THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Kosrae v. Melander,
6 FSM Intrm. 257 (App. 1993)

[6 FSM Intrm. 257]

KOSRAE STATE,
Appellant,

vs.

MELANDER MELANDER et al.,
Appellee.

APPEAL CASE NO. K5-1992

OPINION

Decided:  November 25, 1993

BEFORE:
     Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellant:     Tim Stumpff, Esq.
                                    Assistant Attorney General
                                    Office of the Kosrae Attorney General
                                    P.O. Box AG
                                    Lelu, Kosrae  FM  96944

For the Appellee:      Charles Greenfield, Esq.
                                    Directing Attorney
                                    Micronesian Legal Services Corporation
                                    P.O. Box 38
                                    Lelu, Kosrae  FM  96944

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HEADNOTE
Appeal and Certiorari
     In civil cases appeals may be taken from all final decisions of the Kosrae State Court.  Finality should be given practical rather than technical construction, however, a summary judgment on the issue of liability, is not final or appealable until after the damage issue is resolved.  Giving the word "final" its ordinary meaning, a decision that does not entirely dispose of one claim of a complaint containing four cannot be said to be final.  Kosrae v. Melander, 6 FSM Intrm. 257, 259 (App. 1993).

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[6 FSM Intrm. 258]

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before us on the court's own motion of September 6, 1993 raising the question of our jurisdiction to decide this appeal.  Appellant and appellees have filed their memoranda on the question.

     The complaint contained four causes of action:

     1)  that the exclusion of the plaintiffs by the defendant from the salary schedule for executive positions was unlawful;

     2)  that the defendant breached its contracts with the plaintiffs in failing to provide three meals a day;

     3)  that the exclusion of the plaintiffs from the salary schedule deprived the plaintiffs of due process of law; and

     4)  that the conduct of the defendant was a violation of the plaintiffs' equal protection rights.

     The parties filed cross motions for summary judgment on the first cause of action.  The trial court held that the "complete exclusion of the plaintiffs from the salary scale . . . is contrary to law," and ordered further proceedings on the issue of damages.

     The defendant Kosrae State then appealed the ruling of the court granting partial summary judgment.

     The issue before us is whether the order granting partial summary judgment is a final order.  If it is, we have jurisdiction.  "In civil cases . . . appeals may be taken: (A) from all final decisions of the . . . Kosrae State Court . . . ."  FSM App. R. 4(a)(1).

     The appellant, in support of this court's jurisdiction, cites Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S. Ct. 308, 13 L. Ed. 2d 199 (1964) for an exception to the rule that only final judgments are appealable.  In Gillespie, the U. S. Supreme Court held (both parties consenting) that the trial court's order which struck all references in the complaint to state law and to unseaworthiness, and stuck references to recovery for the benefit by the decedent's brother and sisters was final and appealable.  The court held that finality should be given "practical rather than technical construction."  Id. at 152, 85 S. Ct. at 311, 13 L. Ed. 2d at 203 (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528, 1536 (1949)).  The court stated that the competing considerations to be balanced are "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other."  Id. at 152-53, 85 S. Ct. at 311, 13 L. Ed. 2d at 203 (quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S. Ct. 322, 324, 94 L. Ed. 299, 302 (1950)).  Gillespie recognizes that the resolution of such a balance often presents a close question.  Id. at 152, 85 S. Ct. at 311, 13 L. Ed. 2d at 203.

     The second case cited by the appellant is helpful.  In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974) the court held that the trial court's order permitting

[6 FSM Intrm. 259]

the case to proceed as a class action and allocating the cost of the notice to be given to members of the class was final.  The court made this conclusion because the issues were collateral to the merits of the plaintiff's claims.  Id. at 172, 94 S. Ct. at 2150, 40 L. Ed. 2d at 745.  The order at issue before us is not collateral, but a part of the plaintiffs' claims ) that is, liability.

     The appellees cite 10 Charles A. Wright et al., Federal Practice and Procedure 2715 (1983) in support of their contention that the order is not final:  "[A]n interlocutory summary judgment on the issue of liability, which is authorized by the last sentence in Rule 56(c), is not appealable until after the damage issue is resolved."  Id. at 632-34 (footnotes omitted).

     The writers support this proposition with the citation of several cases.  No cases are cited which reach the opposite conclusion.  Particularly similar to the case before us is Dilly v. S.S. Kresge, 606 F.2d 62 (4th Cir. 1979).  In Dilly the employee sought damages from the employer for injuries received during the course of her employment.  On cross motions for summary judgment the plaintiff was granted partial summary judgment on the issue of liability, and the court set a hearing for the amount, if any, of the damages.  The defendant appealed on the question of the granting of the summary judgment.  The court held that the order was not final and dismissed the appeal.

     The court in Dilly did not at all enter into a balancing of competing considerations (see Gillespie, supra).  As long as all elements of the claim were not decided, the judgment was not final or appealable.

     The same rule was applied in Cinerama, Inc. v. Sweet Music, S.A., 482 F. 2d 66 (2d Cir. 1973) (partial summary judgment for principal amount; accrued interest undecided) even though the trial court had certified the judgment as final pursuant to Rule 54(b).

     We conclude that the order in this case granting partial summary judgment is not final or appealable based on the authority of the treatise supported by case citation.  We also note that giving the word "final" its ordinary meaning, a decision that does not entirely dispose of one claim of a complaint containing four cannot be said to be final.

     The appellees request, and the appellant proposes as alternative relief, that we remand the case to the trial court so that it might consider certifying the decision pursuant to Kosrae State Code 6.404(6) which reads:

     Right to appeal.  A party may appeal from the court to the appellate court:
      . . .

     (6) in a civil proceeding, when a justice has certified that an order not otherwise appealable involves a controlling question of law concerning which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance completion of the action.

     We will not remand.  Since our conclusion is that we lack jurisdiction, we therefore lack power to instruct the trial court.

     For the reasons stated, the appeal is dismissed.

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