KOSRAE STATE COURT
TRIAL DIVISION
Cite as Palik v. Henry ,
9 FSM Intrm. 309 (Kosrae S. Ct. Tr. 2000)

[9 FSM Intrm. 309]

BINGHAM PALIK,
Plaintiff,

vs.

JACOB HENRY,
Defendant.

CIVIL ACTION NO. 56-92

ORDER AND MEMORANDUM

Martin G. Yinug
Temporary Justice

Hearings:  December 22, 1999, January 13, 2000
Decided:  January 20, 2000

APPEARANCES:
For the former Plaintiff:     Albert Welly, trial counselor
(Lyndon Abraham)            P.O. Box 187
                                            Lelu, Kosrae FM 96944

For the Defendant:            Sasaki George, trial counselor
                                             Micronesian Legal Services Corporation
                                             P.O. Box 38
                                             Lelu, Kosrae FM 96944

*    *    *    *

HEADNOTES
Civil Procedure ) Joinder, Misjoinder and Severance
     In the case of misjoinder, parties may be dropped or added by order of the court of its own initiative at any stage of the action.  A party joined by the court in the mistaken belief that he was making a claim to land parcels involved in an action before the court will be dropped as a party when it is apparent his claim is to parcels distinct from those in the court action.  Palik v. Henry, 9 FSM Intrm. 309, 311 (Kos. S. Ct. Tr. 2000).

Property ) Land Commission
     Because a Kosrae Land Commission determination of ownership is subject to appeal to the Kosrae State Court within one hundred twenty days from the date of receipt of notice of the

[9 FSM Intrm. 310]

determination, when that time has passed and someone claims that he was never given notice of the original Kosrae Land Commission title determination proceedings as required under KC 11.609, his remedy lies with the Kosrae State Court.  If he wishes to pursue that remedy on a lack of notice basis, he must file a complaint seeking to set aside the title determinations.  His remedy is not to pursue his claims either within the confines of an earlier case concerning other land, or with the Land Commission.  Palik v. Henry, 9 FSM Intrm. 309, 312 (Kos. S. Ct. Tr. 2000).

Civil Procedure ) Injunctions
     A court considers four criteria in determining whether to grant a preliminary injunction:  1) the likelihood of success on the merits of the party seeking injunctive relief; 2) the possibility of irreparable injury; 3) the balance of possible injuries or inconvenience to the parties which would result from granting or denying relief; and 4) any impact on the public interest.  Preserving the status quo pending litigation on the merits is the purpose of a preliminary injunction.  Palik v. Henry, 9 FSM Intrm. 309, 312 (Kos. S. Ct. Tr. 2000).

Civil Procedure ) Injunctions
     As to the likelihood of success on the merits, a court may grant a preliminary injunction so long as the movant's position raises serious, nonfrivolous issues.  Palik v. Henry, 9 FSM Intrm. 309, 312 (Kos. S. Ct. Tr. 2000).

Civil Procedure ) Injunctions
     When a $7,000 loan had been taken out to build a house on now disputed land, the construction is complete except for the roof, and the repayment of the loan plus interest is underway, the balance of injury criterion weighs determinatively in the home builder's favor and the temporary restraining order enjoining further construction will be dissolved.  Palik v. Henry, 9 FSM Intrm. 309, 312 (Kos. S. Ct. Tr. 2000).

*    *    *    *
 
COURT'S OPINION
MARTIN YINUG, Temporary Justice:
     For the reasons set out below, the temporary restraining order entered November 25, 1999, is dissolved.  Lyndon Abraham ("Abraham") is dropped as a party plaintiff, with the caption amended accordingly.

A
     On November 18, 1999, Defendant Jacob Henry ("Henry") filed his application for a temporary restraining order and preliminary injunction.  He sought to enjoin construction of a dwelling house on property in Kosrae.  Title to the land is disputed.  The court granted the application, and as part of the November 25, 1999, temporary restraining order, the court set the hearing on the preliminary injunction for December 8, 1999.  At the time set for that hearing, Henry requested additional time to respond to Abraham's brief.  The court granted Henry's request, and reset the hearing on the preliminary injunction for December 20, 1999.  The filing of Henry's brief was delayed due to his counsel's illness, and the hearing was continued until December 22, 1999, with the temporary retraining order continuing in effect in the interim.

     All indications prior to the December 22, 1999, hearing were that the disputed construction was occurring on parcels 040-K-01 and 040-K-03.  The November 25, 1999, temporary restraining order

[9 FSM Intrm. 311]

enjoins "any further construction on the house located on either or both parcel numbers 040-K-01 and 040-K-03, or on a `disputed area' lying between those parcels."  However, as of the December 22, 1999, hearing on the preliminary injunction, it began to appear that the contested construction was located on two parcels separate and distinct from parcels 040-K-01 and 040-K-03, or on parcels 040-K-04 and 040-K-12.

     Before Henry's application for a temporary restraining order and preliminary injunction, this case had only involved parcels 040-K-01 and 040-K-03.  Pursuant to this court's findings of fact and conclusions of law entered in this case on September 9, 1996, the determinations of ownership for parcels 040-K-01 and 040-K-03 were vacated, and the matter was remanded for a new determination of ownership as to those parcels.  Palik v. Henry, 7 FSM Intrm. 571, 577 (Kos. S. Ct. Tr. 1996).  The November 25, 1999, restraining order proceeded on the basis that "the substantive issue underlying the motion for temporary restraining order and injunctive relief in this case is who has title to the disputed parcels [i.e., parcels 040-K-01 and 040-K-03], and that question is now before the Kosrae Land Commission, not this court."  Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999).  However, if the disputed construction is not located on the parcels now before the Land Commission pursuant to the order of remand, then the temporary restraining order exists in a vacuum.  As to the substance of the dispute ) who owns the land on which the construction is occurring ) stalemate results.

     Procedurally, as part of its November 25, 1999, temporary restraining order, the court had upon Henry's motion directed that Abraham be joined as a party and aligned as a plaintiff, since it then appeared that he was claiming an interest in the 040-K-01 and 040-K-03 parcels.  As such he was an indispensable party under Rule 19(a) of the Kosrae Rules of Civil Procedure.  However, if he is not claiming an interest in those parcels, then he is not properly a party.

     With these concerns in mind, the court after the December 22, 1999, hearing on the preliminary injunction asked the parties, by order of December 29, 1999, to provide additional information to the court to enable the court to decide whether parcels 040-K-04 and 040-K-12, on which the disputed construction is in fact located, as well as 040-K-02, which adjoins 040-K-12 and which Henry also claims, are in fact before the Kosrae Land Commission for title determination as part of the title determinations for the 040-K-01 and 040-K-03 parcels.  The court then held a telephonic hearing on Thursday, January 13, 2000, with the court in Yap and the parties in Kosrae, on the question of what parcels were at issue.

B
     The January 13th hearing showed that confusion stems from the fact that Henry claims all the land registered under the name "Henry" in the Japanese map of 1932, which includes parcels 040-K-01 and 040-K-03, as well as 040-K-02, 040-K-04, and 040-K-12.  The latter three parcels are distinct from the first two, however, and are not before the Kosrae Land Commission for title determination under the September 9, 1996, order of remand.  Since the court added Abraham as a party on the basis that he was making a claim to the 040-K-01 and 040-K-03 parcels, his addition constituted a misjoinder.  Rule 21 of the FSM Rules of Civil Procedure provides that in the case of misjoinder, "[p]arties may be dropped or added by order of the court . . . of its own initiative at any stage of the action."  Thus, Abraham is dropped as a party from this action.

     An additional point involves Henry's recourse in light of the dissolution of the temporary restraining order discussed infra at part C.  As the court indicated in its November 25, 1999, restraining order, in the usual case involving injunctive relief, the person seeking the relief is the plaintiff, and along with the application for injunctive relief, he files a verified complaint.  Rule 65(b) of the Kosrae Rules

[9 FSM Intrm. 312]

of Civil Procedure.  Here however, Henry, as a defendant in an existing case, filed an application for injunctive relief against Abraham, who was a nonparty at that time.  The court directed that Abraham be added as a party plaintiff to this case, since his interest appeared to be aligned with the plaintiff's, and further directed him to file a claim to the disputed land with the Kosrae Land Commission in order "to make possible a global determination of all competing claims" to the 040-K-01 and 040-K-03 parcels.  Palik v. Henry, 9 FSM Intrm. at 270.  But Abraham is making a claim to parcels 040-K-04 and 040-K-12, and since those parcels are not before the Land Commission, filing a claim would serve no purpose.  The title determination for parcel 040-K-04 issued on November 28, 1980, in favor of Clanry Shrew Likiaksa, from whom Abraham claims to take by purchase, while the title determination for parcel 040-K-12 issued on March 29, 1985, in favor of Abraham.  Section 11.614 of The Kosrae State Code of Laws provides that "[a] determination of ownership by the Commission is subject to appeal to the Court within one hundred twenty days from the date of receipt of notice of the determination."  Henry's time for appeal of those determinations has come and gone.  Since he contends that neither he nor his family was given notice of the original title determination proceedings before the Kosrae Land Commission as required under K.C. 11.609, his remedy lies, just as it did with respect to the 040-K-01 and 040-K-03 parcels, with this court.  If he wishes to pursue that remedy on a lack of notice basis, he must file a complaint seeking to set aside the title determinations for parcels 040-K-04 and 040-K-12, which Abraham claims, as well as parcel 040-K-02, which he also now claims, and for which a title determination issued on March 29, 1985, in favor of Conrad Musrasrik.  Henry's remedy is not to pursue his claims to these parcels either within the confines of this case, or with the Land Commission.

C
     The question of the preliminary injunction remains as a live issue between the parties.  The party sought to be enjoined, Abraham, has appeared before this court by counsel at the original telephonic hearing on the temporary restraining order, and at the hearing on the preliminary injunction on December 22, 1999, as well as at the subsequent hearing on January 13, 2000, when the court addressed the question of exactly what parcel numbers were at issue.  Both Henry and Abraham have made written submissions.  Hence, both parties have had ample opportunity to appear before the court and to be heard on whether a preliminary injunction should issue to halt the construction.

     A court considers four criteria in determining whether or not to grant a preliminary injunction:  1) the likelihood of success on the merits of the party seeking injunctive relief; 2) the possibility of irreparable injury; 3) the balance of possible injuries or inconvenience to the parties which would result from granting or denying relief; and 4) any impact on the public interest.  Preserving the status quo pending litigation on the merits is the purpose of a preliminary injunction.Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 286, 288 (Pon. 1993).  As to the first factor, a court may grant a preliminary injunction so long as the movant's position raises serious, nonfrivolous issues.  Id. at 289.

     The third criterion, balance of injury, has particular weight as applied to the facts adduced at the December 22, 1999, hearing.  Abraham has determinations of ownership for the parcels on which the construction is located.  He testified that his son had taken out a $7,000 loan to build the house on the disputed property; that construction of the concrete house is complete except for the roof; and that repayment of the $7,000 principal plus interest is underway.  Enjoining further construction would result in the pointless expenditure of $7,000, and the burden imposed by a preliminary injunction may be quantified to this extent.  Had Henry acted at an earlier stage in the construction, the balance of injury criterion may have weighed in his favor; however, as it now stands, this factor favors Abraham, and determinatively so.  While it may be true that permitting the construction to continue only postpones the day of reckoning should Henry choose to pursue his claim to the land and should Henry prevail, Henry's claim to the 040-K-02, 040-K-04, or 040-K-12 parcels is not now pending before this court.  Accordingly, the temporary restraining order entered on November 25, 1999, is dissolved.

[9 FSM Intrm. 313]

     In sum, Lyndon Abraham is dropped as a party to this case, and the caption is amended to reflect this.  The temporary restraining order entered November 25, 1999, is dissolved.
                                                                                                                                                                                                                                                                                                           
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