THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
KOSRAE STATE COURT
TRIAL DIVISION
Cite as Youngstrom v. Phillip ,
8 FSM Intrm. 198 (Kos. S. Ct. Tr. 1997)

[8 FSM Intrm. 198]

VERNON YOUNGSTROM,
Plaintiff,

vs.

CLAUDE PHILLIP,
Defendant.

CIVIL ACTION NO. 48-87
ORDER

Martin Yinug
Designated Justice

Decided:  September 10, 1997

[8 FSM Intrm. 199]

APPEARANCES:
For the Plaintiff:          Fredrick L. Ramp, Esq.
                       P.O. Box 1480
                       Kolonia, Pohnpei FM 96941

For the Defendant:     Douglas Parkinson, Esq.
                       P.O. Box 2069
                       Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Administrative Law ) Judicial Review; Appeal and Certiorari ) Decisions Reviewable
     If, on remand from an appeal to the trial court, all that is left for the administrative agency to do is ministerial, the order of remand is final.  If the agency has the power and duty to exercise residual discretion, to take proof, or to make an independent record, its function remains quasi-judicial, and the remand order is not final.  Youngstrom v. Phillip, 8 FSM Intrm. 198, 201 (Kos. S. Ct. Tr. 1997).
 
Appeal and Certiorari ) Decisions Reviewable
     Ordinarily a judgment of reversal rendered by an intermediate appellate court which remands the cause for further proceeding in conformity with the opinions of the appellate court is not final and therefore, not appealable to the higher appellate court, so long as judicial action in the lower court is required.  Youngstrom v. Phillip, 8 FSM Intrm. 198, 201 (Kos. S. Ct. Tr. 1997).

Civil Procedure; Judgments
     Because until a final judgment has been entered a trial court has plenary power over its interlocutory orders, it may, without regard to the restrictive time limits in Rule 59, alter, amend, or modify such orders any time prior to the entry of judgment.  Youngstrom v. Phillip, 8 FSM Intrm. 198, 201 (Kos. S. Ct. Tr. 1997).

Civil Procedure
     When considering a motion to modify its orders, particularly in a long-pending case, a court, in furthering the interest of finality, looks to what has been done, not to what might have been done.  Youngstrom v. Phillip, 8 FSM Intrm. 198, 202 (Kos. S. Ct. Tr. 1997).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Designated Justice:
     The court has received the following:

     1.  Plaintiff's Motion for Division of Land (Non-hearing Motion) (hereinafter "plaintiff's motion") filed June 12, 1997;

     2.  Defendant's Opposition to Motion for Division of Land and Motion for Modification of Instructions to Land Commission (hereinafter "defendant's opposition and motion"); Unopposed Motion for Brief Enlargement of Time; and Motion to Appear in Particular Case, all of which were filed on June

[8 FSM Intrm. 200]

 24, 1997 (these pleadings were received at the court's office in Yap by delayed mail on August 27, 1997); and

     3.  Opposition to Defendant's Motion for Modification of Instructions to the Land Commission (hereinafter "defendant's opposition"), filed July 7, 1997.

     The motion for enlargement and the pro hac vice motion are granted.
 
Plaintiff's motion.

     Plaintiff requests that the court order "the Kosrae State Land Commission to divide the land in accordance with the attached map (Exhibit A) and issue a determination of ownership reflecting this partition."  Pl.'s motion at 2.  The map is labeled "PROPOSAL TWO."  Plaintiff also attaches a copy of Proposal 2 to his motion, and it was this proposal which was endorsed, along with Proposal 3, by this court's December 8, 1992, order.  Plaintiff's motion does not specifically request a division in accordance with the December 8, 1992, order, although plaintiff's opposition does cite to the operative language of the order.  The court will treat plaintiff's motion as a request for partition in compliance with the order. The court notes that this reading of plaintiff's motion appears to be at variance with the interpretation that defendant places on it.  Def.'s opp'n and motion at 2.  In any event, the court grants plaintiff's motion to the extent that it requests a partition in conformance with the December 8, 1992, order.  The Land Commission will partition Pukusrik, and issue a determination of ownership in accordance with the December 8, 1992, order.

     Some comment is appropriate with respect to the timetable for the determination.  It has been over four and one half years since the court's December 8, 1992, order, and no justification for this delay appears of record. Such a delay manifestly defeats the ends of justice.  The Land Commission will conduct the site visit for which it expresses a preference in its November 21, 1994, letter to Fred Ramp (the letter is Exhibit B to defendant's opposition and motion), and make the division no later than 90 days from the date of entry of this order.  On that date, if the division of Pukusrik, tract nos. 82-K-01 and 82-K-08, has not occurred, an order to show cause why the Commission should not be held in contempt of both this court's December 8, 1992, order and the instant order will issue.  If the Commission concludes that this time frame is not practical, it will within 10 days of the date of entry of this order request such additional time as it deems necessary; however, given the delay of over four and a half years, the Commission must have compelling reasons for any requested extension.

     The court notes that at page 4 of defendant's opposition and motion, defendant says that plaintiff has not to date suggested a date for a site visit, after the Land Commission indicated that its preference was for a visit.  If this be true, then plaintiff may have played a role in the resulting delay.  Plaintiff and his counsel are directed to cooperate in expeditiously setting a date for the site visit.

Defendant's opposition and motion.

     Defendant in his motion for modification and opposition makes five points. Defendant asks that the Commission 1) conduct a site inspection; 2) consider non-mathematical, non-acreage factors in effecting a division; 3) consider the possibility of easements, licenses or use rights for both parties; 4) consider whether the steep upper portion is actually a part of the land to be divided; and 5) take into consideration relevant changed circumstances.

     As a prefatory matter, Plaintiff urges in his opposition that defendant's motion to modify this court's December 12, 1992, order is untimely, and cites to Rules 52(b), 59(b), and 59(e).  Rule 52(b) deals with amending a judgment; Rule 59(b) deals with a new trial.  Rule 59(e) is germane, and

[8 FSM Intrm. 201]

provides that a motion to alter or amend judgment must be filed within 10 days of the entry of judgment.  The point of departure for discussion of plaintiff's timeliness objection is that a judgment in the context of Rule 59 means a final judgment.  6A James W. Moore et al., Moore's Federal Practice 59.03 (2d ed. 1983).

     KC 11.614 provides that appeals from the Kosrae Land Commission are taken to the state court, and this was the procedure followed in this case.  The Kosrae Land Commission issued its findings of fact on October 30, 1991.  Within the 120 day period provided by KC 11.614, the plaintiff on January 23, 1993, filed his Notice of Appeal, and Motion to Vacate Findings of Fact and Opinion by the Land Commission Together with Determination of Ownership.  This court's order of December 8, 1992, vacated the October 31, 1991, decision, and remanded the matter to the Land Commission for a new partition determination in accordance with the order.

     The December 8, 1992, order was not a final judgment within the meaning of Rule 59(e).  The Kosrae Land Commission was acting as an administrative agency charged with making determinations of land ownership when it issued its October 31, 1991 findings.  When the court remanded the matter back to the Land Commission for a new finding, much yet remained to be done ) the task was, and remains, more than ministerial.  "If all that is left for the agency to do is ministerial, the order [of remand] is final.  If the agency has the power and duty to exercise residual discretion, to take proof, or to make an independent record, its function remains quasi-judicial, and the order [of remand] is not final."  2 Am. Jur. 2d Administrative Law 768 (1962) (footnote omitted).  By analogy, this is also consistent with the rule that where an appellate court remands to the trial court for new findings, that order is not a final order.  "Ordinarily a judgment of reversal rendered by an intermediate appellate court which remands the cause for further proceeding in conformity with the opinions of the appellate court is not final and therefore, not appealable to the higher appellate court, so long as judicial action in the lower court is required.  4 Am. Jur. 2d Appeal and Error 59 (1962) (footnote omitted).  This court's December 8, 1992, order is interlocutory in nature.

     One commentator has observed that "[t]he true principle is that the trial court has plenary power over its interlocutory orders until a final judgment has been entered."  6A James W. Moore et al., Moore's Federal Practice 59.03 (2d ed. 1983) (footnote omitted).  That same commentator goes on to note that

while the scope of Rule 59 is broad and subdivisions (d) and (e) have similar 10 day time periods to that of subdivision (a), interlocutory orders, even when appealable, are not subject to the restrictive time periods of Rule 59, and the court has plenary power to amend or alter them prior to the entry of a final judgment.

Id. 59.09[1] (footnotes omitted).  Because the December 8, 1992 order was not a final judgment, this court has on-going, plenary power to modify it.

     Having determined that this court has the power to modify its order, the court turns to the question whether it should exercise that power.  Defendant's motion for modification first requests a site inspection.  Since the court has already determined that an inspection is appropriate in light of the Commission's stated preference for one, this request becomes redundant, but in the interest of clarity this court grants this request.

     With respect to defendant's remaining points, the court makes the following observation as context.  The goal of the December 8, 1992, order is a partition that results in approximately equal halves, with any doubt being exercised in favor of the Youngstroms.  Order of December 8, 1992, page 4, subparagraph (c). Defendant says nothing in his motion which persuades the court to deviate from

[8 FSM Intrm. 202]

this overall approach.  This case has been pending since 1987, and in furthering the interest of finality, the court looks to what has been done, and not to what might have been done.  The equities of the situation as they have thus far been determined do not prescribe a different course.  With the foregoing in mind, the court considers defendant's points 2) through 5).

     With respect to defendant's point 2), the defendant asks that the court to direct the Commission to consider non-mathematical, non-acreage factors in effecting a division.  In strict logic, it would not seem that this consideration and the 50/50 approach are necessarily mutually exclusive.  The Commission may consider this factor to the extent it is consistent with a 50/50 approach, and to the extent that consideration of it is also consistent with the provision of the December 8, 1992, order that any doubt is to be exercised in favor of the Youngstrom family.  In the event that the Land Commission concludes that non-mathematical, non-acreage considerations militate against the 50/50 approach with the Youngstroms getting the benefit of the doubt, the Commission is directed not to consider this point.

     As to defendant's point 3), defendant asserts that the court should consider allowing both parties various access rights to allow among other things utility access, cemetery access, harvest rights, and rights to use the stream.  Both Proposal 2 and Proposal 3 provide that the Phillip family will have access to the gravesites.  The Land Commission will make gravesite access a part of its determination.  The remaining parts of the request as contained in point 3 are denied.

     Defendant's point 4) is that the Land Commission should determine whether the steep upper portion is actually part of the land to be divided.  The December 8, 1992, order does not make specific mention of this part of the land.  Whether or not this area is part of the disputed area should be a straightforward matter to determine; if neither party is making a claim to this land, the dispute will be simplified to that extent.  If the upper portion is part of the disputed land, then it will be included as part of the land subject to the 50/50 partition per the December 8, 1992, order.

     Defendant's point 5) is that this court should consider changed circumstances or newly discovered evidence relevant to the dispute.  Defendant at page 9 of his opposition and motion asserts that Exhibit A attached to plaintiff's Motion for Division of Land "attempts to define as the `natural stream' an artificially-created, diverted stream bed."  The court takes this as a reference to the map which is part of Exhibit A.  This map appears to be identical to one in the record bearing a fax date of March 1, 1991.  No feature of either map would seem to suggest newly discovered evidence.  Defendant also cites recent road construction in the vicinity.  However, defendant does not suggest that the road building would have taken a different course if the property had already been partitioned.  The request with respect to point 5) is denied.

     To recap, the court orders as follows.
 
     1.  The procedural motions to enlarge time and to appear for this particular cause are granted.

     2.  Plaintiff's motion to divide the land in accordance with the December 8, 1992 order is granted.  The Land Commission will conduct a site visit, and make the division no later than 90 days from the date this order is entered.  Plaintiff and his counsel will cooperate in setting a site visit, which will occur as soon as practicable.  In the event the partition of Pukusrik has not occurred by 90 days from entry of this order, an order to show cause why the Commission should not be held in contempt of both the December 8, 1992, order and the instant order will issue.  Any request by the Land Commission for additional time to make the partition will be filed within 10 days of the date of this order, and must state compelling reasons for an extension.  Inconvenience or the press of other business will not suffice.

[8 FSM Intrm. 203]

     3.  Defendant's request for a site visit and request for access to the gravesites are granted.

     4.  The Land Commission may consider non-mathematical factors to the extent that such a consideration is consistent with the 50/50 partition outlined in the December 8, 1997, order.

     5.  The Land Commission will determine whether the steep upper portion of the land, which defendant represents consists of a separate surveyed parcel, is part of the disputed land.  If neither party makes a claim to it, it will not be included in the 50/50 partition.

     6.  The Land Commission will not consider whether the stream bed as drawn on Exhibit A to plaintiff's motion is natural or man-made.  The Commission will not consider nearby road construction activity.
                                                                                                                                                                                                                                                                                                           
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