KOSRAE STATE COURT TRIAL DIVISION

Cite as Allen v. Allen & Kosrae Land Commission, 15 FSM Intrm. 613 (Kos. S. Ct. Tr. 2008)

[15 FSM Intrm 613]

WILLIAM ALLEN,

Plaintiff,

vs.

WINFRED ALLEN and KOSRAE LAND

COMMISSION,

Defendants.

CIVIL ACTION NO. 21-07

ORDER GRANTING SUMMARY JUDGMENT; ORDER OF DISMISSAL COURT

Aliksa B. Aliksa

Chief Justice

Hearing:  February 19, 2008

Decided:  May 21, 2008

[15 FSM Intrm 614]

APPEARANCES:

For the Plaintiff:             Lyndon Cornelius

                                      P.O. Box 346

                                      Tofol, Kosrae FM 96944
 

For the Defendant:        Gerson Jackson

  (Allen)                          P.O. Box 174

                                      Tofol, Kosrae FM 96944
 

For the Defendant:        J.D. Lee, Esq.

(Land Commission)       Kosrae Attorney General

                                       Office of the Kosrae Attorney General

                                       P.O. Box 870

                                       Tofol, Kosrae FM 96944

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HEADNOTES

Civil Procedure ) Summary Judgment

      A court grants summary judgment if the pleadings, discovery responses under oath, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In considering a summary judgment motion, the court must view the facts and inferences in a light that is most favorable to the party opposing the motion. Allen v. Allen, 15 FSM Intrm. 613, 617 (Kos. S. Ct. Tr. 2008).

Civil Procedure ) Summary Judgment

      A moving party is entitled to a judgment as a matter of law when the nonmoving party has failed to make a sufficient showing on an essential element of the case with respect to which he has the burden of proof. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Allen v. Allen, 15 FSM Intrm. 613, 617-18 (Kos. S. Ct. Tr. 2008).

Civil Procedure ) Summary Judgment

      Argument alone cannot create a disputed fact that will defeat summary judgment. Allen v. Allen, 15 FSM Intrm. 613, 618 (Kos. S. Ct. Tr. 2008).

Civil Procedure ) Dismissal; Civil Procedure ) Summary Judgment

      A dismissal for failure to state a claim under Kosrae Civil Procedure Rule 12(b)(6) will be treated as a summary judgment if it presents matters outside the pleadings. Allen v. Allen, 15 FSM Intrm. 613, 618 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation

      Kosrae State Code § 6.2506 provides that any action not governed by the limitations of actions stated in other sections is governed by a six-year statute of limitations. Allen v. Allen, 15 FSM Intrm. 613, 619 (Kos. S. Ct. Tr. 2008).

Property ) Land Commission; Statutes of Limitation

      Claims against the Land Commission for negligence, violation of due process and failing to apply statutes are actions against the government which fall within the limitations period of six years. Allen

[15 FSM Intrm 615]

v. Allen, 15 FSM Intrm. 613, 619 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation ) Accrual of Action

      The statute of limitations begins to run when a cause of action accrues. When claims against the Land Commission of negligence, violations of due process and for failing to apply statutes accrued either at the time the determination of ownership was issued or when the certificate of title was issued in February 1986, more than six years has passed since those claims accrued and therefore, the statute of limitations has run and those claims must be dismissed. Allen v. Allen, 15 FSM Intrm. 613, 619-20 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation

      The twenty-year statute of limitations under Kosrae State Code § 6.2503 covers actions for the recovery of land or an interest in land and the time period begins when the cause of action accrues. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation ) Tolling

      There are circumstances where a statute of limitations may be tolled, or temporarily suspended. For example, statutory language may include such an exception by stating that an action accrues when a person has knowledge of or discovered the action that caused the injury. This kind of exception is commonly called the "discovery rule." The Kosrae statutes do not include exceptions, but in some jurisdictions, courts apply this exception even though it is not specifically included in the statute of limitations. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Appellate Review ) Notice of Appeal; Statutes of Limitation

      The statute of limitations for filing an action is different and distinct from the time limits for filing an appeal from a Land Court or Land Commission decision. An appeal from a Land Court or Land Commission decision is a statutorily-created right. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Appellate Review ) Notice of Appeal

       A party may appeal a Land Court decision within 60 days of being served with a written decision. Before the Land Court Act of 2000, a party could appeal a Land Commission decision within 120 days of receiving notice of the determination. So, for the purpose of filing such an appeal, service of the written determination is a statutory requirement that begins the running of the appeals period. In other words, the service of the determination is a condition precedent to the running of the appeals period. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation ) Accrual of Action

       The time for filing an appeal from a Land Commission determination of ownership is not the starting point for the statute of limitations. The starting point for the statutes of limitation set out in Kosrae State Code §§ 6.2503-2306 is the time the action accrued. An action accrues for recovery of land at the time a suit may have been successfully maintained upon, which is when the determination of ownership was issued. It is not related to the service of the determination of ownership. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation ) Tolling

        The service of a notice or the failure to serve a notice does not suspend the operation of a statute of limitation. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation ) Tolling

      If the Kosrae State Court were to allow a plaintiff to initiate an action beyond the statute of

[15 FSM Intrm 616]

limitations deadline, a plaintiff would have to demonstrate extraordinary circumstances and would carry the burden of proving the plaintiff was entitled to an exception to the statute. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation

       A statute of limitations is an independent bar to an action, separate from any opportunity to appeal that might be granted by a statute. Allen v. Allen, 15 FSM Intrm. 613, 620 (Kos. S. Ct. Tr. 2008).

Statutes of Limitation

      A conflict of interest claim is that the determination of ownership must be set aside because one of the team members, later became a Land Commission member and was one of the concurring commissioners on the parcel’s determination is a claim against the government is an action covered by Kosrae State Code § 6.2601 and falls within the six-year statute of limitations. Allen v. Allen, 15 FSM Intrm. 613, 621 (Kos. S. Ct. Tr. 2008).

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COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

       The parties presented oral argument on Defendants’ pending Motions for Summary Judgment on February 19, 2008. Lyndon Cornelius represents Plaintiff. Gerson Jackson represents Defendant Winfred Allen and the Attorney General’s Office appeared through J.D. Lee, Attorney General, on behalf of Kosrae State Land Commission (Land Commission). I took the matter under advisement.

      Now, considering the arguments presented by the parties, and considering all files records and proceedings in this matter, I rule that Defendants are entitled to summary judgment as a matter of law. This Order sets forth that decision and reasoning.

Procedural History

      Plaintiff filed a Complaint for Declaratory Judgment and for Clear Title on February 14, 2007. He raised the following claims:

1.  Negligence by Defendant Land Commission for failing to provide adequate notice and opportunity to be heard to Plaintiff as an interested party on parcel 032T01;

2.  Denial of due process under Article II, Section 1(b)(3), Kosrae State Constitution, by Defendant Land Commission for issuing a determination of ownership after failing to provide adequate notice and opportunity to be heard to Plaintiff as an interested party;

3.  Denial of due process under Article IV, Section 3, Kosrae State Constitution, by Defendant Land Commission for issuing a determination of ownership after failing to provide adequate notice and opportunity to be heard to Plaintiff as an interested party;

4.  Violation of Kosrae State Code Sections 11.609 and 11.611 by Defendant Land Commission for failing to give proper notice and an opportunity to be heard to Plaintiff;

5.  Violation of Kosrae State Code Section 11.613 by Defendant Land Commission for failing to

[15 FSM Intrm 617]

                    serve the Determination of Ownership on Plaintiff; and,

6.  A conflict of interest by Defendant Land Commission because a team member of the Land Registration Team during the adjudication process was a concurring Commissioner on the Determination of Ownership issued for parcel 032T01 in 1986.

      Defendant Allen filed an Answer on April 9, 2007, basically in the form of a general denial. He also raised the affirmative defenses that Plaintiff failed to state a claim for which relief can be granted and that Plaintiff failed to timely file an appeal of the decision of the Land Commission.

      The Complaint against Defendant Land Commission was dismissed without prejudice in June 2007 for lack of proper service. Plaintiff then filed an Amended Complaint on August 15, 2007. Defendant Land Commission Answered on September 17, 2007, also in the form of general denials, and raised the affirmative defenses of failing to state a claim upon which relief may be granted, laches and estoppel as barring Plaintiff’s action, and waiver of any claims to the parcel by affirmative statement and inaction. Defendant Allen filed an Answer to the Amended Complaint on September 20, 2007, essentially identical to his original Answer.

      Plaintiff moved to strike Defendant Allen’s answers to interrogatories because they were not signed by the party, were not signed under oath, and were filed and served on September 20, 2007 when they were due on September 17, 2007.

      The Court ordered briefing on the affirmative defense of failure to state a claim in September 2007. Defendant Land Commission filed its memorandum, with attachments taken from the Land Commission records on October 22, 2007. It argued that the twenty-year statute of limitations had passed, that service of notices and determinations were all proper, and that the cause of action relating to conflict of interest has no legal effect.

       Defendant Allen filed a Motion for Summary Judgment on October 22, 2007, which also addressed this affirmative defense. Defendant Allen argued that the six-year statute of limitations applied and had passed, that laches and estoppel also barred Plaintiff’s claims, and that the conflict of interest claim was not substantiated. Defendant Allen attached documents from the Land Commission files in support of their Motion. In his Opposition to the Motion, Plaintiff also submitted portions of the Land Commission files. He argued that the failure to provide notice to him precluded summary judgment. Defendant Land Commission joined in the Motion for Summary Judgment on January 21, 2008 and argued that its duties were properly discharged based on service to the family’s named representative, who held a Power of Attorney, and that the passage of the twenty-year statute of limitations precluded Plaintiff from challenging the determination of ownership issued by the Land Commission. Plaintiff did not file a separate response to Defendant Land Commission’s Motion. The Court heard argument from the parties on February 19, 2008.

Standards to be Applied

      A Court grants summary judgment if the pleadings, discovery responses under oath, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In considering a summary judgment motion, the court must view the facts and inferences in a light that is most favorable to the party opposing the motion. Sigrah v. Kosrae State Land Comm’n, 11 FSM Intrm. 169, 171 (Kos. S. Ct. Tr. 2002); Skilling v. Kosrae, 10 FSM Intrm. 448, 450 (Kos. S. Ct. Tr. 2001).

      A moving party is entitled to a judgment as a matter of law when the nonmoving party has failed

[15 FSM Intrm 618]

to make a sufficient showing on an essential element of the case with respect to which he has the burden of proof. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Kosrae v. Worswick, 10 FSM Intrm. 288, 291-92 (Kos. 2001). Argument alone cannot create a disputed fact that will defeat summary judgment. Livaie v. Micronesia Petroleum Co., 10 FSM Intrm. 659, 664 (Kos. S. Ct. Tr. 2002).

      A dismissal for failure to state a claim under Rule 12(b)(6), Kosrae Rules of Civil Procedure, will be treated as a summary judgment if it presents matters outside the pleadings. See, for example, Wainit v. Weno, 7 FSM Intrm. 121, 122 (Chk. S. Ct. Tr. 1995). Here, all parties relied on information produced through discovery and on documents from the Land Commission records. Therefore, the Court will address this affirmative defense as part of the summary judgment motions.

Facts Not in Dispute

      The facts below are taken from the pleadings and admissions made by the parties, under oath, and from the Land Court records.

      Parcel 032T01, commonly known as Koasr, was originally owned by Mackwelung who passed it to his son, Allen Mackwelung. Allen Mackwelung is the father of Plaintiff William Allen, Defendant Winfred Allen, and John Allen. Allen Mackwelung passed away on about August 31, 1981.

      There are two wills from him, one dated February 20, 1977 and one dated July 27, 1977. Copies of both wills were submitted by the parties. The first will is handwritten and contains a statement that Koasr is granted to Winfred Allen. The second will was recorded on August 4, 1977 and grants a number of parcels, including Koasr, to William Allen.

       Allen Mackwelung signed two documents, which are the Kosrae version of the "Power to Represent Claimant before a Land Registration Team and a Land Commission," on August 24, 1979. John Allen was named as his representative in both documents. The documents covered a number of parcels, Inpuspus, Yekula, Putuk, Loal, Inwonak, Lenwot, and Koasr. The parties refer to this as a Power of Attorney.

      The Land Commission held hearings on Koasr on March 12, 1984 and on July 13, 1984. The Memorandum of Decision was issued on February 25, 1986. John Allen appeared at the March 12, 1984 hearing. Winfred Allen was served with the Determination of Ownership on May 14, 1986. The proof of service contains a notation dated March 4, 1986 stating, "John Allun el affol enge la el a soanel William Allun el fwin tu lain el a appeal oasr se inge." ("Allun" is a different spelling, but refers to the same name as "Allen.")

      Ownership of one or more of the parcels listed in the Powers of Attorney has been in litigation since at least 1969. This is a partial list of pending ownership or boundary disputes involving those parcels. The ownership of part of Lenwot was in dispute in Trust Territory Case Number 411, filed in 1969. Ownership of part of Lenwot was litigated in Trust Territory Case Number 430. Ownership of part of Yekula was litigated beginning in 1978, Case Number 6-78. That ownership is still being litigated, currently in two appeals pending before this Court, Justice Yinug presiding, Case Numbers 34-06 and 39-06. The parties cited Case Number 61-91, John Allen v. Webster George, where ownership of Loal was disputed. John Allen represented the Heirs of Allen Mackwelung in that case, as well. We note that Plaintiff’s current counsel was the Justice deciding that matter.

      Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92 (Kos. S. Ct. Tr. 1987) is one of

[15 FSM Intrm 619]

the string of cases addressing ownership of Yekula. In that case, Heirs of Mongkeya raised the issue of bias by the registration team and Land Commission. They claimed bias in favor of Heirs of Mackwelung because of family relationships and specifically named team member Harold Edmond, among others. Plaintiff, one of the Heirs of Mackwelung, now claims a conflict of interest due to Harold Edmond having dual roles as a member of the registration team and as a later member of the Land Commission.

Analysis

      Plaintiff’s first claim alleges negligence by Defendant Land Commission. Plaintiff’s second and third claims allege a denial of due process by Defendant Land Commission. The fourth and fifth claims are based on violations of statutes, Kosrae State Code § 11.609, § 11.611, and § 11.613.

       Kosrae State Code § 11.609 and 611 govern compensation of justices and the make-up of land court staff. They have no discernable relationship to the claims described by Plaintiff. He may be referring to the former code sections repealed and replaced by the Land Court Act of 2000, State Law 7-126, effective on October 1, 2001. Those sections, under the old Code provisions, covered the notice for hearings and hearings.

      Defendants moved for summary judgment arguing that Plaintiff is barred from pursuing these claims based on the statute of limitations. Kosrae State Code § 6.2503 sets out which actions are barred by the twenty-year statute of limitations. Kosrae State Code § 6.2504 sets out which actions are barred by the two-year statute of limitations. Finally, Kosrae State Code § 6.2506 provides that any action not governed by the limitations of actions stated in the earlier sections are governed by a six-year statute of limitations.

      Claims against the Land Commission for a violation of due process and for violation of statutes fall within the six-year statute of limitations. Sigrah v Kosrae State Land Comm’n, 11 FSM Intrm 169 (Kos. S Ct. Tr. 2002). In the case of Maketo Edmond and HO Tulenkun Edmond v Tokiwo Nena, Kosrae Land Commission and State of Kosrae, Civil Action 158-04 (Order of Dismissal, Feb. 2005), this Court reaffirmed that claims against the Kosrae State Land Commission for violation of statutes and for violation of due process are subject to a limitations period of six years. For other examples, see also Winston Killin v Nena Kilafwasru, et al., Civil Action 33-04 (Order of Dismissal, June 2004) and Nellie Kun Kinere v Land Comm’n et al., Civil Action 118-04 (Order of Dismissal, December 2004).

      In Sigrah v. Kosrae State Land Commission, 11 FSM Intrm. 169 (Kos. S. Ct. Tr. 2002), this Court evaluated claims against the Land Commission for violation of due process and for failing to apply statutes and held that such claims are 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.

      Actions against the government are allowed under Kosrae State Code § 6.2601. Subsections (b) and (c) cover actions claiming negligence and actions claiming violations of statutes or constitutional rights such as due process. Claims against the Land Commission for negligence, violation of due process and failing to apply statutes are actions against the government under this Code section. They fall within Kosrae State Code, § 6.2506, which establishes the limitations period of six years.

      The statute of limitations begins to run when a cause of action accrues. Here, the claims of negligence, violations of due process and for failing to apply statutes accrued either at the time the Determination of Ownership was issued or when the Certificate of Title was issued, in February 1986.

[15 FSM Intrm 620]

      More than six years has passed since those claims accrued. Therefore, the statute of limitations has run and those claims must be dismissed.

       The twenty-year statute of limitations under Kosrae State Code § 6.2503 covers actions for the recovery of land or an interest in land. The time period begins when the cause of action accrues. Here, the cause of action accrued in February 1986. Plaintiff filed his first Complaint in February 2007 and his amended Complaint in August 2007. Under either Complaint, more than twenty years has passed. Any claims against Winfred Allen about an interest in land or to recover land stated in the Complaint and Amended Complaint are therefore barred by the twenty-year statute of limitations.

      There are circumstances where a statute of limitations may be tolled, or temporarily suspended. For example, the statutory language may include such an exception by stating that an action accrues when a person has knowledge of or discovered the action that caused the injury. The Kosrae statutes do not include exceptions. This kind of exception is commonly called the "discovery rule." In some jurisdictions, courts apply this exception even though it is not specifically included in the statute of limitations.

      The statute of limitations for filing an action is different and distinct from the time limits for filing an appeal from a Land Court or Land Commission decision. An appeal from a Land Court or Land Commission decision is a statutorily created right. A party may appeal a decision of the Land Court within 60 days of being served with a written decision. Kos. S.C. § 11.614. Prior to the Land Court Act of 2000, a party could appeal a decision of the Land Commission within 120 days of receiving notice of the determination. Former Kos. S.C. § 11.614. See also Heirs of Mongkeya v. Heirs of Mackwelung (II), 3 FSM Intrm 395 (1987). So, for the purpose of filing an appeal, service of the written determination is a statutory requirement that begins the running of the appeals period. In other words, the service of the determination is a condition precedent to the running of the appeals period.

      However, the time for filing an appeal is not the starting point for the statute of limitations. The starting point for the statutes of   limitations set out in Kosrae State Code §§ 6.2503-2306 is the time the action accrued. An action accrues for recovery of land at the time "a suit may have been successfully maintained upon." Waguk v. Kosrae Island Credit Union, 6 FSM Intrm. 14 (App. 1993) (cited in Sigrah v. Kosrae State Land Comm’n, 11 FSM Intrm. 169, 174 (Kos. S. Ct. Tr. 2002)). This it the time the determination of ownership was issued; in this case, February 1986.

      It is not related to the service of the determination of ownership. And, the service of a notice or the failure to serve a notice does not suspend the operation of a statute of limitations. See, for example, 51 Am. Jur. 2d Limitation of Actions § 153 (rev. ed. 2000).

      If the Court were to allow a plaintiff to initiate an action beyond the statute of limitations deadline, a plaintiff would have to demonstrate extraordinary circumstances. A plaintiff would carry the burden of proving they were entitled to an exception to the statute. Plaintiff never addressed the running of the statute of limitations.

      Plaintiff repeatedly argues that the failure to personally serve him means that the appeals period has not run. However, it is abundantly clear from the Complaint that Plaintiff did not file an appeal and did not intend to file an appeal. His Complaint is for a "Declaratory Judgment" and "Clear Title." He did not name the claimants or interested persons in the Land Court decision as defendants. And, he did not follow the procedural rules for appeal.

      A statute of limitations is an independent bar to an action, separate from any opportunity to appeal that might be granted by a statute. Here, Plaintiffs’ actions against the Land Commission and

[15 FSM Intrm 621]

against Winfred Allen are barred by the statutes of limitations.

      Plaintiff referred to the final cause of action as a "conflict of interest." The essence of this claim is that the determination of ownership must be set aside because one of the team members, Harold Edmond, later became a member of the Land Commission and was one of the concurring commissioners on the determination of ownership for this parcel in 1986. This claim against the government is an action covered by Kosrae State Code § 6.2601 and falls within the six-year statute of limitations, as explained above. It is therefore dismissed, as well.

      In addition, this issue is related to one identified in Heirs of Mongkeya v. Heirs Mackwelung, 3 FSM Intrm. 92 (Kos. S. Ct. Tr. 1987). In that case, the Heirs of Mongkeya argued that they were prejudiced because of the close relationships between Heirs of Mackwelung and specific decision makers. Heirs of Mongkeya specifically named Harold Edmond as "clearly prejudiced" in favor of Heirs of Mackwelung. The subsequent appeal states:

In an earlier opinion concerning this case, the Court considered claims of the appellants that Land Commission members who participated in the determination were biased because of their familial relationships to heirs of Allen Mackwelung in violation of 67 TTC 103(2) or KC 11.602(2). Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92 (Kos. S. Ct. Tr. 1987). Thereafter, on April 7, 1987, a hearing was held to assess the familial relationship between the senior land commissioner and the heirs of Allen Mackwelung.  The Court found no bias and no violation of the statute or of procedural due process.

      Heirs of Mongkeya v. Heirs of Mackwelung (II), 3 FSM Intrm 395, 397 (Kos. S. Ct. Tr. 1987). To the extent any bias or conflict of interest existed relating to Heirs of Mackwelung by Harold Edmond, this case appears to have addressed it.

Order of Dismissal

      I have considered the facts and arguments of Defendants’ Motion for Summary Judgment in the best light available to the Plaintiff. Based upon the submissions of the parties and the competent evidence in the record of this matter, I conclude that Defendants, as moving parties, have shown that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Defendants’ Motion for Summary Judgment is granted, on all causes of action listed in the Complaint and Amended Complaint.

      The Complaint and Amended Complaint are dismissed with prejudice.

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