manner in which statutes are construed. The statutory term "within" as used in the phrase "within a particular length of time" means before that length of time has passed. Sigrah v. Bank of the FSM, 24 FSM R. 480, 483 (App. 2024).
A notice of appeal must be filed within the 42 days after the date of the entry of the judgment appealed from – before those 42 days have passed. Sigrah v. Bank of the FSM, 24 FSM R. 480, 483 (App. 2024).
The general rule is that the law does not know or take notice of fractions of a day. That is why Rule 4(a)(1)'s computation of 42 days starts with the day "after the date of the entry of the judgment," and not at the moment the judgment is entered. It also does not start at that moment on the next day. Sigrah v. Bank of the FSM, 24 FSM R. 480, 484 (App. 2024).
There are statutory exceptions where the time (as well as the day) of the act is taken notice of and has legal effect because the law is concerned with the priority of events occurring the same day – priority of security interests in the same collateral, 33 F.S.M.C. 1104(1); priority of recorded ship mortgages, 19 F.S.M.C. 326(7); and bankruptcy applications, 31 F.S.M.C. 106 (nationwide stay at time of filing). Sigrah v. Bank of the FSM, 24 FSM R. 480, 484 n.3 (App. 2024).
The appellate division may not enlarge the time for filing a notice of appeal. Only the court appealed from can show any "leniency" and extend the time to file a notice of appeal, and then only on a timely motion to extend the time to file the appeal. Sigrah v. Bank of the FSM, 24 FSM R. 480, 484 (App. 2024).
The requirement that motions to extend be filed within thirty days of the original deadline is mandatory and jurisdictional. Sigrah v. Bank of the FSM, 24 FSM R. 480, 484 (App. 2024).
The appellate court has no jurisdiction to entertain a motion to extend time to appeal, except as an appeal of a lower court's denial of a motion to extend time. Sigrah v. Bank of the FSM, 24 FSM R. 480, 484 (App. 2024).
It is never wise to wait to the last day of an appeal period to file a notice of appeal. Something may happen. Some emergency may occur, diverting the would-be appellant's attention. Sigrah v. Bank of the FSM, 24 FSM R. 480, 484 (App. 2024).
In all cases, it is good practice to file the notice of appeal early in the appeal period so that it may be possible to correct any errors. Sigrah v. Bank of the FSM, 24 FSM R. 480, 484 (App. 2024).
A notice of appeal filed after a July 13, 2023 order directing entry of judgment and before the July 25, 2023 judgment would have become a valid notice of appeal on July 25, 2023. Sigrah v. Bank of the FSM, 24 FSM R. 480, 485 n.4 (App. 2024).
A notice of appeal must be filed within the time prescribed. The jurisdiction of the appellate court depends on it. Sigrah v. Bank of the FSM, 24 FSM R. 480, 485 (App. 2024).
A one-day delay to file a notice of appeal is fatal once the 30-day period in which an extension could be sought has expired without a motion to extend filed in the trial court, and no legal maneuver, no matter how inventive, can then confer jurisdiction on the appellate court. Such untimely appeals must be dismissed for lack of jurisdiction. Sigrah v. Bank of the FSM, 24 FSM R. 480, 485 (App. 2024).
* * * *
LARRY WENTWORTH, Associate Justice:
Before we can consider an appeal's merits, we are obligated to examine and address the basis of our jurisdiction, even if we must do so sua sponte. Berman v. FSM Nat'l Police, 19 FSM R. 118, 123 (App. 2013); Berman v. College of Micronesia-FSM, 15 FSM R. 582, 588 (App. 2008); Kosrae v. Benjamin, 17 FSM R. 1, 3 (App. 2010). This is because jurisdiction is a threshold question.
A single justice noted that we may lack jurisdiction over this appeal because it seemed that the notice of appeal may not have been timely filed, see FSM App. R. 4(a)(1), and because "[a] timely notice of appeal from a final decision is a prerequisite to an appellate court's jurisdiction over an appeal," Smith v. Nimea, 16 FSM R. 346, 349 (App. 2009) (citing Berman v. College of Micronesia-FSM, 15 FSM R. 582, 589 (App. 2008)). The parties were therefore asked to submit their views on whether we have jurisdiction over this appeal. The Bank of the Federated States of Micronesia and Yoslyn G. Sigrah both filed briefs on jurisdiction. Neither filed a response to the other's brief.
We conclude that we lack jurisdiction over this appeal because it was filed too late. Our explanation follows.
On April 26, 2023, the trial court granted the Bank of the FSM (plaintiff and counter-defendant) partial summary judgment on its claims against Yoslyn G. Sigrah (defendant and counterclaimant) and complete summary judgment on Sigrah's counterclaims against it. Bank of the FSM v. Sigrah, 24 FSM R. 86 (Pon. 2023).
On July 13, 2023, the trial court determined the exact amount of borrower Sigrah's debt to the bank and awarded the lender bank its attorney's fees in an amount certain. It then directed that judgment be entered accordingly. On July 25, 2023, the court clerk entered judgment in conformity with the trial court's July 13, 2023 decision.
Sigrah filed her notice of appeal on Wednesday, September 6, 2023.
A. Appellate Procedure Rule 4(a)(1)
In civil cases, an appeal may be taken "by the filing of a notice of appeal as provided in Rule 3 within forty-two (42) days after the date of the entry of the judgment or order appealed from." FSM App. R. 4(a)(1). This time limit is mandatory and jurisdictional and if it is not extended by the grant of a timely Rule 4(a)(5) motion to extend that time period,1 the appellate division lacks jurisdiction to hear the case. Abrams v. FSM Dev. Bank, 20 FSM R. 340, 345 (App. 2016); Heirs of Weilbacher v. Heirs of Luke, 19 FSM R. 178, 180 (App. 2013); Ruben v. Chuuk, 18 FSM R. 604, 607-08 (App. 2013); Jonah v. FSM Dev. Bank, 17 FSM R. 506, 508 (App. 2011); Goya v. Ramp, 13 FSM R. 100, 104-05 (App. 2005); Bualuay v. Rano, 11 FSM R. 139, 145 (App. 2002); Hartman v. Bank of Guam, 10 FSM R. 89, 95 (App. 2001).
B. Computation of 42 Days' Time
Sigrah asserts that we could conclude that she did file her notice of appeal within the 42-day appeal period after the entry of the judgment. She acknowledges that, based on her counting of days, she had calendared September 6, 2023 as the deadline to appeal the judgment. She now argues that, since July 25, 2023, was the date of the judgment, July 26, 2023, was the date after the judgment, so that July 27, 2023, was the first day of the 42-day appeal period, making September 6, 2023, the last day of the appeal period and making her notice of appeal timely.
The computation of time is governed by Appellate Procedure Rule 26(a). The basic rule is: 1) do not include the day of the entry of judgment in the computation, and 2) if Saturday, Sunday, or a legal holiday is the last day of the appeal, period, the period ends on the next day which is not a Saturday, Sunday, or a legal holiday. Rule 26 corresponds to the general rule about the meaning of "after." "[G]enerally, time 'after' an act is computed by excluding the day on which the act takes place." 74 AM. JUR. 2D Time § 25, at 609 (1974). In this case, the "act" was the entry of judgment on July 25, 2023. July 26, 2023, therefore was the first day of the 42-day appeal period.
Rules are construed in a manner similar to the manner in which statutes are construed. Heirs of Benjamin v. Heirs of Benjamin, 17 FSM R. 621, 628 (App. 2011). "The statutory term 'within' as used in the phrase 'within a particular length of time' means before that length of time has passed." 74 AM. JUR. 2D Time § 34 (2023). Therefore, a notice of appeal must be filed within the 42 days after the date of the entry of the judgment appealed from – before those 42 days have passed.
Since the first day of that 42-day period was July 26, 2023, the last day (day 42) was September 5, 2023.2 September 5, 2023, was not a Saturday, Sunday, or legal holiday. The September 6, 2023 notice of appeal was thus not filed within 42 days. It was filed too late.
C. Fractions of Days
Sigrah also argues that since the Judgment was entered on July 25, 2023, at 3:42 p.m., and her notice of appeal was filed on September 6, 2023, at 1:56 p.m., she managed to file her notice of appeal within 42 days "after the date of the entry of judgment."
Neither Rule 4(a)(1) nor Rule 26(b) speak of or authorize the use of fractions of days. Rule 4(a)(1) clearly states that the appeal period is computed "days after the date," not after the time of the entry of judgment. The general rule is that the law does not know or take notice of fractions of a day.3 74 AM. JUR. 2D Time § 13 (1974). That is why Rule 4(a)(1)'s computation of 42 days starts with the day "after the date of the entry of the judgment," and not at the moment the judgment is entered. It also does not start at that moment on the next day.
Sigrah alternatively asks for our "leniency" in considering the notice of appeal deadline. This "leniency" would mean extending by one day the time to file a valid notice of appeal. We do not have that power. The "appellate division may not enlarge the time for filing a notice of appeal." FSM App. R. 26(b). Only the court appealed from can show any "leniency" and extend the time to file a notice of appeal, and then only on a timely motion to extend the time to file the appeal. FSM App. R. 4(a)(5). The requirement that motions to extend be filed within thirty days of the original deadline is mandatory and jurisdictional. Ruben v. Chuuk, 18 FSM R. 637, 640 (Chk. 2013) (failure to make a timely motion to file a notice of appeal out of time prohibits both the trial and appellate courts from reviving the right to appeal; court is powerless to grant or even consider a later motion to extend the time to appeal); accord Ruben v. Chuuk, 19 FSM R. 78, 79 (App. 2013).
Sigrah never filed a motion to extend, timely or otherwise, in the trial court. It is too late to file one now. Ruben, 18 FSM R. at 639-40. We have no jurisdiction to entertain a motion to extend time, FSM App. R. 26(b), except as an appeal of a lower court's denial of a motion to extend, see, e.g., Bualuay v. Rano, 11 FSM R. 139, 146 (App. 2002) (lower court's neglect to rule on timely motion to extend is considered a denial that can be reviewed on appeal); Goya v. Ramp, 13 FSM R. 100, 104-09 (App. 2005) (appellate court heard appeal from trial court's denial of motion to extend time to appeal and affirmed trial court's denial).
Thus, if Sigrah's request for leniency were considered a motion to extend, we must deny it. We have no jurisdiction to extend time. And, since no motion to extend was filed in the trial court, we have no authority to even consider an extension.
It is never wise to wait to the last day of an appeal period to file a notice of appeal. Something may happen. Some emergency may occur, diverting the would-be appellant's attention. "And in all cases, it is good practice to file [the notice of appeal] early in the appeal period . . . so that it may be possible to correct any errors." ERIC J. MAGNUSON & DAVID F. HERR, FEDERAL APPEALS § 6:2, at 379 (2016 ed.). Or, as another commentator put it:
Your notice of appeal must be filed within the time prescribed. The jurisdiction of the appellate court depends on it. If you fail to comply with this requirement, the court must dismiss the appeal. This can be a potent litigation tool if you represent the appellee and something to be carefully watched and adhered to should you represent the appellant. You do not want to be a day late, or you may find yourself more than a dollar short.
RUGGERO J. ALDISERT, WINNING ON APPEAL § 4.7, at 52 (2d ed. 2003) (footnote omitted).
In this case, Sigrah had 12 days between the July 13, 2023 court decision directing entry of judgment and the July 25, 2023 entry of judgment, and then had a 42-day appeal period after that, all plenty of time for Sigrah to decide whether to appeal, to prepare a notice of appeal, and to then file and serve that notice. A notice of appeal filed on any one of those 54 days after July 13, 2023, would have preserved Sigrah's appeal rights.4 Sigrah did not take advantage of any of those 54 days.
This is not the first time someone has waited until the forty-third day after entry of judgment before filing a notice of appeal and then been disappointed because the appeal could not be pursued. See Ruben v. Chuuk, 18 FSM R. 604, 607-08 (App. 2013).5 That one-day delay was fatal once the 30-day period in which an extension could be sought had expired without a motion to extend filed in the trial court, and no legal maneuver, no matter how inventive, could then confer jurisdiction on the appellate court. See Ruben v. Chuuk, 18 FSM R. 637, 639-40 (Chk. 2013) (trial court lacks the power to entertain or grant motion for enlargement of time to file nunc pro tunc notice of appeal because requirement that motions for extension be filed within thirty days of the original deadline is mandatory and jurisdictional); Ruben v. Chuuk, 19 FSM R. 78, 79 (App. 2013) (appellate division has no authority to waive or extend FSM Appellate Rule 4(a)'s time requirements or to grant a motion to extend time to appeal or grant an appellant's motion for enlargement of time to file notice of appeal nunc pro tunc).
Accordingly, since Sigrah's notice of appeal was untimely, we must dismiss her appeal for lack of jurisdiction
_______________________________Footnotes:
1 See infra part III for a discussion of extending the time to appeal.
2 July 26, 2023 through July 31, 2023, is six whole days. August has 31 days, making a total of 37 days. September 1-5, 2023, constitute the final five days of the 42-day appeal period. A notice of appeal filed within any of those 42 days would have been timely.
3 There are statutory exceptions to this general rule where the time (as well as the day) of the act is taken notice of and has legal effect because the law is concerned with the priority of events occurring the same day ─ priority of security interests in the same collateral, 33 F.S.M.C. 1104(1); priority of recorded ship mortgages, 19 F.S.M.C. 326(7); and bankruptcy applications, 31 F.S.M.C. 106 (nationwide stay at time of filing).
4 A notice of appeal filed after the July 13, 2023 Order Granting Motion for Attorney's Fees and Directing Entry of Judgment for Plaintiff and before the July 25, 2023 Judgment would have become a valid notice of appeal on July 25, 2023. FSM App. R. 4(a)(2) ("Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof."). Sigrah thus had 54 actual days during which she could have filed a valid (and timely) notice of appeal.
5 The appeal periods for both the Ruben notice of appeal and Sigrah's notice of appeal included months with 31 instead of 30 days. Potential appellants should be aware that the appeal period is calculated by days, not months.
* * * *