FSM SUPREME COURT TRIAL DIVISION
Cite as Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a (Pon. 2002)
AMBROS & COMPANY, INC. and AMBROS SENDA,
Plaintiffs,
vs.
BOARD OF TRUSTEES OF THE POHNPEI PUBLIC
LANDS TRUST, KUINSI ALEXANDER and DOES 1-25,
Defendants.
CIVIL ACTION NO. 2001-036
ORDER
Andon L. Amaraich
Chief Justice
Hearing: August 15, 2002
Site Visit: August 26, 2002
Decided: November 13, 2002
APPEARANCES:
For the Plaintiffs:
Salomon M. Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941
For the Defendant:
Tino Donre, Esq.
(Alexander)
Scott Garvey, Esq. (site visit)
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941
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A party may apply for a preliminary injunction, but no preliminary injunction will issue except upon the giving of security by the applicant, in such sum, if any, as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262g (Pon. 2002).
In determining whether to issue a preliminary injunction, a reviewing court considers: 1) the possibility of irreparable injury to the moving party; 2) the balance of possible injuries between the
parties; 3) the movant's likelihood of success on the merits; and 4) any impact on the public interest. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262g-62h (Pon. 2002).
Constant and excessive noise caused by refrigerator fans operating on and off for 24 hours a day, although extremely difficult to quantify, can constitute irreparable injury. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262h (Pon. 2002).
Although a party has shown that he is suffering a continuing irreparable injury due to the operation of refrigeration machines, the court must consider the harm that the issuance of an injunction would cause to the other party before it can issue an injunction. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262h (Pon. 2002).
Nuisance is generally regarded as a substantial interference with the use and enjoyment of another's land caused by intentional and unreasonable conduct, or caused unintentionally by negligent or reckless conduct, or the performance of an abnormally dangerous conduct. A substantial interference is actual, material, physical discomfort, material annoyance, inconvenience, discomfort, or hurt, or significant harm, that affects the health, comfort, or property of those who live nearby. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262h (Pon. 2002).
An intentional invasion of another's interest in property in the use and enjoyment of land is unreasonable if a) the gravity of the harm outweighs the utility of the actor's conduct, or b) the conduct is serious and the financial burden of compensating for it and similar harm to others would not force the defendant out of business. In determining the gravity of the harm, a court will consider the extent and character of the harm, the social value and suitability to the community of the use and enjoyment involved, and the burden on the person harmed of avoiding the harm. In determining the utility of the conduct, a court will consider the social value and suitability to the community of the conduct, and the impracticability of preventing or avoiding the invasion. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262h (Pon. 2002).
If the actor's conduct is negligent, then to establish a nuisance it must be shown that the actor's negligent or reckless conduct caused a substantial interference with the use and enjoyment of another's land. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262h n.1 (Pon. 2002).
When the party seeking an injunction has made out a prima facie case for nuisance against the other, the likelihood of success on the merits factor weighs in favor of the issuance of an injunction. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262i (Pon. 2002).
When, upon weighing all of the factors, a court finds that it would be appropriate to issue an injunction, but during testimony, a party suggested what might be an acceptable solution, the court, before issuing an injunction, may give the parties an opportunity to work together to find a solution acceptable to both. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262i (Pon. 2002).
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ANDON L. AMARAICH, Chief Justice:
On August 15, 2002, this matter came before the court for a hearing on defendant Alexander's application for a preliminary injunction, filed on September 19, 2001. Salomon Saimon appeared on behalf of plaintiffs. Tino Donre appeared on behalf of defendant Alexander. Additionally, on August 26, 2002, the court and the parties conducted an inspection of the site to assist the court in making a determination as to whether an injunction should issue. For the reasons stated herein, the court will order the parties to file, within thirty (30) days of the date of this order, a joint report describing a proposed solution to the problem of noise generated by the refrigeration fans at Ambrose Store.
On August 24, 2001, plaintiffs Ambros & Co., Inc. and Ambros Senda filed a complaint against defendant Board of Trustees of the Pohnpei Public Lands Trust (the "Board") and defendant Kuinsi Alexander. The complaint alleges that on November 30, 2001, a person named Melterina Gomez executed an agreement in which she assigned all of her rights under a land lease of land parcel 007-A-18 (the "parcel") to plaintiff Ambros Senda. On that same day, Ms. Gomez submitted a letter to defendant Board for approval of the assignment to plaintiff Senda.
Plaintiffs allege that while waiting for the board to approve the assignment, plaintiff Senda leased the parcel to plaintiff Ambros & Co., of which plaintiff Senda is a major shareholder. While plaintiff Senda was waiting for the board approval of the assignment, defendant Alexander and his family entered the parcel without plaintiffs' consent. Plaintiffs have built structures on the parcel but were forced out by defendant Alexander.
In 1999, plaintiff Senda enlisted his current counsel, Saimon & Associates, to assist him in securing the board's approval of the assignment. A meeting took place on November 17, 1999 between plaintiff's counsel and the board. On November 26, 1999, the Pohnpei Attorney General's office issued an opinion letter stating that assignments cannot be arbitrarily discarded by the board.
On December 16, 1999, a second meeting was held between the board and plaintiff's counsel. Plaintiff nor his counsel ever heard from the board after that meeting. Without knowledge of the status of the matter, on June 22, 2001 plaintiff Senda entered into a sublease agreement with plaintiff Ambros & Co. (the "sublease") so plaintiff Ambros & Co. could use the parcel. On June 25, 2001, the sublease agreement was submitted to the board for consideration and approval.
Plaintiffs allege that on August 7, 2001, a copy of a residential lease agreement between defendant Alexander and the Pohnpei State Division of Management and Administration of Public Lands was provided to plaintiffs' counsel. The residential lease was entered into sometime in 1999. At no time up until the present did the board take any action on the 1994 request for approval submitted by Ms. Gomez.
On September 7, 2001, defendant Alexander filed an answer and counterclaim against plaintiffs. Defendant Alexander's counterclaim alleges that on November 22, 1998, Ms. Gomez died, leaving defendant Alexander as one of the successors to her interest in the parcel. In or around December 1998, heirs of Ms. Gomez executed a family agreement whereby defendant Alexander would be successor to her interest in the parcel. On March 23, 1999, the Pohnpei State Department of Land issued a 25 year residential lease agreement (the "residential lease") with defendant Alexander for the parcel.
Defendant Alexander alleges three causes of action for trespass and two causes of action for nuisance against plaintiff Ambros & Co. Plaintiff Ambros & Co. operates a commercial retail business on the parcel immediately adjacent to defendant Alexander's parcel (007-A-18). Plaintiff Ambros & Co. erected and maintains a concrete staircase located on defendant Alexander's parcel without defendant Alexander's permission, and this constitutes a trespass. Plaintiff Ambros & Co. has also installed and maintains six air conditioning/refrigerator machines on defendant Alexander's parcel without his permission, also constituting a trespass. Plaintiff Ambros & Co. has further erected and maintains a wooden structure for the purpose of enclosing its air conditioning/refrigerator machines on defendant Alexander's parcel without his permission, constituting a trespass.
Defendant Alexander further alleges that the substantial noise caused by the six air conditioning/refrigerator machines causes offensive, inconvenient and annoying noise. This noise is unreasonable, considering the residential nature of the neighborhood. This noise causes a substantial and unreasonable interference with the use and enjoyment of defendant Alexander's land, thereby creating a nuisance upon defendant Alexander. Also, the six air conditioning/refrigerator machines cause blasts of hot air onto defendant Alexander's land. These blasts of hot air are offensive, inconvenient and annoying to defendant Alexander. The blasts of hot air are unreasonable and cause a substantial and unreasonable interference with defendant Alexander's use and enjoyment of his land.
On September 19, 2001, defendant Alexander filed an application for a preliminary injunction pursuant to FSM Civil Rule 65(a) requesting that the court order plaintiff Ambros & Co. to immediately cease the operation of six air conditioning and refrigeration machines located on defendant Alexander's land.
Defendant Alexander argues that the elements to be considered by the court in determining a request for preliminary injunction include: 1) the possibility of irreparable injury to the moving party; 2) the balance of possible injuries between the parties; 3) the movant's likelihood of success on the merits; and 4) any impact on the public interest. See Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155, 161 (Pon. 1997).
1. Irreparable Injury: With respect to establishing the element of irreparable injury, a preliminary injunction should be issued only if monetary damages or other relief will not compensate for the threatened harm. Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155 (Pon. 1997). Defendant Alexander states that he and plaintiff Ambros & Co. share a common boundary line between their respective parcels of land in Kolonia. Defendant Alexander holds a valid lease on Parcel No. 007-A-18 and uses this land as his primary residence with seven other family members. Plaintiffs operate a commercial retail business (including a supermarket) in a two-story building located on Parcel No. 007-A-19. Plaintiff Ambros & Co. has installed and operates six air conditioning/refrigerator machines located on Parcel 007-A-18 or adjacent to the boundary line between the two properties, without the permission of defendant Alexander. The six machines operate continuously for 24 hours each day. The high noise level of the fans and other machinery during the day prevent defendant Alexander and his family from the quiet use and enjoyment of their home during the day. Defendant also claims that the noise level at night prevents defendant Alexander and his family from restful sleep. Also, the frequent blasts of hot air from the machines subjects defendant and his family to continual discomfort.
Defendant Alexander claims he has attempted to alleviate the problem by installing wood panels over the windows of his house to block out the noise and hot air from plaintiff's machines. Unfortunately, this remedy has not solved the problem. Defendant claims that he has on more than five occasions met with management of plaintiff to discuss an equitable solution to the nuisance problem,
but these meetings have not been fruitful.
Defendant claims that he and his family suffer from plaintiff's continual use of its machines. Defendants argues that an injunction ordering an immediate termination of the air conditioning and refrigeration machinery is the only remedy to prevent defendant's continuing irreparable injury.
2. The Balance of Harm: Defendant admits that plaintiff would be harmed by the loss of use of its air conditioning and refrigeration units if the court does in fact grant injunctive relief in favor of defendant Alexander. However, defendant argues plaintiff could relocate its machines to a location which would not cause such excessive noise and hot air to defendant Alexander's property.
However, if the court does not grant the requested injunction, defendant Alexander and his family will continue to suffer serious injury from the noise, blasts of hot air and continued trespassing of plaintiff's employees and workers created by the machinery. Further, the continued operation of the machinery adversely affects the quality of defendant's daily life. Defendant argues the balance of harm weighs in favor of the issuance of the requested injunction.
3. Likelihood of Success on Merits: Defendant Alexander argues the facts stated above, including that he has a valid possessory interest in Parcel No. 007-A-18, and that plaintiff Ambros & Co.'s unauthorized installation and use of its air conditioning and refrigeration units upon defendant's land, constitutes a prima facie cause of action for trespass. Defendant Alexander argues he will likely succeed on the merits of his claims for trespass and nuisance against plaintiffs, and that therefore this factor weighs in his favor.
4. Impact Upon Public Interest: Defendant Alexander claims the court should maintain a policy that residential leases should be protected from unreasonable nuisances caused by commercial activities. It is in the public interest that such unreasonable commercial nuisances be minimized so that citizens can maintain the quiet use and enjoyment of their residential leases.
On October 1, 2001, plaintiffs filed an opposition to defendant Alexander's motion to dismiss and his application for a preliminary injunction. Plaintiffs argue that the four elements to be considered by the court in determining a request for a preliminary injunction weigh against the issuance of the injunction requested by defendant Alexander.
1. Irreparable Injury: plaintiffs claim defendant Alexander has been living on the mistakenly probated property for a long time. Plaintiffs state that defendant Alexander has never talked to plaintiff Senda nor any of the management or staff of plaintiff Ambros & Co. Plaintiffs argue defendant has failed to make any showing of irreparable injury.
2. Balance of Harm: Plaintiffs state that plaintiff Ambros & Co. sells merchandise from one of the largest supermarkets and department stores on Pohnpei. If the court issues an injunction prohibiting Ambros & Co. from operating its air conditioning/refrigeration units, plaintiffs would not be able to operate the store. Plaintiffs would suffer greatly if the injunction issues.
3. Likelihood of Success on Merits: plaintiffs claim the property was wrongfully probated to defendant Alexander. Plaintiffs argue the assignment to plaintiff Senda preceded Melterina Gomez' death. As plaintiffs claim the transfer of land to defendant Alexander was illegal, plaintiffs argue they will undoubtedly prevail and succeed on the merits.
4. Impact Upon Public Interest: plaintiffs argue it is in the public interest that the system maintains contractual rights and other property rights. Defendant Alexander is essentially asking that plaintiff Ambros & Co. be shut down. The air conditioning and refrigeration machines cannot be shut down without severe consequences. Many of the people of Pohnpei shop at Ambros & Co., and Ambros & Co. employs many persons who would lose their jobs if the store were shut down.
Plaintiffs further state that defendant has failed to provide or appear to be capable of paying any bond necessary to compensate the plaintiffs should the plaintiffs be wrongfully enjoined.
1. Testimony of Kuinsi Alexander
At the hearing on defendant Alexander's application for a preliminary injunction, defendant Alexander testified that he lives in Kolonia directly adjacent to Ambros Store. He is 31 years old and his occupation is taxi driver. He lives in the house with his wife, his children ages 10 and 2, and two brothers ages 21 and 18.
Defendant Alexander testified that he moved into the house sometime in the 1980s. When he moved in, Ambros Store was next to the property, but there were no refrigeration machine fans installed at that time. Later, defendant went to Guam. When defendant returned from Guam in 1993, six refrigeration fans had been installed at Ambros Store, and these fans were directly across from his house. Defendant testified that he complained to plaintiff Senda about the noise, but that plaintiff Senda refused to listen to defendant's complaints.
Defendant Alexander testified that the refrigeration fans are located on the ground level, on the side of the Ambros Store which faces defendant's house. There are six refrigerator fan units. Defendant stated that the closet machine is approximately ten to fifteen feet from his house; the second unit is maybe twenty feet from his house, the third unit is maybe twenty-five to thirty feet.
Defendant Alexander testified he is not comfortable staying in his house because of noise and heat created by the air conditioner and refrigeration machines for Ambros Store. Defendant Alexander estimated the distance between his residence and the closest machine at ten feet. Also, defendant Alexander stated that someone once broke into his house and stole a pick and he was not able to hear the intruder because of the noise generated by the machines. Further, defendant Alexander's uncle had an asthma attack but defendant could not help him since defendant could not hear his uncle when the attack occurred. Defendant Alexander stated the noise disturbs his and his family's sleep.
In an effort to mitigate the problem, defendant Alexander has boarded up the windows on the side of the house facing the air conditioning units. This has lessened the noise, but has by no means eliminated the problem. Defendant Alexander testified that in his opinion, plaintiff Senda could build a wall to reduce the effect of the noise and hot air coming onto his property.
2. Testimony of Pegrino Hadley
Defendant Alexander then called Pegrino Hadley to the stand. Mr. Hadley testified that he is 53 years old and is unemployed. He stated that a portion of the year he lives in Kolonia, and when he stays in Kolonia he resides with defendant Alexander in his house next to Ambros Store. Mr. Hadley testified that there is noise and heat in the house caused by the refrigeration fans. He has asthma, and one time he had an attack but, due to the noise generated by the machines, the other members in the house could not hear him and failed to assist him. Mr. Hadley testified that he has resided in the house
with defendant for three months, and the machines have not stopped running; they are on all day and all night, causing problems for the people who live in the house.
3. Testimony of Kondios Gornelius
Defendant Alexander then called Mr. Kondios Gornelius to the stand. Mr. Gornelius testified that he is 52 years old, and works for the Pohnpei State Department of Land and Natural Resources. Mr. Gornelius testified that he is a certified and licensed surveyor for the State of Pohnpei. Mr. Gornelius prepared a survey of the parcels of land occupied by Ambros Store and by defendant Alexander. The survey consisted of an as built survey of the structures on the parcels of land.
Mr. Gornelius testified that during his recent survey of the site, he determined that a portion of Ambros Store encroached onto the property occupied by defendant Alexander (parcel no. 007-A-018) by an amount of eleven square meters. The structures encroaching onto defendant Alexander's property include a staircase and the staircase extension. The distance between the closest encroaching structure (the staircase) and defendant Alexander's residence is approximately four meters. The staircase encroaches onto defendant Alexander's parcel a distance of approximately 2.8 feet.
On August 23, 2002, the court issued an order scheduling a site inspection for the purpose of having the parties take actual measurements of the distance between the refrigeration fans at Ambros Store and defendant Alexander's residence, and to examine the heat and noise allegedly produced by the machines. The purpose of the site inspection was for the court to better understand the circumstances existing at the site and thus to be able to make a determination as to whether a preliminary injunction should issue.
On August 26, 2002, a site inspection was conducted. Salomon Saimon appeared on behalf of plaintiffs, along with plaintiff Ambros Senda. Defendant Alexander was present and was represented by Tino Donre and Scott Garvey. The defendant Board of Trustees was represented by Joses Gallen. Also present were FSM Supreme Court Chief Justice Andon L. Amaraich, FSM National Justice Ombudsman Benjamin Rodriguez, and Staff Attorney Scott Dodd.
The machines observed at the site included 6 high-powered fans which are part of the refrigeration system for Ambros Store, and four large air conditioning units. As the 6 fan units are the ones alleged by defendant Alexander to be causing the noise and the heat, the distance between the fans and the closest part of defendant Alexander's residence was measured. The distance between the closest fan and the residence was 17 feet, 2.6 inches; the second closest fan was 24 feet, ½ inches; the third fan was 34 feet, 3.9 inches; the fourth fan was 39 feet, 8.2 inches; the fifth fan was 45 feet, 1.5 inches; and the sixth fan was 50 feet, 6.1 inches.
Rule 65(a) of the FSM Rules of Civil Procedure allows a party to apply for a preliminary injunction. FSM Civil Rule 65(c) provides that no preliminary injunction shall issue except upon the giving of security by the applicant, in such sum, if any, as the court deemed proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined.
In Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155, 161 (Pon. 1997), it was held that a reviewing court considers the following elements in determining whether to issue a preliminary
injunction: 1) the possibility of irreparable injury to the moving party; 2) the balance of possible injuries between the parties; 3) the movant's likelihood of success on the merits; and 4) any impact on the public interest.
1. Irreparable Injury. The court believes that defendant Alexander has established that he and those living with him at the residence have suffered and are continuing to suffer an irreparable injury. The refrigerator fans operate on and off for 24 hours a day, and the noise generated by the machines is substantial. And the type of injury caused by the constant and excessive noise is extremely difficult to quantify. It is the type of annoyance and disturbance to defendant Alexander and his family that is ever present and ongoing. Defendant Alexander and his uncle testified that their sleep is disturbed and that they have difficulty even having a conversation in the house. The court finds that defendant Alexander has established that he has suffered and continues an irreparable injury due to the constant operation of the refrigeration units at Ambros Store. The court finds this factor weighs strongly in favor of granting an injunction.
2. Balancing of Harms. Defendant Alexander has shown that he is suffering a continuing irreparable injury due to the operation of the refrigeration machines at Ambros Store. However, before the court can issue an injunction, it must consider the harm that the issuance of an injunction would cause to plaintiffs. Plaintiff Senda has argued that if an injunction issues, he would not be able to operate Ambros Store, causing great harm to plaintiff and the approximately 90 employees of Ambros Store. Further, plaintiff argues he has a right to use his land for commercial purposes.
The court finds that this factor does not clearly weigh in favor of either party. One of the parties will suffer if an injunction issues and one will suffer if an injunction does not issue.
3. Likelihood of Success on Merits. In Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998), the court discussed what a nuisance is and what behavior constitutes a nuisance.
"Nuisance" has many definitions, but is generally regarded as a substantial interference with the use and enjoyment of another's land caused by intentional and unreasonable conduct, or caused unintentionally by negligent or reckless conduct, or the performance of an abnormally dangerous conduct. A substantial interference is "actual, material, physical discomfort, material annoyance, inconvenience, discomfort, or hurt, or significant harm, that affects the health, comfort, or property of those who live nearby."
. . . . An intentional invasion1 of another's interest in property in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the conduct is serious and the financial burden of compensating for it and similar harm to others would not force the defendant out of business. In determining the gravity of the harm, the Court will consider the extent and character of the harm, the social value and suitability to the community of the use and enjoyment involved, and the burden on the person harmed of avoiding the harm. In determining the utility of the conduct, the Court will consider the social value and suitability to the community of the conduct, and the impracticability of preventing or avoiding the invasion.
8 FSM Intrm. at 534 (citations omitted) (footnote added).
In the present case, plaintiff's conduct of operating the refrigeration machines is intentional (in other words, non-negligent). Therefore, the court must determine whether plaintiff's conduct of operating the refrigeration machines in close proximity of defendant Alexander's residence is unreasonable. An intentional invasion of another's interest in the use and enjoyment of his land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the conduct is serious and the financial burden of compensating for it and similar harm to others would not force the defendant out of business.
While these guidelines help give the court an idea of what it needs to consider in evaluating whether plaintiffs' conduct of operating the fans (in such a manner as to cause harm to defendant Alexander) is unreasonable, it is very difficult to determine whether the gravity of the harm caused to defendant Alexander and his family outweighs the utility of plaintiffs' conduct. Clearly plaintiff's conduct has utility and adds value to the community. Plaintiff Senda runs a large supermarket which is patronized by many people who live in Pohnpei. There are not many supermarkets in Pohnpei, and plaintiff's business is an important source of food and other goods to many persons. However, the gravity of harm to defendant Alexander and his family is also very serious. The evidence shows that the refrigeration machine fans are very loud and create a substantial disturbance to defendant Alexander and his family.
Upon weighing the gravity of the harm against the utility of plaintiffs' conduct, the court believes that plaintiffs' conduct in operating the refrigeration machine fans in such close proximity to defendant Alexander's residence is unreasonable, and thus creates a nuisance. Therefore, the court finds that defendant Alexander has made out a prima facie case for nuisance against plaintiffs, and that this factor (likelihood of success on the merits) weighs in favor of the issuance of an injunction.
4. Impact Upon the Public Interest. As noted above, plaintiff Senda operates a large supermarket. Ambros Store is an important source of food to many people in Pohnpei, and a source of employment for many persons as well. The court finds that this factor weighs against the issuance of an injunction.
Upon weighing all of the factors, the court finds that would be appropriate for the court to issue an injunction. The court notes that during his testimony, defendant Alexander stated it might be an acceptable solution if plaintiff Senda constructed a wall between defendant Alexander's residence and the refrigeration fans.
Before issuing an injunction, the court wishes the parties to work together to come up with a solution acceptable to both parties. The court hereby orders the parties to file a joint report describing a proposed solution to the problem of the noise generated by the refrigerator fans within thirty (30) days of the date of entry of this order. After the report is submitted, the court may schedule a status conference to discuss the report with the parties and make further orders as appropriate.
_____________________________________Footnotes:
1 As opposed to a negligent invasion of another's interest in property. If the actor's conduct is negligent, then to establish a nuisance it must be shown that the actor's negligent or reckless conduct caused a substantial interference with the use and enjoyment of another's land.
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