CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Dereas v. Eas, 14 FSM Intrm. 446 (Chk. S. Ct. Tr. 2006)

[14 FSM Intrm. 446]

KEICHI DEREAS and ISAUO KUENA,

Plaintiffs,

vs.

SEWEN EAS, individually and in his capacity as

representative for any claimants to the land known

as Lots No. 029-A-22 and 029-A-23,

Defendants,

and NAHOY SELIFIS,

Intervenor.

CSSC CIVIL CASE NO. 109-2003

MEMORANDUM AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Dennis Yamase

Special Trial Division Justice

Hearings: August 16, 2004, August 29, 2006

Decided: October 12, 2006

APPEARANCES:

For the Plaintiffs:   Stephen V. Finnen, Esq.

                                Law Offices of Saimon & Associates

                                P.O. Box 1450

                                Kolonia, Pohnpei   FM   96941

For the Defendants:   Hans Wiliander

                                     P.O. Box 389

                                     Weno, Chuuk   FM   96942

For the Intervenor:   George Hauk

                                  P.O. Box 1405

                                  Weno, Chuuk   FM   96942

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HEADNOTES

Civil Procedure ) Summary Judgment

    Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. The moving party has the burden of showing a lack of triable issues of fact. If a genuine issue of material fact is present then the trial

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court must deny the summary judgment motion. Dereas v. Eas, 14 FSM Intrm. 446, 453 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Summary Judgment

    In order to succeed on a summary judgment motion, a plaintiff must also overcome all affirmative defenses that have been raised. Dereas v. Eas, 14 FSM Intrm. 446, 453 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Summary Judgment

    Once the 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 that a genuine issue of material fact remains for resolution. An adverse party opposing summary judgment may not rest upon the mere allegations or denials of his pleading, but must respond by affidavits (or some competent evidence that would be admissible at trial) setting forth specific facts showing that there is a genuine issue for trial, and that there is enough evidence supporting its position to justify a decision upholding his claim by a reasonable trier of fact. Unsupported factual assertions are insufficient to oppose a summary judgment motion. Dereas v. Eas, 14 FSM Intrm. 446, 453 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Summary Judgment

    If a plaintiff moves for summary judgment on an affirmative defense, putting forth arguments and evidence indicating that there is no material fact at issue and that the affirmative defense is insufficient as a matter of law, the party asserting the affirmative defense must produce some evidence or the moving party is entitled to partial summary judgment. Dereas v. Eas, 14 FSM Intrm. 446, 453 (Chk. S. Ct. Tr. 2006).

Constitutional Law ) Case or Dispute ) Standing; Property ) Registered Land

    A party has standing to challenge a certificate of title when, although he admits that some of the land was sold to others, he asserts that even after those sales, he still retained part of the land. Dereas v. Eas, 14 FSM Intrm. 446, 453-54 (Chk. S. Ct. Tr. 2006).

Property ) Registered Land

    Certificates of title are by statute, prima facie evidence of ownership stated therein as against the world, and because of this, a court must attach a presumption of correctness to them when considering challenges to their validity or authenticity. Dereas v. Eas, 14 FSM Intrm. 446, 454 (Chk. S. Ct. Tr. 2006).

Constitutional Law ) Due Process; Property ) Registered Land

    No court can grant as relief a request to set aside or nullify a certificate of title to a person who is not a party before the court and effectively award someone else ownership to some or all of the land for which the certificate of title was issued because that would have the court void a certificate of title in a manner that would violate every notion of due process of law. Dereas v. Eas, 14 FSM Intrm. 446, 454 (Chk. S. Ct. Tr. 2006).

Constitutional Law ) Due Process ) Notice and Hearing

    The essence of due process is notice and an opportunity to be heard. Dereas v. Eas, 14 FSM Intrm. 446, 454 (Chk. S. Ct. Tr. 2006).

Constitutional Law ) Due Process ) Notice and Hearing; Judgments ) Collateral Attack

    A judgment (or final order) entered against a person without notice or an opportunity to be heard is void and is subject to direct or collateral attack at any time, and a court that lacks personal jurisdiction over a person cannot enter a valid judgment against that person. Dereas v. Eas, 14 FSM

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Intrm. 446, 455 (Chk. S. Ct. Tr. 2006).

Jurisdiction ) Personal

    In civil cases, a court has personal jurisdiction only over persons who have been duly summoned, that is, made a party by valid service of process. Dereas v. Eas, 14 FSM Intrm. 446, 455 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Parties; Constitutional Law ) Due Process; Property ) Registered Land

    In any lawsuit to remove someoneís name from a certificate of title, that is, to deprive a person of ownership of the registered land that the certificate represents, due process requires that that person is an indispensable party to the action. Dereas v. Eas, 14 FSM Intrm. 446, 455 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Parties; Constitutional Law ) Due Process; Property ) Registered Land

    No court can set aside, void, nullify, invalidate, or alter a personís certificate of title to land without that person first having been made a party to the action before the court. Dereas v. Eas, 14 FSM Intrm. 446, 455 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Parties; Property ) Registered Land

    As a general rule, a certificate of title can be set aside only on the grounds of fraudulent registration. While the Land Commission may be a necessary party to such an action, the titleholder is an indispensable party to any action to set aside, void, nullify, or alter the titleholderís certificate of title who must be joined, or any ensuing adjudication is void. Dereas v. Eas, 14 FSM Intrm. 446, 455 n.3 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Parties; Jurisdiction ) Personal; Property ) Registered Land

    A court is not competent to rule on the validity of a certificate of title to land when the court does not have (by its own statement) subject matter jurisdiction over the case and does not have personal jurisdiction over indispensable parties (the titleholders) or give them notice or an opportunity to be heard. Its orders were void and an order invalidating a personís certificate of title may even be void on its face when it held that that person was an indispensable party who was not present in the case and then proceeded to invalidate his certificate of title without him having been made a party to the case. Dereas v. Eas, 14 FSM Intrm. 446, 455 (Chk. S. Ct. Tr. 2006).

Constitutional Law ) Due Process

    One alleged due process violation does not justify an aggrieved partyís retaliatory due process violations. Dereas v. Eas, 14 FSM Intrm. 446, 455 n.4 (Chk. S. Ct. Tr. 2006).

Property ) Registered Land

    When the one personís certificate of title was voided and a new certificate of title covering the same land issued to another person without notice to the first person and affording the first person an opportunity to be heard, it was a denial of due process and that action was void. Dereas v. Eas, 14 FSM Intrm. 446, 455 (Chk. S. Ct. Tr. 2006).

Property ) Land Commission; Statutes of Limitation

    A six yearsí statute of limitations applies to all claims to which neither the specific twenty-year, or two-year statutes, apply. Claims against the Land Commission for violation of due process, as they are not claims for the recovery of land (twenty-year statute of limitation), are subject to a six-year limitations period and are barred and will be dismissed when the Land Commission actions are all over six years old since a complaint against the Land Commission cannot assert a claim for the recovery of an interest in land against the defendant Land Commission because it does not own any interest in the land at issue. Dereas v. Eas, 14 FSM Intrm. 446, 456 n.5 (Chk. S. Ct. Tr. 2006).

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Civil Procedure ) Summary Judgment; Evidence ) Hearsay

    An account of evidence adduced in a hearing in another case to which the movant was not a party and a hearing at which he was not present or had an opportunity to be heard, even presuming (which the court cannot do) that the evidence presented then is accurately characterized now, is not admissible and cannot be used against the movantís summary judgment motion. Dereas v. Eas, 14 FSM Intrm. 446, 456 (Chk. S. Ct. Tr. 2006).

Evidence ) Hearsay

    Former testimony is not admissible unless the party against whom the testimony is now offered (or a predecessor in interest) had an opportunity and similar motive to develop that testimony by direct, cross, or redirect examination. Dereas v. Eas, 14 FSM Intrm. 446, 456 (Chk. S. Ct. Tr. 2006).

Statutes of Limitation

    The statute of limitations bars a claim to an interest in land if the cause of action arose more than twenty years before the action is brought ) if the claim could have been made over twenty years before it was actually made, then the action can no longer be maintained, no matter how meritorious the claim. Dereas v. Eas, 14 FSM Intrm. 446, 456 (Chk. S. Ct. Tr. 2006).

Statutes of Limitation

    Actions for the recovery of land or any interest therein must be started within twenty years after the cause of action accrues. A claim to land clearly cannot be renewed when the statute of limitations on an action to recover an interest in land is twenty years and more than twenty years have passed since the certificate of title in anotherís favor was issued. Any subsequent attempt to litigate the landís ownership is barred by the statute of limitations. Dereas v. Eas, 14 FSM Intrm. 446, 456 (Chk. S. Ct. Tr. 2006).

Statutes of Limitation

    If an action accrued to a predecessor in interest, the twenty years statute of limitations is computed when the action first accrued to the predecessor. The statute of limitations does not start to run all over again each time there is a new successor in interest. Dereas v. Eas, 14 FSM Intrm. 446, 457 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Notice; Property ) Registered Land

    A personís certificate of title on file at the Chuuk Land Commission constituted notice to the world of that personís ownership of all of the land it was for and that certificate and the Plat No. cited constituted notice of the boundaries of the ownership. Dereas v. Eas, 14 FSM Intrm. 446, 457 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Notice

    Constructive notice is a concept through which actual notice is imputed to a party regardless of whether that party has actual knowledge of the imputed facts. A party has constructive notice when from all the facts and circumstances known to him at the relevant time, he has such information as would prompt a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence. Dereas v. Eas, 14 FSM Intrm. 446, 457 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Notice

    Substantial, open, and notorious occupation of land is constructive notice of the occupantís claim and puts all persons on inquiry as to the nature of the occupantís claim, and whoever willfully avoids learning of such trespass will be charged with constructive notice. Dereas v. Eas, 14 FSM Intrm. 446, 457 (Chk. S. Ct. Tr. 2006).

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Torts ) Fraud

    The elements of fraud or intentional misrepresentation in Chuuk are: 1) a misrepresentation by party, 2) scienter or the partyís knowledge that the statements were untrue, 3) intent to cause another to rely on the misrepresentations, 4) causation or actual reliance by the other, 5) justifiable reliance by the other, and 6) damages. Dereas v. Eas, 14 FSM Intrm. 446, 457 (Chk. S. Ct. Tr. 2006).

Statutes of Limitation ) Tolling

    A statue of limitation may be tolled (suspended) if the person who is liable to any action fraudulently conceals the cause of action from the knowledge of a person entitled to bring the action. Dereas v. Eas, 14 FSM Intrm. 446, 457-58 (Chk. S. Ct. Tr. 2006).

Civil Procedure ) Pleadings; Torts ) Fraud

    In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity, although a personís malice, intent, knowledge, or other condition of mind may be averred generally. Dereas v. Eas, 14 FSM Intrm. 446, 458 (Chk. S. Ct. Tr. 2006).

Property ) Registered Land

    When no court with jurisdiction to do so has ever invalidated or altered a personís certificate of title to a lot and the statute of limitations bars any further action to invalidate that certificate, the presumption of that certificateís correctness has not been overcome and the titleholderís motion to quiet title to that lot will be granted. Dereas v. Eas, 14 FSM Intrm. 446, 458 (Chk. S. Ct. Tr. 2006).

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COURTíS OPINION

DENNIS K. YAMASE, Special Trial Division Justice:

     On August 16, 2004, the court heard Isauo Kuenaís Motion for Summary Judgment, filed November 19, 2003 (with a supporting affidavit and exhibits), and Keichi Dereasís Motion for Partial Summary Judgment, filed February 13, 2004 (with a supporting affidavit and exhibits). The courtís September 7, 2004 order granted Isauo Kuena summary judgment, expressly found no just cause for delay, and directed that judgment be entered in his favor. Dereas v. Eas, 12 FSM Intrm. 629, 633 (Chk. S. Ct. Tr. 2004). That judgment was entered the same day and the time to appeal it has passed. Kuena is thus no longer a party to this action.

     That left Keichi Dereasís motion to be decided. His motion; Supplement to Summary Judgment Motion by Keichi Dereas with supporting affidavit, filed February 11, 2004 (the supplement was filed two days before the motion); intervenorís Opposition to Motion for Summary Judgment with supporting affidavits, filed May 24, 2004; Reply in Support of Motion for Summary Judgment by Keichi Dereas, filed May 31, 2004; Supplemental Reply in Support of Motion for Summary Judgment by Keichi Dereas with exhibit, filed June 29, 2004; and a Supplemental Reply in Support of Motion for Summary Judgment by Keichi Dereas with exhibit, filed August 16, 2004, were also before the court for the hearing on Dereasís motion.

     On August 16, 2004, Dereas appeared through counsel, Stephen V. Finnen. Defendants appeared in person (through Akuo Eas) and through counsel, Hans Wiliander. The intervenor, Nahoy G. Selifis, did not appear. After the hearing, Selifis filed the following: Motion Requesting the Court to Consider the Pleadings on File, filed August 18, 2004; and Begging Leave of Court to File Supplemental Pleading Opposition, Response to Supplemental Reply in Support of Summary Judgment by Keichi Dereas, Supplemental Response to Reply to the Motion for Summary Judgment by Keichi Dereas,

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all filed August 23, 2004. These are also considered, to the extent they apply to Dereasís motion. The Defendantsí Opposition to Isauo Kuenaís Motion for Summary Judgment with exhibits, filed January 15, 2004, is considered in ruling on this motion to the extent that its arguments apply. Also before the court are Dereasís Response to Court Order, filed November 10, 2004; Dereasís Supplemental Reply in Support of Summary Judgment Motion, filed December 4, 2004; and the Intervenorís Response in Opposition to Supplemental Reply of Plaintiff Keichi Dereas, filed October 27, 2005.

     In light of the additional filings, reargument of Dereasís partial summary judgment motion was set for June 15, 2006 and continued to August 29, 2006. At the reargument, the court granted the oral motion to substitute Sewen Eas in place of Akuo Eas (also known as Akuo Mokuk) as the named defendant since Akuo Eas had died, Chk. Civ. R. 25(a)(1), and further ordered that Eas and Selifis had until September 5, 2006, to file and serve on the other parties, the documents (along with English translations), that each asked the court to receive in evidence and gave any party time to file any objection to the accuracy of a translation offered or other response. Selifis filed an unsworn statement (and an English translation thereof) of Erichy Helzer, a former surveyor with the Chuuk Land Commission. Eas filed nothing and Dereas filed a further Supplemental Reply in Support of Summary Judgment Motion.

I.   Background

     The following facts are undisputed. On September 4, 1979, Akeisuk Mokok sold Keichi Dereas some land, for which Dereas received a typewritten deed. The deed was registered as Document 792 on June 23, 1980, at the Truk Land Commission. On May 4, 1981, Dereas was issued a certificate of title for "Lot 029-A-23 known as Uonou #2" which was described as containing "an area of 10,863 Sq. Meters." The certificate of title was endorsed on the back with a Trust Territory indefinite land use right and a notation that the parcelís boundary delineation was as on Plat No. 029-A-01, which had been registered as Document No. 753 on March 18, 1980. (In 1984, a land lease with the State of Truk replaced the Trust Territory land use right. This was not noted on the certificate, although leases longer than one year should be. 67 TTC 117(1)(c).)

     On September 3, 1991, Selifis purchased some land from Akeisuk Mokok, for which he received a handwritten deed signed by Mokok and witnessed by Akiuo Eas. This deed was apparently not recorded.

     In 1996, Akuo Eas (on behalf of himself and Akeisuk Mokokís other children) filed a suit in the Chuuk State Supreme Court (Civil Action No. 43-96) against the Senior Land Commissioner and the State of Chuuk, claiming that they still owned part of Lot No. 029-A-23 and that a boundary survey between their part and that sold to Keichi Dereas and Isauo Kuena should be done. On December 1, 1997, the court remanded the matter to the Land Commission to determine the boundary between the land sold to Dereas and Kuena and the claimed unsold portion of the lot. The court also noted that neither Dereas nor Kuena were parties. Then, on November 20, 1998, the court again ordered the case remanded to the Chuuk Land Commission. The court also ruled that it had no jurisdiction and that indispensable parties (Dereas and Kuena) had not been joined. But the court then set aside the certificates of title for Lots 029-A-23 (Dereas) and 029-A-22 (Kuena) and dismissed the case.

     On September 13, 2002, Akuo Eas (individually and on behalf of Akeisuk Mokokís other children) again filed suit in the Chuuk State Supreme Court (Civil Action No. 176-2002), naming Chuuk State Planning, Chuuk Land Commission, Chuuk Department of Education, and the State of Chuuk as the only defendants, and obtained a temporary restraining order barring the state and an engineering company hired by the state from further using the property until they were paid compensation. On September

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23, 2002, the court, in a chambers hearing, modified the restraining order so that the property could continue in its then current uses by the state (for high school dormitories) and by the engineering company (as an office and storage site). On September 25, 2002, the court entered an order that (1) concurred with the 43-96 courtís initial statement that the 43-96 court did not have jurisdiction over the matter; (2) noted that, although the Eas parties claimed that the Civil Action No. 43-96 orders made them owners of the property, those orders did no such thing; and (3) held that the 43-96 court orders could not be considered a judgment on any issue since those who held certificates of title to the property had not been parties to that case. The 176-2002 court (1) ordered the Eas plaintiffs to file and serve an amended complaint naming Dereas and Kuena (and certain others) as additional defendants since they were indispensable parties; (2) set a date to hear Easís preliminary injunction motion; and (3) further ruled that the 43-96 orders had "no force and effect as evidence of title to subject property." Memorandum and Orders at 12 (Civ. No. 176-2002 Sept. 25, 2002).

     The Eas plaintiffs did not amend their complaint and failed to appear at the scheduled preliminary injunction motion hearing. The court therefore dismissed Civil Action No. 176-2002 without prejudice but with the warning that if the Eas plaintiffs refiled the case without joining the clearly indispensable parties, their case would then be dismissed with prejudice.

     The Eas parties did not refile the case. Instead, on April 17, 2003, their counsel wrote to various state agencies demanding that no further rental payments be made for the property because, in his view, the state would then be in contempt of the Civil Action No. 43-96 court orders. In reaction to this, titleholders Keichi Dereas and Isauo Kuena filed this quiet title action against Eas on July 2, 2003. On August 1, 2003, Selifis, moved to intervene on the ground that the land he bought from Akeisuk Mokok in 1991 was, in his view, the part of Lot No. 019-A-23 that Mokok had not sold to Dereas in 1979. The motion was granted on September 30, 2003.

II.   Partiesí Positions

     Plaintiff Keichi Dereasís motion seeks summary judgment to quiet title on Lot No. 029-A-023, known as Uonou #2. In support of this motion, Dereas attaches his affidavit, his counselís affidavit, a copy of his deed, a copy of the May 8, 1981 certificate of title showing him to be the owner "of an estate in fee simple" of Lot No. 029-A-23, two Chuuk State Supreme Court orders from Civil Action No. 43-96 (the same orders as were attached to the defendantsí opposition to Kuenaís motion), two Chuuk State Supreme Court orders from Civil Action No. 176-2002, and a copy of a letter from Akuo Easís counsel to the state instructing it not to make any rental payments for Lot Nos. 029-A-09, 029-A-23 and Netu #3. Dereas contends that he is entitled to summary judgment because he holds a certificate of title to Lot No. 029-A-23 and courts are required to presume that certificates of title are correct when considering challenges to their validity or authenticity; because the statute of limitations to challenge his title has expired; and because the orders in Civil Action No. 43-96 are void for lack of due process. Dereas collaterally attacks the Civil Action No. 43-96 orders.

     The defendants ("Eas") contend that the certificate of title is in error - that only part, not all, of Uonou #2 was sold to Dereas in 1979; that Dereas, or the Land Commission, or both acting in concert, unlawfully enlarged the purchase to include all of Uonou #2.  They further contend that the 43-96 courtís invalidation of Dereasís certificate of title creates a genuine issue of material fact precluding

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summary judgment because then, in their view, the issue became what part of Uonou #2 did Dereas buy and where is the boundary between that part and the part not sold to Dereas. Selifis makes the same contentions.

     Selifisís answer raises as affirmative defenses: (1) that since Civil Action No. 43-96 remanded the matter to the Land Commission, this court lacks jurisdiction to quiet title; (2) that Dereas fails to state a claim upon which relief may be granted; and (3) that Dereas has no standing to bring this action because his certificate of title was invalidated in Civil Action No. 43-96. (Selifis was not a party to Civil Action No. 43-96.) Selifis further asserts that the Land Commissionís issuance of a certificate of title to Lot No. 029-A-23 was fraudulent so that no statute of limitations applies, and that, if a statue of limitations applies it should start to run in 1991, when he bought the "unsold" part of Lot No. 029-A-23.

III.   Summary Judgment Standard

     Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Chk. Civ. R. 56(c); Sauder v. Chuuk State Legislature, 7 FSM Intrm. 358, 360, 363 (Chk. S. Ct. Tr. 1995). The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. The moving party has the burden of showing a lack of triable issues of fact. Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994). If a genuine issue of material fact is present then the trial court must deny the summary judgment motion. Bualuay v. Rano, 11 FSM Intrm. 139, 149 (App. 2002). In order to succeed on a summary judgment motion, a plaintiff must also overcome all affirmative defenses that have been raised. Lee v. Lee, 13 FSM Intrm. 68, 71 (Chk. 2004); FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001).

     Once the 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 that a genuine issue of material fact remains for resolution. An adverse party opposing summary judgment may not rest upon the mere allegations or denials of his pleading, but must respond by affidavits (or some competent evidence that would be admissible at trial) setting forth specific facts showing that there is a genuine issue for trial, and that there is enough evidence supporting its position to justify a decision upholding his claim by a reasonable trier of fact. Ueda v. Stephen, 9 FSM Intrm. 195, 197 (Chk. S. Ct. Tr. 1999); Ifraim, 10 FSM Intrm. at 345; Marar v. Chuuk, 9 FSM Intrm. 313, 314-15 (Chk. 2000). Unsupported factual assertions are insufficient to oppose a summary judgment motion. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 579 (Pon. 2002). If a plaintiff moves for summary judgment on an affirmative defense, putting forth arguments and evidence indicating that there is no material fact at issue and that the affirmative defense is insufficient as a matter of law, the party asserting the affirmative defense must produce some evidence or the moving party is entitled to partial summary judgment. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 186 (Pon. 2001).

IV.   Analysis

A.   Preliminary Considerations

     Dereas asserts that Eas may have no standing to challenge his certificate of title. For this he relies on intervenor Selifisís assertion that he bought all of the part of the Lot No. 029-A-23 that Akeisuk Mokok had not sold to Dereas. Eas, however, admits that some of Lot 029-A-23 was sold to Dereas and that later some was sold to Selifis, but seems to assert that even after those sales, Mokok still retained part of Uonou #2 (Lot No. 029-A-23). Otherwise, Akuo Eas would not have later tried to obtain compensation from the state for its use of Lot. No. 029-A-23.

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     Dereas also asserts that Eas has impliedly consented to his summary judgment motion by never filing an opposition to that motion. The court, however, deems Easís filed opposition to Kuenaís summary judgment motion to be Easís opposition to Dereasís motion because at the August 16, 2004 hearing Eas stated on the record that the Eas defendants did not dispute Isauo Kuenaís title to Lot No. 029-A-22 (Uonou #4), Dereas, 12 FSM Intrm. at 632, and because Easís written opposition to Kuenaís motion relies on the same grounds (the Civil Action No. 43-96 orders) as Easís stated opposition to Dereasís motion.

B.   Effect of Previous Cases

     Keichi Dereas holds a certificate of title, issued May 4, 1981, for Lot No. 029-A-23, Uonou #2. Certificates of title are by statute, prima facie evidence of ownership stated therein as against the world, and because of this, a court must attach a presumption of correctness to them when considering challenges to their validity or authenticity. Stephen v. Chuuk, 11 FSM Intrm. 36, 41 (Chk. S. Ct. Tr. 2002); see also Hartman v. Chuuk, 12 FSM Intrm. 388, 400 (Chk. S. Ct. Tr. 2004); Marcus v. Truk Trading Corp., 11 FSM Intrm. 152, 158 (Chk. 2002).

     Eas and Selifis, in their oppositions, and Selifis in his affirmative defenses, contend that Dereas does not have a valid certificate of title to Lot No. 029-A-23 because the Civil Action No. 43-96 court voided that certificate so that there is a genuine issue of material fact about how much of Lot No. 029-A-23 Dereas owns and where the boundary of what he owns lies. In support, Selifis provides a statement of a retired Land Commission surveyor that he does not recall that boundary ever being surveyed. Eas and Selifis assert that the Civil Action No. 43-96 orders are fully valid, that those orders have never been set aside by any court, and that this court must then follow them and conclude that Dereasís certificate of title is invalid and that Dereas only has a claim to part of Lot No. 029-A-23, the location and size of which is to be determined later. Dereas collaterally attacks the validity of any order in Civil Action No. 43-96 that purports to have any effect on his title to any and all parts of Lot 029-A-23 on the ground that those orders are void for lack of due process.

     The statements of Eas and Selifis about the 43-96 ordersí continued validity are not quite accurate and their legal conclusions are faulty. The Civil Action No. 176-2002 court held that it could give no force or effect to the 43-96 courtís orders, findings, or conclusions concerning title to any of Lot No. 029-A-23. The non-movantsí reliance on the 43-96 courtís invalidation of Dereasís certificate of title to Lot No. 029-A-23 is misplaced.

     It is undisputed that Dereas was never a party in Civil Action No. 43-96 and that he never had any notice of that action or an opportunity to be heard. The 43-96 court never had personal jurisdiction over Dereas. No court can grant as relief a request to set aside or nullify a certificate of title to a person who is not a party before the court and effectively award someone else ownership to some or all of the land for which the certificate of title was issued because that would have the court void a certificate of title in a manner that would violate every notion of due process of law. Anton v. Cornelius, 12 FSM Intrm. 280, 288-89 (App. 2003); Anton v. Heirs of Shrew, 12 FSM Intrm. 274, 277 (App. 2003). The essence of due process is notice and an opportunity to be heard. Kama v. Chuuk, 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002).

[14 FSM Intrm. 455]

     A judgment (or final order) entered against a person without notice or an opportunity to be heard is void and is subject to direct or collateral attack at any time, Pastor v. Ngusun, 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002); Hartman v. Bank of Guam, 10 FSM Intrm. 89, 97 (App. 2001), and a court that lacks personal jurisdiction over a person cannot enter a valid judgment against that person, Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 281 (5th Cir. 1987). In civil cases, a court has personal jurisdiction only over persons who have been duly summoned, that is, made a party by valid service of process. Joeten Motor Co. v. Jae Joong Hwang, 7 FSM Intrm. 326, 327 (Chk. S. Ct. Tr. 1995). Dereas was never duly summoned in Civil Action No. 43-96 so that court never had personal jurisdiction over him. In any lawsuit to remove someoneís name from a certificate of title, that is, to deprive a person of ownership of the registered land that the certificate represents, due process requires that that person is an indispensable party to the action. Marcus, 11 FSM Intrm. at 158 n.4.

     Thus no court can set aside, void, nullify, invalidate, or alter a personís certificate of title to land without that person first having been made a party to the action before the court. That being so, the court in Civil Action No. 43-96 had no power or jurisdiction to either invalidate Dereasís certificate of title to Lot No. 029-A-23 or to remand the matter to Land Commission for it to take any action concerning that certificate since Dereas was not a party to Civil Action No. 43-96 that had been duly summoned to appear before the court in that action. The 43-96 court had no jurisdiction or power to make any order concerning Dereasís certificate of title including any order to the Land Commission that would affect Dereasís certificate of title. The only power the 43-96 court had was to dismiss the case for lack of subject matter jurisdiction and for failure to join indispensable parties. All other acts of that court are void for the reasons stated.

     This present case is the first time that a court has been competent to rule on the validity of Dereasís certificate of title to Lot No. 029-A-23. The 43-96 court was not competent to because it did not have (by its own statement) subject matter jurisdiction over the case and it did not have personal jurisdiction over indispensable parties or give them notice or an opportunity to be heard. Its orders were void and its November 20, 1998 order invalidating Dereasís certificate of title may even be void on its face because it held that Dereas was an indispensable party who was not present in the case and then proceeded to invalidate his certificate of title without Dereas having been made a party to the case (although the order did not mention the name on the certificate of title). The court in Enlet v. Chee Young Family Store, 9 FSM Intrm. 563, 564-65 (Chk. S. Ct. Tr. 2000) held that when the Land Commission voided one personís certificate of title and issued a new certificate of title covering the same land to another person without notice to the first person and affording the first person an opportunity to be heard, it was a denial of due process and that Land Commission action was void. The same is true of the courtís action in Civil Action No. 43-96.

[14 FSM Intrm. 456]

     Therefore, to the extent they were not already set aside by the courtís order in Civil Action No. 176-2002, all acts and orders in Civil Action No. 43-96,other than that caseís dismissal for want of jurisdiction, are, as a matter of law, declared null and void and without any effect whatsoever. Having successfully collaterally attacked the orders in Civil Action No. 43-96, Dereas has overcome the affirmative defenses raised by Selifis since those defenses relied on the continued effectiveness of the 43-96 courtís remand and certificate of title invalidation orders. Those orders are void ab initio and Dereas has standing to bring a quiet title action.

C.   Statute of Limitations Considerations

     Since the court orders in Civil Action No. 43-96 are null and void, the only issue left is whether Easís claim (echoed by Selifis) that the certificate of title was mistakenly issued for an area larger than what Dereas bought is a genuine issue of material fact precluding summary judgment. In support of this claim, Eas and Selifis rely on (other than the 43-96 orders) their assertions that their predecessor-in-interest, Akeisuk Mokok, did not sell all of Lot No. 029-A-23 to Dereas and evidence they assert was adduced at hearings in Civil Actions No. 43-96 or No. 176-2002.

     As stated above, those were cases that Dereas was not a party to and hearings at which he was not present or had an opportunity to be heard. Thus, even presuming (which the court cannot do) that the evidence presented then is accurately characterized now, any evidence adduced in those cases is not admissible here. See Chk. Evid. R. 804(b)(1) (former testimony not admissible unless the party against whom the testimony is now offered (or a predecessor in interest) had an opportunity and similar motive to develop that testimony by direct, cross, or redirect examination).

     Dereas responds that even if either Eas or Selifis had a meritorious claim (which he denies), that claim would be barred by the applicable statutes of limitations. Selifis contends that, because Dereasís certificate of title was invalidated in Civil Action No. 43-96, no statute of limitations applies. As stated above, that "invalidation" is void. The statute of limitations bars a claim to an interest in land if the cause of action arose more than twenty years before the action is brought ) if the claim could have been made over twenty years before it was actually made, then the action can no longer be maintained, no matter how meritorious the claim. Chipuelong v. Chuuk, 6 FSM Intrm. 188, 194 (Chk. S. Ct. Tr. 1993). Actions for the recovery of land or any interest therein must be started within twenty years after the cause of action accrues. 6 TTC 302(1)(b); Hartman v. Chuuk, 9 FSM Intrm. 28, 31 (Chk. S. Ct. App. 1999). A claim to land clearly cannot be renewed when the statute of limitations on an action to recover an interest in land is twenty years and more than twenty years have passed since the certificate of title in anotherís favor was issued. Any subsequent attempt to litigate the landís ownership is barred by the statute of limitations. Hartman v. Chuuk, 12 FSM Intrm. 388, 400 (Chk.

[14 FSM Intrm. 457]

S. Ct. Tr. 2004).

     Clearly, an action to invalidate Dereasís certificate of title could have been maintained in 1981 as soon as his certificate had been issued, if not earlier. Selifis contends that if a statute of limitations applies it should not start running until 1991 when he bought the remainder of Lot No. 029-A-023. This is not so. If an action accrued to a predecessor in interest, the twenty years is computed when the action first accrued to the predecessor. 6 TTC 302(2). Selifis, as a successor-in-interest to Mokok, succeeds to the statute of limitations and its accrual that his predecessor, Mokok, had. The statute of limitations does not start to run all over again each time there is a new successor in interest.

     Selifis also contends that the statute of limitations could not run against him because he had no notice of Dereasís "claim" to the land that Selifis bought. This is also not true. Dereasís certificate of title on file at the Chuuk Land Commission (the originals of all certificates of title are kept in a bound register at the Land Commission, 67 TTC 118) constituted notice to the world of Dereasís ownership of all of Lot No. 029-A-23 and that certificate and Plat No. 029-A-01 (Document No. 753) constituted notice of the boundaries of Dereasís ownership. Furthermore, the state was openly, notoriously, and substantially occupying the land that Mokok (and later Selifis) claimed to own and was negotiating with and paying rent to titleholders of land it occupied but did not negotiate with or pay rent to Mokok (or later Selifis). This constituted constructive notice to Mokok (and later Selifis) that the title to the part of Uonou #2 that Mokok claimed to own was held by another. Constructive notice is a concept through which actual notice is imputed to a party regardless of whether that party has actual knowledge of the imputed facts. A party has constructive notice when from all the facts and circumstances known to him at the relevant time, he has such information as would prompt a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 171, 177 n.11 (Pon. 1995). Substantial, open, and notorious occupation of land is constructive notice of the occupantís claim and puts all persons on inquiry as to the nature of the occupantís claim, and whoever willfully avoids learning of such trespass will be charged with constructive notice. Id. at 177-78.

     Selifis also claims that the statute if limitations should not start running in 1981 because, in his view, fraud was involved in the issuance of Dereasís certificate of title. The elements of fraud or intentional misrepresentation in Chuuk are: (1) a misrepresentation by party, (2) scienter or the partyís knowledge that the statements were untrue, (3) intent to cause another to rely on the misrepresentations, (4) causation or actual reliance by the other, (5) justifiable reliance by the other and (6) damages. Kaminanga v. FSM College of Micronesia, 8 FSM Intrm. 438, 442 (Chk. 1998); see also Chen Ho Fu v. Salvador, 7 FSM Intrm. 306, 309 (Pon. 1995). Neither nonmovant has presented any competent evidence that would make out a prima facie case for the elements of fraud, for example, that Dereas made any statements that he knew to be untrue, what those statements were and who he made them to. At the oral reargument, Eas stated that he did not raise fraud because it was clear it did not meet the statutory requirements for that.

     A statue of limitation may be tolled (suspended) if the person who is liable to any action

[14 FSM Intrm. 458]

fraudulently conceals the cause of action from the knowledge of a person entitled to bring the action. 6 TTC 309. In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity, although a personís malice, intent, knowledge, or other condition of mind may be averred generally. Chk. Civ. R. 9(b). No fraudulent concealment of a cause of action has been shown or stated with particularity by either Eas or Selifis.

     Thus, even if Eas or Selifis had a meritorious claim to invalidate Dereasís certificate of title, the statute of limitations would bar them from raising it.

V.   Conclusion and Scheduling Order

     No court with jurisdiction to do so has ever invalidated or altered Keichi Dereasís certificate of title to Lot No. 029-A-23. The statute of limitations bars any further action to invalidate that certificate. The presumption of that certificateís correctness has not been overcome. Accordingly, Keichi Dereasís motion to quiet title to Lot 029-A-23 is granted. Any discovery on the remaining cause of action, intentional interference with a contract, shall be completed by December 15, 2006. Any further pretrial motions must be filed by January 15, 2007.

____________________________

Footnotes:

1.   This is a partial summary judgment motion because Dereas also alleges a cause of action for intentional interference with a contract by defendant Eas based on Easís alleged attempt to prevent the state from making its rental payments to Dereas for Lot No. 029-A-23 and for allegedly interfering with the stateís possible purchase of that lot.

2.   Selifis seems to be referring to a boundary between the part of Uonou #2 allegedly retained by Mokok and the rest of Uonou #2 admittedly sold to Dereas. If Selifis is asserting that Lot No. 029-A-023's external boundaries have never been surveyed, this is contradicted by the 43-96 courtís December 15, 1997 orderís mention that a survey and boundary determination had been done and by the certificate of titleís reference to its boundaries on a plat.

3.   As a general rule, a certificate of title can be set aside only on the grounds of fraudulent registration. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 50-51 (App. 1995). While the Land Commission may be a necessary party to such an action, the titleholder is an indispensable party to any action to set aside, void, nullify, or alter the titleholderís certificate of title who must be joined, or any ensuing adjudication is void.

4.   The nonmovants seem to argue that two wrongs make a right. They contend, without support of competent evidence by affidavit or otherwise, that Dereasís certificate of title was wrongfully issued and must be void since Mokokís due process rights were violated because Mokok had no notice and was not present when Lot No. 029-A-23's boundaries were determined, but it is okay for Eas to have Dereasís certificate of title invalidated by proceedings of which Dereas had no notice (and of which Eas chose not to give him notice), was not a party to, and had no opportunity to be heard. One alleged due process violation does not justify an aggrieved partyís retaliatory due process violations. (Left unsaid is why Mokokís presence would be necessary if Dereas is correct and Mokok had sold him all of Uonou #2 ) there would then have been no boundary between Dereasís and Mokokís land to agree to or to delimit.)

5.   Another ground for the infirmity of the 43-96 courtís actions is that it was a suit against the state and the Land Commission and an action against the Land Commission may have been barred by the statute of limitations. A six yearsí statute of limitations applies to all claims to which neither the specific twenty-year, 6 TTC 302, or two-year statutes, 6 TTC ßß 303, 304, apply. 6 TTC 305. Claims against the Land Commission for violation of due process, as they are not claims for the recovery of land (twenty-year statute of limitation, 6 TTC 302(1)(b)), are subject to a six-year limitations period and are barred and will be dismissed when the Land Commission actions are all over six years old since a complaint against the Land Commission cannot assert a claim for the recovery of an interest in land against the defendant Land Commission because it does not own any interest in the land at issue. Skilling v. Kosrae State Land Commín, 13 FSM Intrm. 16, 19 (Kos. S. Ct. Tr. 2004); Sigrah v. Kosrae State Land Commín, 11 FSM Intrm. 169, 175 (Kos. S. Ct. Tr. 2002).

6.   The Land Commission never made any rulings pursuant to the Civil Action No. 43-96 court orders, possibly recognizing their irregular and void nature.

7.   It is difficult for the court to have much sympathy for Selifis, who, as a long-time legal practitioner in Chuuk should have been familiar with the Chuuk Land Commission, its procedures and its records, and Chuuk land law, but who apparently did not search the Land Commission title records to the land he was buying before he bought it in 1991 (or if he did, was willing to take his chances the records were wrong) and did not record his deed. A brief search of the title registration documents should have revealed that Akeisuk Mokok, regardless of what he may have told Selifis, did not have title to any of Uonou #2 and that Keichi Dereas was the registered titleholder.

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