In re Federated States of Micronesia Telecommunications Corporation Cellular Tower [2003] FMSC 58; 12 FSM Intrm. 243 (Chk. 2003) (11 December 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243 (Chk. 2003)

[2003] FMSC 58; [12 FSM Intrm. 243]

IN THE MATTER OF THE FSM
TELECOMMUNICATIONS CORPORATION CELLULAR
TELECOMMUNICATIONS TOWER IN SAPUK

CHONSY T. KINIOL and TIONIS KINIOL,
Plaintiffs,

vs.

NOAH KANSOU,
Defendant.

CIVIL ACTION NO. 2003-1006

ORDER GRANTING PRELIMINARY INJUNCTION

Dennis K. Yamase
Associate Justice

Hearing: December 9, 2003
Decided: December 11, 2003

APPEARANCES:

For the Plaintiff:
Chonsy Kiniol, pro se
P.O. Box 222
Weno, Chuuk FM 96942

For the Defendant:
Ben Enlet, trial counselor
P.O. Box 1650
Weno, Chuuk FM 96942

Wesley Simina, Esq. (supervising attorney)
P.O. Box 94
Weno, Chuuk FM 96942

[12 FSM Intrm. 244]

For the Movant (FSM Telecom. Corp.):
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Injunctions
In exercising its broad discretion in considering a motion for a preliminary injunction, the court looks to four factors: 1) the possibility of the irreparable injury to the movant; 2) the balance of the possible injury as between the parties; 3) the movant’s possibility of ultimate success on the merits; and 4) the impact upon the public interest. In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243, 246 (Chk. 2003).

Civil Procedure - Injunctions
Significant irreparable injury and loss to the movant may be found when its tower would be tampered with or removed and the cellular telephone system shut down and when the plaintiffs do not appear to have the financial resources to adequately compensate it if the tower were removed and if such removal were later determined to be improper or unlawful. In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243, 247 (Chk. 2003).

Civil Procedure - Injunctions
The balance of injuries weigh in the movant’s favor when it stands to lose its significant investments in the cellular telecommunications tower’s construction and the start-up of its cellular telephone system in Chuuk should the tower be tampered with or removed, and when the plaintiffs, should they prevail on the merits, are in a position to recover the land and have it restored to the condition it was in before the tower was built there and they were not making any particular use of the land before the tower was put there. In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243, 247 (Chk. 2003).

Civil Procedure - Injunctions
With regard to the movant’s possibility of success on the merits, its actions to construct a cellular telecommunications tower only after undertaking a survey and a search of land commission records on the property where the tower is now located, and after obtaining an easement, demonstrates that it acted prudently before proceeding with the tower’s construction. In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243, 247 (Chk. 2003).

Civil Procedure - Injunctions
The potential for significant impact on the public interest exists when the cellular telephone system is already in use in Chuuk and is providing service to persons who previously had none and in places where telephone service was previously not possible and when the telephone services’ expansion through the cellular system affects the Chuuk public’s health, safety and welfare and economy in a positive manner. Having the system discontinued or severely restricted is not in the public interest. In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243, 247 (Chk. 2003).

Civil Procedure - Injunctions
A preliminary injunction will issue when all of the four factors to be considered in a motion for a preliminary injunction favor its issuance, and the plaintiffs and any other person or entity acting on their behalf, will be prohibited from interfering in or attempting to interfere with the operation of the

[12 FSM Intrm. 245]

Sapuk cellular telecommunications tower constructed on a disputed lot. In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243, 247 (Chk. 2003).

Civil Procedure - Parties; Property
When determinations of ownership for adjoining land show that title to those lands is held not only by the named parties but by their brothers and sisters as well, these persons should be named in a boundary dispute and trespass case’s pleadings and at least once in the caption, because as co-owners, they may be indispensable parties. In re FSM Telcomm. Corp. Cellular Tower[2003] FMSC 58; , 12 FSM Intrm. 243, 248 (Chk. 2003).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

On November 4, 2003, the court having found special cause due to the urgency of this matter issued a temporary restraining order through November 17, 2003 ordering the plaintiffs, and any other person or entity acting on their behalf, from interfering or attempting to interfere with the operation of the cellular telecommunications tower in Sapuk constructed on Lot No. 63315.

On November 13, 2003, in order to allow plaintiffs more time to secure legal counsel, to afford more time for briefs to be filed, and with the specific consent of the plaintiff, the court extended the temporary restraining order issued on November 4, 2003 for twenty-five days through December 12, 2003. FSM Civ. R. 65(b).

On December 9, 2003, a hearing was held on the FSM Telecommunications Corporation’s (Telecom) motion for preliminary injunction. Telecom was represented by Craig D. Reffner, Esq. Defendant Noah Kansou was represented by Ben Enlet under the supervision of Wesley Simina, Esq. Plaintiffs Chonsy T. Kiniol and Tionis Kiniol appeared personally pro se. Plaintiff Kiniol informed the court that Frederick A. Hartman was off-island in Guam and still intended to act as her legal counsel. Mr. Hartman, however, has not yet filed an application to appear before the court.

II. Findings of Fact

After hearing the testimony of five witnesses for Telecom and one witness for the plaintiffs, the court makes the following findings of fact:

(1) Telecom is currently offering cellular telecommunications services in the State of Chuuk.

(2) Telecom has made an overall investment of $1.5 million to set up the cellular telecommunications system in the State of Chuuk, with installation costs for the construction of two cellular telecommunications towers at approximately $250,000.

(3) Telecom constructed the cellular telecommunications tower in Sapuk after conducting research on the ownership of the land that the tower now sits on, such research indicating that the land was known as Nichong and was owned by Noah Kansou and his brothers and sisters.

(4) Telecom then obtained an easement on the land needed for the cellular telecommunications

[12 FSM Intrm. 246]

tower from the defendant Noah Kansou.

(5) The plaintiffs claim to own the part of Nichong the tower is located on, as well as the adjoining parcel of Winikinerong.

(6) On October 29, 2003, Telecom received a memorandum from Fredrick A. Hartman informing Telecom that "my client has decided to take action against the FSM Telecommunications Office by having the Tower removed by the proper authorities." The memorandum further stated that "You have until the end of this working day to make a response or legal action shall be taken along with the immediate removal of your Tower by the authorities." Exhibit No. 1 introduced at the hearing on December 9, 2003.

(7) Both cellular telecommunications towers are necessary for the cell phone system in the State of Chuuk to work optimally and if one tower is incapacitated then the telecommunications coverage for cell phone users in the State of Chuuk will be greatly reduced.

(8) The Truk District Land Commission issued a determination of ownership for the land known as Nichong to Noha [sic] Kansou and his brothers and sisters determined on December 3, 1986. Exhibit No. 2 introduced at the hearing on December 9, 2003.

(9) The Chuuk State Land Commission issued a determination of ownership for the land known as Unuku-Nerong (also known as Winikinerong) to Chonsy Hartman and her brothers and sisters determined on October 23, 2003. Exhibit No. 5 introduced at the hearing on December 9, 2003.

(10) The determinations of ownership for Nichong and Winikinerong do not recite their boundaries. The Chuuk State Land Commission has not issued certificates of title for Nichong or Winikinerong.

(11) The plaintiffs allege that the boundary between Winikinerong and Nichong changed in 1978 due to a transaction between the father of defendant Noah Kansou and the father of plaintiff Chonsy Kiniol-Hartman and that this change in the boundary resulted in the plaintiffs’ ownership of part of the land on which the Telecom cellular telecommunications tower in Sapuk now stands.

III. Preliminary Injunction

Telecom’s motion for a preliminary injunction asserts that a preliminary injunction is necessary to prevent irreparable injury to Telecom’s cellular telecommunications tower in Sapuk which could result in the disruption or loss of cellular telephone services within the State of Chuuk.

In exercising its broad discretion in considering a motion for a preliminary injunction, the court looks to four factors: (1) the possibility of the irreparable injury to the movant; (2) the balance of the possible injury as between the parties; (3) the movant’s possibility of ultimate success on the merits; and (4) the impact upon the public interest. Ponape Transfer & Storage v. Pohnpei State Public Lands Auth., [1986] FMSC 21; 2 FSM Intrm. 272, 276-77 (Pon. 1986).

A. Irreparable Injury

Telecom asserts that the possibility of irreparable injury and loss is significant, since it has already invested large amounts of time, funds, and manpower to have the cellular telecommunications tower in Sapuk constructed. Telecom asserts that construction of the tower requires special expertise and that engineers from outside the FSM were contracted to determine the ideal location of the tower

[12 FSM Intrm. 247]

and to help construct the tower at significant expense. Telecom has also made significant investments of its own manpower, supplies, and equipment to effectuate the cellular telephone system in Chuuk. The court finds that there is the possibility of significant irreparable injury and loss to Telecom should the tower be tampered with or removed and the cellular telephone system shut down. Additionally, the plaintiffs do not appear to have the financial resources to adequately compensate Telecom if the tower were removed and if such removal were later determined to be improper or unlawful.

B. Balance of Possible Injuries

The balance of the possible injuries between Telecom and the plaintiffs weigh heavily in Telecom’s favor, as it has clearly made significant investments in the cellular telecommunications tower’s construction at Sapuk and the start-up of its cellular telephone system in the State of Chuuk. Telecom stands to lose on that investment should the tower be tampered with or removed. On the other hand, the plaintiffs, should they prevail on the merits, are in a position to recover the land and have it restored to the condition it was in before the tower was constructed there. The plaintiffs do not claim they were making any particular use of the land before the tower was located there.

C. Possible Success on the Merits

With regard to Telecom’s possibility of success on the merits, Telecom’s actions to construct the cellular telecommunications tower in Sapuk only after undertaking a survey and a search of the land commission records on the property where the tower is now located, and after obtaining an easement, demonstrates that Telecom acted prudently before proceeding on the construction of the cellular telecommunications tower in Sapuk.

D. Public Interest

Lastly, this situation involves the potential for significant impact on the public interest. The cellular telephone system is already in use in the State of Chuuk. This system is providing telephone service to persons who previously had none and in places where telephone service was previously not possible. The expansion of telephone services through the cellular telephone system affects the public’s health, safety and welfare and economy in the State of Chuuk in a positive manner. Having the cellular telephone system discontinued or severely restricted is not in the public interest.

IV. Conclusion and Order

All of the four aforementioned factors in considering a motion for a preliminary injunction favor issuance of the preliminary injunction.

Accordingly, it is ordered that the plaintiffs, Chonsy T. Kiniol and Tionis Kiniol, and any other person or entity acting on their behalf, are prohibited from interfering in or attempting to interfere with the operation of the cellular telecommunications tower in Sapuk constructed on Lot No. 63315. This order shall commence immediately and remain in effect while this case remains pending.

Additionally during the preliminary injunction hearing, the court raised the issues of Telecom’s status as a defendant in this action and the possibility of remanding the boundary issues in this case to the Chuuk Land Commission. With regard to the latter issue, the court calls the parties’ attention to Small v. Roosevelt, Innocenti, Bruce & Crisostomo, [2001] FMSC 31; 10 FSM Intrm. 367 (Chk. 2001). All parties in this case shall file and serve their positions on these issues on or before January 9, 2004. Any party may respond to another’s position no later than January 19, 2004.

[2003] FMSC 75; [12 FSM Intrm. 248]

The court also notes that the determinations of ownership for both Nichong and Winikinerong show that title to those lands is held not only by the named parties but by their brothers and sisters as well. These persons should be named in the pleadings and at least once in the caption. FSM Civ. R. 10(a). As co-owners, they may be indispensable parties. See Ifenuk v. FSM Telecom. Corp., [2002] FMSC 36; 11 FSM Intrm. 201 (Chk. 2002). The plaintiffs and defendants shall file and serve, no later than January 9, 2004, their statements as to the identity of the co-owners.

* * * *