11ASR2d27

SEIGAFOIAVA R. PENE and CARMENCITA PENE, Appellants

v.

AMERICAN SAMOA POWER AUTHORITY and

ABE MALAE, Appellees

High Court of American Samoa

Trial Division

AP No. 3-89

April 21, 1989

__________

Where failure of pro se appellants to file brief within time period prescribed by rule was partly

due to negligence of appellants but also partly due to the inadvertent omission of the rule in

question from the copy of the court rules made available to the public in the court library,

appellants’ “motion for clarification” filed prior to [11ASR2d28] the deadline would be

construed as a timely motion for extension of time in which to file the brief. Appellate Court

Rules 3(c), 31(a).

Before REES , Associate Justice.

Counsel: Appellants Ropati S. Pene and Carmencita Pene pro se

For Appellees, Robert A. Dennison III

On “Motion for Clarification” and Motion to Dismiss:

Notice of this appeal was given on February 10, 1989. Along with notice of the appeal, the pro se

appellants moved for a waiver of transcript costs. This request was denied on February 21.

On March 3 the appellants filed a “statement of the issues to be presented on appeal.” On March 6

the appellees filed an objection to this statement, alleging that it contained evidence that was not in the

record. In this document, appellees “request [ed] that the Trial Court settle Appellees[‘] objections and

approve a record on appeal excluding the objectionable matters presented in Appellant[s’] filing.”

Later on March 6, the trial judge ruled that “the record on appeal is the Trial Court ‘ s findings

unless there is an agreed statement.” (There was and is no agreed statement.) This ruling was

handwritten at the bottom of appellees’ objection. It appears that neither the Clerk nor counsel for

appellees caused it to be served on appellants.

On March 6, and again on March 13, the Clerk notified appellants that they had thirty-five days

from March 3, in accordance with Appellate Rule 3(c) as amended in 1986, to file their brief. On April

10 appellant S.R. Pene filed a “motion for clarification of court order and or interpretation of court

procedures.” In this document he complains that the Clerk used the wrong number on one of the

notices, that the Clerk had no authority to tell him he has thirty-five days in which to file his appeal, and

that the trial court had not yet ruled on appellees’ request for a record on appeal. The implication,

presumably, is [11ASR2d29] that appellants should have had a longer time in which to file their appeal.

On April 21 appellees filed a motion to dismiss, on the ground that appellants’ brief was due on

April 12 at the latest, that they did not request an extension, and that their appeal is frivolous.

Appellees are correct to point out that appellants’ brief was due on April 12 at the latest. See

Appellate Court Rule 31(a). (Actually, since appellants did not request a transcript, Rule 3(c) as

amended rather than Rule 31(a) was applicable to this case. The Clerk has indicated, however, that

until recently the amended copy of this rule had not been inserted into the copy of the Rules in the High

Court library , which is the only copy available to the public.) Even if the trial judge had not ruled on

appellees’ objection, this would not have extended the deadline on appellants’ brief.

Appellant S.R. Pene was negligent in ignoring the clerk’s notice for almost a month before asking

for a “clarification” or “interpretation” of it. He was also negligent in assuming that his filing deadline

would be automatically extended until after the trial court had ruled on appellees’ motion for a

statement of the record. This negligence contributed substantially to his missing the filing deadline.

On the other hand, the failure of either the Clerk or counsel for appellees to serve appellants with a

copy of the March 6 ruling, and the inadvertent omission of Rule 3(c) as amended from the library copy

of the Rules, were also contributing factors. Moreover, the obvious import of appellant’s “motion for

clarification,” which was filed on April 10, is that he wanted more time to file his brief. The Court will

therefore interpret this document as a request for an extension of time to file the brief, and will grant

appellants ten days from today in which to file their brief. The brief will be due on May 1, 1989. There

will be no further extensions.

Insofar as appellees’ motion to dismiss is grounded on the frivolity of the appeal, it is deferred until

the next regular session of the Appellate Division. Appellees may also seek review [11ASR2d30] of

the remainder of this order by the entire Appellate Division at the next regular session thereof.

It is so ordered.

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