cite as Ittu vs. Charley, (Kosrae, 1987)
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Civil Action No. 12-84


 Before Edward C. King
Kosrae State Associate Justice
(by appointment of Chief Justice Skilling)
Kosrae State Court
September 7, 1987


For the Plaintiff:           Delson Ehmes  
                              Attorney -at -Law  
                              Micronesian Legal Services Corporation       
                              Kosrae, FSM 96944

          For the Defendant:           Aliksa B. Aliksa  
                              Trial Counselor  
                              Kosrae, FSM 96944

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EDWARD C. KING, Associate Justice:

     This is the third civil action initiated in the Trust Territory High Court by Lupe Ittu against Mekita Charley concerning ownership of the land known as Sungankuta in Malem Municipality.1 On April 9, 1987, after holding a hearing concerning the effect of the previous litigation, this Court entered an order dismissing plaintiff's claim. That dismissal was based upon res judicata grounds, owing to the fact that the court file in Trust Territory High Court civil action 14-76 contains an order, dated August 26, 1980, signed by Trust Territory Justice E. F. Gianotti, and dismissing Lupe Ittu's claim with prejudice. Lupe Ittu has now filed a motion seeking a new hearing.

I. Legal Analysis

     The procedural theory under which plaintiff is procoeding is, at best, hazy in outline.2 Although rule 59(a) of the Kosrae State Court Rules of Civil Procedure ids referred to, that rule

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relates t o motions for new trials. There has bean no trial in this case so rule 60(b), pertaining to requests for relief from judgments, seems more apt. Counsel's affidavit, at paragraph seven, speaks of "newly discovered evidence." The same standard applies for establishing this ground for relief, whether the motion is under Rule 59 or 60(b)(2). 11 C. Wright and A. Miller, Federal Practice and Procedure 2807 (1973) . Thus, plaintiff's motion shall here be considered as a motion under Rule 60(b) (2) , seeking relief from this Court's April 9, 1987 judgment on the ground that newly discovered evidence reveals the need for modification in order to provide substantial justice in this case.

A. Res Judicata Doctrine

     In essence, my April 9 decision was on res judicata grounds.3 In action 14-76, Lupe Ittu, as plaintiff, claimed ownership of Sungarikuta. Mekita Ctzarley defended on the ground i that Ittu Tepuke, the previous owner, had willed Sungankuta to several persons, including Mekita Charley. In the August 28, 1980 order of dismissal, l Trust Territory High Court Justice Gianotti said, "The will speaks for itself and clearly indicates it was the intention of ttie deceased ancestor of the parties t o will the land t 'o the decedent." Lupe Ittu' s claim was then dismissed with prejudice by the Trust Territory High Court because of Lupe Ittu's failure to prosecute the action. In this case, civil action 12-84, Lupe Ittu seeks to renew the same claim of ownership of Sungankuta. Mekita Charley again opposes on the

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ground that the land was willed to Mekita Charley and others.

     Further litigation of those claims would now be prevented in most common law jurisdictions by the doctrine of res judicata. See Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed.2d 308 (1980) ("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.") ; Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 719, 92 L. Ed. 898 (1984) ("The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any around whatever, absent fraud or some other factor invalidating tize judgment,.")

     Although the Trust Territory court order referred to the will, it is apparent that the dismissal was based. upon Lupe Ittu's failure to prosecute. No evidentiary nearing was held and the decision was not based upon the merits. Nevertheless, plaintiff's claim was dismissed with prejudice. Dismissal of a claim for. failure of the plaintiff to prosecute normally operates under .this. Court's rules as an adjudication upon thd merits. KSC Civ. R. 41(b).. Under general common law res judicata principles, such. an order of dismissal bars reassertion of the dismissed claim at a later date. Riehle v. Margolies, 279 U.S. 218, 225, 49 S. Ct. 310, 313, 73 L.Ed. 669 (1929) ("A judgment of. a court having jurisdiction of the parties and of the subject matter operates as res judicata, in the absence of fraud or collusion, even if obtained upon a default.") See also Morris v. Jones, 329 U. S. 545, 67 S. Ct . 451, 91 L. Ed. 488 (1947) ; Kapp v. Naturelle Inc., 611 F.2d 703 (8th Cir. 1.979).

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     It has been recognized that the need for finality, which is the inspiration for the res judicata doctrine, exists within the Federated States of Micronesia as well as in other jurisdictions.

There are several reasons why courts see this interest in preserving the final effect of judgments as important. First, the final resolution of a legal conflict should be useful in ending festering and troublesome disputes and restoring order between the disputants and those around them. Second, the final determination of rights frees the prevailing party to exercise the rights which were at issue and allows any contested resource to be used efficiently. Third, finality is intended to prevent both the parties and governmental institutions from devoting still more resources to the dispute itself.

While the paramount goal is to provide a full and fair opportunity for the parties to be heard and t o reach an enlightened result understandable to all of the parties, an important subsidiary goal is to end the litigation itself and to reach a final decision.

Sonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986) .

     Thus, I conclude that the doctrine of res judicata should and does apply in Kosrae. If the August 28, 1980 order of dismissal was validly entered by the Trust Territory High Court, that, judgment now bars Lupe Ittu from asserting ownership of Sungankuta against Mekita Charley.4

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B. Validity of the Judgment

     In light of the foregoing discussion, Lupe Ittu can avoid application of the res judicata doctrine only by showing irregularities in the Trust Territory High Court proceedings which prevent the 1980 order of dismissal from being credited as an effective judgment .

     In an effort to accomplish this difficult task, Ittu has filed two affidavits, one signed by plaintiff Ittu, the other by plaintiff's counsel.

     1. Ittu affidavit - Lupe Ittu's affidavit states that Ittu was neither notified of any hearings in civil action 14-76 nor served with an order of dismissal in that case. I note that the same affidavit was before this Court on April 9, 1987 when this case was dismissed. Accordingly, the affidavit is not.entitled t o post j udgment consideration as "newly discovered evidence."

     Moreover, the court file in civil action 14-76 refutes Ittu. s claim contained in the affidavit. That file contains a letter, dated June 29, 1979, from Albert Snyder of Micronesian Legal Services Corporation t o Richard Sigrah, then the Trust Territory clerk of courts in Kosrae. In that letter, Mr. Snyder,.an attorney, acknowledged that he had appeared on behalf of Lupe Ittu in a Trust Territory High Court hearing held during April, 1979. After that April 20, 1979 hearing, Trust Territory Justice Robert Hefner entered an order, dated April 23, 1979, saying, "If the Plaintiff is not ready to go to trial at the next setting of the Court, this matter will be dismissed with prejudice."

     The Snyder letter of June 29, 1975 also says, "Plaintiff has

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returned to Kosrae recently and informs us he is preparing for trial of tiie referenced action." The symbol "cc", indicates that a copy of the letter was sent to Lupe Ittu. This is persuasive evidence that Lupe Ittu received notice before dismissal of the need to prepare for trial, at least an entire year before civil action 14-76 was dismissed.

     Yet, despite this ample advance notice, Lupe Ittu failed to press the claim. The Trust Territory High Court August 26, 1980 order of dismissal recites that, "Subsequent to Judge Hefner's order, the Court has set [sic] in Ko srae on at least three occasions. At no time has plaintiff moved for trial."

     Further, the existence of a signed Trust Territory High Court order in the court file creates a presumption that Lupe Ittu or counsel received a copy of the order.5 This normal presumption is buttressed by tiie fact that the order of dismissai is the last paper in tine file. Plaintiff's knowledge of the order is strongly suggested by the fact that no further papers were filed in civil action 14-76. Indeed, after the August, 1980 order plaintiff 'Ittu made no further efforts to press the claim in court until this new action was filed almost four years later, on July 13, 1984. The only apparent explanation for this extended hiatus of activities in civil action 14-76 is Lupe Ittu's awareness of the August, 1980 order. No other explanation has been suggested.

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     I conclude that the Ittu affidavit furnishes no basis whatever for setting aside this Court's April 9, 1 987 judgment.

     2 Counsel's Affidavit - Counsel's affidavit also fails to reveal newly discovered evidence. That affidavit states that since the April 9 order, counsel izas talked to the clerk of courts, Kosrae District, and Rison Waguk and that,

On information from such interview, the affiant believes: (a) That no order of dismissal was ever entered and served on the plaintiff, (b) The,order of dismissal most likely was a draft and was never intended t o be put into effect, (c) Mr. Waguk was never informed that the matter will be dismissed with prejudice if plaintiff failed t o proceed to trial.

     This affidavit recites counsel's conclusions, but no factual basis. The affidavit implies that counsel's conclusions are derived from information gained during the interviews, but does not reveal what either person actually said. An affidavit which merely sets out conclusions or beliefs of the affiant, but shows no specific factual basis therefor, is inadequate. See Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Int rm. 92, 100 (Kos. S . Ct. 1987) .

II. Conclusion

     The Court finds neither newly discovered evidence nor any other basis for concluding that the April 9, 1987 order of dismissal should be set aside.

     The motion is therefore denied and this case is closed. So ordered the 7th day of September, 1987.

                                             EDWARD C. KING
                                             Associate Justice
                                             Kosrae State Court

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     Entered this 21st day of September, 1987.

                                             Clerk of Court
                                             Kosrae State Court


1. In the first, Trust Territory High Court civil action 424, plaintiff's counsel moved for dismissal on the day when the case was called for trial. That case was dismissed without prejudice on February 12, 1976. The second case, Trust Territory High Court civil action 14-76, was filed one month later, on March 12, 1976. The instant case, civil action 12-84, filed on July 13, 1984, was transferred-to the Kosrae State Court by Trust Territory High Court order dated March 22, 1985.(Back to Opinion)

2. Plaintiff's memorandum, in its entirety, says: "Rules 59 and 60 of the Rules of Civil Procedure provides [sic] for new proceedings and relief from judgments or orders of court for certain causes. As indicated in the affidavits filed herewith and heretofore, the plaintiff will be denied his day in court or due process if the order of dismissal issued in 1980 is given effect. The court has discretion in this matter and must afford the plaintiff his day in court." (Back to Opinion)

The motion itself only says: "Comes now plaintiff in tile above-captioned matter and moves this Court for a new hearing pursuant to Rule 59(a) of the Rules of Civil Procedure and to amend its order accordingly..

3. Res judicata is a Latin phrase, traditionally used in common law jurisdictions. Literally translated, the words mean, "The thing judicially decided.." (Back to Opinion)
4. Of course, if Lupe Ittu's claims here were new ones which arose after the 1980 judgment, those new claims would be outside the res judicata bar. Arguably this might be true of plaintiff's adverse possession claim. However, it is apparent that dismissal of that claim is just since Lupe Ittu's complaint in civil action 14-76 specifically alleged that Mekita Charley had been occupying Sungankuta under claim of ownership. That statement by Lupe Ittu would render impossible any effort by plaintiff now to prevail under a theory of adverse possession.(Back to Opinion)

5. Rule 57 of the Trust Territory High Court Rules of Civil Procedure was designed to assure that all parties would receive notice of any order entered by the Court: "Whenever an order is entered in the  absence of both a party and his counsel, the Clerk shall mail or deliver to each such party affected or his counsel, a notice thereof . " (Back to Opinion)