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Chuuk State Court |
CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100 (Chk. S. Ct. App. 2007)
MORIA RUBEN and HERSIN RUBEN,
Appellants,
vs.
CHONSY TIU HARTMAN, SAMUEL HARTMAN,
CHUUK STATE GOVERNMENT, MAIKAWA
PICHO, on behalf of the WITO CLAN OF IRAS,
and ROKURO STEPHEN,
Appellees.
CIVIL APPEAL NO. 02-2005
CIVIL APPEAL NO. 04-2005
OPINION
Argued: May 1, 2007
Decided: June 15, 2007
BEFORE:
Hon. Benjamin Rodriguez, Temporary Justice, Presiding*
Hon. Repeat Samuel, Temporary Justice**
Hon. Derensio Konman, Temporary Justice**
*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Attorney at Law, Weno, Chuuk
APPEARANCES:
For the Appellants:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941
For the Appellees:
Fredrick A. Hartman(Hartmans)
P.O. Box 222
Weno, Chuuk FM 96942
For the Appellee:
Ben K. Enlet (R. Stephen)
P.O. Box 1650
Weno, Chuuk FM 96942
* * * *
HEADNOTES
Appellate Review - Standard of Review - Civil Cases
The appellate court reviews questions of law de novo, but will overturn a trial court’s factual findings only when they are not supported by substantial evidence in the record,
or if they were the result of an erroneous conception of the applicable law, or if, after a consideration of the entire record, the
appellate court is left with a definite and firm conviction that a mistake has been made. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 108 (Chk. S. Ct. App. 2007).
Constitutional Law - Due Process; Courts - Recusal
By failing to refer motions to recuse and to disqualify the presiding justice to another justice, as required by the State Judiciary
Act, the trial justice violated the movants’ rights to due process of law. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 108 (Chk. S. Ct. App. 2007).
Judgments - Relief from Judgment
It is an error of law for the trial justice to even consider setting aside a judgment sua sponte or on his own motion since only an
affected party may seek relief from judgment. Rule 60(b) explicitly requires a motion from the affected party, not from the trial
court acting sua sponte. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 108-09 (Chk. S. Ct. App. 2007).
Appellate Review - Standard of Review - Civil Cases; Civil Procedure - Motions
A court abuses its discretion by an unexplained failure to exercise its discretion within a reasonable time. Thus, failures to rule
on motions were an abuse of the trial justice’s discretion and led to further reversible error in the trial justice’s
rulings. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 109 (Chk. S. Ct. App. 2007).
Judgments - Void
A judgment is void when the court lacked subject matter jurisdiction or when indispensable parties were not joined or when a certificate
of title had previously been issued for the land and that certificate or the validity of the process that resulted in that certificate
was never challenged. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 109-10 (Chk. S. Ct. App. 2007).
Judgments - Collateral Attack; Jurisdiction - Personal
The failure to join an indispensable party may subject a judgment to collateral attack. A judgment (or final order) entered against
a person without notice or an opportunity to be heard is void and is subject to direct or collateral attack at any time, and a court
that lacks personal jurisdiction over a person cannot enter a valid judgment against that person. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 110 (Chk. S. Ct. App. 2007).
Jurisdiction - Personal
In civil cases, a court has personal jurisdiction only over persons who have been duly summoned, that is, made a party by valid service
of process. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 110 (Chk. S. Ct. App. 2007).
Judgments - Void; Jurisdiction - Personal
When neither the Wito Clan nor the Rubens were ever duly summoned in Civil Action No. 64-98 before the August 20, 1998 judgment was
issued so that court never had personal jurisdiction over them, the judgment, as to any interest either of them might have, is void.
Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 110 (Chk. S. Ct. App. 2007).
Civil Procedure - Parties; Constitutional Law - Due Process; Property - Registered Land
In any lawsuit to, in effect, remove someone’s name from a certificate of title, that is, to change the registered ownership
of the land that the certificate represents and deprive the certificate titleholder of the titleholder’s property interest,
due process requires that that person is an indispensable party to the action. Any action that seeks to claim an interest in land
for which a certificate of title or a determination of ownership has already been issued, must, at a minimum, name the registered
titleholder as a party. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 110 (Chk. S. Ct. App. 2007).
Civil Procedure - Parties; Constitutional Law - Due Process - Notice and Hearing
Since, in any lawsuit that would remove someone’s name from a certificate of title or that would deprive a person of ownership
of the registered land that the certificate or determination represents, the constitutional right to due process requires that that
person is an indispensable party to the action, an August 20, 1998 judgment that was rendered without either titleholder having been
made a party to the case and having had an opportunity to be heard is thus void, and could be collaterally attacked by later civil
actions. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 110 (Chk. S. Ct. App. 2007).
Judgments
Since a trial court can only hold that, as between the parties to the case, who has the better claim to ownership, but that is all
the trial court can decide regarding ownership, its ruling cannot apply to any claims to ownership by non-parties. Since the state
never claimed title to Unupuku, a judgment against the state for title, even if it were valid against the state, would be utterly
meaningless. It is certainly no good against anyone else. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 111 (Chk. S. Ct. App. 2007).
Civil Procedure - Parties; Constitutional Law - Indefinite Land Use
When the Trust Territory leased Unupuku in 1956 and had indefinite land use rights under the lease, but did not claim to own Unupuku,
but indefinite land use agreements were abolished by Article XIII, section 5 of the FSM Constitution and became void on July 12,
1984, five years after the FSM Constitution’s effective date, and when the state executed a fifteen-year lease for Unupuku
in 1984 and it did not claim to own Unupuku, in any suit claiming title to Unupuku, the state was not the party to sue since it did
not claim title to Unupuku. Unupuku’s titleholders were. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 111 (Chk. S. Ct. App. 2007).
Judgments
A judgment can only be enforced against a party to the case. For a judgment to be enforceable, the court rendering the judgment must
have jurisdiction over the subject matter of the action and personal jurisdiction over the parties to the action and against whom
the judgment is to be enforced. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 111 (Chk. S. Ct. App. 2007).
Constitutional Law - Due Process - Notice and Hearing
Civil Rule 71 does not (and cannot) overthrow the due process clauses of the Chuuk and FSM Constitutions. Notice and an opportunity
to be heard is the essence of due process of law. No court can grant as relief a request that would nullify a certificate of title
to a person who is not before the court and award different person with the title to land for which a certificate of title had already
been issued because that would have the court void certificates of title in a manner that would violate every notion of due process
of law. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 111 (Chk. S. Ct. App. 2007).
Judgments
Once a judgment has been entered does not mean it is enforceable against anyone and everyone who is not a party. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 111 (Chk. S. Ct. App. 2007).
Costs; Judgments
An order or judgment that may be lawfully enforced against someone who is not a party is an injunction may be enforced upon parties
to the action, their officers, agents, servants, employees and attorneys, and upon those persons in active concert or participation
with them who receive actual notice of the order by personal service or otherwise and against a non-party opponent for costs incurred
by his misbehavior. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 112 (Chk. S. Ct. App. 2007).
Judgments - Relief from Judgment; Judgments - Void
There is no time limit to seek relief from a void judgment because if a judgment is void when issued, it is always void, and when
relief is sought from a void judgment, a court has no discretion but must grant relief from judgment. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 112 (Chk. S. Ct. App. 2007).
Judgments; Property - Land Commission
A trial court can determine no more than who among the parties before it has a better claim to title or in the case of trespass, possession.
A court cannot determine who has title good against the world. Land registration (determination of title presumptively good against
the world) is the province of the Land Commission and its procedures, not of a court. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 112 (Chk. S. Ct. App. 2007).
Property - Registered Land
Certificates of title are required to show all interests in the land except for rights of way, taxes due, and lease or use rights
of less than one year and are conclusive upon all persons who have had notice of the proceedings and all those claiming under them
and are prima facie evidence of ownership as stated therein against the world. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 112-13 (Chk. S. Ct. App. 2007).
Judgments; Property - Registered Land
In order for a judgment granting ownership to land to which someone else has a certificate of title to be valid, the judgment would
first have to have set aside the other’s certificate of title and as a general rule a certificate of title can be set aside
only on the grounds of fraudulent registration. When the pleadings never addressed, or even mentioned the existence of, the certificate
of title, this was a fatal flaw. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 113 (Chk. S. Ct. App. 2007).
Civil Procedure - Consolidation
It is the Chief Justice’s responsibility to make the orderly assignment of cases. When no justice had taken any action in Civil
Actions No. 36-2000 and 229-2000 before they were consolidated with Civil Action No. 64-98 and the three cases all involved title
to Unupuku and the same parties, consolidation was appropriate under Civil Procedure Rule 42(a). Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 113 (Chk. S. Ct. App. 2007).
Civil Procedure - Consolidation
Consolidation of cases involving the same land is desirable to avoid the possibility of inconsistent decisions, to expedite the ultimate
resolution of the matter, and to avoid expensive and unnecessary duplication. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 113 (Chk. S. Ct. App. 2007).
Civil Procedure - Consolidation
Since once a case has been assigned to a particular justice, that justice has jurisdictional priority over the parties and issues
of the case to the exclusion of all other trial division justices, and that while the case is pending, the priority extends to any
other case involving the same parties and issues, it was proper to consolidate the three cases concerning ownership of Unupuku with
the first case filed, and have the justice assigned to that case handle the consolidated case. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 113 (Chk. S. Ct. App. 2007).
Courts - Judges
Even if a special trial justice were not a lawfully appointed judicial officer, that is, a judge de jure, he was a de facto judicial
officer since a de facto judge is one who exercises the duties of the judicial office under the color of an appointment thereto.
A judge de facto’s acts are generally valid and not subject to collateral attack. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 114 (Chk. S. Ct. App. 2007).
Constitutional Law - Case or Dispute - Standing
A party cannot raise the claims of third persons. She may raise only her claims. She must assert her own legal rights and interests,
and cannot rest her claim to relief on the legal rights or interests of a third party. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 114 (Chk. S. Ct. App. 2007).
Civil Procedure - Intervention
A motion to intervene must be accompanied by a pleading setting forth the claim or defense for which intervention is sought. A motion
to intervene that does not include such a pleading or is not amended to include such pleading before the court has ruled on it must
be denied. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 114-15 (Chk. S. Ct. App. 2007).
* * * *
COURT’S OPINION
BENJAMIN RODRIGUEZ, Temporary Justice, Presiding:
On February 13, 2006, appellants Moria Ruben and Hersin Ruben ("Rubens") filed their brief in this consolidated appeal. No other party filed a brief. At the May 1, 2007 oral argument, the court allowed appellees Chonsy Tiu Hartman and Samuel Hartman ("Hartmans") and appellee Rokuro Stephen to present argument, Chk. App. R. 31(c), with the proviso that the Rubens could respond in a reply brief. The Rubens filed their reply brief on May 8, 2007.
The Rubens appealed the trial court’s March 22, 2005 order setting aside the April 6, 2004 judgment (Appeal No. 02-2005) and orders entered on May 12, 17, and 23, 2005 (Appeal No. 04-2005). The two appeals were consolidated since they arose from the same case. We reverse the trial court. Our reasons follow.
A. Prior to Civil Action No. 64-98
In 1954, a Trust Territory District Title Officer determined that the Wito Clan was the owner of Unupuku. In 1956, the Trust Territory leased Unupuku from the Wito Clan. In 1959, Tiu Killion occupied part of Unupuku, claiming to have bought the land from one Nimuk. In 1961, the Trust Territory government took the land for its own use and either relocated or evicted Killion. In September 1976, a Truk District Land Commission Land Registration Team issued a notice of preliminary inquiry for certain land areas in Moen, Truk, including Unupuku. In October 1976, the Wito Clan and one Tas filed competing claims for Unupuku. Tiu Killion did not file a claim. Nor did anyone claiming through him, or claiming to represent him, file a claim. In December 1976, the claimants and the general public were given notice of a hearing concerning Unupuku and other lands. The hearing was held on January 12, 1977. On January 12, 1981, a determination of ownership was issued in favor of the Wito Clan of Iras. Tas Echikar appealed. On July 15, 1981, a certificate of title for Unupuku (Lot No. 040-A-17, total area 4,461 square meters) was issued to "the lineage of the Wito Clan of Iras now headed by Erwin Tima" in fee simple and subject to a Trust Territory lease agreement. In February 1982, the Trust Territory High Court trial division affirmed the Land Commission’s decision. Echikar v. Erwin, Trust Territory Civil Action No. 95-81 (Tr. Div. Feb. 2, 1982). This was not appealed.
On September 14, 1987, Jonsy [sic] Tiu Killion, claiming that her father had paid $80 to persons named Nimuk and Conrad, filed an incomplete request with the Truk State Land Commission to register Unupuku in her name.[1] A 1991 lawsuit filed by Murphy Terry and others against Wito Clan members over Unupuku (CSSC Civil Action No. 150-91) was dismissed on May 3, 1994, on the ground that the matter had already been conclusively litigated in the Land Commission.
In 1984, the State of Truk leased Unupuku from the Wito Clan for fifteen years. The State did not claim to own any part of Unupuku. In March 1997, Moria M. Ruben bought part of Unupuku from Maikawa Picho and other Wito Clan members for $150,000. On March 26, 1997, the State released its use of Unupuku to Moria M. Ruben. On April 8, 1999, the Land Commission issued Moria M. Ruben and Hersin Ruben a certificate of title for Lot 040-A-41, the part of Unupuku that Moria Ruben had bought.
B. Civil Action No. 64-98
On March 16, 1998, Chonsy Tiu Hartman ("Hartman"), the late Tiu Killion’s daughter and his successor in interest, filed suit (Civil Action No. 64-98) against the State of Chuuk alleging that it was trespassing on her portion of Unupuku. She did not name any titleholder(s) (the Wito Clan or Moria Ruben) as a defendant. Nor did she allege that anyone else had or claimed to have title to the part of Unupuku she claimed. Based solely on Hartman’s testimony, the trial court, on August 20, 1998, entered a default judgment against the State, holding that Hartman was the owner of Unupuku. Hartman v. Chuuk, [1998] FMCSC 20; 8 FSM Intrm. 580, 581 (Chk. S. Ct. Tr. 1998). The State then released Unupuku to Hartman.
Since Moria Ruben was the holder of a certificate of title to part of Unupuku, the Rubens, on August 2, 1999, filed a motion to intervene in Civil Action No. 64-98. She filed a complaint in intervention on September 13, 1999. On February 11, 2000, on behalf of the Wito Clan, Maikawa Picho (as successor to Tima) filed suit (Civil Action No. 36-2000) against Hartman and the State, seeking to quiet title to Unupuku, for which they held a certificate of title. On November 2, 2000, the Rubens filed suit against the Hartmans (Chonsy and Samuel) to quiet title to that portion of Unupuku for which Moria Ruben had a certificate of title. Both Civil Action No. 36-2000 and No. 229-2000 sought to set aside the judgment entered in 64-98 on the grounds that the 64-98 judgment was void since the court that entered it did not have jurisdiction and the entry of the 64-98 judgment thus deprived them of property without due process of law.
On July 8, 2003, Chief Justice Soukichi Fritz consolidated the three cases and assigned them to a special trial justice. The Rubens then moved to set aside the 64-98 judgment and moved for summary judgment on their claim to part of Unupuku. Picho, on behalf of the Wito Clan, also moved for summary judgment. In a dispositive ruling entered on March 23, 2004,[2] the special trial justice 1) set aside the 64-98 judgment on the ground that it was void, Hartman v. Chuuk, [2004] FMCSC 2; 12 FSM Intrm. 388, 398-99 (Chk. S. Ct. Tr. 2004); 2) dismissed Civil Action No. 64-98 with prejudice, id. at 399-400; 3) granted judgment in the Rubens’ favor against the Hartmans, id. at 400; 4) granted judgment in Picho’s favor against Hartman and the State, id. at 400-01; 5) denied Rokuro Stephen’s motion to intervene on behalf of Wito Clan members allegedly not represented by Picho and who challenged the validity of the Wito Clan’s sale to the Rubens because the motion did not contain a proposed pleading as required by Civil Procedure Rule 24(c) and because it was untimely, id. at 402; and 6) ordered that any and all further proceedings, if any, regarding claims (such as Stephen’s) to any part of Unupuku must be brought before the Chuuk State Land Commission; id. at 401-02, 404. Final judgment was entered on April 6, 2004. No party filed a notice of appeal.
C. After the April 6, 2004 Judgment
On January 18, 2005, a different trial justice issued a notice scheduling Civil Action No. 64-98 for a hearing on January 27, 2005. The caption of that order listed the Rubens and Picho as parties. On January 26, 2005, the Rubens’ counsel moved to cancel the hearing on the ground that there were no issues pending before the court since final judgment had been entered, Civil Action No. 64-98 had been dismissed, and no motions were pending and moved to continue the hearing since counsel was resident on Pohnpei and needed more notice before a hearing. The motion was not acted upon. The trial justice issued another notice on February 1, 2005, scheduling a "trial" on February 7, 2005.
The "trial" proceeded without any witnesses and despite the absence of the Rubens’ counsel. On February 22, 2005, the Rubens filed a motion to reconsider the trial justice’s decision to hold "trial" and the justice’s intention, announced at that "trial," that the justice would set aside the April 6, 2004 judgment. The motion contended that the Rubens never had notice that such an action was being considered, and, if they had had notice, they would have briefed it and contested it on the basis of statute of limitations, res judicata, and the failure to name the actual owners of Unupuku as parties in Civil Action No. 64-98. The reconsideration motion was never ruled upon.
On March 22, 2005, the trial justice issued an order reinstating the August 20, 1998 default judgment and vacating all later orders in Civil Action No. 64-98, including the Chief Justice’s consolidation order, his appointment of a special trial justice, and the special trial justice’s March 23, 2004 order, and ruled that Moria Ruben could not become a party because she had not filed a motion to intervene. On March 23, 2005, Hartman filed a motion for an order in aid of judgment and asked the court to hold the Rubens in contempt for failing to comply with the March 22, 2005 order and the August 20, 1998 default judgment and asked that the Rubens be ordered to pay damages. On March 29, 2005, the Rubens filed a notice of appeal (Civil Appeal No. 02-2005) and a motion for a stay pending appeal and an opposition to Hartman’s motion for an order in aid of judgment. The trial justice never ruled on the motion to stay.
On April 26, 2005, the trial justice ordered further proceedings on the motion for an order in aid of judgment. On May 11, 2005, the Rubens filed a motion to recuse the trial justice, which he denied orally at a May 12, 2005 hearing. The trial justice also informed the Rubens that they were not parties and could not be joined as parties since judgment had been entered in Civil Action No. 64-98 in 1998. In a May 17, 2005 order, the trial justice continued a hearing on Hartman’s motion for an order in aid of judgment and stated that he had denied the motion to recuse on the ground that, in his view, recusal is discretionary, unlike disqualification for which the Chuuk Judiciary Act contains a referral requirement. The Rubens filed a motion to disqualify the trial justice on May 18, 2005. The Judiciary Act, Chk. S.L. No. 190-08, § 22(5), res a justice againsgainst whom such motion is filed to refer it to another justice. The same day, the Rubens filed a motion for stay in the appellate division. A single appellate justice granted that stay on May 19, 2005. On May 23, 2005, the trial justice orally denied the motion to disqualify on the ground that the Rubens were not parties in Civil Action No. 64-98 so he did not have to refer the motion to another justice. On May 23, 2005, the Rubens filed a petition for a writ of prohibition in the appellate division (Civil Appeal No. 03-2005) seeking to bar the trial justice from exercising any further jurisdiction in the case. On May 25, 2005, the Rubens filed a notice of appeal (Civil Appeal No. 04-2005) from the trial justice’s May 12, 2005 and May 23, 2005 oral orders and from his May 17, 2005 written order.
In July and August 2005, the trial justice issued orders directed to the Rubens and their attorney as to why they should not be held in contempt for failing to obey the trial justice’s rulings and asserted that he did not have to obey the single appellate justice’s May 19, 2005 stay order. On September 1, 2005, the FSM Supreme Court issued a preliminary injunction barring further attempts to enforce the trial justice’s 2005 orders until the Chuuk State Supreme Court appellate division proceedings had been concluded. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383 (Chk. 2005). On April 7, 2006, the Chuuk State Supreme Court appellate division issued a writ of prohibition ordering the trial justice to refrain from exercising further jurisdiction or taking any further action whatsoever over Civil Action No. 64-98 issues. Ruben v. Petewon, [2006] FMCSC 3; 14 FSM Intrm. 177, 187 (Chk. S. Ct. App. 2006). That left Civil Appeals No. 02-2005 and 04-2005 to come before us now.
II. Issues Presented
The Rubens contend (in Civil Appeal No. 02-2005) that the trial justice’s factual findings were clearly erroneous; his legal conclusions were in error; that setting aside the April 6, 2004 judgment was an error of law, not supported by the facts and an abuse of discretion; the trial justice violated their rights to due process of law when he held hearings and issued decisions after the case had been dismissed, when he failed to appropriately rule on timely motions to enlarge and to reconsider his decisions, and when he sua sponte raised the issue of the April 6, 2004 judgment’s validity and disregarded appellate precedent on the point; that the trial justice should not have been assigned or accepted the assignment to Civil Action No. 64-98; that he had no authority to set matters for "trial"; and that he abused his discretion in all actions taken from January through March 2005.
The Rubens further contend (in Civil Appeal No. 04-2005) that the trial justice’s factual findings were clearly erroneous; his legal conclusions were in error; that he abused his discretion and violated the Rubens’ right to due process by holding hearings and issuing orders when their counsel was not present, by not ruling on timely motions for continuance, and by "dismissing" the Rubens as parties; that the trial justice erred by ruling on the motions to recuse and to disqualify rather than referring them to another justice; and that the trial justice violated the Rubens’ constitutional rights to due process and a fair and impartial proceeding and failed to show the required degree of impartiality in deciding matters before him.
III. Standards of Review
We review questions of law de novo. Rosokow v. Bob, [2002] FMCSC 14; 11 FSM Intrm. 210, 214 (Chk. S. Ct. App. 2002). We will overturn a trial court’s factual findings only when they are not supported by substantial evidence in the record, or if they were the result of an erroneous conception of the applicable law, or if, after a consideration of the entire record, we are left with a definite and firm conviction that a mistake has been made. Id.; Phillip v. Moses, [2002] FMCSC 3; 10 FSM Intrm. 540, 546 (Chk. S. Ct. App. 2002).
IV. Discussion
A. Civil Appeal No. 04-2005
At oral argument, Hartman did not contest the Rubens’ appeal of the trial justice’s May 12, 17, or 23, 2005 orders denying the Rubens’ motions to recuse and to disqualify the trial justice. As noted by the Rubens, these orders were essentially disposed of by this court’s April 7, 2006 grant of a writ of prohibition barring the trial justice from exercising further jurisdiction or taking any further action whatsoever over Civil Action No. 64-98 issues. Ruben, 14 FSM Intrm. at 187. That opinion held that it was an error of law for the trial justice to not have referred the motions to recuse and to disqualify to another justice as mandated by the Chuuk State Judiciary Act of 1990, Chk. S.L. No. 190-08, § 22(5), since the triatice&#ice’s statement that the Rubens were not parties was clearly erroneous. Ruben, 14 FSM Intrm. at 184-85. We see no reason not to follow that appellate holding. By failing to refer those motions to another justice, the trial justice violated the Rubens’ rights to due process of law. The trial justice’s May 12, 17, and 23, 2005 orders denying the Rubens’ motions to recuse and to disqualify the trial justice are reversed to the extent they did not become moot by the issuance of the writ of prohibition.
B. Civil Appeal No. 02-2005
1. Motion for Relief from Judgment
The Rubens contend that the trial justice violated clear appellate precedent by assuming jurisdiction over the case and sua sponte moving for relief from the judgment entered April 6, 2004. The Rubens assert that since they were never served with a motion for relief from judgment filed by Hartman and that since there is no such motion in the court’s files, that no such motion was ever made. We are inclined to agree. Since the Rubens have repeatedly made this assertion in litigation since early 2005 and no copy of such a motion, filed or unfiled, has ever surfaced, it seems unlikely there ever was one.
That being so, it was an error of law for the trial justice to even consider setting aside the April 6, 2004 judgment sua sponte or on his own motion. Only an affected party may seek relief from judgment. Kama v. Chuuk, [2002] FMCSC 5; 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002) (the right to seek relief from judgment under Rule 60(b) is restricted to a party or a party’s legal representative). "‘Rule 60(b) explicitly requires a motion from the affected party,’ not from the trial court acting sua sponte." Kama, 10 FSM Intrm. at 598. This was clear binding appellate precedent which the trial justice was required to follow. He did not.
That alone is sufficient ground to reverse the trial justice’s March 22, 2005 order setting aside the April 6, 2004 judgment and all orders based upon it. However, although there is no motion for relief from judgment in existence, there is an insertion in the certification of record of a "Defendant’s opposition" to a motion to vacate the special trial justice’s April 6, 2004 judgment and a supplement to a motion to vacate, both supposedly filed August 20, 2004. There are no such documents in the court’s files and no party has asserted they filed any such document or provided a copy. The page numbering in the certification of record goes directly from the April 12, 2004 returns of service for the April 6, 2004 judgment to the trial justice’s January 18, 2005 notice setting the case for hearing. But since the insertion in the certification may leave some small doubt whether a party’s motion for relief from judgment ever actually existed, we will consider the Rubens’ other grounds for reversal.
2. Failure to Rule on Motions to Enlarge, Reconsider
The Rubens contend that the trial justice’s failure to appropriately rule on their timely motions to continue and on their motion to reconsider his order entered after a "trial" without their attorney’s presence violate their rights to due process of law. The trial justice made no rulings on those motions and so failed to exercise whatever discretion he may have had to rule on them. A court abuses its discretion by an unexplained failure to exercise its discretion within a reasonable time. Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 147 (App. 2002); In re Certification of Belgrove, 8 FSM Intrm. 74, 77-78 (App. 1997). These failures to rule on motions were thus an abuse of the trial justice’s discretion and led to further reversible error in the trial justice’s rulings.
3. Reinstatement of the August 20, 1998 Judgment
a. Grounds Given for Reinstatement
The trial justice based his March 22, 2005 order reinstating the August 20, 1998 judgment on: 1) the August 20, 1998 judgment had not been appealed; 2) the time to seek modification of the 64-98 judgment had expired; 3) the Chief Justice had no authority to consolidate the three cases; 4) the special trial justice had no authority or jurisdiction to issue decisions in any case because he was not Chuukese and General Court Order No. 2-94 was unconstitutional; and 5) Moria Ruben could not be a party because she did not have a motion to become a party. (This factual finding is clearly erroneous since Moria Ruben had filed a motion to intervene in Civil Action No. 64-98 back in 1999.)
Hartman further asserts that it was proper for the trial justice to vacate the April 6, 2004 consolidated judgment and reinstate the August 20, 1998 judgment in Civil Action No. 64-98 because she or her father had not waived any rights to Unupuku by not participating in the 1970’s land registration process because, in her view, the Wito Clan’s application protected their rights; that it was proper to sue only the State for title to Unupuku since it was the State’s predecessor in interest, the Trust Territory, that took Unupuku away from Tiu Killion; that Civil Procedure Rule 71 permits the enforcement of the August 20, 1998 judgment against any non-party; and that the statute of limitations to recover an interest in land is twenty years, not 120 days, so the 1998 lawsuit was timely since the State still had the land and since the Rubens had only recently claimed to have bought part of Unupuku.
b. August 20, 1998 Judgment is Void
It was an error of law for the trial justice to reinstate and to try to enforce the August 20, 1998 judgment because that judgment was void and unenforceable. That judgment is void on several grounds. The court lacked subject matter jurisdiction. Indispensable parties were not joined. A certificate of title had previously been issued for Unupuku and Hartman never challenged that certificate or the validity of the process that resulted in that certificate. And the only defendant named, the State of Chuuk, never claimed title.
(1) No Subject Matter Jurisdiction
The trial court lacked subject matter jurisdiction over Civil Action No. 64-98 when it rendered its August 20, 1998 judgment. Unupuku
is on Weno [Moen] and thus in a designated land registration area. "Once the Land Commission has designated a registration area ‘the
courts shall not entertain any action with regard to interests in land within that registration area . . . wita shoofng of speciapecial cause why action by the court is desirable . . . .’"
(2) Indispensable Parties Not Joined
The August 20, 1998 judgment was rendered without the presence of indispensable parties. The failure to join an indispensable party may subject a judgment to collateral attack. Nahnken of Nett v. United States (III), [1994] FMSC 3; 6 FSM Intrm. 508, 517 (Pon. 1994). A judgment (or final order) entered against a person without notice or an opportunity to be heard is void and is subject to direct or collateral attack at any time, Pastor v. Ngusun, [2002] FMCSC 17; 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002); Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 (App. 2001), and a court that lacks personal jurisdiction over a person cannot enter a valid judgment against that person, Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 281 (5th Cir. 1987). In civil cases, a court has personal jurisdiction only over persons who have been duly summoned, that is, made a party by valid service of process. Joeten Motor Co. v. Jae Joong Hwang, [1995] FMCSC 17; 7 FSM Intrm. 326, 327 (Chk. S. Ct. Tr. 1995). Neither the Wito Clan nor the Rubens were ever duly summoned in Civil Action No. 64-98 before the August 20, 1998 judgment was issued so that court never had personal jurisdiction over them and the judgment, as to any interest either of them might have, is void.
Civil Action No. 64-98 sought to, in a roundabout way, make the prior issuance of a certificate of title to the Wito Clan meaningless and in effect remove its name from the certificate of title and insert Hartman’s. In any lawsuit to remove someone’s name from a certificate of title, that is, to change the registered ownership of the land that the certificate represents and deprive the certificate titleholder of the titleholder’s property interest, due process requires that that person is an indispensable party to the action. Any action that seeks to claim an interest in land for which a certificate of title or a determination of ownership has already been issued, must, at a minimum, name the registered titleholder as a party. See Marcus v. Truk Trading Corp., [2002] FMSC 31; 11 FSM Intrm. 152, 158 n.4 (Chk. 2002). In any lawsuit that would remove someone’s name from a certificate of title or that would deprive a person of ownership of the registered land that the certificate or determination represents, the constitutional right to due process requires that that person is an indispensable party to the action. Id. The August 20, 1998 judgment was rendered without either the Wito Clan or Moria Ruben having been made parties to Civil Action No. 64-98 and having had an opportunity to be heard. The Wito Clan and Moria Ruben were indispensable parties. The August 20, 1998 judgment is thus void, and could be collaterally attacked by Civil Actions No. 36-2000 and 229-2000.
If the August 20, 1998 judgment had any validity it could only be between the parties, that is, a determination that Hartman had a better claim to title than the State. A trial court can hold that, as between the parties to the case, who has the better claim to ownership, but that is all the trial court can decide regarding ownership. Its ruling cannot apply to any claims to ownership by non-parties. Rosokow v. Bob, [2003] FMCSC 7; 11 FSM Intrm. 454, 457 (Chk. S. Ct. App. 2003). Since the State never claimed title to Unupuku, Hartman’s judgment against the State for title, even if it were valid against the State, would be utterly meaningless. It is certainly no good against anyone else.
(3) The State as the Only Defendant
At oral argument, Hartman contended that it was proper for her to sue only the State as the defendant because it was the State’s predecessor in interest, the Trust Territory government, that took Unupuku away from Tiu Killion for indefinite land use.
We cannot agree. We note that the Trust Territory leased Unupuku in 1956 and had indefinite land use rights under the lease, but did not claim to own Unupuku. Indefinite land use agreements were abolished by Article XIII, section 5 of the FSM Constitution and became void on July 12, 1984, five years after the FSM Constitution’s effective date. Hartman v. Chuuk, [1999] FMCSC 2; 9 FSM Intrm. 28, 33 (Chk. S. Ct. App. 1999). The State executed a fifteen-year lease for Unupuku in 1984. It, like the Trust Territory government, did not claim to own Unupuku. Thus, in any suit claiming title to Unupuku, the State was not the party to sue since it did not claim title to Unupuku. Unupuku’s titleholders were.
(4) Rule 71 and Enforcement Against Non-Parties
Hartman, however, contends that Civil Procedure Rule 71 gave the trial court the authority to enforce the August 20, 1998 Civil Action No. 64-98 judgment against non-parties, such as the Rubens. This contention is frivolous and thoroughly devoid of any merit. A judgment can only be enforced against a party to the case. For a judgment to be enforceable, the court rendering the judgment must have jurisdiction over the subject matter of the action and personal jurisdiction over the parties to the action and against whom the judgment is to be enforced. See First Hawaiian Bank v. Engichy, [2002] FMCSC 1; 10 FSM Intrm. 536, 538 (Chk. S. Ct. Tr. 2002); Joeten Motor Co. v. Jae Joong Hwang, [1995] FMCSC 17; 7 FSM Intrm. 326, 327 (Chk. S. Ct. Tr. 1995).
Rule 71 does not (and cannot) overthrow the due process clauses of the Chuuk and FSM Constitutions. Notice and an opportunity to be heard is the essence of due process of law. Kama v. Chuuk, [2002] FMCSC 5; 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002). No court can grant as relief a request that would nullify a certificate of title to a person who is not before the court and award different person with the title to land for which a certificate of title had already been issued because that would have the court void certificates of title in a manner that would violate every notion of due process of law. Anton v. Cornelius, [2003] FMSC 76; 12 FSM Intrm. 280, 288-89 (App. 2003); Anton v. Heirs of Shrew, [2003] FMSC 77; 12 FSM Intrm. 274, 277 (App. 2003).
Furthermore, the Civil Procedure Rules do not extend the court’s jurisdiction. Chk. Civ. R. 82. The part of Rule 71 that Hartman appears to rely upon states that "when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party." Chk. Civ. R. 71. Hartman contends that this means once a judgment has been entered it is enforceable against anyone and everyone who is not a party. This is false. Hartman ignores the key word in the phrase - "lawfully." The August 20, 1998 judgment that Hartman owned Unupuku could not be lawfully enforced against the Rubens or anyone else who was not a party to Civil Action No. 64-98 on that date, that is, against anyone except the State of Chuuk. And it cannot lawfully be enforced against the State because, under 67 TTC 105, the trial court did not have subject matter jurisdiction.
An order or judgment that may be lawfully enforced against someone who is not a party is "an injunction may be enforced upon parties to the action, their officers, agents, servants, employees and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise," 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3033, at 177 (2d ed. 1997)c(discussing U.S. Federal Rule of Civil Procedure 71, which is identical to and from which Chuuk Civil Procedure Rule 71 is derived) and against a non-party opponent for costs incurred by his misbehavior. But otherwise judgments and orders generally cannot be enforced against non-parties without violating the non-parties’ constitutional rights to due process.
(5) No Time Limit to Attack Void Judgment
The trial justice’s March 22, 2005 order gives as one reason for overturning the special trial justice’s March 23, 2004 ruling, that the time to modify the August 20, 1998 judgment had passed. We understand this to mean that the trial justice believed that the one-year time limit in Rule 60(b) had expired. This is incorrect. Rule 60(b) lists six reasons for relief from judgment and provides that a motion for relief "shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Chk. Civ. R. 60(b). Reason (4), void judgment, (and reasons (5) and (6)) have no such one-year time limit. The reason there is no time limit to seek relief from a void judgment is obvious. If a judgment is void when issued, it is always void, and when relief is sought from a void judgment, a court has no discretion but must grant relief from judgment. See Amayo v. MJ Co., [2001] FMSC 32; 10 FSM Intrm. 371, 377 (Pon. 2001) (no discretion for void judgments under FSM Rule 60(b)(4) (similar to Chuuk Rule 60(b))). Thus, even if the 2005 trial justice believed that the special trial justice had no authority to make any rulings, the trial justice’s only course of action once assuming jurisdiction over Civil Action No. 64-98 would have been, based on the Rubens’ earlier motion for relief from judgment, to grant the Rubens relief from the void August 20, 1998 judgment himself.
(6) Unupuku Title Already Determined
A trial court can determine no more than who among the parties before it has a better claim to title (or in the case of trespass, possession). See Rosokow v. Bob, [2003] FMCSC 7; 11 FSM Intrm. 454, 457 (Chk. S. Ct. App. 2003), denying reh’g of Rosokow v. Bob, [2002] FMCSC 14; 11 FSM Intrm. 210, 217 (Chk. S. Ct. App. 2002). A court cannot determine who has title good against the world. Land registration (determination of title presumptively good against the world) is the province of the Land Commission and its procedures, 67 TTC 117, not of a court. The Land Commission did determine the title of Unupuku good against the world as the result of the land registration process that lasted from December 1976 to 1982.
[2007] FMSC 24; [15 FSM Intrm 116]
Civil Action No. 64-98 did not challenge the validity of that process. Nor does Hartman challenge it now. She contends, without any factual basis, that her, or her father’s rights to Unupuku were protected by the Wito Clan during that process. The Wito Clan asserted its own claim (and only could have asserted its own claim) to Unupuku. It did not assert a claim by Tiu Killion. If he had one, that was the time for him to claim Unupuku. He did not. The certificate of title was issued only to "the lineage of the Wito Clan of Iras now headed by Erwin Tima" in "fee simple." The only other interest in Unupuku mentioned on the certificate of title was a Trust Territory government lease agreement registered on October 26, 1977 as Document Number 665. Certificates of title are required to show all interests in the land except for rights of way, taxes due, and lease or use rights of less than one year. 67 TTC 117(1). The certificate does not show any interest held by Tiu Killion. The Wito Clan’s certificate of title is "conclusive upon all persons who have had notice of the proceedings and all those claiming under them and [is] prima facie evidence of ownership as stated therein against the world." Id.
Hartman’s pleadings in Civil Action No. 64-98 never addressed, or even mentioned the existence of, the Wito Clan’s certificate of title to Unupuku. This was a fatal flaw. In order for the August 20, 1998 judgment to have been valid, it would first have to have set aside the Wito Clan’s certificate of title. "As a general rule a Certificate of Title can be set aside only on the grounds of fraudulent registration. " Luzama v. Ponape Enterprises Co., [1995] FMSC 11; 7 FSM Intrm. 40, 51 (App. 1995). Hartman has not claimed that the Wito Clan’s registration was fraudulent. The August 20, 1998 judgment was void on this ground also.
(7) Summary
In order to render a valid judgment, a court must have jurisdiction over the subject matter and personal jurisdiction over the parties. See Engichy, 10 FSM Intrm. at 538; Joeten Motor Co., 7 FSM Intrm. at 327. The trial court that entered the August 1998 judgment had neither. The August 20, 1998 judgment was void because the trial court lacked subject matter jurisdiction; because indispensable parties, the Wito Clan and Moria Ruben, were not joined; because a certificate of title had previously been issued to the Wito Clan for Unupuku and Hartman never challenged that certificate or the validity of the process that resulted in that certificate; and because the only defendant named, the State of Chuuk, did not claim title. It was thus an error of law for the trial justice to reinstate it. The trial justice’s only proper course of action was to declare the August 20, 1998 judgment void and to refuse to enforce it.
c. Consolidation Order
The trial justice in his March 22, 2005 order and Hartman at oral argument asserted that Chief Justice Fritz’s consolidation order was invalid because Civil Actions No. 36-2000 and 229-2000 had been assigned to a different judge, could not be reassigned, and so the orders following the consolidation were also invalid.
We cannot agree. It is the Chief Justice’s responsibility to make the orderly assignment of cases. No justice had taken any
action in Civil Actions No. 36-2000 and 229-2000 when they were consolidated with 64-98. The three cases all involved title to Unupuku
and the same parties. Consolidation was appropriate under Civil Procedure Rule 42(a). Consolidation was desirable to avoid the possibility
of inconsistent decisions, to expedite the ultimate resolution of the matter, and to avoid expensive and unnecessary duplication.
We have previously held that "[o]nce a case has been assigned to a particular justice, that justice has jurisdictional priority over
the parties and issues of the case" to the exclusion of all other trial division justices, and that "[w]hile the case is pending,
the priority extends to any other case involving the same parties and issues . . . ." Nikichiw v. 17#82nis
d. Ability of Special Trial Justice to Rule
The trial justice in his March 22, 2005 order and Hartman at oral argument assert that the special trial justice’s March 23, 2004 order and the April 6, 2004 judgment were invalid because the special trial justice was not a born Chuukese and therefore ineligible to be appointed as a special trial justice. This issue was not raised by any party to the consolidated case before the special trial justice entered his order and the April 6, 2004 judgment was entered.
We, therefore, do not have to decide this issue. The special trial justice was appointed by the Chief Justice pursuant to the procedure contained in two general court orders issued in 1994. As such, the special trial justice appeared to be a properly installed judicial officer. Thus, even if the special trial justice were not a lawfully appointed judicial officer, that is, a judge de jure, he was a de facto judicial officer, see Alafanso v. Suda, [2002] FMCSC 4; 10 FSM Intrm. 553, 556 (Chk. S. Ct. Tr. 2002), since a de facto judge is "one who exercises the duties of the judicial office under the color of an appointment . .hereto." Hartman v.an v. FSM[1993] FMSC 53; , 6 FSM Intrm. 293, 297 (App. 1993). A judge de facto’s acts are generally valid and noject to collateral attack. Alafanso, 10 FSM Intrm. at 556; Hartman, 6 FSM IntM Intrm. at 298-300 (temporary judge’s acts valid although the person may not have been eligible for appointment as temporary judge). The special trial justice’s acts were, if not those of a de jure judge, then those of a de facto judge, and could not be challenged for the first time by a trial justice in 2005. Alafanso, 10 FSM Intrm. at 557. This therefore was not a ground for the trial justice to vacate the March 23, 2004 decision and April 6, 2004 judgment.
4. Hartman’s Assertion of the Wito Clan’s Rights
Hartman also asserts that any Wito Clan sale of part of Unupuku to the Rubens was invalid because not all adult Wito Clan members had consented to the sale. Even if this factual contention is true, it does not aid Hartman’s cause in any way since she would be asserting Wito Clan members’ rights and claims and not her own. A party cannot raise the claims of third persons. She may raise only her claims. She must assert her own legal rights and interests, and cannot rest her claim to relief on the legal rights or interests of a third party. FSM v. Udot Municipality, [2003] FMSC 60; 12 FSM Intrm. 29, 40 (App. 2003); College of Micronesia-FSM v. Rosario, [2001] FMSC 3; 10 FSM Intrm. 175, 188 (Pon. 2001) (a defendant cannot defeat a plaintiff’s summary judgment motion by raising a third party’s potential claim), aff’d[2003] FMSC 10; , 11 FSM Intrm. 355, 360 (App. 2003) (agreeing with trial court); see also Sipos v. Crabtree, [2005] FMSC 37; 13 FSM Intrm. 355, 365 (Pon. 2005); Eighth Kosrae Legislature v. FSM Dev. Bank, [2003] FMSC 27; 11 FSM Intrm. 491, 497, 500 (Kos. 2003); Dorval Tankship Pty, Ltd. v. Department of Finance, [1997] FMSC 24; 8 FSM Intrm. 111, 115 (Chk. 1997).
There is a certain irony in Hartman’s making this contention since her claim to Unupuku rests upon her assertion that her father bought it from Nimuk or from Nimuk and Conrad, who were allegedly brothers of the lineage head, Erwin Tima. She has never claimed that all adult Wito Clan members consented to Tiu Killion’s $80 purchase of Unupuku.
Furthermore, Hartman’s contention that all the Wito Clan adult members did not approve the sale to the Rubens, is irrelevant to her claim since her position is that her father acquired Unupuku in 1959. That would mean that the Wito Clan would not have had the right to sell it to anyone else after that even if all Wito Clan members had properly authorized the sale.
C. Rokuro Stephen’s Appearance
Counsel for Rokuro Stephen appeared at oral argument to state that there were still pending issues of whether the land was properly transferred to the Rubens. Stephen stated that his motion to intervene was never heard and that the transfer was improper because Chuukese customary law requires that all adult lineage members consent to any transfer of lineage land.
A motion to intervene must be accompanied by a pleading setting forth the claim or defense for which intervention is sought. Chk. Civ. R. 24(c). A motion to intervene that does not include such a pleading or is not amended to include such pleading before the court has ruled on it must be denied. Since Stephen’s motion to intervene did not include a proposed pleading, Hartman, 12 FSM Intrm. at 402, it was properly denied without hearing.
However, all three of the consolidated cases concerned only whether Hartman’s claim to title to Unupuku was superior to the Wito Clan’s and the Rubens’. The issue of whether the Rubens’ claim to part of Unupuku was superior to the Wito Clan’s was not part of those cases, was not addressed by those cases, and was a claim which the March 23, 2004 ruling specifically permitted to proceed before the Chuuk Land Commission. Hartman, 12 FSM Intrm. at 402. Any internal claims between Wito Clan members and between the Wito Clan and the Rubens may proceed in the Land Commission, but Hartman’s claim cannot proceed there or anywhere else. Hartman’s claim to Unupuku is invalid as a matter of law.
V. Conclusion
Accordingly, the trial justice’s March 22, May 12, 17, and 23, 2005 orders are reversed. The August 20, 1998 judgment in Civil Action No. 64-98 is void and unenforceable. Chonsy Tiu Hartman does not have a valid claim to Unupuku or any part thereof and her claim to Unupuku is dismissed with prejudice. Any claim by Wito Clan members that the sale to the Rubens was not properly made must first be pursued in the Chuuk Land Commission. The Rubens are entitled to their costs. Chk. App. R. 39(a).
* * * *
Footnotes:
[1].The request form was incomplete because it failed to answer the questions about whether anyone else had an interest in Unupuku, whether Unupuku was occupied by anyone, and, if so, by whom, what use was made of Unupuku, and whether Unupuku had been the subject of court action or of a land title officer determination.
[2].For a more detailed account of the tangled procedural history of Civil Actions No. 64-98, 36-2000, and 229-2000 before the special trial justice’s dispositive ruling, see Hartman v. Chuuk, [2004] FMCSC 2; 12 FSM Intrm. 388, 392-98 (Chk. S. Ct. Tr. 2004).
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