THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Damarlane v. United States ,
7 FSM Intrm. 510 (App. 1996)

[7 FSM Intrm. 510]

IGNACIA DAMARLANE et al.,
Appellants,

vs.

UNITED STATES OF AMERICA, on its own behalf
and in the place of the Government of the Trust
Territory of the Pacific Islands, FEDERATED STATES
OF MICRONESIA, POHNPEI STATE and POHNPEI
TRANSPORTATION AUTHORITY,
Appellees.

APPEAL CASE NO. P1-1996

ORDER

Andon L. Amaraich
Chief Justice

Decided:  July 5, 1996

APPEARANCES:
For the Appellants:    Mary Berman, Esq.
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

[7 FSM Intrm. 511]

For the Appellee:       Daniel J. Berman, Esq.
(United States)           Rush, Moore, Craven, Sutton, Morry & Beh
                                     2000 Hawaii Tower
                                     745 Fort Street
                                     Honolulu, HI 96813-3862

For the Appellee:       Carole Rafferty, Esq.
(FSM)                          Chief of Litigation
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941

For the Appellees:     Todd Richards, Esq.
(Pohnpei & PTA)       Assistant Attorney General
                                     Office of Pohnpei Attorney General
                                     P.O. Box 1555
                                     Kolonia, Pohnpei FM 96941

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HEADNOTES
Appeal and Certiorari ) Briefs and Record
     If an appellant intends to urge on appeal that a finding or conclusion is unsupported by, or contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to that finding or conclusion.  If the appellee then deems a transcript of other parts of the proceedings necessary, he must counter designate the additional parts the appellant should include in the record.  If the appellant does not request such parts, the appellee may request the additional parts himself or move for a court order requiring the appellant to do so.Damarlane v. United States, 7 FSM Intrm. 510, 512 (App. 1996).

Appeal and Certiorari ) Briefs and Record
     An appellant must include in the appendix to its opening brief all relevant and essential portions of the record, including any supporting opinion, findings of fact or conclusions of law filed or delivered orally by the court(s) below, but oral rulings are not required in the appendix if already contained in transcripts filed as a part of the record.  The record must be sufficient to permit the court to insure that the issues on appeal were properly raised before the trial court.  Damarlane v. United States, 7 FSM Intrm. 510, 512-13 (App. 1996).

Appeal and Certiorari ) Briefs and Record
     Appellants are responsible for presenting to the court a record sufficient to permit it to decide the issues raised on appeal, and one which provides the court with a fair and accurate account of what transpired in the trial court proceedings.Damarlane v. United States, 7 FSM Intrm. 510, 513 (App. 1996).

Appeal and Certiorari ) Briefs and Record
     An appellant has the primary responsibility for including in the record all necessary parts of the transcript, and the appellant cannot shift his responsibility to the appellee by the simple device of failing to discharge it himself.  It is the appellant who must insure an adequate record, and if the record fails to demonstrate error, the appellant cannot prevail.  Damarlane v. United States, 7 FSM Intrm. 510, 513 (App. 1996).

[7 FSM Intrm. 512]

Appeal and Certiorari ) Briefs and Record
     An appellant's failure to include in the record relevant transcripts may be fatal to his appeal because when the appellants do not include evidence in the record, the presumption is that the evidence was sufficient to sustain the trial court's judgment.  Damarlane v. United States, 7 FSM Intrm. 510, 513 (App. 1996).

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

INTRODUCTION
     After appellants filed their opening brief and appendix in this action on May 3, 1996, appellees filed a series of motions they sought to have resolved before they filed their responsive briefs.  Each of these motions stems from differences between the parties over the necessity of designating certain trial court transcripts for inclusion on the record on appeal pursuant to FSM Appellate Rule 10, and for inclusion in the appendix pursuant to FSM Appellate Rule 30. Appellees argue that many issues raised in this appeal cannot be argued or defended without transcripts from the relevant trial court hearings; appellants argue that their appeal raises only issues of law, and that therefore no transcripts are necessary.

DISCUSSION
     As a result of appellants' blanket waiver of transcripts in this action, appellees have filed the following four motions:  (1) a motion to strike two of appellants' arguments for lack of support in the record; (2) a motion to compel appellants to comply with Appellate Rule 30, governing compilation of the appendix; (3) a motion to correct the record on appeal pursuant to Appellate Rule 10(e); and (4) a motion for a stay of briefing until appellees' motions can be resolved.  The court granted appellees' fourth motion on May 29, 1996.  The court will address each of the appellees' remaining three motions.

I.  Applicable Law
     FSM Appellate Rule 10(b)(2) provides that if an appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, "the appellant shall include in the record a transcript of all evidence relevant to that finding or conclusion."  If the appellee then deems a transcript of other parts of the proceedings necessary, within ten days after the appellant's service of the statement of the issues and request for a transcript, appellee is required to file and serve on the appellant a counter designation of additional parts to be included in the record under Rule 10(b)(3).  If the appellant does not request such parts within ten days, and so notify the appellee, the appellee may request the additional parts itself or move the court for an order requiring the appellant to do so.

     Once the record has been compiled, FSM Appellate Rule 30(a) requires the appellant to include in the appendix to its opening brief all "relevant and essential portions of the record."  Rule 30(a) sets forth a list of record documents normally expected to be contained in the appendix.  These include "any supporting opinion, findings of fact or conclusions of law filed or delivered orally by the court(s) below."  FSM App. R. 30(a)(5) (emphasis added).  Opinions, findings or conclusions delivered orally are not required to be reproduced in the appendix if they are contained in transcripts filed as a part of the record.  Id.

[7 FSM Intrm. 513]

     The record must be sufficient to permit the court to insure that the issues on appeal were properly raised before the trial court.  See Nena v. Kosrae (I), 6 FSM Intrm. 251, 254 (App. 1993) ("[t]he general rule [is] that one cannot raise on appeal a ground not presented in the trial court"); Paul v. Celestine, 4 FSM Intrm. 205, 210 (App. 1990) ("on appeal a party is bound by the theory advanced in the trial court, and cannot urge a ground for relief which was not presented there"); Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986) ("The appellate process contemplates that any issue brought before an appellate court will first have been ruled upon by a trial judge.").  Appellants are responsible for presenting to the court a record sufficient to permit it to decide the issues raised on appeal, and one which provides the court with a fair and accurate account of what transpired in the trial court proceedings.  See 9 James W. Moore et al., Moore's Federal Practice 210.05[1] (2d ed. 1990).  Appellate Rule 10(b)(3)

places upon the appellant the primary responsibility for including in the record all necessary parts of the transcript, and the appellant cannot shift his responsibility to the appellee by the simple device of failing to discharge it himself.  Innumerable cases make it clear that it is the appellant who must insure an adequate record, and if the record fails to demonstrate error, the appellant cannot prevail.

9 Moore et al., supra, 210.05[3].

II.  Motion to Strike Appellants' Laches
and Statute of Limitations Arguments
     Appellees' first motion asks the court to strike pages 3-11 of appellants' opening brief, in which appellants argue that the trial court erred in applying the doctrine of laches to their claim for damages, and further erred in finding their claim barred by the statute of limitations.  Appellees contend that the trial court's December 1995 Findings of Fact and Conclusions of Law, Damarlane v. United States, 7 FSM Intrm. 350 (Pon. 1995), does not set forth either laches or statute of limitations arguments as the basis for its ruling, and appellants cannot challenge any oral rulings made on these issues at the time of the trial, because appellants have waived the transcript.  Appellees argue that for these reasons, appellants' challenges to the trial court's ruling on laches and on application of the statute of limitations are not properly before this court on appeal.

     The court has reviewed appellants' arguments on these two issues, contained in various pleadings and in their opening brief.  As presented, these issues raise mixed questions of law and fact.  Appellants' arguments are supported almost exclusively by record citations to trial court's December 15, 1995 Findings of Fact and Conclusions of Law, which in turn reference oral trial court rulings which have not been made a part of the record in this appeal.  See id. at 354.  Without a transcript of the relevant portions of the trial court's hearing, this court cannot determine the context in which these issues arose, or determine whether the evidence and authorities presented to the trial court support the trial court's rulings.

     The court will not strike appellants' laches and statute of limitations arguments. However, the court directs appellees to request preparation of transcripts of all, relevant trial court proceedings on these two issues no later than Friday, July 12, 1996.  If the appellants choose not to so augment the record, and elect to proceed without the relevant transcripts, their failure to request transcripts may prove fatal to their claims.  See Vasquez v. Borrero, 636 F.2d 4, 5 (1st Cir. 1980); 4 Am. Jur. 2d Appeal and Error 523 (1962) ("when the appellants do not include evidence in the record, the presumption is that the evidence was sufficient to sustain the trial court's judgment")).

[7 FSM Intrm. 514]

III.  Motion to Compel Compliance with FSM Appellate Rule 30
     Appellees next ask the court to compel appellants to include the following transcripts in the appendix pursuant to Rule 30(a):  (1) a transcript of the trial court's oral ruling on July 27, 1995, on the appellees' Civil Rule 41(b) motions, which were made at the close of plaintiffs' case and referenced in the trial courts December 15, 1995 Findings of Fact and Conclusions of Law; and (2) a transcript of plaintiffs' counsel's oral argument on the issue of joinder of Joaquim Cantero and the trial court's ruling on that motion, which both occurred on July 25, 1995.  These transcripts are not now part of the record.

     Appellants oppose this motion, essentially arguing that appellees have waived inclusion of these transcripts on the record and in the appendix by failing to move the trial court to order appellants to request preparation of the transcripts under Rule 10(b)(3), and by failing to request preparation of these transcripts themselves.

     The court cannot agree with appellees' waiver argument.  When appellees became aware that appellants intended to proceed without transcripts, they appropriately tried to remedy the situation by counter-designating the transcripts now sought.  Appellants then insisted that their appeal raised only issues of law. Only after appellants filed their opening brief did it become plain that many, if not all, of the issues appellants raise on appeal present mixed issues of law and fact. Appellants will therefore not now be heard to complain that appellees have waived their right to a transcript.  If the transcripts appellees seek had been properly included in the record on appeal under Rule 10, they would now be available for inclusion in the appendix pursuant to Rule 30(a).  Accordingly, the court directs appellants to order transcripts of the trial proceedings sought by appellees no later than Friday, July 12, 1996.  If appellants elect to proceed without the relevant transcripts, they will have to suffer the consequences of their failure to provide an adequate record on appeal.

IV.  Motion to Correct Record
     Finally, the FSM seeks an order pursuant to FSM Appellate Rule 10(e) correcting the record and directing a supplemental record to be certified and transmitted which includes the transcript of the trial court's January 16, 1996 proceeding.  The Certified Record in this appeal was completed on February 28, 1996, prior to transcription of the January 16, 1996 hearing and that transcript should properly be a part of the complete record in Civil Action 1990-075. Accordingly, the court directs the Assistant Clerk of Court to insert an entry for this transcript, and for any other transcripts prepared in response to this order, on the relevant page or pages of the Certified Record.  The Assistant Clerk shall issue a new Certification, and the revised page or pages and the new Certification shall be served upon the parties and titled Supplemental Record.

CONCLUSION
     For the reasons set out above, appellees' Motion to Strike is denied, appellees' Motion to Compel Appellant to Comply with FSM Appellate Rule 30 is granted, and appellee's Motion to Correct Record is granted.  Appellants are hereby ordered to request preparation of the relevant transcripts referenced in sections II and III of this order no later than Friday, July 12, 1996.  The court shall then issue an order setting an expedited briefing schedule, in an effort to prepare this case to be heard at the next appellate division session in September.  If appellants elect not to request preparation of the relevant transcripts, and to rely on the record as it currently stands, appellees' responsive briefs shall be due on Monday, August 12, 1996.
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