FSM SUPREME COURT APPELLATE DIVISION
Cite as Anton v. Heirs of Shrew
12 FSM Intrm. 274 (App. 2003)

[12 FSM Intrm. 274]

LIVINGSTON ANTON,
Appellant,
 
vs.
 
HEIRS OF SAPAL SHREW,
Appellees.
 
APPEAL CASE NO. K3-2001
 
OPINION
 
Argued: July 8, 2003
Decided: December 30, 2003

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:                  Salomon Saimon, Esq.
                                                Law Offices of Saimon & Associates
                                                P.O. Box 1450
                                                Kolonia, Pohnpei FM 96941
 
For the Appellees:                Canney Palsis, Esq.
                                               Directing Attorney
                                               Micronesian Legal Services Corporation
                                               P.O. Box 38
                                               Lelu, Kosrae FM 96944

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HEADNOTES

Constitutional Law ) Due Process; Property ) Registered Land
     No court could grant as relief a sweeping request to nullify all certificates of title to all persons who are not heirs of legatees pursuant to a will when such a request would reverse long-settled, final cases not now before the court, with parties not now before the court, and award others title to land for which certificates of title have already been issued because that would have the court void certificates of title in a manner that would violate every notion of due process of law. Anton v. Heirs

[12 FSM Intrm. 275]

of Shrew, 12 FSM Intrm. 274, 277 (App. 2003).
 
Property ) Registered Land
     Courts must attach a presumption of correctness to a certificate of title. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 277 (App. 2003).
 
Administrative Law ) Judicial Review; Property ) Land Commission
     The 120-day statutory time limit to appeal from the Kosrae Land Commission to the Kosrae State Court is jurisdictional because deadlines set by statute, especially deadlines to appeal including those from administrative agency decisions, are generally jurisdictional. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 278 (App. 2003).
 
Appellate Review ) Notice of Appeal; Appellate Review ) Parties
      The Kosrae State Court ruling that co-tenants were not parties to the case before it because they had not been served the notice of appeal was not plain error. That court correctly ruled. It had no jurisdiction over the co-tenants because no timely notice of appeal was filed as to them. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 278 (App. 2003).
 
Civil Procedure ) Joinder, Misjoinder and Severance; Property ) Registered Land
     Co-owners of land are generally considered indispensable parties to any litigation involving that land. This should be especially true when full title to the land is at stake, and even more important when the land will be registered and a certificate of title issued for it because a certificate of title, once issued, is conclusive upon a person who had notice of the proceedings and a person claiming under him and is prima facie evidence of ownership. This is because a cotenant cannot be divested of his interest by a proceeding against all the co-owners of the common property unless he is made a party to the proceeding and served with legal process. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 278-79 (App. 2003).
 
Civil Procedure ) Joinder, Misjoinder and Severance; Property
     A party who seeks to quiet title to a piece of land must join all known persons who are claiming title in order to settle the property’s ownership without additional litigation. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 279 (App. 2003).
 
Administrative Law ) Judicial Review; Civil Procedure ) Joinder, Misjoinder and Severance
     An appeal from an administrative agency must be perfected as well as started within the established statutory time period and part of perfecting an appeal is the joinder of indispensable parties. Failure to join indispensable parties prior to the expiration of the statutory time for appeal is a fatal defect which deprives the court of jurisdiction to entertain the action. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 279 (App. 2003).
 
Civil Procedure ) Joinder, Misjoinder and Severance; Constitutional Law ) Due Process; Property
     All co-tenants are indispensable parties to the litigation when someone else claims complete ownership of the land. Otherwise, the co-tenants would either be deprived of their property interest without due process of law or they would be forced to share their property with a hostile co-owner who believes he should be the sole owner. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 279 (App. 2003).
 
Appellate Review ) Decisions Reviewable; Property
     An appeal will be dismissed for the lack of indispensable parties because an appellant’s failure to join all the co-owners as parties is fatal to his appeal. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 279 (App. 2003).

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Civil Procedure ) Joinder, Misjoinder and Severance; Property
     All co-tenants would not be indispensable parties if a litigant were claiming only one co-tenant’s share and not the other shares. Then only that co-tenant need be joined. Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 279 (App. 2003).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

     This came before the FSM Supreme Court appellate division on appeal from the Kosrae State Court’s March 13, 2001 decision, Anton v. Heirs of Shrew, 10 FSM Intrm. 162 (Kos. S. Ct. Tr. 2001), which was an appeal from the Kosrae Land Commission’s February 14, 2000 Determination of Ownership awarding parcel 066-M-05 to the Heirs of Sapal Shrew and the Heirs of Asama Ittu as tenants-in-common. The Kosrae State Court held that only the Heirs of Sapal Shrew’s interest in parcel 066-M-05 was before it because the Heirs of Asama Ittu had never been properly served in the appeal so that its decision did not "apply to their interests." Anton, 10 FSM Intrm. at 164. Livingston Anton then appealed to this court. We dismiss his appeal. Our reasoning follows.

I. Background

     Tepuke originally owned Lots No. 622 and 623. He had two sons, Ittu and Tara, and one daughter, Mirah. Mirah had no natural children. She adopted one of Ittu’s sons, Sapal Shrew, and another son named Robert George. Tepuke gave Mirah some land which included Lots No. 622 and 623. Mirah gave Lot No. 622 to Robert George and Lot No. 623 to Sapal Shrew. Sapal Shrew and Asama Ittu (to whom Sapal had given an interest in the lot) were shown as owners of Lot No. 623 on the 1932 Japanese land map.

     Appellant Livingston Anton asserts that Ittu, as Tepuke’s eldest son, had the customary authority to take the land back from Mirah and did in fact exercise that authority and take the land back. Ittu bequeathed this land to Moses Anton in a 1961 will. Livingston Anton later inherited Moses’s interest.

     The land registration process for these lots started in 1991. Lot No. 623 was redesignated Parcel No. 066-M-05 and Lot No. 622 was redesignated Parcel No. 066-M-03. Various claims were filed to the lots. The Kosrae Land Commission ruled that Robert George had owned Lot No. 622 and Sapal Shrew and Asama Ittu had owned Lot No. 623 and that there was insufficient evidence to show that Ittu had ever taken the land back from Mirah. On February 2, 2000, the Land Commission issued a Determination of Ownership that Lyndon Cornelius (Robert George’s successor in interest) held Parcel No. 066-M-03 in fee simple, and on February 14, 2000, it issued a Determination of Ownership that the Heirs of Sapal Shrew and the Heirs of Asama Ittu held Parcel No. 066-M-05 as tenants-in-common.

     On March 28, 2000, Anton filed his Notice of Appeal in the Kosrae State Court. That notice named the Kosrae State Land Commission as the sole appellee and was served only on the Land Commission. On May 17, 2000, the court issued an order directing Anton to amend the caption and to name and serve, within 14 days, notices of appeal on the proper appellees or the appeal would be dismissed. On June 1, 2000, Anton filed a Notice of Appeal naming only Lyndon Cornelius and the Heirs of Sapal Shrew as appellees. That notice was served on those parties on June 6, 2000.

     On September 28, 2000, the court issued an order severing the appeals of the determinations of ownership of the two parcels (066-M-03 and 066-M-05) and assigned a different docket number to

[12 FSM Intrm. 277]

the parcel 066-M-05 (Heirs of Sapal Shrew) appeal. The Kosrae State Court then conducted a judicial review and heard argument on the parties’ briefs and the record. On March 13, 2001, it ruled that, because the Heirs of Asama Ittu had not been served, its decision did not apply to their interest, Anton, 10 FSM Intrm. at 164, and concluded that the Land Commission’s "Determination of Ownership for parcel 066-M-05 is affirmed in the name of Appellees, Heirs of Sapal Shrew and the Heirs of Asama Ittu," id. at 165. Anton then timely appealed.

II. Issues and Contentions Presented by the Appellant

      Anton contends that the Kosrae State Court’s March 19, 2001 decision affirming the Kosrae Land Commission’s February 14, 2000 Determination of Ownership was erroneous as a matter of law and as a matter of fact and that his due process rights under the FSM and Kosrae Constitutions were violated.

     Anton contends that the Kosrae State Court erred 1) in not ruling that the judicially recognized will of Ittu collaterally estopped others from claiming the land; 2) by not conducting a trial de novo of the appeal; and 3) by ignoring the parties’ statute of limitations arguments and the application of adverse possession. Anton also contends that his due process rights were violated in both the Kosrae State Court and the Land Commission. He alleges that his right to due process was violated when the Kosrae State Court judge did not sua sponte recuse himself because he had acted as counsel in a case which dealt with another land bequest in Ittu’s will. He also alleges his due process rights were violated in the Land Commission because the Land Registration Team members and Commissioners who conducted the hearing at the registration team level were "close relatives" of Takasy Shrew, one of the Heirs of Sapal Shrew.

III. Analysis

A. Relief Requested

     As relief, Anton asks that the bequests in Ittu’s will be followed; all contrary state court decisions be reversed; and that he be granted title to the land in question and that the court nullify all certificates of title to anyone who does not claim under Ittu’s will in all other cases where the Kosrae State Court has not followed the will. He states that the "only legal relief" we could grant would be to "nullify all certificates of title to all persons who are not heirs of legatees pursuant to the judicially recognized Will of Ittu." Appellant’s Br. at 5.

     This is a sweeping request. No court could grant such relief. Anton would have us reverse long-settled, final cases not now before us, with parties not now before us, and award others title to land for which certificates of title have already been issued. Courts must attach a presumption of correctness to a certificate of title. Sigrah v. Kosrae State Land Comm’n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999); Marcus v. Truk Trading Corp., 11 FSM Intrm. 152, 158 (Chk. 2002); Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 101 (Pon. 2002); Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996); Stephen v. Chuuk, 11 FSM Intrm. 36, 41 (Chk. S. Ct. Tr. 2002). Anton, while complaining that his due process rights were violated, would have us void certificates of title in a manner that would violate every notion of due process of law. Even if Anton had prevailed on this appeal, no such relief would, or could, be granted.

B. Failure to Bring Appeal Against Co-tenants’ Ownership Interest

     Before we can address the issues Anton raises, we must consider a question that goes to our jurisdiction. Although the Land Commission determined that the Heirs of Sapal Shrew and the Heirs

[12 FSM Intrm. 278]

of Asama Ittu were tenants-in-common (co-owners) of Parcel No. 066-M-05, only the Heirs of Sapal Shrew are parties to the appeal before us. As noted above, the lower court ruled that the Heirs of Asama Ittu were never properly served a notice of appeal and therefore were not parties to the appeal before the Kosrae State Court. Anton, 10 FSM Intrm. at 164. Anton does not now challenge that ruling. That ruling therefore stands. The Heirs of Asama Ittu were not parties to the appeal in the Kosrae State Court and are therefore not parties to the appeal before us.

     They are, however, co-owners ) tenants in common ) of Parcel No. 066-M-05. That Land Commission determination is final. It was not appealed within the 120-day time limit required by statute. Kos. S.C. § 11.614. The 120 days expired on June 13, 2000, before Anton ever made any mention of the Heirs of Asama Ittu in any Kosrae State Court filing.1 This 120-day time limit is jurisdictional. Deadlines set by statute, especially deadlines to appeal including those from administrative agency decisions, are generally jurisdictional. Charley v. Cornelius, 5 FSM Intrm. 316, 318 (Kos. S. Ct. Tr. 1992) (appeals from Land Commission); see also Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995) (appeals from election director); cf. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002); Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001) (Rule 4(a)(1) appeal time limit is jurisdictional); O’Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 (App. 2000) (no jurisdiction in absence of a timely notice of appeal).

     Anton has not challenged the Kosrae State Court decision that the Heirs of Asama Ittu were not parties to the case before it. We cannot conclude that that Kosrae State Court ruling was plain error. That court correctly ruled that the Heirs of Asama Ittu had not been served and thus were not parties. That court had no jurisdiction over them because no timely notice of appeal was filed as to them.

     Anton does not claim just the undivided half interest in Parcel No. 066-M-05 owned by the appellee co-tenants, Heirs of Sapal Shrew. He claims full ownership of the entire parcel ) the interests of both the Heirs of Asama Ittu and the Heirs of Sapal Shrew. Anton seeks to have full title to Parcel No. 066-M-05 vested solely in him. He does not seek to share ownership with the Heirs of Asama Ittu.

     Co-owners of land are generally considered indispensable parties to any litigation involving that land. See, e.g., Ifenuk v. FSM Telecomm. Corp., 11 FSM Intrm. 403, 405 (Chk. 2003) (trespass case dismissed for failure to join the land’s co-owners as indispensable parties plaintiff); Ifenuk v. FSM Telecomm. Corp., 11 FSM Intrm. 201, 203-04 (Chk. 2002) (in a trespass claim for damages to land, all the co-owners of the affected land are indispensable parties to the action and must be joined; otherwise the case is subject to dismissal). This should be especially true when full title to the land is

[12 FSM Intrm. 279]

at stake, and even more important when the land will be registered and a certificate of title issued for it because a certificate of title, once issued, is "conclusive upon a person who had notice of the proceedings and a person claiming under him and is prima facie evidence of ownership," Kos. S.C. § 11.616(1). This is because "a cotenant cannot be divested of his interest by a proceeding against all the coöwners of the common property unless he is made a party to the proceeding and served with legal process." 86 C.J.S. Tenancy in Common § 143, at 550 (1954). "A party who seeks to quiet title to a piece of land must join all known persons who are claiming title in order to settle the property’s ownership without additional litigation." 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1621, at 334 (3d ed. 2001). Therefore, the Kosrae State Court should have dismissed Anton’s appeal regarding parcel 066-M-05 for failure to perfect appeal against the Heirs of Asama Ittu because they were indispensable parties.

      An appeal from an administrative agency must be perfected as well as started within the established statutory time period and part of perfecting an appeal is the joinder of indispensable parties. City of Denver v. District Court, 540 P.2d 1088, 1089 (Colo. 1975). "[F]ailure to join indispensable parties prior to the expiration of the statutory time for appeal is a fatal defect which deprives the court of jurisdiction to entertain the action." Columbine State Bank v. Banking Bd., 523 P.2d 474, 476 (Colo. 1976).

     All co-tenants are indispensable parties to the litigation when someone else claims complete ownership of the land. The necessity for such a rule is apparent in this case. If a court were to allow Anton’s appeal and grant him the relief he requests ) title to and full ownership of Parcel No. 066-M-05, the co-tenants, the Heirs of Asama Ittu, would be divested of their undivided half interest in the parcel without the notice and the opportunity to be heard, as guaranteed by the due process clauses of both the FSM and Kosrae constitutions. FSM Const. art. IV, § 3; Kos. Const. art. II, § 1(b). If, on the other hand, a court were to consider this appeal as concerning only the Heirs of Sapal Shrew’s property interests and if Anton were to prevail, Anton would become a tenant-in-common, owning an undivided half interest in the parcel ) sharing it with the Heirs of Asama Ittu. That is a result that no one has sought. Even Anton probably expects that if he is not the sole owner of the parcel that the Heirs of Asama Ittu and the Heirs of Sapal Shrew are the co-owners. Either result would injuriously affect the absent Heirs of Asama Ittu’s rights. Either they would be deprived of their property interest without due process of law or they would be forced to share their property with a hostile co-owner who believes he should be the sole owner.2

     Anton’s failure to join the Heirs of Asama Ittu as parties is fatal to his appeal. This appeal is therefore dismissed for the lack of indispensable parties. It is remanded to the Kosrae State Court with directions to vacate its decision and to dismiss the appeal from the Land Commission.

     All co-tenants would not be indispensable parties if a litigant were claiming only one co-tenant’s share and not the other shares. Then only that co-tenant need be joined. That is not this case.

IV. Conclusion

     This appeal is accordingly dismissed and the matter remanded to the Kosrae State Court to take such further action as is consistent with this opinion.

 

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Footnotes:

1. On June 29, 2000, Anton filed a Motion for Designation of Records or Transcripts directed to Kosrae State Land Commissioner Johnston Jonas asking his office to provide all records for Parcels 066-M-03 and 066-M-05. This motion, in referring to the notices of appeal ordered by the court, noted in passing that

The appellant filed again the Notice of Appeal served to Lyndon Cornelius and Heirs of Sapel [sic] on June 6, 2000. One of the parties needed to be served on this Notice of Appeal is, Heirs of Asama Ittu but it was not reflected during the time when the Notice of Appeal was served to the other appellees as shown in the Return of Service Document.

Anton thus acknowledged that he had neglected to serve persons, the Heirs of Asama Ittu, that he now knew that he should have served. Anton, apparently recognizing the importance of his omission, later, on his own, added the Heirs of Asama Ittu to the caption of one or two of his filings and asked in one filing if the Heirs of Shrew counsel would also represent the Heirs of Ittu, and mentioned them in oral argument before the Kosrae State Court. That court’s September 28, 2000 severance order recites Cornelius as the appellee for Parcel No. 066-M-03 and only the Heirs of Sapal Shrew as the appellees for Parcel No. 066-M-05.

2. The Heirs of Sapal Shrew could always convey their interests to some other person(s) who may turn out to be uncooperative, but those uncooperative co-owners would not be hostile in the sense that they believed they should be owners of the whole property.