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     Defendants Kosrae State Land Commission and State of Kosrae filed a Motion for Summary Judgment on March 6, 2002 (State’s Motion). Defendants Kosrae State Land Commission and State of Kosrae filed a Motion for Judgment by Default on March 27, 2002. A hearing was held on April 29, 2002, where the Plaintiff was granted an enlargement of time to file a response to the State’s Motion for Summary Judgment. The remaining Defendants filed a Support to the State’s Motion for Summary Judgment on May 2, 2002. Plaintiff’s Response to the State’s Motion for Summary Judgment was filed on May 9, 2002. Pursuant to its Order entered on May 1, 2002, this Court considers all papers filed by the parties in ruling upon the State’s Motion for Summary Judgment and the State’s Motion for Default Judgment

     Based upon the information presented to this Court, arguments of counsel, the record in this matter, applicable law and in the interests of justice, Defendant State’s Motion for Default Judgment is denied. Defendant State’s Motion for Summary Judgment is granted in part. This Order sets forth the Court’s reasoning.

     The State seeks judgment by default under KRCP Rule 55, based upon the Plaintiff’s failure to timely respond to the Motion for Summary Judgment. Default, under Rule 55, is typically granted when a defendant has failed to answer or respond to a complaint within the prescribed time limit. This Court was unable to find any reported legal authority for the granting of default under Rule 55 where the plaintiff had failed to timely respond to a motion. Defendant State also failed to provide any legal authority for this Motion. Accordingly, the State’s Motion for Default Judgment is denied.

A. Standard for Summary Judgment.

     KRCP Rule 56(c) provides the standard of review for a Motion for Summary Judgment. Summary Judgment shall be granted if the pleadings, discovery responses under oath, and affidavits 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. In considering a summary judgment motion, the court must view the facts and inferences in a light that is most favorable to the party opposing the motion. FSM Dev. Bank v. Mudong, 10 FSM Intrm. 67 (Pon. 2001).

B. Facts.

     The following facts are undisputed in this matter. In 1976, Misima Palik filed a trespass action against Joab P. Sigrah and others with respect to Japanese Lots 440, 442, 443, 444, 445, 448, and 449, located at Innem. This case was docketed as Misima Palik v. Joab P. Sigrah et al., Civil Action No. 60-76, Trust Territory of the Pacific Islands High Court (1981). The Court in Misima Palik v. Joab P. Sigrah entered judgment for the defendants and held that the land in dispute was owned by

defendants Joab P. Sigrah, as successors to Paul Sigrah, and that the plaintiffs had no rights therein. (Judgment, Feb. 23, 1981). The Court takes judicial notice of the judgment and the entire record of Trust Territory Civil Action 60-76.

     In June 1972, prior to the filing of the complaint in Misima Palik v. Joab P. Sigrah, all of the land at issue was designated as a "registration area" under Title 67 of the Trust Territory Code. In the early 1980s, after judgment was entered in Misima Palik v. Joab P. Sigrah, the Kosrae State Land Commission held proceedings on the subject lots. The subject lots were divided into parcels, and renamed, pursuant to the new numbering system for land title registration in the State of Kosrae. Although hearing notices were posted for the proceedings, Joab P. Sigrah, a claimant to those parcels, was not given personal notice of the Land Commission proceedings. Virtually all of the subject parcels were awarded to persons other than Joab P. Sigrah. The parcels, claimed by the Plaintiffs in this matter, which were awarded to the Defendants include: 042-K-01, 042-K-03, 042-K-04, 042-K-05, 042-K-06, 042-K-07, 042-K-08, 042-K-10, 042-K-15, 043-K-01, 043-K-02, 043-K-03, 043-K-04, 043-K-05, 044-K-02, 044-K-03, 055-K-01, 055-K-05, 055-K-06, 055-K-07, 055-K-08, 055-K-09, and 055-K-10 (Innem parcels). The Certificates of Title for the Innem parcels were issued by the Land Comiission from 1982 through 1987 to approximately twenty persons, and one parcel to the Kosrae Public Lands Authority.

C. The Judgment Relied on by Plaintiffs for Asserting Their Claim is Invalid.

     Defendant State argues that the Trust Territory High Court judgment issued in Civil Action No. 60-76 is invalid because the Court did not have subject matter jurisdiction to entertain the case. Defendant State relies upon the Trust Territory Code in effect during that time, at Title 67, Section 105, which states that:

In this case Defendant State argues that the subject land at Innem was part of the Registration Area filed in 1972. The Designation of Registration Area, which includes the land at Innem, was filed with the Clerk of Court, Ponape District, in June, 1972. Kosrae became its own district within the Trust Territory on January 1, 1977, pursuant to the Trust Territory Code, Title 3, Section 1. Based upon the record, sometime between 1977 and April, 1979, venue of Civil Action 60-76 was transferred from the Ponape District to the Trust Territory High Court, Kosrae District.

      The first action taken by the Trust Territory High Court, Kosrae District, was to issue a Pre-Trial Statement on April 23, 1979, after venue was transferred. There is nothing in the record to show that the Designation was ever filed at the Trust Territory High Court, Kosrae District. There is nothing in the record to show that the Designation was ever transferred to the Trust Territory High Court, Kosrae District, after Kosrae became its own district in January, 1977. Our Court does not have a record of the Designation being filed in Kosrae District. Therefore it appears that Trust Territory High Court, Kosrae District, did not have notice of the Designation because it was never filed at the Kosrae District Courthouse.

       Defendant State argues that the Trust Territory High Court Civil Action 60-76 judgment is void because the record does not have "a showing of special cause why action by a court is desirable." Defendant State argues that under the case of Barker v. Paul, 6 FSM Intrm. 473 (Chk. S. Ct. App. 1994), the judgment in Civil Action 60-76 should be considered void.

      Defendant State argues that here there is also no "showing of special cause why action by a court is desirable" in the record of Civil Action 60-76. This Court has carefully reviewed the entire record of Trust Territory High Court, Civil Action 60-76 and also concludes that there is no such showing in the Court’s documents. However, the record at the Court does not include transcripts of the Court proceedings in that matter. It is possible that that Trust Territory High Court did make a finding of special cause to entertain the Civil Action 60-76, but did not state that finding in writing. It is more likely however, that the Trust Territory High Court, Kosrae District, did not make a finding of special cause because the Designation was never filed with the Kosrae District Courthouse and therefore the Court did not have knowledge of the Designation.

      The case of Barker v. Paul can be distinguished from this case. The Barker case involved a claim by the Plaintiff who tried to bypass the Land Commission process and have the court determine ownership first. The Plaintiff here, Joab P. Sigrah, was the defendant in Trust Territory Civil Action 60-76. In Civil Action 60-76, Joab P. Sigrah was not trying to bypass the Land Commission proceedings: he was merely defending his claim to Innem against Misima Palik, the plaintiff in that action. Misima Palik, in Civil Action 60-76, alleged that the defendants (Paul Sigrah et al.) were trespassing on his land by planting crops and through construction. The defendants in Civil Action 60-76 did not request that title be issued to them only that the complaint be dismissed. Misima Palik v. Joab P. Sigrah, Amended Answer (May 19, 1977). Consequently, Barker v. Paul is not applicable to this case.

      This Court has always accepted and enforced Trust Territory High Court decisions as valid and binding, consistent with the constitutional provisions on transition of government at Article XVI. Kosrae State Constitution, Article XVI, Section 6 states: "Except as otherwise provided by this Constitution, all rights, titles, actions, suits contracts, liabilities, writs, proceedings, prosecutions, judgments, sentences, orders, decrees, appeals, causes of action, defenses, claims, and demands continue unaffected." There is no Kosrae State Constitutional provision that would require the judgment in Civil Action 60-76 to be vacated or set aside and accordingly, this Court will not invalidate the judgment in Civil Action 60-76.

      Therefore, for these reasons discussed above, the Court rejects Defendant State’s argument and accepts the judgment entered in Trust Territory Civil Action 60-76 as valid. Defendant State’s Motion for Summary Judgment on this basis is denied.

D. Plaintiff’s claim is barred by their failure to appeal Land Commission decision within 120 days as required by statute.

      Defendant State argues that the Plaintiff’s claim is barred because he failed to appeal the Land Commission decisions within the 120 days provided by law. The Determinations of Ownership for the subject Innem parcels were awarded in the early 1980s, under the Trust Territory Government, by the Kosrae State Land Commission. The Trust Territory Code, Section 115, specifies that appeals may be taken by aggrieved persons within 120 days of the determination. The Trust Territory Code, Sections 110 and 114 requires that notice of the determinations be served upon all interested persons.

      Joab P. Sigrah was an interested person with respect to the Innem parcels. The Land Commission was aware of the interest of Joab Sigrah in the Innem parcels. The record contains a letter dated September 18, 1984, from Senior Commissioner Mitchell Aaron to Richard Sigrah, Clerk of Court, requesting the case record for Civil Action 60-76. Senior Commissioner states in the letter. "This Office is aware of the case. Therefore, we would like to have for our records to know exactly what 'land’ or 'parcels of land’ is now owned by Defendant Joab P. Sigrah."

      Clearly the Land Commission knew of the judgment in Civil Action 60-76 and that Joab Sigrah was a claimant and interested party for the Innem parcels, subject of the judgment in Civil Action 60-76 and later subject of the Land Commission proceedings. Yet, even with this specific knowledge of Joab P. Sigrah as an interested person, the Land Commission failed to serve Joab P. Sigrah personal notice of the Land Commission proceedings for the Innem parcels, as required by law. It is undisputed that Joab P. Sigrah was not served personal notice of the formal hearing or the Determinations of Ownership for the Innem parcels.

     In cases where an interested party has not been served statutory notice, the law is clear. Pursuant to established precedent of this Court, Determinations of Ownership and Certificates of Title have been held void and vacated where proper notice was not given pursuant to statute. Actual notice to an interested party is required by personal service. Further, the statutory appeal period of 120 days does not apply because it never begins to run: the interested party was never served proper notice of the Determination of Ownership. See Nena v. Heirs of Melander, 9 FSM Intrm. 523 (Kos. S. Ct. Tr. 2000); Palik v. Henry, 9 FSM Intrm. 309 (Kos. S. Ct. Tr. 2000); Isaac v. Benjamin, 9 FSM Intrm. 258 (Kos. S. Ct. Tr. 1999); Sigrah v. Kosrae State Land Comm’n, 9 FSM Intrm. 89 (Kos. S. Ct. Tr. 1999); etc. In this case, the Plaintiff was never served statutory notice of the formal hearings or Determinations of Ownership issued for the Innem parcels. Therefore, the 120-day appeal period never began to run and has never expired. Defendant State’s argument is without merit and must be rejected. Defendant State’s Motion for Summary Judgment on this basis is denied.

E. Plaintiff’s claim against the State of Kosrae and the Land Commission is barred by the statute of limitations.

      Defendant State argues that the Plaintiff’s claims are barred by the statute of limitations. Kosrae State Code, Section 6.2503 establishes a twenty year statute of limitations for an action on a judgment or for action for the recovery of land or an interest in land.

      Defendant State argues that Judgment in Civil Action 60-76 was entered more than twenty years ago, therefore Plaintiff s claims are barred. The Judgment in Civil Action 60-76 was announced in open court and entered on February 23, 1981. Based upon the record, service of the Judgment upon the parties was made on April 10, 1981. The complaint in this matter was filed on March 6, 2002, more than twenty years after the judgment was announced, but less than twenty years before the written Judgment was served on the parties. The complaint in this matter was timely filed within twenty years of service of the Judgment. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485 (App. 1996). Therefore, any cause of action based upon the judgment in Civil Action 60-76 is not barred by the statute of limitations. Defendant State’s Motion for Summary Judgment on this basis must be denied.

      Other causes of action in this case are made for the recovery of land, allegedly wrongfully awarded by the Land Commission. The defendants are individual defendants and the State of Kosrae, as successor to the Kosrae Public Lands Authority, who have been awarded title to the Innem parcels claimed by the Plaintiff. The accrual of the causes of action for recovery of land by the Plaintiff began to run when a suit may have been successfully maintained upon. Waguk v. Kosrae Island Credit Union, 6 FSM Intrm. 14 (App. 1993).

      In this matter, the cause of action for recovery of land accrued when the Determinations of Ownership for the Innem parcels were served upon in the individual defendants and the Kosrae Public Lands Authority. Chipuelong v. Chuuk, 6 FSM Intrm. 188 (Chk. S. Ct. Tr. 1993). The Complaint in this matter was filed within twenty years of service of Determinations of Ownership for the Innem parcels. Therefore, the cause of action against the individual defendants and the State, for the recovery of land, falls within the twenty year limitations period and is not barred by the statute of limitations

established by Kosrae State Code, Section 6.2503. Defendant State’s Motion for Summary Judgment on this ground must be denied.

      The actions on Civil Action 60-76 and for the recovery of the Innem parcels are not barred by the statute of limitations. The causes of action against Defendant Kosrae State Land Commission remain. The claims against the Land Commission are for violation of due process, violation of statute and for failure to apply the judgment in Civil Action 60-76. The twenty year statute of limitation does not apply to this Defendant for these claims as they are not claims for the recovery of land. These claims fall within Kosrae State Code, Section 6.2506, which establishes a limitations period of six years. The actions of the Land Commission, in holding hearings, issuance of the Determinations of Ownership and the Certificates of Title for the Innem parcels, all occurred more than six years ago. Therefore, the claims against the land Commission are barred by the statute of limitations and shall be dismissed. Defendant State’s Motion for Summary Judgment, with respect to the causes of actions brought against Kosrae State Land Commission shall be granted.

      Defendant State’s Motion for Default Judgment is denied. Defendant State’s Motion for Summary Judgment is granted in part. Causes of action brought against the Kosrae State Land Commission for violation of due process, violation of statute and for failure to apply the judgment in Civil Action 60-76, are dismissed. As there are no other claims remaining against Defendant Kosrae State Land Commission, Defendant Land Commission is dismissed from this action.

       The remaining claims for the recovery of land against the remaining defendants shall be set for trial. Parties may file and serve amended pre-trial briefs no later than November 7, 2002. Trial is set for November 14, 2002 at 9 am.

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