Nicky v Chuuk Public Utility Corp. [2019] FMSC 16; 22 FSM R. 239 (Chk. 2019) (27 May 2019)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2015-1030

KINTINO NICKY,
Plaintiff,

vs.

CHUUK PUBLIC UTILITIES CORPORATION
and CHUUK STATE,
Defendants.
__________________________________________

ORDER DISMISSING CASE WITHOUT PREJUDICE

Larry Wentworth
Associate Justice

Decided: May 27, 2019

APPEARANCES:

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

For the Defendant: Maximo Mida, Esq.
(CPUC) Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendant: Sabino S. Asor, Esq.
(Chuuk) Chuuk Attorney General
Office of the Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Domestic Relations - Probate; Property
A joint tenancy gives each joint tenant the right of survivorship - to automatically become sole owner of the property on the other joint tenant’s death. It differs from a tenancy in common because each joint tenant has a right of survivorship to the other’s share. Nicky v. Chuuk Public Utility Corp., 22 FSM R. 239, 242 n.1 (Chk. 2019).

Property
When a co-ownership is not a joint tenency (with right of survivorship), it is a tenancy in common. Nicky v. Chuuk Public Utility Corp., 22 FSM R. 239, 242 n.1 (Chk. 2019).

Property
A tenancy in common is a form of co-ownership where two or more persons have equal and undivided shares in the whole with each having an equal right to the whole, but no right of survivorship. Nicky v. Chuuk Public Utility Corp., 22 FSM R. 239, 242 n.2 (Chk. 2019).

Domestic Relations - Probate; Property - Registered Land - Transfer
When the owner of registered land passes away, the Land Commission has the statutory duty to determine the devisee or devisees or heir or heirs and their interests or respective interests to which each is entitled. Nicky v. Chuuk Public Utility Corp., 22 FSM R. 239, 242 n.3 (Chk. 2019).

Civil Procedure - Joinder and Severance; Property; Torts - Trespass
A co-owner’s trespass case will be dismissed for failure to join the land’s other co-owner as an indispensable party plaintiff because any judgment rendered in the other co-owner’s absence would prejudice the defendant(s). This is because the other co-owner could later sue for the same trespass, thus subjecting the defendant(s) to multiple judgments for the same acts; because even a judgment in the defendant’s favor would not prevent another co-owner from suing for the same acts; because no protective provisions could be included in a judgment that would lessen the defendant’s prejudice; and because the plaintiff has an adequate remedy since the dismissal is without prejudice, and he may then refile the case with all the other co-owners included as plaintiffs. Nicky v. Chuuk Public Utility Corp., 22 FSM R. 239, 242 (Chk. 2019).

Civil Procedure - Joinder and Severance; Property; Torts - Trespass
In a claim for damages to land, such as trespass, all the affected land’s co-owners are indispensable parties to the action and must be joined if they are not already parties; otherwise the defendant faces the substantial risk that it may be subject to multiple or inconsistent judgments if any of the other co-owners later sue. Nicky v. Chuuk Public Utility Corp., 22 FSM R. 239, 242 n.4 (Chk. 2019).

Civil Procedure - Dismissal; Civil Procedure - Pleadings - Amendment; Property; Torts - Trespass
When the plaintiff’s averments in his proposed first amended complaint do not cure the complaint’s indispensable party problem, the best course is to dismiss this case without prejudice to any future litigation by all of the land’s co-owners (whoever they then are), claiming that the defendants are trespassing on the land. Nicky v. Chuuk Public Utility Corp., 22 FSM R. 239, 243 (Chk. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

Three motions are now before the court:

(1) CPUC’s Motion for Summary Judgment, filed on November 26, 2018 by defendant Chuuk Public Utilities Corporation ("CPUC"); Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, filed February 28, 2019; Defendant CPUC’s Reply to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment . . . filed April 2, 2019; Plafntiff’s Response to Defendant’s Reply, filed April 17, 2019; and CPUC’s Rejoinder to Plaintiff’s Surreply, filed May 1, 2019;

(2) plaintiff Kintino Ni8217;ion for Leave to e to AmendAmend Complaint, filed February 28, 2019; and Defendant CPUC’s . . . Opposition to Plaintiff’s Motion to Amend Complaint, filed April 2, 2019; Plaintiff’s Response to Defendant’s Reply [and Reply to C8217;osition to Plaintiff’s Motion to Amend Complaint], filed April 17, 2019; an9; and

d

(3) Chuuk State’s Motion to Dismiss, filed May 1, 2019; and Plaintiff’s Response to Defendant Chuuk State’s Motion to Dismiss, filed May 17, 2019.

As explained below, CPUC’s summary judgment motion is granted on the standing grounds, and this matter is dismissed without prejudice.

I.

This case involves land in Nepukos, Weno, designated as Parcel No. 62009. In his complaint, Nicky claims that he and his siblings own that parcel. He alleges that both defendants occupy it in violation of his due process rights and that they committed willful trespass and breach of contract by locating a deep well on his property. And Nicky’s proposed first amended complaint alleges that the defendants trespassed on Parcel No. 62009 and violated his civil and due process rights by building and maintaining a water catchment system on it.

CPUC moves for summary judgment contending that Nicky lacks standing to sue; that his complaint should be dismissed because the claim is not yet ripe; and that, even if the facts are viewed in Nicky’s favor, CPUC is entitled to summary judgment on his due process claim because it was not involved with his lease negotiations with the state, on his trespass claim because Nicky lacks a possessory interest in the land, and on his breach of contract claim because there never was a contract. CPUC asserts that Chuuk Land Commission records show that the deep well is on Parcel No. 60151, which is owned by Kintino Nicky’s uncle with whom the state executed a lease. CPUC contends that certified Chuuk Land Commission records prove that the water catchment system is not located on Parcel No. 62009, but is located on an adjacent property, Parcel No. 61318, in which Kintino Nicky does not have, and does not claim to have, an interest.

II.

The following seems undisputed. The Truk Land Commission, on June 15, 1977, issued a determination of ownership for Lot 1096 [now designated as Parcel No. 62009] known as Soumot, in which it stated that it was private land owned by "Arie Niki and her daughter Achime" in fee simple. On May 28, 2003, the Chuuk Land Commission issued a certificate of title, certifying "that Arie Niki and her daughter Achime, now residing in Weno Municipality" were "the owner(s) of an estate in fee simple" of Parcel No. 62009. Both Arie Niki and Achime Niki are now deceased.

Achime Niki is Kintino Nicky’s mother and Arie Niki is his grandmother. Plaintiff Kintino Nicky has siblings. Recently, the Chuuk State Supreme Court appointed Kintino Nicky as the administrator of Achime Nicky’s estate in a probate action there (CSSC Pro. No. 007-2019). In the probate case petition, Kintino Nicky avers that he "has two surviving siblings . .&#16amed Marsenino Nicky acky and Petrus Nicky."

In his complaint, Kintino Nicky avers that he is, along with his unnamed siblings, the owner of Parcel No. 62009. Now, in his proposed first amended complaint, he avers that his "deceased grandmother, Arie Nicky, and [his] deceased mother, Achime Nicky, are the rightful owners of . . . Soumot,wn as Parcel No.l No. 62009.^[1]

Kintino Nicky, sues and pleads in his own as the sole plaintiff in both his original complaint and his proposed first amended complaimplaint. But he now admits that he does not own Soumot. One undivided half interest in Soumot is owned by the Estate of Achime Niki, and the other undivided half interest in Soumot is owned by the Estate of Arie Niki. It seems that Arie Niki’s undivided common half interest^[2] never went through an heirship proceeding^[3] in the Chuuk Land Commission or through (or is currently in) a probate case at the Chuuk State Supreme Court. Arie Niki may have had heirs (or devisees) other than her daughter, Achime. And, since he used the phrase "surviving siblings" Kintino Nicky seems to imply that he had other, non-surviving siblings who may have left heirs or other persons who would inherit their interests.

The court could conceivably permit Kintino Nicky to submit a proposed second amended complaint, not naming himself personally as the plaintiff, but naming the Estate of Achime Nicky as the plaintiff with him as the estate’s administrator or naming him as the plaintiff solely in his capacity as the administrator of the Estate of Achime Nicky). But that would only account for an undivided half of the Soumot ownership - that is, only one of the two (Arie Nicky and Achime Nicky) co-owners. And that presents a problem for this trespass case.

A co-owner’s trespass case will be dismissed for failure to join the land’s other co-owner as an indispensable party plaintiff. Ifenuk v. FSM Telecomm. Corp., 11 FSM R. 403, 405 (Chk. 2003). Any judgment rendered in the other co-owner’s absence would prejudice the defendant(s). This is because the other co-owner could later sue for the same trespass, thus subjecting the defendant(s) to multiple judgments for the same acts; because even a judgment in the defendant’s favor would not prevent another co-owner from suing for the same acts; because no protective provisions could be included in a judgment that would lessen the defendant’s prejudice; and because the plaintiff has an adequate remedy since the dismissal is without prejudice. Id.^[4] He may then refile the case with the co-owners included as plaintiffs. Id.
Based on Kintino Nicky’s averments in his proposed first amended complaint, Kintino Nicky does not presently own any interest in Soumot. And, even if that proposed amended complaint was amended so that Kintino Nicky was the named plaintiff only in his capacity as the administrator of Achime Nicky’s estate, he would still represent only half of Soumot’s co-owners. That would not cure the indispensable party problem. Thus, the best course is to dismiss this case without prejudice to any future litigation by all of Soumot’s co-owners (whoever they then are), claiming that the defendants are trespassing on Soumot.^[5]

Since all of Kintino Nicky’s other causes of action stem from his allegation that the defendants are trespassing on Soumot, CPUC’s summary judgment motion is granted to the extent that Kintino Nicky does not presently have standing because he does not (yet) have a possessory interest in Soumot to maintain a trespass action. Without standing, the plaintiff’s action must be dismissed. The court thus does not reach the merits of CPUC’s other grounds for summary judgment.

III.

Accordingly, the defendant(s) are granted summary judgment on the issue of the plaintiff’s lack of standing. This case is therefore dismissed without prejudice to any future litigation over Parcel No. 62009 brought jointly by the Estate of Arie Nicky and the Estate of Achime Nicky or by all of Soumot’s co-owners when the suit is filed. The plaintiff’s motion to amend his complaint is denied because the amendment sought does not cure the lack of standing defect. The State of Chuuk’s motion to dismiss is thereby moot.

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^[1] Neither the Determination of Ownership nor the Certificate of Title indicates that this fee simple estate is a joint tenancy. A joint tenancy would have given each joint tenant the right of survivorship Ä to automatically become sole owner of the property on the other joint tenant’s death. "A joint tenancy differs from a tenancy in common because each joint tenant has a right of survivorship to the other’s share." BLACK’S LAW DICTIONARY 1603 (9th ed. 2009). Since Soumot’s ownership is not a joint tenency (with right of survivorship), it is a tenancy in common.

^[2] A tenancy in common is a form of co-ownership where two or more persons have equal and undivided shares in the whole with each having an equal right to the whole, but no right of survivorship. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM R. 368, 372 n.1 (Kos. S. Ct. Tr. 2009). Arie Niki’s and Achime Niki’s co-ownership appears to be a tenancy in common.

^[3] When the owner of registered land passes away, the Land Commission has the statutory duty to determine the devisee or devisees or heir or heirs and their interests or respective interests to which each is entitled. Enengeitaw Clan v. Heirs of Shirai, 16 FSM R. 547, 555 (Chk. S. Ct. App. 2009); see also Church of the Latter Day Saints v. Esiron, 17 FSM R. 229, 235 (Chk. 2010) (Land Commission heirship proceeding is needed to determine current owners before an certificate of title can issue).

^[4] In a claim for damages to land, such as trespass, all the affected land’s co-owners are indispensable parties to the action and must be joined if they are not already parties; otherwise the defendant faces the substantial risk that it may be subject to multiple or inconsistent judgments if any of the other co-owners later sue. Ifenuk v. FSM Telecomm. Corp., 11 FSM R. 201, 203-04 (Chk. 2002).

^[5] The future plaintiffs might also make productive use of the time to ascertain whether the Land Commission records are accurate in plotting the location of the state’s water catchment system on parcels other than Parcel No. 62009.