Dereas v Eas [2007] FMCSC 48; 15 FSM Intrm. 446 (Chk. S. Ct. Tr. 2007) (27 December 2007)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CSSC CIVIL CASE NO. 109-2003

KEICHI DEREAS,
Plaintiff,

vs.

SEWEN EAS,
individually and in his capacity as representative for any claimants to the land known as lot 029-A-23,
Defendants,

and

NAHOY G. SELIFIS,
Intervenor.
______________________________________________

ORDER GRANTING SUMMARY JUDGMENT FOR THE DEFENDANTS

Dennis K. Yamase
Special Trial Division Justice

Decided: December 27, 2007

APPEARANCES:

For the Plaintiffs: Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants: Hans Wiliander
P.O. Box 389
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Parties; Torts; Torts  Damages  Punitive

A cause of action based on tort will not be lost or abated because of the death of the tort_feasor or other person liable. An action thereon may be brought or continued against the deceased person's personal representative, but punitive or exemplary damages may not be awarded nor penalties adjudged in the action. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 448 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Parties; Transition of Authority

Since a statute in force in the State of Chuuk on the effective date of the Chuuk Constitution continues in effect to the extent it is consistent with the Chuuk Constitution, or until it is amended or repealed; since nothing in the Trust Territory survival of actions statute is inconsistent with the Chuuk Constitution; and since the statute has not been amended or repealed, 6 TTC 151(1) remains the law in Chuuk. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 448 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Parties; Torts

A tort cause of action survives the defendant's death and continues against his personal representative. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 448 (Chk. S. Ct. Tr. 2007).

Torts

Chuuk has adopted common law tort principles as the law of Chuuk when no specific constitutional or traditional impediment to their adoption existed. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 448-49 (Chk. S. Ct. Tr. 2007).

Torts  Interference with a Contractual Relationship

Relief may be granted for a claim of tortious interference with a contractual relationship when an individual's economic advantages obtained through dealings with others are knowingly jeopardized out of petty or malicious motives, or by a third party's improper or unjustified conduct, but when a defendant's allegedly offensive actions were taken in the course of a good faith effort to protect a legally cognizable interest, such actions do not constitute tortious interference with a contractual relationship. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 449 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Summary Judgment; Torts  Interference with a Contractual Relationship

When a defendant believed that he still owned ¾ or ¼ of a lot, he believed that he had a legally cognizable interest in some portion of that lot and thus his actions in asking the state not to pay the rent to the plaintiff and his actions in suing the state instead of the plaintiff, although wrong-headed or the result of poor legal advice or a misconception of the law, were taken in the good faith belief that he had a legally cognizable interest in the land. Therefore the plaintiff's motion for summary judgment on his tortious interference with a contractual relationship claim will be denied as a matter of law. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 449-50 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Summary Judgment

When a party's motion for summary judgment has been denied as a matter of law and it appears that the nonmoving party is entitled to judgment as a matter of law, the court may grant summary judgment to the nonmoving party in the absence of a cross motion for summary judgment if the original movant has had an adequate opportunity to show that there is a genuine issue and that his nonmoving opponent is not entitled to judgment as a matter of law. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 450 (Chk. S. Ct. Tr. 2007).

Civil Procedure  Summary Judgment; Torts  Interference with a Contractual Relationship

When the non-moving defendants have a valid defense to the tortious interference with a contractual relationship claim and when the moving plaintiff had an adequate opportunity to show that they did not, summary judgment in the defendants' favor is appropriate. Dereas v. Eas, [2007] FMCSC 48; 15 FSM Intrm. 446, 450 (Chk. S. Ct. Tr. 2007).

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COURT'S OPINION

DENNIS K. YAMASE, Special Trial Division Justice:

On June 26, 2007, plaintiff Keichi Dereas filed his Motion for Summary Judgment. He asks the court to grant him summary judgment against Sewen Eas on the complaint's third cause of action. The second cause of action was earlier resolved in Dereas's favor. Dereas v. Eas, [2006] FMCSC 4; 14 FSM Intrm. 446 (Chk. S. Ct. Tr. 2006) (summary judgment against Eas and Selifis on second cause of action). (A different plaintiff, Isauo Kuena, obtained a final judgment against Eas on the complaint's first cause of action. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 633 (Chk. S. Ct. Tr. 2004)).

The summary judgment motion was based, in part, on the Eas's failure to respond the Dereas's interrogatories and his requests for admission. Eas filed his discovery responses on September 12, 2007. On October 23, 2007, Dereas filed a notice, stating that he had not received an opposition to his summary judgment motion and it was past due. On November 13, 2007, Eas filed his response to Dereas's summary judgment motion. On December 18, 2007, Dereas filed a supplemental response in support of summary judgment, with a supporting exhibit, and a motion to enlarge time to file that response because his counsel had never received Eas's response to the summary judgment motion and had only discovered it when his counsel reviewed the court file on December 11, 2007.

Excusable neglect having been shown, Dereas's motion to enlarge time to file a response is granted.

I. Survival of Action

The third cause of action is for the intentional interference, by Akuo Eas, defendant Sewen Eas's predecessor-in-interest, with Dereas's land rental contract with the State of Chuuk. Sewen Eas was previously substituted, at his request, for defendant Akuo Eas (also known as Akuo Mokok). Dereas, 14 FSM Intrm. at 451.

The court's October 17, 2006 order asked Dereas to brief whether his intentional interference with a contract cause of action had survived Akuo Eas's death and gave any other party an opportunity to respond to Dereas's brief. Dereas filed his brief on November 2, 2006. No other party filed a brief. Dereas contends that under the Trust Territory Code as carried over by the Chuuk Constitution, his claim of tortious intentional interference with a contract survives a party's death.

The relevant Trust Territory statute provided that:

(1) A cause of action based on tort shall not be lost or abated because of the death of the tort_feasor or other person liable. An action thereon may be brought or continued against the personal representative of the deceased person, but punitive or exemplary damages may not be awarded nor penalties adjudged in the action.

6 TTC 151(1). "A statute in force in the State of Chuuk on the effective date of this Constitution continues in effect to the extent it is consistent with this Constitution, or until it is amended or repealed." Chk. Const. art. XV, § 9. Nothing in rust Territorritory survival of actions statute is inconsistent with the Chuuk Constitution. Therefore, since the statute has not been amended or repealed, 6 TTC 151(1) remains the law in Chuu>

Accordingly, sinc since the third cause of action alleges a tort  interference with a contractual relationship  that cause of action survives the defendant Akuo Eas's death and continues against Sewen Eas, Akuo Eas's personal representative.

II. Tortious Interference with a Contractual Relationship

No previous case has decided whether the common law tort of interference with a contractual relationship is a cause of action available in Chuuk. In the past, Chuuk has adopted common law tort principles as the law of Chuuk when no specific constitutional or traditional impediment to their adoption existed. Epiti v. Chuuk, [1991] FMCSC 3; 5 FSM Intrm. 162, 165 (Chk. S. Ct. Tr. 1991). No constitutional or traditional impediment is apparent. The court will presume, for the purposes of this motion, that none exist.

Relief may be granted for a claim of tortious interference with a contractual relationship when an individual's economic advantages obtained through dealings with others are knowingly jeopardized out of petty or malicious motives, or by a third party's improper or unjustified conduct, Yang v. Western Sales Trading Co., [2003] FMSC 83; 11 FSM Intrm. 607, 617 (Pon. 2003), but when a defendant's allegedly offensive actions were taken in the course of a good faith effort to protect a legally cognizable interest, such actions do not constitute tortious interference with a contractual relationship. Federated Shipping Co. v. Ponape Transfer & Storage Co., 4 FSM Intrm. 3, 14-15 (Pon. 1989). The legally cognizable interest that the non-movant in Federated Shipping claimed was its claim that it, and not the movant, had the legal right to set tariffs for stevedoring at Taketik, Pohnpei.

In this case, the legally cognizable interest claimed by Akuo Eas was his claim that he still owned a portion of Lot No. 029-A-23, to which Dereas was issued a certificate of title in 1981 and for which Dereas is seeking to quiet title with this lawsuit. Dereas points out that Eas's discovery responses are inconsistent in that at one point Eas contends that he still owns ¾ of Lot No. 029-A-23 and at other places admits selling ¾ of that lot (thus retaining only ¼). Dereas contends that this inconsistency means that the court should doubt the efficacy of Eas's denial that the filings of Civil Actions No. 176-2000 and 43-96, without naming Dereas as a party, were done in bad faith.[1]

Dereas also casts doubt on reliability of Eas's discovery responses by attaching a copy of a February 26, 2007 judgment in a 1999 case that awarded Eas title to Lot No. 029-A-19 and pointing to Eas's denial that there are other lawsuits over land in Chuuk by either him or Akuo Eas. The court fails to see the relevance of this other lawsuit since it does not involve the land at issue in this case.

Dereas also asks the court to infer that Eas's requests for rental payments are continuing despite this litigation and the court's ruling against him, Dereas v. Eas, [2006] FMCSC 4; 14 FSM Intrm. 446 (Chk. S. Ct. Tr. 2006), because in response to Dereas's interrogatory about whether Eas had sought payment for Lot No. 029-A-23, the response was that on an unremembered date he had sought payment from Director of Finance Mr. Bisalen and the Governor. Dereas asks the court to note that Bisalen was appointed Director of Finance by the current governor, Wesley Simina, and remained Director until he was removed from that office within the last two months. The court so notes. However, the court also notes that Bisalen was Director of Finance under governors Gouland and Umwech for many years in the 1990's. It therefore cannot draw the inference Dereas seeks.

Whether Eas believed he still owned ¾ or ¼ of Lot No. 029-A-23, the fact remains that he believed that he had a legally cognizable interest in some portion of Lot No. 029-A-23. Eas's actions in asking the state not to pay the rent to Dereas and his actions in suing the state instead of Dereas, although wrong-headed or the result of poor legal advice or a misconception of the law, were taken in the good faith belief that he had a legally cognizable interest in the land.

Accordingly, regardless of whether tortious interference with a contractual relationship is actionable under Chuuk state law, Dereas's motion for summary judgment on the third cause of action is denied as a matter of law.

III. Summary Judgment for Defendant

When a party's motion for summary judgment has been denied as a matter of law and it appears that the nonmoving party is entitled to judgment as a matter of law, the court may grant summary judgment to the nonmoving party in the absence of a cross motion for summary judgment if the original movant has had an adequate opportunity to show that there is a genuine issue and that his nonmoving opponent is not entitled to judgment as a matter of law. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 313 (Chk. 2005); FSM v. National Offshore Tuna Fisheries Ass'n, [2001] FMSC 2; 10 FSM Intrm. 169, 174-75 (Chk. 2001); Truk Continental Hotel, Inc. v. Chuuk, [1994] FMSC 35; 6 FSM Intrm. 310, 311 (Chk. 1994); see also Phillip v. Marianas Ins. Co., [2004] FMSC 21; 12 FSM Intrm. 464, 470 (Pon. 2004); Klavasru v. Kosrae, [1995] FMSC 14; 7 FSM Intrm. 86, 89 (Kos. 1995). Since the non-moving defendants have a valid defense to the tortious interference with a contractual relationship claim and since Dereas had an adequate opportunity to show that they did not, summary judgment in the defendants' favor is appropriate.

IV. Conclusion

Accordingly, Dereas's summary judgment motion is denied and summary judgment is granted in the defendants' favor on Dereas's third cause of action  tortious interference with a contractual relationship. Let final judgment in this matter be issued in the Keichi Dereas's favor on his second cause of action and in the defendants' favor on the third cause of action.

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^[1]Dereas originally relied upon Eas’s failure to respond to his requests for admission, in particular, Eas’s failure to respond to a request that asked Eas to admit that his actions were taken in bad faith, to establish that Eas’s actions were not taken in good faith and that Eas did not believe that he owned the land. After the court granted further time to respond, Eas responded to discovery and denied those requests for admission.