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CHARLES L. LIGHT, Special Trial Justice:
These consolidated cases come before the Court on motions including the sua sponte motion of the previous trial justice1 to vacate the previously entered "default judgment" against Chuuk State in Hartman v. Chuuk State, CSSC-CA-NO. 64-1998. For the reasons set forth below, the Court finds that the judgment must be vacated, and that Hartman v. Chuuk State must be dismissed. Plaintiffs in Ruben v. Hartman, CSSC-CA-NO. 229-2000, must also be awarded judgment on their complaint. Additionally, the lineage of the Wito Clan of Iras previously headed by Erwin Tima must be awarded judgment against the defendants in CA-NO. 36-2000. Finally, the motion to intervene brought by Rokuro Stephen (also Sitifen), on his own behalf and on behalf of the Wito Clan of Iras, must be denied. The suggestion of Intervenors/Plaintiffs Ruben that counselor Ben Enlet be disqualified is disregarded as moot. Any further proceedings between lineages of the Wito Clan of Iras are referred to the Land Commission.
I. Procedural History
The case of Hartman v. Chuuk State and the other cases subsequently consolidated with it present another example of the tortuous road civil actions often take in the Chuuk State Supreme Court. The Court will, therefore, attempt to set forth in detail the procedural history of these consolidated cases in the fervent hope that those who practice before the Chuuk State Supreme Court will in the future attempt to adhere to the Rules of Civil Procedure and the Rules of Professional Conduct for practitioners before the Court.
Hartman v. Chuuk State, CSSC-CA-NO. 64-1998, was filed on March 16, 1998, by Hans Wiliander, then counselor of record for Plaintiff Chonsy Tiu Hartman.2 The complaint sought declaratory and injunctive relief regarding a parcel of land known as "Unupuku," located at the boat pool area in Weno, Chuuk State. The complaint alleged that the parcel of land in question was purchased from "Nimuk" by Chonsy’s father, one Tiu Killion,3 who was later dispossessed of the land by Defendant Chuuk State. The complaint sought a declaration that Chonsy, as successor to her father’s interest,4 was the owner of Unupuku, and sought an injunction prohibiting Chuuk State from occupying the property. The complaint did not provide any evidence that Tiu Killion had acquired the
[12 FSM Intrm. 393]
property, other than the unverified statements in the complaint, and an attached "Recission [sic] of Release" signed by then Governor Marcellino Umwech on April 8, 1997, which states without verification that Tiu Killion was the owner of a part of Unupuku.
On May 11, 1998, Chonsy filed a Motion for Entry of Default, "by and through her undersigned counsel,"5 against Chuuk State. No default was entered pursuant to Chuuk Civil Rule 55(a). On June 1, 1998, Chuuk State, by its Chief Litigator, Joses R. Gallen, filed its opposition to the Motion for Entry of Default. Chuuk State did not file an answer to the complaint. Pursuant to Rule 55(a) default against Chuuk State should have been entered by the Clerk of Courts at Chonsy’s request, with Chuuk State then moving to vacate the default pursuant to Rule 55(c).6
On July 13, 1998, Plaintiff substituted Manny J. Otoko as her counselor of record in place of Hans Wiliander. On August 17, 1998, the trial judge, Associate Justice Keske S. Marar, held a hearing "on Plaintiff’s Motion for Default Judgment."7 Chuuk State was permitted to appear, and argued that a default judgment against Chuuk State could not be made without a "prove-up hearing" where competent evidence would have to be introduced in support of the Plaintiff’s claims. See Chk. Civ. R. 55(e). The hearing on August 17 was held expressly for the purpose of complying with Rule 55(e). According to the Order and Judgment, "The Plaintiff appeared in her own proper person and testified in support of the allegations contained in her complaint. The State offered no testimony or other evidence in opposition to Plaintiff’s claim." Thus, despite objecting to entry of default, and despite being given the opportunity to appear and contest the claims of the plaintiff at the Rule 55(e) hearing, Chuuk State failed completely to challenge in any way, through answer and denial, testimony or documentary evidence, the claims of ownership asserted by the Plaintiff. Judgment of ownership was entered on August 20, 1998 in Chonsy’s favor, the Court denying injunctive or other equitable relief because Plaintiff failed to demonstrate irreparable harm or lack of an adequate remedy at law.
A document entitled "Certification of Records" is the next document in the court file, dated February 10, 1999, under the letterhead of the Chuuk State Supreme Court Appellate Division. It must be assumed that an appeal of Judge Marar’s Order and Judgment was pursued by Chuuk State. It must also be assumed that the appeal was dismissed, probably, from the date of the "Certification of Records," on the grounds that the Notice of Appeal was not timely filed. There is no Notice of Appeal in the Trial Division file.8
[12 FSM Intrm. 394]
The parties then stipulated to a survey of the property, and an order was entered to that effect. If in fact a default judgment had been entered, no stipulation would have been required, as Chuuk State was no longer a party. Subsequent references to the default judgment simply confuse the issue further. On July 9, 1999, Chuuk State, by its Attorney General Joses R. Gallen, served Chonsy with a "Cease and Desist Order," asserting for the first time that others may have made claims to the subject property.
In response to the "Cease and Desist Order," Plaintiff’s new counsel, Wesley Simina, Esq., obtained an Order to Show Cause requiring officers and employees of Chuuk State, the Land Commission, and the Division of Land Management to show cause why they should not be held in contempt of court or subject to other sanctions "for taking such acts which are in conflict with the ownership rights of the plaintiff for and in the land known as Unupuku . . . ."9
On August 9, 1999, the Rubens filed, by and through their counselor of record, Julio Akapito, a "Motion to Intervene [CSSC, Rul. 24(a)(b)]." By making specific reference to the applicable rule, counselor Akapito must have been aware that a complaint in intervention was required to be filed with the motion. Nonetheless, the complaint in intervention was not filed until September 13, 1999. There are no documents in the court file which indicate that the Motion to Intervene was granted.10 There is no answer to the complaint in intervention, but it appears that the parties at least accepted the fact that the Rubens had intervened in Civil Action 64-1998.
The next document in the court file is an order dated July 4, 2000, and signed by Associate Justice Wanis R. Simina, prohibiting one "Maikawa" and all the members of his lineage from entering Unupuku or taking anything from the disputed area. The court file does not reveal how Associate Justice Simina became associated with Civil Action No. 64-1998, nor does it indicate whether the order was ever served on any party to the action.11
While all this post-judgment activity was proceeding, the Rubens and others were getting into the dispute over Unupuku by filing separate civil actions. On February 11, 2000, an individual named Maikawa Picho12 filed on his own behalf and "on behalf of the members of his lineage of Wito in Iras Village," a complaint for "trespass, ejectment and delacratory [sic] relief" against Chonsy and Chuuk State. On November 2, 2000, the Rubens, no doubt concerned about the validity of their attempted
[12 FSM Intrm. 395]
intervention in Civil Action No. 64-1998, filed a separate action against Chonsy and Samuel Hartman, seeking to quiet title to Unupuku, which was filed as CSSC-CA-NO. 229-2000. The complaint filed by the Rubens was filed by Johnny Meippen, Esq., despite the fact that the motion to intervene and complaint in intervention in Civil Action No. 64-1998 were filed by trial counselor Julio Akapito.13
On January 30, 2001, almost two and a half years after the "default judgment" had been entered in Hartman v. Chuuk State, trial counselor Fredrick A. Hartmann filed a notice of appearance as counselor of record for Chonsy. Wesley Simina, Esq. was apparently replaced as counsel of record. Thereafter, on February 15, 2001, Associate Justice Marar, apparently unaware that Mr. Simina had been replaced, issued a Notice setting a hearing in Civil Action No. 64-1998 for February 20, 2001. The file contains no motion or other request for a hearing in that matter. Neither is there any indication in the file that the hearing took place, or what may have occurred at the hearing if it did in fact take place as noticed.
On March 8, 2001, Chonsy moved for an order in aid of judgment, seeking enforcement of the August 20, 1998 judgment awarding Unupuku to her. Apparently in response to the motion, Associate Justice Marar issued a notice that a "trial" would occur in Civil Action No. 64-1998 on April 26, 2001. The notice was served on Wesley Simina, Esq., Fredrick Hartmann and the Attorney General of Chuuk State.14 The "trial" was apparently delayed until May 22, 2001, although no document appears in the file confirming the continuance.
At the hearing on May 22, Associate Justice Marar apparently became aware for the first time that two prior cases had addressed the ownership of Unupuku. In Echikar v. Erwin, Trust Territory Civil Action No. 95-81, an appeal from a Land Commission determination of ownership, the Trust Territory High Court trial division found that Unupuku was owned by the lineage of the Wito Clan headed by Defendant Erwin. The decision of the Trust Territory High Court was dated February 2, 1982, and was based upon a Certificate of Title issued to "the lineage of the Wito clan of Iras now headed by Erwin Tima," dated July 15, 1981.15 In addition to the decision in Echikar v. Erwin, on May 3, 1994 a motion to dismiss was granted in Terry v. Souleng, CSSC-CA-NO. 150-1991, on the grounds of res judicata, citing the decision in Echikar v. Erwin.
Apparently Associate Justice Marar believed that his prior judgment was improper, and he sua sponte raised the issue of whether the judgment should be vacated. While the court file does not clearly indicate this, the parties apparently believed that Associate Justice Marar had invited them to brief the issue of whether the action should be "dismissed" on the grounds of res judicata.
On August 16, 2001, Chuuk State filed a Motion to Dismiss Hartman v. Chuuk State. On August 30, 2001, The Rubens filed a "Memorandum of Law in Support of Court’s Sua Sponte Motion to Set Aside Judgment." On September 20, 2001, Chonsy filed her "Motion to Deny Dismissal and
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Memorandum of Brief [sic] in Support of Court Judgment." There is no evidence in the file that any hearing was ever held on the issues raised by these papers.
On April 3, 2002, apparently dissatisfied with the progress in the case, Plaintiff filed a "Motion for Vesting of Title and Civil Contempt of Court." Then at some time undisclosed by Justice Marar’s request, but prior to March 11, 2003, Associate Justice Marar made a written request of the Chief Justice to reassign the case.16 On March 11, 2003, Plaintiff made a formal request for reassignment of Civil Action No. 64-1998. No ruling had ever been made on the Motion to Dismiss.17 The case was reassigned, by order of the Chief Justice dated March 24, 2003, to the Court Attorney for the Chuuk State Supreme Court, sitting as Special Trial Justice pursuant to General Court Order 2-94.
On April 29, 2003, Chonsy moved to have Civil Action No. 64-1998 consolidated with Picho v. Hartmann, CSSC-CA-NO. 36-2000, and Ruben v. Hartmann, CSSC-CA-NO. 229-2000. By order of the Chief Justice dated and entered on July 8, 2003, the three cases were consolidated, and the consolidated cases were reassigned to this Court for further proceedings.
After a few false starts, a status conference was scheduled for August 1, 2003. Immediately prior to the status conference, the Court learned that Johnny Meippen, Esq., counsel for the Rubens, had accepted a position with the Office of the Attorney General of Chuuk State, a party defendant to two of the three consolidated actions. At the status conference, the Chuuk State Attorney General, Ready Johnny, Esq. agreed with the Court that Mr. Meippen would be disqualified as a matter of law from representing either the Rubens or Chuuk State, due to his prior representation of the Rubens, and due to the policy of the Office of the Attorney General, adopted pursuant to the provisions of Truk S.L. No. 3-34, § 21 and Chk. S.L. No. 6-22, §§ 1&2, which statutes clearly prohibit employees of Chuuk State from engaging in any outside employment not compatible with the discharge of the employee’s duties to the State. By order of the Court dated August 4, 2003, Attorney Meippen was declared disqualified and directed to immediately assist his former clients, the Rubens, in obtaining substitute counsel. A further status conference was set for September 5, 2003. On that date, Attorney Meippen appeared, and declared that he had not only not found substitute counsel for his private clients, but that he intended to continue to represent those clients and Chuuk State in the action. Attorney Meippen took the position that there was no conflict between the legal position of the Rubens and that of Chuuk State, and apparently also took the position that the policy of the Office of the Attorney General,18 and the statutes of the State of Chuuk prohibiting employees of the state from engaging in outside employment,19 simply did not apply to him. Immediately prior to the status conference, Mr. Meippen filed an "Affidavit of Counsel" purporting to assert that Chuuk State and the Rubens had both consented to his continued representation. The affidavit was clearly hearsay.
At this status conference, Attorney Meippen demanded that the Court immediately rule on the question of his right to continue representation of both parties, asserting that he had a right to appeal any such ruling. The Court, recognizing as Attorney Meippen apparently did not that it could not rule on such a matter in an unreported status conference, refused Mr. Meippen’s demand and set the matter
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for formal hearing on September 29, 2003. The Court required Mr. Meippen to file affidavits from his clients expressly consenting to his continued representation. In addition, the Court required Mr. Meippen to file an affidavit supporting his verbal assertion that his contract with Chuuk State permitted him to continue to represent private clients despite the express policy of the Office of the Attorney General and despite the express prohibitions against such outside employment contained in the laws of Chuuk State. The Court required that Mr. Meippen attach a copy of any such contract to his affidavit.
On September 18, 2003, Mr. Meippen filed his memorandum in support of his position, along with the affidavit of Attorney General Joses R. Gallen. He did not file an affidavit from the Rubens, nor did he file an affidavit regarding the terms of his contract with Chuuk State.20 The affidavit of Attorney General Gallen addressed the issues raised by Rules 1.11 and 1.7 of the Model Rules of Professional Conduct and waived that conflict. The affidavit did not address the written policy of the Office of the Attorney General or the express statutory prohibitions against outside employment of employees of Chuuk State.
Hearing was held as scheduled on September 29, 2003. Mr. Meippen argued forcefully in favor of his right to continue representation of the Rubens and of Chuuk State. The Court, after hearing Mr. Meippen’s argument, ruled from the bench that the Model Rules of Professional Conduct, the policy of the Office of the Attorney General, and specific statutory prohibitions required the Court to disqualify Mr. Meippen from acting as counsel for the Rubens or for Chuuk State in this matter. Following the Court’s verbal ruling and adjournment of the proceedings, Mr. Meippen continued to argue with the Court, demanding to know when a written order would issue, demanding a written order, and insisting he would appeal the ruling of the Court. It was only when court security suggested that he leave that Mr. Meippen discontinued his diatribe.
The Court issued a written ruling immediately following the hearing. In addition to the grounds set forth in the recorded report of the proceedings, the Court specifically found that
Mr. Meippen has failed to establish that any exception to the prohibition contained in CSL 3-43, § 21 applies, and further finds that permitting Mr. Meippen to represent either Chuuk State or Hersin and Moria Ruben would create an "adverse effect on the confidence of the public in the integrity of the government." CSL 3-43, § 21(f).
To the best of the Court’s knowledge, Mr. Meippen did not appeal the disqualification order.
A further status conference was scheduled for November 12, 2003. At that status conference, it became apparent to the Court that the Rubens were still unaware that Mr. Meippen had been disqualified from representing them in these cases, despite the provision in the order of disqualification requiring Mr. Meippen to "use all possible efforts over the next thirty (30) days to assist HERSIN RUBEN and MORIA RUBEN in finding new counsel to represent them in this matter." The Court was thus required to continue the matter once again in order to permit the Rubens to find replacement counsel. The consolidated cases were again scheduled for status conference on January 14, 2004.
On December 9, 2003, Stephen V. Finnen, Esq., of the Law Offices of Saimon & Associates, Pohnpei, filed his Notice of Appearance on behalf of the Rubens in these consolidated cases. At the
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status conference a briefing schedule was agreed to, and oral argument on Associate Justice Marar’s sua sponte motion to vacate the "default judgment," as well as any other motions brought by the parties pursuant to the briefing schedule, was set for February 18, 2004.
On January 28, 2004, trial counselor Ben Enlet, who had verbally informed the Court of his intention to represent Maikawa and his lineage of the Wito Clan in these cases, but who had never formally filed a Notice of Appearance, filed a motion to withdraw as counselor of record for these parties. He was in fact not counselor of record, the court file containing no record of his representation. On February 11, 2004, counselor Enlet filed a motion to intervene in these proceedings on behalf of Rokuro Stephen (Sitifen) and his lineage of the Wito Clan.21
In a timely manner the Rubens and Chonsy filed their respective papers in support of and in opposition to vacating the judgment entered in 1998. The Rubens in addition sought dismissal of the complaint, and summary judgment on the question of ownership of their part of Unupuku. Chonsy sought affirmation of the judgment.22 No lineage of the Wito Clan filed any motions or papers in support of or opposition to the motions of other parties. Oral argument was heard as scheduled, and the Court ruled orally from the bench that the judgment be vacated, and Plaintiff’s complaint be dismissed. The Court deferred any ruling on whether the Rubens were entitled to judgment on their complaint due to questions raised regarding a possible motion to intervene, which as indicated above had already been filed. On March 15, 2004, the Rubens filed their opposition to the motion to intervene. For reasons stated below, the motion to intervene must also be denied. This memorandum decision is intended to set forth the Court’s reasoning in granting the motion to vacate and the motion to dismiss, as well as the Court’s reasons for granting judgment on the question of ownership, and the Court’s reasons for declining to rule on the issue of whether Ben Enlet should be disqualified from representing any lineage of the Wito Clan in these proceedings.
A. The Judgment is Void and Must be Vacated.
The Rubens offer a multitude reasons why the "default judgment" should be vacated. Only one ground is needed, and that ground exists. The judgment must be vacated because the Chuuk State Supreme Court never had jurisdiction over this action to determine ownership of real property in the first place.
In her complaint Chonsy sought a declaratory judgment that she was the owner of Unupuku as heir to the rights of her father, Tiu Killion. At the hearing on the "default judgment" motion, Plaintiff testified that her father bought Unupuku in 1959, and was dispossessed of the land by Chuuk State in 1961.
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Despite being framed as a declaratory relief action, it is clear that what Plaintiff actually sought is a determination that her father had owned Unupuku in 1959, and that he continued to own the property thereafter, title and right to it having than passed to her by descent. Thus, the case sought a determination of ownership of land in Chuuk State lying within a land registration area. Only the Chuuk State Land Commission has jurisdiction to determine ownership of land within a land registration area. The following language from Barker v. Paul, 6 FSM Intrm. 473, 1 CSR 1 (Chk. S. Ct. App. 1994) determines this question:
Actions concerning the determination of land title rests [sic] primarily with the Chuuk State Land Commission (Commission). 67 TTC 101 et seq. That Commission is statutorily charged with the registration and determination of land ownership. 67 TTC 101. The Commission may also designate a registration area. 67 TTC 104. We take judicial notice that the island of Weno . . . [has] long been designated as a registration area.
Once the Land Commission has designated a registration area "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 the court is desirable . . . ." 67 TTC 105 [emphasis added]. Of course, any determination of the Commission may be appealed to the Trial Division of this Court. 67 TTC 115. If the Commission’s determination is not appealed it becomes final and conclusive. 67 TTC 117.
Barker, 6 FSM Intrm. at 475-76, 1 CSR at 3.
The land in question clearly lies in Weno, a Land Commission registration area. The action seeks a declaration that Chonsy is the owner of land in Weno, clearly an "action with regard to interests in land." Chonsy does not allege, nor can she prove, that the Land Commission referred the matter to the Trial Division for resolution, nor does she assert any "special cause" why the Trial Division should assert jurisdiction over this land claim. The Trial Division is statutorily deprived of jurisdiction over any action with regard to interests in land. 67 TTC 105.
The courts have a duty to examine issues regarding their jurisdiction. Barker, 6 FSM Intrm. at 475, 1 CSR at 2. Jurisdiction of the court may be raised at any time, even after judgment. Island Dev. Co. v. Yap, 9 FSM Intrm. 220, 222 (Yap 1999). Acts in excess of a court’s jurisdiction are void. See United Church of Crist v. Hamo, 4 FSM Intrm. 95, 122 (App. 1989). Thus, whether the Court rules on Associate Justice Marar’s sua sponte motion, or the Ruben’s motion seeking relief from the judgment pursuant to Chuuk Civil R. 60(b)(4), or whether the Court grants judgment in favor of the Rubens in Civil Action No. 229-2000 is actually immaterial. Under all theories, the judgment is in excess of the Court’s jurisdiction, therefore void, and must be vacated.
B. Hartman v. Chuuk State Must be Dismissed.
Rule 12(h)(3) of the Chuuk State Rules of Civil Procedure provides: "Whenever it appears by suggestion of the parties or otherwise that the Court lacks jurisdiction of the subject matter, the Court shall dismiss the action." The Court, having found that no jurisdiction over Hartman v. Chuuk State exists, has no choice but to dismiss the action.
Furthermore, the dismissal must be with prejudice, because Chonsy cannot under any theory state a claim for which relief can be granted. Any claim which Tiu Killion may have had to Unupuku ceased to exist when the time for appeal of the last Land Commission Determination of Ownership of Unupuku had run. At the latest, using the assumption that Tiu Killion may have been permitted to
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intervene in Echikar v. Erwin, Trust Territory Civil Action No. 95-81, the time for Tiu to have asserted his rights lapsed with the issuance of that opinion on February 2, 1982.
Chonsy seems to misapprehend the High Court ruling in that case. She contends that Echikar affirms the Certificate of Title issued in 1954, thus supporting her theory that the sale to Tiu, having occurred in 1959, was the last act in the chain of title. In fact, Echikar confirms the Determination of Ownership made by the Chuuk State Land Commission on January 12, 1981, based upon ownership proceedings commencing in January, 1977, almost eighteen years after Tiu purportedly purchased Unupuku.
Chonsy offers no evidence of irregularity in the Land Commission proceedings, no evidence that her father was deprived in some way of participating in the proceedings. To the contrary, documents submitted by the Rubens establish that the Land Commission followed all statutory requirements regarding notice of the proceedings involving Unupuku. Any action taken thereafter must be conclusively presumed valid.
Properly issued certificates of title are by statute prima facie evidence of the ownership stated therein as against the whole world. The Court is "required to attach a presumption of correctness to them." Stephen v. Chuuk, 11 FSM Intrm. 36, 41 (Chk. S. Ct. Tr. 2002); Marcus v. Truk Trading Corp., 11 FSM Intrm. 152, 159 (Chk. 2002). The Certificate of Title issued in favor of the lineage of the Wito Clan headed by Erwin Tima on July 15, 1981 is conclusively presumed to be valid against any subsequent challenge. Whether or not he had a valid claim of ownership arising out of his alleged purchase in 1959, Tiu Killion lost any claim he may have had to Unupuku by failing to raise the claim or perfect his interest prior to the issuance of the aforesaid Certificate of Title.
Even if the Court were to dismiss Chonsy’s claim without prejudice, she clearly could not renew it.23 The statute of limitations on an action to recover land or an interest therein is twenty (20) years. 6 TTC 302(b). More than twenty years have passed since the Certificate of Title in favor of Erwin was issued, and more than 20 years have passed since the decision in Echikar v. Erwin. Any subsequent attempt to litigate the ownership of Unupuku is barred by the statute of limitations.
C. Judgments for Plaintiffs in 36-2000 and 229-2000.
The Rubens in their complaint (CA-NO. 229-2000) seek a judgment quieting title, as against Chonsy (and Samuel Hartman) only, to the part of Unupuku they purportedly purchased from the lineage of the Wito Clan headed by Maikawa in 1997, as evidenced by the Certificate of Title issued on April 8, 1999. They do not seek judgment against any lineage of the Wito Clan. Since the claim of Chonsy and others claiming by or through her is barred, the Rubens are entitled to judgment against Defendants Chonsy and Samuel Hartman in Civil Action No. 229-2000.
The same is true for the lineage of the Wito Clan headed by Maikawa. Their complaint, while seeking damages as well as ejectment, principally seeks to have the judgment in Civil Action No. 64-1998 vacated and their Certificate of Title dated July 15, 1981 affirmed. Since the lineage of the Wito Clan headed by Maikawa makes no claim against the Rubens in Civil Action No. 36-2000, and since Chuuk State does not assert any interest in Unupuku, this lineage of the Wito Clan is clearly entitled to judgment on their claim against both Chonsy and Chuuk State.
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Since it is clear to the Court that no monetary damages were suffered by the Plaintiff in Civil Action No. 36-2000, and since there is no statute by which the Court could order the payment of attorneys fees in this action, the Court finds in favor of Chonsy on the claims for damage asserted in Civil Action No. 36-2000.
The issue is much more problematic, however, with regard to claims which the lineage of the Wito Clan headed by Rokuro Stephen (Sitifen) may have against the lineage headed by Maikawa.
D. The Purported Sale to the Rubens.
The law of Chuuk State provides that lineage land is owned by the matrilineal members of the lineage. Chipuelong v. Chuuk, 6 FSM Intrm. 188, 197 (Chk. S. Ct. Tr. 1993). Lineage land may only be transferred with the consent of the lineage, and since the land is owned by the matrilineal members of the lineage, their consent is necessary. Id. at 196. Thus, the purported sale of a part of Unupuku is only valid if the female members of the proper lineage of the Wito Clan of Iras surviving as of the date of sale actually consented to the sale.24 See also Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 389 (Chk. 2001).
The Court has before it the affidavit of Rokuro Stephen (Sitifen), filed with the motion to intervene brought by counselor Ben Enlet on behalf of certain purported members of the Wito Clan of Iras. That affidavit states that the sale of part of Unupuku to the Rubens was not consented to by certain adult male and female members of the Wito Clan. The Rubens and Maikawa contend, on the other hand, that a valid sale of part of Unupuku took place in 1997, and attach a document of sale with six signatures. The affidavit of Rokuro lists at least seven adult members of a lineage claiming to be owners of Unupuku. Thus, in the Court’s mind, a question of fact exists regarding the validity of the purported sale of part of Unupuku by Maikawa and the other signatories to the document of sale.
The Court has no evidence before it from which it can conclude that the Land Commission was aware of this apparent dispute at the time it issued the Certificate of Title to the Rubens. The Court has no evidence from which it can conclude that the issuance of the Certificate of Title to the Rubens followed the procedures set forth in the Trust Territory Code intended to give proper notice to other claimants, including all members of the Wito Clan of Iras, before issuing the new Certificate of Title. Thus, issues of fact exist which preclude the Court from confirming ownership of a part of Unupuku by the Rubens as represented by their new Certificate of Title.
It may be that Maikawa is the male head of the lineage of the Wito Clan of Iras which succeeded Erwin. The Certificate of Title issued on July 15, 1981 provides that Unupuku belonged to "the lineage of the Wito clan of Iras now headed by Erwin Tima." The Wito Clan is a large clan, with possibly many lineages headed by different individuals. Rokuro may be the head of an entirely different lineage of the Wito Clan of Iras, with no claim of ownership to the property in question.
As stated above, questions regarding interests in land must be raised before the Land Commission. This Court has no jurisdiction to hear or decide such claims. To the extent that the lineage of the Wito Clan headed by Rokuro claims an interest in Unupuku, it must assert that claim
[12 FSM Intrm. 402]
before the Land Commission. This Court can only refer the matter to the Land Commission, so that the Land Commission can resolve this apparent dispute.25 See Simina v. Rayphand, 9 FSM Intrm. 508, 509 (Chk. S. Ct. Tr. 2000); Choisa v. Osia, 8 FSM Intrm. 567, 567-68 (Chk. S. Ct. Tr. 1998).
E. The Motion to Intervene Must be Denied.
The motion of Rokuro to intervene in these consolidated cases was accompanied solely by Rokuro’s affidavit. There was no pleading accompanying the motion which would put any party to these proceedings on notice that they were subject to a claim by Rokuro or those whom he claims to represent. The Rules of Civil procedure require that "The motion . . . shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." Chk. Civ. R. 24(c). Absent such a pleading, the motion is improper, and must be denied.
This is not the only reason for denial of the motion. Not only must proper procedures be followed in seeking intervention, any motion to intervene must also be timely. Chk. Civ. R. 24(a). Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 88 (App. 1999). Timeliness must be decided on the facts presented, and depends on four factors: (1) how long the applicant knew or should have known of his interest before making the motion; (2) the prejudice to other parties should the motion be granted; (3) prejudice to the applicant if the motion is denied; and (4) any other factors militating for or against timeliness. Id.
All of these factors guide the Court to a finding that the motion is not timely. The Court does not find it reasonable that Rokuro and those he claims to represent just recently learned that Maikawa had sold a portion of Unupuku to the Rubens. In fact, they claim that other portions of Unupuku have been sold by Maikawa, a fact previously unknown to the Court. These cases involving Unupuku have been proceeding, slowly and fitfully, since the spring of 1998, six years ago. Maikawa alleges that he filed a motion to intervene in Civil Action No. 64-1998 in 1999, and his action was filed early in 2000. While the Wito Clan may be large, it is not so large that members of the Clan are unaware of what is going on around them, especially with regard to land, which is such an all consuming passion of the people of Chuuk.
The Court further believes that the parties will suffer prejudice if intervention is permitted. The Court has, in this decision, disposed of all issues raised by all current parties to this litigation. Having new issues presented at this point in the litigation, six years after the first case was filed, would not serve the ends of justice and would interfere with the rights of the parties to a final resolution of their dispute.
Finally, it is clear that Rokuro and those he represents will not prejudiced at all. They may pursue their claims before the Land Commission. They may challenge any purported sale of the land they claim as improper, and obtain a Land Commission determination of their claims.
Enough judicial resources have been spent on these cases. The Court finds that the motion to intervene was not timely, and must be denied on that ground as well.
[12 FSM Intrm. 403]
The procedural history and legal analysis set forth above take up twenty-seven pages, double spaced. None of the time and effort expended in writing this opinion ) indeed none of the time and effort of the parties expended in getting to this point in these cases ) need have been expended.
The Office of the Attorney General of Chuuk State had all of the information necessary to end this litigation available to it in the spring of 1998. The attorneys and trial counselors in that office had the Certificate of Title issued on July 15, 1981 to "the lineage of the Wito Clan of Iras headed by Erwin Tima" among the records of the Land Commission. They had the decisions in Echikar v. Erwin and Terry v. Souleng among the public records of the Chuuk State Supreme Court. They had sufficient knowledge of land procedures in Chuuk State to have moved to dismiss Civil Action No. 64-1998 on jurisdictional grounds in April of 1998, and they had the decision of Associate Justice Marar in Barker v. Paul to support the argument against jurisdiction. Instead they did nothing, other than to object that a default judgment could not be entered without a prove-up hearing. Even after being given an opportunity to appear and be heard at the Rule 55(e) hearing, they did nothing, offered no evidence or argument against a judgment, despite the clear defenses available to them.
Chonsy also had the records of the Land Commission available to her. She retained counsel who no doubt assured her that he had the competence to act on her behalf. Mr. Wiliander has been a practicing trial counselor in Chuuk State for many years, and is presumed to know the laws regarding land disputes, and the jurisdiction of this Court. The Court finds it reasonable to conclude that Mr. Wiliander filed the action as a declaratory relief action in order to mislead the Court as to the true nature of the claim ) one seeking a determination of ownership in land, an issue solely to be decided by the Land Commission.
No fewer than ten (10) attorneys and trial counselors appeared on behalf of various parties to this dispute. Each and every one of them failed in some manner to follow the Rules of Procedure and/or the Rules of Professional Conduct. The Court will comment on only two of them, not necessarily to single them out, but because they are both members of the FSM Bar as well as the Chuuk State Bar, and are attorneys with significant practice experience who should be held to a higher standard than the trial counselors who are less well trained in the law.
Mr. Simina’s role was admittedly small, but his involvement was in direct violation of the Model Rules of Professional Conduct. He acted first as Attorney General on behalf of Chuuk State, and then after leaving the Office of Attorney General took up the representation of Chonsy against Chuuk State, threatening officers and employees of the State with contempt of court, despite the fact that he had a personal hand in effecting the release of government land to the Rubens. Mr. Simina has been a practitioner in Chuuk State for years, has been Legislative Counsel and Attorney General, and has been involved in many of the cases in Chuuk where jurisdictional issues and land issues such as those presented here were argued and decided. He knows very well the Rules of Professional Conduct, and has cited them from time to time, even against this Court sitting in another matter.
Mr. Meippen has also been a practitioner in Chuuk State for a number of years. He also is aware of the Rules of Professional Conduct, and is presumed to know the laws of Chuuk State. He knew of the written policy of the Office of the Attorney General, and must have understood that his continued representation of the Rubens, and his representation of Chuuk State in the same matter, was barred by law and policy. His actions leave this Court with the opinion that Mr. Meippen actually believes that the law does not apply to him. In the opinion of this Court, Mr. Meippen’s actions on and after August 4, 2003 were in a word disrespectful. Other words come to mind as well.
[12 FSM Intrm. 404]
The Court is certain that Associate Justice Marar wishes he had been more attentive, and had recognized earlier than the spring of 2001 that he did not have jurisdiction over Hartman v. Chuuk State. The Court is certain that Associate Justice Marar in hindsight wishes he had granted his sua sponte motion to vacate his judgment and dismiss the complaint due to lack of jurisdiction. That he was not and did not is unfortunate, but understandable. The Justices of the Chuuk State Supreme Court depend in large part on the parties who bring cases before them. They are busy, and quite often without legal counsel of their own. Judges sometimes make mistakes, but mistakes such as these are not made without the failure of the attorneys and trial counselors who appear before the Courts to follow the Rules of Procedure and the laws of Chuuk State.
All legal issues and factual issues having been disposed of, the Court can now rule on the issues raised in these consolidated cases.
Now therefore, for the reasons stated above, and good cause appearing,
It is hereby ordered, adjudged and decreed as follows:
1. The judgment in Hartman v. Chuuk State, CSSC-CA-NO. 64-1998 is hereby vacated;
2. Hartman v. Chuuk State, CSSC-CA-NO. 64-1998 is hereby dismissed with prejudice;
3. Intervenors/Plaintiffs Ruben are granted judgment against Chonsy and Samuel Hartman regarding their conflicting claims to that part of Unupuku referred to in that Certificate of Title issued by the Land Commission in favor of the Rubens on April 8, 1999 as document number 4919;
4. The lineage of the Wito Clan of Iras headed by Maikawa Picho is granted judgment against Chonsy Hartman, and those claiming by or through her, to that land commonly known as Unupuku, and every part thereof, and the Court conclusively determines that the Certificate of Title issued to "the lineage of the Wito clan of Iras headed by Erwin Tima" on July 15, 1981 precludes now and forever any claim by Chonsy Hartman to ownership of that land known as Unupuku;
5. No proof of monetary damages having been made, no monetary damages shall be awarded against Chonsy Hartman or Chuuk State in Civil Action No. 36-2000;
6. The motion to intervene brought by Rokuro Stephen (Sitifen) on behalf of certain members of the Wito Clan of Iras is denied with prejudice;
7. Any and all further proceedings, if any there are, regarding claims to any portion of the land commonly known as Unupuku must be brought before the Chuuk State Land Commission;
8. The parties shall each bear their own fees and costs.
Let Judgment issue accordingly.
It is so ordered.
* * * *
1. Associate Justice Keske S. Marar recused himself and requested reassignment of Hartman v. Chuuk State, CSSC-CA-NO. 64-1998 due to what Associate Justice Marar considered improper conduct by one of the parties. Prior to recusing himself, Associate Justice Marar raised sua sponte the issue of the propriety of the default judgment entered in that case, and ordered briefing on whether the default judgment should be set aside.
2. The parties, after being initially identified, will be referred to hereafter as: Plaintiff Hartman as "Chonsy;" Intervenors/Plaintiffs Ruben as "the Rubens;" Plaintiff Maikawa Picho as "Maikawa;" The Wito Clan of Iras as "the Wito Clan." Chuuk State shall be so called.
3. The Court adopts the spelling contained in the original complaint, although in subsequent papers filed in this case Plaintiff’s father’s last name is sometimes spelled "Kiniol." See, e.g., Plaintiff’s "Motion to Deny Setting Aside of Judgment, etc.," filed on February 11, 2004.
4. According to documents in the file, Tiu Killion passed away on a date not set forth sometime after 1995.
5. A comparison of the signatures on the complaint and the Motion for Entry of Default seems to establish that the motion for default was not in fact signed by the same individual who signed the complaint.
6. Perhaps the confusion was created by Plaintiff, who sought entry of default by motion, rather than by request. No motion is necessary for entry of default, whereas a motion is necessary for entry of a judgment by default. Chk. Civ. R. 55(b)(2).
7. The file contains no such motion. The Court may have viewed the Motion for Entry of Default as a Motion for Entry of Default Judgment pursuant to Chuuk Civil Rule 55(b)(2). Since there was no entry of default, there could not really have been any hearing on a request for a default judgment. It has been held that entry of a default judgment is a two step process, requiring the entry of default before a default judgment can be entered. Poll v. Paul, 6 FSM Intrm. 324, 325 (Pon. 1994).
8. The rules of appellate procedure require that a Notice of Appeal be filed with the Clerk of the Court of the Trial Division not later than 30 days after entry of judgment. Chk. App. R. 3(a) and 4(a)(1). In this case, the Notice of Appeal should have been filed not later than September 19, 1998. Since the "Certification of Records" is dated February 10, 1999, it is not unreasonable to assume that the Rules of Appellate Procedure were not complied with, and that the appeal was dismissed for failure to comply with the rules.
9. As documents filed by the Rubens clearly demonstrate, Mr. Simina was the Attorney General when then Governor Umwech signed the original "Release of Private Property" in favor of Moria Ruben, and in fact signed the release as Attorney General. The Rules of Professional Conduct clearly bar Mr. Simina from representing the Plaintiff.
10. Allegations in paragraph 14 of the First Amended Complaint in Picho v. Hartman, CSSC-CA-NO. 36-2000 state that Maikawa’s lineage of the Wito Clan also made a motion to intervene, and that both motions were denied by Associate Justice Marar on January 14, 2000. If such a ruling was made, it was never reduced to writing and included in the court file. It is difficult to understand how such a motion (or motions) could have been granted, given that judgment was entered on August 20, 1998, almost a full year prior to the filing of the Motion to Intervene.
11. Since the late Associate Justice Simina was the father of Wesley Simina, Esq., then attorney for Plaintiff, he would have been disqualified from acting as a trial justice in Civil Action No. 64-1998. See Chk. S.L. No. 190-08, § 22(2)(d)(ii).
12. Associate Justice Marar must have been unaware that Mr. Simina had been substituted out of the action, apparently believing that Mr. Hartmann had appeared as co-counsel.
13. The same "Maikawa" addressed in Associate Justice Simina’s Order, and the same individual as the "Maikawa Souleng" who was successful in getting Terry v. Souleng, CSSC-CA-NO. 150-91 dismissed on grounds of res judicata. See infra p. 395.
14. Mercifully, no significant action took place in either of these separate actions prior to their consolidation with Civil Action No. 64-1998.
15. Copies of this Certificate of Title appear in the court file. The Court assumes that the original of this document was available to the Office of the Attorney General in the spring of 1998, when the opposition to the default judgment was made by that office. The original may no longer be available, due to the destruction of Land Commission records in the recent fire at the Land Commission.
16. See note 1, above at page 392.
17. Properly a motion to vacate the judgment of August 20, 1998.
18. This policy was set forth in writing by the Attorney General at the request of the Court, in a letter dated August 1, 2003. The letter is in the court file.
19. See Truk S.L. No. 3-34, § 21 and Chk. S.L. No. 6-22, §§ 1&2.
20. If the Court’s recollection is correct (the record of the proceedings can determine whether it is), Mr. Meippen represented at the hearing on September 29, 2003 that he did not in fact have a signed written contract with Chuuk State as of that date.
21. Unfortunately, neither the Court nor counsel for the Rubens was aware of this motion to intervene until after oral argument was heard, and the Court’s oral ruling on the other motions before Court was made on February 18, 2004. The delay in transmitting the motion to intervene to the Court must be attributed to systemic problems within the Office of the Clerk of Courts. The delay in providing notice to counsel for the Rubens must be attributed solely to the manner of service employed by counselor Enlet.
22. Counsel for Plaintiff, despite the clear direction provided in the scheduling order, failed to follow the Court’s direction, thus depriving the Rubens of the opportunity to file a reply to Plaintiff’s papers. Due to the ruling of the Court, the Rubens suffered no prejudice as a result of this failure.
23. Because these reasons sufficiently address the question, the Court does not need to address the other issues raised by the Rubens precluding relitigation, such as laches, adverse possession, or the res judicata effect of the Certificate of Title and Echikar v. Erwin.
24. There is some recent authority which asserts that all adult members of a lineage must consent to the sale of lineage land. Marcus v. Truk Trading Corp., 11 FSM Intrm. 152, 159 (Chk. 2002). Thus whether only adult female members must consent, Chipuelong, 6 FSM Intrm. at 197, or all adult members, male and female alike, may be a question of law which must be determined before determining whether the purported sale to the Rubens was validly concluded.
25. The motion to intervene asserts that other portions of Unupuku were sold by Maikawa. This issue may also be raised by the lineage of the Wito Clan headed by Rokuro if he decides to proceed before the Land Commission.