Robert v Chuuk Public Utility Corp. [2019] FMSC 4; 22 FSM R. 150 (Chk. 2019) (14 January 2019)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2015-1001

BIARITA ROBERT,
Plaintiff,

vs.

CHUUK PUBLIC UTILITY CORPORATION
and CHUUK STATE GOVERNMENT,
Defendants.
__________________________________________

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Larry Wentworth
Associate Justice

Decided: January 14, 2019

APPEARANCES:

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

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

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HEADNOTES

Civil Procedure - Motions - Unopposed; Civil Procedure - Summary Judgment - Grounds
When an opposing party has not filed a response to a summary judgment motion, that party is, by rule, deemed to have consented to the motion’s grant, but the court cannot automatically grant an unopposed summary judgment motion since there must still be a sound basis in law and in fact upon which to grant the motion. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 153 (Chk. 2019).

Civil Procedure - Pleading; Constitutional Law - Case or Dispute - Standing
A plaintiff generally cannot assert the rights of a third party as her own. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 154 (Chk. 2019).

Torts - Duty of Care; Torts - Negligence
A public utility’s duty of care extends beyond just a duty to landowners. It also has a duty to those persons who reside on, or who work on, or who otherwise occupy land. Thus, a plaintiff may seek relief under a negligence cause of action as a resident or an occupant of the affected land. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 154 (Chk. 2019).

Civil Procedure - Pleading; Torts - Trespass
No defendant in a trespass action can plead the jus tertii - the right of possession outstanding in some third person - as against the fact of possession in the plaintiff. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 154 (Chk. 2019).

Torts - Trespass to Chattels
The tort of trespass to chattels (personal property) is the intentional use of or interference with a chattel which is in the possession of another without justification. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 154 (Chk. 2019).

Torts - Damages; Torts - Trespass to Chattels
Unlike other forms of trespass, trespass to chattels requires some actual damage to the chattel before the action can be maintained, and nominal damages will not be awarded, so that in the absence of any actual damage the action will not lie. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 154 (Chk. 2019).

Civil Procedure - Summary Judgment - Grounds - Particular Cases; Torts - Trespass to Chattels
When the plaintiff has not put forth any admissible evidence that any of her chattels were damaged so that she is entitled to compensation for them; when she has not alleged that any specific chattel was damaged, or its value; and when she has not put forward any evidence that the defendant’s interference with her chattels was intentional, the defendant is entitled to summary judgment on the plaintiff’s trespass to chattels claim. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 155 (Chk. 2019).

Civil Procedure - Summary Judgment - Grounds
When factual support for an essential element of the claim being asserted against the movant is absent from the case record, a party moving for summary judgment is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. A complete failure of proof concerning one essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 155 (Chk. 2019).

Property
A home may be owned by someone other than the owner of the land on which it sits. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 155 n.1 (Chk. 2019).

Torts - Trespass
An action for trespass has been broadly defined in the FSM as a wrongful interference with another’s possessory interest in property, and a trespass cause of action accrues when there is an intrusion upon another’s land which invades the possessor’s interest in the exclusive possession of her land. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 155 (Chk. 2019).

Constitutional Law - Case or Dispute - Standing; Torts - Trespass
Any person in the actual and exclusive possession of the property may maintain the trespass action, although the person has no legal title, and is in wrongful occupation, as for example under a void lease, or in mere adverse possession. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 155 (Chk. 2019).

Torts - Damages - Nominal; Torts - Trespass
The lack of proof of actual damage amounts is not fatal to a trespass claim because, in a successful trespass claim when no evidence exists of actual damages, the trial court will award nominal ($1) damages. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 155 (Chk. 2019).

Torts - Trespass
In many jurisdictions, in order for a trespass action to be maintained, the act constituting the invasion of the plaintiff’s possessory interest or causing the invasion of the plaintiff’s possessory interest must be intentional, so that accidental entries are often actionable when produced negligently or as a consequence of abnormally dangerous activities but not as trespasses. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 156 (Chk. 2019).

Civil Procedure - Summary Judgment - Grounds - Particular Cases; Torts - Trespass
It is unclear whether, in Chuuk, there must be an intentional act by the defendant for a plaintiff to be able to maintain a trespass action. It appears that may be needed in Pohnpei, and maybe Kosrae, but where one reported case appears to permit a trespass action when the defendant’s act was reckless or negligent conduct, but even then trespass liability would attach only if harm was caused to the land. Thus, a defendant will be denied summary judgment when sewage was alleged to have been negligently deposited on the land. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 156 (Chk. 2019).

Torts - Nuisance
Private nuisance is a tort that protects the interest of those who own or occupy land from conduct committed with the intention of interfering with a particular interest-the interest in use and enjoyment. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 156 (Chk. 2019).

Torts - Nuisance; Torts - Trespass
The distinction between trespass and nuisance is that trespass is an invasion of the plaintiff’s interest in the exclusive possession of her land, while nuisance is an interference with her use and enjoyment of it. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 156 (Chk. 2019).

Torts - Nuisance
If harm is unintentionally caused, nuisance liability will attach if it is the result of negligent or reckless conduct, or if it is the result of an abnormally dangerous activity. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 156 (Chk. 2019).

Torts - Nuisance
Often the situation involving a private nuisance is one where the invasion is intentional merely in the sense that the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiff’s interest are occurring or are substantially certain to follow. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 157 (Chk. 2019).

Torts - Nuisance
A nuisance can be both a public and a private nuisance, but to maintain a damage action for public nuisance, a person must have suffered damage different in kind from that suffered by the general public. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 157 (Chk. 2019).

Torts - Nuisance
As a general rule, a public nuisance gives no right of action to an individual either for equitable relief, or for damages, and a private plaintiff may bring an action for public nuisance only if she can show that she has sustained significant damage or injury that is different in type from the harm suffered by the community at large. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 157 (Chk. 2019).

Torts; Torts - Damages
Generally, "business destruction" cannot be a separate cause of action, but if the plaintiff can claim lost personal income that she derived from the business, it may be a measure of damages. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 157 (Chk. 2019).

Civil Procedure - Summary Judgment - Grounds - Particular Cases; Civil Rights - Acts Violating; Constitutional Law - Equal Protection
When the plaintiff makes no allegations that would support an equal protection claim, the defendant may be granted summary judgment on that part of the plaintiff’s civil rights claim. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 158 (Chk. 2019).

Civil Procedure - Summary Judgment - Grounds - Particular Cases; Civil Rights - Acts Violating; Constitutional Law - Taking of Property
The court will deny summary judgment when it has previously held that if sewerage backflow rises above the level of mere negligence to the level of a public nuisance, it may constitute a taking of property without just compensation and the plaintiff claims that her possessory right to the land is a usufruct property right. Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 158 (Chk. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before the court on Defendant CPUC’s Motion for Summary Judgment, filed October 26, 2018. No opposition has been filed. When an opposing party has not filed a response to a summary judgment motion, that party is, by rule, deemed to have consented to the motion’s grant, FSM Civ. R. 6(d), but the court cannot automatically grant an unopposed summary judgment motion since there must still be a sound basis in law and in fact upon which to grant the motion. Aunu v. Chuuk, 18 FSM R. 467, 468 (Chk. 2012). The motion is, as explained below, granted in part and denied in part.

I. NATURE OF CASE

The plaintiff, Biarita Robert, alleges that she owns a house on her family land, Unufoumwo, in Nantaku, Weno, and that starting in November, 2007, there was a backflow of raw sewage onto the land from the defendants’ sewer line, which made her house untenable and which forced her to close the small store she ran on the property because the smell drove away any customers. She pleads causes of action for negligence, trespass to chattels, trespass to land, private nuisance, public nuisance, destruction of business, and civil rights violations.

II. SUMMARY JUDGMENT MOTION

The Chuuk Public Utility Corporation ("CPUC") asks the court to grant it summary judgment on each of Robert’s causes of action and then dismiss this case. CPUC contends that Robert has failed to allege facts sufficient for a prima facie case that would entitle her to relief and that she has failed to produce evidence which, viewed in the light most favorable to her, would allow the court to enter judgment in her favor.

A. Negligence

CPUC seeks summary judgment on Robert’s negligence claim because, according to Robert’s discovery responses, Robert’s brother owns Unufoumwo, and has a certificate of title for it, and because the business license for the store on Unufoumwo was in her cousin’s name. CPUC argues that, since Robert does not own Unufoumwo, she cannot show that CPUC owes her any legal duty (of care), and thus has not made out a prima facie case for negligence. CPUC contends that Robert is seeking to assert a third party’s rights instead of her own, and thus not only lacks standing but has also failed to make an adequate showing on an essential element of a negligence cause of action - the defendant’s duty of care.

CPUC is correct that a plaintiff generally cannot assert the rights of a third party as her own. FSM v. Kana Maru No. 1, 14 FSM R. 368, 373 (Chk. 2006); Sipos v. Crabtree, 13 FSM R. 355, 363 (Pon. 2005); Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM R. 111, 115 (Chk. 1997). Thus, only Robert’s brother, who is not a party to this action, could seek relief as Unufoumwo’s landowner. Robert cannot.

But the court does not view the scope of CPUC’s duty of care as narrowly as CPUC does. CPUC’s duty of care extends beyond just a duty to landowners. CPUC also has a duty to those persons who reside on, or who work on, or who otherwise occupy land. Thus, Robert may seek relief under a negligence cause of action as a resident or an occupant of Unufoumwo.

But, just as Robert cannot assert the rights of third parties, neither can CPUC plead, as a defense, the superior right of a third party (jus tertii) to Unufoumwo. "’[N]o defendant in an action of trespass can plead the jus tertii - the right of possession outstanding in some third person - as against the fact of possession in the plaintiff.’" BLACK’S LAW DICTIONARY 942 (9th ed. 2009) (quoting R.F.V. HEUSTON, SALMOND ON THE LAW OF TORTS 46 (17th ed. 1977)); cf. College of Micronesia-FSM v. Rosario, 10 FSM R. 175, 185 (Pon. 2001) (trespass defendant cannot use as a defense the rights of third parties not before the court), aff’d, 11 FSM R. 355, 360 (App. 2003).

Accordingly, the court denies CPUC summary judgment on Robert’s negligence cause of action.

B. Trespass to Chattels

CPUC seeks summary judgment on Robert’s trespass to chattels claim because Robert has not made out a prima facie case that any of her personal property was damaged since she does not plead damage to any particular personal property and in her discovery response, when asked to identify any personal property that were trespassed upon, she only claimed that "[a]ll non-real property on the land were affected by the very, very bad smell[, and s]tore on the land was closed."

The tort of trespass to chattels (personal property) is the intentional use of or interference with a chattel which is in the possession of another without justification. Nakamura v. FSM Telecomm. Corp., 17 FSM R. 119, 124 (Chk. 2010). Unlike other forms of trespass (see below), trespass to chattels requires "some actual damage to the chattel before the action can be maintained," and "nominal damages will not be awarded, [so] that in the absence of any actual damage the action will not lie." PROSSER AND KEETON ON THE LAW OF TORTS § 14, at 87 (5th ed. 1984).

Robert has not put forth any admissible evidence that any of her chattels were damaged so that she is entitled to compensation for them. This is a facessary to support an essential element of her trespass to s to chattels claim. She has not alleged that any specific chattel was damaged, or its value. Nor has she put forward any evidence that CPUC’s interference with her chattels was intentional. This is another essential element of a trespass to chattels claim.

When factual support for an essential element of the claim being asserted against the movant is absent from the case record, a party moving for summary judgment is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, since a complete failure of proof concerning one essential element of the nonmoving party’s case necessarily renders all other facts immaterial. George v. Palsis, 19 FSM R. 558, 567 (Kos. 2014); Ruben v. Chuuk, 18 FSM R. 425, 431 (Chk. 2012); Suldan v. Mobil Oil Micronesia, Inc., 10 FSM R. 574, 578 (Pon. 2002); Kosrae v. Worswick, 10 FSM R. 288, 292 (Kos. 2001). CPUC is thus entitled to summary judgment on Robert’s trespass to chattels claim.

C. Trespass to Land

CPUC seeks summary judgment on Robert’s trespass to land claim because Robert does not own Unufoumwo; because, although Robert asserts that she owns a house on Unufoumwo,^[1] there is no documentary evidence that her brother allowed her, as she states, to stay there - granted her a possessory interest in Unufoumwo; because Robert has not presented any proof of the monetary amount of damage she sustained; and because Robert has not alleged any facts that would prove CPUC’s intent to cause a trespass to land. CPUC contends that since there is no proof that Robert had a possessory interest (an essential element) in Unufoumwo, her claim must fail. Also, CPUC notes that, in Robert’s discovery responses, she states that some of the land has been sold.

An action for trespass has been broadly defined in the FSM as a wrongful interference with another’s possessory interest in property, and a trespass cause of action accrues when there is an intrusion upon another’s land which invades the possessor’s interest in the exclusive possession of her land. Nakamura v. FSM Telecomm. Corp., 17 FSM R. 119, 124 (Chk. 2010). "[A]ny person in the actual and exclusive possession of the property may maintain the [trespass] action, although the person has no legal title, and is in wrongful occupation, as for example under a void lease, or in mere adverse possession." PROSSER AND KEETON ON THE LAW OF TORTS § 1 77 (5th ed. 1984) (footnoootnotes omitted); see also In re Parcel No. 046-A-01, 6 FSM R. 149, 154 (Pon. 1993) (leasehold is a sufficient possessory interest to give a party stanto maintain a trespass acti action).

Robert alleges that she actually resided in a house, that she owned (although she does not own the land itself), on Unufoumwo until the continuing sewer backflow problems forced her to leave. Although CPUC may dispute Robert’s residence on Unufoumwo, Robert’s exclusive actual occupation there, regardless of whether it was with her brother’s consent, is enough for Robert to allow her to maintain a trespass action for Unufoumwo, or for whatever part of Unufoumwo that was then subject to her possession (that is, if some of Unufoumwo had been sold before the sewage backflow).

The lack of proof of actual damage amounts is not fatal to a trespass claim because, in a successful trespass claim when no evidence exists of actual damages, the trial court will award nominal ($1) damages. Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 102, 112 (Pon. 2010), aff’d, 17 FSM R. 427, 437 (App. 2011); Nakamura v. FSM Telecomm. Corp., 17 FSM R. 41, 50 (Chk. 2010).

CPUC maintains that to be actionable, the interference with another’s possessory interest must be intentional and further maintains that Robert neither alleged nor has provided evidence that CPUC’s actions were intentional in regard to the sewage backflow. In many jurisdictions, in order for a trespass action to be maintained, the act that constituted the invasion of the plaintiff’s possessory interest or causing the invasion of the plaintiff’s possessory interest must be intentional. PROSSER AND KEETON ON THE LAW OF TORTS § 13, at 73-75 (5th ed. 1984>; Phillips v. Sun Oil Co., 121 N.E.2d 249, 250-51 (N.Y. 1954) (accidental leakage of oil from neighbor’s tank ontoerty was not actionable as a trespass); Graham v. Town of Latta, 789 S.E.2d 71, 86 ( 86 (S.C. 2016) (continuing leakage from sewer line under plaintiffs’ property not actionable as trespass since no intent to release sewage; no trespass for failure to perform duty). "Accidental entries are often actionable when produced negligently or as a consequence of abnormally dangerous activities but not as trespasses." PROSSER AND KEETON ON THE LAW OF TORTS § 13, at5th ed. 1984).

It is unclear whether, in Chuuk, there must be an intentional act by the defendant for a plaintiff to be able to maintain a tresaction. It appears that may be needed in Pohnpei, PalasPalasko v. Pohnpei, 20 FSM R. 90, 97 (Pon. 2015); Damarlane v. Damarlane, 19 FSM R. 519, 528 (Pon. 2014); Carlos Etscheit Soap Co. v. Gilmete, 11 FSM R. 94, 99-100 (Pon. 2002); Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM R. 528, 533-34 (Pon. 1998), and maybe Kosrae, Siba v. Noah, 15 FSM R. 189, 196 (Kos. S. Ct. Tr. 2007); but see Jonah v. Kosrae, 9 FSM R. 335, 343 (Kos. S. Ct. Tr. 2000) (negligent or reckless conduct could cause trespass). But none of the reported Chuuk cases mention an intent element. See Truk Trading Co. v. John, 17 FSM R. 382, 384 (Chk. S. Ct. Tr. 2010); Mailo v. Chuuk, 13 FSM R. 462, 470 (Chk. 2005); David v. Bossy, 9 FSM R. 224, 226 (Chk. S. Ct. Tr. 1999); Ikanur v. Director of Educ., 7 FSM R. 275, 277 (Chk. S. Ct. Tr. 1995). And Nakamura v. FSM Telecomm. Corp., 17 FSM R. 119, 124 (Chk. 2010), appears to permit a trespass action whether the defendant’s act was reckless or negligent conduct, but even then trespass liability would attach only when harm was caused to the land. That would appear to be the case here - there is evidence that sewage was deposited on Unufoumwo.

Accordingly, CPUC is denied summary judgment on Robert’s trespass to land claim.

D. Private Nuisance

CPUC seeks summary judgment on Robert’s private nuisance claim because Robert does not own the land Unufoumwo and asserts that the proof of a possessory interest in the land is a necessary element of a private nuisance action.

"Private nuisance is a tort that protects the interest of those who own or occupy land from conduct committed with the intention of interfering with a particular interest-the interest in use and enjoyment." PROSSER AND KEETON ON THE LAW OF TORTS § 87, at 622 (5th ed. 1984). "The distinction [between trespass and nuisance] which is now accepted is that trespass is an invasion of the plaintiff’s interest in the exclusive possession of h[er] land, while nuisance is an interference with h[er] use and enjoyment of it." Id. (footnote omitted). Robert was a resident or occupant of Unufoumwo, and she alleges that the sewage backflow from CPUC interfered with her use and enjoyment of Unufoumwo.

If harm is unintentionally caused, nuisance liability will attach if it is the result of negligent or reckless conduct, or if it is the result of an abnormally dangerous activity. Damarlane v. Damarlane, 19 FSM R. 97, 110 (App. 2013). Robert has pled that CPUC’s actions were negligent, and the court has, herein, just denied CPUC summary judgment on that claim.

Moreover, "often the situation involving a private nuisance is one where the invasion is intentional merely in the sense that the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiff’s interest are occurring or are substantially certain to follow." PROSSER AND KEETON ON THE LAW OF TORTS § 87, 4-25 (5th ed. 1984). R). Robert alleges such a situation in this case - she alleges she repeatedly made CPUC aware of the sewer backflow and its resulting hart the condition continued with CPUC’s full knowledge edge that the harm was occurring.

Accordingly, CPUC is denied summary judgment on Robert’s private nuisance claim.

E. Public Nuisance

CPUC seeks summary judgment on Robert’s public nuisance claim because Robert does not own the land Unufoumwo and because she, as a private person, cannot recover damages for a public nuisance.

A nuisance can be both a public and a private nuisance, but to maintain a damage action for public nuisance, a person must have suffered damage different in kind from that suffered by the general public. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403, 416-17 (Yap 2006). As a general rule, a public nuisance gives no right of action to an individual either for equitable relief, or for damages, and a private plaintiff may bring an action for public nuisance only if she can show that she has sustained significant damage or injury that is different in type from the harm suffered by the community at large. Damarlane v. Damarlane, 19 FSM R. 519, 532 (Pon. 2014). Robert has not done that.

Accordingly, CPUC is granted summary judgment on Robert’s public nuisance cause of action. The court must be careful here to explain that it is not holding that CPUC did not create a public nuisance. It is only holding that Robert cannot pursue a public nuisance claim. Since the court has ruled that Robert may proceed on her private nuisance claim, the court notes that a separate recovery on her public nuisance claim would be a double recovery since both claims stem from the exact same nuisance with the exact same damages.

F. Destruction of Business

CPUC seeks summary judgment on Robert’s "destruction of business" claim because it is not a cause of action for which relief might be granted; because it appears to be a claim for damages that resulted from the other causes of action for negligence, nuisance, and trespass that Robert pled; and because the business license for the small store was in the name of another, her cousin Daneny Manyer, and Robert does not have standing to assert claims for a third party.

CPUC is correct that "business destruction" cannot, in this case, be a separate cause of action and that Robert cannot assert the rights of the business’s owner. (Robert might, however, claim lost personal income that she derived from the store, as a measure of damages.) CPUC is accordingly granted summary judgment on Robert’s "business destruction" claim as a cause of action, but not to whatever extent it may shed light on Robert’s measure of damages.

G. Civil Rights Violations

CPUC seeks summary judgment on Robert’s claim that her civil rights of due process and equal protection were violated because she is neither the landowner nor the business owner and thus had no constitutionally-protected property rights.

Robert makes no allegations that would support an equal protection claim. CPUC is accordingly granted summary judgment on that part of Robert’s civil rights claim.

The court has previously held that "[w]hen sewerage backflow rises above the level of mere negligence to the level of a public nuisance, it may constitute a taking of property without just compensation." Robert v. Chuuk Public Utility Corp., 21 FSM R. 599, 600 (Chk. 2018). Since it appears (and CPUC has not produced any evidence that it is not) that Robert claims that her possessory right to Unufoumwo is a usufruct property right, the court will deny CPUC summary judgment on Robert’s civil rights cause of action.

III. CONCLUSION

Accordingly, CPUC is granted summary judgment on Robert’s causes of action for trespass on chattels, business destruction, and the civil right of equal protection.

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^[1] A home may be owned by someone other than the owner of the land on which it sits. The evidence currently before the court suggests that that may be the case here.