FSM SUPREME COURT TRIAL DIVISION
Cite as College of Micronesia - FSM v. Rosario
10 FSM Intrm. 175 (Pon. 2001)

[10 FSM Intrm. 175]

COLLEGE OF MICRONESIA-FSM,
Plaintiff,

vs.

HUGO ROSARIO,
Defendant.

CIVIL ACTION NO. 1999-092

ORDER GRANTING SUMMARY JUDGMENT

Richard H. Benson
Associate Justice

Hearing: December 11, 2000

Decided: May 14, 2001

APPEARANCES:

           For the Plaintiff:
                                                       Stephen V. Finnen, Esq.
                                                       Law Offices of Saimon & Associates
                                                       P.O. Box 1450
                                                       Kolonia, Pohnpei FM 96941
 
[10 FSM Intrm. 176]
 
          For the Defendant:
                                                       Mary Berman, Esq.
                                                       P.O. Box 163
                                                       Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Judgments ) Relief from Judgment
     A court may set aside an entry of default for good cause shown. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 180 (Pon. 2001).
 
Civil Procedure ) Default and Default Judgments; Judgments ) Relief from Judgment
     A common statement of the criteria to set aside a default judgment is whether the default was willful, that is, caused by culpable conduct of the defendant, whether there is a meritorious defense, and whether setting aside the default judgment would prejudice the plaintiff. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 180 (Pon. 2001).
 
Civil Procedure ) Default and Default Judgments; Judgments ) Relief from Judgment
     Any of the reasons sufficient to justify the vacation of a default judgment normally will justify relief from a default entry and in various situations a default entry may be set aside for reasons that would not be enough to open a default judgment. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 180 (Pon. 2001).
 
Judgments ) Relief from Judgment
     When a defendant did not willfully cause the default as he had appeared, filed motions, and attempted to defend himself pro se, when he had attempted to obtain counsel, when his papers submitted new defenses to the plaintiff's trespass claim, and when, because a preliminary injunction remained in effect, the only prejudice is the delay necessary to allow the case's merits to be heard, a motion to set aside entry of default will be granted. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 180 (Pon. 2001).
 
Property; Torts ) Trespass
     When a trespass action is not an action to set boundaries or to determine the ownership of any particular property and when the defendant never directly asserts an ownership interest in the land on which he allegedly trespasses, but rather asserts the rights of third parties, who (and any claims they may have) are not currently before the court, it is not an "action with regard to interests in land" within the meaning of 67 TTC 105 requiring a showing of special cause why action by a court is desirable before it is likely the Land Commission can make a determination on the matter. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 180 (Pon. 2001).
 
Civil Procedure ) Summary Judgment
     A summary judgment motion must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 183 (Pon. 2001).
 
Civil Procedure ) Summary Judgment
     A moving party is entitled to summary judgment when it has demonstrated that there are no genuine issues of material fact remaining, and that it is entitled to judgment as a matter of law. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 183 (Pon. 2001).

[10 FSM Intrm. 177]

Civil Procedure ) Summary Judgment
     Once the moving party has presented a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing a genuine issue of material fact. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden; it must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of fact. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 183, 184 (Pon. 2001).
 
Civil Procedure ) Summary Judgment
     In considering a summary judgment motion, a court must view the facts and the inferences to be drawn from those facts in the light most favorable to the party opposing the motion. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 183 (Pon. 2001).
 
Torts ) Trespass
     To prevail in an action for trespass, a plaintiff must prove a wrongful interference with his possessory interest in the property. The plaintiff must prove his possession of the property, the time and location of the trespass, and the act of trespass. A cause of action for trespass accrues when there is an intrusion upon the land of another which invades the possessor's interest in the exclusive possession of his land. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 183 (Pon. 2001).
 
Civil Procedure ) Injunctions; Civil Procedure ) Summary Judgment
When the court stated in its order granting a preliminary injunction that it would consider at the time of trial all of the admissible evidence which was presented at the preliminary injunction hearing, the court thereby made that evidence part of the record. It is thus also appropriate to consider this uncontroverted evidence to decide summary judgment motions. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 183 n.3 (Pon. 2001).
 
Torts ) Trespass
A possessor without a claim of right in real property may maintain trespass against anyone who unlawfully disturbs his possession except against the lawful owner or someone claiming under him. The defendant in such a trespass action may not set up in defense the title of a third person with whom there is no privity or connection. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 185 (Pon. 2001).
 
Civil Procedure ) Summary Judgment; Torts ) Trespass
A defense to a trespass action that someone other than the plaintiff owned the land would only be material if the defendant alleged that that someone authorized him to use the land. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 185 (Pon. 2001).
 
Civil Procedure ) Summary Judgment
In order for an issue of fact to be material, it must be supported by substantial probative evidence in the record, going beyond the allegations. The evidence must be in the nature of facts not conclusions, unsupported allegations of counsel, opposing party's own contradictions in the record, or opposing party's subjective characterizations. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 186 (Pon. 2001).
 
Civil Procedure ) Summary Judgment
On a summary judgment motion, the court must penetrate the allegations of fact contained in pleadings and look to any evidential source to determine whether there is an issue of fact. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 186 (Pon. 2001).

[10 FSM Intrm. 178]

Civil Procedure ) Summary Judgment; Torts ) Trespass
When a defendant produces only incompetent evidence, regarding other people and other tracts of land, wholly unrelated to the land on which he is allegedly trespassing, and when the speculative and conflicting statements contained in his pleadings are insufficient to create a material fact as to his right to possess any part of the land, there are no material issues of fact and the plaintiff is entitled to summary judgment on its trespass claim. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 186 (Pon. 2001).
 
Civil Procedure ) Summary Judgment
If a plaintiff moves for summary judgment on an affirmative defense, putting forth arguments and evidence indicating that there is no material fact at issue and that the affirmative defense is insufficient as a matter of law, the party asserting the affirmative defense must produce some evidence or the moving party is entitled to partial summary judgment. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 186 (Pon. 2001).
 
Torts ) Trespass
A trespass action is one for violation of possession, not for challenge to title. A trespass case is brought to re-establish possession, not to determine ownership or quiet title. A trespass case is a judgment for physical possession of the land and should be based on the standard of who has the superior right of possession, not who has the better title. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 187 (Pon. 2001).
 
Civil Procedure ) Summary Judgment; Torts ) Trespass
A trespass defendant's bald assertions of third party ownership does nothing to diminish a plaintiff's superior right to possession of the land as to him and is immaterial to the issue of which party to the trespass action has the superior right of possession. A plaintiff's summary judgment motion will therefore be granted as to this affirmative defense. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 187-88 (Pon. 2001).
 
Statutes of Limitation; Torts ) Trespass
Because a trespass claim has either a twenty-year or a six-year statute of limitations, the statute of limitations on a trespass starting November, 1999 will not run for many years. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 188 (Pon. 2001).
 
Equity ) Laches; Torts ) Trespass
When a plaintiff has acted expeditiously to notify a defendant of his trespass as soon as the defendant began construction on the land, there has been no unreasonable delay prejudicing the defendant which could give rise to a laches defense. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 188 (Pon. 2001).
 
Civil Procedure ) Summary Judgment; Torts ) Trespass
A defendant's summary judgment motion based on assertions of the validity of a third party's potential claim is insufficient as a matter of law to establish a triable issue of fact as to the plaintiff's superior right of possession. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 188 (Pon. 2001).
 
Torts ) Trespass
The absence of a certificate of title does not affect a trespass case when the plaintiff holds the land under a color of title which is superior to the defendant's claimed right of possession. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 188 (Pon. 2001).

[10 FSM Intrm. 179]

Torts ) Trespass
When a plaintiff has proven actual possession of part of the land, it operates as possession of the whole of the land covered by the quitclaim deeds. To require all landowners to construct buildings and fences on the entirety of their property in order to protect it from trespassers and interlopers is simply not practical. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 188 (Pon. 2001).
 
Civil Procedure ) Summary Judgment
When all of the bases upon which a party seeks summary judgment are legally insufficient to create a prima facie case of entitlement to such judgment, that party's summary judgment motion will be denied. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 189 (Pon. 2001).
* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

      On December 11, 2000, the court heard the parties' cross motions for summary judgment. For the following reasons, the court grants plaintiff's motion for summary judgment, denies defendant's cross-motion for summary judgment, enters judgment for plaintiff and against defendant, enters a permanent injunction against defendant, and sets a hearing on plaintiff's claim for damages.

I. Procedural History

     On December 22, 1999, plaintiff College of Micronesia- Federated States of Micronesia ("COM-FSM") filed a summons and complaint against Hugo Rosario, along with an application for a temporary restraining order and preliminary injunction pursuant to Civil Procedure Rule 65. On December 23, 1999, the court denied the temporary restraining order application, and scheduled a hearing on COM-FSM's motion for a preliminary injunction. On December 29, 1999, Rosario filed an opposition to COM-FSM's preliminary injunction motion, and also filed a motion requesting that this court abstain from hearing this case. Rosario, however, did not answer the complaint. On January 4, 2000, the court heard COM-FSM's preliminary injunction motion. Rosario did not appear for this hearing, but instead filed a written waiver of his right to appear. On January 7, 2000, the court denied Rosario's abstention motion, and granted COM-FSM a preliminary injunction pending a trial on the merits. On January 20, 2000, COM-FSM filed a request for entry of default and a motion for an entry of default judgment. The court clerk entered Rosario's default on January 20, 2000.

     On April 14, 2000, Rosario moved to set aside entry of default, raising as possible defenses to the action: (1) that the land claimed by COM-FSM had reverted back to the State of Pohnpei because construction of the COM-FSM campus did not begin within five years per a restriction in the quitclaim deed to COM-FSM's predecessor in interest, COM; and, (2) that Rosario was on the land with permission from Benjamin Luis, who received the land through his father Seikep Luis, who had a quitclaim deed from the Trust Territory Government.1

[10 FSM Intrm. 180]

      On April 17, 2000, the court granted Rosario's motion to set aside entry of default, and granted Rosario's request for leave to file an answer to the complaint. A court may set aside an entry of default for good cause shown. FSM Civ. R. 55(c). Truk Transportation Co. v. Trans-Pacific Import Ltd., 3 FSM Intrm. 512 (Truk 1988), which discusses the criteria a court should consider in setting aside a default judgment, is instructive as to what good cause may be. In that case, the court noted that a common statement of the criteria to set aside a default judgment is, "whether the default was willful, that is, caused by culpable conduct of the defendant, whether there is a meritorious defense, and whether setting aside the default judgment would prejudice the plaintiff." Id. at 515. "Any of the reasons sufficient to justify the vacation of a default judgment . . . normally will justify relief from a default entry and in various situations a default entry may be set aside for reasons that would not be enough to open a default judgment." 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure 2696, at 141-42 (3d ed. 1998). See also FSM Dev. Bank v. Gouland, 9 FSM Intrm. 375, 377 (Chk. 2000).

      Rosario showed good cause for setting aside the entry of default. He did not willfully cause the default, as he appeared, filed motions, and attempted to defend himself pro se. Rosario's attorney also stated that Rosario had attempted to obtain counsel from Micronesian Legal Services, which declined to represent him, and that he was unable to afford any other admitted counsel. Additionally, Rosario submitted in his papers the new defenses to COM-FSM's trespass claim mentioned above. Finally, because the preliminary injunction remained in effect, the only prejudice to COM-FSM is the delay necessary in order to allow this case's merits to be heard.

       Accordingly, the court granted both Rosario's Motion to Set Aside Entry of Default, and his Request for Leave to File an Answer to the Complaint.

II. Preliminary Matters

      On December 7, 2000, the court notified the parties that it would ask counsel to address the following issues at the hearing on the parties' cross-motions: (1) whether 67 TTC 105 currently is valid law in Pohnpei; and, (2) if so, how 67 TTC 105 affects the issues the court must address in this case.

67 TTC 105 states that:

A copy of the Land Commission's designation of any registration area shall be filed with the Clerk of Courts for the district and thereafter the courts shall not entertain any action with regard to interests in land within that registration area without a showing of special cause why action by a court is desirable before it is likely a determination can be made on the matter by the Land Commission. Any court entertaining action as to such shall notify the Land Commission promptly that it has decided to entertain the action, describing the land involved as accurately as practicable.

      But section 105 does not apply to this case. This is not an "action with regard to interests in land" within the meaning of 67 TTC 105. This also is not an action to set boundaries or to determine the ownership of any particular property. Significantly, Rosario never directly asserts an ownership interest in the land upon which COM-FSM alleges that he trespassed. Rather, he asserts the rights of numerous third parties to the land based upon a multitude of theories. Those parties, and any claims they may have, are not currently before the court. Accordingly, the court addresses COM-FSM's and Rosario's cross-motions for summary judgment.

[10 FSM Intrm. 181]

III. Relevant Pleadings and Motions

A. COM-FSM's Complaint

      The complaint alleges that Rosario started trespassing on COM-FSM land on or about November 25, 1999, by clearing land and beginning to construct a structure on the land. COM-FSM alleges that this trespass occurred on Parcel No. 020-B-01, which was deeded to the College of Micronesia in 1986, and subsequently deeded to COM-FSM from the College of Micronesia in 1996. COM-FSM further alleges that Rosario continued to trespass on Parcel No. 020-B-01, despite its immediate and repeated notification to him of his trespass, and that it had the Pohnpei state government Division of Lands conduct a survey of the area on December 8, 1999, and confirm that he was trespassing.

B. Rosario's Answer

       Rosario answered the complaint on April 27, 2000. Rosario denied all of the material allegations in COM-FSM's complaint, and asserted the affirmative defenses of (1) illegality of the COM-FSM quitclaim deed; (2) laches; and (3) that the statute of limitations has run.

C. COM-FSM's Summary Judgment Motion

      COM-FSM filed its summary judgment motion on May 26, 2000. It seeks summary judgment on its trespass claim against Rosario, and requests a permanent injunction (1) to prevent Rosario from entering and building on Parcel No. 020-B-01; and (2) to require Rosario to remove his existing structure from Parcel No. 020-B-01. COM-FSM bases its motion on (1) the testimony received by the court at the January 4, 2000 hearing on COM-FSM's preliminary injunction motion; and, (2) the affidavits of Susan Moses, Paul Gallen, Kondios Gornelius, and Youser Anson, submitted with COM-FSM's motion. COM-FSM also seeks summary judgment on Rosario's affirmative defenses, arguing that they are insufficient as a matter of law.

D. Rosario's Opposition to COM-FSM's Summary Judgment Motion

      Rosario's opposition to COM-FSM's summary judgment motion alternately claims: (1) that the property at issue reverted to Pohnpei because of a reversionary clause contained in the 1986 deed from the Pohnpei Public Lands Authority to the COM; (2) that the property rightfully belongs to Sokehs Municipality under a 1991 Pohnpei state court case; (3) that the property belongs to Benjamin Luis, heir of Seikep Luis, under the "Lot 255 deed," and that Rosario has received Benjamin Luis's permission to be there; and (4) that the property may be subject to an entryman claim by Benjamin Luis through Sakies Luis.

E. Rosario's Motion for Summary Judgment

      Rosario's summary judgment motion asserts that COM-FSM has no legal title to the land that it claims in Palikir. The bases for this assertion are: (1) the quitclaim deed to COM-FSM was invalid because of the reversionary clause in the 1986 deed between the Pohnpei Public Lands Authority and COM; (2) there was no valid delivery of the deed; (3) Pohnpei Public Lands Authority did not have valid title when it executed the quitclaim deed to COM; (4) the conveyance from Pohnpei Public Lands Authority to COM was invalid because there was no public hearing and no certificate of title issued; and (5) Rosario has a superior right of possession because there has been no actual or constructive possession of the land by COM-FSM.

[10 FSM Intrm. 182]

F. COM-FSM Opposition to Rosario's Summary Judgment Motion

      COM-FSM filed its opposition to Rosario's motion for summary judgment on July 28, 2000. COM-FSM contends that (1) the reversionary clause in the deed from Pohnpei Public Lands Authority to COM did not affect the validity of COM-FSM's title; (2) that Rosario does not have standing to assert the rights of third parties to COM-FSM land; and (3) that COM-FSM has exercised ownership and dominion of the land on which Rosario built his structure.

IV. Undisputed Facts

The court finds that the undisputed facts are as follows:

      1. On January 20, 1986, the Pohnpei Public Lands Authority deeded all of its right, title and interest in Parcel No. 020-B-01, shown on approved Cadastral Plat No. 020-B-00 (registered the 21st day of June, 1985 at the Pohnpei Land Commission Office as Document No. 7896), to the College of Micronesia.

      2. On July 15, 1996, the College of Micronesia deeded all of its right, title and interest in Parcel No. 020-B-01, shown on approved Cadastral Plat No. 020-B-00 (registered the 21st day of June, 1985 at the Pohnpei Land Commission Office as Document No. 7896), to COM-FSM.

      3. Cadastral Plat No. 020-B-00 was revised by the Pohnpei Land Division and became Cadastral Plat No. 020-B-01, and Parcel No. 020-B-01 was renumbered as Parcel No. 020-B-02, because of certain subdivisions which were made to Parcel No. 020-B-01. The area on which Rosario built his structure was not affected by the subdivision. However, because the plats and parcels were renumbered, the most current Plat shows that Rosario's structure is located on Cadastral Plat No. 020-B-01, Parcel No. 020-B-02.2

      4. On or about November 25, 1999, Hugo Rosario began to clear land and construct a structure within the boundary of Parcel No. 020-B-01. Specifically, Rosario caused a cement foundation to be poured on the land and erected a structure of metal and wood, which he began to operate as a store [in December, 1999].

      5. COM-FSM immediately notified Rosario that he was trespassing on COM-FSM land and requested that he cease clearing the land and building the structure. COM-FSM Maintenance Director Francisco Mendiola delivered a letter to Rosario on December 3, 1999, requesting that Rosario cease his development and informing Mr. Rosario that COM-FSM believed he was building on its land. The letter also informed Rosario that COM-FSM had requested the Pohnpei Division of Lands to conduct a survey of the land.

      6. The Pohnpei Division of Lands conducted a survey of the area on December 8, 1999. The survey concluded that Rosario's structure was located within the boundaries of Parcel No. 020-B-01.

      7. COM-FSM never gave Rosario authorization or permission to be present on its land.

      8. Tract No. 73268, purportedly owned by Sakies Luis, is not located on any land claimed by

[10 FSM Intrm. 183]

COM-FSM or relevant to this case.

        9. Lot No. 255, as shown on Ponape District Drawing No. 85, dated December 19, 1962, purportedly owned by Seikep Luis, is not located on any land claimed by COM-FSM or relevant to this case.

V. Relevant Law

      A motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FSM Civ. R. 56(c). A moving party is entitled to summary judgment when it has demonstrated that there are no genuine issues of material fact remaining, and that it is entitled to judgment as a matter of law. Iriarte v. Etscheit, 8 FSM Intrm. 231, 236 (App. 1998); Nanpei v. Kihara, 7 FSM Intrm. 319, 323 (App. 1995); Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994).

      Once the moving party has presented a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing a genuine issue of material fact. Nanpei, 7 FSM Intrm. at 325. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden; it must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of fact. Urban v. Salvador, 7 FSM Intrm. 29, 31 (Pon. 1995); Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 16 (Pon. 1989). The non-moving party must show that there is enough evidence supporting its position to justify a decision upholding its claim by a reasonable trier of fact. Alik v. Kosrae Hotel Corp., 5 FSM Intrm. 294, 296 (Kos. 1992); Federated Shipping Co., 4 FSM Intrm. at 16. In considering a summary judgment motion, a court must view the facts and the inferences to be drawn from those facts in the light most favorable to the party opposing the motion. Iriarte, 8 FSM Intrm. at 236; Nahnken of Nett v. United States , 7 FSM Intrm. 581, 586 (App. 1996).

VI. COM-FSM's Summary Judgment Motion

A. COM-FSM's Trespass Claim

      COM-FSM moves for summary judgment on its claim against Rosario for trespass. "To prevail in an action for trespass, a plaintiff must prove a wrongful interference with his possessory interest in the property. Essentially, a plaintiff must prove his possession of the property, the time and location of the trespass, the act of trespass." In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 155 (Pon. 1993). "A cause of action for trespass accrues when there is an intrusion upon the land of another which invades the possessor's interest in the exclusive possession of his land." Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 171, 177 (Pon. 1995).

      In support of its motion, COM-FSM submits affidavits from Susan Moses (President of COM-FSM), Youser Anson (Chief of the Pohnpei State Division of Land), Paul Gallen (current COM-FSM employee, formerly the President of the Community College of Micronesia), and Kondios Gornelius (employee of Pohnpei State Division of Land). In addition, COM-FSM relies on the testimony which it presented at the hearing on its motion for a preliminary injunction on January 4, 2000.3

[10 FSM Intrm. 184]

      The testimony received by the court on January 4, 2000, establishes that Rosario was trespassing on land to which COM-FSM holds a quitclaim deed. The testimony reveals that COM-FSM had the Pohnpei State Division of Lands conduct a survey on December 8, 1999. Two Division of Lands employees testified that Rosario's structure is within the boundaries of what formerly was Parcel No. 020-B-01, which was deeded to COM-FSM in 1996. COM-FSM introduced maps and plats, supported by the testimony of five witnesses, which established that Rosario had been building on land to which COM-FSM has a quitclaim deed from COM, who received the same quitclaim deed from the Pohnpei Public Lands Authority. COM-FSM submitted two quitclaim deeds (attached to COM-FSM's complaint as Exhibit A). The first, dated January 20, 1986, was from the Pohnpei Public Lands Authority to COM. The second, dated July 1, 1996, is from COM to COM-FSM. These quitclaim deeds clearly demonstrate COM-FSM's possessory interest in the land on which Rosario began building in November, 1999.

      This evidence presents a prima facie case of trespass by Rosario. The quitclaim deeds and testimony of witnesses, supported by the affidavits on file, establish COM-FSM's superior right to possession. Because COM-FSM has presented a prima facie case of entitlement to summary judgment, the burden shifts to the Rosario to produce evidence showing a genuine issue of material fact. Nanpei, 7 FSM Intrm. at 325. Rosario may not rely on unsubstantiated denials of liability to carry his burden; he must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of fact. Urban, 7 FSM Intrm. at 31.

      Viewing the facts and inferences in the light most favorable to Rosario, he does not submit any competent evidence to create an issue of material fact in this case. In his opposition to COM-FSM's motion for summary judgment, Rosario abandons all of his arguments and defenses previously raised and offers four new challenges to the validity of COM-FSM's title to the land at issue. None of these is sufficient to create a material issue of fact for trial.

(1) Pohnpei Public Lands Authority Never Acquired Title to the Land and Could not Convey it to COM-FSM

      First, Rosario challenges the validity of COM-FSM's title by asserting the alleged rights of a third party to ownership of the land, in this instance, Sokehs Municipality. Rosario asserts that, under a 1991 Pohnpei Supreme Court decision, Pohnpei v. Damarlane, 4 Pon. L.R. 228 (Tr. 1991), title to lands held by the Trust Territory never vested in the state, but remained part of the "wei" (property) of the various municipalities.

       The portion of Damarlane relied upon by Rosario is dicta, and does not have any bearing on this case. More importantly, however, as in his asserted defense of illegality of the COM-FSM title discussed above, Rosario is claiming that a third party (Sokehs) has a right to title that is superior to that of COM-FSM.4

Even if Sokehs were the property's rightful owner, COM-FSM could still maintain this trespass

[10 FSM Intrm. 185]

action against Rosario:

A possessor without a claim of right in real property may maintain trespass against anyone who unlawfully disturbs his possession except against the lawful owner or someone claiming under him. The defendant in such an action for trespass may not set up in defense the title of a third person with whom there is no privity or connection.

75 Am. Jur. 2d Trespass 42, at 39 (1991) (emphasis added). Rosario does not assert that he obtained any right or title to land from Sokehs municipality. Thus, Rosario's opposition on this basis does not create any triable issue of material fact and must fail.

(2) Did Sokehs authorize COM-FSM to use land beyond the stream abutting Hugo Rosario's store?

      Based on the authority cited above, Sokehs' authorization of anyone to use the land, even assuming Sokehs were the owner, would only be material if Rosario alleged that Sokehs authorized him to use the land. This basis for opposition therefore also must fail.

(3) Did COM offer just compensation to Sokehs?

      Again, Rosario asserts Sokehs' rights, claiming that the municipality's right to receive just compensation for its property was violated. Rosario's opposition on this basis does not create any triable issue of fact and must fail.

(4) Whether Benjamin Luis has a right to apply for title to the land occupied by Hugo Rosario's store?

       In this basis for opposing COM-FSM's motion for summary judgment, Rosario asserts the rights of a third party, Benjamin Luis, but he also submits evidence that his interest derives from Mr. Luis's interest. However, while Benjamin Luis's affidavit states that he believes that he owns the land in question, and that he has given Rosario permission to use that land, the relevance of the evidence submitted as to Luis's right to apply for this land is not obvious.

      Rosario submits (1) a Land Commissioner's Certificate for Land Tract No. 70848-A, which merely states that "many areas within the proposed grant to COM were previously granted to a number of `entrymen';" (2) documentation of an entryman claim for Sakies Luis5 for part of Land Tract No. 73268, and hand drawn maps of that area; and (3) the Pohnpei State Lands Act of 1980, under which the Luis family is seeking a quitclaim deed to Tract No. 73268.

      None of Rosario's evidence links these documents to the land to which COM-FSM holds its quitclaim deed. It appears that Rosario claims that Benjamin Luis could be entitled to claim part of Parcel No. 020-B-01 based upon his alleged use and development of the land, because Land Tract No. 73268 claimed by Sakies Luis may be smaller than 3 hectares, and an entryman is entitled to claim 3 hectares. See Pon. S.L. No. 2L-43-80, 4(3) (Ex. D to Rosario Opp'n). In support of this argument, Rosario submits Benjamin Luis's affidavit with his reply brief to his own summary judgment motion. It sets forth Luis's claim to the land at issue, stating that his family has developed the land on which Rosario built his structure since 1962, and that Luis currently has "submitted an

application for title to

[10 FSM Intrm. 186]

such land," which is the same land he gave written permission to Rosario to use.

      The court must determine whether this affidavit creates an issue of material fact. The affidavit itself is vague about the status of Luis's "claim," and it is difficult to ascertain anything about the nature, legitimacy, or status of his claim to any particular land. Apparently, Benjamin Luis's claim is based upon the entitlement of one of his relatives, Sakias Luis, to receive up to 3 hectares of land in Palikir. Benjamin Luis claims, without any supporting evidence, that he is Sakias Luis's designee to receive title to such land. At best, the claim is entirely speculative and tenuous.

       In order for an issue of fact to be material, it must be supported by substantial probative evidence in the record, going beyond the allegations. The evidence must be in the nature of facts ) not conclusions, unsupported allegations of counsel, opposing party's own contradictions in the record, or opposing party's subjective characterizations. On a summary judgment motion, the court must penetrate the allegations of fact contained in pleadings and look to any evidential source to determine whether there is an issue of fact.

       Rosario's claim that he is entitled to possession of any part of Parcel No. 020-B-01 through Benjamin Luis is too unsubstantiated to create any issue of material fact. Mr. Luis's affidavit regarding his entryman claim directly contradicts other affidavits and evidence submitted by Rosario's counsel. In particular, Benjamin Luis previously asserted that he was entitled to possession of the land on which Rosario built his structure through Seikep Luis and the "Lot No. 255" deed. Competent evidence produced by COM-FSM demonstrated that this land was located miles from the COM-FSM land. Additionally, there is no evidence that the tract possessed by Sakias Luis is less than the 3 hectare limit. Rosario's counsel attempts to argue that "[t]he Luis family could arrange to surrender part of their claim to Tract 73268 if the total land to be quitclaimed would exceed the 3 hectares allowed by the [Pohnpei Public Lands Act] in order to include the area developed and occupied now by Benjamin Luis." Rosario Opp'n at 4 (June 12, 2000). The court will not find a material fact based on something that someone else entirely unrelated to this litigation "could do."

       Rosario produces only incompetent evidence, regarding other people and other tracts of land, wholly unrelated to the land to which COM-FSM holds a quitclaim deed. The speculative and conflicting statements contained in Rosario's pleadings are insufficient to create a material fact as to Rosario's right to possess any part of Parcel No. 020-B-01. Accordingly, there are no material issues of fact, and COM-FSM is entitled to summary judgment on its trespass claim.

B. Rosario's Affirmative Defenses

       COM-FSM also asserts that it is entitled to summary judgment as to Rosario's affirmative defenses. As mentioned above, these affirmative defenses are (1) illegality of the quitclaim deed; (2) statute of limitations; and (3) laches.

If a plaintiff moves for summary judgment on an affirmative defense, putting forth arguments and evidence indicating that there is no material fact at issue and that the affirmative defense is insufficient as a matter of law, the party asserting the affirmative defense must produce some evidence or the moving party is entitled to partial summary judgment.

Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996).

[10 FSM Intrm. 187]

(1) Alleged Illegality of the Quitclaim Deeds

       In his motion to set aside entry of default, and in his answer, Rosario alleges that COM-FSM does not have title to the land at issue because of a reversion clause contained in the 1986 quitclaim deed. That deed stated in relevant part:

In the event that after the lapse of five years following the date of execution of this deed (January 20, 1986), COM has not commenced to so use the above described real property for the prescribed uses, then all rights, title and interest in and to the property and to the improvements thereon, shall revert to and revest in the Authority, or its successors, as fully and completely as if this instrument had not been executed.

COM-FSM has the statutory authority to acquire and hold title to land. 40 F.S.M.C. 411(10). Thus the issues are (1) whether there was an automatic reversion of the land held by COM-FSM after five years; and, (2) if there is a dispute as to whether this reversion occurred, whether it is material.

       COM-FSM and Rosario submit conflicting affidavits as to when COM began to use the property in question for its "prescribed uses."6 COM-FSM submits affidavits and authenticated publications stating that groundbreaking took place on the subject land on August 15, 1990. See Paul Gallen Aff. paras. 5,6; Ex. K ) Report of the Institutional Self Study for Reaffirmation of Accreditation; Ex. L ) College of Micronesia Chronicle (Oct. 15, 1990). Rosario submitted affidavits with his Motion to Set Aside Entry of Judgment by Default (Apr. 14, 2000), which state that groundbreaking and construction of the college did not occur until 1993-94. Exs. B, C to Rosario Motion to Set Aside Entry of Default (Affidavits of Steve Nix and Richard Soswe). It appears that there is a factual discrepancy.

       The issue, then, is whether the factual dispute is material. "A trespass action is one for violation of possession, not for challenge to title. The reason for bringing a trespass case is to re-establish possession, not to determine ownership or quiet title." Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 343 (Pon. 1994). A trespass case is a judgment for "physical possession of the land and should be based on the standard of who has the superior right of possession, not who has the better title." Id. at 345.

       In alleging that the property on which COM-FSM is built reverted back to the Pohnpei Public Lands Authority sometime in 1991, Rosario is questioning COM-FSM's title to the land. In Soumwei, the plaintiffs were the title holders (heirs of Florence Etscheit) and various leaseholders. They claimed against defendant Soumwei for trespass on the leasehold interest, and Soumwei asserted that the Etscheit title was invalid. Soumwei alleged that the procedures used by the Land Commission to determine ownership of the land ten years earlier did not provide him with adequate notice. The Soumwei court determined that the certificate of title was prima facie evidence of ownership, and rejected Soumwei's claims as to the inadequate procedures used by the Land Commission, because Soumwei did not produce any evidence of this.

        In this particular defense, Rosario claims that the Pohnpei Public Lands Authority has title to the land, not COM-FSM. Notably, the Pohnpei Public Lands Authority is not a party to this litigation and nothing before the court suggests that the Pohnpei Public Lands Authority has ever contested COM-FSM's right of use and possession of the land at issue in this case. Rosario's bald assertions of third

[10 FSM Intrm. 188]

party ownership do nothing to diminish COM-FSM's superior right to possession of the land as to him. Thus, the reversion clause dispute is immaterial to the issue of which party to this action has the superior right of possession. COM-FSM's motion for summary judgment is granted as to Rosario's affirmative defense based on illegality of the quitclaim deed.

(2) Statute of Limitations

The only evidence before the court as to the date that the cause of action accrued is that Rosario began to construct his store in November, 1999. Under Pohnpei state law, a trespass claim has either a twenty-year or a six-year statute of limitations. Pon. S.L. No. 3L-99-95,  7-5(1)(b), 7-7. Thus, the statute of limitations on this action will not run for many years.

Rosario does not submit any evidence that he occupied the site upon which he began constructing his store on any date earlier than November 1999. COM-FSM's summary judgment motion as to this affirmative defense is also granted.

(3) Laches

COM-FSM demonstrates that it is also entitled to summary judgment on the asserted affirmative defense of laches. COM-FSM acted expeditiously to notify Rosario of his trespass as soon as Rosario began construction on the Parcel No. 020-B-01. COM-FSM established this point in the hearing on its motion for a preliminary injunction, and also has presented affidavits establishing the same with its motion for summary judgment. COM-FSM Motion for Summary Judgment at 17-18. There has therefore been no unreasonable delay prejudicing the defendant which could give rise to a laches defense.

VII. Rosario's Motion for Summary Judgment

In his motion for summary judgment, Rosario asserts that COM-FSM has no legal title to the land that it claims in Palikir. The bases for this assertion are: (1) the quitclaim deed was invalid because of the reversion (addressed above); (2) there was no valid delivery of the deed; (3) Pohnpei Lands did not have valid title; (4) there was no public hearing and no certificate of title issued; and (5) there has been no actual or constructive possession of the land by COM-FSM.

The first three bases are again attempts to assert the validity of a third party's potential claim. Accordingly, these claims are insufficient as a matter of law to establish a triable issue of fact as to the superior right of possession of Rosario versus COM-FSM.

As to basis (4), the absence of a certificate of title does not affect this case. COM-FSM holds Parcel No. 020-B-01 (now Parcel No. 020-B-02) under color of title which is superior to Rosario's claimed right of possession. COM-FSM's quitclaim deed from COM, along with the quitclaim deed from Pohnpei Public Lands Authority to COM, establishes that COM-FSM holds Parcel No. 020-B-01 under color of title. In addition, COM-FSM has proven actual possession of part of the land in Palikir, which operates as possession of the whole of the land covered by the quitclaim deeds.

Additionally, COM-FSM has vigorously defended its right to possess all of Parcel No. 020-B-01, as evidenced by its immediate reaction to Rosario's trespass on the land in November, 1999. COM-FSM immediately notified Rosario that he was trespassing, and immediately asked the Pohnpei Division of Lands to conduct a survey of the area. To require all landowners to construct buildings and fences on the entirety of their property in order to protect it from trespassers and interlopers is simply not practical.

[10 FSM Intrm. 189]

In sum, all of the bases upon which Rosario seeks summary judgment against COM-FSM are legally insufficient to create a prima facie case of entitlement to such judgment. Accordingly, Rosario's summary judgment motion is denied.

VIII. Conclusion

COM-FSM's motion for summary judgment is hereby granted; Rosario's cross-motion for summary judgment is hereby denied; and, there being no just cause for delay, judgment for COM-FSM and against Rosario shall be entered forthwith, FSM Civ. R. 54(b). Hugo Rosario is hereby ordered to comply with all terms and conditions set forth in the Permanent Injunction which is issued concurrently with this opinion. Finally, the hearing on COM-FSM's claim for damages is hereby set for June 4, 2001, at 9:00 a.m.

 * * * *

__________________________________________________

Footnotes:

1. The quitclaim deed from the Trust Territory to Seikep Luis is for Lot No. 255, and is dated February 25, 1963 (hereinafter "Lot 255 deed"). Copies are attached to Rosario's 4/14/00 motion to set aside entry of default as Ex. D, and COM-FSM's 5/26/00 motion for summary judgment as Ex. R. None of Rosario's evidence establishes the location of the land referenced in the Lot 255 deed. As discussed further below, COM-FSM presents competent evidence which demonstrates that the Lot 255 deed is for land located on the lagoon, miles from COM-FSM.

2. To avoid confusion as to the different parcel numbers, the court will continue to refer to Parcel No. 020-B-01, which is deemed to include all of the land currently defined by the boundaries of the parcel numbered Parcel No. 020-B-02 and the land upon which Rosario built his structure.

3. Rosario opposed COM-FSM's preliminary injunction motion, but waived his appearance at the January 4, 2000 hearing and did not appear. The court stated in its order granting the preliminary injunction that it would consider at the time of trial all of the admissible evidence which was presented at the preliminary injunction hearing, and the court thereby made that evidence part of the record. FSM Civ. R. 65(a)(2). It is thus also appropriate to consider this uncontroverted evidence to decide these summary judgment motions.

4. Rosario makes this assertion despite submitting an exhibit, Exhibit G, which purports to convey the "remainder of the wei of Sokehs" to the Trust Territory Government. This determination of ownership on its face appears valid and appears to in fact transfer the remainder of the "wei" of Sokehs to the Trust Territory Government.

5. The relationship between Benjamin Luis and Sakies Luis is unclear, as is whether Sakies Luis is the same as his father who has been referred to as Seikep Luis, who received the Lot 255 deed.

6. In relevant part, the deed states that "[t]he above described real property is . . . quitclaimed to COM in fee simple on the condition that the property shall only be used for the construction and operation of a college . . . ."

 

 - B W l     !L2E:Rc919+@Uj'<Qf    ) > S h }        %  : O d y        ! 6 K ` u        - B _ |       ' < Q f 45GF]<J1I "{        H # 8 U 6Kgq`I1I.CXj