KOSRAE STATE COURT TRIAL DIVISION
Cite as Benjamin v. Youngstrom
13 FSM Intrm. 72 (Kos. S. Ct. Tr. 2004)

[13 FSM Intrm. 72]

KERICK AND SHRA BENJAMIN,
Plaintiffs,
 
vs.
 
VERNON YOUNGSTROM, KOSRAE LAND
COURT, and STATE OF KOSRAE,
Defendant.
 
CIVIL ACTION NO. 162-04
 
ORDER DENYING INJUNCTIVE RELIEF;
SETTING HEARING DATE; SETTING TRIAL WEEK
 
Yosiwo P. George
Chief Justice
 
Hearing: December 8, 2004
Decided: December 10, 2004

APPEARANCES:

For the Plaintiffs:             Snyder Simon, trial counselor
                                         P.O. Box 1017
                                         Tofol, Kosrae FM 96944
 
For the Defendant:         Albert Welly
(Youngstrom)                  j Kosrae State Legislature
                                        P.O. Box 187
                                        Tofol, Kosrae FM 96944
 
For the Defendants:      J.D. Lee, Esq.
(State & Court)              Acting Attorney General
                                       Office of the Kosrae Attorney General
                                       P.O. Box 870
                                       Tofol, Kosrae FM 96944

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HEADNOTES

Civil Procedure ) Injunctions
     Rule 65(b) requires that the plaintiff show by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result. When the plaintiffs' complaint is signed by both plaintiffs, but is not notarized, the complaint is not verified and does not meet Rule 65(b)ís requirements; when the plaintiffs' affidavit does not allege the details of immediate and irreparable injury, loss, or damage; and when the plaintiffs' application is defective as it does not contain any memorandum of points and authorities, the plaintiffs have not provided legal authority for granting of injunctive relief. Benjamin v. Youngstrom , 13 FSM Intrm. 72, 74 (Kos. S. Ct. Tr. 2004).
 
[13 FSM Intrm. 73]
 
Civil Procedure ) Injunctions
     A court must consider four criteria in determining whether to grant a preliminary injunction: 1) likelihood of success on the merits of the party seeking injunctive relief; 2) the possibility of irreparable injury; 3) the balance of possible injuries or inconvenience to the parties which would result from granting or denying relief; and 4) any impact upon the public interest. Injunctive relief will be granted when three of the four, or four of the four factors favor granting of the preliminary injunction. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 75 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Injunctions
     As to the likelihood of success on the merits, a court may grant a preliminary injunction so long as the movant's position raises serious, nonfrivolous issues. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 75 (Kos. S. Ct. Tr. 2004).
 
Property ) Registered Land
     Certificates of title are prima facie evidence of ownership as therein stated against the world, and a court is required to attach a presumption of correctness to them when considering challenges to their validity. Since a certificate of title issued to the defendant carries a presumption of correctness, it must be presumed that the defendant is the true owner of the parcel. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 75 (Kos. S. Ct. Tr. 2004).
 
Property ) Registered Land
     Someone who has transferred the certificate of title to another person is no longer the fee owner of the parcel and therefore has no rights to the parcel. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 75 (Kos. S. Ct. Tr. 2004).
 
Domestic Relations ) Probate; Property
     A person may only transfer such title to land as that person lawfully possesses. If the grantor had no authority to bequeath the property, plainly the devisees acquired no title to the property. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 75 (Kos. S. Ct. Tr. 2004).
 
Domestic Relations ) Probate; Civil Procedure ) Injunctions
     When the plaintiffsí predecessor in interest no longer held title to the parcel in April 2002, when he wrote his will, he could not transfer any interest in the parcel, by will or otherwise, to the plaintiffs or to anyone else and therefore the plaintiffs do not have likelihood of success on the merits. This factor weighs strongly in the defendantsí favor. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 75-76 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Injunctions
     The granting of injunctive relief requires the possibility of irreparable injury. Permanent damage to property is irreparable injury. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 76 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Injunctions
     When the plaintiffs do not allege a specific irreparable injury and when they seek injunctive relief to stop the defendantís interference and potential disconnection of electricity from the subject parcel, but they fail to show how these actions will result in irreparable injury, the disconnection of electricity, without more, does not constitute irreparable injury and the possibility of irreparable injury weighs in the defendantís favor. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 76 (Kos. S. Ct. Tr. 2004).
 
Property
     Implicit in the concept of ownership of property is the right to exclude others; that is a true owner of land exercises full dominion and control over it and possesses the right to expel intruders.

[13 FSM Intrm. 74]

Benjamin v. Youngstrom, 13 FSM Intrm. 72, 76 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Injunctions
     When it would be inconvenient to plaintiffs to live without electricity or to be required to move from the parcel, as demanded by the defendant and when it would also be inconvenient to defendant, who holds prima facie title to the parcel, to be prohibited from acting as the true owner of the property, this factor is weighted equally between the plaintiffs and the defendant. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 76 (Kos. S. Ct. Tr. 2004).
 
Civil Procedure ) Injunctions
     Since the public interest supports the acceptance of prima facie evidence of property ownership through the certificate of title, to which the court must attach a presumption of correctness, and supports the validity and integrity of the Kosrae land registration process and registration of title documents and documents that transfer an interest in land, the public interest weighs in the titleholderís favor. Benjamin v. Youngstrom, 13 FSM Intrm. 72, 76 (Kos. S. Ct. Tr. 2004).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     Plaintiffs filed their Complaint and Application for Temporary Restraining Order on December 1, 2004. The Complaint alleges contract claims, violation of statute and violation of due process by Kosrae State Land Commission and Kosrae Land Court. A hearing was held on December 8, 2004. As notice of the hearing was served upon all parties, and all parties appeared at the hearing, the Plaintiffs' Application for Temporary Restraining Order was transformed into an Application for Preliminary Injunction. Kos. Civ. R. 65.

     Plaintiffs are residing on parcel 048-K-07. The Certificate of Title for the subject parcel was issued to Defendant Vernon Youngstrom on July 3, 2002. Based upon the allegations made in the Complaint, Defendant purchased the parcel from one Timothy Likiak in September 2001, for the purchase amount of $3000. The transfer of title was made by Quitclaim Deed dated September 4, 2001, which was notarized at this Court. The Quitclaim Deed was recorded by the Registrar of the Land Court, also on September 4, 2001. The Quitclaim Deed states that Timothy Likiak was awarded the Certificate of Title for the parcel on June 28, 1985. The Kosrae Land Court issued the Certificate of Title for parcel 048-K-07 to the Defendant on July 3, 2002.

     Plaintiffs claim that Defendant has repeatedly asked the Plaintiffs to vacate the parcel, and that on November 15, 2004, requested Kosrae Utilities Authority to disconnect electrical power to the parcel by the end of November 2004. Plaintiffs seek injunctive relief to stop interference by the Defendant.

I. Plaintiffs' Application for Injunctive Relief is Procedurally Defective.

     KRCP Rule 65(b) requires that Plaintiff show by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result. The Plaintiffs' Complaint is signed by both Plaintiffs, but it is not notarized. Therefore the Complaint is not verified and does not meet the requirements of KRCP Rule 65(b). The Plaintiffs' affidavit does not allege the details of immediate and irreparable injury, loss or damage. Further, Plaintiffs' Application is defective as it does not contain any memorandum of points and authorities. Plaintiffs have not provided legal authority for granting of injunctive relief.

[13 FSM Intrm. 75]

II. Standard for Injunctive Relief

     A court shall consider four criteria in determining whether to grant a preliminary injunction:

1. likelihood of success on the merits of the party seeking injunctive relief.

2. the possibility of irreparable injury

3. the balance of possible injuries or inconvenience to the parties which would result from granting or denying relief

4. any impact upon the public interest

Palik v. Henry , 9 FSM Intrm. 309 (Kos. S. Ct. Tr. 2000). Injunctive relief will be granted when three of the four, or four of the four factors favor granting of the preliminary injunction. Seventh Kosrae State Legislature v. Sigrah. 11 FSM Intrm. 110 (Kos. S. Ct. Tr. 2002).

1. Likelihood of success on the merits of the party seeking injunctive relief.

     As to the likelihood of success on the merits, a court may grant a preliminary injunction so long as the movant's position raises serious, nonfrivolous issues. Palik v. Henry, 9 FSM Intrm. 309 (Kos. S. Ct. Tr 2000). Plaintiffs claim that they are now the owners of the parcel based upon the will of Timothy Likiak. The Defendant is the holder of the Certificate of Title for the subject parcel. Plaintiffs admit that the Defendant purchased the parcel from Timothy Likiak for $3000 in September 2001. The Quitclaim Deed, which transferred ownership of the parcel from Likiak to the Defendant, was executed and recorded on September 4, 2001. The Certificate of Title was issued to the Defendant on July 3, 2002. The Plaintiffs, in a letter dated February 4, 2002, offered to buy back the parcel from the Defendant for $3000. Through this action, Plaintiffs have acknowledged the prior sale of the property from Likiak to the Defendant.

     The Certificate of Title is prima facie evidence of ownership as therein stated against the world, and a court is required to attach a presumption of correctness to them when considering challenges to their validity. Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390 (Pon. 1996); Sigrah v. Kosrae State Land Commín, 9 FSM Intrm. 89 (Kos. S. Ct. Tr. 1999). The Certificate of Title issued to the Defendant carries a presumption of correctness. Therefore, it must be presumed that the Defendant is the true owner of the parcel.

     Someone who has transferred the Certificate of Title to another person is no longer the fee owner of the parcel and therefore has no rights to the parcel. Jack v. Paulino, 10 FSM Intrm. 335 (Kos. S. Ct. Tr. 2001). The Plaintiffs have alleged and have submitted copy of a quitclaim deed which transferred the interest of Timothy Likiak in the parcel to the Defendant. The Quitclaim Deed, dated September 4, 2001, was notarized at this Court and recorded at the Kosrae Land Commission on that same date. Therefore, as of September 4, 2001, Timothy Likiak no longer had any rights to the parcel.

     A person may only transfer such title to land as that person lawfully possesses. Muritok v. William, 8 FSM Intrm. 574 (Chk. S. Ct. Tr. 1998). If the grantor had no authority to bequeath the property, plainly the devisees acquired no title to the property. Id. Here, Timothy Likiak no longer held title to the parcel in April 2002, when he wrote his will. Therefore he could not transfer any interest in the parcel, by will or otherwise, to the Plaintiffs or to anyone else.

     Based upon the facts alleged in the Complaint, Plaintiffs do not have likelihood of success on the

[13 FSM Intrm. 76]

merits. This factor weighs strongly in favor of the Defendant.

2. The possibility of irreparable injury.

      The granting of injunctive relief requires the possibility of irreparable injury. This Court has recognized permanent damage to property as irreparable injury. In the case of Sigrah v. Kosrae, 12 FSM Intrm. 513 (Kos. S. Ct. Tr. 2004), this Court granted injunctive relief to prohibit the Defendants from destroying crops and damaging land through bulldozing. This Court has also recognized that actions which affect the operations and customer relations of a business may result in irreparable injury. This Court granted injunctive relief in a case where former employees who had been terminated were continuing to interfere with the business operations and customer relations of their former employer. Wayne Harden v. Ruth Sigrah et al., Civil Action No. 32-04.

     Here, in their affidavit, Plaintiffs do not allege specific irreparable injury. Plaintiffs seek injunctive relief to stop interference from the Defendant and potential disconnection of electricity from the subject parcel. However, Plaintiffs fail to show how these actions will result in irreparable injury. I conclude that disconnection of electricity, without more, does not constitute irreparable injury. Plaintiffs have failed to show the possibility of irreparable injury in support of their application for injunctive relief. The possibility of irreparable injury weighs in favor of the Defendant.

3. The balance of possible injuries or inconvenience to the parties which would result from granting or denying relief.

     It is recognized that it would be inconvenient to Plaintiffs to live without electricity or to be required to move from the parcel, as demanded by the Defendant. It is also inconvenient to Defendant, who holds prima facie title to the parcel, to be prohibited from acting as the true owner of the property. As the presumed fee owner, the Defendant maintains the right to control activities on his land, and to eject trespassers from the parcel. Implicit in the concept of ownership of property is the right to exclude others; that is a true owner of land exercises full dominion and control over it and possesses the right to expel intruders. Elaija v. Edmond, 9 FSM Intrm. 175 (Kos. S. Ct. Tr. 1999). This factor is weighted equally between the Plaintiffs and the Defendant.

4. Any impact upon the public interest.

     Public interest supports the acceptance of prima facie evidence of property ownership through the Certificate of Title. In accordance with statutory and caselaw, this Court must attach a presumption of correctness to the Certificate of Title issued to the Defendant, in support of the validity and integrity of the Kosrae land registration process and registration of title documents and documents which transfer an interest in land. Public interest weighs in favor of the Defendant.

III. Order Denying Plaintiffs' Application for Injunctive Relief.

     This Court concludes that the Application for Injunctive Relief is defective on procedural grounds, as the Plaintiffs have not complied with the requirements of the KRCP. The Application may be denied on this basis alone. However, this Court's consideration of the Plaintiffs' Application is made on substantive grounds, through consideration of the four factors enumerated in Palik v. Henry.

     Injunctive relief will be granted when three of the four, or four of the four factors favor granting of the preliminary injunction. Seventh Kosrae State Legislature v. Sigrah. 11 FSM Intrm. 110 (Kos. S. Ct. Tr. 2002). Based upon the analysis made above, the first, second and third factors: likelihood of success on the merits, irreparable harm, and impact upon public policy, all weigh in favor of the

[13 FSM Intrm. 77]

Defendant. Accordingly, the minimum standard for the granting of injunctive relief has not been met. Plaintiffs' Application for Injunctive Relief is therefore denied. The Defendant, who holds prima facie title to the parcel and is the presumed fee owner of the parcel 048-K-07, may take any and all actions consistent with his rights of ownership of the parcel.

IV. State's Motion to Dismiss

     On December 7, 2004, State filed a Motion to Dismiss Defendants Kosrae Land Court and State of Kosrae. Also on December 7, 2004, Plaintiff filed a response to the Motion, claiming that the State's Motion should not be heard at the December 8, 2004 hearing, due to inadequate time for the Plaintiff to respond to the State's Motion. The State's Motion to Dismiss is now set for hearing on December 17, 2004. All responsive papers shall be filed no later than December 16, 2004, by 12 pm noon.

V. Pre-Trial Deadlines and Trial Week

     As stated at the hearing, trial of this matter is accelerated to promptly hear and dispose of this matter. The following pre-trial deadlines and trial week are set as follows:

Deadline for filing and serving pre-trial motions: December 23, 2004
Deadline for filing and serving pre-trial briefs:     January 5, 2005
Trial Week:                                                        January 10, 2005
 
The pre-trial briefs shall contain the following items:
 
1. Concise statement of partyís claims or defenses, including legal theories.
2. Any facts or other matters to which the parties have stipulated.
3. Issues of fact remaining to be litigated.
4. Issues of law to be litigated.
5. Witnesses for party by name and brief description of testimony.
 
Copies of exhibits which have been stipulated to by counsel should be attached to the submission.

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