FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Marcus v. Truk Trading Corp.,
10 FSM Intrm. 387 (Chk. 2001)

MIKE MARCUS, for himself, and on behalf
of the WITO CLAN in Nepukos Village,
Plaintiff,

vs.

TRUK TRADING CORPORATION,
Defendant.

CIVIL ACTION NO. 2001-1000

ORDER DENYING SUMMARY JUDGMENT MOTIONS

Martin Yinug
Associate Justice

Decided: September 24, 2001

APPEARANCES:

For the Plaintiff:
Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

For the Defendant:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

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HEADNOTES

Property
It is a well-recognized rule of law in Chuuk that lineage land cannot be transferred, distributed or sold by an individual member of the lineage without the consent or acquiescence of all adult members of that lineage, and it is assumed that this rule of law applies to "transfers" by lease as well. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 389 (Chk. 2001).

Contracts - Necessity of Writing; Property
There is no statute of frauds - a law requiring that certain agreements or contracts to be in writing before they are enforceable in court - in Chuuk. Customarily, any agreement, even that selling land, might be oral. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 389 (Chk. 2001).

Civil Procedure - Summary Judgment
When opposing affidavits show the existence of a genuine issue of material fact, summary judgment must be denied. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 389 (Chk. 2001).

[10 FSM Intrm. 388]

Civil Procedure - Motions
Failure to timely oppose a motion is deemed a consent to that motion, but good grounds are still needed before the motion may be granted. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 389-90 (Chk. 2001).

Constitutional Law - Title to Land
The FSM Constitution mandates that a noncitizen may not acquire title to land or waters in Micronesia, but the Constitution does not prohibit a noncitizen from acquiring or holding some non-title interest in the land. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 390 (Chk. 2001).

Constitutional Law - Title to Land
The Constitution does not divest noncitizens of their title to land if they had acquired title to land before the Constitution's effective date. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 390 (Chk. 2001).

Constitutional Law - Title to Land
The Constitution does not prohibit a citizen landowner from becoming a citizen of another country and it does not strip a citizen landowner who does become a foreign citizen of title to land to which he acquired title when he was a citizen. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 390 (Chk. 2001).

Torts - Trespass
A noncitizen plaintiff who does not have title to the land may sue for trespass if he has a possessory interest. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 390 (Chk. 2001).

Civil Procedure - Summary Judgment
Summary judgment will be denied when questions must be resolved before the movant can present a sufficient factual basis for a summary judgment. Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 390 (Chk. 2001).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

On August 10, 2001, the plaintiff, Mike Marcus, filed a Motion for Partial Summary Judgment. On August 20, 2001, the defendant, Truk Trading Corporation, filed TTC's Opposition to Motion for Summary Judgment; Cross Motion for Summary Judgment by TTC. No opposition to the cross motion has been filed.

I. Background

This case involves land, known Nekou, that is owned by the Wito Clan in Nepukos Village, and on which the defendant Truk Trading Corporation maintains and operates its business establishment. Truk Trading Corporation occupies the land pursuant to a lease signed December 17, 1987. The lease covers an initial fifteen-year period ending August 31, 2000, and then five additional fifteen-year periods at the lessee's (Truk Trading Corporation's) option. Marcus contends that this lease was signed on Wito Clan's behalf by persons who the Clan had not authorized to negotiate and execute a lease; that for some time the Clan believed there was no lease; that when they learned one had been signed the Clan was under the impression (until it was explained to them in July, 2000) that it expired August 

[10 FSM Intrm. 389]

31, 2000, after which the land would revert to the Clan; and that those who had signed the lease were unaware of the renewal provisions. The motion, and its supporting affidavits, assert that because when the Clan learned of the lease's existence they were under the impression that it expired August 31, 2000, the affiant Clan members consented to the use of the land up to August 2000, but not for any further time period.

II. Plaintiff's Summary Judgment Motion

Marcus's partial summary judgment motion seeks a declaration that the defendant's occupation of the property after August 31, 2000 constitutes trespass. It is undisputed that Nekou is clan or lineage land. "It is well recognized as a rule of law in Truk [Chuuk] that lineage land cannot be transferred, distributed or sold by an individual member of the lineage without the consent of all adult members of that lineage." Truk Trading Co. v. Paul, 8 TTR 515, 518 (App. 1986); see also Mesaita v. Fupi, 5 TTR 631, 632-33 (Truk 1972); Nitoka v. Nesepuer, 2 TTR 12, 14 (Truk 1959) (approval or acquiescence of all adult members needed to transfer land). The parties, and the court, assume that this rule of law applies to "transfers" by lease as well.

The plaintiff contends that the clan members gave no such consent, and has supported this contention with three clan members' affidavits. The plaintiff further contends that the absence of a lawfully executed written appointment of representative or of a power of attorney is proof that the signers did not have the authority to execute the lease on the Clan's behalf and that the lease was thus void and not lawfully executed. In opposition, the defendant has supplied two affidavits, one of a clan member and one from the defendant corporation's president who had been involved in the 1987 negotiations, that contend that the clan members consented or acquiesced to the lease and that those who negotiated and signed the lease on the Clan's behalf had the authority to do so. These affidavits, in most material respects, directly contradict the affidavits filed by the plaintiff.

There is no statute of frauds - a law requiring that certain agreements or contracts to be in writing before they are enforceable in court - in Chuuk. Customarily, any agreement, even that selling land, might be oral. The absence of written authorization or power of attorney is thus not fatal to the defendant's contention that those who signed the lease on Wito Clan's behalf had the authority to do so.

The opposing affidavits therefore show the existence of a genuine issue of material fact - whether those who signed the lease on Wito Clan's behalf had the adult clan members' consent or acquiescence to do so. Because there is a genuine issue of material fact, summary judgment must be denied. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 597 (Pon. 2000); Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 79 (Kos. 1999).

Furthermore, the plaintiff contends that the Clan, at some point, consented to the initial fifteen-year lease period, but not to any of the later renewal periods. The plaintiff has not supplied the court with any authority or basis by which the clan could consent to one portion of the lease and not consent to the rest of it. Nor has the plaintiff explained to whom this "consent" was communicated and how. The question of whether the clan consented or acquiesced to the negotiation and signing of the lease is a material issue.

III. Defendant's Cross Motion

The defendant, Truk Trading Corporation, filed a cross motion for summary judgment. No opposition to this motion has been filed. Failure to timely oppose a motion is deemed a consent to that motion. Actouka v. Etpison, 1 FSM Intrm. 275, 276 (Pon. 1983); FSM Civ. R. 6(d). Nevertheless, 

[10 FSM Intrm. 390]

good grounds are still needed before the motion may be granted. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

Truk Trading Corporation seeks summary judgment that the named plaintiff, Mike Marcus, cannot bring a trespass claim in his own name and is not entitled to be a named party. The defendant asserts that since Marcus is a United States citizen he cannot have any interest in the land Nekou and the court should therefore order that Mike Marcus, for himself, be stricken and dismissed as a party.

The Complaint states that Mike Marcus is a naturalized United States citizen. The FSM Constitution mandates that "[a] noncitizen . . . may not acquire title to land or waters in Micronesia." FSM Const. art. XIII, § 4. But the Constitution does not prohibit a noncitizen from acquiring or holding some non-title interest in the land. Furthermore, the Constitution does not divest noncitizens of their title to land if they had acquired title to land before the Constitution's effective date. See SCREP No. 42, II J. of Micro. Con. Con. 870. Nor does it prohibit a citizen landowner from becoming a citizen of another country and it does not strip a citizen landowner who does become a foreign citizen of title to land to which he acquired title when he was a citizen.

Additionally, the nature of Marcus's claim "for himself" is unclear. The complaint does not state that he is a rightful member of the Wito Clan of Nepukos. Nor does it allege that he has some other claim and what that claim is. But a noncitizen plaintiff who does not have title to the land may sue for trespass if he has a possessory interest. Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 343 (Pon. 1994).

A number of factual questions are thus left unanswered. If Marcus claims a title interest in Nekou, did he acquire this interest before he became an American citizen? If he acquired a title interest after he became an American citizen, was it before the effective date of the FSM Constitution? If Marcus's claim is a possessory one, is that possessory claim sufficient for him to maintain standing? The defendant must resolve these questions before it can present a sufficient factual basis for a summary judgment that Mike Marcus lacks standing to bring a claim "for himself." The defendant's cross motion is therefore denied.

IV. Conclusion

Accordingly, both the plaintiff's partial summary judgment motion and the defendant's cross motion are denied.

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