7 FSM Intrm. 581-591

A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material issue and the moving party is entitled to judgment as a matter of law. The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

When reviewing the grant of a motion to dismiss the appellate court must take as true the facts alleged and view them and their reasonable inferences in the light most favorable to the party opposing the dismissal. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

A motion to dismiss should not be granted unless it appears to a certainty that no relief could be granted under any state of facts that can be proved in support of the claim. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

Once a judgment has been issued and the time to appeal has expired, or the decision was affirmed on appeal, the parties are precluded from challenging that judgment or litigating any issue that was or could have been raised in that action. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

Even when an individual brings suit in a different capacity res judicata still bars the suit where the right sought to be enforced was necessarily litigated in an earlier proceeding so that entertaining the latter contention would in substance be a relitigation of the matter. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586-87 (App. 1996).

Even if a party is not collaterally estopped from relitigating a different issue between parties to a prior judgment, res judicata will still bar relitigation of those claims that might have been raised and adjudged in the first action. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 587 (App. 1996).

On Pohnpei, German land deeds were issued only for land taken from the Nahnmwarkis and distributed to ethnic Pohnpeians. The lack of a German land deed for land acquired in another way and thus not subject to German deeds is not an infirmity of title. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 588 (App. 1996).

Because whatever vestigial authority the Trust Territory or the United States may have had after May 10, 1979, disappeared on November 3, 1986, when the Federated States of Micronesia became independent, governmental conduct after that date is not attributable to the United States or to the Trust Territory. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 591 (App. 1996).

The Appellant, a traditional Pohnpeian leader, brought an action for monetary damages in the Pohnpei trial division against various defendants, alleging the loss of possession and use of three parcels of land in Nett Municipality. The trial court granted the Pohnpei Public Lands Authority Board of Trustees and the Etscheits summary judgment, and dismissed the complaint against the United States of America.

This opinion requires application of the doctrines of res judicata and the passage of time as a bar to suit, as well as examination of whether the parcels became "public land." We affirm the trial court's judgment as to the parcels, and affirm the dismissal of the claims against the United States of America.

Salvador Iriarte, the Iso Nahnken of Nett, brought suit against the United States, the Pohnpei Public Lands Authority Board of Trustees, ("The Board") and members of the Etscheit family, seeking $50,000,000 in damages. The United States was sued as the former authority administering the Trust Territory of Pacific Islands. The United States was alleged to have breached its duty to protect indigenous persons by transferring title to three parcels of land the Iso Nahnken claimed he owned and

The Board is the entity entrusted with all right, title, and interest to public lands in Pohnpei State. The Board allegedly breached its duty to hold and administer the three parcels by failing to return them to the plaintiff. The Etscheits were sued as claiming title to the three parcels.1

The trial court granted summary judgment to all the defendants except the United States. The trial court dismissed the amended complaint against the United States for failure to state a claim upon which relief may be granted. The trial court held that a prior final judgment by the Trust Territory High Court barred the Iso Nahnken's claim as to Mpomp by application of the doctrine of res judicata.

The trial court also held that the Iso Nahnken's claims relating to Sapwetik and Taketik were barred by application of the doctrine of laches, on a finding that Iso Nahnken was aware of the Etscheits' interest in the parcels in 1978 and failed to file suit until 1993. The Board was granted summary judgment on a finding that none of the parcels were public lands. The trial court noted several different grounds by which the claims against the United States would be dismissed.

4. Was the trial court correct in granting summary judgment on a finding that the Iso Nahnken's claim to the fifteen acres of Taketik in which he claimed an interest was barred by laches? We conclude that the trial court's finding of a time bar was warranted, but rule on the statute of limitations.

judgment as that employed by a trial court under Rule 56. Tafunsak v. Kosrae, 7 FSM Intrm. 344, 347 (App. 1995). A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994). The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. Id.

The claims against the United States were decided on a motion to dismiss. The standard of review of an order granting a motion to dismiss is different than that of an order granting a motion for summary judgment. The facts alleged in the claim sought to be dismissed are taken as true, and the facts and their reasonable inferences must be viewed in the light most favorable to the party opposing the motion to dismiss. Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 267 (Pon. 1986). A motion to dismiss should not be granted unless it appears to a certainty that no relief could be granted under any state of facts that can be proved in support of the claim. Id.

Mpomp has been the subject of litigation since the earliest days of foreign administration of Pohnpei. The historic circumstances of the Mpomp parcel were amply described both in the trial record and by the parties on appeal. Counsel argued that various historic events and decisions were either important or insignificant. Although the history of Mpomp is intriguing, we need go back in time no further than the judgment entered and affirmed by the Trust Territory High Court, in Nahnmwarki v. Etscheit Family, 8 TTR 287, 289 (App. 1982). That judgment, against the Nahnmwarki and the Iso Nahnken, the traditional leaders of Nett, and in favor of the Etscheit family, is conclusive and bars relitigation of the Iso Nahnken's claims to Mpomp, by application of the doctrine of res judicata.

Res judicata is a fundamental principle of common law. Once a judgment has been issued and the time to appeal the decision has expired or the decision is affirmed on appeal, the parties are precluded from challenging that judgment or litigating any issue that was or could have been raised in that action. United Church of Christ v. Hamo, 4 FSM Intrm. 95, 106 (App. 1989). We apply the doctrine of res judicata to uphold and enforce Trust Territory High Court decisions. Id. at 107.

The Iso Nahnken argues that application of the doctrine of res judicata is not proper because he appeared before the FSM Supreme Court in a capacity different from that in which he appeared before the Trust Territory High Court. By stipulation of counsel, the case before the Trust Territory High Court resolved itself into a quiet title action, among the Etscheit family and the Nahnken and Nahnmwarki of Nett, to determine ownership of Mpomp, as confined within boundaries of a land commission sketch. Nahnmwarki v. Etscheit Family, 8 TTR at 289; In re Etscheit's Estate, No. 142-78 (Trust Terr. High Ct. Pon. Aug. 26, 1980) (pretrial order). The Iso Nahnken argues that he appeared as an individual in the Trust Territory High Court trial and appeal. In the FSM Supreme Court action, the Iso Nahnken claims he is the "owner and administrator of all lands in Nett Municipality that are traditionally owned by the Iso Nahnken . . . in accordance with the customs and traditions of Nett." The Iso Nahnken thus concludes that because he brought suit in a different capacity than he did before the Trust Territory High Court, the prior quiet title judgment does not bar his present claims for damages.

The principle of res judicata is subject to exceptions. Hamo, 4 FSM Intrm. at 107. There are no reported decisions in the FSM that consider an exception to the application of the doctrine of res judicata based on a party's proceeding in a subsequent suit in a "different capacity." Accordingly, we

Where a person brings an action or is sued in his individual right, a judgment rendered for or against him is not operative under the doctrine of res judicata in a subsequent action brought by or against the same person in a representative capacity. . . . These rules have been denied application, however, where a party to one action in his individual capacity and to another in his representative capacity is in each case asserting or protecting his individual rights.

Even if he appeared in his individual capacity before the Trust Territory High Court, the Iso Nahnken asserted the same traditional ownership right to Mpomp as he asserts in the present action. He states that he holds a traditional title and the powers and responsibilities inherent in such title, including the right to hold and administer lands owned traditionally by the Iso Nahnken. The Iso Nahnken's traditional powers have not changed since the Trust Territory judgment. His claim to title in the Trust Territory High Court case, and his claim to damages for loss of title in the FSM Supreme Court case, are based on the same traditional powers and responsibilities he claims he alone holds as Iso Nahnken. Because he asserts the same individual right in both cases, the "different capacity" exception does not apply. By application of the doctrine of res judicata, the Iso Nahnken's claims for damages as to Mpomp are barred.

The "different capacity" exception does not bar application of res judicata where the right sought to be enforced necessarily was litigated in the former proceeding, so that entertaining the latter contention would in substance amount to a relitigation of the matter. 46 Am. Jur. 2d Judgments § 528, at 679 (1969); H.D. Warren, Annotation, Judgment For or Against Person in Fiduciary Capacity as Res Judicata For or Against Him in His Individual or a Different Fiduciary Capacity, or Vice Versa, 170 A.L.R. 1180, 1185 (1947). In order to vindicate his claim for damages in the present action for loss of possession and use of his traditionally owned lands in Mpomp, the Iso Nahnken would have us overturn a judgment previously rendered, that title to Mpomp is held by the Etscheits. It was on this very issue that the trial court barred relitigation of the Trust Territory High Court judgment. We affirm the application of the doctrine of res judicata to bar the Iso Nahnken's claims to any rights in Mpomp, which necessarily includes his claim for recovery of monetary damages.

The Appellant also asserts he is not collaterally estopped from relitigating his claim to Mpomp because he now claims damages for taking his land. While this assertion necessarily entails adoption of his argument as to "different capacity," it may also result from a misunderstanding of the nature of collateral estoppel. Even if a party is not collaterally estopped from relitigating a different issue between the same parties to a prior judgment, res judicata will still bar relitigation of those claims that might have been raised and adjudged in the first action. See Berman v. FSM Supreme Court, 7 FSM Intrm. 11, 16 (App. 1995). Even though the Iso Nahnken did not claim damages in the Trust Territory High Court case, application of res judicata bars all claims the Iso Nahnken could have raised before the Trust Territory High Court.

The Appellant raised other exceptions to application of the doctrine of res judicata. We have considered them in light of his counsel's concession of those points at oral argument, and find them without merit. Likewise, the Appellant's seventh issue on appeal attacks the trial court's failure to include indispensable parties. The issue was raised before the Trust Territory High Court Appellate Division. Etscheit Family, 8 TTR at 289. This Court does not sit in review of Trust Territory High Court decisions. Res judicata bars relitigation of the issue of indispensable parties to the 1982 judgment.

The Appellant's next issue on appeal went to the trial court's determination that the three parcels were not public land. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 521 (Pon. 1994). The Appellant attacks the trial court's conclusions regarding the 1903 German deed, the taking by the Japanese administration before the Second World War, and the 1956 Memorandum of Understanding between the Trust Territory Government and the Etscheits. The trial court was correct in rejecting the Iso Nahnken's assertion that the parcels became public lands in the manner asserted.

Regardless of the conclusion as to Mpomp, the same analysis applies to all three parcels. Arguing that no German deed had issued, the Iso Nahnken asserts that the interest purchased by the Etscheits' predecessors in the 1903 auction was not through a sale by the German government. But German deeds issued only to land taken from the Nahnmwarkis and distributed to ethnic Pohnpeians. The Etscheits' interest was purchased as part of the estate of Kubary, who obtained his interest privately from the Nahnmwarki of Nett. The parcels were not subject to German deeds. Etscheit v. Adams, 6 FSM Intrm. 365, 374-75 (Pon. 1994). This conclusion as to all three parcels corresponds with the Trust Territory High Court's conclusion about one of the three, Mpomp. Certainly an infirmity of the nature that the Appellant proposes as to one parcel would affect the validity of all three.

Second, the Iso Nahnken insists that because the Japanese government held the parcels from just before the Second World War, the parcels converted to public land during American administration of the Trust Territory. This argument corresponds with one definition of "public land" found in the Trust Territory Code. 67 TTC 1. But the trial court concluded correctly that title to Mpomp never passed to the Japanese government, holding that the parcels were held as a result of a forced sale made under duress. M.C. Dransfield, Annotation, Ratification of Contract Voidable for Duress, 77 A.L.R.2d 426 (1961). Since freedom of will is essential to the validity of a contract, an agreement obtained by duress, coercion, or intimidation is invalid. 17A Am. Jur. 2d Contracts § 234, at 237 (1991). The same conclusion applies to the two remaining parcels. Title to Sapwetik and Taketik never passed to the Japanese government. They did not become public land during the Trust Territory period as a result of being held by the Japanese government during its administration of Pohnpei.

Finally, the Appellant attacks the validity of the 1956 Memorandum of Understanding, by which the Trust Territory released to the Etscheits its interest in Mpomp, Sapwetik, and Taketik. The Appellant points out that by its terms, the 1956 Memorandum of Understanding was required to be approved by the U.S. Secretary of the Interior. The Appellant argues there is no evidence that the Secretary actually approved the 1956 Memorandum of Understanding. While it is not clear how such failure of proof would result in the land reverting to public ownership, there is evidence that the Secretary of the Interior approved the 1956 Memorandum of Understanding. The existence of the

1957 Quitclaim Deeds is evidence, by inference, that both parties to the 1956 Memorandum of Understanding fulfilled their respective conditions precedent, such as payment of a substantial sum by the Etscheits, and approval by the Secretary on the part of the Trust Territory. A contract, apart from its contents, is evidence of the existence of an agreement between the parties. The Appellant put forward no evidence to contradict this inference, and attempted to defeat summary judgment on this point by argument alone. But argument alone does not create a disputed fact. See FSM Civ. R. 56(e). We therefore find no error in the trial court's conclusion and holding that the parcels did not become public lands by the method the Iso Nahnken proposed.

The Appellant claims he had no notice of the Pohnpei Land Commission's hearings and the determination of ownership of Sapwetik. Even if this assertion were true, we would still affirm the trial court's ruling. The Iso Nahnken's claim rests on his characterization of Sapwetik as public land, for which he claimed the traditional rights of ownership. We affirm the trial court's finding that Sapwetik was not public land. By his own claim of traditional authority, the Iso Nahnken has no claim, because Sapwetik is not public land. Without a claim to the land in question, there is no right to notice of any land commission proceeding or finding. Likewise, while the record indicates that the Iso Nahnken participated in the Preliminary Inquiry and Formal Hearing ) a participation he assiduously denied on appeal ) his presence does not alone establish a right to notice where none existed. We find no error here.

The Iso Nahnken claims that he has similar traditional rights of ownership to the island of Taketik. The trial court ruled that the Iso Nahnken's claims to Taketik were barred by the passage of time through application of the doctrine of laches. The trial court charged the Iso Nahnken with notice in December 1978, pursuant to a pre-trial order in the Trust Territory High Court case, of the 1956 Memorandum of Understanding and the 1957 Quitclaim Deeds for Mpomp, Sapwetik, and Taketik. The trial court then ruled that by waiting until 1993 to file this suit, the Iso Nahnken's claims to Taketik were barred by laches.

We agree with the finding that the Iso Nahnken's claims to Taketik are barred by the passage of time. But we affirm on the statute of limitations rather than on application of the doctrine of laches. We may affirm the decision reached by the trial court on other grounds. See 5 Am. Jur. 2d Appeal and Error § 785, at 227 (1962).

Since the parties on appeal and the trial court focused on Mpomp, a brief examination of the recent history of Taketik is warranted. By the 1957 Quitclaim, the Trust Territory deeded back what interest it held in Taketik to the Etscheits. In 1970, the Trust Territory took Taketik by eminent domain to build Pohnpei's airport and seaport, and by the early 1970's regular air service used the airport on Taketik. In 1979, the Trust Territory quit its claim to all public land in the Ponape District, to the Ponape District Public Lands Authority ("PLA"), the statutory predecessor to the Board. But the 1979 Quitclaim did not transfer those lands which were maintained for active use for a public purpose by the Trust Territory or any succeeding governments. The 1979 Quitclaim Deed explicitly excepted Taketik from transfer to the PLA. In 1989, in settlement of threatened litigation, the FSM national government and Pohnpei State deeded back to the Etscheits the fifteen acres of Taketik.

The plaintiff's well-pleaded amended complaint makes this an action for monetary damages only. The Appellate Division has previously held in this case that in his complaint the Iso Nahnken sought only monetary damages. Nahnken of Nett v. Trial Division, 6 FSM Intrm. 339, 340 (App. 1994). His

amended complaint, filed on May 11, 1994, has an identical prayer, for monetary damages only. This is not an action for the recovery of land or an interest in land. The twenty-year statute of limitation in 6 F.S.M.C. 802(1)(b) does not apply. In the absence of another applicable statute, the six-year limitation in 6 F.S.M.C. 805 applies.

There is no disputed issue of material fact on when the Iso Nahnken was notified that there was an adverse claim to Taketik. The trial court charged, and the Iso Nahnken at no point denied, that he had notice, in December 1978, of documents showing there was a claim to Taketik adverse to his asserted traditional rights. The trial court would have been warranted in finding, as we now do, that the Iso Nahnken was on constructive notice of an adverse claim to Taketik before 1978, when the island was developed as Pohnpei's airport in the early 1970's.

At the very latest, the Iso Nahnken was on notice of an adverse claim to Taketik in December, 1978. He had six years, until 1984, to file an action for monetary damages for loss of the use of Taketik. But he did nothing for an additional eight and a half years, until he filed his complaint on May 14, 1993. We find no significance in the fact that several successive parties ) the Etscheits, the Trust Territory, the FSM ) claimed the same interest in Taketik adverse to the Iso Nahnken. As a general rule, the statute of limitations may be invoked by a successor in right. 53 C.J.S. Limitations of Actions § 18 (1948). The right to Taketik held by the Trust Territory in the 1970's passed to the FSM as successor government, and then to the Etscheits in 1989, was the same right. Each may assert the statute of limitations.

Likewise, we find no significance on the lack of notice to the Iso Nahnken of the 1989 deed back to the Etscheits. This later transfer of land does not resurrect the Iso Nahnken's time-lapsed claim. It would be a strange precedent to allow one to make an otherwise time-barred claim on the mere fortuity of discovering a later transfer. We affirm the trial court's ruling that the Iso Nahnken's claim to Taketik is barred by the passage of time.

We affirm the dismissal of the claims against the United States. The trial court mentioned several different grounds on which it could grant the United States' motion to dismiss: that the parcels were not public land; that the claims were barred by laches; and that the United States had sovereign immunity; that the Trust Territory was immune from suit for events occurring before September 23, 1967; and that the Compact of Free Association did not create new causes of action against the United States that would encompass the Iso Nahnken's claims. The trial court further found that there was no actionable conduct that could be attributed to the United States. The trial court concluded that the plaintiff failed to state a claim upon which relief could be granted. We affirm the dismissal of the claims against the United States by application of two of the trial court's several reasons.

As we ruled regarding Taketik, the plaintiff's well-pleaded amended complaint makes this an action for monetary damages only. It is not an action for the recovery of land or an interest in land. The twenty-year statute of limitation in 6 F.S.M.C. 802(1)(b) does not apply. In the absence of another applicable statute, the six-year limitation in 6 F.S.M.C. 805 applies. This action was begun on May 14, 1993. Thus, any claim that accrued before May 14, 1987 is barred by the statute of limitations.

The only action of which the Iso Nahnken complains that occurred after May 14, 1987, was the 1989 transfer of the fifteen acres of Taketik back to the Etscheits. That action is not attributable to the United States or the Trust Territory Government. The Constitution of the Federated States of Micronesia has been the supreme law of this nation since May 10, 1979. Hamo, 4 FSM Intrm. at 104. Indeed, by operation of the 1979 Quitclaim Deed authority over all public lands had been transferred

to Pohnpei by February 15, 1979, in advance of ratification of the FSM Constitution. Whatever vestigial authority the Trust Territory or the United States may still have held after May 10, 1979, disappeared on November 3, 1986, when the Federated States of Micronesia became independent of the United States and the trusteeship. Damarlane v. United States, 7 FSM Intrm. 167, 170 (Pon. 1995). Thus, even taking the Iso Nahnken's claim against the United States as true, for those claims not barred by the passage of time there is no conduct that may be attributed to the United States or the Trust Territory. The trial court was correct in dismissing the claims against the United States.

1. The Iso Nahnken named Pohnpei State as an appellee, and Pohnpei State filed a brief as an appellee. However, the trial court decision does not list Pohnpei State as a party and there is no record that Pohnpei State appeared as a party before the trial court. Accordingly, Pohnpei State is not a party to this appeal.