KOSRAE STATE COURT TRIAL DIVISION

Cite as Heirs of Mackwelung v. Heirs of Taulung,14 FSM Intrm. 494 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 494]

HEIRS OF ALLEN MACKWELUNG,

Appellants,

v.

HEIRS OF JACOB TAULUNG,

Appellees.

CIVIL ACTION NO. 139-05

MEMORANDUM OF DECISION; JUDGMENT; ORDER OF DISMISSAL

Aliksa B. Aliksa

Chief Justice

Hearing: November 22, 2006

Decided: November 28, 2006

APPEARANCES:

For the Appellants:        Albert T. Welly

                                     j Kosrae State Legislature

                                     P.O. Box 187

                                     Tofol, Kosrae FM 96944

 

For the Appellees:        Robinson Timothy

                                     P.O. Box 261

                                     Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review

     The court may hear argument from the appellee if the appellant fails to appear at the time set for hearing. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 494, 495 (Kos. S. Ct. Tr. 2006).

Appellate Review ) Dismissal

     The court is reluctant to dismiss an action based on counselís behavior. An adjudication on the merits allows the parties to have a reasonable opportunity to present their claims and defenses and is generally preferred over dismissal for procedural reasons. For this reason, dismissal based on counselís misconduct is generally avoided. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 494, 495 (Kos. S. Ct. Tr. 2006).

Property ) Registered Land

     The registration process for Land Court is designed to ensure all interested parties and claimants receive notice. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 494, 496 (Kos. S. Ct. Tr. 2006).

[14 FSM Intrm. 495]

Civil Procedure ) Joinder, Misjoinder, and Severance; Property ) Registered Land

     When title to land is at issue, all known persons who are claiming title must be joined in order to settle ownership without additional litigation. The policy supporting this rule is that all persons needed for a full, fair, and just adjudication should be part of the case and have an opportunity to be heard. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 494, 496 (Kos. S. Ct. Tr. 2006).

Civil Procedure ) Res Judicata; Property

     All causes of action arising out of the same event (and all defenses to a cause of action) must be raised in one case or else they are barred. A plaintiff cannot file one suit claiming title based on a will and then be allowed to file a second lawsuit for title to the same land claiming fraud and breach of contract. He must raise all causes of action for title to the land in the same case. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 494, 496 (Kos. S. Ct. Tr. 2006).

Civil Procedure ) Joinder, Misjoinder, and Severance

     When the appellants are interested parties and therefore will receive notice and opportunity to be heard in the proceedings in Land Court during the remand of a related case involving the same parties and land, the Kosrae State Court will decline to place the parties at risk of inconsistent obligations and to require them to participate in multiple litigation over title to the same parcel and will therefore will not address the appellantsí claims in but order them to participate in the remanded case at Land Court, if this has not already occurred. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 494, 496 (Kos. S. Ct. Tr. 2006).

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COURTíS OPINION

ALIKSA B. ALIKSA, Chief Justice:

     This is an appeal from a Decision issued by the Kosrae Land Court on July 17, 2005 for parcel 075-T-03, also known as Meloh in Tafunsak Municipality. There were multiple requests for enlargements of time. Appellants filed their brief on April 28, 2006. Appellees filed their brief on July 26, 2006. Albert Welly represents Appellants. Robinson Timothy represents Appellees.

Failure to Appear by Counsel for Appellants

     This matter was set for hearing on November 22, 2006. Counsel for Appellants failed to appear at the hearing despite receiving adequate notice. Counsel also failed to request an enlargement of time or a continuance of the hearing and failed to provide an explanation for his absence.

     Kos. App. R. 16(d) states that the Court may hear argument from Appellee if Appellant fails to appear at the time set for hearing. Accordingly, no other hearing time was set and the Court announced its decision.

     This Court is concerned about the hardship caused to the Appellees and to the persons represented by absent counsel, as well as the disrespect shown to the Court. However, the Court is reluctant to dismiss this action based on the behavior of counsel. An adjudication on the merits allows parties to have a reasonable opportunity to present their claims and defenses and is generally preferred over dismissal for procedural reasons. For this reason, dismissal based on misconduct of counsel, such as that shown here, is generally avoided. Paul v. Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993).

     The National Court considered the issue of counselís failure to appear at a scheduled hearing.

[14 FSM Intrm. 496]

In In re Robert, 1 FSM Intrm. 18, 20 (Pon. 1981), the FSM Court held that a counsel's decision to take steps which may cause him to be late for a scheduled court hearing, coupled with his failure to advise the court and opposing counsel of the possibility that he might be late to the hearing, may, when followed by failure to appear at the scheduled time, constitute an "intentional obstruction of the administration of justice" and may be contempt of court.  (Citations omitted.) The Court notes that counselís behavior may violate ethical rules, as well. Counsel is warned that the Court is considering whether a separate proceeding to address these concerns is appropriate.

      Because other grounds for a determination exist in this case, based upon the record and applicable law, I find in favor of the Appellees. This Memorandum of Decision explains the Courtís decision and reasoning, and dismisses this appeal.

I.   Analysis and Conclusions.

     The decision in a companion case, HO Irving Mackwelung v. HO Jacob Taulung, 131-05, was issued on June 20, 2006. [Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 287 (Kos. S. Ct. Tr. 2006).] It concerned parcels 075-T-01, -02, and Ė03 and remanded the matter back to the Land Court for further proceedings on all three parcels. The Land Court was to hold hearings and issue written findings and a decision on all three parcels to reflect the ownership and boundaries of each parcel.

     The decision in that case focused on two issues related to wills and consideration of evidence. Appellants raise different legal arguments here. The primary claim is that Appellants were interested parties entitled to notice on the preliminary and final hearings for parcel 075-T-03, but were not given notice.

     The registration process for Land Court is designed to ensure all interested parties and claimants receive notice. Kos. S.C. ß 11.613. When title to land is at issue, all known persons who are claiming title must be joined in order to settle ownership without additional litigation. Anton v. Heirs of Shrew, 12 FSM Intrm. 274 (Kos. App. 2003). The policy supporting this rule is that all persons needed for a full, fair, and just adjudication should be part of the case and have an opportunity to be heard.

     It is similar to the requirement that all causes of action arising out of the same event (and all defenses to a cause of action) must be raised in one case or else they are barred. A plaintiff cannot file one suit claiming title based on a will and then be allowed to file a second lawsuit for title to the same land claiming fraud and breach of contract. He must raise all causes of action for title to the land in the same case. An example of this concept is found in Palik v. Henry, 9 FSM Intrm. 267 (Kos. S. Ct. Tr. 1999). In that case, Defendant Henry requested a temporary restraining order against one of the Plaintiffs to prevent construction of a house on land that was subject to a proceeding at the Land Commission. At issue was whether that Plaintiff, who was not party to the Land Commission proceeding, should be joined as a party. This Court held that joinder was necessary because complete relief could not be accorded without the absent party and that personís absence subjected everyone to a substantial risk of inconsistent obligations (citing Kos. Civ. R. 19(a)). The Court then ordered that the person file his claim at the Land Commission and be part of the proceedings.

     Here, we find that Appellants are interested parties and therefore will receive notice and opportunity to be heard in the proceedings in Land Court during the remand of Case No. 131-05. This Court declines to place the parties at risk of inconsistent obligations and to require them to participate in multiple litigation over title to the same parcel. We therefore will not address Appellantsí claims in this case and order them to participate in the remand of Case No. 131-05 at Land Court, if this has not already occurred.

[14 FSM Intrm. 497]

II.   Judgment.

     Judgment is entered in favor of the Appellees and against the Appellants.

III.   Order of Dismissal.

     This matter is now dismissed with the understanding that the Kosrae Land Court will hold hearings and issue written findings and a decision that includes parcel 075-T-03 in the remand of Case No. 131-05, consistent with the statutory and procedural requirements.

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