KOSRAE STATE COURT TRIAL DIVISION

Cite as Andon v. Shrew, et al., 15 FSM Intrm. 315 (Kos. S. Ct. Tr. 2007)

[15 FSM Intrm. 315]

LIVINGSTON ANDON,

Plaintiff,

vs.

TAKASY SHREW, GRANT JONAS, and

KOSRAE LAND COMMISSION

Defendants.

CIVIL ACTION NO. 104-06

MEMORANDUM OF DECISION; JUDGMENT

Aliksa B. Aliksa

Chief Justice

Hearing: July 2, 2007

Decided: October 2, 2007

APPEARANCES:

For the Plaintiff:               Gerson Jackson

                                        P.O. Box 174

                                        Tofol, Kosrae FM 96944
 

[15 FSM Intrm 316]

For the Defendant:          Canney L. Palsis, Esq.

    (Shrew)                        Micronesian Legal Services Corporation

                                         P.O. Box 38

                                         Tofol, Kosrae FM 96944
 

For the Defendants:         Edwin Mike

(Jonas & Land Comm’n)  Assistant Attorney General

                                         Kosrae Attorney General’s Office

                                         P.O. Box 870

                                         Tofol, Kosrae   FM   96944

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HEADNOTES

Evidence ) Burden of Proof

       The burden of proof in a civil case is on the plaintiff. Plaintiffs must prove each element of their causes of action. Andon v. Shrew, 15 FSM Intrm. 315, 320 (Kos. S. Ct. Tr. 2007).

Torts ) Governmental Liability

      The elements of a negligence claim and a claim of violation of Constitutional rights against Kosrae and its employees are set out in Kosrae Code § 6.2601. Subsection (c) permits an action for loss of property caused by the negligent or wrongful act or omission by a government employee acting within the scope of their employment and under circumstances where a private person would be liable. Subsection (d) permits an action for injury resulting from the conduct of a government employee acting under color of authority and in violation of a right specified under Article II of the Kosrae Constitution. The right to due process is one of the specified rights. Andon v. Shrew, 15 FSM Intrm. 315, 320 (Kos. S. Ct. Tr. 2007).

Evidence ) Burden of Proof

      When the plaintiff offered no evidence that he was entitled to notice in the Land Commission proceedings so there was no proof of a negligent or wrongful act or omission, he did not prove a violation of his due process rights, and when Land Commission records would have contained evidence about his entitlement to notice and whether he was served with notice, but, the plaintiff did not present those records and did not offer proof that he owned any portion of the disputed land and the only evidence of land ownership showed ownership by another, the plaintiff’s claims against the government based on negligence and a violation of due process fail. Andon v. Shrew, 15 FSM Intrm. 315, 320 (Kos. S. Ct. Tr. 2007).

Statutes of Limitation; Torts ) Governmental Liability

      The statute of limitations for claiming a violation of due process by the government is covered by the six-year period found in Kosrae Code section 6.2506. Thus, claims against the Land Commission for violation of due process and for failing to apply statutes are governed by the six year statute of limitations. Since the statute of limitations begins to run when a cause of action accrues, when, if there was a violation of due process, the latest time it accrued was when the certificate of title was issued in 1997, and since more than six years passed before the plaintiff asserted his claim, any claim based on a violation of his right to due process fails because it was not filed within the six-year period and will be dismissed. Andon v. Shrew, 15 FSM Intrm. 315, 320 (Kos. S. Ct. Tr. 2007).

Statutes of Limitation; Torts ) Governmental Liability

      A claim for negligence against the Land Commission and its government employee has a six-year

[15 FSM Intrm 317]

statute of limitations. When, if there was any negligence, the cause of action accrued at the time the certificate of title was issued in 1997 and more than six years have passed, the plaintiff’s claim of negligence against the Land Commission and its employee fails. Andon v. Shrew, 15 FSM Intrm. 315, 320 (Kos. S. Ct. Tr. 2007).

Statutes of Limitation

      For claims relating to ownership of land, the twenty-year statute of limitations found in Kosrae Code section 6.2503 would apply. Andon v. Shrew, 15 FSM Intrm. 315, 321 (Kos. S. Ct. Tr. 2007).

Property ) Registered Land

      A certificate of title is conclusive upon any person who had notice of the proceedings and all those claiming under that person and is prima facie evidence of ownership against all others. Thus, the land registration statute creates conclusive title, a title that cannot be challenged, as to anyone who had notice of the proceedings and as to anyone whose interest is derived from a person with notice. As to the world at large this statute creates a presumption of ownership. Andon v. Shrew, 15 FSM Intrm. 315, 321 (Kos. S. Ct. Tr. 2007).

Property ) Registered Land

      For a person who has asserted a claim to the land and was not given notice of the registration proceedings as required by law, the determination of ownership and the certificate of title for that land is not conclusive as upon him. When that person is claiming ownership of land, another person has title, and the appeals period has expired, then that person now claiming ownership must at least show enough facts to establish that the previous ownership decision is incorrect. Andon v. Shrew, 15 FSM Intrm. 315, 321 (Kos. S. Ct. Tr. 2007).

Property ) Registered Land

      When a plaintiff failed to submit evidence that he was entitled to notice in the previous Land Commission proceedings and testimony shows that he was not entitled to notice in the proceedings, and when the plaintiff’s interests are derived from someone who received notice and participated and the record even suggests that the plaintiff himself was present at the hearing, the issued certificate of title is conclusive title and cannot be challenged by the plaintiff. Even if the plaintiff had submitted sufficient evidence showing he was entitled to notice and did not receive it, he must also show enough facts to establish the previous ownership decision was incorrect, and when he submitted no evidence on this issue, he has not carried his burden of proof on claims of ownership of land and he is not entitled to the requested relief. Andon v. Shrew, 15 FSM Intrm. 315, 321 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel

      The doctrine of res judicata bars repetitious litigation. Under res judicata, a final judgment on an action’s merits precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Andon v. Shrew, 15 FSM Intrm. 315, 321 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel; Property ) Registered Land

      The need for finality in litigation is particularly important for claims to land. The statute covering designation of registration areas, recognizes this need and provides 1) that a justice must not adjudicate a matter previously decided by a court between the same parties or those under whom the parties claim which dispute involves the same parcel and 2) that the Land Court must accept prior judgments as res judicata and determine those issues without receiving evidence. Andon v. Shrew, 15 FSM Intrm. 315, 321 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel; Property ) Registered Land

      When an earlier civil action heard and determined the subject land’s ownership and the plaintiff

[15 FSM Intrm 318]

was in privity to one of the parties, he cannot relitigate the subject land’s ownership. The earlier case determined ownership in a final judgment and, based on res judicata, the plaintiff is barred from re-litigating that case again. The Land Commission was statutorily created to address disputes about ownership and to issue a Torrens Title that is conclusively correct as to the parties and presumptively correct as to everyone else. When the plaintiff’s interests are derived from a party in the Land Commission proceedings, that title is conclusive as to his interests and he is barred, under the statutorily adopted doctrine of res judicata, from relitigating an ownership claim already determined. Andon v. Shrew, 15 FSM Intrm. 315, 321-22 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel

      Res judicata and collateral estoppel are closely related doctrines. Under collateral estoppel, a plaintiff who has previously litigated and lost his claim to a legal interest in a certain property is collaterally estopped from claiming damages as a result of loss of ownership or possession of the land because a cause of action which could have been litigated in the course of the original case between the same parties is treated as litigated and decided with the former cause of action. Thus, when the parties, or their predecessors in interest, had at least two opportunities to address the ownership of this land, their issues and claims either were already addressed or could have been addressed in the prior litigation, the doctrine of collateral estoppel would bar the plaintiff from relitigating ownership. Andon v. Shrew, 15 FSM Intrm. 315, 322 (Kos. S. Ct. Tr. 2007).

Equity ) Laches

      Laches is another equitable doctrine that is applied to bar relitigation of cases. Laches requires the passage of a nonspecific amount of time during which the plaintiff engages in inexcusable delay or lack of diligence in bringing suit, and the resulting prejudice to the defendant. Laches depends upon considerations of fairness, justice, and equity, and is invoked when the applicable statute of limitations has not yet passed. But when the statute of limitations passed on a claim, the question of laches will not be addressed. Andon v. Shrew, 15 FSM Intrm. 315, 322 (Kos. S. Ct. Tr. 2007).

Torts ) Trespass

      A trespass action is one for violation of possession, not for challenge to title. The court’s role in a claim for trespass is to determine which party has the greater possessory right. Thus, when the plaintiff did not offer evidence to support his claim even though it was his burden to prove that he had the greater possessory right and that the defendant intruded upon that interest and the record shows that the defendant had title and therefore a greater possessory right, the plaintiff’s trespass claim must fail. And, when the defendant did not offer evidence of trespass by the plaintiff, so his allegation of trespass raised in his pre-trial brief will also fail. Andon v. Shrew, 15 FSM Intrm. 315, 322 (Kos. S. Ct. Tr. 2007).

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COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

      The hearing in this matter was completed on July 2, 2007. Gerson Jackson appeared for the Plaintiff. Canney Palsis appeared for Defendant Takasy Shrew and Edwin Mike, Attorney General’s Office, appeared for Defendants Grant Jonas and Kosrae Land Commission. Grant Jonas, Livingston Anton, Fancilia Anton, and Takasy Shrew testified as witnesses. (Livingston "Andon" is the same person as Livingston "Anton.") Gerson Jackson represented Plaintiff at trial. Canney Palsis represented Defendant Takasy Shrew, and Edwin Mike, Attorney General’s Office represented Defendants Grant Jonas and Kosrae Land Commission.

[15 FSM Intrm 319]

      After hearing from the parties, I took the matter under advisement. I now hold that Plaintiff’s claims of negligence and a violation of due process are barred by the applicable statutes of limitations, and that Plaintiff failed to prove any remaining claims against the Defendants. I accordingly hold for Defendants. This Memorandum of Decision sets forth the ruling and reasoning.

I.  Findings of Fact

      Lots 666, 667, and 698, referred to as Tukatae, in Malem were the subject of a preliminary inquiry by the Land Commission in 1992. A formal hearing was also held in 1992. The land claims were converted and renumbered after the Kosrae Cadastral Program to 068M09, 068M11 and 068M13. The lots overlap each other. Heirs of Palsisa A. Ittu, Takasy Shrew, and Timothies Ittu were claimants and ostensible owners for this land and the hearings on these parcels were scheduled together. Plaintiff claims an interest under Heirs of Palsisa A. Ittu. He was not the representative for Heirs of Palsis A. Ittu during the proceedings and was not entitled to notice.

      After the proceedings, the Land Commission held in favor of Takasy Shrew and issued Certificates of Title to him for 068M11. Parcel 068M11 covers the land contained in Lots 666, 667, and 698. The determination of ownership was issued in 1994. The Certificate of Title was issued in 1997. No one appealed the determination of ownership or the issuance of Title.

      An earlier Kosrae State Court proceeding, Civil Action No. 7-84, Luppe Ittu v. Takasy Shrew, also involved ownership of Lot Numbers 666 and 667. Both Plaintiff and Defendant Takasy Shrew are nephews to Luppe Ittu. The Judgment, entered on July 15, 1988 awarded ownership to Takasy Shrew. It was not appealed.

      Plaintiff filed this Complaint on August 15, 2006 and Defendants filed their answers on September 6 and 7, 2006. Defendants Jonas and Land Commission filed requests for documents, admissions, and interrogatories on November 6, 2006. Plaintiff’s responses were filed on December 6, 2006. Defendant Takasy Shrew filed requests for documents, admissions, and interrogatories on January 3, 2007. Plaintiff filed no responses to Defendant Takasy Shrew’s requests for discovery. Also, Plaintiff did not file a pre-trial brief by March 5, 2007 as required by the Order dated October 3, 2006.

      In his Complaint, Plaintiff requests that Takasy Shrew’s Certificate of Title be voided, a new Certificate of Title be issued for lots 666 and 667 only, a hearing be held for lot 698, and for costs and other relief against the Defendants. He claims both negligence and a denial of due process against Defendants Land Commission and Grant Jonas as Registrar, and claims trespass against Defendant Takasy Shrew.

      The three Defendants’ arguments may be summarized as follows: The previous cases, both Case No. 7-84 and the Land Commission proceedings, addressed ownership of this land and Plaintiff is barred by the statute of limitations, res judicata, laches, and estoppel from re-litigating ownership. The statute of limitations bars the other claims against Defendants Land Commission and Grant Jonas. Defendant Takasy Shrew did not raise trespass by Plaintiff as a counterclaim in his Answer, but raised it in his pre-trial brief.

      At the hearing, Defendant Takasy Shrew moved for admission of two documents, labeled Defendants’ Exhibit #3. Plaintiff objected to admission of the Exhibit. We note that no foundation for the exhibit was offered and accordingly decline to admit it into evidence. It was not used in reaching a decision in this matter.

II.  Analysis

[15 FSM Intrm 320]

Claims of Negligence and Violations of Due Process Against Defendants Land Commission and Grant Jonas

      The burden of proof in a civil case is on a plaintiff. A plaintiff must prove each element of their causes of action. See generally Meitou v. Uwera, 5 FSM Intrm. 139, 141-42 (Chk. S. Ct. Tr. 1991).

      The elements of a negligence claim and a claim of violation of Constitutional rights against the Government and its employees are set out in Kosrae Code § 6.2601. Subsection (c) permits an action for loss of property caused by the negligent or wrongful act or omission by a Government employee acting within the scope of their employment and under circumstances where a private person would be liable. Subsection (d) permits an action for injury resulting from the conduct of a Government employee acting under color of authority and in violation of a right specified under Article II of the Kosrae State Constitution. The right to due process is one of the specified rights. Plaintiff’s specific claims of negligent or wrongful act by a government employee for a violation of due process are that he was entitled to notice of the prior proceedings and did not receive it. For Plaintiff to recover under either of these claims, he must prove each element by a preponderance of evidence. In reviewing this evidence, Plaintiff offered no evidence that he was entitled to notice in the Land Commission proceedings so there was no proof of a negligent or wrongful act or omission. Similarly, he did not prove a violation of his due process rights. The Land Commission records would have contained evidence about his entitlement to notice and whether he was served with notice. The Court recognizes that the possibility exists that such records may support his claims. But, Plaintiff did not present those records. In addition, he did not offer proof that he owned any portion of the land under dispute. He must prove he lost property in order to recover anything under Subsection (c). The only evidence of ownership of this land showed ownership by Takasy Shrew. Plaintiff’s claims against the government based on negligence and a violation of due process fail on these grounds.

      In addition, the statute of limitations for claiming a violation of due process by the government is covered by the six-year period found in Kosrae Code Section 6.2506. In Sigrah v. Kosrae State Land Comm’n, 11 FSM Intrm. 169 (Kos. S. Ct. Tr. 2002), this Court evaluated claims for violation of due process and for failing to apply statutes against the Land Commission and held that a claim of violation of due process is governed by the six year statute of limitations. The Land Commission was dismissed as a party in that case. The remaining claims against private defendants were allowed to proceed because they related to an ownership dispute of land and were subject to the twenty- year statute of limitations. The statute of limitations begins to run when a cause of action accrues. Here, if there was a violation of due process, the latest time it accrued was when the Certificate of Title was issued in 1997. More than six years passed before Plaintiff asserted this claim. Therefore, any claim based on a violation of his right to due process fails because it was not filed within the six-year period. The claims against Defendants Land Commission and Grant Jonas may be dismissed on these grounds.

      The issue of what statute of limitations governs a claim for negligence against the Land Commission and its government employee has not been specifically addressed by this Court. The statute permitting an action for negligence for loss of property is the same statute permitting an action for a violation of due process. And, Kosrae Code Section 6.2506 provides a six-year statute of limitations for claims of negligence. This Court holds that if there was any negligence, the cause of action accrued at the time the Certificate of Title was issued in 1997. More than six years have passed. This is an additional reason that Plaintiff’s claim of negligence against Defendants Land Commission and Grant Jonas fails.

[15 FSM Intrm 321]

Remaining Claims on Ownership

      To the extent Plaintiff has any other claims against Defendants relating to ownership of land, the twenty-year statute of limitations found in Kosrae State Code Section 6.2503 would apply. The Complaint did not plead any other claims relating to ownership. However, discovery documents and pre-trial briefs imply additional claims. I address them to offer guidance in future cases.

       Kosrae Code Section 11.615(3) provides that "the certificate of title is conclusive upon any person who had notice of the proceedings and all those claiming under that person. The certificate of title is prima facie evidence of ownership against all others." This statute creates conclusive title, a title that cannot be challenged, as to anyone who had notice of the proceedings and as to anyone whose interest is derived from a person with notice. As to the world at large this statute creates a presumption of ownership. Jonas v. Paulino, 9 FSM Intrm. 513, 516 (Kos. S. Ct. Tr. 2000). For a person who has asserted a claim to the land and was not given notice of the registration proceedings as required by law, the Determination of Ownership and the Certificate of Title for that land is not conclusive as upon him. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000). When that person is claiming ownership of land, another person has title, and the appeals period has expired, then that person now claiming ownership must at least show enough facts to establish that the previous ownership decision is incorrect. Benjamin v. Kosrae, 3 FSM Intrm. 508, 510 (Kos. S. Ct. Tr. 1988).

      In this case, Plaintiff failed to submit evidence that they were entitled to notice in the previous Land Commission proceedings. Based on Grant Jonas testimony, Plaintiff was not entitled to notice in the proceedings. And, Plaintiff’s interests are derived from someone who received notice and participated. The record even suggests Plaintiff himself was present at the hearing in Civil Action 7-84. Under these circumstances, the Certificate of Title issued to Takasy Shrew is conclusive title and cannot be challenged by Plaintiff. Even if Plaintiff had submitted sufficient evidence showing he was entitled to notice and did not receive it, he must also show enough facts to establish the previous ownership decision was incorrect. Plaintiff submitted no evidence on this issue, either. Plaintiff has not carried his burden of proof on claims of ownership of this land and he is not entitled to the requested relief.

Remaining Defenses of Laches, Res Judicata and Estoppel

      Defendants argue that res judicata, laches, and estoppel also bar Plaintiff from re-litigating ownership of this land.

      The doctrine of res judicata bars repetitious litigation. "Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Ittu v. Charley, 3 FSM Intrm. 188, 190 (Kos. S. Ct. Tr. 1987) (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed.2d 308, 313 (1980). The need for finality in litigation is particularly important for claims to land. The statute covering designation of registration areas, Kos. S.C. § 11.612, recognizes this need and provides: "A Justice shall not adjudicate a matter previously decided by a court between the same parties or those under whom the parties claim which dispute involves the same parcel. The Land Court shall accept prior judgments as res judicata and determine those issues without receiving evidence."

      Defendant Takasy Shrew argues that Civil Action 7-84 heard and determined ownership of the subject land, that Plaintiff was in privity to one of the parties, Lupe Ittu, and that he cannot relitigate ownership of the subject land based on res judicata. To the extent Civil Action 7-84 addresses ownership of the same land as in the Land Commission proceedings and as in this case, we agree with Defendant Takasy Shrew. The earlier case determined ownership in a final judgment and Plaintiff is barred from re-litigating that case again.

[15 FSM Intrm 322]

      In addition, the Land Commission was statutorily created to address disputes about ownership and to issue a Torrens Title that is conclusively correct as to parties and presumptively correct as to everyone else. Plaintiff’s interests are derived from a party in the Land Commission proceedings and that title is conclusive as to his interests. He is barred from relitigating an ownership claim already determined in Civil Action 7-84 under the statutorily adopted doctrine of res judicata.

      Res judicata and collateral estoppel are closely related doctrines. Under collateral estoppel, a plaintiff who has previously litigated and lost his claim to a legal interest in a certain property is collaterally estopped from claiming damages as a result of loss of ownership or possession of the land because a cause of action which could have been litigated in the course of the original case between the same parties is treated as litigated and decided with the former cause of action. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 516 (Pon. 1994) (citing Ittu v. Charley, 3 FSM Intrm. at 190 (Kos. S. Ct. 1987); 46 Am. Jur. 2d Judgments 417).

      Here, the parties, or their predecessors in interest, had at least two opportunities to address the ownership of this land. Their issues and claims either were already addressed or could have been addressed in the prior litigation. Plaintiff would also be barred under the doctrine of collateral estoppel from relitigating ownership.

      Laches is another equitable doctrine that is applied to bar relitigation of cases. Laches requires the "passage of a nonspecific amount of time during which the plaintiff engages in inexcusable delay or lack of diligence in bringing suit, and the . . . resulting prejudice to the defendant." Kosrae v. Skilling, 11 FSM Intrm. 311 (App. 2003) (citing Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485, 489 (App. 1996)). "Laches depends upon considerations of fairness, justice, and equity, and is invoked when the applicable statute of limitations has not yet passed." Id. Defendants offered limited evidence to support this defense. And, as held above, the statute of limitations passed on two of Plaintiff’s three claims raised in his Complaint and the Government Defendants. For these reasons the question of laches will not be addressed.

Trespass

      Plaintiff claimed trespass by Defendant Takasy Shrew for use of a portion of the land. Defendant Takasy Shrew did not raise trespass as a counterclaim in his Answer but raised it in his pre-trial brief. A trespass action is one for violation of possession, not for challenge to title. Shrew v. Killin, 10 FSM Intrm. 672, 674-75 (Kos. S. Ct. Tr. 2002). The Court’s role in a claim for trespass is to determine which party has the greater possessory right. Nelson v. Kosrae, 8 FSM Intrm. 397, 403 (App. 1998). Here, as in the other claims, Plaintiff did not offer evidence to support his claim even though it was his burden to prove that he had the greater possessory right and that Defendant Takasy Shrew intruded upon that interest. Also, the record shows that Defendant Takasy Shrew had title and therefore a greater possessory right. Therefore, Plaintiff’s claim of trespass must fail.

      Defendant Takasy Shrew did not offer evidence of trespass by Plaintiff, so his allegation of trespass raised in his pre-trial brief also fails.

III.  Judgment

      Judgment is entered in favor of Defendants and against Plaintiffs. Plaintiff’s claims are dismissed with prejudice.

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