Board of Trustees v. Kolonia(1989)

POHNPEI LAW REPORTS

[3A PN.L.R. 737]

BOARD OF TRUSTEES OF

THE PUBLIC LANDS TRUST OF THE

DEPARTMENT OF LAND, STATE OF POHNPEI,

KOLONIA TOWN GOVERNMENT,

Pohnpei Civil Action No. 259-89

Trial Division of the Pohnpei Supreme Court

Motions by the plaintiff for a temporary restraining order to restrain the defendant from proceeding further with construction of a building at the Kolonia Little League Baseball field "without authorization from the Department of Land and without any other legal right, lease or use agreement", and for a summary judgment to declare that title to the land upon which the defendant was doing the construction was in the Board of Trustees of the Pohnpei Public Lands Trust. The plaintiff assumed that the use right in the land upon which the defendant was doing the construction had been transferred (reverted) to the Public Lands Authority. The motion for summary judgment was made by the plaintiff upon the conclusion of its oral testimony. The defendant objected to the motions.

The Trial Division of the Pohnpei Supreme Court, EDWEL H. SANTOS, Chief Justice, denying the motions, held (1) that to conform with the Pohnpeian concept of justice: (a) the Court would require at least some kind of notice to be given to the defendant or its attorney by the plaintiff before consideration of whether or not the Court should issue a temporary restraint; (b) that the plaintiff was required by the Court to prove the presence of "some, special hardship" in providing notice to the defendant so as to justify the need for the Court to issue a temporary restraining order without notice; (2) that whereas the plaintiff must clearly show that it would suffer immediate and irreparable injury, loss or damage if temporary relief was not granted, it was clear that the damage likely-to be sustained by the plaintiff if the defendant was not restrained from further construction of the building in question would naturally be damages in the plaintiff's implementation of its fiduciary duty as Trustees of the public trust lands, including the possibility of reimbursing the defendant for monetary damages, had the plaintiff, having known about the construction work being commenced, stood by and did nothing to stop the construction; (3) that the plaintiff was not likely to be the ultimate winner of the case

[3A PN.L.R. 738]

on the factual and legal merits; (4) that the burden to be imposed upon the defendant, if the temporary restraining order was granted, would be greater than the harm likely to befall the plaintiff if the interim relief was denied; (5) that two equally important public interests were involved in the matter which with proper coordination and conciliation among the appropriate parties and offices, could be adequately served; (6) that when Pohnpei Public Lands Authority received all" rights, title and interest" in the public land here in question, the use right agreement came along with it, and the Board of Trustees must honor it until revoked or rescinded according to law; (7) that the plaintiff's motion for summary judgment submitted upon the conclusion of presentation of its oral testimony seemed premature; and (8) that if the plaintiff had demonstrated with some clarity as to whether the "use right agreement" previously made with the defendant over the area in question was legally terminated, it would have been entitled to a summary judgment once it complied with Rules 51 and 6 (c) of the Pohnpei Rules of Civil Procedure relating to the filing of motion for summary judgment.

1. Civil Procedure - Temporary Restraining Order

A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if-

(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the application before the adverse party or his attorney can be heard in opposition, and

(2) the applicant's attorney certifies to the Court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. Every temporary restraining order granted with out notice shall be endorsed with the date and hour of issuance, filed forthwith in the Clerk's Office and entered of record, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after entry, not to exceed 7 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is ex tended for alike period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for preliminary injunction shall be set down for hearing at the earliest possible time

[3A PN.L.R. 739]

and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction, and if he does not do so, the court shall dissolve the temporary restraining order. On 3 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. (Pohnpei Rule of Civil Procedure, Rules 58)

2. Civil Procedure - Temporary Restraining Order - Nature

A temporary restraining order is an injunctive order which is in force between the time at which an order to show cause is issued and the return date of the order to show cause.

3. Civil Procedure - Temporary Restraining Order - Scope

A temporary restraining order may contain mandatory relief (compels the doing of an act), or prohibitory relief (forbids the doing of an act), or both. When a temporary restraining order is issued, it will usually be included within an order to show cause.

4. Civil Procedure - Temporary Restraining Order - Duration

A temporary restraining order shall not be in force for more than seven days, unless extended according to Rule 58, of the Pohnpei Rules of Civil Procedure.

5. Civil Procedure - Temporary Restraining Order - Effect

A temporary restraint or interlocutory injunction can have great impact upon the parties, and because it is always issued on an admittedly incomplete record, it must be issued with great caution.

[3A PN.L.R. 740]

6. Civil Procedure - Temporary Restraining Order - Notice - Pohnpeian Concept of Justice

To confirm with the Pohnpeian concept of justice, the Court will require at least some kind of notice to be given to the defendant or his attorney by the plaintiff before consideration of whether or not to issue a temporary restraint. Thus to justify the issue of a temporary restraining order without notice, the Court will require the plaintiff to prove the presence of "some special hardship" in providing notice to the defendant.

7. Civil Procedure - Temporary Restraining Order - Factors for Issue

Factors which must be present before the Court can properly issue a temporary restraining order or a preliminary injunction are: (1) the applicant must clearly show that he will suffer immediate and irreparable injury, loss or damage if temporary relief is not granted. This can be shown by affidavits or through the testimony of a witness. If, however, the interim relief sought amounts to nothing more than a virtually cost-free maintenance of the status quo designed to preserve the subject matter of the litigation, it is not necessary for the applicant to show that he is likely to succeed on the ultimate merits. (2) the applicant must be likely to succeed on the ultimate merits. Before granting any interim relief, the judge must make an evaluation of the factual and legal merits of the applicant's case. The judge should not grant interim relief unless his assessment is that the applicant is likely to succeed on the ultimate factual and legal merits. Of course, the judge's assessment is being made on an incomplete record and is only tentative in nature. It is not to be confused with an improper prejudgment of the case. Nevertheless, unless the judge is able to make the tentative assessment that the applicant is apt to be the ultimate winner, he should not grant interim relief; (3) the Court must be satisfied that the harm which will befall the plaintiff if interim relief is not granted will be greater than the burden imposed upon the defendant by the granting of the relief; (4) if any public interest is implicated, it must be served by the granting of the interim relief. In many cases, there may be no particular public interest involved, but the Court must always determine whether or not there is a public interest involved.

8. Courts - Judicial Notice

The Court may take judicial notice of facts not subject to reasonable dispute in that they are either generally known within the territorial jurisdiction of the Court, or capable of accurate and ready determination

[3A PN.L.R. 741]

by resort to sources whose accuracy cannot reasonably be questioned. Thus the Court takes judicial notice of the fact that the building on which the defendant is doing construction or reconstruction work was once a Kolonia Town Government administration building and the area upon which the building is located and where the reconstruction work is being undertaken by the defendant was granted to the Kolonia Town Government by the High Commissioner through his representative, the District Administrator of the then Ponape District of the Trust Territory of the Pacific Islands.

9. Lands - Public Lands - Use Right Agreement

When the Pohnpei Public Lands Authority received "all rights, title and interest" in the public land, the use right agreement relating to public land covered by such agreement came along with it, and the Board of Trustees must honor it until revoked or rescinded according to law.

10. Lands - Public Lands - Use Right Agreements - Absence of Resolution or Minutes of Public Lands Board of Trustees Rescinding or Terminating Presumptions.

In the absence of a resolution or minutes of a meeting of the Public Lands Board of Trustees rescinding or terminating a land-use agreement granting a use right in public land to the defendant by the predecessor of the Public Lands Board of Trustees, the presumption is that the defendant still hangs on to its use right over that land.

11. Judgment - Summary Judgments

The granting of summary judgment is proper where there is no genuine issue of material fact and where the moving party is entitled to judgment according to law.

12. Civil Procedure- Judgments - Summary Judgments

A patty seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. (Pohnpei Rules of Civil Procedure, Rule 51(a)).

[3A PN.L.R. 742]

The motion shall be governed by the provisions of Rule 6(c). The party opposing the motion must, in the same manner, observe the provisions of Rule 6(c). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving patty is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (Pohnpei Rules of Civil Procedure, Rule 51(c))

13. Civil Procedure - Judgments - Summary Judgments - Requirements

A party moving the Court for a summary judgment shall serve a written motion and notice of the hearing thereof, with a memorandum of points arid authorities, not later than 7 days before the time set for the hearing, and the party opposing the motion shall not later than 5 days after service of the motion upon him, file and serve responsive papers. (Pohnpei Rules of Civil Procedure, Rule 6(c))

14. Civil Procedure - Judgments - Summary Judgments

Where the plaintiff's motion for summary judgment is submitted upon the conclusion of its oral testimony it seems premature and summary judgment must be denied.

Counsel for Plaintiff: Mary Berman, Esq.,

Attorney for Dept of Land

Counsel for Defendant: Daniel Berman, Esq.,

Berman and Berman Law Firm

EDWEL H. SANTOS, Chief Justice

In conjunction with the plaintiff's complaint for preliminary injunction, the plaintiff moved for a temporary restraining order,

[3A PN.L.R. 743]

hereinafter TRO, to restrain the defendant immediately from proceeding further with construction at the Kolonia Little League Baseball Field. The plaintiff alleged in its complaint that "the defendant Kolonia Town Government is presently constructing a building upon public lands known as the Kolonia Little League Baseball Field, that the defendant is doing this without authorization from the Department of Land and without any other legal right, lease, or use agreement."

Hearing on the plaintiff's TRO motion was had this date, November 22, 1989, and upon completion of the plaintiff's oral testimony, the attorney for the plaintiff moved for a summary judgment to declare that the title to the land upon which the defendant is doing the construction of a building is in the Board of Trustees, hereinafter Board, of the Pohnpei Public Lands Trust, and that the, defendant was not given any lease or use right agreement from the Board to proceed with the construction on the land in question. The defendant sharply objected to the motion.

Upon consideration of the balance of the evidence presented, together with the skimpy record available, I denied the motion for

[3A PN.L.R. 744]

a summary judgment as well as the motion for temporary restraining order against the defendant. The written ruling here is prepared for the record.

1. Temporary Restraining Order

[1] A. Rule 58 of this Court's Rules of Civil Procedure governs the procedure for issuance of preliminary injunctions, including a temporary restraining order. The Rule reads in pertinent part,

A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if-

(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and

[3A PN.L.R. 745]

the date and hour of issuance, filed fortwith in Clerk's Office and entered of record, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after entry, not to exceed 7 days, as the court fixes, unless within the time so fixed, the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered on record. In case a temporary restraining order is granted without notice, the motion for preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction, and if he does not do so, the court shall dissolve the temporary restraining order. On 3 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

[3A PN.L.R. 746]

[2-4] A temporary Restraining Order is an injunctive order which is in force between the time at which an order to show cause is issued and the return date of the order to show cause. A temporary restraining order may contain mandatory relief (compels the doing of an act), or prohibitory relief (forbids the doing of an act), or both. When a temporary restraint is issued, it will usually be included within an order to show cause. A temporary restraining order should not be in force for more than 7 days, unless extended according to Rule 58, PN. RCP.

[5] Temporary restraining orders are requested with little or no input from the defendant. The factual record is typically very skimpy. There is much more input from the defendant and a fuller factual record when the judge decides whether to grant an interlocutory injunction, but the record is still much more abbreviated than is the record produced at a plenary trial. A temporary restraint or interlocutory'injunction can have great impact upon the parties. Because it is always issued on an admittedly incomplete record, it must be issued with great caution.

[6] To conform with the Pohnpeian concept of justice, this Court

[3A PN.L.R. 747]

will require at least some kind of notice to be given to the defendant or its attorney by the plaintiff before consideration of whether or not the court should issue a temporary restraint. The experience of this Court proves that it is almost never necessary or right for a justice of this Court to issue temporary restraining orders without at least some notice. In its ruling on a similar motion in Paulus v. State of Pohnpei, PCA 47-87 (ruling not reported,) this Court required the plaintiff to prove the presence of "some special hardship" in providing notice to the defendant so as to justify the need for the Court to issue TRO without notice.

Factors Which Must Be Present Before the Court Can Properly Issue a Temporary Restraining Order or a Preliminary Injunction.

[7] a. Immediate and irreparable damage. The applicant must clearly show that he will suffer immediate and irreparable injury, loss or damage if temporary relief is not granted. This can be shown by affidavits or through witness testimony. If, however, the interim relief sought amounts to nothing more than a virtually cost-free maintenance of the status quo designed to preserve the

[3A PN.L.R. 748]

subject matter of the litigation, it is not necessary for the applicant to show that he is likely to succeed on the ultimate merits.

In the case at bar, although the testimony of one of the plaintiff's witnesses was to the effect that there would be "possible damage" to the defendant, it is clear that the damage likely to be sustained by the plaintiff if the defendant is not restrained from further construction of the building in question would naturally be damages in the plaintiff's implementation of its fiduciary duty as Trustees of the public lands trust, including possibility of reimbursing the defendant for monetary damages, had the plaintiff, having known about the construction work being commenced, stood by and did nothing to stop the construction. I find the evidence presented on this point to be in the plaintiff's favor.

[7] b. Applicant Must be Likely to Succeed on the Ultimate Merits. Before granting any interim relief, the judge must make an evaluation of the factual and legal merits of the applicant's case. The judge should not grant interim relief unless his assessment is that the applicant is likely to succeed on the ultimate factual and legal merits. Of course, the judge's assessment is being made on an

[3A PN.L.R. 749]

incomplete record and is only tentative in nature. It is not to be confused with an improper prejudgment of the case. Nevertheless, unless the judge is able to make the tentative assessment that the applicant is apt to be the ultimate winner, he should not grant interim relief.

In the instant case, there appears to be an unqualified assumption on the part of the plaintiff (or certain officers of the Department of Land) that the use right in the land upon which the defendant is doing the construction had been transferred (reverted) to the Public Lands Authority. This assumption is amplified in the plaintiff's Exhibit No. 1 (draft of a letter sent to the Kolonia Town Mayor by the Director of the Department of Land, undated), as the concluding statement of said letter reads: "Please be reminded that upon cessation of active use of the area you have transferred the real property to the public trust land." But strangely however, the testimony of the same witness went further to say that he knew of "no resolution nor minutes of the Board of Trustees of the Public Lands Trust to have been adopted or recorded", effectuating any revocation or rescinding of the use right agreement

[3A PN.L.R. 750]

previously made to the defendant. Plaintiff’s Exhibit No. 1 also mentions about a $10,000 Legislature appropriation made to the Kolonia Town Government for “Renovation and maintenance of Kolonia Town Government Office facilities.” This appropriation is reflected under L.B. No. 342-89, passed by the Pohnpei Legislature on September 30, 1989, and signed into law by the Governor on October 11, 1989, as S.L. No.2L-115-89 (I take judicial notice of this fact pursuant to Rule 201 (b) and 803 (8) of the Court Rules of Evidence). If the intent of the $10,000 appropriation was really for the renovation and maintenance of the building now in question, then the combined acts of the Legislature and the Governor as above have placed the assumption of the Department of Land as reflected in the Plaintiff’s Exhibit No.1 in a sharp conflict. A conflict of this nature is not desirable and need not recur in a small governmental structure like ours. Coordination and reconciliation is appropriate in this instance between the Pohnpei Legislature and the Governor on one side and the Department of Land and the Public Lands Trust Board of Trustee on the other hand. On the basis of the above, I find it quite difficult to make a tentative assessment that

[3A PN.L.R. 751]

the plaintiff is likely to be the ultimate winner.

c. Relative harm/burden. Before granting interim relief, the court must be satisfied that the harm which will befall the plaintiff if the relief is not granted will be greater than the burden imposed upon the defendant by the granting of the relief.

I note in the instant case that the reconstruction work had already started and financial obligations were presumably incurred by the defendant. I think the burden to be imposed upon the defendant, if a TRO is granted, will be greater than the harm likely to befall the plaintiff if interim relief is denied.

d. Public Interest. If any public interest is implicated, it must be served by the granting of the interim relief. In many cases, there may be no particular public interest involved, but the Court must always determine whether or not there is a public interest involved.

Two equally important public interests are evidently involved in this matter: (1) Kolonia Town Government's interest to have a police station for its police force, and (2) Department of Land's plan to improve the area for recreational purposes. The former has

[3A PN.L.R. 752]

been financed and is under progress, though being questioned here; the latter is being considered, yet to be :put into a proposal form. It is not known whether and when financing for the latter interest will be made available. However, with proper coordination and conciliation among the appropriate parties and offices, both public interests can be adequately served as the plaintiff concludes in its Exhibit No. 1, "Let us work together to improve Pohnpei."

[8] B. Considering the Facts of the Case. The Court takes judicial notice of the fact that the building on which the defendant is doing the construction or reconstruction work was once the Kolonia Town Government administration building. The land area upon which the building is located and where the reconstruction work is being undertaken by the defendant was granted to the Kolonia Town Government by the High Commissioner through his representative, the District Administrator of the then Ponape District of the Trust Territory of the Pacific Islands. The plaintiff's second witness's testimony that the "use right of the area was granted to the Kolonia Town Government by the District Administrator" verified this point. The use right agreement was made long

[3A PN.L.R. 753]

before the High Commissioner transferred title to public lands to the Pohnpei legal entity pursuant to U.S. Department of Interior Secretarial Order No. 2969 of December 28, 1974. No documentary evidence was presented at the hearing relating to the conditions or terms of the use right agreement referred to above. However, it is a common knowledge that the building, together with the area upon which it stands was occupied by the Kolonia Town Government for a substantial number of years prior to the return of public lands to the Pohnpei Public Lands Authority beginning in about 1976, the last batch being transferred in 1979. The defendant continued to enjoy the use right agreement above-referred to when the transfer of that particular land was made to the Pohnpei Public Lands Authority, as recognized by Secretarial Order 2969.

"Upon request, the High Commissioner is authorized and directed, subject to valid existing rights, to transfer and convey, pursuant to the provisions of this Order, to such district legal entity all rights, title and interest of the Government of the Trust Territory of the Pacific Islands in public lands . . . within their respective districts." Order 2969, s. r. (Emphasis supplied)

[3A PN.L.R. 754]

[9] When the Pohnpei Public Lands Authority received "all rights, title and interest" in the public land here in question, the use right agreement came along with it, and the Board of Trustees must honor it until revoked or rescinded according to law. The next and perhaps the most crucial issue in point is whether at any time after the land was transferred to the Ponape Public Lands Authority, the Kolonia Town Government on its own initiative had relinquished its use right over the land in question to the Board of Trustees of the Public Lands Authority, or whether by action of the Board of Trustees or by some mutual arrangement the use right was revoked, rescinded or terminated.

The plaintiff's first witness testified that he knew of no resolution, nor minutes of the Public Lands Board of Trustees' meeting that ever rescinded or terminated the use right earlier granted to the defendant by the Public Lands Board of Trustees predecessor, the High Commissioner through his district administrator of Ponape district. The presumption is that the defendant Kolonia Town Government still hangs on to its use right agreement over that portion of the area once referred to as "the Administrator's Plaza",

[3A PN.L.R. 755]

and referred to by the plaintiff as the "Kolonia Little League Baseball Field." This presumption is amplified by the fact that pursuant to the request of the defendant for financial assistance, the Pohnpei Legislature appropriated and the Governor signed into law S.L. No. 2L-115-89 which authorized the appropriation of $10,000 for renovation of the building in question. (See S.L. 2L155-89, s.1(1)). The act of appropriating the $10,000 by the Pohnpei Legislature for the defendant to undertake the renovation work on the building on the land in question and the act of the Governor in approving the law serve as strong indication that the two branches did support the effort of the Kolonia Town Government to renovate it sold administration building for public purposes. Considering the foregoing, I conclude that a temporary restraint is not appropriate.

II. Summary Judgment

[11-12] The granting of summary judgment is proper where there is no genuine issue of material fact and where the moving party is entitled to judgment according to law. Subsections (a) and (c) of Rule 51 of this Court Rules of Civil Procedure are relevant to

[3A PN.L.R. 756]

the facts of this case. (Rule 51(a) reads,

A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

The motion shall be governed by the provisions of Rule 6(c). The party opposing the motion must, in the same manner, observe the provisions of Rule 6(c). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

[13] Rule 6(c) requires a written motion and notice of the hearing thereof to be served with a memorandum of points and authorities not later than 7 days before the time set for the hearing. The party opposing the motion shall not later than 5 days after the service of the motion upon him, file and serve responsive papers.

[14] The plaintiff's motion for summary judgment submitted upon the conclusion of presentation of its oral testimony seemed rather premature. In addition, if the plaintiff had demonstrated with some clarity as to whether the "use right agreement" previously made

[3A PN.L.R. 757]

with the defendant over the area in question was legally terminated, it would have been entitled to a summary judgment once the plaintiff complies with Rules 51 and 6(c), Pohnpei RCP. Summary judgment, under the circumstances, must be denied.

Accordingly, It is ORDERED;

1. The plaintiff's motion for summary judgment is denied.

2. The plaintiff's application for a temporary restraining order is denied.

3. The defendant shall file its answer to the complaint heretofore filed in this action after which filing further proceeding will then be determined.

So Ordered, 22 November 1989.