Pastor v Ngusun [2002] FMCSC 17; 11 FSM Intrm. 281 (Chk. S. Ct. Tr. 2002) (3 December 2002)

CHUUK STATE SUPREME COURT
TRIAL DIVISION

Cite as Pastor v. Ngusun
[2002] FMCSC 17; 11 FSM Intrm. 281 (Chk. S. Ct. Tr. 2002)

[2002] FMCSC 17; [11 FSM Intrm. 281]

INASIO PASTOR and NINI PASTOR,
Plaintiffs,

vs.

IOICHY NGUSUN, for himself and on behalf of his
lineage of PWE clan of Manaio Village, Polle Island,
Defendants.

CSSC-CA-NO. 90-2002

ORDERS

Wanis R. Simina
Associate Justice

Hearing: November 25, 2002
Decided: December 3, 2002

APPEARANCES:

For the Plaintiff: Camillo Noket, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants: Ben Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law - Due Process - Notice and Hearing; Judgments
A judgment entered against a party without notice or an opportunity to be heard is void and subject to direct or collateral attack. Pastor v. Ngusun, [2002] FMCSC 17; 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002).

Civil Procedure - Parties; Judgment - Relief from Judgment
A judgment may be vacated for nonjoinder of a necessary or indispensable party or where it affects persons who were never made parties to the suit. Pastor v. Ngusun, [2002] FMCSC 17; 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002).

Judgment - Relief from Judgment
When a default judgment that affects persons, who claim ownership of the land and who were never made parties to the suit, but against whom the judgment is sought to be enforced those persons

[11 FSM Intrm. 282]

are clearly entitled to relief from the default judgment under Chuuk Civil Rule 60(b)(6), and no time limits are imposed on the granting of such relief because the court may, in its discretion, treat a complaint as a Rule 60(b)(6) motion for relief from judgment. Pastor v. Ngusun, [2002] FMCSC 17; 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002).

Civil Procedure - Consolidation
When the fundamental underlying issue in this action and two other actions is the ownership of that land known as "Epinipis," and when in order to determine the rights of the parties (and those not yet parties) the chain of title to "Epinipis" must be determined, it makes no sense to have three separate actions all of which must rely for a determination on one issue – the ownership of the land "Epinipis," therefore the three actions will be consolidated for all purposes. Pastor v. Ngusun, [2002] FMCSC 17; 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002).

Civil Procedure - Consolidation; Civil Procedure - Parties
In consolidated cases that have become a quiet title action, the proper and indispensable parties to the action include without limitation all persons who the record indicates may claim any intererst, wherever derived, in any portion of the land. Pastor v. Ngusun, [2002] FMCSC 17; 11 FSM Intrm. 281, 286 (Chk. S. Ct. Tr. 2002).

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COURT’S OPINION

WANIS R. SIMINA, Associate Justice:

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

This action, seeking the invalidation of the Judgment by Default entered in the case of Ngusun v. Cheni, CSSC-CA-NO. 119-95, is proof of the byzantine complexities which can arise if attorneys and counselors fail to comply with the Rules of Civil Procedure, and fail to notice the traps established by their own pleadings. A statement of the procedural history and the facts established by the complaint and amended complaint in CSSC-CA-NO. 119-95, and the pleadings in CSSC-CA-NO. 227-2001 and this action, will hopefully establish the basis for the bringing of the instant action, and the relief granted by the Court in these orders.

On June 16, 1995, Defendant herein, Ioichy Ngusun, by and through his counselor of record, Ben Enlet, brought an action against one Namer Cheni, mother-in-law of Plaintiff Inasio Pastor, seeking to quiet title to a parcel of land commonly known as "Epinipis," located on Polle Island in Chuuk State, Federated States of Micronesia. No other defendants were named in CSSC-CA-NO. 119-95.

The complaint and summons in CSSC-CA-NO. 119-95 were personally served on the named defendant, Namer Cheni, on July 29, 1995. No answer or other pleading having been filed by Namer Cheni, Plaintiff Ngusun sought entry of default on September 22, 1995. Default was finally entered by the Clerk of Court on May 13, 1997.^[1]

Subsequent to the entry of default, the Court, having determined that no responsive pleading had been filed by the Defendant, entered its Judgment by Default in favor of the Plaintiff, Ioichy Ngusun, on September 19, 1997. The judgment by Default granted the relief prayed for in the complaint,

[11 FSM Intrm. 283]

specifically that the Plaintiff owned – as against the Defendant Namer Cheni – the land known as "Epinipis," and ordering the Defendant to vacate the land, and to remove her house, "or houses belong [sic] to other persons located on said land" from the property within six months from the date of the judgment by default. The Court presumes – as no evidence is available from the court file – that the Judgment by Default was served on Defendant Namer Cheni.

At no time did the counselor representing the Plaintiff bring to the attention of the Court, or point out the significance of, the allegation contained in paragraph 9 of the complaint in CSSC-CA-NO. 119-95, which states: "Just recently, Plaintiff learned from people from Polle Island that Defendant sold half (½) of Epinipis to her son-in-law, Inasio and that the other half (½) to Mr. Pandinus Suzuki without authorization from the Plaintiff."^[2]

The quoted allegations in paragraph 9 establish that Plaintiff knew, at the time of filing of the complaint in CSSC-CA-NO. 119-95, that additional parties were necessary and indispensable to the determination sought in the complaint – the ownership of "Epinipis." Since it was clear to Plaintiff that Namer Cheni had sold all of her interest in "Epinipis," it should have been equally clear to Plaintiff (and to the Court) that the buyers were indispensable parties to the litigation. Ownership could not be definitively determined without permitting all those persons who claimed an ownership interest to appear and be heard on the issue. By suing only Namer Cheni, who had disposed of the land by the date of filing of the complaint, and failing to name or join the purported buyers of the land, the Plaintiff precluded the Court from entering a judgment binding on all persons claiming an interest in the land.

No further action was taken in CSSC-CA-NO. 119-95 until January 11, 2001, almost three and one-half years after entry of the Judgment of Default, when Plaintiff filed a Motion for Order in Aid of Judgment, seeking enforcement of the judgment by default against Inasio Pastor and his wife Nini, who had refused to vacate their home.^[3] The caption of the motion, for the first time, included Inasio Pastor and Nini Pastor as named defendants.

In response to the Motion, which was properly served on Inasio and Nini Pastor, the newly designated "defendants" asserted that the judgment was void as to them, because they were not made parties to CSSC-CA-NO. 119-95, were not served with the complaint, and were not permitted an opportunity to defend their title to the property. The Pastors pointed out – correctly – that the judgment by default entered against Namer Cheni was void as to them, and asked that the Motion for Order in Aid of Judgment be denied and that the Judgment by Default be declared void.

The hearing on the Motion for Order in Aid of Judgment of Ioichy Ngusun was held on October 26, 2001. On November 16, 2001, the Court entered its order denying the Motion, and denying the "motion" of Inasio and Nini Pastor seeking dismissal of the complaint. The Court retained jurisdiction over the action, and ordered that the Plaintiff could reinstate the case by a properly pleaded complaint, naming the Pastors as proper parties defendant.

[11 FSM Intrm. 284]

On August 8, 2002, Ioichy Ngusun filed an Amended Complaint in CSSC-CA-NO. 119-95, against Inasio and Nini Pastor exclusively, seeking ejectment and injunctive relief, based upon the previously entered Judgment by Default. The complaint and summons were served on the Pastors on August 12, 2002.

On October 30, 2001 – prior to filing the amended complaint in CSSC-CA-NO. 119-95 – the counselor for Ioichy Ngusun filed an action against Inasio and Nini Bastor [sic] for trespass and unjust enrichment. The plaintiffs in this second action, CSSC-CA-NO. 227-2001, were the counselor for Ioichy Ngusun, Ben Enlet, and his wife Denikie Enlet. For the first time in this second action it was disclosed that the land "Epinipis" was purportedly given to Ben and Denikie Enlet by Ioichy Ngusun, the biological uncle of Ben Enlet, sometime in 1997. This action has never been served on the defendants.

Apparently in order to protect their rights – having not yet been served with an amended complaint in CSSC-CA-NO. 119-95, and unaware, due to lack of service, of the filing of the action in trespass (CSSC-CA-NO. 227-2001) filed by Ben Enlet – the Pastors filed this action on May 14, 2002, seeking a permanent injunction against the enforcement of the Judgment by Default in CSSC-CA-NO. 119-95, and seeking a Declaratory Judgment that the Judgment by Default in CSSC-CA-NO. 119-95 was void.

This action was served on Ioichy Ngusun (who apparently no longer has any claim to the land "Epinipis," having transferred his interest, to the extent such interest may exist, to Ben Enlet and Denikie Enlet) on July 31, 2002. In response to the complaint in this action, Defendant Ioichy Ngusun brought a motion to dismiss on the grounds that the issues raised in this action are the same as those raised in CSSC-CA-NO. 119-95 (and presumably those raised in CSSC-CA-NO. 227-2001), together with his Answer to the complaint, and counterclaims. The Answer fails to disclose the purported transfer of the land "Epinipis" to Ben and Denikie Enlet, but the transfer is referred to in that portion of the pleading styled "Defendant’s Affirmative Defence [sic] and Counter Claims."

On September 13, 2002, the Pastors filed their Response in Opposition to Defendants’ Motion to Dismiss, and together therewith their Answer to the counterclaims. On November 7, 2002, the Court scheduled a hearing on the Motion to Dismiss, which was held as scheduled on November 25, 2002.

In summary: There are presently no fewer than three actions, filed by or against persons claiming an ownership interest in that land commonly known as "Epinipis," one of which (CSSC-CA-NO. 119-95) has proceeded to Judgment by Default, which Judgment is under attack in this action. The Court has been asked by the successor to the judgment holder in NO. 119-95 to dismiss the instant action apparently on the grounds that another action is pending asserting the same material issues of fact and law, claims and defenses (either CSSC-CA-NO. 119-95 or CSSC-CA-NO. 227-2001, or both). This action seeks to void the Judgment by Default in CSSC-CA-NO. 119-95, and CSSC-CA-NO. 227-2001 has never been served. The Defendant in this action, named as Plaintiff in CSSC-CA-NO. 119-95, apparently no longer claims any interest in the land. The persons claiming through Ioichy Ngusun, Ben and Denikie Enlet, are not named Defendants in this action, are the named Plaintiffs in CSSC-CA-NO. 227-2001, and have not participated, except as counselor for Ioichy Ngusun, in the proceedings before this Court. The Court is charged with trying to make sense of these claims, in a manner which protects the interests of all persons claiming an ownership interest in "Epinipis."

II. THE NATURE OF CSSC-CA-NO. 90-2002

The instant action, CSSC-CA-NO. 90-2002, is a complaint in the form of a collateral attack on the Judgment by Default entered in CSSC-CA-NO. 119-95. It seeks a declaration of the Court that the \

[11 FSM Intrm. 285]

Judgment by Default is void, on the grounds of failure to properly name as defendants, and to serve, Inasio and Nini Pastor. It seeks a judgment vacating the Judgment by Default, but it does not seek any determination of the true and proper ownership of the land known as "Epinipis," apparently presuming without any proof that the transfer of the land from Namer Cheni was valid – that Namer Cheni was in fact the owner of "Epinipis" in 1992, when the purported sale to the Plaintiffs herein was effected.

It is clear as a matter of law that "[a] judgment entered against a party without notice or an opportunity to be heard is void and subject to direct or collateral attack." Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 (App. 2001). Here, however, the Judgment by Default in CSSC-CA-NO. 119-95 was not entered against a "party" without notice or an opportunity to be heard. Inasio and Nini Pastor were not parties to that action.

It is also clear, however, that "A judgment may be vacated for nonjoinder of a necessary or indispensable party . . . or where it af persons whns who were never made parties to the suit . . .&#16049 C.J Judgmentgments § 316, at 440 (1997). Thus, the Pastors are entitled to have the Judgment by Default vacated, as the Judgment by Defaaffecrsons who were never made parties to the suit," nt," namelyamely the Pastors, who claim ownership of the land known of "Epinipis" and against whom the Judgment is sought to be enforced.

The Pastors are clearly entitled to relief from the Judgment by Default pursuant to the provisions of CSSC Civil Rule 60(b)(6), and no time limits are imposed on the granting of such relief. The Court may, in its discretion, treat the complaint herein as a Rule 60(b)(6) motion for relief from Judgment in CSSC-CA-NO. 119-95. In the interests of justice, the Court so elects, and grants the relief sought, that is a determination that the Judgment by Default in CSSC-CA-NO. 119-95 is void for failure to join indispensable parties. The Judgment by Default is due to be, and it hereby is, VACATED.

III. CONSOLIDATION OF ACTIONS

CSSC Civil Rule 42(a) provides:

When actions involving a common question of law or fact are pending before the court, it any order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Clearly, the fundamental underlying issue in this action, and in CSSC-CA-NO. 119-95 and CSSC-CA-NO. 227-2001, is the ownership of that land known as "Epinipis." If, as Plaintiffs herein contend, the land was owned by Namer Cheni in 1992, when it was purportedly sold to Plaintiffs herein, then it is owned by Plaintiffs, and not by Ioichy Ngusun or by Ben and Denikie Enlet. If, on the other hand, the land was, in and before 1992, owned by Ioichy Ngusun and his lineage of the Pwe Clan of Manaio Village, Polle Island, then the purported sale to Plaintiffs herein by Namer Cheni was void and of no legal effect. In order to determine the rights of the parties (and those not yet parties), the chain of title to "Epinipis" must be determined. It makes no sense to have three separate actions all of which must rely for a determination on one issue – the ownership of the land "Epinipis."

Therefore, CSSC-CA-NO. 119-95, CSSC-CA-NO. 227-2001, and this action, CSSC-CA-NO. 90-2002, are due to be, and they hereby are, CONSOLIDATED for all purposes.

IV. PROPER PARTIES

Sifting through the various pleadings on file in these three consolidated actions, it appears that

[11 FSM Intrm. 286]

the proper parties to this dispute are Ben Enlet and Denikie Enlet, as successors in interest to Ioichy Ngusun and his lineage of the Pwe Clan of Manaio Village, Polle Island, and Inasio Pastor and Nini Pastor, as successors in interest to Namer Cheni. Unfortunately for all concerned, it appears from paragraph 9 of the initial complaint in CSSC-CA-NO. 119-95 that Pandinus Suzuki may also be an indispensable party to a determination of the past and current ownership of "Epinipis." Indeed, a review of the as yet unserved complaint in Enlet v. Pastor, et al., CSSC-CA-NO. 227-2001 indicates that a portion of "Epinipis" may have been sold by the Pastors to one Iromy Bruton (Complaint, NO. 227-2001, 14). IfAffidavit of Inasionasio Pastor and Ninly [sic] Pastor in this action, CSSC-CA-NO. 90-2002 is to be accepted as true, Namer Cheni sold a portion of "Epinipis" in 1992 to Kalisto Refolopei, nowased. As the parties can scan see, who should be joined in this consolidated action is a matter of great concern to the Court. Having been required to vacate the Judgment by Default in CSSC-CA-NO. 119-95 due to the failure of the Plaintiff in that action to join necessary and proper parties to the action, the Court does not wish to be again placed in the position of determining the rights of individuals without providing them the fundamental right of notice and an opportunity to be heard on their own behalf.

NOW THEREFORE, good cause appearing,

IT IS HEREBY ORDERED AS FOLLOWS:

1. The motion of Ioichy Ngusun, or his successors in interest, to dismiss the complaint in CSSC-CA-NO. 90-2002, entitled Inasio Pastor and Ninly Pastor vs. Ioichy Ngusun, et al., is hereby denied;

2. The instant action is determined to properly be and is hereby treated as a motion to vacate the Judgment by Default in Ngusun, et al. vs. Cheni, CSSC-CA-NO. 119-95, pursuant to CSSC Civil Rule 60(b)(6), and as such is hereby GRANTED, and the Judgment by Default in CSSC-CA-NO. 119-95 is due to be and hereby is VACATED;

3. Pursuant to the provisions of CSSC Civil Rule 42(a), the civil actions entitled Ngusun, et al. vs. Cheni, CSSC-CA-NO. 119-95, Ben and Denikie Enlet vs. Inasio and Nini Bastor, CSSC-CA-NO. 227-2001, and Inasio Pastor and Nini Pastor vs. Ioichy Ngusun, et al., CSSC-CA-NO. 90-2002 are due to be, and they hereby are, CONSOLIDATED for all purposes. The consolidated action shall be captioned for all purposes as BEN ENLET and DENIKIE ENLET, as Successors in Interest to IOICHY NGUSUN and his lineage of the Pwe Clan of Manaio Village, Polle Island vs. Inasio Pastor and Nini Pastor, as Successors in Interest to Namer Cheni, and others, and shall be numbered CSSC-CA-NO. 119-1995, CSSC-CA-NO. 227-2001 and CSSC-CA-NO. 90-2002, Consolidated. All future pleadings and documents filed in these consolidated actions shall be so captioned and shall carry the case number assigned, and shall be filed by the Clerk of the Court in case file for CSSC-CA-NO. 119-1995;

4. Plaintiffs BEN ENLET and DENIKIE ENLET shall, within 20 days from the date of this Order, file and serve on all named defendants an amended complaint in these consolidated actions, utilizing the pleading caption set forth in paragraph 3, above, naming as parties defendant any and all persons known to Plaintiffs to claim any interest, wherever derived, in the land known as "Epinipis," including without limitation Inasio Pastor, Nini Pastor, Pandinus Suzuki and Iromy Bruton, identified by Plaintiffs or their predecessor in interest as having acquired a portion of said land. The amended complaint shall contain, at a minimum, a cause of action seeking to quiet title to the land known as "Epinipis" in the Plaintiffs, with sufficient allegations as to their ownership to permit all defendants to know and understand the factual basis of the claim of ownership.

5. Plaintiffs BEN and DENIKIE ENLET shall serve, with the amended complaint referred to in paragraph 4, above, a copy of these orders. All persons served as parties defendant in the

[2002] FMCSC 18; [11 FSM Intrm. 287]

aforementioned amended complaint shall file their answers and/or other responsive pleadings not later than January 10, 2003.

6. The Court hereby sets forth the scheduling order for further proceedings in these consolidated actions:

A. All parties shall make demand on all other parties for discovery not later than January 15, 2003;

B. All discovery shall be completed not later than March 5, 2003;

C. All pretrial motions shall be filed not later than March 14, 2003;

D. Hearing on all pretrial motions shall be held on March 24, 2003; and

E. If no pretrial motions are filed by the deadline set forth in paragraph 5.C. above, the Court will then set a date either for a final pretrial status conference or for trial. Trial shall begin, under all circumstances, not later than April 14, 2003.

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^[1] There is no explanation in the record indicating the reason for the delay in entry of default.

^[2] Had the Court noted this paragraph, or had it been pointed out to the Court, the complexity of the issues presented by the instant case could have been avoided. The failure can be attributed to both the Court and to Plaintiff’s counsel. In the future, it will be expected that attorneys and counselors will properly represent the status of a case to the Court. The Court, of course, should and will in the future pay much closer attention to the specific allegations in a complaint prior to entering a default judgment.

^[3] According to documents filed in CSSC-CA-NO. 119-95 and in this case, Inasio Pastor and his wife, the daughter of Namer Cheni, have resided in their home, built on "Epinipis," since 1971.