FSM SUPREME COURT TRIAL DIVISION
Cite as Ambros & Co. v. Board of Trustees
12 FSM Intrm. 206 (Pon. 2003)

[12 FSM Intrm. 206]

AMBROS & COMPANY, INC. and AMBROS SENDA,
Plaintiffs,
 
vs.
 
BOARD OF TRUSTEES OF THE POHNPEI PUBLIC
LANDS TRUST and DOES 1-25,
Defendants,
 
KUINSI ALEXANDER,
Counterclaimant.
 
CIVIL ACTION NO. 2001-036
 
ORDER GRANTING ALEXANDER’S AND DENYING PLAINTIFF’S
SUMMARY JUDGMENT MOTION
 
Andon L. Amaraich
Chief Justice
 
Decided: October 27, 2003

APPEARANCES:

For the Plaintiffs:                  Salomon Saimon, Esq.
                                              Law Offices of Saimon & Associates
                                              P.O. Box 1450
                                              Kolonia, Pohnpei FM 96941
 
For the Defendant:               Marstella Jack, Esq.
(Board of Trustees)             Assistant Attorney General
                                              Pohnpei Department of Justice
                                              P.O. Box 1555
                                              Kolonia, Pohnpei FM 96941
 
For the Counterclaimant:    Sean P. Lynch, Esq.
(Alexander)                          Micronesian Legal Services Corporation
                                             P.O. Box 129
                                             Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure ) Summary Judgment
      A court, viewing the facts presented and inferences made in the light most favorable to the nonmoving party, must deny a motion for summary judgment unless it finds there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. Ambros &

[12 FSM Intrm. 207]

Co. v. Board of Trustees, 12 FSM Intrm. 206, 212 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     Once a party moving for summary judgment has presented a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing a genuine issue of material fact. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden, but must present some competent evidence that would be admissible at trial that there is a genuine issue of material fact. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 212 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     The presence of factual issues will not bar summary judgment if they are not material to the controlling legal issue of the case, and thus have no dispositive significance. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 212 (Pon. 2003).
 
Torts ) Trespass
     To prevail in an action for trespass, a party must prove a wrongful interference with his possessory interest in the property. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 212 (Pon. 2003).
 
Property ) Public Lands
     The Board of Trustees of the Pohnpei Public Lands Trust is the sole entity empowered and authorized to execute a lease agreement in regard to Pohnpei public lands, and when the Board has executed a residential lease agreement, the holder of the residential lease for the property is the present tenant and enjoys privity of contract and privity of estate in relation to that parcel. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 212 (Pon. 2003).
 
Property ) Public Lands
     Under Pohnpei law, an executory interest in the assignment of a public lands leasehold expires on the grantor’s death. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 212 (Pon. 2003).
 
Property ) Public Lands
     When an assignment of public land was never approved by the Board and by the form lease agreement’s terms, the tenant could not sublease, transfer or assign any interest in the premises without the Board’s prior written consent, the assignment could not become a possessory interest until the Board gave its written approval. Upon the assignor’s death, the leasehold interest became part of the assignor’s estate, and the assignment was extinguished. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 213 (Pon. 2003).
 
Torts ) Trespass
     When a party has a valid possessory interest in the property and has shown that another has interfered with his possessory interest, he has proved that the other has trespassed on property to which he has a superior right of possession and he is thus entitled to summary judgment against the other on his claims for trespass. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 213 (Pon. 2003).
 
Torts ) Nuisance
     To prevail on a claim for nuisance, a party must show that another substantially interfered with the use and enjoyment of his land by intentional or unreasonable 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.

[12 FSM Intrm. 208]

v. Board of Trustees, 12 FSM Intrm. 206, 214 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     When a party has failed to show that there are issues of material fact preventing the court from entering summary judgment against it on the trespass or nuisance claims, it is appropriate to enter summary judgment in the movant’s favor. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 214 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     A court must deny a summary judgment motion unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ambros & Co. v. Board of Trustees, 12 FSM Intrm. 206, 214 (Pon. 2003).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

     This matter comes before the court on motion of counterclaimant Kuinsi Alexander ("Alexander"), filed May 16, 2003, for summary judgment on his counterclaims for nuisance and trespass against plaintiff Ambros & Co., Inc. ("Ambros & Co."). For the reasons stated herein, the court will grant Alexander’s motion for summary judgment.

     Additionally, on May 23, 2003, plaintiff Ambros Senda ("Senda") filed a motion for summary judgment on the issue of returning this case to the Board of Trustees ("Board") to determine ownership of Parcel No. 007-A-0-18. That motion will be denied.

Background

A. Pleadings

1. First Amended Complaint

     Plaintiffs Ambros Senda and Ambros & Co., Inc.1 filed a complaint against defendant Board of Trustees of the Pohnpei Public Lands Trust and Kuinsi Alexander.2 Plaintiffs allege that Melterina Gomez executed a notarized instrument entitled "Assignment of Lease Land in Kolonia" for Lot No. 007-A-00 (the "assignment"). Plaintiff alleges that Ms. Gomez assigned all of her rights to Land Parcel No. 007-A-18 to plaintiff Senda.

     Plaintiffs allege that on November 30, 1994, Ms. Gomez submitted a letter to the chairman of the Board transmitting the assignment to the Board for the approval of her assignment of Parcel 007-A-

[12 FSM Intrm. 209]

18 to plaintiff Senda. On May 12, 1999, without ever acting upon the submission of Ms. Gomez for the assignment of the property to plaintiff Senda, defendant Board allegedly entered into a lease agreement with Kuinsi Alexander.

     Plaintiffs plead a cause of action against defendant Board for violation of their due process rights. They allege that the taking of their use of the property of Parcel 007-A-018 without notice and without an opportunity to be heard are violations of plaintiff’s constitutional right to due process guaranteed them in the Pohnpei State and FSM Constitutions.

     2. Kuinsi Alexander’s Counterclaim

     Alexander filed a counterclaim against plaintiff Ambros & Co., Inc. alleging that the heirs of Ms. Gomez executed a family agreement whereby Alexander would be the successor to her interest in Parcel 007-A-018. Alexander also alleges that on March 23, 1999, the Board issued a 25 year residential lease agreement with Alexander for the property.

     Alexander pleads claims of trespass and nuisance against Ambros & Co., Inc. Alexander alleges that Ambros & Co., Inc. constructed a concrete staircase and wooden structure which encloses several air conditioning machines as part of its retail store on the property adjoining Parcel 007-A-018. Alexander alleges that these structures are partially located on Parcel 007-A-018 and are an intrusion on Alexander’s exclusive possession of the property, constituting a trespass.

     Alexander also claims that the excessive noise and heat created by the air conditioning machines constitutes a nuisance. Alexander alleges he is entitled to damages for the trespasses and nuisance caused by Ambros & Co., Inc.’s operation of its store adjacent to his property (Parcel 007-A-018).

B. Kuinsi Alexander’s Motion for Partial Summary Judgment

     On May 16, 2003, Kuinsi Alexander filed a motion for summary judgment on his counterclaims against plaintiff Ambros & Company, Inc.3 for trespass and nuisance. Alexander states the following facts are undisputed, and support his motion for summary judgment.

     (1)      Alexander is the present holder of the residential property lease for Land Parcel No. 007-A-018. See Complaint, Ex. H.

     (2)      On November 30, 1994, Alexander’s mother (Melterina Gomez) and prior leasehold tenant of Parcel No. 007-A-018 attempted to assign her leasehold interest to plaintiff Ambros T. Senda. See Complaint, Ex. H.

     (3)      On June 22, 2001, plaintiff Senda attempted to sublease the pending assignment of Parcel 007-A-018 to plaintiff Ambros & Company, Inc. See Complaint, Ex. F.

     (4)      Defendant Board of Trustees never approved the assignment from Gomez to Senda, nor the sublease from Senda to Ambros. See Complaint, para. 24-25.

[12 FSM Intrm. 210]

1. Trespass

     Alexander claims that to prevail in an action for trespass, a party must prove a wrongful interference with his possessory interest in the property. The party’s possession may be actual or constructive but he must show superior right to possession in relation to his opponent.

      Alexander claims the defendant Board is the sole entity empowered and authorized to execute a lease agreement in regard to Pohnpei public lands, such as Parcel No. 007-A-18.4 Defendant Board executed a residential lease agreement for Parcel No. 007-A-18 on March 23, 1999 to Alexander.5 As the holder of the residential lease for the property, Alexander is the present tenant and enjoys privity of contract and privity of estate in relation to that parcel.6

      Alexander states that plaintiff Senda claims a right to Parcel No. 007-A-018 by way of an attempted assignment of the lease by Gomez, the former lessee of the property. Plaintiff Ambros & Co. claims a right to the property by way of a sublease agreement entered into between Senda and Ambros & Co. Alexander argues that each of the plaintiffs holds an executory interest in Parcel No. 007-A-18 contingent upon the approval by the Board of the assignment from Gomez to Senda. Alexander argues the executory interests held by the plaintiffs are inferior to Alexander’s present right to possession of Parcel No. 007-A-18.

      Alexander claims that by enjoying a superior right to Parcel No. 007-A-018 than either Senda or Ambros & Co., Alexander is entitled to damages for the past and present trespasses by plaintiff Ambros & Co. Alexander asserts that any executory interest given by Gomez to plaintiff Senda could not become a possessory interest until after the written approval of the Board. Upon Gomez’ death, Alexander claims the leasehold interest in Parcel Nol. 007-A-18 became part of her estate, see In re Estate of Francisco Sulap, PCA No. 70-94, at 12.

     Alexander’s claims of trespass is premised upon the wrongful interference of his right to exclusive possession of Parcel 007-A-18 by plaintiff Ambros & Co.’s concrete staircase, six air conditioning/refrigeration machines and the wooden structure which encloses the six machines. These items each intrude upon Alexander’s property. Ambros & Co. admits that the staircase intrudes upon Parcel 007-A-18, and admits that it erected and maintains the staircase without the permission of Alexander.7 Alexander contends that the erection, maintenance and use of these items constitutes a trespass, for which Alexander is entitled to damages.

2. Nuisance

     Alexander argues that the questions of fact of whether plaintiff’s interference with Alexander’s use and enjoyment of his land is substantial and caused by intentional or unreasonable conduct were addressed by this court in its November 13, 2002 order granting Alexander’s application for preliminary injunction. The court stated that the plaintiff Ambros & Co.’s conduct in operating the refrigeration

[12 FSM Intrm. 211]

machines in such close proximity to defendant Alexander’s residence is unreasonable. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262i (Pon. 2002). The court found that defendant Alexander had made out a prima facie case for nuisance against the plaintiffs. Id.

C. Plaintiff’s Opposition to Motion for Summary Judgment

     On May 23, 2003, plaintiff Ambros Senda8 filed an opposition to Alexander’s motion for partial summary judgment. Additionally, in the same filing, he makes a motion for partial summary judgment.

1. Opposition to Motion for Summary Judgment

     Plaintiff Ambros & Co. argues that there are triable issues of fact as to nuisance and that therefore Alexander’s motion for partial summary judgment must be denied. Ambros & Co. argues that it has permits by various government agencies to conduct a store and therefore cannot be blamed for the activities that are essential for the conduct of his business that may be causing a nuisance. The store has been around for a very long time. Plaintiff Senda has an assignment that gave him an interest in Parcel No. 007-A-18, and plaintiff Ambros & Co. has a sublease from plaintiff Senda.

     Ambros & Co. states that this court, in its June 14, 2002 order granting Alexander’s motion to dismiss, stated that (for purposes of that motion to dismiss):

     In this case, the facts and inferences drawn from plaintiffs’ complaint must be viewed by the court in the light most favorable to the plaintiffs. The court does not find that it appears to a certainty that no relief can be granted under any state of facts that could be proven in support of the claim. Indeed, there appears to be issued of fact which could conceivably result in plaintiffs prevailing in this action, such as why the assignment from Melterina Gomez to plaintiff Senda was never approved by the Board of Trustees.

[Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 17, 24 (Pon. 2002).]

     Ambros & Co. argues this ruling by the court prevents summary judgment from being entered in favor of Alexander because, in order for the court to rule on the nuisance and trespass issues, it must first determine ownership of the subject property. Ambros & Co. claims the issue of who has an interest in Parcel No. 007-A-18 must be decided before the court can decide the trespass and nuisance issues.

2. Senda’s Motion for Partial Summary Judgment

     Plaintiff Senda moves for summary judgment on the issue of "returning" the matter to the Board to determine the rights of the parties to Parcel No. 007-A-18. Senda argues that a state court is always the final arbiter of the meaning of state law, and that state court interpretations of state law which contradict prior rulings of the national courts are controlling.9

[12 FSM Intrm. 212]

Analysis

     A court, viewing the facts presented and inferences made in the light most favorable to the nonmoving party, must deny a motion for summary judgment unless it finds there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. Moses v. M.V. Sea Chase, 10 FSM Intrm. 45, 50 (Chk. 2001). Once a party moving for summary judgment has presented a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing a genuine issue of material fact. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden, but must present some competent evidence that would be admissible at trial that there is a genuine issue of material fact. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 99 (Pon. 2002); Urban v. Salvador, 7 FSM Intrm. 29, 30 (Pon. 1995). The presence of factual issues will not bar summary judgment if they are not material to the controlling legal issue of the case, and thus have no dispositive significance. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. at 99; FSM Dev. Bank v. Mudong, 10 FSM Intrm. 67, 77 (Pon. 2001).

A. Alexander’s Motion for Summary Judgment

     In the present motion, Alexander is moving for summary judgment on his claims for trespass and nuisance against counterclaim defendant Ambros & Co., Inc.

1. Trespass

     To prevail in an action for trespass, a party must prove a wrongful interference with his possessory interest in the property. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 155-6 (Pon. 1993). The Board is the sole entity empowered and authorized to execute a lease agreement in regard to Pohnpei public lands, such as Parcel No. 007-A-18. Public Lands Act of 1987, S.L. No. 1L-155-87 § 11(5), and D.L. No. 4L-153-78 § 1 (as amended, S.L. 1L-32-85). Defendant Board executed a residential lease agreement for Parcel No. 007-A-18 on March 23, 1999 to Alexander.10 As the holder of the residential lease for the property, Alexander is the present tenant and enjoys privity of contract and privity of estate in relation to that parcel.11

     Also, the law in Pohnpei is clear on the point that an executory interest in the assignment of a public lands leasehold (such as the one held by plaintiff Senda) expires on the death of the grantor. In re Estate of Francisco Sulap, PCA No. 70-94, at 12 (Pon. S. Ct. Tr. 1994); In re Estate of Halverson Johnny, PCA No. 34-91.

     In the case of In the Matter of the Estate of Halverson Johnny, Halverson Johnny executed a sublease agreement of a public lands lease to Sihna Neth. After Halverson passed away, Sihna Neth executed a sublease of the parcel to her brother Dion Neth, and the Board approved that sublease. At the same time, Halverson’s son, Joseph Johnny, sought to probate the estate of his deceased father and included within his father’s assets the lease to the public lands parcel that had been subleased to Sihna Neth. The court was faced with the issue of whether the Board’s approval of the second sublease, to Dion Neth, acted as a retroactive approval of the first sublease to Sihna Neth. The Pohnpei Supreme Court held that:

Inasmuch as the purported transfer of the lease did not follow the requirement of

[12 FSM Intrm. 213]

the law [required approval by the Board of Trustees], the court believes that Sihna Neth had never been given the legal authority to appropriate the lease of [the property]. Meaning, Sihna Neth was not clothed with the requisite authority to transfer the lot unto Dion Neth because the Board had never consented to Halverson Johnny’s purported transfer to Sihna Neth.12

     Additionally, the court stated that if the lease of the property from the Board to Halverson remained valid on January 26, 1990 (the day Halverson passed away), then the lease lot became a constituent part of the assets of Halverson Johnny’s estate. In re Estate of Johnny, at 8.

     In the case of In re Estate of Francisco Sulap, Promina Sulap assigned her interest in a public land lease to Agnes Etscheit. The Board rejected the assignment of the leasehold interest to Ms. Etscheit, and Promina Sulap later conveyed her entire leasehold interest to her son Francisco Sulap. The assignment to Francisco was never presented to or approved by the Board prior to the death of Promina Sulap, or the later death of Francisco Sulap. The heirs of Francisco Sulap included the public lands leasehold interest within the assets of their father’s estate, and Etscheit challenged the probate action, claiming rights to the leasehold interest on the basis of the prior assignment. The court held that:

     [I]t is concluded that [the property] remains part of the estate of Promina Sulap and not of Francisco Sulap at the death of the former on July 12, 1991. Being as it is, the petitioner has nothing to present to the Board for the [Board’s] approval so as to place the leasehold in question as part of the estate of Francisco Sulap.

     Applying the rule in [the Halverson case] to this case, the heirs of Promina Sulap, not the heirs of Francisco Sulap, should play the principal role in deciding whether they wish to give efficacy to Promina’s intention to transfer her lease of [the property] to Francisco Sulap, of course subject to the approval of the Board.13

     Plaintiffs Senda and Ambros & Co., Inc. claim a right to the property by way of an assignment from Melterina Gomez which was never approved by the Board. According to the terms of the form lease agreement for Parcel No. 007-A-18, the tenant shall not sublease, transfer or assign any interest in the premises without the prior written consent of the M&APL. Therefore, the assignment to Senda could not become a possessory interest for Senda until the Board gave its written approval. And upon the death of Gomez on November 28, 1998, the leasehold interest in Parcel No. 007-A-18 became part of her estate, and the assignment to plaintiff Senda (and the sublease to Ambros & Co.) was extinguished.

      The court believes that a determination of Alexander’s trespass claims does not require a decision by the court on the ownership of the property; a trespass only requires that the party establish a superior right to possession in relation to his opponent. The court believes Alexander has shown that he has a superior right to possession of Parcel No. 007-A-18 than Senda or Ambros & Co. due to his residential lease of the property approved by the Board. Senda (and Ambros & Co.) had an executory interest which was extinguished by the death of Gomez.

     The court finds that Alexander has a valid possessory interest in the property. Alexander has shown that counterclaim defendant Ambros & Co., Inc. has interfered with Alexander’s possessory

[12 FSM Intrm. 214]

interest. Thus, the court believes Alexander has proved that Ambros & Co. has trespassed on property to which Alexander has a superior right of possession, and that Alexander is entitled to summary judgment against Ambros & Co., Inc. on his claims for trespass.

2. Nuisance

     To prevail on a claim for nuisance, a party must show that another substantially interfered with the use and enjoyment of his land by intentional or unreasonable conduct. Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998). 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. Id.

     The court, in its November 13, 2002 order granting Alexander’s application for preliminary injunction, stated that the Ambros & Co.’s conduct in operating the refrigeration machines in such close proximity to Alexander’s residence was unreasonable. [Ambros & Co., 11 FSM Intrm. at 262i.] The court further found that Alexander had made out a prima facie case for nuisance against Ambros & Co. [Id.] Thus, for the present motion for summary judgment, the burden shifted to Ambros & Co. to present some competent evidence that there is a genuine issue of material fact. The court finds that Ambros & Co. has failed to show that there is a genuine issue of material fact.

     Therefore, as Ambros & Co. has failed to show that there are issues of material fact preventing the court from entering summary judgment against it on the trespass or nuisance claims, the court believes that it is appropriate to enter summary judgment in favor of Alexander and against Ambros & Co. The court will require Alexander, within 20 days of the date of entry of this order, to submit evidence of damages for trespass and nuisance.

B. Plaintiffs’ Motion

     Plaintiff Senda moves for summary judgment on the issue of "returning" the matter to the Board to determine the rights of the parties to Parcel No. 007-A-018. A court must deny a summary judgment motion unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Taulung v. Kosrae, 8 FSM Intrm. 270, 272 (App. 1998). The court finds that plaintiff Senda has failed to show entitlement to judgment as a matter of law. Therefore, plaintiff Senda’s motion fails to meet the requirements of Rule 56 and the court will deny the motion.

Conclusion

     Therefore, it is hereby ordered that Alexander’s motion for summary judgment is granted. Alexander is ordered to file, within twenty (20) days of the date of entry of this order, evidence establishing damages created by the trespass and nuisance.

     It is further ordered that plaintiff Senda’s motion for summary judgment is denied.

* * * *

____________________________

Footnotes:

1. On March 6, 2003, plaintiff Senda filed a first amended complaint against defendant Board. The original complaint included two plaintiffs; Ambros Senda and Ambros & Co., Inc. The first amended complaint seems to have omitted plaintiff Ambros & Co., Inc.

2. In plaintiffs’ original complaint, one Kuinsi Alexander was named as a defendant. In the first amended complaint, no causes of action are plead against Mr. Alexander. However, Mr. Alexander remains a party to this action by virtue of his counterclaims against Ambros & Co., Inc.

3. Alexander only counterclaimed against plaintiff Ambros & Co., Inc.; he pled no claims against plaintiff Ambros T. Senda.

4. Public Lands Act of 1987, Pon. S.L. No. 1L-155-87, § 11(5), and Pon. D.L. No. 4L-153-78, § 1 (as amended, Pon. S.L. No. 1L-32-85).

5. See Complaint, Ex. H and First Amended Complaint, Ex. C.

6. 49 Am. Jur. 2d Landlord and Tenant § 1, at 42-43 (1970).

7. See Pls.’ Answer to Counterclaim at 2, para. 8.

8. This is inaccurate; as Alexander filed no claims against plaintiff Senda, plaintiff Senda would not be able to oppose Alexander’s motion for summary judgment. The court will consider the opposition to be filed by counterclaim defendant Ambros & Co., Inc. so that it may consider the arguments contained therein.

9. Citing Pohnpei v. M/V Hai Hsiang #36(I), 6 FSM Intrm. 594, 601 (Pon. 1994). However, to call such this particular motion a motion for "summary judgment" is procedurally improper. See discussion infra.

10. See Complaint, Ex. H and First Amended Complaint, Ex. C.

11. 49 Am. Jur. 2d Landlord and Tenant § 1, at 42-43 (1970).

12. In re Estate of Johnny, at 8.

13. In re Estate of Francisco Sulap, PCA No. 70-94 at 12-13.