KOSRAE STATE COURT
TRIAL DIVISION
Cite as Jonas v. Paulino ,
9 FSM Intrm. 519 (Kosrae S. Ct. Tr. 2000)

[9 FSM Intrm. 519]

ARNEY JONAS,
Plaintiff-Appellee,

vs.

SUSANA PAULINO,
Defendant-Appellant.

CIVIL ACTION NO. 50-97

ORDER DENYING MOTION TO AMEND;
ORDER OF DISMISSAL

Aliksa B. Aliksa
Associate Justice

Hearing:  May 11, 2000
Decided:  May 22, 2000

APPEARANCES:
For the Plaintiff-Appellee:           Charlton Timothy, trial counselor
                                                       P.O. Box 479
                                                       Lelu, Kosrae FM 96944

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

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HEADNOTES
Property ) Land Commission
     It is the claimant's duty to submit a written claim to the Land Commission.  The Land Commission does not have any statutory obligation to write down a claimant's verbal claim.  Jonas v.

[9 FSM Intrm. 520]

Paulino, 9 FSM Intrm. 519, 521 (Kos. S. Ct. Tr. 2000).

Constitutional Law ) Due Process ) Notice and Hearing
     When a party had no claim to the land at the time ownership was determined, that party was not entitled to statutory notice of the determination of ownership for a parcel and she does not have standing to appeal the Land Commission's decision and the court does not have jurisdiction over her appeal claims.  Jonas v. Paulino, 9 FSM Intrm. 519, 521 (Kos. S. Ct. Tr. 2000).

Torts ) Conversion
     The elements of an action for conversion are the party's ownership and right to possession of the property, the other party's wrongful or unauthorized act of dominion over the property inconsistent with or hostile to the owner's right, and resulting damages.  Jonas v. Paulino, 9 FSM Intrm. 519, 521 (Kos. S. Ct. Tr. 2000).

Torts ) Conversion
     A party's claim for conversion must fail and be dismissed when the has no ownership and rights to possession of the property because title has been confirmed in another.  Jonas v. Paulino, 9 FSM Intrm. 519, 521 (Kos. S. Ct. Tr. 2000).

Civil Procedure ) Dismissal
     A third-party due process claim against the Land Commission will be dismissed when, although the Land Commission was named as a third-party defendant in the caption, it was never served with a Third-Party Complaint and Summons in accordance with the Kosrae Civil Procedure Rules.  Jonas v. Paulino, 9 FSM Intrm. 519, 521-22 (Kos. S. Ct. Tr. 2000).

Civil Procedure ) Dismissal
     When a court order required the plaintiff-appellee to file within 30 days a written request for trial on his trespass claim if he wished to prosecute the claim, and he did not, the trespass claim is dismissed.  Jonas v. Paulino, 9 FSM Intrm. 519, 522 (Kos. S. Ct. Tr. 2000).

*    *    *    *

COURT'S OPINION
ALIKSA B. ALIKSA, Associate Justice:
     Defendant-Appellant has filed a Motion to Amend the Court's Order Confirming Title on March 20, 2000. Defendant-Appellant's Motion is based upon KRCP Rule 59(e).  Plaintiff- Appellee has filed an Opposition to Defendant-Appellant's Motion on April 5, 2000.  The Motion was heard by the Court on May 11, 2000.  Charlton Timothy appeared for the Plaintiff-Appellee.  Sasaki George represented the Defendant-Appellant.

     Defendant-Appellant's Motion presents two issues for this Court's consideration.  First, Defendant-Appellant argues that the Court's consideration of the Defendant-Appellant's standing to challenge the Land Commission proceedings on parcel 030-M-15 was improper.  Second, Defendant-Appellant argues that she had separate claims of conversion and constitutional due process violations which remain to be adjudicated.

I.  Defendant-Appellant's Standing to Challenge Land Commission Proceedings.
     Defendant-Appellant claims that the Court improperly considered the standing of the Defendant-

[9 FSM Intrm. 521]

Appellant to challenge the Determination of Ownership for parcel 030-M-15. Defendant-Appellant's standing to prosecute the appeal of this Determination of Ownership is based upon Kosrae State Code, Section 11.614.  This statutory provision establishes the jurisdiction of this Court to hear appeals from determinations of ownership made by the Land Commission.

     Defendant-Appellant did not follow the statutory requirements of submitting her claim in writing to the Land Commission prior to the formal hearing on parcel 030-M-15.  Defendant-Appellant now claims it was the duty of the Land Commission to enter her claim into the record in writing.  This argument is without merit.  Kosrae State Code, Section 11.609(2) states that "a person claiming an interest in the parcel may file a written claim with the Commission . . . ."  (emphasis added). Under this provision, it is the claimant's duty to submit a written claim to the Land Commission.  The Land Commission does not have any statutory obligation to write down a claimant's verbal claim.  Defendant-Appellant failed to follow statutory requirements in submitting her claim to the Land Commission. Therefore, Defendant-Appellant was not entitled to statutory notice for the formal hearing. Where a party had no claim to the land at the time ownership was determined, that party was not entitled to notice of the determination.  Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40 (App. 1995).  Defendant-Appellant was not entitled to statutory notice of the determination of ownership for parcel 030-M-15.  Therefore, Defendant-Appellant does not have standing to appeal the decision of the Land Commission and this Court does not have jurisdiction over her appeal claims.  Kos. S.C. 11.614.

     Defendant-Appellant also argues that the Court's reliance on the testimony of Defendant-Appellant's Mother, Lelean Aliksa was improper because part of her testimony was not recorded in the record. Defendant-Appellant offers no support for this statement. Defendant-Appellant's Mother, Lelean Aliksa, appeared at the formal hearing to support her brother Sawan's claim to parcel 030-M-15. Defendant-Appellant cannot now claim to have different interests that her mother, who appeared at the formal hearing and testified in support of her brother's claim to parcel 030-M-15.  The Certificate of Title for parcel 030-M-15, under Kosrae State Code, Section 11.616(1), is conclusive on Lelean Aliksa, and those claiming under her, including her daughter, Defendant-Appellant Paulino.

     Defendant-Appellant Paulino's appeal of the Determination of Ownership for parcel 030-M-15 was properly dismissed.

II.  Defendant-Appellant's Conversion and Due Process Claims.
     Defendant-Appellant's remaining claims, conversion and violation of due process must also fail, in accordance with this Court's Order Confirming Title to Plaintiff-Appellee Arney Jonas, entered on March 8, 2000.

     The elements of an action for conversion are the party's ownership and right to possession of the property, the other party's wrongful or unauthorized act of dominion over the property inconsistent with or hostile to the owner's right, and resulting damages.  Bank of Hawaii v. Air Nauru, 7 FSM Intrm. 651 (Chk. 1996). Here, Plaintiff-Appellee has been confirmed as the title holder to parcel 030-M-15. Plaintiff-Appellee has ownership and rights to possession of that property. Defendant-Appellant does not have any rights to ownership or possession over parcel 030-M-15.  The first element to support Defendant-Appellant's claim for the tort of conversion is not present.  Therefore, Defendant-Appellant's claim for conversion must fail and is dismissed.

     Defendant-Appellant's claim of violation of due process against the Land Commission also fails.  Defendant-Appellant argues that her due process violation claim is a "third party claim" against the Land Commission.  Defendant-Appellant, in her Answer, filed on October 13, 1997, "named" the Kosrae State Land Commission as a third-party defendant in the caption.  However, Defendant-Appellant never

[9 FSM Intrm. 522]

served a Third-Party Complaint and never served a Summons on the Land Commission in accordance with the KRCP.  Defendant-Appellant violated the requirements of KRCP Rules 4 and 14, and consequently the Land Commission never appeared in this matter as third-party defendants.  Defendant-Appellant's "third party claim" against the Land Commission was never properly filed and served, and the Land Commission never received proper notice of this claim made against it.  Defendant-Appellant's claim of violation of due process against the Land Commission is dismissed.

III.  Plaintiff-Appellee's Trespass Claim.
     Finally, this Court, in its Order of March 8, 2000, required the Plaintiff-Appellee to file a written request for trial within 30 days on the trespass claim, if he wished to prosecute the trespass claim.  Plaintiff-Appellee did not file any written request for trial. Accordingly, Plaintiff-Appellee's trespass claim is dismissed.

IV.  Conclusion.
     Based upon the information submitted before this Court, and the Court having considered the Defendant-Appellant's Motion to Amend Order Confirming Title, the Plaintiff-Appellee's Opposition to the Motion, the file in this matter, and the interests of justice, Defendant-Appellant's Motion to Amend Order Confirming Title is denied.  Defendant-Appellant's counterclaim of conversion is dismissed. Defendant-Appellant's claim of violation of due process is dismissed.  Plaintiff-Appellee's claim of trespass is dismissed.
                                                                                                                                                                                                                                                                                                           
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