Cite as Lonno v. TTPI, 1 FSM Intrm. 75 (Pon. 81)
[1 FSM Intrm. 75]
CIVIL ACTION 1981-2001
For an interlocutory appeal, FSM Appellate Rule 5 must be read as requiring a prescribed statement from the trial court. Lonno v. Trust Territory (II), 1 FSM Intrm. 75, 77 (Kos. 1982).
The trial court will not issue a Rule 5(a) prescribed statement for an interlocutory appeal when there is no substantial ground for difference of opinion and that an immediate appeal from the order would retard, rather than materially advance, the ultimate determination of the litigation. Lonno v. Trust Territory (II), 1 FSM Intrm. 75, 78 (Kos. 1982).
Defendant has filed a petition seeking permission to appeal this court's January 28, 1982 denial of defendant's motion to dismiss. Defendant's petition relies upon Rules 5 (a) and (d) of the proposed Rules of Appellate Procedure of the Supreme Court of the Federated States of Micronesia.
This is the first such petition for interlocutory appeal filed with the court. Because the procedural rules and implementation thereof have not been finalized and because of the ambiguity noted below, I submit the following comments.
"Prescribed Statement" Under Rule 5(a)
Rule 5 (a) of this court's proposed Rules of Appellate Procedure unfortunately leaves unresolved the question of the role of the trial court concerning a petition for interlocutory appeal. The proposed Rules of Appellate Procedure are based
upon the United States Federal Rules of Appellate Procedure. This court's Rule 5 (a) varies somewhat more from the com-parable United States Federal Rule than do most of the proposed Appellate Rules. The apparent reason for this is that the United States Federal Rule 5(a) is grounded upon a statutory provision, 28 U.S.C. § 1292(b), which provides that:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
United States Federal Rule 5(a) specifically refers to the statutory provision, saying:
Petition for Permission to Appeal. An appeal from an interlocutory order containing the statement prescribed by 28 U.S.C. Section 1292(b) may be sought by filing a petition for permission to appeal with the clerk of the court of appeals within 10 days after the entry of such order in the district court with proof of service on all other parties to the action in the district court. An order may be amended to include the prescribed statement at any time, and permission to appeal may be sought within 10 days after entry of the order as amended.
In contrast, Rule 5(a) of this court's proposed appellate rules contains no reference in its first sentence to a prescribed statement of the trial court nor to the United States federal statute, so that proposed Rule 5(a) here reads as follows:
Petition for Permission to Appeal. An appeal from an interlocutory order may be sought by filing a petition for permission to appeal with the clerk of the Supreme Court Appellate Division within 10 days after the entry of such order with proof of service on all other parties to the action in the court from which the appeal is being taken. An order may be amended to included the prescribed statement at any time, and permission to appeal may be sought within 10 days after entry of the order as amended.
Absence of reference to the prescribed statement in the first sentence of this proposed rule might seem to imply that a statement from the Trial Division is not necessary as a condition precedent to the right of a party to petition the Supreme Court Appellate Division for permission to appeal. However, I note that the second sentence of the proposed rule still includes reference to a "prescribed statement.
This statement, in this context, can only be regarded as referring to a statement of the Trial Division. Moreover, the second clause of this second sentence seems to suggest that the prescribed statement may be a condition which must be fulfilled before "permission to appeal may be sought."
It is of course for the Appellate Division to determine whether a statement of the trial court is necessary before the Appellate Division may consider a petition for interlocutory appeal under Rule 5(a).
To avoid compounding any possible confusion, however, and also to prevent unnecessary delay which might be entailed by a remand of the petition to the trial court for possible issuance of the "prescribed statement" of the type called
for under 28 U.S.C. section 1292(b), I as the trial court justice, have considered defendant's petition as a request for a prescribed statement. After reviewing the petition and the January 28 order I have concluded that there is no substantial ground for difference of opinion and that an immediate appeal from the order would retard, rather than materially advance, the ultimate determination of the litigation. Therefore, I decline to issue a "prescribed statement" within the meaning of proposed Rule 5 (a).
The parties are further notified that, subject to any contrary action which the Appellate Division may take, I do not regard the submission of the petition to the Appellate Division as requiring delay in the Trial Division proceedings. A hearing will be held in the Kosrae courthouse on March 23, 1982 at 9 A.M. as previously scheduled. At that time the court will hear argument on any pending motions and, if none are pending, a pre-trial hearing will be held.
DATED: 2/12/82
/s/ Edward C. King
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Chief Justice
Supreme Court of the Federated
States of Micronesia
Trial Division