CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Dereas v. Eas, 15 FSM Intrm. 135 (Chk. S. Ct. Tr. 2007)

[15 FSM Intrm. 135]

KEICHI DEREAS,

Plaintiff,

vs.

SEWEN EAS, individually and in his capacity as

representative for any claimants to the land

known as lot 029-A-23,

Defendants,

and NAHOY G. SELIFIS,

Intervenor.

CIVIL CASE NO. 109-2003

ORDER DENYING MOTION

Dennis K. Yamase

Special Trial Division Justice

Decided:  June 25, 2006

APPEARANCES:

For the Plaintiffs:       Stephen V. Finnen, Esq.

                                  Law Offices of Saimon & Associates

                                  P.O. Box 1450

                                  Kolonia, Pohnpei   FM   96941
 

For the Intervenor:    Nahoy Selifis, pro se

                                  P.O. Box D

                                  Weno, Chuuk   FM   96942
 

[15 FSM Intrm 136]
 

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HEADNOTES

Civil Procedure ) Summary Judgment; Judgments

       A grant of partial summary judgment is not a final judgment when the court did not expressly determine that there was no just reason for delay and did not then expressly direct the entry of a judgment, both of which are required for the entry of a partial final judgment. Dereas v. Eas, 15 FSM Intrm. 135, 138 (Chk. S. Ct. Tr. 2007).

Civil Procedure ) Motions; Judgments ) Relief from Judgment

      Since a party cannot seek relief from a judgment that does not exist, a motion for relief from a partial summary judgment is therefore properly characterized, not as one for relief from judgment under Rule 60(b), but as one to reconsider an interlocutory order. Dereas v. Eas, 15 FSM Intrm. 135, 138 (Chk. S. Ct. Tr. 2007).

Civil Procedure ) Summary Judgment

      When there has been no express determination that there is no just cause for delay and no express direction to enter judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment. Dereas v. Eas, 15 FSM Intrm. 135, 138 (Chk. S. Ct. Tr. 2007).

Statutes of Limitation ) Tolling

       Generally, filing a lawsuit tolls a statute of limitations. However, for a lawsuit to toll a statute of limitation, that lawsuit must be against the proper party. Dereas v. Eas, 15 FSM Intrm. 135, 138 (Chk. S. Ct. Tr. 2007).

Statutes of Limitation ) Tolling

      A suit against one person does not arrest the running of the statute of limitations period against another. Dereas v. Eas, 15 FSM Intrm. 135, 138 (Chk. S. Ct. Tr. 2007).

Statutes of Limitation ) Tolling

       A suit begun against a stranger, or one who sustains no such relation to the proper defendant that a judgment against him would bind such defendant, can have no effect on the operation of the statute of limitations in favor of the party against whom the cause of action properly exists. Dereas v. Eas, 15 FSM Intrm. 135, 139 (Chk. S. Ct. Tr. 2007).

Statutes of Limitation ) Tolling

       When neither a 1996 lawsuit nor a 2002 lawsuit included any party, that if a judgment were rendered against that party, the judgment would bind the non-movant, and when the non-movant was not a party to either lawsuit, those 1996 and 2002 lawsuits could not have tolled the operation of the statute of limitations in non-movantís favor. Dereas v. Eas, 15 FSM Intrm. 135, 139 (Chk. S. Ct. Tr. 2007).

Statutes of Limitation

       The statute of limitations foreclosed the intervenorís claim, no matter how meritorious it might have been, in 2001 because the statute of limitations started to run in 1981 when the plaintiff was issued his certificate of title and that certificate of title constituted notice to the world of the plaintiffís claim to ownership of Lot No. 029-A-23, especially since the intervenor and the defendant both knew

[15 FSM Intrm 137]

in 1991 that the plaintiff claimed to own the lot, or as the intervenor put it, that the certificate of title in the plaintiffís favor was not correct. Dereas v. Eas, 15 FSM Intrm. 135, 139 (Chk. S. Ct. Tr. 2007).

Statutes of Limitation

       When the twenty-year statute of limitations for the recovery of land or an interest therein did not expire until 2001 and since during the ten years from 1991, the latest date by which the intervenor and the defendant knew of the plaintiffís certificate of title, neither ever sued the plaintiff, that statute has now become a bar to any claim to Lot No. 029-A-23 by either the defendant or the intervenor. Dereas v. Eas, 15 FSM Intrm. 135, 139 (Chk. S. Ct. Tr. 2007).

Civil Procedure ) Summary Judgment

       To overcome a prima facie case of entitlement to summary judgment, the non-moving party cannot rely on unsubstantiated denials to carry his burden, but must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of fact. Dereas v. Eas, 15 FSM Intrm. 135, 140 (Chk. S. Ct. Tr. 2007).

Civil Procedure ) Summary Judgment

      In a summary judgment motion, supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Dereas v. Eas, 15 FSM Intrm. 135, 140 (Chk. S. Ct. Tr. 2007).

Civil Procedure ) Summary Judgment

      A non-moving party cannot rest upon the allegations or mere denials in his pleading, but must respond by affidavits setting forth specific facts showing that there is a genuine issue for trial. When the non-movant has not produced any such evidence that would be admissible at trial, but has promised that he will introduce such evidence later, his mere representation that such evidence exists and will appear some time later and be introduced at trial does not constitute production of competent evidence. Dereas v. Eas, 15 FSM Intrm. 135, 140 (Chk. S. Ct. Tr. 2007).

Civil Procedure ) Summary Judgment

       A promise to produce admissible evidence at some future time is not the production of admissible evidence in response to a summary judgment motion. A contention that evidence will be introduced and that it will show certain things is hearsay, and hearsay is generally not admissible evidence, and thus cannot be relied upon to create a material issue of fact when opposing a summary judgment motion. Dereas v. Eas, 15 FSM Intrm. 135, 140 (Chk. S. Ct. Tr. 2007).

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COURTíS OPINION

DENNIS YAMASE, Special Trial Division Justice:

      On April 10, 2007, intervenor Nahoy G. Selifis filed his Motion for Reconsideration of the courtís October 12, 2006 order granting partial summary judgment.  Plaintiff Keichi Dereas filed his opposition on April 23, 2007.  Selifis did not file a reply and defendant Sewen Eas did not file anything.  Selifisís motion is denied.   The courtís reasons follow.

I.

       Selifisís motion asks the court to reconsider its October 12, 2006 partial summary judgment,

[15 FSM Intrm 138]

which held that the presumption that Keichi Dereasís certificate of title to Lot No. 029-A-23 was correct had not been overcome and granted Keichi Dereasís motion to quiet title to Lot 029-A-23. Dereas v. Eas, 14 FSM Intrm. 446, 458 (Chk. S. Ct. Tr. 2006).  Selifis contends:  1)  that the October 12, 2006 decision contained a legal error ) the court should have ruled that the statute of limitations had been tolled; and 2)  that summary judgment should not have been granted because, in his view, there are genuine issues of material fact present.

II.

       Dereasís opposition contends that Selifis filed his motion because the action was final against Selifis on October 12, 2006 when the partial summary judgment order was entered and that, since the time to appeal has passed, all Selifis can try to do now is seek relief from judgment.  Dereas also asserts that Selifis failed to specify the Rule 60(b) ground that he relies upon for relief.

      Dereas is mistaken.  The time to appeal has not yet started to run because the court has not entered a final judgment for any claims involving Lot No. 029-A-23.  The October 12, 2006 ruling was not an order "adjudicating all claims and the rights and liabilities of all parties" from which a judgment could be derived.  Chk. Civ. R. 54(b).  That ruling was also not a partial final judgment, since the court did not expressly determine that there was no just reason for delay and did not then expressly direct the entry of a judgment.  Both of these are required for the entry of a partial final judgment.  Stephen v. Chuuk, 11 FSM Intrm. 36, 40 (Chk. S. Ct. Tr. 2002) (citing Chk. Civ. R. 54(b)).  Without both the courtís express finding that there was no just cause for delay and the courtís express direction to enter judgment there can be no final judgment against Selifis (or Eas).

      Since "[a] party cannot seek relief from a judgment that does not exist[, Selifisís] motion is therefore properly characterized, not as one for relief from judgment under Rule 60(b), but as one to reconsider an interlocutory order."  Stephen, 11 FSM Intrm. at 43.  When there has been no express determination that there is no just cause for delay and no express direction to enter judgment,

any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment . . . .

Chk. Civ. R. 54(b).  Since the action has not been terminated as to party-defendant Selifis (or to party-defendant Eas), Selifis may move for reconsideration of the October 12, 2006 order.  The court now turns to the merits of Selifisís motion.

[15 FSM Intrm 139]

III.

      Selifis contends that the court should have concluded that the statute of limitations had been tolled by lawsuits filed in 1996 (Civil Action No. 43-1996) and in 2002 (Civil Action No. 176-2002). Neither lawsuit named Keichi Dereas as a party.

      Generally, filing a lawsuit tolls a statute of limitations.  See 51 Am. Jur. 2d Limitation of Actions ß 207 (rev. ed. 2000).  However, for a lawsuit to toll a statute of limitation, that lawsuit must be against the proper party.  "It is elementary that a suit against one person does not arrest the running of the statute of limitations period against another."  Nilsen v. City of Moss Point, 621 F.2d 117, 120 (5th Cir. 1980).  "A suit begun against a stranger, or one who sustains no such relation to the proper defendant that a judgment against him would bind such defendant, can have no effect on the operation of the statute [of limitations] in favor of the party against whom the cause of action properly exists."  Colby v. City of Portland, 174 P. 1159, 1161 (Or. 1918).

      Neither the 1996 lawsuit nor the 2002 lawsuit included any party, that if a judgment were rendered against that party, the judgment would bind Dereas.  Nor was the proper defendant, Dereas, a party to either lawsuit.  In fact, the 1996 lawsuit was declared void because Dereas was not a party to that suit. Dereas, 14 FSM Intrm. at 454-56.  And the 2002 lawsuit was dismissed because indispensable parties, including Dereas, had not been joined. Id. at 452.  Thus, the 1996 and 2002 lawsuits could not have tolled the operation of the statute of limitations in Dereasís favor.

IV.

      The statute of limitations foreclosed Selifisís claim, no matter how meritorious it might have been, in 2001.  The statute of limitations started to run in 1981 when Keichi Dereas was issued his certificate of title.  That certificate of title constituted notice to the world of Dereasís claim to ownership of Lot No. 029-A-23.  According to Selifisís motion, Selifis and the seller both knew in 1991 that Dereas claimed to own the lot, or as Selifis put it, "that the Certificate of Title in favor of Dereas was not correct since it described a portion of property larger than Eas has sold to Dereas and Eas was not aware that the Certificate of Title was incorrect until he sold part of his property to Selifis."  Motion at 3 (Apr. 10, 2007).

      The twenty-year statute of limitations for the recovery of land or an interest therein, 6 TTC 302(1)(b), did not expire until 2001.  During the ten years from 1991, the latest date by which Selifis and the seller knew of Dereasís certificate of title, neither ever sued Dereas.  Selifis asserts that he ought to be able to justifiably rely on the 1996 lawsuit.  But, as noted in this courtís October 12, 2006 order, the orders in that lawsuit were void. Dereas, 14 FSM Intrm. at 455-56.  And the 1996 lawsuit did not name Dereas as a party-defendant so, as stated above, it did not, and could not, toll the statute of limitations.  That statute has now become a bar to any claim to Lot No. 029-A-23 by either Selifis or Eas.

V.

       Furthermore, even if Selifis had succeeded on his claim that the statute of limitations had been tolled, the court would be unable to grant this motion because it lacks sufficient support.  Selifis contends that genuine issues of material facts exist that should have precluded summary judgment.  Selifis contends that proof that the boundary described in Dereasís certificate of tile was not correct was in an April 17, 2003 letter from Hans Wiliander, described as attached to Selifisís motion, that asserts that Julita Aisek stated that the boundary was not correctly determined.  It is not attached to Selifisís motion.  Selifis also asserts that conveyances to Dereas and the adjacent landowners, Isauo

[15 FSM Intrm 140]

Kuena and Julita Aisek must be considered void.  Selifis asserts that since he was a purchaser of some of the disputed land, he too should have been made a party to the 1996 and 2002 cases.  He attaches as Exhibit B, a copy of his September 3, 1991 deed, which he states was registered with the Land Commission.  (That registration, by the file stamp on the document, appears to have been September 8, 2003.)  Selifisís deed, however, states that it is the sellerís responsibility to resolve any dispute over the land and that if the seller is unable to, he will refund Selifisís money.  Selifisís interests should have been, and presumably were, represented in those lawsuits by the plaintiff in those cases, the seller and his successors.

      Selifis adds that he is prepared to provide affidavits from former Senior Land Commissioner Iowas Simina and former Assistant Chief Surveyor Erichy Heizar stating that the proper procedures had not been followed in determining Lot No. 029-A-23ís boundaries.  A March 6, 2007 affidavit of Heizar is attached to the motion.  Selifis also states that he will introduce recently-obtained evidence that Ekesieuk Eas, Luther Dawe, Koichy Sana and Isauo Kuena (but not Dereas) signed a lease agreement with the state government in 1984 on the land in question and received payment on that lease in 1987 and that Dereas never objected to the 1987 lease payment to Eas.

     To overcome a prima facie case of entitlement to summary judgment, the non-moving party cannot rely on unsubstantiated denials to carry his burden, but must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of fact. See, e.g., Chuuk v. Secretary of Finance, 8 FSM Intrm. 353, 362 (Pon. 1998).  In a summary judgment motion, supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein.  A non-moving party cannot rest upon the allegations or mere denials in his pleading, but must respond by affidavits setting forth specific facts showing that there is a genuine issue for trial.  Ueda v. Stephen, 9 FSM Intrm. 195, 197 (Chk. S. Ct. Tr. 1999).

      Selifis has not produced any such evidence that would be admissible at trial.  He has promised that he will introduce such evidence later.  A partyís mere representation that such evidence exists and will appear some time later and be introduced at trial does not constitute production of competent evidence.  A promise to produce admissible evidence at some future time is not the production of admissible evidence.  To support his motion, Selifis had to produce that evidence with his motion.  He has not.  Ideally, Selifis should have produced it in opposition to Dereasís original summary judgment motion, filed November 19, 2003.  Selifis did not produce it then and has not produced it now.  His contention that evidence will be introduced and that it will show certain things is hearsay.  Hearsay is generally not admissible evidence, and thus cannot be relied upon to create a material issue of fact when opposing a summary judgment motion.  Goyo Corp. v. Christian, 12 FSM Intrm. 140, 147 (Pon. 2003).

      Selifisís September 3, 1991 deed only shows that he bought whatever the seller owned at the time and that they knew there was a problem with the title.  The Heizar affidavit would only be of interest if Lot No. 029-A-023 had been divided and a boundary between the portions had to be surveyed.  Selifisís representations that he can produce (but has not produced) other evidence would be insufficient to show any genuine issues of material fact that could have caused the court to reconsider its October 12, 2006 decision even if Selifis had prevailed on his contention that the statute of limitations had been tolled.

VI.

      Accordingly, Selifisís motion for consideration is denied.

______________________________

Footnotes:

1.  A final judgment was entered with respect to Lot No. 029-A-022, which had a different plaintiff and for which the court expressly found that there was no just cause for delay and expressly directed the entry of a final judgment for that lot. Dereas v. Eas, 12 FSM Intrm. 629, 633 (Chk. S. Ct. Tr. 2004). The time to appeal the Lot No. 029-A-022 judgment has run out.

2.  Also, there was also no separate document setting forth a judgment as required by Rule 58.

3.  The court does not expect to enter any final judgment on the Lot No. 029-A-23 claims until all remaining claims and defenses have been resolved and all of Dereasís claims have been ruled upon, or withdrawn. Until then, the October 12, 2006 partial summary judgment will not be final, and the time to appeal it will not start to run.

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