KOSRAE STATE COURT TRIAL DIVISION
Cite as Skilling v. Kosrae State Land Comm地
13 FSM Intrm. 16 (Kos. S. Ct. Tr. 2004)

[13 FSM Intrm. 16]

HARRIS H. SKILLING,
Plaintiff,
 
vs.
 
KOSRAE STATE LAND COMMISSION
and KOSRAE STATE GOVERNMENT,
Defendants.
 
ORDER GRANTING MOTION TO DISMISS; ORDER OF DISMISSAL
 
Yosiwo P. George
Chief Justice
 
Hearing: September 29, 2004
Decided: October 7, 2004

APPEARANCES:

For the Plaintiff:             Robinson Timothy, trial counselor
                                       P.O. Box 261
                                       Tofol, Kosrae FM 96944
 
For the Defendants:     Paliknoa Welly
                                      State Prosexutor
                                      Office of the Kosrae Attorney General
                                      P.O. Box 870
                                      Tofol, Kosrae FM 96944

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HEADNOTES

Attorney, Trial Counselor and Client ) Disqualification of Counsel
     A former employee of the now defunct Kosrae State Land Commission who was not employed by the Land Commission in 1984 when the Determination of Ownership was issued for the subject parcel does not have any conflict of interest in this matter. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 18 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Motions
      Failure to file a timely opposition to a motion (not later than ten days after service of the motion) is deemed a consent to the motion and the court, may in its discretion, refuse to hear oral argument in opposition to the motion. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 18 (Kos. S. Ct. Tr. 2004).

[13 FSM Intrm. 17]

Civil Procedure ) Dismissal; Civil Procedure ) Motions
     The "statute of limitations" is an affirmative defense which must be raised in either the answer or in a motion to dismiss. A plaintiff's failure to timely oppose a defendant's motion to dismiss is deemed a consent to the motion. However, even without opposition, the court still needs good grounds before it can grant the motion. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 19 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Dismissal; Statute of Limitations
     When a determination of ownership by the Land Commission is subject to appeal to the Court within 120 days from the date of receipt of notice of the determination and when it is alleged that the plaintiff never received notice of the determination of ownership, accepting the alleged facts as true, then the appeal time limit of 120 days never began to run. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 19 (Kos. S. Ct. Tr. 2004).
 
Statute of Limitations
     Kosrae State Code, Title 6, Chapter 25 establishes the statutes of limitations which are applicable to specific types of civil actions. All actions in Kosrae State Court must be commenced within the time period stated therein. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 19 (Kos. S. Ct. Tr. 2004).
 
Statute of Limitations
     A cause of action accrues when the right to bring suit on a claim is complete. The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 19 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Dismissal; Statute of Limitations
     Claims against the Land Commission for violation of statute and violation of due process are subject to a limitations period of six years. When claims against the Land Commission based upon Land Commission actions which took place in 1984 and before occurred more than six years ago, they are barred by the statute of limitations and should be dismissed. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 19 (Kos. S. Ct. Tr. 2004).
 
Statute of Limitations
     A complaint against the Land Commission does not assert a claim for the recovery of land or recovery of an interest in land against the defendants, as the defendants have not been granted ownership of the land. Therefore the twenty year statute of limitations for recovery of an interest in land does not apply to claims against the Land Commission for violation of due process and violation of statute. These claims are subject to a limitations period of six years. Skilling v. Kosrae State Land Comm地, 13 FSM Intrm. 16, 19 (Kos. S. Ct. Tr. 2004).

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COURT担 OPINION

YOSIWO P. GEORGE, Chief Justice:

     Plaintiff filed his Complaint on July 26, 2004. Defendants have filed a Motion to Dismiss on August 25, 2004. The Plaintiff did not file a timely response to the Defendant's Motion to Dismiss. The Plaintiff filed a Rebuttal to Defendant's Motion to Dismiss on September 13, 2004. A hearing on Defendant's Motion to Dismiss was held on September 29, 2004. Plaintiff appeared with his counsel,

[13 FSM Intrm. 18]

Robinson Timothy. Defendants were represented by Paliknoa Welly, Office of the Attorney General.

     As a preliminary matter, Mr. Timothy's potential conflict of interest was addressed first, as Mr. Timothy was formerly employed by the now defunct Kosrae State Land Commission. Mr. Timothy served as a Realty Specialist for the Land Commission, checking procedures for the Land Registration Teams. Mr. Timothy stated that he was not employed by the Land Commission in 1984, when the Determination of Ownership was issued for the subject parcel. Therefore, it appears that Mr. Timothy does not have any conflict of interest in this matter.

     The Plaintiff'痴 failure to file a timely opposition to the Defendants' Motion was addressed next. The Plaintiff did not file any timely opposition to the Defendant's Motion to Dismiss, which was required by September 6, 2004. KRCP Rule 6(d) requires a party opposing a motion to filed an serve responsive papers not later than ten days after service of the motion upon him. Plaintiff's failure to file a timely memorandum in opposition to the Motion to Dismiss is deemed a consent to the Motion. Actuoka v. Etpison, 1 FSM Intrm. 275 (Pon. 1983); Talley v. Talley, 10 FSM Intrm. 570 (Kos. S. Ct. Tr. 2002). Accordingly, this Court, may in its discretion, refuse to hear oral argument by Plaintiff in opposition to the Motion. Plaintiff requested leniency by the Court as this was his first case and appearance before this Court. The Court granted the request and permitted the Plaintiff to present his argument at the hearing. The Court notes that counsel's failure to file a timely opposition to a Motion to Dismiss may be considered a violation of the Model Rules of Profession Conduct, Rules 1.1 and 1.3, which require competent representation and reasonable diligence by legal counsel.

I. Background.

     The Defendants seek dismissal of the Complaint, claiming that the statute of limitations has lapsed by nearly twenty years. Defendants argue that the Plaintiff's remedy was to appeal the decision of the Land Commission, within the 120 days provided by former Section 11.614 (repealed). The Complaint alleges violation of statute and violation of due process by Kosrae State Land Commission. The Complaint alleges that the Land Commission, without notice to the Plaintiff, improperly issued the Determination of Ownership and the Certificate of Title to Tedrick and Atchiro Melander for parcel 007U10. Plaintiff alleges in his Complaint that the Plaintiff, who had inherited parcel 007U10 from his father, Henry Skilling, had sold parcel 007U10 to Tedrick Melander for $350, based upon a verbal agreement. Plaintiff further alleges that Tedrick Melander made partial payment to Plaintiff, the payment being $50 and one barrel of gasoline. Plaintiff alleges that no further payments were made by Tedrick Melander.

     The Land Commission issued the Determination of Ownership to Tedrick in September 1984. There is no record that Plaintiff was given notice of the Land Commission proceedings. Plaintiff alleges that he was not given notice of the Preliminary Inquiry, the Formal Hearing or the Determination of Ownership. The Determination of Ownership and Certificate of Title for parcel 007U10 were issued to Tedrick Melander by the Land Commission.

     Plaintiff claims that the Land Commission violated Kosrae State Code, former Kosrae State Code, Title 11 (repealed), and the Kosrae State Constitution through conducting the land registration process for parcel 007U10 without notice to the Plaintiff. Defendant claims that the Plaintiff's remedy to the issuance of the Determination of Ownership was to appeal the Determination of Ownership. Defendant further claims that Plaintiff has sued the wrong parties and that Plaintiff should have sued the owners of parcel 007U10.

[13 FSM Intrm. 19]

II. Analysis.

     Defendants have filed a timely Motion to Dismiss under KRCP Rule 12. The "statute of limitations" is an affirmative defense which must be raised in either the answer or in a Motion to Dismiss. Plaintiff's failure to timely oppose the Defendant's Motion to Dismiss is deemed a consent to the Motion. However, even without opposition, the Court still needs good grounds before it can grant the Motion. Beal Bank S.S.B. v. Maras, 11 FSM Intrm. 351 (Chk. 2003).

     Kosrae State Code, former Section 11.614 (repealed) sets forth the provisions for appeal of a Determination of Ownership issued by the former Land Commission and is applicable in this case: "A determination of ownership by the Commission is subject to appeal to the Court within 120 days from the date of receipt of notice of the determination."

     Here, it is alleged that the Plaintiff never received notice of the Determination of Ownership for parcel 007U10. Accepting the alleged facts as true, then the appeal time limit of 120 days never began to run, based upon Plaintiff's non-receipt of the Determination of Ownership for the subject parcel. I conclude that Kosrae State Code, former Section 11.614, and the corresponding appeal time limit of 120 days is not applicable here.

     Plaintiff's claims as made in the Complaint are stated as violation of due process and violation of statute. The statutes of limitations are established by Kosrae State Code, Title 6, Chapter 25. Chapter 25 establishes the statutes of limitations which are applicable to specific types of civil actions. All actions in Kosrae State Court must be commenced within the time period stated in Kosrae State Code, Title 6, Chapter 25. Jonah v. Kosrae, 9 FSM Intrm. 335 (Kos. S. Ct. Tr. 2000).

     A cause of action accrues when the right to bring suit on a claim is complete. The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. Skilling v. Kosrae, 9 FSM Intrm. 608 (Kos. S. Ct. Tr. 2000). A cause of action accrues when the right to bring suit to a claim is complete. Kosrae v. Skilling, 11 FSM Intrm. 311 (App. 2003). Here, the cause of action accrued when the Determination of Ownership for the subject parcel were served. See Sigrah v. Kosrae State Land Comm'n, 11 FSM Intrm. 169 (Kos. S. Ct. Tr. 2002). Accepting the allegations made in the Complaint at true, the Determination of Ownership for parcel 007U10 was issued to Tedrick Melander in September 1984. Therefore, the cause of action accrued in September 1984, approximately twenty years ago.

     Claims against the Land Commission for violation of statute and violation of due process are subject to a limitations period of six years. All claims against the Land Commission which are based upon actions which occurred more than six years ago are barred by the statute of limitations and should be dismissed. Sigrah v. Kosrae State Land Comm地, 11 FSM Intrm. 169 (Kos. S. Ct. Tr. 2002). Here, Plaintiff's claims are all based upon actions of the Land Commission which took place in 1984 and before. These actions occurred more than six years ago and are barred by the statute of limitations.

     The Complaint does not assert a claim for the recovery of land or recovery of an interest in land against the Defendants, as the Defendants have not been granted ownership of parcel 007U10. Therefore the twenty year statute of limitations established by Kosrae State Code, Section 6.2503 does not apply here. The twenty year statute of limitation established by Section 6.2503 does not apply to claims against the Land Commission for violation of due process and violation of statute. These claims are subject to a limitations period of six years. Sigrah v. Kosrae State Land Comm地, 11 FSM Intrm. 169 (Kos. S. Ct. Tr. 2002).

     Plaintiff's claims against Defendants Kosrae State Land Commission and the Kosrae State

[13 FSM Intrm. 20]

Government are barred by the limitations period of six years, pursuant to Kosrae State Code, Section 6.2503. Accordingly, the Defendants' Motion to Dismiss must be granted. The Complaint is therefore dismissed with prejudice.

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