FSM SUPREME COURT
TRIAL DIVISION
Cite as In re Estate of Hartman,
7 FSM Intrm. 409 (Chk. 1995)

[7 FSM Intrm. 409]
 
IN THE MATTER OF THE ESTATE
OF FRITZ HARTMAN,
Deceased.

CIVIL ACTION NO. 1989-1023

ORDER

Richard H. Benson
Associate Justice

Decided: February 21, 1996

APPEARANCE:
For Fritz Edward Hartman:     Ready Johnny, Esq.
                                                   Guardian ad Litem
                                                   P.O. Box 754
                                                   Weno, Chuuk FM 96942

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HEADNOTES
Judgments) Relief from Judgment
     A Rule 60 motion for relief from judgment cannot be granted when the order from which relief is sought is not a final judgment.  In re Estate of Hartman, 7 FSM Intrm. 409, 410 (Chk. 1996).

Appeal and Certiorari
     The appellate division does not have the power to enlarge time to petition for permission for an interlocutory appeal, but the trial division may re-enter its order with a prescribed statement thereby causing a new ten-day period to run because a trial court retains jurisdiction over its interlocutory orders and may reconsider any such order until a final judgment is entered.  In re Estate of Hartman, 7 FSM Intrm. 409, 410 (Chk. 1996).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Counsel for Fritz Edward Hartman filed a Motion to Vacate Judgment pursuant to Rules 60(b)(1) and (6) of the Rules of Civil Procedure.  The motion was brought for the limited purpose of vacating and reinstating my amended order of December 12, 1995, which added an Appellate Rule 5(a) "prescribed statement" to my Memorandum of Decision, In re Estate of Hartman, 6 FSM Intrm. 326

[7 FSM Intrm. 410]

(Chk. 1994), previously entered.1  The result of granting this motion would be that a new ten-day period within which to petition the appellate division for permission for an interlocutory appeal would start to run.

     The motion was duly served.  No opposition was filed.  However, this motion cannot be granted under the authority cited because Civil Rule 60 applies only to final judgments, and judgment is not final in this case (hence my certification for an interlocutory appeal).  Braden v. University of Pittsburgh, 552 F.2d 948, 954 (3d Cir. 1977).

     The appellate division does not have the power to enlarge time to petition for permission for an interlocutory appeal.  FSM App. R. 26 (b).  Although there is some authority to the contrary, Woods v. Baltimore & O.R.R., 441 F.2d 407 (6th Cir. 1971) (per curiam), I am satisfied that the trial division may re-enter its order with a prescribed statement thereby causing a new ten-day period to run.  See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 160-62, 104 S. Ct. 1723, 1730-31, 80 L. Ed. 2d 196, 208-09 (1984) (Stevens, Brennan, Marshall, JJ. concurring in finding of jurisdiction, otherwise dissenting); In re Benny, 812 F.2d 1133, 1136-37 (9th Cir. 1987); Aucion v. Matador Servs., Inc., 749 F.2d 1180, 1181 (5th Cir. 1985); Nuclear Eng'g Co. v. Scott, 660 F.2d 241, 245-48 (7th Cir. 1981), cert. denied, 455 U.S. 993 (1982); Aparicio v. Swan Lake, 643 F.2d 1109, 1110-13 (5th Cir. Unit A Apr. 1981).  See also 16 Charles A. Wright et al., Federal Practice and Procedure 3929, at 236, 261 n.66 (Supp. 1995); 13A Cora M. Thompson, Cyclopedia of Federal Procedure 60.89, at 113 (3d ed. 1986).  A trial court retains jurisdiction over interlocutory orders and may reconsider any such order until a final judgment is entered.  Aparicio, 643 F.2d at 1111.

     I have reconsidered the issue and I am still of the opinion that an interlocutory appeal remains desirable at this time for the reasons initially stated in my amended order of December 12, 1995.  I am convinced that the purpose of the rule, to foster greater judicial efficiency, would be advanced by an interlocutory appeal.  Nuclear Eng'g Co., 660 F.2d at 247.  A controlling question of law is involved as to which there is substantial ground for difference of opinion, and such an appeal would materially advance the ultimate resolution of this litigation.

     Now therefore it is ordered that the amended order of December 12, 1995 is vacated and that it is hereby re-entered this day and accompanies this order. Parties may petition the appellate division for permission to appeal within ten days after entry of this order.

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Footnote:
 
1.  "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."  FSM App. R. 5(a).