Phillip v Moses [2012] FMCSC 9; 18 FSM Intrm. 247 (Chk. S. Ct. App. 2012) (16 April 2012)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL NO. 08-2007

ROKE PHILLIP,
Appellant,

vs.

WISEMAN MOSES,
Appellee.
___________________________________

OPINION

Argued: March 15, 2012
Decided: April 16, 2012

BEFORE:

Hon. Repeat R. Samuel, Associate Justice, presiding
Hon. Dennis K. Yamase, Temporary Justice*
Hon. Aaron L. Warren, Temporary Justice**

*Associate Justice, FSM Supreme Court, Chuuk
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellant: Hans Wiliander (brief)

P.O. Box 389

Weno, Chuuk FM 96942

Johnny Meippen (argued)

P.O. Box 705

Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Service
A notice of trial is defective when it is not properly served. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 250 (Chk. S. Ct. App. 2012).

Civil Procedure - Service
Service of papers by leaving them in the counsel's box at the clerk's office is not good service and does not constitute proper notice and is tantamount to non-service. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 250 (Chk. S. Ct. App. 2012).

Civil Procedure - Service; Constitutional Law - Chuuk - Due Process; Constitutional Law - Due Process - Notice and Hearing
When a court's notice of trial on the merits is not served on a party, that party's rights to due process of law under the Chuuk and FSM Constitutions are violated, and the failure to serve notice of a trial date and time is plain error. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 250 (Chk. S. Ct. App. 2012).

Constitutional Law - Chuuk - Due Process; Constitutional Law - Due Process - Notice and Hearing
Notice and an opportunity to be heard is the essence of due process as guaranteed by both the Chuuk and FSM Constitutions. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 250 (Chk. S. Ct. App. 2012).

Civil Procedure - Summary Judgment
Any judgment rendered without an adversarial evidentiary hearing or trial is a summary judgment. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 250 (Chk. S. Ct. App. 2012).

Appellate Review - Standard - Civil Cases - Factual Findings; Civil Procedure - Summary Judgment - Grounds - Particular Cases
When it is apparent from the pleadings that genuine issues of material fact are present and when it is apparent that the trial court's judgment included rulings on disputed factual issues, the case was not one that was appropriate for resolution by summary judgment and thus the trial court judgment must be vacated and the matter remanded for trial. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 250 (Chk. S. Ct. App. 2012).

Civil Procedure - Res Judicata
It was error for the trial court to not consider or even mention an earlier trial court decision about title to the same land especially when the defendant clearly asserted the applicability of that decision in his answer. The trial court must address that decision in some fashion. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 251 (Chk. S. Ct. App. 2012).

Civil Procedure - Res Judicata; Property
When an earlier trial court decision and the appellate opinion affirming it clearly stated in no uncertain terms that that case only concerned a tideland and did not concern the adjacent filled land; when the appellate opinion court noted that the owner of dry land is not necessarily the owner of the adjacent tideland; and when that entire proceeding was premised on the supposition that certain persons owned the filled land that they were living on, no plausible reading of the earlier decision can support a claim that it ruled that another was the owner of the filled land because only the most twisted logic could pervert that decision, in which the filled land's ownership was presumed undisputed, into a decision that awarded title of that land to that other. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 251 (Chk. S. Ct. App. 2012).

Judgments; Torts - Damages
It is error for a trial court to award $25,000 in compensatory damages without making any findings about actual damage or providing any reasoning on how it reached that figure or what evidence it relied on. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 251 (Chk. S. Ct. App. 2012).

Property - Improvements
Individuals may have full title to the improvements (as distinguished from the soil) they make upon land not owned by them and thus may be entitled to compensation if it is determined that they do not own the land on which the improvements were made and cannot remove those improvements to another site. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 251 (Chk. S. Ct. App. 2012).

Attorney's Fees - Court-Awarded
It is error for a trial court to make a $5,000 award for attorney's fees without citing a contractual provision or a statute that would authorize such an award, especially when the FSM civil rights statute cited in the plaintiff's complaint would not apply to the case since the case is not a civil rights case but is a property dispute. Phillip v. Moses, [2012] FMCSC 9; 18 FSM Intrm. 247, 252 (Chk. S. Ct. App. 2012).

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COURT'S OPINION

REPEAT R. SAMUEL, Associate Justice, Presiding:

This is an appeal from an August 9, 2007 trial court Pungun Kapong (Court Judgment) that was issued without the benefit of a trial or other proceeding. That judgment awarded Wiseman Moses title to land on Tonoas that the Japanese had filled in long ago. We vacate that judgment and remand the matter to the trial court where the case should proceed to trial.

I. Background

On May 18, 2005, Wiseman Moses filed his complaint alleging that Roke Phillip was trespassing on land Moses owned; that Phillip's aunt and uncle had been given temporary permission to stay there but Phillip's father had not; that the Phillips had erected dwellings on the land and cut down fruit trees. Moses sought to have Phillip and all his relatives also living there enjoined from occupying the land; $20,000 damages for each house the Phillips had built on the land; $200,000 for humiliation and emotional distress; and attorney's fees.

Roke Phillip answered that, at the end of World War II, his father, Yerifo Phillip, had moved onto the land that the Japanese had filled in and that Moses now claimed; that his family had resided there ever since; that in 1991, Onsin Sellem had, in Civil Action No. 104-91, sued Yerifo Phillip over ownership of the filled land; that, on October 21, 1991, the Chuuk State Supreme Court had ruled that Yerifo Phillip owned the filled land; and contended that that judgment made the ownership of the filled land res judicata. Phillip also questioned Moses's standing to sue since Moses did not plead the basis of his claim to the filled land.

Moses responded to Phillip's answer and asserted that our opinion in Appeal No. 22-1998 [Phillip v. Moses, [2002] FMCSC 3; 10 FSM Intrm. 540 (Chk. S. Ct. App. 2002)] affirming the judgment in Moses v. Phillip, Civil Action No. 103-93 (Nov. 18, 1998), confirmed his ownership of the filled land.

On August 15, 2005, the case was noticed for trial on August 26, 2005, and on September 18, 2005, it was noticed for trial on October 14, 2005. Trial was not held at either time. Phillip moved for a continuance because he was in Honolulu for medical treatment. On March 21, 2007, the case was noticed for trial on April 18, 2007, and the trial notice was served by putting copies of the notice in the boxes of the partes' counsel in the clerk's office. No trial was held.

On August 9, 2007, the trial court entered a Pungun Kapong (court judgment). That judgment, stating that it was relying, at least in part, on our judgment in Appeal No. 22-1998, decreed that Wiseman Moses owned the filled land and ordered that Phillip and all his people had 30 days to vacate all the (reportedly four) houses they had built on the land, that Phillip pay Moses $25,000 compensation, that Phillip pay $5,000 for Moses's attorney's fees and expenses, and that, if the order was not obeyed, Phillip would be arrested.

Phillip timely appealed.

II. Phillip's Issues on Appeal

Phillip contends that the trial court erred by 1) not considering the trial court judgment in Civil Action No. 104-91; 2) in rendering the final judgment without a trial or allowing him to cross-examine witnesses or rebut Moses's exhibits; 3) by ordering him to pay $25,000 compensation; 4) by ordering him to pay $5,000 for Moses's attorney's fees and expenses; and 5) by threatening him with arrest.

III. Discussion

A. Lack of Due Process

No trial appears in the record. Even if there had been a trial on April 18, 2007, of which there is no record, the notice of trial was defective since it was not properly served. Service of papers by leaving them in the counsel's box at the clerk's office is not good service and does not constitute proper notice and is tantamount to non-service. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 157 (Chk. S. Ct. App. 2008) (service of a trial notice by placing the notice in a counsel's box in the clerk's office is deficient service and tantamount to non-service when it results in a party's failure to be informed of the noticed trial date). When a court's notice of trial on the merits is not served on a party, that party's rights to due process of law under the Chuuk and FSM Constitutions are violated, and the failure to serve notice of a trial date and time is plain error. Id.

The trial court judgment was therefore reached in violation of Phillip's due process rights - the right to notice and an opportunity to be heard because there was either no trial or the notice of trial was defective. Notice and an opportunity to be heard is the essence of due process as guaranteed by both the Chuuk and FSM Constitutions. Albert v. O'Sonis, [2007] FMCSC 18; 15 FSM Intrm. 226, 234 (Chk. S. Ct. App. 2007).

Any judgment rendered without an adversarial evidentiary hearing or trial is a summary judgment. Albert v. George, [2008] FMSC 31; 15 FSM Intrm. 574, 579 (App. 2008) (trial court judgments issued without a trial are summary judgments to which the trial court must apply the summary judgment standard); Carlos Etscheit Soap Co. v. McVey, [2010] FMSC 16; 17 FSM Intrm. 102, 108 (Pon. 2010) (same), aff'd[2011] FMSC 12; , 17 FSM Intrm. 427, 435-36 (App. 2011). Since it is apparent from the pleadings that genuine issues of material fact are present, and since it is apparent that the trial court's August 9, 2007 judgment included rulings on disputed factual issues, this case is not one that is appropriate for resolution by summary judgment. Doone v. Simina, [2009] FMCSC 12; 16 FSM Intrm. 487, 490 (Chk. S. Ct. Tr. 2009) (summary judgment is appropriate only if there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law); K&I Enterprises v. Francis, [2007] FMCSC 45; 15 FSM Intrm. 414, 417-18 (Chk. S. Ct. Tr. 2007) (same); Dereas v. Eas, [2006] FMCSC 4; 14 FSM Intrm. 446, 453 (Chk. S. Ct. Tr. 2006) (same); Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 632 (Chk. S. Ct. Tr. 2004) (same); Sauder v. Chuuk State Legislature, [1995] FMCSC 20; 7 FSM Intrm. 358, 360, 363 (Chk. S. Ct. Tr. 1995) (same).

Accordingly, the August 9, 2007 trial court judgment must be vacated and the matter remanded to the trial court for trial.

B. Appellants' Other Issues

In order to provide some guidance to the trial court on remand, we will briefly comment on the other issues that Phillip raised and on other aspects of the trial court decision.

1. Decision in Sellem v. Phillip, Civil Action No. 104-91

The trial court erred in failing to consider or even mention the trial court decision in Civil Action No. 104-91. We find this omission most puzzling because the trial judge who rendered the Civil Action No. 104-91 decision was the exact same trial judge who rendered the Civil Action No. 91-2005 decision now on appeal before us. Phillip clearly asserted the applicability of that decision in his answer. The trial court must address it in some fashion. We take no position on how it might affect a final decision in this case, but conclude that it must be considered and addressed.

2. Appeal No. 22-1998 Decision

The trial court also misconstrued our holding in Appeal No. 22-1998, Phillip v. Moses, [2002] FMCSC 3; 10 FSM Intrm. 540 (Chk. S. Ct. App. 2002). In Phillip, we affirmed the trial court decision that, as between the parties, Roke Phillip and Rockson Phillip on one side and Seni Moses, Kiromy Sounik, and Kirosy Maneiran on the other, Moses, Sounik, and Maneiran owned the tideland Nenus. (The Immo Clan may also have had a claim to the tideland Nenus but were not parties to the action, seePhillip, 10 FSM Intrm. at 545-46, and so their potential claim was not adjudicated, and we modified the trial court judgment so that it was clear that the judgment was only "final between the parties to the case and all those in privity with them," id. at 546.) Moses and the trial court both asserted that our decision held that Seni Moses owned the dry land occupied by the Phillips. That is not so. That decision only affirmed a trial court ruling that, between the parties, the claim of Moses, Sounik, and Maneiran to own the tideland Nenus was superior to the Phillips' and did not concern title to any dry or filled land. Phillip, 10 FSM Intrm. at 544-46.

The issue of title to the dry (filled) land occupied by the Phillips, or to any other dry land, was never before us or before the trial court. In fact, that entire proceeding was premised on the supposition that Roke Phillip and the others owned the filled land that they were living on. In response to the Phillips' assertion that they must have rights to the tideland Nenus because it was adjacent to the filled land they owned, the Phillip court noted that "[t]he owner of dry land . . not narily the the owner oner of the adjacent tideland." Phillip, 10 FSM Intrm. at 545 (citing Nena v. Walter, [1993] FMCSC 5; 6 FSM Intrm. 233, 236 (Chk. S. Ct. Tr. 1993)). No plausible reading of our Phillip decision can support a claim that it ruled that Moses was the owner of the filled land. Only the most twisted logic could pervert a decision in which the Phillips' ownership of the filled land was presumed undisputed into a decision that awarded title of that land to Moses.

Both the trial court decision in Moses v. Phillip, Civ. No. 103-93, Findings of Fact, Opinion and Judgment at 8 (Nov. 18, 1998), and our opinion affirming it, Phillip, 10 FSM Intrm. at 544, clearly stated in no uncertain terms that that case only concerned the tideland and did not concern the filled land where the Phillips resided or any other dry land.

3. Monetary Awards

The trial court also erred in awarding $25,000 in compensatory damages without making any findings about actual damage or providing any reasoning on how it reached that figure or what evidence it relied on. The trial court did not provide any reasoning on how it accounted for the houses that the Phillip family built on the filled land. The court notes that individuals may have full title to the improvements (as distinguished from the soil) they make upon land not owned by them, Bank of the FSM v. Aisek, [2005] FMSC 20; 13 FSM Intrm. 162, 166 (Chk. 2005), and thus may be entitled to compensation if it is determined that they do not own the land on which the improvements were made and cannot remove those improvements to another site.

Lastly, the trial court erred by making $5,000 award for Moses's attorney's fees without citing a contractual provision or a statute that would authorize such an award. We note that the FSM civil rights statute, 11 F.S.M.C. 701, cited in Moses's complaint would not apply to this case since this is not a civil rights case. This is a property dispute.

IV. Conclusion

Accordingly, the trial court's August 9, 2007 judgment in Civil Action No. 91-2005 is vacated and this matter is remanded to the trial court for further proceedings consistent with this opinion. The trial court may set whatever pretrial proceedings that may be needed and shall set the matter for trial. The appellant, Roke Phillip, is entitled to his costs on appeal, which may be taxed against Wiseman Moses. Chk. App. R. 39(a).

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