IN THE SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION

CIVIL APPEAL NO. 10-006
(Civil Action No. 02-103)

NGEREMLENGUI STATE PUBLIC LANDS AUTHORITY,
Appellant,

v.

TELUNGALK RA MELILT,

Appellee.

Decided: February 14, 2011

Counsel for Appellant: Raynold B. Oilouch
Counsel for Appellee: Yukiwo P. Dengokl

BEFORE: ARTHUR NGIRAKLSONG, Chief Justice; LOURDES F. MATERNE, Associate Justice; ROSE MARY SKEBONG, Associate Justice Pro Tem.

Appeal from the Trial Division, the Honorable KATHLEEN M. SALII, Associate Justice, presiding.

OPINION

PER CURIAM:

1. Appellant Ngeremlengui State Public Lands Authority (NSPLA) appeals a February 25, 2010 Decision and Order, in which the trial court denied its ROP R. Civ. P. 60(b) motion for relief from judgment. Specifically, Appellant claims that the trial court abused its discretion in determining that Appellant's Rule 60(b) motion was unreasonably delayed and failed to show extraordinary circumstances. For the reasons that follow, we AFFIRM the trial court's Decision and Order denying the motion for relief from judgment. 

I. BACKGROUND

2. This case initially began when Ngirutelchii Ngirngesechei filed Claim No. LC File No. 09-315-88, on March 30, 1988 for Ngerutelchii Clan. Six months later, Blau Skebong filed a claim on September 7, 1988 for Telungalk ra Melilt to land that was described in the same claim as part of Tochi Daicho Lot No. 1, known as Ngerikronger/Ngerkeronger. NSPLA also filed a claim to the land. These claims were then docketed as Land Court Case No. LC/K01-847 (In the Matter Of Determination Of Ownership Of Land Located In Ngeremlengui State And Commonly Known As Remeskang/Ibedechang/Ngerkerong, Which Is Part Of Tochi Daicho Lot No. 1 (part), Cadastral Lot No. 41346). These claims remained unresolved until the LCHO's term ended and the Land Court came into being. On March 1, 2002, Palau Public Lands Authority (PPLA) filed a motion with the Land Court to remove the case to the Supreme Court. Land Court Associate Judge Keptot granted the motion on the same day and issued an order transferring the case to the Supreme Court. 

3. In 2003, Ngerutelchii Clan withdrew its claim to the land, leaving only the claims of Telungalk ra Melilt and NSPLA for resolution. Trial was set for May 16, 2005, but on the morning of trial, the parties advised the Court that (1) recent developments rendered a trial on the merits moot, (2) NSPLA conceded that the land had been wrongfully taken during the Japanese administration, and (3) Telungalk ra Melilt was the original owner of the land prior thereto. On May 17, 2005, Telungalk ra Melilt filed its motion for summary judgment, which included in support a copy of the Deed of Transfer of the land from NSPLA to Telungalk ra Melilt. NSPLA did not file any response to the motion. Based on these facts, judgment was entered on July 21, 2005, declaring Telungalk ra Melilt as the fee simple owner of a parcel of land described as Cadastral Lot No. 048 K 01, former Cadastral Lot No. 41346, and consisting of 3,649,912 square meters. On February 13, 2006, the Land Court issued a Certificate of Title to the land, Ngerikronger, to Telungalk ra Melilt. 

4. Over four years after the entry of judgment, on August 12, 2009, NSPLA filed a motion for relief from judgment pursuant to Rule 60(b)(6) of the ROP Rules of Civil Procedure. NSPLA's Rule 60(b) motion included an affidavit of current Governor Wilson Ongos, which averred that former Governor John Skebong is a member of Telungalk ra Melilt, was governor of Ngeremlengui for sixteen consecutive years, and represented Ngeremlengui State Government during this period. At a hearing on the motion, Governor Ongos, as well as current and former NSPLA board members, testified that NSPLA's business records and minutes of previous meetings were poorly kept. After hearing evidence and arguments, the court denied NSPLA's motion for relief from judgment. 

5. In denying NSPLA's Rule 60(b) motion, the trial court found that NSPLA delayed unreasonably in bringing the motion and that NSPLA failed to show extraordinary circumstances warranting the setting aside of the judgment. The court acknowledged that Ngeremlengui's governor at the time of the 2005 judgment had been in office for sixteen years, is a member of Telungalk ra Melilt, and selected the members of NSPLA, the majority of whom were also members of Telungalk ra Melilt at the time of the transfer of Ngerikronger to Telungalk ra Melilt. The court also noted that the 2005 NSPLA board failed to comply with administrative procedures, follow rules for keeping written meeting minutes, and respond to PPLA's request for copies of records of NSPLA's meetings. Despite this evidence, the trial court concluded that NSPLA's Rule 60(b) motion was unreasonably delayed because after the new NSPLA board retained counsel in July 2008, it could have brought the motion sooner than August 2009. The trial court specifically emphasized that NSPLA has been a party to this case since 1998, it retained counsel throughout the life of the case, and its previous attorney, Roman Bedor, did not testify at the Rule 60(b) motion hearing as to the events that transpired, if any, following the entry of the 2005 judgment. 

II. STANDARD OF REVIEW

6. This Court reviews the trial court's denial of a Rule 60(b) motion for abuse of discretion. Masang v. Ngerkesouaol Hamlet, 13 ROP 51, 54 (2006). "An abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment." WCTC v. Kloulechad, 15 ROP 127, 129 (2008) (quoting Eller v. ROP, 10 ROP 122, 128-29 (2003)). Under this standard, a trial court's decision will not be overturned unless that decision was clearly wrong. Estate of Tmetuchl v. Aimeliik State, 13 ROP 176, 177 (2006). On appeal from the denial of a Rule 60(b) motion, this Court will review only whether the denial of the motion for relief from judgment was an abuse of discretion and will not evaluate the merits of the underlying judgment. Rdialul v. Kirk & Shadel, 12 ROP 89, 92 (2005). 

III. DISCUSSION

7. Appellant presents two overarching arguments in its appeal of the trial court's denial of its Rule 60(b) motion. First, Appellant argues that the trial court abused its discretion in finding that Appellant's motion was unreasonably delayed, and second, that the trial court abused its discretion in finding that there were no extraordinary circumstances warranting relief from judgment. 

8. Rule 60(b) of the ROP Rules of Civil Procedure allows "a party to move the trial court to set aside a judgment due to a number of factors, including mistake, inadvertence, excusable neglect, newly discovered evidence, and fraud." Estate of Tmetuchl v. Aimeliik State, 13 ROP at 177; see also ROP R. Civ. P. 60(b)(1)-(3). Subsection 6 of Rule 60(b) is the catch-all provision, which allows for relief from judgment "for any reason justifying relief from the operation of judgment." ROP R. Civ. P. 60(b)(6). As a threshold matter, a motion filed under Rule 60(b)(6) must be made within a reasonable time. Secharmidal v. Tmekei, 6 ROP Intrm. 83, 85 (1997). Relief under Rule 60(b)(6) is then granted "only under extraordinary circumstances." Irruul v. Gerbing, 8 ROP Intrm. 153, 154 (2000). In considering a Rule 60(b) motion, the decision lies within the discretion of the trial court. Sugiyama v. Ngirausui, 4 ROP Intrm. 177, 181 (1994). 

A. Appellant Unreasonably Delayed in Filing the Rule 60(b) Motion

9. Appellant presents three positions in its argument that the trial court abused its discretion in finding that the Rule 60(b) motion was not filed in a reasonable time. First, Appellant contends that the trial court misconstrued the standard for evaluating a Rule 60(b) motion because it combined the standards for evaluating reasonable time and extraordinary circumstances. Second, Appellant argues that the trial court gave significant weight to an improper factor, and third, that the trial court did not give proper weight to significant factors in considering the requirement of reasonable time. 

10. Appellant first contends that the trial court misconstrued the requirement that a Rule 60(b)(6) motion be brought in a reasonable time because it combined that requirement with the requirement of showing extraordinary circumstances. After careful review of the trial court's decision, this Court finds that although the trial court's decision states that the standard for a Rule 60(b)(6) motion includes two separate requirements, the court improperly combined these standards in applying them to the facts of the case. For instance, in discussing NSPLA's unreasonable delay, the trial court stated that it 

. . . finds no extraordinary circumstances present when, even assuming (1) the records were not available until a new administration appointed new board members and (2) once the new board members received finding to retain counsel and sign a retainer agreement in July of 2008, and (3) PPLA . . . was also having difficulty obtaining records from NSPLA, that this motion could not have been brought before August of 2009.

Decision and Order on NSPLA's Motion for Relief from Judgment at 6-7 (February 25, 2010). The court clearly began with a discussion of extraordinary circumstances, only to end the sentence with emphasis on the untimeliness of the motion. The court's mistake in the application of these standards is evident in a later passage of the decision where it notes that NSPLA has been a party to the case since 1988 and has been represented by counsel throughout the proceedings. Id. at 8. After criticizing NSPLA for its delay in bringing forth any procedural defects, the court concluded that "NSPLA has failed to demonstrate extraordinary circumstances warranting a setting aside of the judgment." Id. Again, this language shows that the trial court improperly combined its consideration of the reasonable time requirement with the requirement of extraordinary circumstances. 

11. Despite the trial court's improper application of the Rule 60(b) standard, this mistake is not fatal to the trial court's decision. Although this Court treats the requirement of reasonable time as a threshold matter, Secharmidal, 6 ROP Intrm. at 85, NSPLA presents no case law to support that a mistake in the application of the standard for Rule 60(b) amounts to an abuse of discretion. Indeed, as discussed further below, in applying the case law to the facts of this case, the court did not abuse its discretion in finding that Appellant unreasonably delayed in bringing its motion for relief from judgment. 

12. Appellant's second and third arguments are that the trial court abused its discretion in considering the reasonable time requirement by giving significant weight to an irrelevant and/or improper factor and by not giving proper weight to significant factors. Specifically, Appellant takes issue with the trial court's emphasis on the fact that the 2005 NSPLA board's counsel, Roman Bedor, was unavailable to testify at the hearing concerning the motion for relief from judgment. Appellant also asserts that the trial court did not give proper weight to the fact that once the new NSPLA board was assembled in March 2008, it immediately began taking action to recover the land in question by working with PPLA, searching for counsel, and holding meetings to discuss strategy to recover the land. Appellant added that it has been participating in other litigation, PPLA v. NSPLA, et al., Civil Action No. 08-311, to recover the land in question, in which it filed a cross-claim against Appellee, seeking to invalidate the summary judgment entered in this case, and a motion for relief from summary judgment. 

13. Contrary to Appellant's argument, the trial court did not abuse its discretion in weighing the facts of this case to arrive at its conclusion that Appellant unreasonably delayed in bringing the motion for relief from judgment. Although this Court has not yet set forth any factors regarding how to determine whether a Rule 60(b) motion is brought within a reasonable time, we look to relevant U.S. case law for guidance. In deciding whether a motion for relief from judgment has been filed within a reasonable time, a court will consider the following: (1) the length of the movant's delay, (2) the justification for the delay, and (3) the prejudice, if any, associated with the grant of relief. Farm Credit Bank of Baltimore v. Ferrera‑Goitia, 316 F.3d 62, 66 (1st Cir. 2003). 

14. Here, summary judgment was entered on July 21, 2005 and over four years later, Appellant filed its Rule 60(b) motion on August 12, 2009. The trial court attributed part of the delay to the change in governorship of Ngeremlengui and change in membership of the NSPLA board in 2008. Prior to 2008, John Skebong had been governor of Ngeremlengui for sixteen years, was a member of Telungalk ra Melilt, and had selected the members of the 2005 NSPLA board, the majority of whom were also members of Telungalk ra Melilt. In 2008, when Governor George Ongos was installed, he appointed new members to the NSPLA board, which convened immediately and retained its current counsel of record in July 2008. The trial court's decision appears to be lenient with Appellant for the time between July 2005 and July 2008 for not bringing the Rule 60(b) motion. Still the trial court is skeptical of the delay during those three years because Bedor, NSPLA's counsel at the time, did not testify at the hearing to set aside the judgment as to what transpired during that time. The trial court did not abuse its discretion in focusing on Bedor's failure to testify because his testimony would have painted a clearer picture as to why Appellant delayed during that time in filing its Rule 60(b) motion.

15. Assuming, arguendo, that Appellant was justified in not filing the Rule 60(b) motion prior to the new NSPLA board obtaining counsel in July 2008, Appellant is still responsible for explaining its delay of thirteen months between July 2008 and August 2009. Appellant's justification for waiting until August 2009 to bring the motion was that during the preceding thirteen months, it was engaged in other litigation in an attempt to recover the land that is the subject of this case. In November 2008, PPLA filed a complaint against NSPLA members, past and present, and Telungalk ra Melilt, over the land at issue. In January 2009, NSPLA filed its answer and cross-claim against Telungalk ra Melilt, seeking to invalidate the summary judgment in this case. Then, on August 10, 2009, two days before the Rule 60(b) motion was filed in this case, NSPLA filed, in Civil Action No. 08-311, a motion for relief from the summary judgment entered in this case. 

16. In support of its argument that it should receive credit for the time spent engaged in the second litigation, Appellant cites in its reply brief to Estate of Tmetuchl v. Siksei, 14 ROP 129 (2007). However, Appellant misconstrues and mischaracterizes the holding of that case. In Estate of Tmetuchl, Siksei was awarded a monetary judgment in 1997 for mahogany trees cut down by Tmetuchl on Siksei's property. Id. at 129-30. Then, in 1999, the Estate of Tmetuchl brought a second suit regarding the trees against Aimeliik State, alleging that Aimeliik State mistakenly authorized Tmetuchl to cut down Siksei's trees. Id. at 130. Aimeliik State defended that it owned the land, and in 2005, the trial court found that the State owned the land and entered judgment in favor of the State. Id. Then in 2006, the Estate of Tmetuchl filed a Rule 60(b) motion for relief from judgment in the first lawsuit, and the trial court denied the motion. Id. On appeal, this Court reversed the trial court, holding that the unfairness in the inconsistent judgments in the two lawsuits amounted to an extraordinary circumstance to warrant relief from judgment under Rule 60(b). Id. at 131. Contrary to Appellant's discussion of Estate of Tmetuchl, this Court made no comment in its opinion on the issue of reasonable time. Appellant's suggestion that this Court found no unreasonable delay because of Tmetuchl's and his Estate's actions in another related case is entirely speculative and unsupported. The holding of Estate of Tmetuchl makes clear that the Rule 60(b) motion for relief from judgment was granted because the unfairness of the inconsistent judgments was an extraordinary circumstance. Accordingly, Appellant's use of Estate of Tmetuchl as support for the proposition that its involvement in Civil Action No. 08-311 justified its 13-month delay in filing its Rule 60(b) motion is misplaced and unconvincing. 

17. Appellant's actions taken in the second litigation, although related to the instant action, did not relieve it of its obligation to file the Rule 60(b) motion in a timely manner in this case. As a general rule . . . actions taken in a wholly separate proceeding cannot effectively substitute for the actions required by the express terms of Rule 60(b)." Farm Credit Bank, 316 F.3d at 67. In Farm Credit Bank, a bank sought to foreclose on appellees' house, and the court entered a default judgment in favor of the bank. Id. at 64-65. Over six years later, appellees filed a Rule 60(b) motion seeking relief from judgment. Id. at 65. In the time leading up to the Rule 60(b) motion, a junior lienholder had brought a collection action against appellees, and appellees served a third-party complaint on the bank, alleging that the foreclosure sale of the house was null and void. Id. The Court of Appeals for the First Circuit held that appellees unreasonably delayed in bringing the Rule 60(b) motion for relief from the default judgment and that appellees' actions taken in the other case had no bearing on the timeliness of its Rule 60(b) motion. Id. at 67. 

18. Here, as in Farm Credit Bank, Appellant was engaged in a second litigation regarding the land in question, in which it filed a cross-claim against Appellee. Although the second litigation was related to the land in question, it resulted in the delay of bringing the motion for relief from judgment, for which Appellant alone is responsible because it chose to proceed with the second litigation rather than pursue any remaining legal action in the first case. Appellant cannot substitute its actions in the other litigation for the actions required of it under Rule 60(b). Thus, the trial court was justified in not giving significant weight to Appellant's decision to engage in other litigation concerning the land as a reason for its delay in filing the motion for relief from judgment.

19. Finally, although the parties did not brief the issue of prejudice toward Appellee, Appellee clearly would have been prejudiced had the trial court granted the Rule 60(b) motion because the judgment was entered over four years ago. Notwithstanding the consideration of prejudice, Appellant fails to set forth a legally sufficient justification for its delay in bringing the motion. Accordingly, the trial court did not abuse its discretion in finding that Appellant unreasonably delayed in bringing its motion for relief from judgment. 

B. NSPLA Failed to Show Extraordinary Circumstances to Warrant a Grant of Relief from Judgment 20. Although Appellant failed to meet the threshold question of bringing the Rule 60(b) motion within a reasonable time, the Court will still address the second element of extraordinary circumstances. Appellant presents several positions in support of its argument that the trial court abused its discretion in finding that there were no extraordinary circumstances to warrant granting the Rule 60(b) motion. Appellant contends that the 2005 NSPLA board did not have the proper authority to transfer the land, that the 2005 NSPLA board members had conflicts of interest in the transfer of the land, and that the trial court did not consider the public projects existing on the land before the transfer. Appellant also argues that it would have had a better claim for ownership of the land had it proceeded to trial. 

21. As stated above, Rule 60(b)(6) affords relief from a final judgment only under extraordinary circumstances. Irruul, 8 ROP Intrm. at 154. This Court has held that unfairness resulting from inconsistent judgments constitutes an extraordinary circumstance for which a Rule 60(b) motion may be granted. Estate of Tmetuchl v. Siksei, 14 ROP 129 (2007). However, a court will not grant relief under Rule 60(b) unless the movant establishes that circumstances beyond its control prevented timely action to protect its interests. Irruul, 8 ROP Intrm. at 154; see also 47 Am. Jur. 2d Judgments ' 704 (Rule 60(b)(6) is not available to relieve a party from free, calculated, and deliberate choices he or she has made in proceeding with the law suit."); 11 Charles Alan Wright et al., Federal Practice and Procedure ' 2864 (2d ed. 1995) ([T]he broad power granted by clause (6) is not for the purpose of relieving a party from free, calculated and deliberate choices he has made. A party remains under a duty to take legal steps to protect his own interests."). In other words, a movant's failure to take the proper legal steps to protect its own interests is not an extraordinary circumstance to justify relief from judgment. Irruul, 8 ROP Intrm. at 154. Also, the negligence of a plaintiff's attorney does not amount to an extraordinary circumstance for which relief from judgment may be granted. Sugiyama v. NECO Engineering, Ltd., 9 ROP 262, 266 (Tr. Div. 2001) (it is plaintiff, and not defendant, that should bear the burden of his attorney's alleged shortcomings'") (quoting Doe v. Doe, 6 ROP Intrm. 221, 224 (1997)). 

22. Here, the majority of NSPLA's arguments regarding extraordinary circumstances raise substantive issues, namely that NSPLA's transfer of land to Telungalk ra Melilt was invalid for various reasons. However, none of these arguments may be reviewed by this Court because, as discussed above, the review of a denial of a Rule 60(b) motion is purely procedural in nature and substantive issues are not to be addressed. See Rdialul, 12 ROP at 92. Accordingly, the Court cannot address the issues of whether the transfer was valid or whether the 2005 NSPLA board members had conflicts of interest. 

23. Even considering Appellant's other procedural arguments scattered throughout its opening brief, the trial court still did not abuse its discretion in finding that no extraordinary circumstances warranted granting the motion for relief from judgment. First, NSPLA's argument that NSPLA's former counsel, Bedor, wrongly advised the board as to its authority to transfer the land is without merit. Appellant must bear the burden of its counsel's shortcomings, and, as the trial court properly noted, any negligence or mistake on the part of its legal counsel is not an extraordinary circumstance for which the court will grant relief from judgment. 

24. Second, Appellant argues early on in its opening brief that it brought the Rule 60(b) motion within a reasonable time because it was engaged in other litigation to recover the land at issue in this case. Appellant later contends that it showed extraordinary circumstances because it would have a better claim for ownership of the land had it proceeded to trial. However, these arguments are without merit because Appellant simply failed to take the necessary legal steps to protect its interests. This is especially true if it purports to have a better claim for ownership of the land over Appellee. Appellant could have promptly filed the Rule 60(b) motion immediately after the 2008 NSPLA board obtained counsel, rather than first working with PPLA in the second lawsuit in an attempt to recover the land. Appellant's deliberate and calculated choice to move forward with the second legal action rather than protect its interests in this first case does not constitute an extraordinary circumstance. Third, as discussed in more detail in subsection A, this is not a case in which the unfairness of inconsistent judgments gives rise to an extraordinary circumstance for which relief from judgment may be granted. Indeed, in Civil Action No. 08-311, the second case concerning the land at issue, Justice Foster has withheld judgment pending the outcome of this appeal. 

25. Finally, it warrants mentioning here that there is no leniency or exception granted to the government under Rule 60(b)(6) of the ROP Rules of Civil Procedure. That government's procedures are necessarily cumbersome, without more, is not a ground for a motion for relief from judgment. Steinhoff v. Harris, 698 F.2d 270 (6th Cir. 1983). Indeed, if this Court recognized the lag inherent in government processessuch as the amount of time it took for the current NSPLA board to convene, obtain counsel and attempt to recover the land at issueas an extraordinary circumstance warranting relief from judgment, no judgment involving the government would ever be final. Id. Further, changes in the composition or political makeup of a government entity and the claim that justice would be better served by adjudicating the case on the merits also do not present extraordinary circumstances warranting relief from judgment. Mallory v. Eyrich, 922 F.2d 1273 (6th Cir. 1991) (reversing district court's grant of Rule 60(b)(6) motion because changes in the composition of the county board of elections and the claim that the issues raised should be fully developed at trial are not exceptional circumstances warranting relief from judgment entered pursuant to an offer of judgment). Accordingly, the trial court did not abuse its discretion in finding that no extraordinary circumstances exist to warrant granting Appellant's Rule 60(b)(6) motion. 

IV. CONCLUSION

26. For the reasons set forth above, the trial court's Decision and Order denying Appellant's Rule 60(b) motion for relief from judgment are hereby AFFIRMED.

SO ORDERED this 14th day of February, 2011. 

ARTHUR NGIRAKLSONG
Chief Justice

LOURDES F. MATERNE
Associate Justice

ROSE MARY SKEBONG
Associate Justice Pro Tem