9 FSM Intrm. 267-270

KOSRAE STATE COURT

TRIAL DIVISION

Cite as Palik v. Henry,

9 FSM Intrm. 267 (Kosrae S. Ct. Tr. 1999)

[9 FSM Intrm. 267]

BINGHAM PALIK and

LYNDON ABRAHAM,

Plaintiffs,

vs.

JACOB HENRY,

Defendant.

CIVIL ACTION NO. 56-92

TEMPORARY RESTRAINING ORDER

AND MEMORANDUM

Martin G. Yinug

Temporary Justice

Hearing: November 23, 1999

Decided: November 26, 1999

APPEARANCES:

For the Plaintiff: Albert Welly, trial counselor

(Lyndon Abraham) P.O. Box 187

Lelu, Kosrae FM 96944

For the Defendant: Sasaki George, trial counselor

Micronesian Legal Services Corporation

P.O. Box 38

Lelu, Kosrae FM 96944

[9 FSM Intrm. 268]

* * * *

HEADNOTES

Civil Procedure )Injunctions

In order for the court to issue a temporary restraining order, the party seeking the order must show that he will suffer irreparable injury, and that the only remedy is the somewhat drastic one of a restraining order. Irreparable injury is that for which there is no adequate alternative remedy. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999).

Civil Procedure )Injunctions

An injury which tends to destroy an estate, such as the construction of a concrete house on disputed land, will be treated as an irreparable injury justifying the issuance of a temporary restraining order. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999).

Civil Procedure )Injunctions

Rule 65(b) of the Kosrae Rules of Civil Procedure contemplates that a verified complaint will be filed along with a motion for temporary restraining order and preliminary injunction. In the usual situation, the filing of a complaint along with the motion puts the party against whom injunctive relief is sought on notice as to the nature of the moving party's claim against him, but when injunctive relief is sought in a case with a long prior litigation history, it would not seem strictly necessary that a formal claim be filed in the action in order to put the other party on notice as to the nature of the claim. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999).

Civil Procedure

The Kosrae Rules of Civil Procedure shall be construed to secure the just, speedy, and inexpensive determination of every action. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999).

Civil Procedure ) Joinder and Severance

Someone who has bought at least part of disputed land is a person who must be joined as a party in the land dispute because complete relief cannot be accorded among those already parties in the person's absence or because the person sought to be joined claims an interest relating to the subject of the action and that person's absence may impair or impede the person's ability to protect that interest or leave any of the parties subject to a substantial risk of inconsistent obligations. Palik v. Henry, 9 FSM Intrm. 267, 270 (Kos. S. Ct. Tr. 1999).

* * * *

COURT'S OPINION

MARTIN YINUG, Temporary Justice:

On Tuesday, November 23, 1999, the court held a telephonic hearing on defendant Jacob Henry's motion for temporary restraining order, filed November 18, 1999, pursuant to Rule 65 of the Kosrae Rules of Civil Procedure. The motion seeks a temporary restraining order against Lyndon Abraham, and was brought after the Land Commission denied injunctive relief and advised Jacob Henry to seek that remedy in this court. Present telephonically from Kosrae were defendant Jacob Henry with his counsel Sasaki George, and Lyndon Abraham with his counsel Albert Welly. Also present was Vinson Henry, brother of Jacob Henry.

[9 FSM Intrm. 269]

Lyndon Abraham, his agents, servants, employees, and any other persons in active concert with him are temporarily enjoined from any further construction on the house located on either or both parcel numbers 040-K-01 and 040-K-03, or on a "disputed area" lying between those parcels that are the subject of this litigation. This temporary restraining order is issued with notice, since Mr. Abraham was present with counsel telephonically at the hearing.

In order for the court to issue a temporary restraining order, the party seeking the order must show that he will suffer irreparable injury, and that the only remedy is the somewhat drastic one of a restraining order. Wiliander v. Siales, 7 FSM Intrm. 77, 80 (Chk. 1995). Irreparable injury is that for which there is no adequate alternative remedy. Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993). The court issues the temporary restraining order for the following reasons.

Having apparently purchased at least part of the disputed land which is the subject of this litigation from plaintiff Bingham Palik, Mr. Abraham now claims through his counsel to have two certificates of title to the land on which he is now building a concrete house. However, it is also abundantly clear that the title to the land is disputed, and has been for at the least the eight years of the pendency of this lawsuit. Pursuant to this court's findings of facts and conclusions of law entered on September 9, 1996, and reported as Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996), this matter was remanded to the Kosrae Land Commission for a title determination. The Kosrae Land Commission conducted preliminary inquiries in September, 1999. The formal hearing is now scheduled for December 9, 1999. Here, Jacob Henry's claimed injury is irreparable in the sense that he is faced with ongoing construction on land which he claims to be his. That construction is 20 feet from his brother's wooden house. "An injury which tends to destroy an estate . . . will be treated as `irreparable.'" 1 Am. Jur. 2d Adjoining Landowners § 132 (1962) (footnote omitted). By issuing a temporary restraining order, the court preserves the status quo pending the hearing on Jacob Henry's application for preliminary injunction.

It is further ordered that this matter is set for a telephonic hearing on the motion for preliminary injunction on Wednesday, December 8, 1999, at 2:00 p.m. Kosrae time. The parties will initiate the call to the court in Yap. Any briefs that the parties wish to submit to the court should be filed no later than Tuesday, December 7, 1999.

Procedurally, the court notes the following. Rule 65(b) of the Kosrae Rules of Civil Procedure contemplates that a verified complaint will be filed along with a motion for temporary restraining order and preliminary injunction. That was not done here, because Jacob Henry filed his motion for temporary restraining order and preliminary injunction in an already pending case, i.e., the instant case. In the usual situation, the filing of a complaint along with the motion puts the party against whom injunctive relief is sought on notice as to the nature of the moving party's claim against him. Because of the litigation history here, though, it would not seem strictly necessary that Jacob Henry file a formal claim in this action, however that claim should be denominated, in order to put Mr. Abraham on notice as to the nature of the claim. Further, the substantive issue underlying the motion for temporary restraining order and injunctive relief in this case is who has title to the disputed parcels, and that question is now before the Kosrae Land Commission, not this court. To insure that the claims of both Mr. Henry and Mr. Abraham concerning the disputed land receive a full hearing before the Land Commission, the court directs Mr. Abraham, if he has not already done so, to file a claim with the Land Commission pursuant to section 11.609(2) of the Kosrae State Code. This would seem to serve the same purpose as the complaint and answer under Rule 65 of the Kosrae Rules of Civil Procedure, and is further consistent with Rule 1 of those rules, which provides in pertinent part that the rules "shall be construed to secure the just, speedy, and inexpensive determination of every action."

It follows from the foregoing that Lyndon Abraham should be a party to this action. Jacob Henry

[9 FSM Intrm. 270]

has filed a motion to add Mr. Abraham as a party under Rule 19(a) of the Kosrae Rules of Civil Procedure, which provides in pertinent part that a person shall be joined as a party where "in the person's absence complete relief cannot be accorded among those already parties" or where the person sought to be joined "claims an interest relating to the subject of the action" and where that person's absence may "impair or impede the person's ability to protect that interest" or "leave any of the . . . parties subject to a substantial risk of . . . inconsistent obligations." At the telephonic hearing, the court indicated that it would not rule now on that motion; however, with these concerns in mind, the court grants that motion. Lyndon Abraham claims to be the owner of at least part of the disputed property, and to have taken his interest by purchase from the plaintiff. His presence is required in future proceedings, if any, in this action as well as before the Land Commission, to make possible a global determination of all competing claims.

Lyndon Abraham is joined as a party plaintiff, and the caption is amended accordingly.


	KOSRAE STATE COURT TRIAL DIVISION Cite as Palik v. Henry, 9 FSM Intrm. 267 (Kosrae S. Ct. Tr. 1999) [9 FSM Intrm. 267] BINGHAM PALIK and LYNDON ABRAHAM, Plaintiffs, vs. JACOB HENRY, Defendant. CIVIL ACTION NO. 56-92 TEMPORARY RESTRAINING ORDER AND MEMORANDUM Martin G. Yinug Temporary Justice Hearing: November 23, 1999 Decided: November 26, 1999 APPEARANCES: For the Plaintiff: Albert Welly, trial counselor (Lyndon Abraham) P.O. Box 187 Lelu, Kosrae FM 96944 For the Defendant: Sasaki George, trial counselor Micronesian Legal Services Corporation P.O. Box 38 Lelu, Kosrae FM 96944 [9 FSM Intrm. 268] * * * * HEADNOTES Civil Procedure )Injunctions In order for the court to issue a temporary restraining order, the party seeking the order must show that he will suffer irreparable injury, and that the only remedy is the somewhat drastic one of a restraining order. Irreparable injury is that for which there is no adequate alternative remedy. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999). Civil Procedure )Injunctions An injury which tends to destroy an estate, such as the construction of a concrete house on disputed land, will be treated as an irreparable injury justifying the issuance of a temporary restraining order. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999). Civil Procedure )Injunctions Rule 65(b) of the Kosrae Rules of Civil Procedure contemplates that a verified complaint will be filed along with a motion for temporary restraining order and preliminary injunction. In the usual situation, the filing of a complaint along with the motion puts the party against whom injunctive relief is sought on notice as to the nature of the moving party's claim against him, but when injunctive relief is sought in a case with a long prior litigation history, it would not seem strictly necessary that a formal claim be filed in the action in order to put the other party on notice as to the nature of the claim. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999). Civil Procedure The Kosrae Rules of Civil Procedure shall be construed to secure the just, speedy, and inexpensive determination of every action. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999). Civil Procedure ) Joinder and Severance Someone who has bought at least part of disputed land is a person who must be joined as a party in the land dispute because complete relief cannot be accorded among those already parties in the person's absence or because the person sought to be joined claims an interest relating to the subject of the action and that person's absence may impair or impede the person's ability to protect that interest or leave any of the parties subject to a substantial risk of inconsistent obligations. Palik v. Henry, 9 FSM Intrm. 267, 270 (Kos. S. Ct. Tr. 1999). * * * * COURT'S OPINION MARTIN YINUG, Temporary Justice: On Tuesday, November 23, 1999, the court held a telephonic hearing on defendant Jacob Henry's motion for temporary restraining order, filed November 18, 1999, pursuant to Rule 65 of the Kosrae Rules of Civil Procedure. The motion seeks a temporary restraining order against Lyndon Abraham, and was brought after the Land Commission denied injunctive relief and advised Jacob Henry to seek that remedy in this court. Present telephonically from Kosrae were defendant Jacob Henry with his counsel Sasaki George, and Lyndon Abraham with his counsel Albert Welly. Also present was Vinson Henry, brother of Jacob Henry. [9 FSM Intrm. 269] Lyndon Abraham, his agents, servants, employees, and any other persons in active concert with him are temporarily enjoined from any further construction on the house located on either or both parcel numbers 040-K-01 and 040-K-03, or on a "disputed area" lying between those parcels that are the subject of this litigation. This temporary restraining order is issued with notice, since Mr. Abraham was present with counsel telephonically at the hearing. In order for the court to issue a temporary restraining order, the party seeking the order must show that he will suffer irreparable injury, and that the only remedy is the somewhat drastic one of a restraining order. Wiliander v. Siales, 7 FSM Intrm. 77, 80 (Chk. 1995). Irreparable injury is that for which there is no adequate alternative remedy. Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993). The court issues the temporary restraining order for the following reasons. Having apparently purchased at least part of the disputed land which is the subject of this litigation from plaintiff Bingham Palik, Mr. Abraham now claims through his counsel to have two certificates of title to the land on which he is now building a concrete house. However, it is also abundantly clear that the title to the land is disputed, and has been for at the least the eight years of the pendency of this lawsuit. Pursuant to this court's findings of facts and conclusions of law entered on September 9, 1996, and reported as Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996), this matter was remanded to the Kosrae Land Commission for a title determination. The Kosrae Land Commission conducted preliminary inquiries in September, 1999. The formal hearing is now scheduled for December 9, 1999. Here, Jacob Henry's claimed injury is irreparable in the sense that he is faced with ongoing construction on land which he claims to be his. That construction is 20 feet from his brother's wooden house. "An injury which tends to destroy an estate . . . will be treated as `irreparable.'" 1 Am. Jur. 2d Adjoining Landowners § 132 (1962) (footnote omitted). By issuing a temporary restraining order, the court preserves the status quo pending the hearing on Jacob Henry's application for preliminary injunction. It is further ordered that this matter is set for a telephonic hearing on the motion for preliminary injunction on Wednesday, December 8, 1999, at 2:00 p.m. Kosrae time. The parties will initiate the call to the court in Yap. Any briefs that the parties wish to submit to the court should be filed no later than Tuesday, December 7, 1999. Procedurally, the court notes the following. Rule 65(b) of the Kosrae Rules of Civil Procedure contemplates that a verified complaint will be filed along with a motion for temporary restraining order and preliminary injunction. That was not done here, because Jacob Henry filed his motion for temporary restraining order and preliminary injunction in an already pending case, i.e., the instant case. In the usual situation, the filing of a complaint along with the motion puts the party against whom injunctive relief is sought on notice as to the nature of the moving party's claim against him. Because of the litigation history here, though, it would not seem strictly necessary that Jacob Henry file a formal claim in this action, however that claim should be denominated, in order to put Mr. Abraham on notice as to the nature of the claim. Further, the substantive issue underlying the motion for temporary restraining order and injunctive relief in this case is who has title to the disputed parcels, and that question is now before the Kosrae Land Commission, not this court. To insure that the claims of both Mr. Henry and Mr. Abraham concerning the disputed land receive a full hearing before the Land Commission, the court directs Mr. Abraham, if he has not already done so, to file a claim with the Land Commission pursuant to section 11.609(2) of the Kosrae State Code. This would seem to serve the same purpose as the complaint and answer under Rule 65 of the Kosrae Rules of Civil Procedure, and is further consistent with Rule 1 of those rules, which provides in pertinent part that the rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." It follows from the foregoing that Lyndon Abraham should be a party to this action. Jacob Henry [9 FSM Intrm. 270] has filed a motion to add Mr. Abraham as a party under Rule 19(a) of the Kosrae Rules of Civil Procedure, which provides in pertinent part that a person shall be joined as a party where "in the person's absence complete relief cannot be accorded among those already parties" or where the person sought to be joined "claims an interest relating to the subject of the action" and where that person's absence may "impair or impede the person's ability to protect that interest" or "leave any of the . . . parties subject to a substantial risk of . . . inconsistent obligations." At the telephonic hearing, the court indicated that it would not rule now on that motion; however, with these concerns in mind, the court grants that motion. Lyndon Abraham claims to be the owner of at least part of the disputed property, and to have taken his interest by purchase from the plaintiff. His presence is required in future proceedings, if any, in this action as well as before the Land Commission, to make possible a global determination of all competing claims. Lyndon Abraham is joined as a party plaintiff, and the caption is amended accordingly.