FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K1-2016
APPEAL CASE NO. K3-2016
(Civil Action No. 57-15)

SAIMON R. ALIK, representing Heirs of Rentul	)				   
Alik, and HEIRS OF RENTUL ALIK (Sepe R. Alik,	)				   
Elsey R. Alik, Marciana R. Alik, Saimon R. Alik,	)				        
Tulpe J. Killin, Carmelina R. Alik, Hansully R.		)
Alik, Larry R. Alik, Likiak R. Alik, Alik R. Alik,		)
and Robert R. Alik),					)
)
Appellants,				)
)
vs.						)
)
HEIRS OF MOSES R. ALIK (Jusmina M. Alik,		)
Rexie M. Alik, and Selina M. Alik), KOSRAE		)
LAND COURT, and KOSRAE STATE			)
GOVERNMENT,					)
)
Appellees.				)
_____________________________________________	)

	OPINION

	Argued:  May 1, 2018
	Decided:  July 3, 2018

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Mayceleen JD Anson, Specially Assigned Justice, FSM Supreme Court*

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellants:	Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

For the Appellees:	Canney Palsis, Esq.
(Heirs of M. Alik)	Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

For the Appellees:	Snyder H. Simon, Esq.
      (Kosrae & Kos. L. Ct.)	Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

	*    *    *    *

	HEADNOTES

Appellate Review  Briefs, Record, and Oral Argument
Vague generalizations of an appellant’s statement of issues  that the lower court decision was erroneous and contrary to law  are unhelpful, not only to the court, but also to the parties, and to effective advocacy of appellants’ position.  Alik v. Heirs of Alik, 21 FSM R. 606, 615 (App. 2018).

Appellate Review  Briefs, Record, and Oral Argument
The drafting of the statement of issues involved is the phase of appellate advocacy which calls for the greatest degree of skill, and is the part of the job most frequently botched by counsel.  In such instances, one often needs to read the whole of both briefs and then match one against the other in order to ascertain what the disputed question really is.  Alik v. Heirs of Alik, 21 FSM R. 606, 615 (App. 2018).

Appellate Review  Briefs, Record, and Oral Argument
Six tests are suggested for an effective statement of issues:  1) the issue must be stated in terms of the facts of the case; 2) the statement must eliminate all unnecessary detail; 3) it must be readily comprehensible on first reading; 4) it must eschew self-evident propositions; 5) it must be so stated that the opponent has no choice but to accept it as an accurate statement of the question; and 6) it should be subtly persuasive.  Alik v. Heirs of Alik, 21 FSM R. 606, 615 (App. 2018).

Appellate Review  Briefs, Record, and Oral Argument
A generalized statement of issues that just says that the order appealed from was erroneous and contrary to law says nothing in terms of the case’s facts; has eliminated not only all unnecessary detail but also all necessary detail; is not readily comprehensible; and is stated in the form of a self-evident proposition, and so is unhelpful.  Alik v. Heirs of Alik, 21 FSM R. 606, 615 (App. 2018).

Appellate Review  Briefs, Record, and Oral Argument
When the appellants’ statement of issues on appeal are unhelpful, the appellate court may recast the issues on appeal.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  De Novo; Civil Procedure  Dismissal  Before Responsive Pleading
Whether a trial court erred by dismissing a complaint for failure to state a claim is an issue of law, which is reviewed de novo.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  De Novo; Civil Procedure  Summary Judgment
To review a summary judgment, the appellate court uses the same standard that the trial court initially used when it determined the summary judgment motion  it determines de novo whether genuine issues of material fact are absent and whether the prevailing party is entitled to judgment as a matter of law.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  De Novo
The question of whether the statute of limitations bars a claim is a question of law, which the appellate court reviews de novo.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  Abuse of Discretion; Appellate Review  Standard  Civil Cases  De Novo; Equity  Laches

An appellate court uses a two-part standard to review a laches defense since it is a mixed question of law and fact.  Whether the elements of laches have been established in any particular case is a factual determination which depends upon the circumstances, and calls for us to apply an abuse of discretion standard of review.  But whether, in view of the established facts, it would be equitable or unjust to the defendant to enforce the complainant’s right is a question of law that is reviewed de novo.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  Abuse of Discretion; Appellate Review  Standard  Civil Cases  De Novo; Equity  Estoppel; Equity  Waiver
Appellate review of the equitable defenses of estoppel and waiver is similar to appellate review of a laches equitable defense since they are mixed questions of law and fact.  An appellate court reviews an equitable estoppel defense for clear error for any factual findings and uses an abuse of discretion standard to review its application.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  De Novo; Appellate Review  Standard  Civil Cases  Factual Findings; Equity  Waiver
The issue of waiver is a mixed question of law and fact for which an appellate court uses a de novo review for the law and the clearly erroneous standard for the facts.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  De Novo
Which court is the proper forum for a case is generally a jurisdictional issue.  Jurisdictional issues are mainly questions of law, which the appellate court reviews de novo.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Appellate Review  Standard  Civil Cases  Abuse of Discretion
An appellate court reviews a trial court’s denial of a motion for a continuance under an abuse of discretion standard.  Alik v. Heirs of Alik, 21 FSM R. 606, 616 (App. 2018).

Civil Procedure  Dismissal
Rule 41(b) authorizes dismissals in only two circumstances  after the plaintiffs’ presentation of evidence at trial and for the plaintiffs’ failure to prosecute their case.  Alik v. Heirs of Alik, 21 FSM R. 606, 617 (App. 2018).

Civil Procedure  Motions
A written motion, except one that may be heard ex parte, and notice of the hearing thereof shall be served, with a memorandum of points and authorities, not later than 14 days before the time specified for the hearing.  Alik v. Heirs of Alik, 21 FSM R. 606, 617 (App. 2018).

Civil Procedure  Motions  For Enlargement
A motion to continue is a motion to enlarge time, and if made before the time prescribed, is a motion that may, under Rule 6(b)(1), be made ex parte.  Alik v. Heirs of Alik, 21 FSM R. 606, 617 (App. 2018).

Civil Procedure  Motions
A motion that can be made "without notice" is a motion that can made ex parte.  Alik v. Heirs of Alik, 21 FSM R. 606, 617 (App. 2018).

Civil Procedure  Motions  For Enlargement
A motion to continue should not be denied for the reason that it was made five days before the hearing when it certainly had shown cause for a continuance by showing that counsel were physically unable to appear at the prescribed time.  Alik v. Heirs of Alik, 21 FSM R. 606, 617 (App. 2018).

Civil Procedure  Motions  For Reconsideration; Judgments  Relief from Judgment
A motion to reconsider a final order made over ten days after entry of that order is a Rule 60(b) motion for relief from judgment.  Alik v. Heirs of Alik, 21 FSM R. 606, 617 (App. 2018).

Notaries; Property  Registered Land  Transfer
The Kosrae Land Court Rules (and good practice) require that all documents concerning transfer of title be notarized and submitted to the Registrar for recordation.  Each document must reflect the printed name and signature of each person signing the document, and the date of the signing.  Signatures which are executed at different times or in different locations must be notarized separately, and the signature page of each document may consist of as many duplicate pages as necessary for proper notarization.  The Registrar shall not accept any document which is not properly notarized.  Alik v. Heirs of Alik, 21 FSM R. 606, 618 (App. 2018).

Property  Registered Land  Transfer
When registered land is transferred, the parcel’s owner must surrender the certificate of title to the Registrar for title transfer.  A landowner’s (or the landowner’s heirs’) failure to surrender the old certificate of title could indicate that the landowner (or his heirs) do not intend to transfer land title.  Alik v. Heirs of Alik, 21 FSM R. 606, 618 (App. 2018).

Property  Registered Land
For registered land, strict compliance with the Torrens land registration system’s procedures is a must in order to claim the system’s benefits of a valid certificate of title with a title good against the world.  Alik v. Heirs of Alik, 21 FSM R. 606, 618 (App. 2018).

Property  Registered Land; Property  Registered Land  Transfer
When the "deed of gift" was not signed by all of the registered landowner’s heirs; when it was not signed by the registered owner, since he was deceased; when the "land deed," which did contain the (unnotarized) signatures of all the other heirs, did not show an unequivocal intent to do anything other than to permit the grantee to build a house on the parcel; since the "deed of gift" was in a doubtful form and the "land deed" was equivocal; and since the old certificate of title was not surrendered with the deed of gift when it was filed, the Land Court should not have issued a new certificate of title for parcel to the grantee.  Alik v. Heirs of Alik, 21 FSM R. 606, 618 (App. 2018).

Property  Registered Land  Transfer
Kosrae State Code § 11.612 does not apply to the transfer of registered land.  It governs only the registration of unregistered land.  Alik v. Heirs of Alik, 21 FSM R. 606, 619 (App. 2018).

Constitutional Law  Due Process; Property  Registered Land  Transfer
When the owner of registered land sells or gifts registered land, all that is needed for a valid transfer is the delivery to the Land Court of a properly notarized deed (with each needed signature properly notarized) combined with the surrender of the grantor’s old duplicate certificate of title.  Proper and strict compliance with those requirements is the due process that is sufficient (and required) for the valid issuance of a new certificate of title to the grantee.  Alik v. Heirs of Alik, 21 FSM R. 606, 619 (App. 2018).

Property  Registered Land  Transfer

If the landowner’s old certificate has been lost, mislaid, or destroyed, the proper practice to transfer title is for the Land Court, following its practices and procedures for replacing a lost, mislaid, or destroyed certificate, to issue and deliver to the would-be grantor a new duplicate certificate of title so that the would-be grantor may then turn around and surrender that certificate to the Land Court at the same time that the deed is presented for registration.  Alik v. Heirs of Alik, 21 FSM R. 606, 619 (App. 2018).

Property  Registered Land Transfer
Whenever a landowner of registered land wishes to transfer an interest in that land (such as subjecting it to a lien such as a mortgage) or to transfer title, it is the landowner’s duty in requesting any transfer to submit or surrender his or her owner’s duplicate certificate for proper endorsement or cancellation.  When the landowner has not done so, the landowner’s intent might reasonably be questioned and the Land Court ought not to act.  Alik v. Heirs of Alik, 21 FSM R. 606, 619 (App. 2018).

Property  Registered Land; Property  Registered Land  Transfer
The proper way for someone to acquire a valid certificate of title for a decedent’s previously registered parcel is for the Kosrae Land Court to conduct an heirship proceeding to determine the landowner’s heirs and to issue a new certificate of title in those persons’ names.  Then, if those persons wish to transfer the parcel’s title (give or sell) to one of themselves, they will execute a deed, with all their signatures properly notarized, and then present that deed to the Land Court while also surrendering their new certificate of title to the Land Court.  Alik v. Heirs of Alik, 21 FSM R. 606, 619 (App. 2018).

Property  Registered Land
A certificate of title must set forth the names of all persons holding an interest in the land.  Alik v. Heirs of Alik, 21 FSM R. 606, 619 n.4 (App. 2018).

Property  Registered Land
When the record supports a prima facie case that a certificate of title was issued without the process due the plaintiffs as the supposed grantors and that therefore title was fraudulently registered in another’s name, they may challenge that certificate of title’s validity.  Alik v. Heirs of Alik, 21 FSM R. 606, 619 (App. 2018).

Civil Procedure  Dismissal  Before Responsive Pleading; Property  Registered Land  Transfer
When the alleged fraudulent registration of a parcel is based on the alleged misrepresentation in the "deed of gift" that the "grantor" had the ability to grant and convey full title to parcel to the grantee, the plaintiffs have stated a claim for which they could be granted relief.  Alik v. Heirs of Alik, 21 FSM R. 606, 619-20 (App. 2018).

Civil Procedure  Injunctions; Torts  Damages; Torts  Negligence
When a defendant is found negligent, the remedy is money damages, but if irreparable future harm is threatened, a court, by injunction, may also act to prevent future damage.  Alik v. Heirs of Alik, 21 FSM R. 606, 620 & n.6 (App. 2018).

Civil Procedure  Parties; Property  Registered Land
When the plaintiffs do not seek money damages, but only seek undisturbed registered title to a parcel, the entity alleged to be negligent, the Kosrae Land Court, should not be a party to the action.  Alik v. Heirs of Alik, 21 FSM R. 606, 620 (App. 2018).

Property  Registered Land
In past practice, the Kosrae Land Commission, was often named a defendant when a plaintiff complained about one of its acts or omissions because plaintiffs often named administrative agencies as defendants when they sought judicial review of that administrative agency’s act or omission.  But the Kosrae Land Court, unlike the Kosrae Land Commission, is not an administrative agency.  It is a court.  It should not be a party to the action.  Alik v. Heirs of Alik, 21 FSM R. 606, 620 (App. 2018).

Appellate Review  Parties; Civil Procedure  Parties; Mandamus and Prohibition
A lower court should not be made a defendant when seeking judicial review of its actions in a higher court.  Judicial review of a lower court’s acts or omissions is properly accomplished by an appeal to a higher court or, on rare occasion, by a petition for a prerogative writ, such as prohibition or mandamus.  Alik v. Heirs of Alik, 21 FSM R. 606, 620 (App. 2018).

Appellate Review  Parties; Civil Procedure  Parties; Property  Land Court
The Land Court is not a proper party  a real party in interest  to any dispute over title because no judgment against the Land Court could ever give the plaintiffs the relief they seek  ownership of a parcel, which can only be done by an action against the current registered owner or his heirs, if he is deceased.  Alik v. Heirs of Alik, 21 FSM R. 606, 620 (App. 2018).

Appellate Review  Standard  Civil Cases
An appellate court may affirm a trial court decision on a different theory or on different grounds when the record contains adequate and independent support for that basis.  Alik v. Heirs of Alik, 21 FSM R. 606, 620 n.7 (App. 2018).

Jurisdiction; Statutes of Limitation; Torts  Governmental Liability
The statute of limitations does not affect a court’s jurisdiction because generally a statute of limitation is not jurisdictional unless it is a limitations period for claims against the government.  Alik v. Heirs of Alik, 21 FSM R. 606, 621 (App. 2018).

Jurisdiction  Subject-Matter; Statutes of Limitation
Raising a statute of limitation as a bar to a remedy does not deprive a court of jurisdiction to hear the cause in the first instance; the court could not adjudicate the question of proper application of the statute if it did not have subject matter jurisdiction.  Alik v. Heirs of Alik, 21 FSM R. 606, 621 (App. 2018).

Statutes of Limitation  Which Limitation Applies
To determine which statute of limitation to apply, a court must look to the nature of the case.  There are three ways to determine a case’s nature for statute of limitations purposes:  1) the type of interest allegedly harmed, or 2) the right sued upon, or 3) the remedy sought, rather than the theory of recovery.  What is significant for statute of limitations purposes is the primary interest that was invaded by the defendant’s wrongful conduct.  Alik v. Heirs of Alik, 21 FSM R. 606, 621 (App. 2018).

Statutes of Limitation  Which Limitation Applies
When, under any of the three ways to analyze an action’s nature for limitations purposes, it could not be plainer that the case can only be an action to recover an interest in land, the twenty-year statute of limitations to recover land or an interest in land applies.  Alik v. Heirs of Alik, 21 FSM R. 606, 621 (App. 2018).

Statutes of Limitation  Which Limitation Applies
When the type of interest allegedly harmed is land ownership; when the remedy that the plaintiffs seek is to recover ownership of, and title to, a parcel, which they contend they lost through another’s wrongful acts; and, when the primary interest that the other allegedly invaded, by his alleged wrongful conduct, was his siblings’ right to joint registered ownership, good against the world, of the parcel, the action’s nature, for statute of limitations purposes, as one to recover interests in land and that does not change because the theory of recovery might be fraud, or due process violation, or negligence, or some other theory.  Alik v. Heirs of Alik, 21 FSM R. 606, 621 (App. 2018).

Statutes of Limitation  Which Limitation Applies
As a matter of policy, if there is a substantial question or reasonable dispute about which of two or more statutes of limitation within the jurisdiction should be applied, the doubt should be resolved in favor of the application of the statute containing the longest limitation period.  Alik v. Heirs of Alik, 21 FSM R. 606, 622 (App. 2018).

Equity  Laches
The equitable doctrine of laches is usually invoked only when the applicable statutory limitations period has not yet run, and not only depends upon considerations of fairness, justice, and equity, but it also cannot be invoked when the party raising it has failed to act properly or is said to have "unclean hands."  Alik v. Heirs of Alik, 21 FSM R. 606, 622 (App. 2018).

Civil Procedure  Summary Judgment; Equity  Laches
Laches is rarely subject to summary judgment, and can rarely be resolved without some preliminary evidentiary inquiry.  Generally, when a defendant asserts a laches defense, a full hearing of testimony on both sides of the issue is required.  Alik v. Heirs of Alik, 21 FSM R. 606, 622 (App. 2018).

Civil Procedure  Summary Judgment  Grounds  Particular Cases; Equity  Laches
Summary judgment (or dismissal) on a laches ground is particularly inappropriate when the plaintiffs’ allegations, on their face, do not show that the plaintiffs neglected to or delayed in asserting their claims once they learned that another claimed to be the sole landowner and when there was no evidentiary inquiry in the trial court, although the case required one to prove the laches defense.  Alik v. Heirs of Alik, 21 FSM R. 606, 622 (App. 2018).

Equity  Estoppel; Equity  Laches
The doctrines of laches and estoppel are closely allied.  Laches is a form of equitable estoppel based on an unreasonable delay by a party in asserting a right.  Alik v. Heirs of Alik, 21 FSM R. 606, 622 (App. 2018).

Equity  Estoppel; Equity  Laches
While laches focuses on the reasonableness of the plaintiff’s delay in suit, equitable estoppel focuses on what the defendant reasonably has been led to believe from the plaintiff’s conduct.  While laches requires the passage of an unreasonable period of time in filing suit, estoppel does not.  While estoppel requires reliance, laches generally does not.  Alik v. Heirs of Alik, 21 FSM R. 606, 622 (App. 2018).

Civil Procedure  Summary Judgment  Grounds  Particular Cases; Equity  Estoppel
When there was no evidence, particularly undisputed evidence, that the plaintiffs’ conduct led the defendants to reasonably believe or to rely on that conduct, summary judgment on an estoppel defense was inappropriate because a determination of estoppel generally involves questions of fact.  Alik v. Heirs of Alik, 21 FSM R. 606, 622-23 (App. 2018).

Equity  Waiver
Waiver is the intentional relinquishment of a known right.  Ordinarily, the question of waiver is one of fact.  Alik v. Heirs of Alik, 21 FSM R. 606, 623 (App. 2018).

Equity  Waiver
A waiver must be voluntary, which implies knowledge of the right, claim, or thing waived and that the plaintiffs knew they were waiving that right.  Alik v. Heirs of Alik, 21 FSM R. 606, 623 (App. 2018).

Equity  Waiver
Waiver of a right or privilege is not presumed.  Waivers of rights are inherently suspect, and will not be inferred from doubtful and ambiguous factors.  Alik v. Heirs of Alik, 21 FSM R. 606, 623 (App. 2018).

Civil Procedure  Summary Judgment  Grounds  Particular Cases; Equity  Waiver
When the documentary evidence in the pleadings does not show that there is no genuine issue about whether all of the plaintiffs voluntarily and intentionally relinquished their known right to registered title to the parcel, summary judgment that waiver barred the plaintiffs’ claim was inappropriate.  Alik v. Heirs of Alik, 21 FSM R. 606, 623 (App. 2018).

Civil Procedure  Venue; Jurisdiction  Subject-Matter
Courts that have subject matter jurisdiction over a case but not venue, have the inherent power to transfer the case to a court with both.  Alik v. Heirs of Alik, 21 FSM R. 606, 623 (App. 2018).

Courts; Property  Land Court
Although the Kosrae Legislature did not vest exclusive jurisdiction in the Kosrae Land Court, it did create the Land Court as the court with original jurisdiction over land matters, and reserved appellate jurisdiction in the Kosrae State Court.  Alik v. Heirs of Alik, 21 FSM R. 606, 623 (App. 2018).

Courts; Property  Land Court
When the proper place for a suit to have started was the Kosrae Land Court, but it was filed on the Kosrae State Court, the Kosrae State Court should have dismissed the Kosrae Land Court and the Kosrae state government as parties and, since it is the superior court in a unified court system, transferred the case from its docket to the Land Court’s docket.  Alik v. Heirs of Alik, 21 FSM R. 606, 623 (App. 2018).

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	COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This appeal is from the Kosrae State Court’s November 30, 2015 dismissal of Kosrae State Court Civil Action No. 57-15 and its February 1, 2016 denial of reconsideration of that dismissal.  We affirm the dismissal of the Kosrae Land Court and the Kosrae state government, but we reverse the dismissal of the claims against the other defendants and remand the matter to the Kosrae State Court for it to transfer the case to the Kosrae Land Court.

	I.  Background

This case involves land in Inposral, Utwe, Kosrae designated as Parcel No. 004-U-11.  On March 14, 1988, the Kosrae Land Commission issued a certificate of title for that parcel, naming Rentul Alik as the owner in fee simple.1  Rentul Alik died intestate on February 23, 2001.  No heirship proceeding was conducted for Parcel No. 004-U-11.  Rentul Alik’s children continued to live there and use the land.

One of Rentul Alik’s sons, Moses R. Alik, wanted to build a home for his family on Parcel No. 004-U-11.  He sought financing from Farmers Home.  To assist his application, eleven heirs of Rentul Alik signed, on February 3, 2002, a Kosraean language document (with an English language title of "Land Deed"), which read in its entirety:

We, heirs of Rendul Alik came to an agreement to authorize a land parcel located in Inposral, Utwe for the purpose of having Moses Rendul to build his house that is granted through a program called Farmers Home.  For that reason, we all signed this document showing our endorsement to his home construction.

Compl. Ex. A.  Also on February 3, 2002, Saimon Alik signed, as the grantor, an English-language form document, titled "Deed of Gift," in which, by its terms, Saimon Alik granted and conveyed Parcel No. 004-U-11 to his "eldest brother," Moses Alik.  Saimon Alik was the only one who signed as grantor.  Moses Alik signed as grantee.  None of the signatures in these two documents were notarized.  These documents were filed with the Kosrae Land Court in May 2002.  On July 17, 2002, the Kosrae Land Court, the successor to the Kosrae Land Commission, issued a new certificate of title for Parcel No. 004-U-11, naming Moses R. Alik as the owner.

Moses Alik then built a house on Parcel No. 004-U-11.  At some later date not in the record, Moses Alik died.  His widow, Josella, continued living in the Parcel No. 004-U-11 house.  When she remarried, the other Rentul Alik heirs questioned her right to remain there.  But Josella (in December 2014) told them that Moses Alik was the sole owner of Parcel No. 004-U-11 and that they had no rights over the land.  So, in January 2015, Saimon Alik then visited the Kosrae Land Court and saw the 2002 certificate of title with Moses R. Alik as Parcel No. 004-U-11’s sole owner.

On August 7, 2015, Saimon Alik and ten other Rentul Alik heirs filed suit in the Kosrae State Court against Moses Alik’s three children, as heirs of Moses Alik;2 the Kosrae Land Court; and the Kosrae state government.  They sought to quiet title to Parcel No. 004-U-11 and alleged that their due process rights had been violated; that fraud and misrepresentation were committed; and that the Land Court had been negligent.  They requested that the Moses Alik certificate of title be invalidated; that they be adjudged the true owners of Parcel No. 004-U-11;3 that a restraining order bar the defendants from interfering with their use of Parcel No. 004-U-11; and that they be awarded attorney’s fees and costs.

The defendants answered.  Trial was set for October 14, 2015, but the parties, on October 12, 2015, stipulated to a continuation.  On November 6, 2015, the defendants jointly moved for dismissal or, alternatively, for summary judgment.

On November 30, 2015, the trial court granted the motion and dismissed the case.  It ruled that, because of Moses Alik’s certificate of title, the plaintiffs failed to state a claim on which relief could be granted and that, if the plaintiffs had stated a claim, then their action was barred by the statute of limitations, estoppel, laches, and waiver.  Order of Dismissal of Action at 2 (Kos. S. Ct. Tr. Nov. 30, 2015).  It also ruled that "[t]he proper forum for this action was a proper and timely appeal with [sic] the Kosrae Land Court which Plaintiffs have never filed."  Id.  The plaintiffs appealed.  This appeal was docketed as Appeal Case No. K1-2016.

On January 6, 2016, the plaintiffs moved for reconsideration of the dismissal.  The defendants’ opposition was filed January 14, 2016.  On January 18, 2016, the court gave notice that the motion would be heard on January 27, 2016.  On January 22, 2016, the plaintiffs moved to continue the hearing because, of their two co-counsel, one would be in Yap on that date for the FSM Development Bank’s quarterly board meeting as he was a board member, and the other, who resided on Pohnpei, had recently injured her arm, which was in a sling, and was unable to travel.  On February 1, 2016, the court denied the motion to continue, because it had been filed only five days before the scheduled hearing date, and denied the motion to reconsider because it presented the same arguments, ruling that its dismissal was based on Civil Procedure Rule 41(b).  Order Denying Mot. to Continue, Order of Dismissal at 1 (Feb. 1, 2016).

The plaintiffs appealed.  This appeal was docketed as Appeal Case No. K3-2016.  Appeal Case No. K3-2016 was later consolidated with Appeal Case No. K1-2016.

	II.  Issues Presented

The appellants contend that the Kosrae State Court’s November 30, 2015 dismissal was erroneous and contrary to law and not based on substantial evidence; that its February 1, 2016 denial of reconsideration was also erroneous and contrary to law and not based on substantial evidence; and that those orders violated their constitutional due process and other statutory rights.

Such vague generalizations of an appellant’s statement of issues  that the lower court decision was erroneous and contrary to law  seem to be becoming more common lately.  We find it to be unhelpful, not only to us, but also to the parties, and to effective advocacy of appellants’ position.  We realize that "’the drafting of the statement of issues involved is the phase of appellate advocacy which calls for the greatest degree of skilland . . . this part of the job is the one most frequently botched by counsel.’"  Robert J. Martineau, Appellate Practice and Procedure 392 (1987) (quoting Cooper, Stating the Issue in Appellate Briefs 49 A.B.A.J. 180 (1963)).  In such instances, one would often need "to read the whole of both briefs and then match one against the other in order to ascertain what the disputed question really is."  Id.  Six tests were suggested for an effective statement of issues:

1.  The issue must be stated in terms of the facts of the case.

2.  The statement must eliminate all unnecessary detail.

3.  It must be readily comprehensible on first reading.

4.  It must eschew self-evident propositions.

5.  It must be so stated that the opponent has no choice but to accept it as an accurate statement of the question.

6.  It should be subtly persuasive.

Id. at 393.  A generalized statement of issues that just says that the order appealed from was erroneous and contrary to law says nothing in terms of the case’s facts; has eliminated not only all unnecessary detail but also all necessary detail; is not readily comprehensible; and seems to be stated in the form of a self-evident proposition.  The statement of issues would have been more helpful if issues had been stated in terms of what was the error of law, in relation to what facts, that the lower court committed.

We therefore recast the issues on appeal as: 1) whether the plaintiffs’ complaint stated a claim for which the court could have granted relief; 2) whether the claim was barred by the statute of limitations; 3) whether the claim was barred by estoppel, laches, and waiver; 4) whether the Kosrae State Court or the Kosrae Land Court was the proper forum for the case; and 5) whether the trial court should have continued the January 27, 2016 motion hearing or whether reconsideration should have been denied and dismissal retained since plaintiffs’ counsel did not appear for that hearing.

	III.  Standards of Review

The trial court dismissed the plaintiffs’ case for the failure to state a claim on which it could grant relief, and alternatively, granted the defendants summary judgment on their statute of limitations, laches, estoppel, and waiver defenses.  Whether a trial court erred by dismissing a complaint for failure to state a claim is an issue of law, which we review de novo.  Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 411 (App. 2000).  To review a summary judgment, we use the same standard that the trial court initially used when it determined the summary judgment motion  we determine de novo whether genuine issues of material fact are absent and whether the prevailing party is entitled to judgment as a matter of law.  Sam v. FSM Dev. Bank, 20 FSM R. 409, 415 (App. 2016); Andrew v. Heirs of Seymour, 19 FSM R. 331, 337 (App. 2014).

The question of whether the statute of limitations bars a claim is a question of law, which we review de novo.  Tilfas v. Kosrae, 21 FSM R. 81, 86 (App. 2016); Kosrae v. Skilling, 11 FSM R. 311, 315 (App. 2003).  We use a two-part standard to review a laches defense since it is a mixed question of law and fact.

Whether the elements of laches have been established in any particular case is a factual determination which depends upon the circumstances, and calls for us to apply an abuse of discretion standard of review.  But whether, in view of the established facts, it would be equitable or unjust to the defendant to enforce the complainant’s right is a question of law that we review de novo.

Skilling, 11 FSM R. at 318.

Our review of the equitable defenses of estoppel and waiver is similar to our review of a laches equitable defense since they are mixed questions of law and fact.  We review an equitable estoppel defense for clear error for any factual findings and use an abuse of discretion standard to review its application.  See, e.g., City of North Oaks v. Sarpal, 797 N.W.2d 18, 23-24 & n.5 (Minn. 2011) (collecting cases).  The issue of waiver is also a mixed question of law and fact for which we use a de novo review for the law and the clearly erroneous standard for the facts.  See e.g., Sandler v. AII Acquisition Corp., 954 F.2d 382, 384-85 (6th Cir. 1992).

Which court is the proper forum for a case is generally a jurisdictional issue.  Jurisdictional issues are mainly questions of law, which we review de novo.  Andrew, 19 FSM R. at 337.

And we review the trial court’s denial of the plaintiffs’ motion for a continuance under an abuse of discretion standard.  See Heirs of Benjamin v. Heirs of Benjamin, 17 FSM R. 621, 628 (App. 2011) (motion for enlargement of time subjected to abuse of discretion review).

	IV.  Analysis

A.  Motions for Reconsideration and Continuance

The trial court denied continuance of the January 27, 2016 motion hearing because the motion to continue was filed only five days before the hearing date.  It also stated that the dismissal was based on Kosrae Civil Procedure Rule 41(b).

We conclude that the mention of Rule 41(b) must be a clerical error since the defendants’ motion, which the trial court granted, moved for dismissal for the plaintiffs’ failure to state a claim, which would be a dismissal under Rule 12(b)(6), or alternatively, for summary judgment, which would have been a dismissal under Rule 56.  Rule 41(b) authorizes dismissals in only two circumstances  after the plaintiffs’ presentation of evidence at trial and for the plaintiffs’ failure to prosecute their case, neither of which circumstances occurred in this case.  The case never went to trial, and the plaintiffs diligently pursued this litigation.

The defendants, relying on Kosrae Civil Procedure Rule 6(d), contend that the denial of a continuance was proper because the motion to continue was made less than fourteen days before the hearing.  The plaintiffs correctly point out that that would have been impossible since the order setting the hearing was entered only nine days before the hearing date.  Also, Rule 6(d), by its terms, does not apply.  It provides that:  "A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served, with a memorandum of points and authorities, not later than 14 days before the time specified for the hearing, unless a different period is fixed by these rules . . . ."  Kos. Civ. R. 6(d).  The written motion to be heard  the motion to reconsider  was filed and served over fourteen days before the scheduled hearing date.

A motion to continue is a motion to enlarge time, and if made before the time prescribed, is a motion that may, under Rule 6(b)(1), be made ex parte.  That rule provides: "the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed . . . ."  Kos. Civ. R. 6(b).  A motion that can be made "without notice" is a motion that can made ex parte.  And the motion to continue certainly had "cause shown" for a continuance  counsel were physically unable to appear at the prescribed time.  Thus, the motion to continue should not have been denied for the reason given  that it was made five days before the hearing.

The defendants contended at oral argument, that the November 30, 2015 dismissal is not before us because the motion to reconsider was the Kosrae State Court equivalent of a Rule 59 motion and, under FSM Appellate Rule 4(a)(4), "[a] notice of appeal filed before the disposition of [a timely Rule 59] motion[] shall have no effect.  A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above."  See Alanso v. Pridgen, 15 FSM R. 597, 599-600 (App. 2008) (notice of appeal filed before the disposition of a Kosrae Rule 59 motion has no effect; a new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion).

We must reject this contention.  Not only did the plaintiffs-appellants file a new notice of appeal after the trial court denied reconsideration (docketed Appeal Case No. K3-2016), but also, the plaintiffs’ motion to reconsider was not a timely Rule 59, since those must be made within ten days of the judgment to be reconsidered.  A motion to reconsider a final order made over ten days after entry of that order is a Rule 60(b) motion for relief from judgment, Berman v. College of Micronesia-FSM, 15 FSM R. 582, 588 (App. 2008), after the denial of which no new notice of appeal is needed for us to hear the original appeal.  Both the original dismissal and the reconsideration are thus before us.  Turning to the dismissal’s merits, we conclude that the motion to reconsider should have been granted even if a continuance was denied.

B.  Whether Plaintiffs Stated a Claim for Relief

The trial court concluded that the plaintiffs failed to state a claim because the plaintiffs’ claims "seeking to invalidate the certificate of title are essentially unsupported by facts or law."  Order of Dismissal of Action at 2 (Kos. S. Ct. Tr. Nov. 30, 2015).

1.  Documentary Record of Transfer to Moses Alik

The documentary record is more supportive than the trial court indicated.  We conclude that the plaintiffs did, based on their allegations, the documentary evidence, and the law, state a claim on which they might be granted relief.  That is because more than one aspect of the Moses Alik transaction should have alerted the Land Court that something might be amiss when the land deed and the deed of gift were filed.  The proper procedure was not followed.  The Land Court Rules (and good practice) requires that:

All documents . . . concerning transfer of title shall be notarized and submitted to the Registrar for recordation.  Each document shall reflect the printed name and signature of each person signing the document, and the date of the signing.  Signatures which are executed at different times or in different locations must be notarized separately.  The signature page of each document may consist of as many duplicate pages as necessary for proper notarization.

Kos. L. Ct. R. 13.B.  Since "[t]he Registrar shall not accept any document which is not properly notarized," Kos. L. Ct. R. 13.C, the Land Court probably should not have accepted for filing the deed of gift in this form, and if it did accept it for filing, should not have acted on it.

Under Land Court Rule 13, when registered land is transferred, "[t]he owner of the parcel must surrender the Certificate of Title to the Registrar for title transfer."  Kos. L. Ct. R. 13.A.  For registered land, strict compliance with the Torrens land registration system’s procedures is a must in order to claim the system’s benefits of a valid certificate of title with a title good against the world.  See In re Engichy, 11 FSM R. 520, 531 (Chk. 2003).  But no one ever surrendered Rentul Alik’s certificate of title.  Despite this, the Land Court transferred title and issued the grantee (Moses Alik) a new certificate of title.  A landowner’s, or the landowner’s heirs’, failure to surrender the old certificate of title could well indicate that the landowner, or his heirs, do not intend to transfer land title.

Even if it had been accompanied by the surrender of Rentul Alik’s certificate of title, there are other defects in the transaction.  The "deed of gift" was not signed by all of the other Rentul Alik heirs.  It was only signed by Saimon Alik.  It was not signed by the registered owner, Rentul Alik, since he was deceased.  The "land deed," which does contain the (unnotarized) signatures of all the other Rentul Alik heirs, does not show an unequivocal intent to do anything other than to permit Moses Alik to build a house on Parcel No. 004-U-11.  Since the "deed of gift" was in a doubtful form, since the "land deed" was equivocal, and since the old certificate of title was not surrendered with the deed of gift when it was filed, the Land Court should not have issued Moses Alik a certificate of title for Parcel No. 004-U-11.

2.  Due Process and Transfer to Moses Alik

The plaintiffs contend that their due process rights were violated because the Land Court did not follow the hearing and notice procedures in Kosrae State Code § 11.612 before issuing the certificate of title to Moses Alik.  That statutory provision does not apply here.  It governs only the registration of unregistered land.  Parcel No. 004-U-11 had already been registered.

When the owner of registered land sells or gifts registered land, all that is needed for a valid transfer is the delivery to the Land Court of a properly notarized deed (with each needed signature properly notarized) combined with the surrender of the grantor’s old duplicate certificate of title.  Proper and strict compliance with those requirements is the due process that is sufficient (and required) for the valid issuance of a new certificate of title to the grantee.

On rare occasions, the landowner’s old certificate may have been lost, mislaid, or destroyed.  The proper practice, then, would be for the Land Court, following its practices and procedures for replacing a lost, mislaid, or destroyed certificate, to issue and deliver to the would-be grantor a new duplicate certificate of title so that the would-be grantor may then turn around and surrender the certificate to the Land Court at the same time that the deed is presented for registration.  See In re Engichy, 12 FSM R. 58, 70 (Chk. 2003) (if a landowner’s certificate has been lost or destroyed, there is a method whereby he may obtain a new duplicate certificate for submission).

Whenever a landowner of registered land wishes to transfer an interest in that land (such as subjecting it to a lien such as a mortgage) or to transfer title, it is the landowner’s duty in requesting any transfer to submit or surrender his or her owner’s duplicate certificate for proper endorsement or cancellation.  Id.  When the landowner has not done so, the landowner’s intent might reasonably be questioned and the Land Court ought not to act.

The proper way for Moses Alik to have acquired a valid certificate of title for Parcel No. 004-U-11 would have been for the Kosrae Land Court to conduct an heirship proceeding to determine Rentul Alik’s heirs and to issue a new certificate of title in those persons’ names.4  Then, if those persons wished to transfer the Parcel No. 004-U-11 title (give or sell) to Moses Alik, they would execute a deed, with all their signatures properly notarized, and then present that deed to the Land Court while also surrendering their new certificate of title to the Land Court.5  None of that was not done.

3.  Claim for Relief Against the Moses Alik Heirs

Since the plaintiffs allege (and what we have seen of the record supports a prima facie case) that the Moses Alik certificate of title was issued without the process due the plaintiffs as the supposed grantors and that therefore title was fraudulently registered in Moses Alik’s name, they may challenge that certificate of title’s validity.  Cf. Luzama v. Ponape Enterprises Co., 7 FSM R. 40, 51 (App. 1995) (general rule is that a certificate of title can be set aside only on the grounds of fraudulent registration); Ruben v. Hartman, 15 FSM R. 100, 113 (Chk. S. Ct. App. 2007) (certificate of title can be set aside on ground of fraudulent registration).

Here, the alleged fraudulent registration of Parcel No. 004-U-11 is based on the alleged misrepresentation in the "deed of gift" that the "grantor" had the ability to grant and convey full title to Parcel No. 004-U-11 to the grantee.  Accordingly, we reverse the trial court’s ruling that the plaintiffs failed to state a claim for which they could be granted relief.  The plaintiffs’ complaint does state a claim for relief against the Moses Alik heirs that a court could grant.

4.  Land Court and State Government as Parties

That leaves the plaintiffs’ claims against the other two defendants.  The plaintiffs make no allegations about the Kosrae state government.  We can only assume that it was named as a defendant on a respondeat superior theory because the Kosrae Land Court, a governmental entity, was a co-defendant.  The only allegation against the Kosrae Land Court is that it was negligent in registering Parcel No. 004-U-11 in Moses Alik’s name.

When a defendant is found negligent, the remedy is money damages.  See Prosser and Keeton on the Law of Torts § 30, at 165 (W. Page Keeton et al. eds., 5th ed. 1984) (actual loss or damage must be proven; "[n]ominal damages . . . cannot be recovered in a negligence action, where no actual loss has occurred"6).  The plaintiffs, however, sought no money damages.  They only seek undisturbed registered title to Parcel No. 004-U-11.

Thus, the Kosrae Land Court should not be a party to this action.  Admittedly, in past practice, its predecessor, the Kosrae Land Commission, was often named a defendant when a plaintiff complained about one of its acts or omissions.  Plaintiffs often named administrative agencies as defendants when they sought judicial review of that administrative agency’s act or omission.  But the Kosrae Land Court, unlike the Kosrae Land Commission, is not an administrative agency.  It is a court.  A lower court should not be made a defendant when seeking judicial review of its actions in a higher court.  Judicial review of a lower court’s acts or omissions is properly accomplished by an appeal to a higher court or, on rare occasion, by a petition for a prerogative writ, such as prohibition or mandamus.

In this case, making the Land Court a party is pointless.  No judgment against the Land Court, no matter how favorable to the plaintiffs, could ever give them the relief they seek  ownership of Parcel No. 004-U-11.  That can only be done by an action against the current registered owner  Moses Alik  or, in this case, his heirs, since he is deceased.  The Land Court does not own, or claim to own, any interest in Parcel No. 004-U-11.  It is not a proper party  a real party in interest  to any dispute over title.

We therefore affirm7 the trial court’s dismissal of the plaintiffs’ claims against the Kosrae Land Court and the Kosrae state government.

C.  Applicable Statute of Limitations

The Kosrae State Court ruled that, even if the plaintiffs did state a claim for which it could grant relief, their claims were barred by the statute of limitations.  Since the trial court did not explain its reasoning for this ruling, we presume that it adopted the defendants’ arguments in this regard.

First, the defendants contend that the trial court lacked jurisdiction over the matter because the statute of limitations barred the action.  The statute of limitations does not affect a court’s jurisdiction.  "[A] statute of limitation generally is not jurisdictional unless it is a limitations period for claims against the government."  51 Am. Jur. 2d Limitation of Actions § 20 (rev. ed. 2000) (footnote omitted).  "Raising a statute of limitation as a bar to a remedy does not deprive a court of jurisdiction to hear the cause in the first instance; the court could not adjudicate the question of proper application of the statute if it did not have subject matter jurisdiction."  Id. § 21.  That brings us to the statute’s proper application in this matter.

The defendants argue that this is not an action for the recovery of an interest in land because the plaintiffs allege that they were wrongfully deprived of title to Parcel No. 004-U-11 through fraud, through a violation of their due process rights, and through negligence.  The defendants assert that the applicable limitations period is that for a fraud, or a due process violation, or for a negligence cause of action, which would be the six-year catchall period in Kosrae State Code § 6.2506.  They assert that the plaintiffs’ cause of action accrued thirteen years before  when the Kosrae Land Court issued the Moses Alik certificate of title, and thus the limitations period had run.8  We cannot agree.

To determine which statute of limitation to apply, we must look to the nature of the case.  There are three ways to determine a case’s nature for statute of limitations purposes.

The nature of an action for the purposes of a statute of limitations is determined by [1] the type of interest allegedly harmed, [or 2] the right sued upon, or [3] the remedy sought, rather than the theory of recovery.  What is significant for statute of limitations purposes is the primary interest that was invaded by the defendant’s wrongful conduct.

51 Am. Jur. 2d Limitation of Actions § 91, at 509 (rev. ed. 2000) (footnotes omitted) (numbering alterations added).  Under any of these three ways to analyze an action’s nature for limitations purposes, this case can only be an action to recover an interest in land.  It could not be plainer.

The type of interest allegedly harmed here is land ownership.  The right that the plaintiffs sue upon is their right to own  to hold registered title to  Parcel No. 004-U-11.  The remedy that the plaintiffs seek is to recover ownership of, and title to, Parcel No. 004-U-11.  They seek to recover land rights that they previously had, but which they contend they lost through Moses Alik’s wrongful acts.  And, the primary interest that Moses Alik allegedly invaded, by his alleged wrongful conduct, was his siblings’ right to joint registered ownership, good against the world, of Parcel No. 004-U-11, which they presumably would have had if there had been an heirship proceeding after Rentul Alik’s death.  Their theory of recovery might be misrepresentation or fraud, or due process violation, or negligence, or some other theory such as reformation of contract, but none of these theories of recovery change the action’s nature as one to recover interests in land.

The statute of limitations to recover land or an interest in land is twenty years.  Kos. S.C. § 6.2503(1)(b).  The plaintiffs’ 2015 filing is clearly within that twenty-year limitations period.  Even if it were not so plain that the twenty-year limitations period applies, policy considerations would then come into play.  The result would not change.

"As a matter of policy, if there is a substantial question or reasonable dispute as to which of two or more statutes of limitation within the jurisdiction should be applied, the doubt should be resolved in favor of the application of the statute containing the longest limitation period."  51 Am. Jur. 2d Limitation of Actions § 92 (rev. ed. 2000); see e.g., Federal Deposit Ins. Corp. v. Grant, 8 F. Supp. 2d 1275, 1298 (N.D. Okla. 1998) (courts "generally disfavor" the statute of limitations defense, so "any doubts as to which of two statutes is applicable in a given case should be resolved in favor of applying the statute containing the longer limitations period"); Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 898 P.2d 964, 968 (Ariz. 1995) (en banc) ("if there is doubt as to which of two limitations periods should apply, courts generally apply the longer"); cf. Guertin v. Dixon, 864 P.2d 1072, 1077 (Ariz. Ct. App. 1993) ("in order to invoke the rule applying the longer of two possible [limitations] periods, both statutory constructions must be reasonable").

Accordingly, we reverse the trial court’s ruling that the statute of limitations barred the plaintiffs’ claims.

D.  Laches

We also conclude that the trial court’s laches ruling must be vacated.  The equitable doctrine of laches is usually invoked only when the applicable statutory limitations period has not yet run, and not only depends upon considerations of fairness, justice, and equity, Andon v. Shrew, 15 FSM R. 315, 322 (Kos. S. Ct. Tr. 2007), but it also cannot be invoked when the party raising it has failed to act properly or is said to have "unclean hands," Kosrae v. Skilling, 11 FSM R. 311, 318 (App. 2003).

The trial court erred when it held the laches defense barred the plaintiffs’ action.  It made that ruling without any hearing, let alone an evidentiary hearing.  "Laches is rarely subject to summary judgment, and can rarely be resolved without some preliminary evidentiary inquiry."  Waddell v. Small Tube Prods., Inc., 799 F.2d 69, 74 n.2 (3d Cir. 1986) (citation omitted).  Generally, "[w]here a defendant asserts the laches defense, a full hearing of testimony on both sides of the issue is required."  27A Am. Jur. 2d Equity § 201 (1996).  There was no evidentiary inquiry in the trial court.  This case requires one to prove a laches defense.  Summary judgment (or dismissal) on laches is particularly inappropriate here since the plaintiffs’ allegations, on their face, do not show that the plaintiffs neglected to or delayed in asserting their claims once Moses Alik’s widow claimed that Moses Alik was Parcel No. 004-U-11’s sole landowner.

E.  Estoppel and Waiver

The doctrines of laches and estoppel are closely allied.  27A Am. Jur. 2d Equity § 147, at 623-24 (1996).  "Laches is a form of equitable estoppel based on an unreasonable delay by a party in asserting a right."  Squaw Mt. Cattle Co. v. Bowen, 804 P.2d 1292, 1297 (Wyo. 1991).  To the extent that the defendants’ estoppel defense entailed laches, summary judgment for the defendants on that defense is inappropriate as discussed above.

While laches focuses on the reasonableness of the plaintiff’s delay in suit, equitable estoppel focuses on what the defendant reasonably has been led to believe from the plaintiff’s conduct.  While laches requires the passage of an unreasonable period of time in filing suit, estoppel does not.  While estoppel requires reliance, laches generally does not.

27A Am. Jur. 2d Equity § 147, at 624 (1996).  Since there was no evidence, particularly undisputed evidence, that the plaintiffs’ conduct led the Moses Alik heirs to reasonably believe or to rely on that conduct, summary judgment is inappropriate.  "[A] determination of estoppel generally involves questions of fact."  28 Am. Jur. 2d Estoppel and Waiver § 192 (rev ed. 2000).

"Waiver is the intentional relinquishment of a known right." Squaw Mt. Cattle Co., 804 P.2d at 1297.  "Ordinarily, the question of waiver is one of fact."  28 Am. Jur. 2d Estoppel and Waiver § 227, at 630 (rev. ed. 2000).  A waiver must be voluntary, which implies knowledge of the right, claim, or thing waived and that the plaintiffs knew they were waiving that right.  Id.  "Waiver of a right or privilege is not presumed," because waivers of rights "are inherently suspect," and "will not be inferred from doubtful and ambiguous factors."  28 Am. Jur. 2d Estoppel and Waiver § 226 (rev. ed. 2000).

The documentary evidence in the pleadings does not show that there is no genuine issue of whether all of the plaintiffs voluntarily and intentionally relinquished their known right to registered title to Parcel No. 004-U-11.  Summary judgment that waiver barred the plaintiffs’ claim was inappropriate.

We therefore vacate the trial court’s decision that either waiver and estoppel barred the plaintiffs’ claims.

F.  State Court or Land Court Forum

The defendants further contend that this matter was filed in the wrong venue  that is, the plaintiffs should have filed it as a grievance or land claim in the Kosrae Land Court  and that the case was properly dismissed for that reason.  We note that courts that have subject matter jurisdiction over a case but not venue, have the inherent power to transfer the case to a court with both jurisdiction and power.  Dornbusch v. Commissioner, 860 F.2d 611, 613-14 (5th Cir. 1988) (collecting cases); Alexander v. Commissioner, 825 F.2d 499, 502 (D.C. Cir. 1987); Clark & Reid Co. v. United States, 804 F.2d 3, 7 (1st Cir. 1986).

The Kosrae state courts are a unified court system.  "[T]he Land Court, as described in Title 11, Chapter 6, is established as an inferior court within the Kosrae State Court system."  Kos. S.C. § 6.1501.  "The jurisdiction of the Land Court shall extend throughout the State of Kosrae and include all matters concerning the title of land and any interests therein."  Kos. S.C. § 11.604.  Although the Kosrae Legislature does not appear to have vested exclusive jurisdiction in the Kosrae Land Court, it did create the Land Court as the court with original jurisdiction over land matters, Kos. S.C. § 11.604, and reserved appellate jurisdiction in the Kosrae State Court.  See Kos. S.C. § 11.614 (governing appeals from the Land Court to the State Court).

We do agree with the Kosrae State Court that the proper place for this suit to have started was the Kosrae Land Court.  We do not, however, think this warranted dismissal.  Instead the Kosrae State Court should have dismissed the Kosrae Land Court and the Kosrae state government as parties and, since it is the superior court in a unified court system, transferred the case from its docket to the Land Court’s docket.  Therefore, we remand this matter to the Kosrae State Court with instructions for it to transfer the case to the Kosrae Land Court docket.

	V.  Conclusion

Accordingly, we affirm the dismissal of the Kosrae Land Court and the Kosrae state government, but we reverse the dismissal of the plaintiffs’ claims against the other defendants and remand the matter to the Kosrae State Court for it to transfer the case to the Kosrae Land Court.  The Kosrae State Court shall include in its instructions to the Kosrae Land Court that this matter is not barred by the statute of limitations and that the Kosrae Land Court and the Kosrae state government are not proper parties to this action.

The parties are to bear their own costs.

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