KOSRAE STATE COURT TRIAL DIVISION
Cite as James v. Lelu Town
11 FSM Intrm. 337 (Kos. S. Ct. Tr. 2003)

[11 FSM Intrm. 337]

LIVINGSTON JAMES,
Plaintiff,
 
vs.
 
LELU TOWN GOVERNMENT,
Defendant.
 
CIVIL ACTION NO. 106-01
 
ORDER GRANTING RELIEF FROM ORDER OF DISMISSAL
 
Yosiwo P. George
Chief Justice
 
Hearing: January 15, 2003
 
Decided: January 20, 2003
 
APPEARANCES:
 
For the Plaintiff:                   Canney L. Palsis, Esq.
                                              Micronesian Legal Services Corporation
                                              P.O. Box 38
                                              Lelu, Kosrae FM 96944
 
For the Defendant:             Clanry Likiaksa
                                             P.O. Box 764
                                             Lelu, Kosrae FM 96944

[11 FSM Intrm. 338]

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HEADNOTES

Civil Procedure ) Dismissal
     When the plaintiff failed to file any papers to advise the court of the defendants failure to complete his performance as ordered and when the plaintiff also failed to request a delay of the dismissal, to accommodate the additional time needed to obtain permits, the court properly assumed that the land filling had been completed as agreed to by the parties and as ordered by the court, and the courts dismissal of the case was proper and in accordance with its earlier order. James v. Lelu Town, 11 FSM Intrm. 337, 339 (Kos. S. Ct. Tr. 2003).
 
Contracts ) Formation; Settlement
     When the parties settled rather than go to trial on damages a contract was formed between the parties ) the defendant offered specific performance to fill land and in exchange, the plaintiff accepted the offer and agreed to not go to trial on the issue of damages. There was thus an offer and acceptance, consideration, and mutual assent by both parties. James v. Lelu Town, 11 FSM Intrm. 337, 339 (Kos. S. Ct. Tr. 2003).
 
Contracts; Settlement
     When a settlement contract for landfill of Muraka was formed between the parties that was not dependent on the cases active status, the contract is still enforceable because the cases status (pending or dismissed) was not part of the agreement. Therefore, the defendant is still liable to the plaintiff because the cases dismissal did not affect the parties contract or the courts order when the courts order was based upon the parties agreement and not upon any trial on damages. James v. Lelu Town, 11 FSM Intrm. 337, 339-40 (Kos. S. Ct. Tr. 2003).

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COURTS OPINION

YOSIWO P. GEORGE, Chief Justice:

     On December 31, 2002, Plaintiff filed a Motion for Relief from Order of Dismissal and to Compel Defendant to do Landfill as Ordered. Defendant filed a Respond to Plaintiffs Motion on January 8, 2003. The Plaintiffs Motion is decided without a hearing, pursuant to GCO 1998-6. Based upon the information submitted to this Court, the record in this matter, applicable law and in the interests of justice, Plaintiffs Motion for Relief from Order of Dismissal is granted. The Courts ruling and basis are set forth below.

I. Background.

     The Plaintiffs claims in this case were contract claims, that the Defendant, through former Mayor Joab Sigrah, promised to fill Plaintiffs land at Muraka, in exchange for use of a portion of the Plaintiffs land for an access road. The Plaintiffs land was taken and the access road was built, however the Defendant never completed the landfill at Muraka as promised.

     The Plaintiff filed a Motion for Summary Judgment, which was granted on the issue of liability at the hearing on May 8, 2002. On the issue of damages, the Plaintiff requested that the Defendant fill the land at Muraka as originally promised. The Defendant agreed to specific performance and agreed to fill the Plaintiffs land at Muraka. In the presence of the Court, the parties agreed to specific performance on the issue of damages in this matter. Defendant agreed to fill the land at Muraka as promised. James v. Lelu Town, 10 FSM Intrm. 648 (Kos. S. Ct. Tr. 2002). The Court ordered the

[11 FSM Intrm. 339]

filling to be completed within 6 months, by November 8, 2002. The Order also provided that if no further action was required by the Court, the matter would be dismissed on November 8, 2002. None of the parties filed any papers after the May 9, 2002 Order. Accordingly, on November 11, 2002, this matter was dismissed with prejudice.

      Plaintiff now claims that the Defendant refuses to do the filling because the case has been dismissed. Plaintiff claims that the permits required for the land fill have not yet been obtained and therefore the land filling has not yet been started. Specifically, the Plaintiff needs to obtain a DRC permit for filling of the marine area. Plaintiff also needs to obtain a lease with the State of Kosrae to permit filling of the marine area owned by the State. Both of these documents the permit and the lease - are still pending and have not been issued.

     Defendant claims that the Plaintiff should have filed papers before November 8, 2002, to delay the dismissal of the case. Plaintiff did not file anything, therefore, the Court properly dismissed the case.

II. Analysis.

     The Plaintiff failed to file any papers with the Court, to advise the Court of the status of the permits and the failure of the Defendant to complete the filling by November 8, 2002 as ordered. The Plaintiff also failed to request a delay in the dismissal of the case at that time, to accommodate the additional time needed to obtain the DRC permit and the lease from the State. Since nothing was filed by either party by November 8, 2002, this Court properly assumed that the land filling had been completed at Muraka, as agreed to by the parties and as ordered by the Court, by November 8, 2002. Since no papers were filed by any party, dismissal of this case, by Order entered on November 11, 2002, was proper and in accordance with the Courts Order of May 9, 2002.

     Following the entry of summary judgment in favor of the Plaintiff at the hearing on May 8, 2002, the parties voluntarily reached a settlement regarding damages, at the hearing, in the presence of the Court. The May 9, 2002 Order describes the settlement:

The issue of damages was addressed next by the parties. The Plaintiff stated that he requested specific performance by the Defendant, for the Defendant to fill the land at Muraka as promised. The Defendant agreed to specific performance and agreed to fill the Plaintiffs land at Muraka as promised. In the presence of the Court, the parties agreed to specific performance on the issue of damages in this matter. Therefore, trial on the issue of damages is not necessary. Pursuant to the settlement made by the parties, the Defendant shall complete filling of the Plaintiffs land at Muraka as promised.

[James, 10 FSM Intrm. at 650.] Therefore, a contract was formed between the parties for filling of the Plaintiffs land at Muraka. Defendant offered specific performance to fill the land at Muraka. In exchange, the Plaintiff accepted the offer and agreed to not go to trial on the issue of damages. There was an offer and acceptance, consideration, and mutual assent by both parties.

     The contract for landfill of Muraka that was formed between the parties was not dependent on the active status of this case. This contract between the parties is still enforceable because the status of the case (pending or dismissed) was not part of the agreement. Therefore, the Defendant is still liable to the Plaintiff to fill his land at Muraka as promised, and as agreed to in the presence of the Court on May 8, 2002.

     The dismissal of the case did not affect the parties contract or the Courts order to the

[11 FSM Intrm. 340]

     Defendant to complete the filling. The Courts Order was based upon the parties agreement and not upon any trial on damages.

III. Conclusion and Order.

     The Order of Dismissal, entered on November 11, 2002, is hereby set aside. The Defendant is ordered to complete the land filling at Plaintiffs land, Muraka, pursuant to the settlement agreement reached in the presence of the Court on May 8, 2002 and pursuant to the Courts Order entered on May 9, 2002. The Defendant shall complete the land filling within six months after all necessary permits are granted. The Plaintiff shall notify the Court and the Defendant in writing when all necessary permits and leases are granted, and when the land fill can be started by the Defendant. The Plaintiff shall notify the Court in writing when the land fill has been completed by the Defendant.

     The Plaintiff is reminded that he is responsible to notify the Court when the Defendant has not complied with a Court ordered deadline. If the Court receives nothing from the Plaintiff, the Court will assume that the Defendant has complied with the Courts Order. In this case, the Plaintiff should have filed papers by November 8, 2002 to inform the Court of the status of permits, the delay in the land filling, and to request a delay in the dismissal of the case.

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