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n_mar_i/1693634.json

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+"{\"id\": \"1693634\", \"name\": \"MARIA C. VAUGHN, Plaintiff/Appellee, vs. BANK OF GUAM, Defendant/Appellant\", \"name_abbreviation\": \"Vaughn v. Bank of Guam\", \"decision_date\": \"1990-06-06\", \"docket_number\": \"APPEAL NO. 89-004; CIVIL ACTION NO. 87-315\", \"first_page\": 160, \"last_page\": \"?\", \"citations\": \"1 N. Mar. I. 160\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DELA CRUZ, Chief Justice; VILLAGOMEZ, Justice; and KOSACK, Special Judge.\", \"parties\": \"MARIA C. VAUGHN, Plaintiff/Appellee, vs. BANK OF GUAM, Defendant/Appellant.\", \"head_matter\": \"June 6, 1990\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nMARIA C. VAUGHN, Plaintiff/Appellee, vs. BANK OF GUAM, Defendant/Appellant.\\nAPPEAL NO. 89-004\\nCIVIL ACTION NO. 87-315\\nCounsel for Appellant: Oliver W. Bordallo, Esquire\\nCounsel for Appellee: Reynaldo O. Yana, Esquire\\nAmicus Curiae: Theodore R. Mitchell, Esquire\\nBefore DELA CRUZ, Chief Justice; VILLAGOMEZ, Justice; and KOSACK, Special Judge.\", \"word_count\": \"2562\", \"char_count\": \"15094\", \"text\": \"DECISION and ORDER\\nPER CURIAM:\\nThis matter came on for hearing on May 3, 1990. Two motions filed by the appellant were entertained: a motion to dismiss the appeal without prejudice or, in the alternative, to hold it in abeyance; and, a motion for review by the full panel of the jurisdictional order issued on September 28, 1989, by a single justice.\\nPROCEDURAL BACKGROUND\\nA Commonwealth Trial Court (now the \\\"Superior Court\\\") jury rendered a verdict in favor of Vaughn on June 1, 1988. Thereafter, the Bank of Guam appealed the judgment to the Appellate Division of the District Court for the Northern Mariana Islands (hereafter \\\"Appellate Division\\\"). On April 19, 1989, the Appellate Division issued an opinion affirming the trial court's decision. Vaughn v. Bank of Guam, No. 88-9013 (D.NMI App.Div. April 19, 1989).\\nOn May 15, 1989, the Appellate Division issued its mandate to the Superior Court. Prior to that date, on May 2, 1989, the Supreme Court of the Northern Mariana Islands (hereafter \\\"this Court\\\") was established under the Commonwealth' Judicial Reorganization Act of 1989, Public Law 6-25.\\nOn May 19, 1989, the Bank of Guam filed separate appeals to this Court and to the United States Court of Appeals for the Ninth Circuit (hereafter \\\"Ninth Circuit\\\"),\\nEarlier, the parties had requested this Court to determine: (a) whether we had assumed jurisdiction of this appeal as of May 2, 1989, (b) whether the appeal had been properly brought to this Court, and (c) at which point in the appellate process the appeal was transferred to this Court.\\nOn September 28, 1989, a single justice of this Court issued an order, ruling that (a) this Court had jurisdiction as of May 2, 1989, (b) that the appeal was properly brought before it through the filing of the notice of appeal, and (c) that this Court would process the appeal from the point when the Appellate Division was divested of jurisdiction.\\nOn October 6; 1989, the Bank of Guam filed a motion for review by the full panel of the jurisdictional order issued on September 28, 1989.\\nOn March 8, 1990, the Bank of Guam filed a separate motion to dismiss its appeal without prejudice or, alternatively, to hold the matter in abeyance pending a \\u2022 final determination by the Ninth Circuit on the jurisdictional issue.\\nISSUES\\nThe principal issues raised by the motions are:\\n1. Whether we assumed jurisdiction over this appeal, which was pending before the Appellate Division on May 2, 1989.\\n2. Whether we should dismiss this appeal without prejudice or' hold it in abeyance until the Ninth Circuit decides the question as to its own jurisdiction over the appeal.\\nFor the reasons set forth below, we conclude that this Court has jurisdiction over the appeal; that the appeal was properly transferred to us; and that we should neither dismiss the appeal without prejudice nor hold it in abeyance.\\nDOES THIS COURT HAVE JURISDICTION?\\nBetween the time that the single justice issued his order on September 28, 1989, and the submission of these motions for our consideration, this Court issued a decision as to its jurisdiction in pending appeals in Wabol v. Villacrusis, No. 89-005 (NMI Dec. 11, 1989). In Wabol. we carefully analyzed the judicial power of the Commonwealth under Articles II and IV of the Covenant. We delineated the role of the U.S. Congress under the Covenant (Sections 401 and 402(c)) in establishing a federal district court for the Commonwealth and empowering it to receive appellate jurisdiction from CNMI laws. We also delineated the role of the CNMI under the Covenant (Section 203(d)) in establishing its own trial and appellate courts, and its authority to use the District Court (Section 402(c)) as its own appellate court at any time and from time to time. We concluded in Wabol that under the terms of P.L. 6-25, this Court assumed jurisdiction over all appeals pending before the Appellate Division and the Ninth Circuit on May 2, 1989.\\nThe posture of this appeal is significantly different from Wabol. Wabol was appealed to the Ninth Circuit before May 2, 1989, and was pending in that court on the effective date of P.L. 6-25. This appeal was pending in the Appellate Division with no notice of appeal to the Ninth Circuit on May 2, 1989. In Wabol, the effect of P.L. 6-25 was to transfer the appeal from the Ninth Circuit to this Court because the notice of appeal to the Ninth Circuit was filed before May 2, 1989, and no decision had issued. In the appeal at hand, the effect of P.L. 6-25 is to transfer the appeal from the Appellate Division to this Court to hear any motions for reconsideration or to issue the mandate. In other words, this Court cannot sit in review of the Appellate Division's judgment. We can only process the appeal up to and including the issuance of a mandate.\\nThe importance of this distinction is that the Ninth Circuit has ruled that it has appellate jurisdiction in cases appealed from the Appellate Division because 48 U.S.C. \\u00a7 1694b(c) provides that all appeals from -the Appellate Division must be heard by the Ninth Circuit. In Wabol. such an appeal had been initiated before the transfer date of May 2, 1989. In this case, there cannot be an appeal from the Appellate Division since no appeal was filed before that date. Thus, we find that, even under the reading of 48 U.S.C. \\u00a7 1694b(c) by the Ninth Circuit, P.L. 6-25 effectively removed this appeal from the Appellate Division to this Court on May 2, 1989.\\nWe respectfully disagree with the gloss given 48 U.S.C. \\u00a7 1694b(c) by the Ninth Circuit in Wabol. The primary difference between this Court's opinion and that of the Ninth Circuit is that the Ninth Circuit opinion views 48 U.S.C. \\u00a7 1694b(c) as an amendment to Section 403(b) of the Covenant. Wabol v. Villacrusis, No. 89-1736, slip op. at 1822 (9th Cir. Feb. 20, 1990). Therefore, since the Covenant requires that all appeals from a federal court be heard by the Ninth Circuit, the CNMI Legislature could not pass a law to divest the Ninth Circuit of its jurisdiction over pending appeals.\\nHowever, the Ninth Circuit failed to correctly identify the fundamental source of judicial authority of the Northern Mariana Islands. In Wabol. the Ninth Circuit stated: \\\"The NMI Legislature's authority to establish a local appellate court is governed by Section 402 of the Covenant .\\\" Id. (Emphasis added.) That statement is fundamentally incorrect. Section 402 of the Covenant provides for the trial and appellate jurisdiction of the federal district court. It does not provide the authority for the NMI to establish a local appellate court.\\nThe source of judicial authority in the Northern Mariana Islands is found in Section 203(d):\\nThe judicial power of the Northern Mariana Islands will be vested in such courts as the Constitution or laws of the Northern Mariana Islands may provide. The Constitution or laws of the Northern Mariana Islands may vest in such courts jurisdiction over all causes in the Northern Mariana Islands over which any court established by the Constitution or laws, of the United States does not have exclusive jurisdiction.\\nEssentially, this section provides that the ultimate decision as to which court should hear (for trial or appellate purposes) a case arising under the laws of the Commonwealth is a decision for the people (Constitution) or.legislature (laws) of the Commonwealth. Therefore, it is manifestly impermissible for Congress to pass a law that places a case arising under the laws of the Commonwealth beyond the reach of the people or the legislature of the Commonwealth. Yet, this is what the Ninth Circuit claims 48 U.S.C. \\u00a7 1694b(c) does.\\n48 U.S.C. \\u00a7 1694b(c) could not be read to amend Section 403(b) of the Covenant if the result would be the nullification of the NMI's judicial authority under Section 203(d). No amendment of the Covenant is possible that would, in effect, alter a fundamental provision of the Covenant, as defined in Covenant Section 105. These provisions, which provide the basic balance of the relationship between the United States and the Northern Mariana Islands, can be altered only upon the mutual consent of the two parties.\\nIf 48 U.S.C. \\u00a7 1694b(c) were intended to place Commonwealth cases beyond the reach of the Commonwealth Legislature or Constitution, at any point in time, then it would be contrary to Section 203(d). That section cannot be altered without the consent of the Commonwealth of the Northern Mariana Islands. Therefore, if this interpretation is to be placed upon the 48 U.S.C. \\u00a7 1649b(c), then that statute is in violation of the Covenant and cannot be enforced.\\nSHOULD.THIS APPEAL BE \\u00a1DISMISSED WITHOUT PREJUDICE OR HELD IN ABEYANCE?\\nThe only purpose of dismissing this appeal without prejudice or holding it in abeyance is to provide the appellant with the opportunity to pursue an appeal to the Ninth Circuit. Since we hold that the Ninth circuit has no jurisdiction in this appeal, it would be inconsistent for us to allow, or encourage, the appellant to seek an appeal in that court fro\\u00edti a Commonwealth case. Therefore, w\\u00e9 deny both requests.\\nWe believe this case is properly before this Court. It has been transferred here from the Appellate Division of the District Court by Operation of law. Since the Appellate Division's judgment was rendered before May 2, 1989, that judgment is valid and enforceable.\\nWAS THIS APPEAL PROPERLY BROUGHT TO US?\\nIn the order of September 20> 1989, a single justice ruled that this appeal was properly brought to this Court by the filing of a notice of appeal. Then, on March 14, 1990, the three justices of this Court issued a general order requiring appellants in all appeals pending before the Appellate Division on May 2, 1989, to re-file a notice of appeal from the Superior Court to this Court by May 31, 1990.\\nSuch notice of appeal is different from the notice required by Com.R.App.Pro. 4(a) (1) . That rule does not apply to appeals which were pending before the Appellate Division on May 2, 1989. The purpose of requiring the filing of another notice of appeal by an appellant, or the filing of a motion to assume jurisdiction by an appellee, is solely to provide a mechanism for the transfer of the pending appeals from the Appellate Division to this Court.\\np.L. 6-25 did not provide a specific procedure for the actual transfer of pending appeals from the Appellate Division' or the Ninth Circuit to this Court. Thus, the single justice in his jurisdictional order of September 28, 1989, found it acceptable for the appellant to effectuate the lateral transfer of its appeal to this Court by re-filing the notice of appeal. This notice did not initiate the appeal from the Superior Court, and no filing fee is required since it had been paid when the original notice of appeal was filed. In the absence of any statutory mechanism to effectuate the actual transfer of the appeal from the Appellate Division to this Court, we find that the filing of a second notice' of appeal to this Court is acceptable.\\nORDER\\nIT IS HEREBY ORDERED that this Court has jurisdiction over this appeal and the motion to dismiss without prejudice or hold this appeal in abeyance is hereby DENIED.\\nIT IS FURTHER ORDERED that the order of September 28, 1989, is hereby AFFIRMED. A mandate herein shall issue eighteen days after entry of this Decision and Order.\\nEntered this \\u00e9 II day of 1990.\\nJose S. Dela Cruz, Chief Justice\\nRamon G. Villagomez, Associate Justice\\nRexford C. Kosa, Special Judge\\nWe have already determined that prior to May 2, 1989, the Ninth Circuit acted as a provisional appellate court of the Commonwealth in local cases. Wabol v. Villacrusis, No. 89-005 (NMI December 11, 1989). Previously, an appeal would have been taken to the Ninth Circuit from a decision of the Appellate Division. However, after May 2, 1989, Bank of Guam was not sure to which appellate court a further appeal would lie. Consequently, it appealed the Appellate Division's judgment to both the Ninth Circuit and to this Court.\\nThe only step remaining for the Appellate Division to take on May 2, 1989, was the issuance of a mandate. The mandate issued by the Appellate Division after May 2, 1989, was void and without force and effect in the Commonwealth.\\nCounsel advised us at th i hearing that the Ninth Circuit is currently considering this issue.\\n\\\"The United States Court of Appeals for the Ninth Circuit shall have jurisdiction of appeals from all final decisions of the appellate division of the district court. The United States Court of Appeals for the Ninth Circuit shall have jurisdiction to promulgate rules necessary to carry out the provisions of this subsection.\\\"\\n\\\"(a) The District Court for the Northern Mariana Islands will have the jurisdiction of a district court of the United States, except that in all causes arising under the Constitution, treaties or laws of the United States it will have jurisdiction regardless of the sum or value of the matter in controversy.\\n(b) The District Court will have original jurisdiction in all causes in the Northern Mariana Islands not described in Subsection (a) jurisdiction over which is not vested by the Constitution or laws of the Northern Mariana Islands in a court or courts of the Northern Mariana Islands. In causes brought in the District Court solely on the basis of this Subsection, the District Court will be considered a court of the Northern Mariana Islands for the purposes of determining the requirements of the indictment by grand jury or trial by jury.\\n(c) The District Court will have such appellate jurisdiction as the Constitution or laws of the Northern Mariana Islands may provide. When it sits as an appellate court, the District Court will consist of three judges, at least one of whom will be a judge of a court of record of the Northern Mariana Islands.\\\"\\n\\\"In order to respect the right of self-government guaranteed by this Covenant the United States agrees to limit the exercise of that authority so that the fundamental provisions of this Covenant, namely Articles I, II and III and Sections 501 and 805, may be modified only with the consent of the Government of the United States and the Government of the Northern Mariana Islands.\\\"\\nSection 203(d) falls under Article II.\\nThirteen days after the judgment passed before the appeal transferred to us. Therefore, eighteen days remained before the mandate should issue under Rule 41, Com.R.App.Pro.\\n\\\"In a civil case in which an appeal is permitted by law as of right from the Superior Court to this Court the notice of appeal required by Rule 3 shall be filed with the clerk of the Superior Court within 30 days after the date of entry of the judgment or order appealed from.\\\"\"}"

n_mar_i/1693638.json

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+"{\"id\": \"1693638\", \"name\": \"JOSE P. MAFNAS, Personally and as President of the Seventh Commonwealth Senate, Petitioner, vs. SUPERIOR COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Respondent. and ELOY INOS, in his capacity as Director of the Department of Finance, JOSEPH INOS, JESUS R. SABLAN, EDWARD U. MARATITA, FRANCISCO M. BORJA, and HENRY DLG. SAN NICOLAS, in their capacity as Members-Elect of the Seventh Commonwealth Senate, FELIPE Q. ATALIG and ABRAHAM TAISACAN, Real Parties In Interest\", \"name_abbreviation\": \"Mafnas v. Superior Court\", \"decision_date\": \"1990-01-31\", \"docket_number\": \"ORIGINAL ACTION NO. 90-001; SUPERIOR COURT NO. 90-31\", \"first_page\": 74, \"last_page\": \"80\", \"citations\": \"1 N. Mar. I. 74\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Villagomez and Borja, Justices, and Hillblom, Special Judge.\", \"parties\": \"JOSE P. MAFNAS, Personally and as President of the Seventh Commonwealth Senate, Petitioner, vs. SUPERIOR COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Respondent. and ELOY INOS, in his capacity as Director of the Department of Finance, JOSEPH INOS, JESUS R. SABLAN, EDWARD U. MARATITA, FRANCISCO M. BORJA, and HENRY DLG. SAN NICOLAS, in their capacity as Members-Elect of the Seventh Commonwealth Senate, FELIPE Q. ATALIG and ABRAHAM TAISACAN, Real Parties In Interest.\", \"head_matter\": \"January 31, 1990\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nJOSE P. MAFNAS, Personally and as President of the Seventh Commonwealth Senate, Petitioner, vs. SUPERIOR COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Respondent. and ELOY INOS, in his capacity as Director of the Department of Finance, JOSEPH INOS, JESUS R. SABLAN, EDWARD U. MARATITA, FRANCISCO M. BORJA, and HENRY DLG. SAN NICOLAS, in their capacity as Members-Elect of the Seventh Commonwealth Senate, FELIPE Q. ATALIG and ABRAHAM TAISACAN, Real Parties In Interest.\\nORIGINAL ACTION NO. 90-001\\nSUPERIOR COURT NO. 90-31\", \"word_count\": \"1194\", \"char_count\": \"7237\", \"text\": \"ORDER DENYING PETITION FOR WRIT OF MANDAMUS and MOTION FOR STAY\\nBefore: Villagomez and Borja, Justices, and Hillblom, Special Judge.\\nPER CURIAM:\\nOn January 10, 1990, Senator Jose P. Mafnas (hereafter \\\"Mafnas\\\") filed with the superior court a Complaint for Declaratory Relief and for a Preliminary and Permanent Injunction. Mafnas, in part, sought to be declared President of the Senate. Simultaneously, he applied for a temporary restraining order, asking that the real parties in interest be enjoined from acting as officers of the Senate. On the same day the superior court issued an Order to Show Cause directed to the real parties in interest. (See caption above for a list of real parties in interest.) On January 18, 1990, the superior court issued a stipulated order restraining Eloy Inos from disbursing government funds to the Senate pending disposition of the case.\\nA hearing was held, after which the judge issued, on January 22, 1990, his Memorandum Decision followed by his Declaratory Judgment. The Judgment declared, inter alia, that Joseph Inos was the President of the Senate.\\nOn January 23, 1990, Mafnas filed a Motion for Stay of Judgment and for Injunction Pending Petition, or in the Alternative for a Temporary Stay. However, no petition or appeal was pending at the time and the trial court denied the motion on January 24, 1990.\\nMafnas then filed his Petition for Writ of Mandamus with this Court on January 30, 1990. He contends that the Respondent, trial court, usurped its judicial power; that he (Mafnas) has no plain, speedy and adequate remedy other than a writ of mandamus; and requests this Court to direct the trial judge to immediately vacate his Declaratory Judgement and Memorandum Decision. He also prays for this Court to grant Mafnas the declaratory relief sought below, including a ruling that he is the duly constituted President of the Senate of the Seventh Legislature. At the same time he filed a motion for stay in this Court.\\nRule 21(b) of the Rules of Appellate Procedure of this Court provides:\\nIf this Court is of the opinion that the writ should not be granted, it shall deny the petition. Otherwise, it shall order that an answer to the petition be filed by the respondents within the time fixed by the order.\\nWe have carefully examined the Petition for Writ of Mandamus, the memorandum in support thereof, and the excerpt of the record. We have re-examined the conditions, guidelines and criteria set forth in our previous decisions on the question of when it is justified for this Court to invoke such extraordinary remedy.\\nIn applying such guidelines to the facts and circumstances of this case, we have come to the conclusion that mandamus is not the proper remedy. There is insufficient showing of extraordinary circumstances.\\nThe criteria for showing extraordinary circumstance as set forth in Tenorio v. Superior Court, supra. are as follows:\\n1. The party seeking the Writ has no other adequate means, such as a direct appeal, to attain the relief desired.\\n2. The petitioner will be damaged or prejudiced in a way not correctable On appeal.\\n3. The lower court's order is clearly erroneous as a matter of law.\\n4. The lower court's order is an oft-repeated error, or manifests a persistent disregard of applicable rules.\\n5. The lower court's order raises new and important problems, or issues of law of first impression.\\nIn applying these guidelines to a particular case there will not always be a bright^line distinction; the guidelines themselves often raise questions of degree; the considerations are cumulative; and proper disposition will require a balancing of conflicting indicators. Tenorio v. Superior Court, supra.\\nIn Tenorio, a review had to be made within a few days because of an upcoming election. There was no time for a direct appeal. Had the review been done after the election, there would have been damage or prejudice not correctable on appeal. It would have been too late. We also found that the order of the lower court was clearly erroneous as a matter of law and that it raised.issues of first impression in this jurisdiction. After balancing the conflicting indicators we granted the Petition for Writ of Mandamus.\\nIn the case at hand, after reviewing the guidelines and balancing the conflicting indicators, the balance tips towards denying the Petition. The Petition does not convince us that the lower court's Memorandum Decision and Declaratory Judgment have to be reviewed immediately and has not clearly shown what the ' damage will be that cannot otherwise -be correctable on direct appeal.\\nThe Petitioner fails to show that the lower court's decision is an oft-repeated error, or manifests a persistent disregard of applicable rules. The Petitioner contends that the judge failed to follow the rules of procedure and applied the law incorectly solely in this particular case.\\nWe find that this case raises issues of first impression in the Northern Mariana Islands. However, this factor alone does not convince us that a writ of mandamus is the proper vehicle. As we noted in Tenorio,\\n(t)here are dangers to an unprincipled use of peremptory writs, as for example, the possibility that its use would be an impermissible alternative to the normal appellate process. Its abuse could operate to undermine the mutual respect generally existing between trial and appellate courts. Further, appellate courts should insure against the temptation to grant such writs merely because they might be sympathetic-to the petitioner's underlying actions.\\nSupra at page 5.\\nWe place greater weight on the first two guidelines. In view of this, there is no need to consider criteria number three.\\nBased on the above analysis, we conclude that this case should be brought before us by way of a direct appeal, not by way of a petition for writ of mandamus.\\nIT IS HEREBY ORDERED that the Petition for Writ of Mandamus is DENIED and this case is DISMISSED. Having decided to deny the Petition for Writ of Mandamus we see no basis for a stay and the motion for stay is also DENIED.\\nEntered this day of 1990.\\nRamon G. Villagomez, acting chief justice\\nJesus C. Borja, Associate Justice\\nLarry L. Hillblow, Special Judge\\nIn Tehorio v. Superior Court, Original Action No. 89-002 (CNMI slip opinion, November 4, 1989) we set forth the guidelines and precedents for all litigants and the superior court to follow in cases involving extraordinary writs. Neither the trial court nor the Petitioner referred to such guidelines.\\nThis order does not preclude the Petitioner from filing a notice of appeal and moving for a stay pursuant to applicable rules.\"}"

n_mar_i/1693642.json

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+"{\"id\": \"1693642\", \"name\": \"IN RE DOLORES SAN NICOLAS, Appellant, Appeal from the Civil Service Commission\", \"name_abbreviation\": \"In re San Nicolas\", \"decision_date\": \"1990-09-05\", \"docket_number\": \"APPEAL NO. 90-008; CIVIL ACTION NO. 87-660\", \"first_page\": 329, \"last_page\": \"346\", \"citations\": \"1 N. Mar. I. 329\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices. BORJA, Justice:\", \"parties\": \"IN RE DOLORES SAN NICOLAS, Appellant, Appeal from the Civil Service Commission.\", \"head_matter\": \"September 5, 1990\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nIN RE DOLORES SAN NICOLAS, Appellant, Appeal from the Civil Service Commission.\\nAPPEAL NO. 90-008\\nCIVIL ACTION NO. 87-660\\nArgued May 31, 1990\\nCounsel for Appellant: Douglas F. Cushnie P. O. Box 949 Saipan, MP 96950\\nCounsel for Appellee: Patricia Halsell Office of the Attorney General Commonwealth of the Northern Mariana Islands Capitol Hill Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices. BORJA, Justice:\", \"word_count\": \"3857\", \"char_count\": \"23036\", \"text\": \"OPINION\\nFACTS\\nThis is an appeal, pursuant to 1 CMC \\u00a7 3102 and 9113, from a trial court decision affirming the actions of the Civil Service Commission (hereafter CSC) and the Department of Public Safety (hereafter DPS) with respect to the termination of employment of appellant, Dolores San Nicolas (hereafter San Nicolas), a civil service employee.\\nSan Nicolas was a DPS employee for several years prior to March 27, 1987. On that date, she was informed by letter that DPS proposed to terminate her employment for several reasons. The letter gave three reasons for the proposed action, with eleven numbered paragraphs of specific factual allegations presented as the underlying bases. She was given ten days to respond and advised that the proposed action might be taken no earlier than thirty days. The same letter immediately suspended San Nicolas from her employment with pay. She did not respond to this letter.\\nOn April 7, 1987, DPS advised her through another letter that all of the allegations contained in the March 27, 1987 letter of proposed adverse action, except one, were sustained and her employment would be terminated on April 27, 1987-, She filed a timely administrative appeal to CSC.\\nAt the CSC hearing, San Nicolas carried the burden of proof in ascertaining the specific factual bases of the charges against her, in determining what regulation or statute was allegedly violated with regard to each specific factual allegation, and in disputing the charges made against her.\\nNot all of the members of CSC attended the hearings, and the final decision was not made by a full complement of seven members. CSC issued its decision on September 14, 1987, affirming the decision by DPS to terminate San Nicolas' employment. A recommended decision was not issued by the CSC hearing examiner.\\nA complaint to review the CSC decision was filed with the Superidr Court on October- 13, 1987, and an amended complaint was filed December 2, 1987. Oral argument was heard on October 3, 1988, and the trial court issued its decision on November 3, 1988, affirming the decision of CSC.\\nISSUES PRESENTED\\nNeither of the panties has provided us with the specific issues presented for resolution. After reviewing the briefs and hearing oral argument, we determine the issues to be as follows:\\nA. Whether CSC's decision should be set aside for not being in accordance with law, in that the aggrieved party carried the burden of proof.\\nB. Whether CSC's decision should be set aside for not being in accordance with law, in'that the hearing officer failed to issue a recommended decision.\\nC. Whether CSC's decision should be set aside because DPS failed to observe procedures required by law.\\nD. Whether CSC's decision should be set aside for not being in accordance with law, in that it did not specifically state findings of fact and a rationale for its decision.\\nE. Whether CSC's decision should be set aside for not being in accordance with law, in that not all CSC members attended the entire hearing and a full complement of seven members did not vote on the decision.\\nF. Whether CSC's decision should be set aside because it is not supported by substantial evidence.\\nSTANDARD OF REVIEW\\nWe review an administrative agency's decision on the same basis as a trial court. The standard of review is de novo, similar to our review of a grant of summary judgment. .As stated in C. Koch, Jr., Administrative Law and Practice (1985) (hereafter C. Koch)\\nThe appellate court then reviews the lower court's determination as to the agency's decision. Since the appellate court reviews agency action on identical basis as does the lower court, the higher court is not required to accord any particular deference to the lower court's conclusion about the agency's actions. Thus the appellate court's review of the lower court's review of agency action is de novo..\\n2 C. KOch, supra, at \\u00a7 8.54 (footnote omitted).\\n\\u2022ANALYSIS\\nW\\u00e9 review an agency's actions pursuant to our Administrative Procedure Act (1 CMC \\u00a7 9101 at sea.)\\u2666 1 CMC \\u00a7 9112(f) provides thht:\\nThe reviewing court shall:\\n\\u2022(2) Hold unlawful and set aside agency action, findings, and conclusions found to be:\\n(A) Arbitrary, capricious, an abuse of discretion, or othefwise not in accordance with law;\\n(B) contrary to constitutional right, power, privilege, or immunity;\\n(C) In excess of . statutory jurisdiction, authority, or limitations, Or short of statutory rights,*\\n(D) Without observahce of procedure reguifed by law;\\n(\\u00c9) Unsupported by substantial evidence in a case subject to sections 9108 and 9109 or otherwise reviewed on the record of an agency hearing provided by statute; or (F) Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.\\nIn making the forgoing determination, the Court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.\\nBased on the facts and subsection (2) (A) of the above statutory provisions, we reverse the trial court's affirmance of the decision of CSC for not being in accordance with law. The decision is not in accordance with law because 1) San Nicolas was required to carry the burden of proof, and 2) she was not given the opportunity to submit proposed findings and conclusions prior to the issuance of a recommended decision, and to submit exceptions, with supporting reasons, after the issuance of a recommended decision. Following the direction of the APA, we have considered the prejudicial effect to the appellant of the errors that appear in the record.\\nBurden of Proof\\nl CMC \\u00a7 9109(i) provides that \\\" Except as otherwise provided by statute, the proponent of an order or decision has the burden of proof.\\\" The government denies the assertion of San Nicolas that she was required to carry the burden of proof. However, the record is clear that she carried the burden of proof in ascertaining the specifics of the factual bases of the charges against her, in determining what regulation or statute was allegedly violated with regard to each specific factual allegation, and in disputing the charges made against her.\\nThe trial court concluded that this was harmless error since the government provided sufficient evidence to sustain its burden of proof on all substantive issues. We disagree.\\nAccording to Koch,\\n[T]he doctrine of harmless error is applicable to review of administrative decisions. Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028 (7th Cir. 1984. County of Del Norte v. United States, 732 F.2d 1462, 1467 (9th Cir. 1984) (cert. denied 469 U.S. 1189, 105 S.Ct. 958, _ L. Ed. 2d _ (1985)(\\\"[I]nsubstantial errors in an administrative proceeding that prejudice no one do not require administrative decisions to be set aside.\\\") Generally, application of the doctrine makes sense only where the agency's determination as to one issue fails to meet the appropriate review standard but that failure is insufficient to adversely affect the whole decision. Salt River Project Agr. Imp. v. United States, 762 F.2d 1053, 1060-1061 n.8 (D.C. Cir. 1985) (\\\"When it is clear that based on the valid findings the agency would have reached the same ultimate result, we do not improperly invade the administrative province by affirming.\\\"); Road Sprinkler Fitters L. Union No. 669 v. NLRB, 778 F.2d 8, 14 (D.C. Cir. 1985)(\\\"Since the ALJ's ultimate finding . is the only conclusion that could reasonably have been drawn from the record in this case considered as a whole, any error in the ALT'S analysis was harmless.\\\")\\n2 C. Koch, supra, at \\u00a7 9.8 (1987 Supplement).\\nIn this particular case, it is not harmless error to reverse the burden of proof. It is not insubstantial. We are not convinced that the result would be the same had the proper procedure been followed.\\nIn our adversarial system, defendants have certain advantages in not being required to carry the burden of proof. For example, a defendant can move to dismiss a case if the plaintiff,k the party normally charged with the burden of proof, fails to establish a prima facie case. If the defendant were required to carry the burden of proof, this advantage would be lost. As a result, we cannot say that the error is non-prejudicial.\\nSan Nicolas was initially required to carry the burden of proving that DPS failed to follow certain procedural requirements. San Nicolas raised these DPS procedural defects in her counsells letter of April 9, 1987. DPS argued that San Nicolas had the burden of going forward with the evidence to prove the procedural defects. Tr. 6.\\nIf this was the only error concerning allocation of the burden of proof, we might have found that the error was harmless. However, after proceeding with this improperly allocated burden, she was again required to carry the burden on the substantive issues in the hearing. Tr. 34. This was not harmless error. 1 CMC \\u00a7 9109 (i) requires that the proponent of an order has the burden of proof. DPS was the proponent of an order dismissing San Nicolas from her employment. It had the burden of proof---the burden of going forward with the evidence. NLRB v. Transportation Management Coro., 462 U.S. 393, 403 n.7, 103 S.Ct. 2469, 2475 n.7 (1983). The procedure followed by CSC was not in accordance with law and must be set aside.\\nRecommended Decision\\n1 CMC \\u00a7 9110(a) and (b) provide that:\\n(a) When the agency does not preside at the reception of the evidence, the person presiding shall initially decide the case unless applicable law or agency rule requires, either in specific cases or by general rule, the entire record to be certified to it for the making of an order or a decision concerning a regulation. . . . When the agency makes the order or decision without having presided at the reception of the evidence, the person presiding shall first recommend an order or decision to the agency.\\n(b) Before a recommended initial order or decision, or an order or decision on agency review of an order or decision, the parties are entitled to a reasonable opportunity to submit for the consideration of the persons participating in the decision:\\n(1) Proposed findings and conclusions;\\n(2) Exceptions to the order or decision or recommended order or decision; and\\n(3) Supporting reasons for the exceptions or proposed findings and conclusions.\\nSan Nicolas contends that CSC violated subsection (a) because the. hearing officer did not issue a recommended decision. She also argues that subsection (b) was violated because she was not given the opportunity to submit proposed findings, conclusions, exceptions and supporting reasons.\\nIt was reversible error for the hearing officer not to have submitted a recommended decision. We disagree with the trial court that such error was harmless. Not only is the statute specific, but CSC itself recognized and stated that it was going to issue a recommended decision first. Tr. 23.\\nWe also disagree with the trial court that CSC's failure to solicit proposed findings, conclusions, exceptions and reasoning was harmless error. We are not convinced that had the. procedure required for recommended decisions been followed the result would have still been the same. See 2 Koch \\u00a7 9.8 (1987 Supplement).\\nIn an administrative hearing where a hearing examiner has to listen to a multitude of disputed facts, review a plethora of documents, over a period of many days, it would be immeasurably helpful if the parties submitted their thoughts on what the findings of fact and conclusions of law should be. Who can say that the hearing officer would not have found a proposal submitted by San Nicolas to be valid and persuasive, and therefore, capable of influencing his decision?\\nIf he had issued a recommended decision with his reasons for rejecting, adopting, or modifying the proposals of San Nicolas, she would, then be in a position to submit exceptions, with her supporting reasons, to the whole board prior to the board acting on the recommended decision. In a situation where there is an abundance of evidence, with few facts being uncontested, who can say that the board would not have been persuaded by the exceptions submitted?\\nl CMC \\u00a7 9110(b) requires the hearing officer to do two things in a proceeding requiring a recommended decision. First, prior to issuing a recommended decision, he must provide the parties a reasonable opportunity to submit proposed findings and conclusions. While we agree with the trial court that this does not require the hearing officer to solicit such proposals, we hold that, at the very least, the hearing officer must notify the parties of this opportunity at the conclusion of the evidentiary hearing.\\nSecond, after reviewing such proposals, if any are submitted, the hearing officer issues a recommended decision. The recommended decision should include a discussion of the proposals submitted by the parties, and the reasons they were followed, modified, or rejected. At the time he issues a recommended decision, the hearing officer shall notify the parties of their opportunity to submit exceptions, and reasons for the exceptions, prior to the whole board acting on the recommended decision. This can be accomplished by a simple paragraph in the recommended decision itself.\\nThis is not to say that the failure of an administrative agency to issue a recommended decision when required will always be found to be reversible error. There may be occasions when the failure will be harmless. However, in this case, where the hearing was held before a hearing officer for several days, with conflicting factual contentions, and the admission of an abundance of documentary evidence, we cannot hold that the error was harmless.\\nIn view of our decision on the above issues, there is no need to address Issue F, whether the decision is supported by substantial evidence. However, because of the importance of this case in the development of the Commonwealth's administrative law, we will address the other issues raised to provide guidance to administrative agencies.\\nDPS Procedures\\nSan Nicolas argues that DPS failed to comply with CSC's and its own regulations with regard to (1) preparation of the letter of proposed adverse action, (2) suspension from active duty due to an emergency, (3) providing her a reasonable amount of official time to prepare a response, and (4) the degree of specificity required in the letters.\\nIt is trUe that the letter of proposed adverse action was not prepared by a person so trained. The trial court found this procedural error to be harmless. We agree. As we note later, the letter of proposed adverse action reasonably and substantially notified San Nicolas of the matters charged and of the proposed action. Consequently, she was not prejudiced by the failure to have the letter prepared by a trained person. See 2 C. Koch, supra. at \\u00a7 9.8 (1987 Supplement). As stated in Community of Woodston v. State Corporation Commission, 353 P.2d 206 (Kan. 1960),\\nIt is now well established that technical rules of pleadings such as govern civil or criminal actions are not applicable to applications or pleadings filed with an administrative agency and liberality is to be indulged as to their form and substance.\\n353 P.2d at 210 (citations omitted).\\nWe disagree, however, with the- statement of the trial court that this requirement \\\"is more of a shield for the government than a sword for the employee.\\\" We think that an equally important purpose of the requirement is to ensure that an employee receives adequate notice of a proposed adverse action. In this particular case, San Nicolas was advised in a reasonable and substantial way of the charges made against her and the proposed action that was being sought by DPS.\\nThe trial court disagreed with San Nicolas' contention that there was no emergency and that therefore she should have been kept on active duty. It found that the record adequately supported the decision of DPS not to keep San Nicolas on active duty. We agree.\\nWe will not weigh the evidence. The conclusion reached was reasonable.\\nSan Nicolas next argues that she was not given a reasonable amount of official time to prepare a response. This argument is without merit. When she was suspended from active duty, she was kept on the payroll. As such, she had ample time to prepare a response on government time. Furthermore, she was allowed to request for more time if she needed it. Also, her termination of employment did not go into effect until thirty days after the date of the first letter.\\nFinally, San Nicolas argues that the letters of proposed adverse action were not sufficiently specific. She does not dispute that the first letter from DPS contains sufficient specificity with regard to the charges made against her and with regard to the particular sections of the regulations alleged to have been violated. She argues, however, that a mere recitation of them is not enough. What is needed, she argues, is a clear statement of what particular charge violates what particular section of the regulations.\\nThe trial court ruled that it was of no significance that the charges did not refer to the particular regulations alleged to have been violated because the notice was in accordance with 1 CMC \\u00a7 9109(a)(3) . In addition, it held that the fact that the letter of dismissal did not reiterate the charges and the regulations violated was of no moment since the first letter did inform her of the particular charges and regulations that were violated. Lastly, the trial court relied on the fact, that the first letter advised San Nicolas that she was entitled to review all of the materials used against her, and that she could obtain further information on the reasons for the proposed action. We agree with the trial court. The letters from DPS reasonably and substantially notified San Nicolas of the charges made against her and of the action that DPS was proposing.\\nOn remand, the procedures followed by DPS need not be addressed by CSC.\\nSpecific Findings and Reasons\\n1 CMC \\u00a7 9110(c) provides that:\\nAll orders or decisions, including initial or recommended orders or decisions, or those on agency review, are a part of the record and shall include a statement of:\\n(1) Findings and conclusions, and the reasons or basis for them, on all the material issues of fact, law, or discretion presented on the record; and\\n(2) The appropriate decision, order, sanction, relie.f, or denial thereof.\\nSan Nicolas argues that CSC failed to comply with the above statutory provision. While it is true that CSC did not specifically state its findings, it did state in its decision that the allegations found in the April 7, 1987 letter are well-founded and supported by the evidence. We agree with the trial court that this complies with the statute. While it may be better procedure to repeat all the basic facts relied on in its decision, it was not prejudicial error to merely incorporate them by reference. See.\\ne.q. . Servomation. Inc, v. NLRB, 603 F.2d 762 (9th Cir. 1979) (\\\"[T]he Board satisfied the requirements of this Section [5 U.S.C. \\u00a7 557(c)] in its review and adoption of the findings, conclusions, and rationale of the Administrative Law Judge\\\") ; Barron v. Board of Dental Examiners. 44 Cal. App. 2d 790, 113 P.2d 247 (Cal. Ct. App. 1941) (a finding of \\\"guilty as charged in said accusation\\\" sufficient).\\nBoard Attendance and Vote\\nIt is not disputed that not all of the board members attended the entire hearing. It is also not disputed that a full commission of seven members did not vote on the decision. However, San Nicolas' interpretation of the statute, 1 CMC \\u00a7 8111, and CSC's regulations are completely without merit. There is no requirement that all members of the board be present at the entire hearing.\\nAs stated in Koch:\\nChief Justice Hughes in a classic case, Morgan v. United States, (Morgan I) [298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936)] pronounced that \\\"the one who decides must hear.\\\" The statement pervades administrative law but it does not actually reflect the rule of Morgan I: \\\"Instead, he used 'hear' in a nonaural sense, as meaning that the one who decides must give heed to the case and, directing his mind to it, must be the one who actually exercises the deciding function. The one who decides in form must be the one who decides in fact.\\\" According to the Attorney General's Manual. this interpretation was incorporated in the APA and hence the Manual said: \\\"Nothing in the Act is intended to preclude agency heads from utilizing the services of agency employees as assistants for analysis and drafting [citing Morgan I].\\\" Under this doctrine the agency head or appellate body need not even read the entire record.\\n1 C. Koch, supra, at \\u00a7 6.78 (footnotes omitted). See Porter & Dietsch, Inc. v. FTC, 605 F.2d 294 (7th Cir. 1979), cert. denied 445 U.S. 950, 100 S.Ct. 1597, 63 L.Ed.2d 784 (1980)(two out of five commissioners who participated in the administrative appellate decision were not present at the oral argument. One was on leave of absence and the other had not yet been appointed. The court found that they could participate in the decision, noting that the transcripts were available and they could decide on the written record.).\\nThere is also no requirement that a commission of seven members must vote on the decision. While it is true that the statute, 1 CMC \\u00a7 8113, states that the decisions of CSC are to be made \\\"by a two-thirds vote of the entire membership,\\\" the same provision also states that \\\"Four members shall constitute a quorum.\\\" . To accept San Nicolas' argument would make CSC unworkable.\\nCONCLUSION\\nThe decision of the trial court is hereby REVERSED and REMANDED with instructions that CSC be required to hold another hearing, consistent with this opinion, on DPS' decision to terminate the employment of San Nicolas. At a minimum, the hearing before CSC must:\\n1. Have DPS carry the burden of proof;\\n2. Have the hearing officer provide opportunity to the parties to submit proposed findings of fact and conclusions of law prior to issuance of a recommended decision; and\\n3. Have the hearing officer provide opportunity to the parties to submit exceptions, with reasons, after the issuance of the recommended decision, but prior to the decision of the whole board.\\nJose S. Dela Cruz Chief Justice\\nRamon G. Villagomez Associate Justice\\nJe~4u~ C. Borja A1~sociate Justice\\nA statement of the issues presented for review is required by R.App.Proc. 28(a)(2).\\nThe statute provides, among other things, that CSC is \\\"composed of seven members.\\\"\"}"

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+"{\"id\": \"1693646\", \"name\": \"COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. ANTHONY S. PETERS, Defendant/Appellant\", \"name_abbreviation\": \"Commonwealth v. Peters\", \"decision_date\": \"1991-01-08\", \"docket_number\": \"APPEAL NO. 90-026; CRIMINAL CASE NO. 88-0124\", \"first_page\": 466, \"last_page\": \"477\", \"citations\": \"1 N. Mar. I. 466\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and ATALIG, Special Judge.\", \"parties\": \"COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. ANTHONY S. PETERS, Defendant/Appellant.\", \"head_matter\": \"January 8, 1991\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nCOMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. ANTHONY S. PETERS, Defendant/Appellant.\\nAPPEAL NO. 90-026\\nCRIMINAL CASE NO. 88-0124\\nArgued November 6, 1990\\nCounsel for Plaintiff/Appellee: James E. Hollman Assistant Attorney General Commonwealth of the Northern Mariana Islands Saipan, MP 96950\\nCounsel for Defendant/Appellant: William M. Fitzgerald P. O. Box 909 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and ATALIG, Special Judge.\", \"word_count\": \"2194\", \"char_count\": \"13223\", \"text\": \"OPINION\\nBORJA, Justice:\\nFACTS\\nOn the night of January 16, 1988, a Police Officer observed a silver sedan being driven at an excessive rate of speed. It was traveling in the center lane of the road. The Officer stopped the vehicle. He observed that the face of the driver, the defendant/appellant, Anthony S. Peters (hereafter Peters), was flushed and his eyes were bloodshot. He also detected a strong odor of alcohol coming from Peters* breath.\\nBased on the above observations, the Officer asked Peters to perform two field sobriety tests. He failed both the coordination and the balance tests. The Officer then arrested Peters for driving under the influence of alcohol.\\nHe took Peters to the Garapan police sub-station. The Officer asked Peters again to perform a second set of coordination and balance tests. Again, he failed both tests. The Officer informed Peters both of his implied consent sanctions and his constitutional rights, which he waived. Peters' speech was slurred.\\nA different Police Officer at the sub-station administered the breathalyzer test. Such Officer is a certified operator of the Alcotest 7010 breathalyzer instrument. He tested the instrument to make sure that it was functioning properly. After determining that it was in proper working condition, he administered the test to Peters: The result of the test was that Peters had a .181 alcohol concentration in his breath.\\nAfter Peters was charged with Driving under the Influence of Alcohol in violation of 9 CMC \\u00a7 7105, he made a pre-trial motion for a jury trial. The trial court denied the motion. A bench trial was held on December 7, 1988. At trial, Peters renewed his motion for a jury trial and it was again denied.\\nTwo witnesses testified on behalf of the CNMI. The CNMI provided no foundational evidence that the breathalyzer machine was properly calibrated before the test was administered to Peters.\\nThe defense did not present any evidence.\\nPeters was convicted on December 7, 1988. The court concluded that, \\\"the defendant was impaired and that he is guilty of DUI.\\\"\\nISSUES PRESENTED\\n1. Whether a defendant in a criminal proceeding in the Commonwealth has a constitutional right to a jury trial when charged under a statute authorizing a sentence of imprisonment in excess of six months.\\n2. Whether the trial court erred in admitting the breathalyzer test result into evidence when no objection was made to its admission.\\nSTANDARD OF REVIEW\\nThe standard of review for the first issue is de novo since it is a question involving the application of the constitution. Carreras v. City of Anaheim, 768 F.2d 1039 (9th Cir. 1985).\\nWith regard to the second issue., the standard of review is the plain error rule. Rule 103, Commonwealth Rules of Evidence, and Rule 52(b), Commonwealth Rules of Criminal Procedure.\\nANALYSIS\\nPeters argues that the right to a trial by jury is a fundamental right guaranteed to all citizens within the jurisdiction of the United States. He argues that the reasoning in CNMI v. Atalig, 723 F.2d 682 (9th Cir. 1984), cert. denied. 104 S.Ct. 3518 (1984) (a reasoning following the Insular Cases) no longer applies. He contends that its holding that Covenant Section 501 does not violate the Sixth or Fourteenth Amendments to the U.S. Constitution must be reevaluated. He bases his argument on the fact that Ataliq was decided when the NMI was still a part of the Trust Territory of the Pacific Islands. Since the NMI has voluntarily joined the American political family through the Covenant, he argues, reliance on the Insular Cases is no longer valid. He, therefore, concludes that the Sixth Amendment to the U.S. Constitution now applies. Peters argues that the Sixth Amendment applies of its own force and Covenant Section 501 is subordinate to the U.S. Constitution and cannot stand.\\nAlternatively, he argues that a decision by this Court declaring the right to a jury trial in the Commonwealth in prosecutions involving a possible sentence of one year will not be inconsistent with the Covenant. The Covenant, he contends, allows jury trials where required by local law. He maintains that a decision by this Court on what he advocates would satisfy the local law requirement.\\nWe agree with the government that the constitutionality of Covenant section 501 has been addressed and authoritatively resolved in the Atalig case. Peters has not stated any argument that persuades us to question the Ataliq case on this issue. There is no merit to Peters' argument that Ataliq' has to be reevaluated because there has been a change in political status for the NMI-. The Ataliq court specifically noted that Covenant Section 501 became effective since January 9, 1978. 723 F.2d at 685. The question of the constitutionality of Covenant Section 501 is the same now as it was in 1978, and in 1984 when Ataliq was decided. The fact that the NMI is no longer a trust territory and is now an \\\"undefined entity\\\" within the American political family is a distinction without a difference. We do not see how the distinction would counteract a specific Covenant provision, especially a provision \\\"without which the accession of the Northern Mariana Islands to the United States would not have been possible.\\\" Marianas Political Status Commission, Section by Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana Islands at 48 (1975) (hereafter Covenant Analysis).\\nWe disagree with Peters on his interpretation of the Ataliq case. By adhering to the Ataliq case, we do not hold that the territorial clause of the U.S. Constitution applies in the NMI. We need not reach the question of whether the territorial clause applies in the NMI. We merely hold that, in conformity with the Ataliq case, Covenant section 501 does not violate the Sixth or Fourteenth Amendments to the U. S. Constitution.\\nPeters' alternative argument is also without merit. The term \\\"except where required by local law,\\\" found in Covenant Section 501(a) does not, and cannot, mean a decision by this Court. It is the NMI legislature that has the authority to make the right to a jury trial the same as in the continental United States. In the analysis to the Covenant, it is specifically stated that the right to a jury trial is \\\"left entirely to the local legislature and the Northern Marianas Constitution.\\\" Covenant Analysis at 46 (emphasis added). Article I, Section 8 of the NMI Constitution states that \\\"[t]he legislature may provide for trial by jury in criminal or civil cases.\\\" (Emphasis added.)\\nThe parties disagree on the type of analysis to be given the second issue regarding the admission of the breathalyzer test result. The government contends that the proper analysis should be the plain error rule since Peters did not object to the admission of the test result.\\nPeters argues that he need not object to the introduction of such evidence. There is a presumption of his innocence before conviction. It is the government that has the burden of proving beyond a reasonable doubt that he is guilty of the charge against him.\\nPeters argument lacks merit. 9 CMC \\u00a7 7107(a) and (b) provides that\\n(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcohol or drugs, evidence of the concentration of alcohol or drug in a person's breath at the time alleged, as determined by analysis of the person's breath, shall be admissible.\\n(b) Upon the request of the person who submits to the test at the request of a police officer, full information concerning the test shall be made available to him or his attorney.\\n(Emphases added.) The statute states definitively that the test result is admissible. The statute also states that information about the test is available to the defendant upon reguest. A\\nreasonable interpretation of this statute is that the result of such test is admissible. A defendant, prior to trial, should request information about the test, e.g., who administered it, the qualifications of the officer administering it, maintenance logbook, etc. This will enable him to question the credibility of the test result. He will not be able to exclude the result as evidence, but he will be able to argue the weight that such result should be given.\\nTherefore, Rule 103, Commonwealth Rules of Evidence, governs the resolution of the second issue.\\nRule 103(a)(1) states that\\nError may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and . a timely- objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. . . .\\n(Emphasis added.) To claim error in the admission of evidence one has to meet a two-prong test that is conjunctive. The first part of the test is to determine if a substantial right of the party is affected. The second part requires that a timely objection or motion to strike be made. Since Peters did not make any objection, one of the two requirements is not met and he cannot claim error.\\nThe only exception to the above rule is the plain error rule, pronounced in Evidence Rule 103(d), and Criminal Rule 52(b). Evidence Rule 103(d) states that, \\\"[njothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.\\\" Criminal Rule 52(b) states that, \\\"[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\\\"\\nA reversal under the plain error rule \\\"is appropriate only when necessary to safeguard the integrity and reputation of the judicial process or to forestall a miscarriage of justice. \\\"United States v. Lancelloti, 761 F.2d 1363, 1367 (9th Cir,. 1985) (citations omitted). See also United States v. Greger, 716 F.2d 1275 (9th cir. 1983) .\\nA reversal under the plain error rule is proper only when two. factors exist:\\n1. Substantial rights of the defendant are affected; and\\n2. It is necessary to safeguard the integrity and reputation of the judicial process, or to forestall a miscarriage of justice.\\nNeither of the two elements is present. No substantial right of Peters is affected. The integrity and reputation of the judicial process are not at stake, and there has been no miscarriage of justice. The reason none of these, elements has been met is simply because the finding of guilt was not based solely on the result of the breathalyzer test. Other evidence existed that supported the conviction. There is uncontradicted testimony that Peters' face was flushed and his eyes were bloodshot. His speech was slurred. A strong odor of alcohol was smelled. Finally, he failed certain field sobriety tests twice. These facts are sufficient to support a conviction of driving under the influence of alcohol. See CNMI v. Kawai. No. 89-011, Order Denying Petition for Rehearing (N.M.I. 1990).\\nCONCLUSION\\nThe judgment of the trial court is AFFIRMED.\\nJose S. D\\u00e9la Cruz Chief Justice\\nJ1\\u00e9sus C. Borja /~ssociate Justice\\nPed~b M. Atalig Special Judge\\n9 CMC \\u00a7 7105(a)(1) and (2) states that\\n(a) A person shall not drive, operate or be in actual physical control of any vehicle while:\\n(1) Having a Blood Alcohol Concentration (BAC) of 0.10 or more as measured by a breath or blood test; or\\n(2) Under the influence of alcohol. . . .\\nCovenant Section 501, in pertinent part, states that:\\nTo the extent that they are not applicable of their own force, the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several States: . . . Amendments 1 through 9, inclusive; . . . Amendment 14, Section 1; . . . provided, however, that neither trial by jury nor indictment by grand jury shall be required in any civil action or criminal prosecution based on local law, except where required by local law.\\nCovenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, reprinted in CMC at B-\\u00cd01.\\nThe Ataliq court specifically stated that \\\"we do not reach the argument that the Constitution applies with even less force in the NMI than in an unincorporated territory.\\\" 723 F.2d at 691. \\\"Thus, there is merit to the argument that the NMI is different from areas previously treated as unincorporated territories. We need not decide this issue because the independent force of the Constitution is certainly no greater in the NMI than in an unincorporated territory.\\\" Id., n.28.\"}"

n_mar_i/1693652.json

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+"{\"id\": \"1693652\", \"name\": \"HUGO LOREN, Plaintiff/Appellant, vs. E'SAIPAN MOTORS, INC., Defendant/Appellee\", \"name_abbreviation\": \"Loren v. E'Saipan Motors, Inc.\", \"decision_date\": \"1990-04-16\", \"docket_number\": \"APPEAL NO. 89-006; CIVIL ACTION NO. 86-644\", \"first_page\": 133, \"last_page\": \"139\", \"citations\": \"1 N. Mar. I. 133\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and KOSACK, Special Judge.\", \"parties\": \"HUGO LOREN, Plaintiff/Appellant, vs. E'SAIPAN MOTORS, INC., Defendant/Appellee.\", \"head_matter\": \"April 16, 1990\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nHUGO LOREN, Plaintiff/Appellant, vs. E'SAIPAN MOTORS, INC., Defendant/Appellee.\\nAPPEAL NO. 89-006\\nCIVIL ACTION NO. 86-644\\nSubmitted Without Oral Argument March 26, 1990\\nCounsel for Plaintiff/Appellant: Reynaldo O. Yana P. O. Box 52 Saipan, MP 96950\\nCounsel for\\u25a0Defendant/Appellee: Kenneth L. Govendo P. O. Box 2377 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and KOSACK, Special Judge.\", \"word_count\": \"1044\", \"char_count\": \"6326\", \"text\": \"OPINION\\nBORJA, Justice:\\nFACTS\\nThis is an employment case, involving a non-resident worker, Hugo Loren, hereafter \\\"Loren,\\\" who sued his employer, EfSaipan Motors, Inc., hereafter \\\"E1Saipan,\\\" for unpaid overtime wages.\\nAt the conclusion of a non-jury trial, the lower court issued its decision on October 27, 1987, and concluded, as a matter of law, among other things, thats\\n3* Loren's inability to perform as a qualified outboard motor mechanic constituted a breach of his contract with Alvares (E'Saipan]. Loren could not perform under the contract and the contract became void and unenforceable,\\n4. The agreement on the part of Loren, Regis and Alvarez to allow Loren to continue to work at Alvarez1 business as a general helper and cleaner and to reduce his salary without the approval of the Chief.of Labor was.in direct violation of law and specifically 3 CMC 4436 and 4437(e)*\\nThe lower court, therefore; adjudged that Loren take nothing from E1Saipan.\\nLoren appealed.\\nOn appeal, the Appellate Division of the District Court for the Northern Mariana Islands, in its opinion of November 8, 1988, stated that\\nThe decision of the trial court is REVERSED and this matter is REMANDED with instructions that the trial court?\\n1* Find the rates of pay paid to the appellant by the appellee during the time of his employment;.\\n2. Compute the overtime wages due appellant?\\n3* Find whether the failure to pay overtime wages was willful and.,, if so, assess liquidated damages and award attorney fees-\\nOn remand, the lower court refused to follow the \\u00a1mandate of the appellate court. Its rationale was basically that it had found two (.2) reasons as to why the contract , was unenforceable . since Loren appealed only one (i) of the reasons, the trial court interpreted the opinion of the appellate court as reversing it on only one of the two reasons. Consequently, in its May 9, 1989, Judgment After Remand from the Appellate Court, it determined that the contract was still unenforceable.\\nLoren filed a motion for reconsideration. After a hearing, the lower court denied the motion.\\nThis appeal followed.\\nISSUE PRESENTED\\nThe sole issue we need to address on this appeal is whether the trial court erred in not following the mandate of the appellate court.\\nSTANDARD OF REVIEW\\nThe standard of review in this appeal is de novo, since the issue raised involves a legal question. Robinson v. Robinson, No. 89-012, slip op. at 4 (NMI February 5, 1990); EDLF v. Pangelinan, 2 CR 451 (D.NMI App.Div. 1986); and Marianas Public Land Trust v. Government NMI, 2 CR 870 (D.NMI App.Div. 1986). See also, United States v. McConney, 728 F.2d 1195 (9th Cir. 1984).\\nANALYSIS\\nThe lower court erred in its Judgment After Remand frpm the Appellate Court.\\nThe first basis for our holding is that the trial court was in error when it found that it had been reV\\u00e9rSed on only one issue. The appellate court ruled that \\\"The d\\u00e1cis\\u00edo\\u00f1 of the trial court is REVERSEDi...\\\" (Underscoring added.) It was not reversing on only One iSs\\u00fc\\u00e9. It was reversing th\\u00e9 d\\u00e9cl.-\\\" sion of the trial Court.\\nSecondly, the trial Court erred When it read the Appellate Division*s opinion as directing it to enforce th\\u00e9 contract. see page 2 of Judgment After Remand frOm Appellate Court. While there is language in the \\u00d3pinioh of th\\u00e9 \\u00c1pp\\u00e9l\\\" late Division that the contract is enforceable, that court, in its conclusion, does not enforce the contract, but decides the appeal on a quasi-contract theory, i.e., restitution, compare pages 7 and 11 of Opinion.\\nLastly, even assuming that the lower court waS Correct in its interpretation of the Appellate Division Opinion, it erred in its conclusion that it did not have to comply with the mandate. It was required to comply with the mandate. As stated in Vinton Eppsco Inc. of Albuquerque v. Showe Homes, Inc., 638 P.2d 1070 (N.M. 1981)\\nThe district courts have Ortly such jurisdiction on remand as the opinion and mandate of an appellate court specifies. (Citation omitted.) It is well settled that the duty of a lower court on remand is to comply With the mandate of the appellate cCurt, and to obey the, directions therein without variation (emphasis in original), even, though the mandate may be erroneous. (Citation omitted.) (Emphasis added.)\\nIn Puritan Leasing Co. v. Superior Court of Santa Barbara County, 142 Cal. Rptr. 676, 76 C.A.3d 140 (1977), it is further stated that\\n\\\"...The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.\\\" (Citation omitted.) . The strict rule applies although the directions of the reviewing court are based upon an erroneous concept. The remedy of; the party aggrieved by the error lies only in a petition to a reviewing court. (Citation omitted.) .-(Emphasis added.) .,\\nSee, also, Cerminara v. The' Eighth Judicial District Court, 765 P.2d 182 (Nev. 1988).\\nThe trial court,. had a duty to comply strictly with the mandate of the appellate court. This is not a case where the appellate court left discretion to the lower court.. It would be a. different case if the appellate, court had stated that the lower court was to hold further proceedings, without more. See generally, 5 Am.Jur.2d, Appeal and Error. \\u00a7 992. Here, the appellate court was specific as to what the lower court was to do on remand.\\nCONCLUSION .\\nThe trial court's Judgment After Remand from the Appellate Court is reversed and remanded with instructions to strictly comply with the judgment and opinion of November 8, 1988, \\u00f3f the Appellate Division of the District Court for the Northern Mariana Islands. \\u2022\\n5_ . Q-Jose S. D\\u00e9la Cruz Chief Justice nx_ VP\\njESUSC.BORJAASSOCIATEJUSTICE\\nREXFORDC.KOSACKSPECIALJUDGE\\nResolution of this issue is dispositive of this appeal. We need not reach the other issues raised by the parties.\"}"

n_mar_i/1693656.json

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+"{\"id\": \"1693656\", \"name\": \"MICHAEL J. GIODA, Plaintiff/Appellant, vs. SAIPAN STEVEDORING COMPANY, INC., Defendant/Appellee\", \"name_abbreviation\": \"Gioda v. Saipan Stevedoring Co.\", \"decision_date\": \"1990-07-26\", \"docket_number\": \"APPEAL NO. 90-019\", \"first_page\": 310, \"last_page\": \"317\", \"citations\": \"1 N. Mar. I. 310\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"MICHAEL J. GIODA, Plaintiff/Appellant, vs. SAIPAN STEVEDORING COMPANY, INC., Defendant/Appellee.\", \"head_matter\": \"July 26, 1990\\nIN THE SUPREME COURT OP THE COMMONWEALTH OP THE NORTHERN MARIANA ISLANDS\\nMICHAEL J. GIODA, Plaintiff/Appellant, vs. SAIPAN STEVEDORING COMPANY, INC., Defendant/Appellee.\\nAPPEAL NO. 90-019\\nArgued July 11, 1990\\nCounsel for Plaintiff/Appellant: Douglas F. Cushnie P.O. Box 949 Saipan, MP 96950\\nCounsel for Defendant/Appellee: J. Bradley Klemm Klemm, Blair, Sterling & Johnson 1008 Pacific News Bldg. 238 O'Hara Street Agana, Guam 96910\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"1382\", \"char_count\": \"8218\", \"text\": \"DECISION AND ORDER\\nDELA CRUZ, Chief Justice:\\nThis matter came on for hearing before the full panel of this Court on the motion of defendant/appellee,. Saipan Stevedoring Company, Inc., (\\\"SaiSteve\\\") to dismiss the appeal filed by Michael J. Gioda (\\\"Gioda\\\") in this Court. Both parties appeared through counsel. The basis for the motion is our lack of jurisdiction to entertain this particular appeal.\\nI.\\nThis case began on May 10, 1982, when Gioda filed an action, in the U.S. District Court for the Northern Mariana Islands, against his employer SaiSteve for damages sustained when he was shot by an unknown assailant while on duty as a security guard. At the time the suit was filed, the District Court had local trial jurisdiction to entertain the case which is the type ordinarily heard by state or local courts. NMI Constitution, article IV, section 2; NMI Covenant, \\u00a7 402(b).\\nAfter a jury trial, Gioda obtained a favorable verdict and judgment was entered for $63,024. SaiSteve thereafter appealed to the Appellate Division of the District Court for the Northern Mariana Islands. NMI Covenant, \\u00a7 402(c); See Sablan v. Santos, 634 F.2d 1153 (9th Cir. 1980).\\nWhile the appeal was pending in the Appellate Division, the U.S. Congress in 1984 enacted U.S. Public Law 98-454 which-provided that appeals from the District Court over local cases tried there would be brought directly to the Ninth Circuit Court uf Appeals, rather than the District Court Appellate Division as had previously been the case. See Sablan v. Santos, supra. The Appellate Division, as a result, transferred the appeal to the Ninth Circuit which in turn decided that the Appellate Division had jurisdiction to entertain the appeal. Gioda v. Saipan Stevedoring Company, Inc., 855 F.2d 625 (9th Cir. 1988). The case was thus returned to the Appellate Division for consideration on the merits.\\nOn October 26, 1988, the Appellate Division reversed the judgment of the District Court (trial division). Gioda then timely filed an appeal to the Ninth Circuit. This subsequent appeal has been briefed, argued and submitted for decision.\\n'The instant appeal was filed with us by Gioda on April 30, 1990.\\nII.\\nThe issue before us is whether the appeal taken by Gioda to the Ninth Circuit on October 31, 1988, to the extent it has not been decided and no mandate had been issued by the Ninth Circuit prior to May 2, 1989, is a pending appeal encompassed by 1 CMC \\u00a7 3109(b).\\nIII.\\nPursuant to CNMI Public Law 6-25, which established this Court, we assumed jurisdiction over appeals pending as of May 2, 1989, before either the Appellate Division of the District Court for the Northern Mariana Islands, the United States Court of Appeals for the Ninth Circuit, or the United States Supreme Court.\\nHowever, our jurisdiction extends only to pending appeals which have been taken from a judgment, order or decision of the Commonwealth Trial Court. 1 CMC \\u00a7 3109(b); Wabol v. Villacrusis, No. 89-005, Decision and Order (NMI, Dec. 11, 1989); Vaughn v. Bank of Guam. No. 89-004, Decision and Order (NMI, June 6, 1990); CNMI v. Bordallti, No. 90-003, (NMI, June 8, 1990).\\nThe sole basis of our jurisdiction over appeals involving Commonwealth cases pending before the Appellate Division or the Ninth Circuit is 1 CMC \\u00a7 3109(b). In order for us to assume jurisdiction over appeals pending before either the Appellate Division or the Ninth Circuit, they'must be those which were taken from a judgment, decision, or order of the Commonwealth Trial Court. 1 CMC \\u00a7 3109(b).\\nGioda does not dispute that his appeal to the Ninth Circuit was taken from a judgment of the District Court for the Northern Mariana Islands, rendered at a time when that court had trial jurisdiction over certain Commonwealth cases. It is not, however, an appeal taken from a judgment, decision, or order of the Commonwealth Trial Court.\\nWe do not dispute Gioda s contention that his case arises under Commonwealth law and was tried and decided by the District Court pursuant to \\u00a7 402 (b) of the Covenant. We do not agree, however, that the term \\\"Commonwealth Trial Court\\\" as used in 1 CMC \\u00a7 3109(b) encompasses the District Court when it functioned as a trial court for the Northern Mariana Islands.\\nThe term \\\"Commonwealth Trial Court\\\" means the court established under CNMI Public Law 1-5. See 1 CMC \\u00a7 3101, et sea., which was subsequently amended by P.L. 3-14 and thereafter superseded in most parts by P.L. 6-25, the CNMI Judicial Reorganization Act.\\nThe original 1 CMC \\u00a7 3101 read:\\n\\\"There is in the Commonwealth Government a Commonwealth Trial Court. The Commonwealth Trial Court consists of a Land Division and any other divisions the Judiciary may create by rule.\\\"\\nThroughout the provision of P.L. 1-5, as subsequently amended by P.L. 3-14, there is a clear distinction made between the Commonwealth Trial Court and the District Court for the Northern Mariana Islands. 1 CMC \\u00a7 3109 itself, as re-enacted by P.L. 6-25, also distinguishes between the Commonwealth Trial Court and the District Court.\\nWe are not persuaded that the term \\\"Commonwealth Trial Court\\\" encompasses the District Court for the Northern Mariana Islands when- that Court properly exercised trial jurisdiction over Commonwealth cases, such as the suit filed by Gioda, pursuant to P.L. 1-5. The term is specific and not general. It is not ambiguous, even under 1 CMC \\u00a7 3109.\\nWe construe a statute according to its plain-meaning, where it is clear and unambiguous. Tudela v. MPLC. No. 90-011 (NMI, June 7, 1990); CNMI v. Delos Santos, 3 CR 661 (D.NMI App.Div. 1989). With respect to the instant case, the term Commonwealth Trial Court as used in 1 CMC \\u00a7 3109(b) clearly means the Commonwealth Trial Court, and not the District Court for the Northern Mariana Islands. Even if we were to resort to the legislative history of P.L. 6-25, which is not necessary, it is clear that the term does not encompass the District Court.\\nWe reject Gioda's invitation to construe the term Commonwealth Trial Court so as to encompass the District Court for the Northern Mariana Islands for two reasons. First, to do so would violate a fundamental canon of statutory construction. Second, to do so would be tantamount to amending 1 CMC \\u00a7 3109(b), which we clearly do not have the power to do.\\nIt may well be, as Gioda contends, that the CNMI legislature had no knowledge of this particular case and had assumed that all actions under local law had originated from the Commonwealth Trial Court; the implication being that had the legislature known of this case, it would have included it within the scope of 1 CMC \\u00a7 3109(b). That may or may not be true. But for us to construe differently the plain-meaning of this section, which is clear and unambiguous, would have us speculating as to what the legislature might or might not have done. Such would be improper.\\nIV.\\nFor the foregoing reasons, we conclude that this Court has no jurisdiction over the appeal taken by Gioda to the Ninth Circuit from the judgment of the Appellate Division entered on October 26, 1988. Therefore,\\nIT IS ORDERED that the instant appeal be, and the same is, hereby DISMISSED.\\nENTERED this I 7 day of July, 1990.\\nJOSE S. DELA CRUZ, Chief Justice^'\\\"\\\"'\\nRamon G. Villagomez, Associate Justice\\nJesus C. Borja, Associate Justice\\nFrom and after January 10, 1983, the Commonwealth Trial Court was given original jurisdiction over all civil and criminal matters arising under the laws of the Commonwealth of the Northern Mariana Islands. 1 CMC \\u00a7 3102(b). Local cases filed and pending before the District Court for the Northern Mariana Islands, before that date, remained with the District Court for processing and disposition by that court. 1 CMC \\u00a7 3102(c).\"}"

n_mar_i/1693663.json

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+"{\"id\": \"1693663\", \"name\": \"MARIANAS PUBLIC LAND CORPORATION, Plaintiff/Appellant, vs. KAN PACIFIC SAIPAN, LTD., Defendant/Appellee\", \"name_abbreviation\": \"Marianas Public Land Corp. v. Kan Pacific Saipan, Ltd.\", \"decision_date\": \"1990-09-28\", \"docket_number\": \"APPEAL NO. 90-014; CIVIL ACTION NO. 90-001\", \"first_page\": 431, \"last_page\": \"440\", \"citations\": \"1 N. Mar. I. 431\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, B\\u00d3RJA and VILLAGOMEZ, Justices.\", \"parties\": \"MARIANAS PUBLIC LAND CORPORATION, Plaintiff/Appellant, vs. KAN PACIFIC SAIPAN, LTD., Defendant/Appellee.\", \"head_matter\": \"September 28, 1990\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nMARIANAS PUBLIC LAND CORPORATION, Plaintiff/Appellant, vs. KAN PACIFIC SAIPAN, LTD., Defendant/Appellee.\\nAPPEAL NO. 90-014\\nCIVIL ACTION NO. 90-001\\nArgued and submitted on August 28, 1990.\\nCounsel for Plaintiff/Appellant: William M. Fitzgerald P.O. Box 909 Saipan, MP 96950\\nCounsel for Defendant/Appellee: Charles Novo-Gradac P.O. BOX 222 CHRB Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, B\\u00d3RJA and VILLAGOMEZ, Justices.\", \"word_count\": \"2094\", \"char_count\": \"12825\", \"text\": \"AMENDED OPINION\\nVILLAGOMEZ, Justice:\\nOn December 16, 1977, the Northern Marianas Government entered into an agreement with Kan Pacific Saipan, Ltd. (Kan Pacific) for the lease of 146 hectares of public land in Saipan. The lease was amended to increase the land area to 149 hectares in December, 1981.\\nUnder section 12 of the lease; Kan Pacific agreed to construct on the premises: (1) an 18-hole championship standard golf course within 26 months (by February, 1980); (2) at least 50 cottages within 30 months (by June, 1980); (3) a baseball stadium within 24 months (by December, 1979) ; (4) a swimming pool of Olympic standard size within 18 months (by June, 1979); (5) a multi-purpose structure, containing an auditorium, gymnasium, meeting hall, and two rooms suitable for convention use; (6) recreational facilities suitable for a children's summer camp; and (7) other facilities as shown in the master plan for the development of the premises.\\nThe lease sets forth events that would be deemed to constitute default on the part of Kan Pacific. It did not, however, provide for forfeiture upon any default.\\nAfter the lease was executed, the Marianas Public Land Corporation (MPLC) succeeded to the government's interest pursuant to N.M.I. Const, art. XI, \\u00a7 1.\\nIn November, 1986, MPLC brought suit against Kan Pacific. In its complaint it alleged, inter alia, that Kan Pacific had defaulted under the lease by failing to: (1) construct the 50 cottages; (2) construct the multi-purpose structure; (3) construct the recreational facilities suitable for a children's summer camp; and (4) open the swimming pool and baseball stadium. MPLC sought forfeiture of the lease, possession of the premises, rent due after forfeiture, costs of the suit, and other relief as the court deemed proper. It did not seek damages resulting from the alleged default.\\nThe trial commenced on December 1, 1987. MPLC presented its case in chief only as to forfeiture. It did not present any evidence relating to damages. After MPLC rested, Kan Pacific moved to dismiss on the grounds that: (1) the lease did not provide for forfeiture upon default; (2) there is no Commonwealth statute permitting forfeiture; and (3) MPLC waived forfeiture by accepting rental payments up to the time of trial.\\nFollowing submission of Kan Pacific's motion, the trial court expressed c\\u00f3ncern that if the case were to be dismissed pursuant to Com.R.Civ.Pro. Rule 41(b), MPLC could file a subsequent action for damages, Which the court felt could be proved. If Kan Pacific could not pay the damages, MPLC could execute on the land \\u2014 reaching the same tesult, repossession of the property. In response, counsel for Kan Pacific stated:\\nThe court is correct . . . that the recourse for [MPLC] is damages. I believe that is correct. It is damages. * . .So, they can come in for damages. That is not this lawsuit. They've not even attempted to prove up damages. It's very clear that the thrust of the pleading and the prove [sic] is forfeiture, and not damages.\\nWe are perfectly willing to accept the real possibility . . . that there will be another lawsuit in attempting to prove, so called damages, but that is a fight for a different day under different rules and we're going to be focusing on something very different.\\nAnd, I would ask this court to grant,.to take time if necessary . . . but I would like to get it done right now,, really, I mean like today.\\n\\u00c9R at 17-19.\\nThe court then asked MPLC whether it was suing only for possession.and forfeiture of the lease. Counsel for MPLC replied that that was correct and added: \\\"[w]e are not-looking for damages at this time.\\\" ER at 19.\\nThe court then continued the trial to the following day. Before it could rule on the motion to dismiss, the parties filed a stipulation for dismissal which stated, in part:\\nIt is stipulated by and between the parties . . . that plaintiff's complaint for termination of the . . . lease agreement shall be dismissed with prejudice .\\nMPLC v. Kan Pacific Saipan, Ltd., Civil Action No. 9D-001, slip op. at 2 (C.T.C. April 6, 1990). The stipulation did not mention anything about a claim for damages. On December 2, 1987, the trial court dismissed the action with prejudice pursuant to the stipulation.\\nMore than three year? after the first complaint was filed, on January 2, 1990, MPLC filed a second complaint against Kan Pacific setting forth virtually the same allegations but this time praying additionally for monetary damages resulting from the allegedly continuing defaults. Kan Pacific moved for summary judgment, arguing that since the second complaint was virtually the same as the first, it was barred by res judicata. The trial court agreed and granted Kan Pacific's motion. MPLC v. Kan Pacific Saipan. Ltd., Civil Action No. 90-001 (C.T.C. April 6, 1990). MPLC timely appealed.\\nISSUE\\nWhether the trial court erred in ruling that res judicata precluded MPLC from filing a second action, for damages, after the first action seeking forfeiture of the lease was dismissed with prejudice.\\nANALYSIS\\nAn order granting summary judgment is reviewed de novo. If there is no genuine issue of material fact, the analysis shifts to whether the substantive law was correctly applied. Borja v. Rangamar, No. 89-009 (N.M.I. Sept. 17, 1990). We see no genuine issue of material fact and will only determine whether the trial court correctly applied substantive law.\\nIt is our opinion that res judicata does not preclude MPLC from subsequently suing Kan Pacific on a damage claim relating to the alleged default.\\nThere are two reasons for this. First, Kan Pacific acquiesced in the first action for MPLC to later \\\"come in for damages\\\" in a \\\"fight for a different day under different rules . . . focusing on something very different.\\\" Second, the dismissal with prejudice of the action for forfeiture failed to coherently dispose of the whole controversy between the parties, leaving them with a judgment contradictory to their rights and obligations under section 12 of the lease.\\nThe trial court correctly pointed out that under the Restatement (Second) of Judgments (hereafter Restatements \\u00a724 and 25 (1982), a valid judgment extinguishes all rights of a plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose, including remedies or forms of relief not demanded in the first action.\\nHowever, Restatement \\u00a7 26 provides exceptions to the general rule:\\n(1) When any of the following circumstances exists, the general rule . . . does not apply to extinguish the 'claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against a defendant:\\n(a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein; or\\n(f) It is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as . . . the failure of the prior litigation to yield a coherent disposition of the controversy.\\nAs explained below, this case falls under these two exceptions.\\nA. Kan Pacific acquiesced to a subsequent suit for damages bv MPLC.\\nDuring the trial of the first action, counsel for Kan Pacific agreed that MPLC's recourse was for damages and stated that \\\"they can come in for damages.\\\" He further stated:\\nWe are perfectly willing to accept the real possibility\\n. , . that there will be another lawsuit in attempting to prove, so-called damages, but that is a fight for a different day under different rules and we're going to be focusing on something very different.\\n(Emphasis added.) This statement constitutes acquiescence under Restatement \\u00a7 26(1)(a).\\nThe Restatement cites Brown v. Lockwood, 76 A.D.2d 721, 432 N.Y.S.2d 186 (1980), a case quoting from and interpreting the draft version of \\u00a7 26(1)(a):\\nConcerning the issue of res judicata, the court on appeal stated that since all the facts regarding the making and breach of contracts were relevant to both actions and were actually litigated in the first action, claim preclusion would ordinarily apply to bar the legal theory of the second action because it could, and should, have been asserted in the first, But since the rule was designed to protect defendants from being vexed by multiple suits, acquiescence by the defendant works as waiver. The court held that because the defendant claimed at the fraud trial that the proof in the two actions would be different and he would defend both differently, ho would not be permitted to assert res judicata to bar the second action. Accordingly, the court reversed the lower court decision.\\nRestatement Appendix (1988) at 435. In Brown, the plaintiff first sued for fraud, then later sued for breach of contract. The trial court dismissed the second action by applying res judicata. The appellate court reversed because- a statement made by the defendant's counsel in court in the first action constituted acquiescence to a sepond action, and precluded a res judipata defense.\\nDuring the trial of MPLq's . first action, counsel for Kan Pacific made a statement in court very similar to the statement in Brown. Applying Restatement \\u00a7 26(1) (a), ve reach the. same, conclusion as the Brown court.\\nWe note that the parties' stipulation to dismiss specifically referred to \\\"plaintiff's complaint for termination of the . . . lease agreement . . . .\\\" (Emphasis added.) If Kan Pacific had intended to preclude a subsequent suit, it could have insisted that any claim for damages be barred under the stipulation to dismiss, Under the circumstances of this case, the fact that Kan Pacific did not do so supports the conclusion that it acquiesced to the second suit.\\nIn the first, action, MPLC did not seek damages in^ itfs complaint, did not raise a damage claim at trial, and did not adduce pertinent evidence or present pertinent arguments concerning such a claim. The trial court did not entertain a damage claim, and the stipulation to dismiss did not touch upon it. Therefore, both parties and the trial court anticipated that the issue of damages could be litigated in a subsequent lawsuit, \\\"a fight for a different day under different rules . . . focusing on something very different.\\\" Kan Pacific clearly acquiesced to a subsequent action for damages.\\nThis analysis is sufficient for a reversal and remand for a trial on.the issue of damages. We will, however, briefly consider the second reason for finding error.\\nB. The dismissal of the first action failed to coherently dispose of the controversy.\\nThe trial court's ruling concerning res judicata means that MPLC may not sue Kan Pacific for any cause of action which could have been raised in the fj,.rst suit. It effectively terminates MPLC's rights under section 12 of the lease. If the ruling were to stand, MPLC could not enforce the covenants in that provision. Instead of settling their dispute, the ruling modifies the lease agreement and frustrates the parties' intended contractual relationship.\\nThe lease will be in effect for approximately 12 more years. Assuming that MPLC's allegations have merit, unless MPLC can enforce the covenants in section 12 Kan Pacific may continue to ignore its contractual duties.\\nFor the next 12 years, Kan Pacific's covenants and obligations under section 12 of the lease agreement become meaningless. And just as important, MPLC would not be able to sue for damages as a result thereof.\\nFor the reasons set forth above, we REVERSE the decision of the trial court and REMAND this case for trial on the issues of liability arid damages. Res judicata precludes MPLC from any further action for forfeiture.\\nEntered this day of _, 1990.\\nfsvZ- J C-&emdash; -, JOSE S. DELA CRUZ, Chief Just|d\\u00bf\\nRamon G. Villagomez, Associate Justice\\nJesus C. Borja, Associate Justice\\nMPLC alleged in its second complaint that as part of the consideration for the stipulation, Kan Pacific agreed to cure the alleged defaults in due course.\\nThe Restatement provides the \\\"rules of decision\\\" in this action because of \\\"the absence of written law or customary law to the contrary.\\\" 7 CMC \\u00a7 3401. Cf. Borja v. Goodman, No. 89-010 (N.M.I. June 26, 1990) (Villagomez, Justice, concurring; Hillblom, Special Judge, concurring) .\"}"

n_mar_i/1693667.json

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+"{\"id\": \"1693667\", \"name\": \"IN RE ESTATE OF TERESA MUEILEMAR, Deceased\", \"name_abbreviation\": \"In re Estate of Mueilemar\", \"decision_date\": \"1990-11-29\", \"docket_number\": \"APPEAL NO. 90-020; CIVIL ACTION NO. 88-86P\", \"first_page\": 441, \"last_page\": \"448\", \"citations\": \"1 N. Mar. I. 441\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and HILLBLOM, Special Judge.\", \"parties\": \"IN RE ESTATE OF TERESA MUEILEMAR, Deceased.\", \"head_matter\": \"November 29. 1990\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nIN RE ESTATE OF TERESA MUEILEMAR, Deceased.\\nAPPEAL NO. 90-020\\nCIVIL ACTION NO. 88-86P\\nArgued October 5, 1990\\nCounsel for Appellants: Reynaldo O. Yana P. O. Box 52 Saipan, MP 96950\\nCounsel for Appellee: Michael A. White P. O. Box 222 CHRB Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and HILLBLOM, Special Judge.\", \"word_count\": \"1508\", \"char_count\": \"8751\", \"text\": \"OPINION\\nBORJA, Justice:\\nFACTS\\nThis is a probate proceeding involving the estate of Teresa Mueilemar, deceased (hereafter Teresa), filed on February 3, 1988. The petitioner/administratrix alleges that at the time of her death, Teresa owned, in addition to other lands on the island of Saipan, Lot 1941 and Lot 1937, containing 2.5 hectares. On May 20, 1988, certain individuals filed objections to the claim that Lot 1941 and Lot 1937 belonged to the heirs of Teresa. They claimed that such land belongs to the heirs of Ana Piere Mueilemar (hereafter Ana). Teresa was only one of five children of Ana.\\nAfter a two day hearing on the objections, the Court decided on November 23, 1988, that the land belonged to the heirs of Teresa. Its findings of fact are summarized as follows:\\n1. Ana Piere Mueilemar originally owned the lands involved in this proceeding. Ana had five children: Carmen, Vicenta, Ignacia, Teresa, and Cornelia. All of the children had issues. Teresa, prior to her death, was blind.\\n2. All of the children and grandchildren of Ana have died. Living heirs recall two sets of facts of what happened to the land: A) Either Ana herself, or her daughters, after her death, transferred ownership of the land to Teresa because she was blind; or B) Ana, and now all of her heirs, retained ownership of the land but allowed Teresa to have use of the land, for the duration of her life, because of her blindness.\\n3. In 1942, at least part of the land was leased to a Japanese national. The lessors were the 5 children of Teresa and the son of Carmen Mueilemar.\\n4. Right after World War II, the land was used by the U.S. military until around 1950. Some heirs of Teresa moved back on the land. None of the heirs of the other 4 sisters of Teresa ever went back to the land after the military left, except that some visited and picked fruits.\\n5. In the late 1940's, the heirs of Teresa claimed the land at the Land and Claims Office. In the early 1950's, the same office issued a Determination of Ownership declaring that the land is owned by the heirs of Teresa. Certain heirs of the sisters of Teresa felt that they had ownership rights to the land, but none made any such claim officially.\\n6. The heirs of Teresa filed a claim for damages to the property in the early 1970's with the War Claims Commission. The claims were awarded and received by the heirs of Teresa. None of the heirs of the sisters of Teresa ever filed a claim or received any money from the War Claims Commission.\\nBoth parties adopted the trial court's findings of fact \\u00e1s their statement of the facts.\\nISSUE PRESENTED\\nWhether the trial court erred in concluding that the lands in question are owned by the heirs of Teresa Mueilemar, deceased.\\nSTANDARD OF REVIEW\\nThe conclusion as to the ownership of the lands is a legal conclusion and is subject to de novo review. Sablan v. Iginoef, No. 89-008 (N.M.I. June 7, 1990).\\nANALYSIS\\nThe. trial court stated that it had to weigh the evidence and make a decision based on a preponderance of the evidence. It carefully reviewed all testimony and the land documents from the government agencies and then concluded that the evidence in support of the contention that the land is owned by the heirs of Teresa substantially outweighed the evidence supporting the contention that the land belongs to all the heirs of Ana.\\nBased on the facts found by the trial court, its conclusion is reasonable and supported by the facts.\\nBecause the parties stipulated that the heirs of Ana P. Mueilemar (other than Teresa or her heirs) never received notice about any hearing leading to the land determination in the 1950's, appellants argue that it was error for the trial court to have allowed the introduction of the determination of ownership into evidence. They contend that, without this evidence, the trial court would not have reached the conclusion that it did. They argue that their due process rights under the 14th Amendment of the U.S. Constitution were violated since the determination of ownership was issued without notice to them. As such, they assert that the trial court should not have allowed such evidence to be introduced.\\nThe record does not reveal any due process violation. A mere lack of notice does not result in a due process violation. Sab\\u00edan v. Iqinoef, supra, slip op. at 4, n.3.\\na determination of ownership issued by the former Government of the Trust Territory of the Pacific Islands should be carefully scrutinized before being accepted as conclusive. See Aldan v. Kaipat, 2 CR 190, 193, 194 (D.N.M.I App.Div. 1985), aff'd 794 F.2d 1371 (9th Cir. 1986) . In such a scrutiny, a challenger must introduce evidence of the circumstances underlying the claim of a lack of notice. For example, challengers Should present evidence as to Why notice should have been given to them, i.e., the basis of their claim, that they were on island, that their whereabouts would have been easily ascertainable with a diligent search; why they did not file a claim themSelves with the government, i.e., they relied on their sibling or other relative (the basis for their reliance) ; why they did not object to the use of the lahd by the claimants; when they received actual notice of the determination; plus any other information that would assist the court in concluding that the title determination should be set aside. Absent evidence justifying the setting aside of a title determination, we will not address the issue of a due process violation.\\nOnce the determination of ownership is properly shown to be invalid, then it would be erroneous for the court to admit it into evidence as proof of ownership. The trial court would then have to review other relevant evidence to arrive at its conclusion of the ownership of a piece of property.\\nln this case, the only evidence in support of the argument that the determination of ownership should not be part of the evidence is the fact that the other heirs of Ana never received / notice of any hearing that resulted in the determination. This is not sufficient. The admission by the trial court of this document into evidence was proper. It did not abuse its discretion.\\nBut even if the determination Of ownership were excluded as evidence, the other facts accepted by the parties sufficiently support the trial court's conclusion as to ownership. These facts are:\\n1. That after World War II only heirs of Teresa lived on the land;\\n2. That after the war only heirs of Teresa claimed the land as their own; and\\n3. That only heirs of Teresa filed claims with, and only they received awards from, the War Claims Commission for damage to the land.\\nThe evidence is sufficient to support the claim of Teresh's heirs that Teresa, at some point in time, was given this land by her mother, or by her sisters, for herself solely.\\nCONCLUSION\\nThe trial court's decision is AFFIRMED in all respects.\\nIc-^j i- .V-^L Jose S. D\\u00e9la Cruz Chief Justice\\nJesusC.BorjaAssociateJustice\\nLarryL.HillblonSpecialJudge\\nObjectors state in their notice and objection that Lot 1932 is included in their claim. However, the petitioner/administratrix did not include such lot in the estate of Teresa. In addition, Determination of Ownership No. 418 describes the property as \\\"lots #1941 and #1937 except the northern neck of lot #1941 which is now known as lot #1932. .\\\"\\nThe issue of the admission of the Determination of Ownership, as framed by the appellant, is an issue that is subsumed in the issue as stated by this Court. We do not agree with the issues as framed by the appellee.\\nWe agree with the appellant that in reviewing the propriety of the admission or exclusion of evidence, we apply the abuse of discretion standard. CNMI v. Delos Santos, 3 CR 661 (D.N.M.I. App. Div. 1989). We have done this in our de novo review.\\nWe disagree with the appellee that the clearly erroneous standard applies. We are not reviewing the findings of fact of the trial court. EDLF v. Panoelinan, 2 CR 451, 457 (D.N.M.I. App.Div. 1986) (\\\"When reviewing the findings of fact of the trial court the appellate court uses the clearly erroneous standard.\\\"). As noted above, the parties do not-dispute the findings of fact. Instead, they adopt them. Our review is simply to determine whether the legal conclusion is supported by the findings of fact made by the court, and agreed to by the parties.\"}"

n_mar_i/1693673.json

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+"{\"id\": \"1693673\", \"name\": \"IN THE MATTER OF THE ESTATE OF: MARIANA C. DELEON GUERRERO, Deceased\", \"name_abbreviation\": \"In re the Estate of Deleon Guerrero\", \"decision_date\": \"1990-08-24\", \"docket_number\": \"APPEAL NO. 89-017; CIVIL NO. 87-295\", \"first_page\": 324, \"last_page\": \"328\", \"citations\": \"1 N. Mar. I. 324\", \"volume\": \"1\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T23:44:49.013977+00:00\", \"provenance\": \"CAP\", \"judges\": \"f JOSE S. DELA CRUZ, Chief Justic^\\\"\", \"parties\": \"IN THE MATTER OF THE ESTATE OF: MARIANA C. DELEON GUERRERO, Deceased.\", \"head_matter\": \"August 24, 1990\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nIN THE MATTER OF THE ESTATE OF: MARIANA C. DELEON GUERRERO, Deceased.\\nAPPEAL NO. 89-017\\nCIVIL NO. 87-295\", \"word_count\": \"906\", \"char_count\": \"5551\", \"text\": \"ORDER DENYING PETITION FOR REHEARING\\nVILLAGOMEZ, Associate Justice:\\nThe Court's opinion in this appeal was issued on July 20, 1990. The appellant timely filed a petition for rehearing on August 3, 1990, pursuant to Rule 40(a), R.App.Proc. The petition is based on two grounds:\\n1. That the court erred in its determination of a married woman's property rights under Chamorro customary law.\\n2. That the court in its determination of Chamorro customary law breached applicable Trust Territory Code provisions regarding eq\\u00fcal protection and sex discrimination.\\nunder R.App.Proc. Rule 40, a petition for rehearing must state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended. The rule does not ordinarily allow the petitioner to raise the same issues and repeat the same arguments already heard and decided on appeal. Nor does it allow the- raising of new issues or contentions not formerly raised on appeal, except under extraordinary circumstances. \\\"[A] court of appeals generally will not consider claims raised for the first time in a petition for rehearing.\\\" Dean v. Dean, 837 F.2d 1267, 1268 (5th Cir. 1988),\\nUpon review of the first ground for rehearing asserted in the petition, we conclude that it is a rehash of an issue and argument already raised and decided, and that the petitioner did not support the request for rehearing on this ground by stating with particularity any point of law or fact which we overlooked or misapprehended. She merely disagrees with our opinion. That does not constitute a basis for rehearing under R.App.Proc. Rule 40(a) .\\nThe second ground for rehearing presents an entirely new issue which could have, but was not, raised on appeal. No extraordinary circumstance is shown to justify our consideration of this issue at this stage.\\nA petition for rehearing should not be made routinely or as a matter of course. A party should carefully examine what point of fact or law, in his/her opinion, has been overlooked or misapprehended and clearly explain the basis of that opinion.\\nThe petition for rehearing is DENIED.\\nDated this 12-\\u00bff ^ day of , 1990.\\nf JOSE S. DELA CRUZ, Chief Justic^\\\"\\nRamon G. Villagomez, Associate Justice\\nPedro M. Atalig, Special Judge\\n\\\"A petition for re-hearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the Court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for re-hearing will be received unless requested by the Court, but a petition for re-hearing will ordinarily not be granted'in the absence of such a request. If a petition for re-hearing is granted the Court may make a final disposition of the cause without re-argument or may restore it to the calendar for re-argument or re-submission or may make such other orders as are deemed appropriate under the circumstances of the particular case.\\\"\\nR.App.Proc. Rule 40 was patterned after Fed.R.App.Proc. Rule 40. \\\"Rule 40 of the Fed.R.App.P. was not promulgated, in the absence of demonstrable mistake, to permit reconsideration of the same matters, nor can a party shift his position on petition for rehearing.\\\" United States v. Smith, 781 F.2d 184 (10th Cir. 1986) (emphasis added? citations omitted).\\nAccording to the Ninth Circuit Court of Appeals:\\n\\\"Courts of Appeals will ordinarily not consider for the first time on rehearing issues not presented by the parties in their briefs on appeal. Partenwedeerei, MS Belarano v. Weigel, 313 F.2d 423, 425 (9th Cir. T962). A case must involve extraordinary circumstances [to] justify our considering on petition for rehearing issues which were not previously presented. United States v. Sutherland. 428 F.2d 1152, 1158 (5th Cir. 1970) (citation omitted). See also Moore v. United States, 598 F.2d 439, 441-42 (5th Cir. 1979).\\nEscobar Ruiz v. Immigration and Naturalization Service, 813 F.2d 283, 285-86 (9th Cir. 1987).\\nThe Court's decision applies only to cases where a Chamorro1 wife predeceased her husband prior to the effective date of the probate code \\u2014 February 14, 1984. It does not necessarily apply to other circumstances, such as a divorce or the death of a married woman occuring after February 14, 1984. Petitioner insists that under the Court1s decision, Mariana Guerrero's three children will not inherit from the marital assets. That interpretation is incorrect. Under Chamorro custom, as it existed in 1978, when Mariana died, the land vested in her husband. When he died, the land descended to the children. Here the children did inherit the land \\u2014 from their father.\\nA petitioner' should . at least state that the- Court overlooked or misapprehended a . point of law or fact and then, explain why this is so.\\nEven if we were to rehear this appeal and consider petitioner's second ground, our decision would not be different. Discrimination of some sort, based on cultural traditions as evidenced in customary law, is not per se unconstitutional or otherwise unlawful unless it is shown to be unreasonable and irrational. No such showing was made in this case.\"}"

n_mar_i/1695362.json

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+"{\"id\": \"1695362\", \"name\": \"IN THE MATTER OF THE ADOPTION OF NOEL TUDELA OLOPAI AND GIOVANNI TARS TUDELA OLOPAI, Minor Children\", \"name_abbreviation\": \"In re the Adoption of Olopai\", \"decision_date\": \"1991-06-12\", \"docket_number\": \"APPEAL NO. 90-021; CIVIL ACTION NO. 88-72A\", \"first_page\": 91, \"last_page\": \"121\", \"citations\": \"2 N. Mar. I. 91\", \"volume\": \"2\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-11T00:32:25.497323+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and KOSACK, Special Judge.\", \"parties\": \"IN THE MATTER OF THE ADOPTION OF NOEL TUDELA OLOPAI AND GIOVANNI TARS TUDELA OLOPAI, Minor Children.\", \"head_matter\": \"June 12, 1991\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nIN THE MATTER OF THE ADOPTION OF NOEL TUDELA OLOPAI AND GIOVANNI TARS TUDELA OLOPAI, Minor Children.\\nAPPEAL NO. 90-021\\nCIVIL ACTION NO. 88-72A\\nArgued October 5, 1990\\nCounsel for Appellant: Michael A. White P. 0, Box 222, CHRB Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and KOSACK, Special Judge.\", \"word_count\": \"7117\", \"char_count\": \"42874\", \"text\": \"OPINION\\nBORJA, Justice:\\nFACTS\\nThis is an appeal from a decree granting a petition for adoption. Juan T. Taitano, Jr. (hereafter Taitano) filed the petition November 3, 1988. Taitano sought to adopt Noel Tudela Olopai and Giovanni Tars Tudela Olopai, the minor children of Primitiva T. Taitano, Jr. (hereafter Primitiva), the wife of Taitano. The natural father of the children is Tarsicio K. Olopai (hereafter Olopai). Primitiva previously lived with Olopai for approximately three years.\\nA notice of hearing was issued on November 3, 1988. Another notice of hearing was issued on November 9. The petition was set for hearing on November 17.\\nOlopai did not see a copy of the Notice of Hearing until the morning of the 17th. The petition itself was never served on Olopai.\\nOlopai moved for a continuance on the 17th. The court granted the continuance until the 22nd, at 1:30 p.m. One of the matters considered by the Court was that Taitano was stationed at an Army Base in Germany. He was scheduled to depart Saipan with his wife and the two minor children on November 23, 1988.\\nOn November 22, 1988, Olopai again moved for a continuance to have more time to prepare his objection to the petition. The motion was denied. The petition was heard on the 22nd, and the decree issued the next day granting the adoption.\\nOlopai and Primitiva were never married but lived together since the latter part of 1984 until September 1987. They lived together at the home of Olopai!s uncle. While living together, they had two children, Noel Tudela Olopai (born February 14, 1985) and Giovanni Tars Tudela Olopai (born March 25, 1987). These two children were the subject of the adoption proceeding.\\nOlopai and Primitiva separated in September 1987. Primitiva moved out of the home they were staying in and took the two children with her.\\nOlopai unsuccessfully tried to visit the children where they were staying. He did manage to have the children visit him once at his residence. He further managed to visit each of the children once when they were hospitalized at different times.\\nOlopai never provided financial support to the boys since they were separated from him. When the boys were hospitalized, Olopai brought them toys and pajamas.\\nOn January 6, 1988, Primitiva and Taitano were married and Taitano started supporting the children.\\nBased on the above facts, the trial court granted the petition for adoption and concluded that:\\n1. Although Olopai had not consented to the adoption of the children, he was given notice and he did appear and was represented at the proceeding by an attorney.\\n2. The interests of the children would be promoted if they are adopted by the petitioner.\\n3. Olopai abandoned the children for more than six months.\\nOlopai, in this appeal, argues that the trial court erred in denying his motion for a continuance, and in concluding that an abandonment had occurred.\\nSTANDARD OF REVIEW\\nThe denial of a motion for continuance is subject to the abuse of discretion standard. Commonwealth v. Bordallo, No. 90-003, slip qp. at 10 (N.M.I. June 8, 1990).\\nWhether an abandonment had occurred is a legal conclusion subjeqt to de novo review. Loren v. E'Saipan Motors. Inc., No. 89-006, slip op. at 3 (N.M.I. April 16, 1990).\\nANALYSIS\\nI.Denial of Motion for Continuance\\nIn Commonwealth v. Bordello, supra, we adopted the four factors to be considered, as stated in U.S. v. 2.61 Acres of Land More Or Less, 791 F.2d 666, 671 (9th Cir. 1985), in reviewing a denial of a motion for continuance. They are;\\n1, Mqvant's diligence in his efforts to ready his defense prior to the date set for hearing;\\n2, The likelihood that the need for a continuance could have been met if the continuance had been granted;\\n3, The extent a continuance would have inconvenienced the court and opposing party; and\\n4, The extent the mqvant might have suffered harm as a result of the denial.\\nNo one factor is dispositive. We weigh each one to determine whether th.e denial was arbitrary or unreasonable. However, if appellant cannot show prejudice by the denial, we will not reverse the trial court's ruling.\\nIn considering the four factors, we hold that the trial court abused its discretion in denying the request for a continuance. Three of the four factors weigh heavily in favor of Olopai.\\nWe cannot say that Olopai was not diligent when he was not even given time to file a response to the petition, much less prepare a defense.\\nOlopai wanted more time to adequately prepare for the hearing. However, he should have been given more time to file a response first. Thereafter, the time for the hearing could have been scheduled.\\nThe record does not show that the court would have been inconvenienced had a continuance been granted. While Taitano would have been inconvenienced due to his scheduled departure from the Commonwealth, his inconvenience is minimal compared to the prejudice suffered by Olopai by the denial of the continuance.\\nThe denial of the continuance severely prejudiced Olopai. His natural parental rights to his children were at stake. Yet, he was not only denied adequate time to prepare his defense, he was also denied adequate time to file a response. His right to procedural due process was violated because he was not given a meaningful opportunity to be heard. Boddie v. Connecticut. 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).\\nThe NMI does not have a specific statute dealing generally with proceedings to terminate parental rights. The closest statute is the Uniform Parentage Act, 8 CMC \\u00a7 1700-1726 (hereafter sometimes referred to as the Act) . This Act has provisions for the termination of parental rights in the event that the natural mother wishes to relinquish a child for adoption and the natural father cannot be identified (section 1725(d)); or if the natural father has been identified but does not appear at a hearing, after due notice; or, if he appears, fails to claim custodial rights (section 1725(c)). The Act does not provide for situations where the natural mother does not wish to relinquish her child for adoption, as in this case.\\nIn the absence of a specific statute, the procedure under the Act, including the notice provisions, for the termination of parental rights should be applied to situations like the case before us. Such procedure provides the minimum procedural due process safeguards. We hold that the procedures and notice provisions under the Act should be followed in cases where the natural mother, or father, does not wish to relinquish a child for adoption, but merely wishes to consent to the adoption of her or his child by her or his spouse.\\nThe Act sets up certain procedures to be followed in a certain adoption proceeding governed by it. Applying such procedures to the present case, the following analysis would ensue.\\nOlopai is a presumed father under Section 1704(a) of the Act. This section gives five situations where a man is presumed to be the natural father of a child. Subsection (4) states that a man is presumed to be the father of the child if\\nwhile the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child. . . .\\nThe facts are uncontradicted that Olopai received the minor child, Noel, into his home since the date he was born on February 14, 1985, until September 1987. Olopai received the minor child, Giovanni, into his home since the date he was born, March 25, 1987, until September 1987. It is also uncontradicted that both minors' birth certificates list Olopai as the father, and have Olopai's signature, in addition to Primitiva's, as being the informant. Olopai openly held himself out as the father of the children.\\nSince Olopai is the natural father of the children, the children's adoption cannot proceed unless and until the parental rights of Olopai have been terminated.\\nSection 1725(a), in pertinent part, requires that:\\n[I]f a child otherwise becomes a subject of an adoption proceeding, the . . . mother or the person having custody of the child, shall file a petition in the Commonwealth [Superior Court] to terminate the parental rights of the father, unless the father's relationship to the child has been previously terminated or determined by a court not to exist.\\nOlopai's relationship to the children had not been previously terminated or determined by a court not to exist. The trial court should hold the adoption proceeding in abeyance while Primitiva files a petition to terminate the parental rights of Olopai.\\nSection 1725(e) requires notice to Olopai of the proceeding to terminate parental rights. This section requires that such notice be given to Olopai \\\"in the manner appropriate under the rules of civil procedure for the service of process in a civil action in this Commonwealth or in any manner the court directs.\\\"\\nWhen the petition to terminate parental rights is filed, Olopai will be served pursuant to section 1725(e) of the Act. Under Com.R.Civ.P. 12, he would then have twenty days to file an answer. The hearing on the petition could then be set for sometime thereafter.\\nThis is not to say that there can never be a time when a hearing will be scheduled for an earlier time. There may be situations where it might be justifiable. But such a decision should be made only after a party has made an appropriate motion and the matter is heard after due notice.\\nII. Abandonment\\nWe agree with Olopai \\u20achat the parent and child relationship is fundamental and natural. Such a relationship is highly esteemed in our Commonwealth. See the Commonwealth Family Protection Act of 1936, 8 CMC \\u00a7 1221-1233. 8 CMC \\u00a7 1221(b) acknowledges that there exists \\\"customary strong family relationships\\\" in the Northern Mariana Islands. The term \\\"family relationships\\\" includes the parent and child relationship. 8 CMC \\u00a7 1222(g).\\nBecause the \\\"parent-child relationship is natural and fundamental, it follows that termination of such a relationship should require proof beyond a preponderance of the evidence. We agree with the holding and reasoning of the majority in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) that clear and convincing evidence should be required.\\nWe hold that the burden of proof necessary in a proceeding to terminate parental rights is clear and convincing evidence.\\nWe agree with Olopai that the trial court's conclusion of abandonment is not supported by clear and convincing evidence. The record is undisputed that Olopai resided with the children from the date of their births to September 1987. After their separation, he attempted to visit the children once. Because of the manner and time that he made the attempt, he was advised by the police that he was to stay away from the residence where his children were staying. He complied. However, he made several attempts to have the children brought to him. He succeeded only once. He succeeded in having the children brought to him just five months before the hearing on the adoption proceeding. He visited the children on two different occasions when they ware hospitalized separately. The record shows that he attempted to have the children brought to him one month before the hearing on the adoption proceeding. His attempts were unsuccessful due to the refusal of Primitiva and/or Taitano to have the children taken to him. These undisputed facts do not establish clearly and convincingly that Olopai abandoned the children.\\nAlthough we declare the parent-child relationship to be fundamental and natural, such a relationship could be terminated when circumstances, not necessarily on the basis of abandonment, warrant it. We address the criteria to consider in terminating one's parental rights because of our decision to remand this case to the trial court for further proceedings.\\nThe Commonwealth does not have any specific statute setting forth the criteria to be considered in a proceeding to terminate parental rights. However, in situations such as the present case, where the termination proceeding arises as a result of an adoption proceeding, i.e., the adoption proceeding cannot proceed unless and until the parental rights of the father has been terminated, we look to our adoption statute to see if the criteria can be determined.\\nOur adoption statute states that an \\\"adoption shall be granted only if the Court is satisfied that the interests of the child will be promoted by the adoption.\\\" 8 CMC \\u00a7 1403.\\nOlopai argues that this provision does not preclude consideration of the fitness of the parent, the neglect of the child, etc. As such, he contends that we should hold that in a proceeding to terminate parental rights, the criterion is consideration of not only the best interest of the child, but also the natural and fundamental right of the parent to the child.\\nWe find that there is no reason why we cannot, or should not, extend the best interest of the child criteria in an adoption proceeding to a termination of parental rights proceeding. In either proceeding, it is the interests of the child that should be paramount. We hold that the best interest of the child is the paramount criteria to consider in a proceeding to terminate the parental rights of a parent or parents.\\nThe term \\\"best interest of the child,\\\" r\\u00e9quires, at the very least, consideration of the fundamental relationship existing between the child and the natural parent(s). The interests of the adopting parent(s), although not fundamental unless and until the adoption is granted, should also be considered. Such consideration shall include, but not be limited to, the age of the child; the extent of the bond, or potential bond, between each natural parent to the child; the fitness or unfitness of either or both natural parents, taking into account whether the child has been abandoned, neglected, subjected to cruelty, both mental and/or physical, whether either parent is a habitual user of alcohol or drugs, whether either parent has been convicted of a felony where the nature of the crime is inconsistent with being a fit parent, etc.; the extent of the bond, or potential bond, between the adoptive parent(s) and the child; the ability of the natural parertt(s) to provide adequate and proper love, care, attention, and guidance to the child; and the ability of the adoptive parent(s) to provide adequate and proper love, care, attention, and guidance to the child. The term \\\"best interest of the child\\\" is sufficiently broad to include all the foregoing considerations.\\nCONCLUSION\\nThe decision of the trial court is VACATED, and the matter is remanded with instructions that:\\n1. the adoption proceeding be held in abeyance until a petition to terminate the parental rights of Olopai is filed by Primitiva and disposed of, applying the burden of proof and the criteria set forth in this Opinion;\\n2. the issue of whether Tarsicio K. Olopai has abandoned his children shall not be re-litigated in the petition to terminate his parental rights since we have determined that an abandonment has not occurred; and\\n3. if a petition to terminate the parental rights of Olopai is not filed by Primitiva, the trial court shall dismiss the adoption proceeding.\\nz%~u~ /esus C. Borja Associate Justice\\nWe note that Taitano is not represented in this appeal. Several days before oral argument, this Court learned that counsel for Taitano in the adoption proceeding was not counsel on appeal.\\nCounsel for Olopai, prior to the hearing on the 17 th, represented to the court that his client saw the notice the day before. During the examination of Olopai, however, he testified that he saw it the day of the hearing.\\nWe do not address the criteria to be used in a parental rights termination proceeding not resulting from an adoption proceeding.\\nThe dissent contends that our decision to apply the best interest of the child criteria to a parental rights termination proceeding is tantamount to judicial legislation. Dissent at 25. We disagree. We point out that this is a case where the need for a termination proceeding is the result of the filing of an adoption proceeding. We are filling in certain gaps in the Uniform Parentage Act to make it meaningful and workable in this situation. This is, statutory , interpretation. Absent specific statutory factors to be considered in this type of parental rights termination proceeding, we are duty-bound to do so.\\nThe dissent contends that this criteria violates due process. It maintains that \\\"[d]ue process requires that the father's rights cannot be terminated without a finding of unfitness.\\\" Dissent at 24.\\nWe cannot accept the dissent's position that a parent should have a veto power over the welfare of a child. The \\\"best interests of the child\\\" criteria provides a sufficient constitutional safeguard.\\nIn constitutional analysis, a weighing of competing interests is often necessary. In this particular case, we need to balance three interests \\u2014 the rights of the parent in a parent-child relationship, the rights of the minor children in such a relationship, and society's interest in maintaining harmony in, and fostering, such a relationship.\\nThe dissent suggests that the criteria of \\\"best interests of the child\\\" and \\\"unfit parent\\\" are mutually exclusive. Such is not true. We recognize both the child's and the parent's interests as being natural and fundamental. The criteria \\\"best interests of the child\\\" requires consideration of the fitness or unfitness of a parent. The ultimate decision, however, as to which interest, when they compete, is paramount, is the child's interest. This does not violate due process.\\nA review of Commonwealth statutes dealing with children show that the \\\"best interests of the child\\\" criteria is the only criteria used. Our adoption statute allows an adoption only \\\"in the interests of the child.\\\" 8 CMC \\u00a7 1403. The Uniform Child Custody Jurisdiction Act, 8 CMC \\u00a7 1601 et sea. . states that one of its purposes is to ensure that.a custody decree is rendered in the state that can best decide.the case \\\"in the interest of the child.\\\" 8 CMC \\u00a7 1602(a)(2). In section 1604(a)(2) of the same statute, the trial court is given jurisdiction to make a child custody determination if it is \\\"in the best interest of the child.\\\" Under the same criteria, the trial court can also determine that another state assume jurisdiction. 8 CMC \\u00a7 1608(c). In section 1609(b) of the statute, the court is.allowed to decline jurisdiction by reason of conduct, unless required \\\"in the interest of the child.\\\" The dissent correctly notes at page 23 that the purpose of the Uniform Parentage Act is to establish paternity. 8 CMC \\u00a7 1700 et seq. Yet in section 1713(a), it is stated that the judge or referee must evaluate whether a judicial declaration of the father and child relationship would be \\\"in the best interest of the child.\\\" See also 8 CMC \\u00a7 1715(c)'.\"}"

n_mar_i/1695372.json

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+"{\"id\": \"1695372\", \"name\": \"COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. JAMES N. KANIKI, Defendant/Appellant\", \"name_abbreviation\": \"Commonwealth v. Kaniki\", \"decision_date\": \"1991-10-25\", \"docket_number\": \"APPEAL NO. 90-063; CRIMINAL CASE NO. 90-81\", \"first_page\": 353, \"last_page\": \"359\", \"citations\": \"2 N. Mar. I. 353\", \"volume\": \"2\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-11T00:32:25.497323+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. JAMES N. KANIKI, Defendant/Appellant.\", \"head_matter\": \"October 25, 1991\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nCOMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. JAMES N. KANIKI, Defendant/Appellant.\\nAPPEAL NO. 90-063\\nCRIMINAL CASE NO. 90-81\\nArgued and Submitted June 27, 1991\\nCounsel for Defendant/Appellant: Pamela O'Leary Tower Assistant Public Defender Office of the Public Defender Civic Center Saipan, MP 96950\\nCounsel for Plaintiff/Appellee: Maggie Gleason Assistant Attorney General Office of the Attorney General Civic Center Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"1407\", \"char_count\": \"8366\", \"text\": \"OPINION\\nDELA CRUZ, Chief- Justice:\\nOn April 17, 1990, James N. Kaniki was arrested and charged with assault and battery and assault with a dangerous weapon.\\nFollowing a bench trial, Kaniki was found guilty of both offenses on July 26, 1990. Kaniki does not contest his conviction for assault and battery, but appeals his conviction for assault with a dangerous weapon on the basis that there was no direct evidence presented at trial that he used a dangerous weapon.\\nI.\\nOn the evening of April 17, 1990, Kaniki and several other persons attended a party in Koblerville, Saipan, drinking beer and singing songs.\\nA fight began. Kaniki punched Marino Aldan and Aldan's girlfriend, Justina Francisco. Zacharias Sakisat stepped in to stop the fight. When he tried to calm Kaniki, Kaniki attacked him, punching him in the chest.\\nSakisat doubled over from the blow.\\nWitnesses subsequently testified that Kaniki was the only person in the group who punched Sakisat in the chest, and that Kaniki was the only person standing near Sakisat when he doubled over from Kaniki!s blow.\\nAfter he was struck, Sakisat's wife Remiang observed that her husband was \\\"wet with blood.\\\" Transcript of Proceedings at 103. She told him that they should get into their car and drive to the hospital. The couple entered their car and, with Zacharias Sakisat driving, backed up and then pulled forward. They had not gone far when the car struck a telephone pole. They then fled on foot.\\nEventually, later that evening, Sakisat was taken to the Commonwealth Health Center emergency room and treated for a bleeding, jagged wound between two and three inches in length in the lower chest region. A physician on duty, Dr. John Hardy, performed surgery. Dr. Hardy testified that Sakisat's chest wall, ribs and muscle were penetrated and that his stomach wall was scratched. He expressed the opinion that the wound was caused by a sharp instrument three or four inches long, possibly a knife blade.\\nAt trial, Kaniki testified that he merely slapped Sakisat and punched Aldan. None of the witnesses, including Sakisat, saw Kaniki use a knife or other sharp instrument during the assault, nor was any such weapon introduced into evidence.\\nAccording to the trial court:\\nBy starting with the proposition that there was a wound to the stomach of Zacharias Sakisat, as testified to by [Dr. Hardy], I do believe that a knife wound occurred. It was clear and concise testimony to that effect. . . . What is . . . shown, and I will find, that the wound was caused by a dangerous weapon. Where [the weapon] is I don't think is material.\\nTranscript of Proceedings, 274, 276. Based on this finding, the court found Kaniki guilty of assault with a dangerous weapon in addition to assault and battery.\\nII\\nKaniki's sole argument on appeal is that there was insufficient evidence from which any rational trier of fact could have found, beyond a reasonable doubt, an essential element of the crime of assault with a dangerous weapon\\u2014i.e. that a dangerous weapon was used.\\nOn a challenge to the sufficiency of the evidence, we must consider the evidence in a light most favorable to the government and determine whether any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Kaipat, No. 90-059 (N.M.I. Oct. 21, 1991).\\nIII.\\n\\\"A person commits the offense of assault with a dangerous weapon if he or she threatens to cause, attempts to cause, or purposely causes bodily injury to another with a dangerous weapon.\\\" 6 CMC \\u00a7 1204(a). \\\"Dangerous weapon\\\" is defined to include \\\"a knife . . . or other thing by which a fatal wound or injury may be inflicted.\\\" 6 CMC \\u00a7 102(f).\\nKaniki admits that he struck Sakisat, but argues that because there is no direct evidence that he used a dangerous weapon in the assault his conviction should be set aside.\\n\\\"It has been held that an assault with a deadly weapon can be proven by the nature of the wound, even if there was no direct. testimony that a knife was seen in the hands of the defendant.\\\" Studdard v. State, 214 So.2d 767 (Fla. Dist. Ct. App. 1968).\\nIn a case similar to the case at bar, the Supreme Court of Washington affirmed a conviction for an assault resulting in stab wounds despite the fact that \\\"[n]o knife or other sharply edged cutting instrument was found at the scene of the affray or shown to be in defendant's possession.\\\" State v. Slaughter, 425 P.2d 876, 878 (Wash. 1967). An emergency room physician testified that the victim's wounds resembled those made by a knife or scalpel. According to the Slaughter court:\\n[W]e are unable to agree with defendant that the evidence was insufficient to support a conviction. In addition to the circumstantial evidence [of an altercation], we have the testimony of [the victim] that defendant struck him, knocked him down and, although he did not see the weapon which produced them, the blows inflicted wounds which required suturing and medical care. The sight of a blade in defendant's hand would have added little to the direct evidence that he struck his victim, knocked him down, and in so doing inflicted two cutting wounds. Viewed in the light of the argument between [a witness] and defendant, followed immediately with her leaving the two men alone in the hallway, and the complete absence of any other evidence explaining or implying that the wounds could have been inflicted by another person, or by accident, we have proof of circumstances rivaling in persuasiveness direct evidence that the victim saw a weapon in defendant's hand when the blow was struck.\\nId.\\nIn this case, there is undisputed evidence that Kaniki punched Sakisat in the chest, that he was the only person who did so, and that only he was close to Sakisat when Sakisat was struck. Remiang Sakisat testified that her husband bled after he was struck. Although no witness saw Kaniki use a knife, it was reasonable to infer from the nature of the wound&emdash;as described by the attending physician&emdash;that Sakisat had been stabbed with a dangerous weapon. Slaughter, supra. It was not necessary for direct evidence to be presented at trial that a knife or sharp instrument was used to convict Kaniki of assault with a deadly weapon. Id*\\nRemiang Sakisat's testimony that her husband was wet with blood immediately after he was struck negated the only other possible cause for his injury&emdash;-the collision with the telephone pole when the couple subsequently left the scene of the assault in their car.\\nThe conviction for assault with a deadly weapon is supported by sufficient evidence and is AFFIRMED.\\nEntered this 2 5~~day of October, 1991\\nAssault and battery is a misdemeanor. 6 CMC \\u00a7 1202. Assault with a dangerous weapon is a felony. 6 CMC \\u00a7 1204.\\nThis act was the basis of the conviction for assault and battery. 6 CMC \\u00a7 1202(a) provides, in pertinent part: \\\"[a] person commits the offense of assault and battery if the person unlawfully strikes, beats, wounds, or otherwise does bodily harm to another . II\\nKaniki was sentenced on November 7, 1990. For assault and battery, he received a suspended sentence of one year in jail. For assault with a dangerous weapon, he received a five year jail sentence, suspended on the condition that he pay a $3,000 fine, perform 200 hours of community service, pay Sakisat for his out-of- pocket medical expenses, refrain from drinking alcoholic beverages, and have no further contact with Sakisat.\\nSee also State v. Seefeldt, 292 N.W.2d 558 (Minn. 1980) (although victim did not actually see weapon used, testimony that it was sharp and pointed like knife and that she believed it was a knife, coupled with evidence of minor wounds, was sufficient to sustain conviction for assault with dangerous weapon).\"}"

n_mar_i/1695383.json

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+"{\"id\": \"1695383\", \"name\": \"MARIAN ALDAN-PIERCE, Plaintiff/Appellee, vs. LEOCADIO C. MAFNAS, Defendant/Appellant\", \"name_abbreviation\": \"Aldan-Pierce v. Mafnas\", \"decision_date\": \"1991-07-05\", \"docket_number\": \"APPEAL NO. 89-003; CIVIL ACTION NO. 86-86\", \"first_page\": 122, \"last_page\": \"164\", \"citations\": \"2 N. Mar. I. 122\", \"volume\": \"2\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-11T00:32:25.497323+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"MARIAN ALDAN-PIERCE, Plaintiff/Appellee, vs. LEOCADIO C. MAFNAS, Defendant/Appellant.\", \"head_matter\": \"July 5, 1991\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nMARIAN ALDAN-PIERCE, Plaintiff/Appellee, vs. LEOCADIO C. MAFNAS, Defendant/Appellant.\\nAPPEAL NO. 89-003\\nCIVIL ACTION NO. 86-86\\nArgued and Submitted July 30, 1990\\nCounsel for Defendant/Appellant: Theodore R. Mitchell, Esq. P.O. Box 2020 Saipan, MP 96950\\nCounsel for Plaintiff/Appellee: Donald C. Williams, Esq. Marcia K. Schultz, Esq. Carlsmith, Ball, Wichman, Murray, Case, Mukai & Ichiki P.O. BOX 241 CHRB Saipan, MP 96950\\nCounsel for amicus curiae Saipan Bankers Association Steven L. Mayer, Esq. Kent Walker, Esq. Howard, Rice, Nemerovski, Canaday, Robertson & Falk Three Embarcadero Center 7th Floor San Francisco, CA 94111\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"9616\", \"char_count\": \"58601\", \"text\": \"OPINION\\nDELA CRUZ, Chief Justice:\\nWe are presented in this appeal with the issue of whether the exercise of an option agreement (\\\"option\\\") to purchase real property in the Commonwealth violated the land alienation restriction of Article XII of the NMI Constitution (\\\"Article XII\\\") if persons who are not of Northern Marianas descent thereby acquired an equitable fee interest in the land.\\nI.\\nThe defendant, Leocadio C. Mafnas (\\\"Mafnas\\\"), appeals a summary judgment order compelling specific performance' of the option. Aldan-Pierce v. Mafnas, Civil Action No. 86-86 (N.M.I. Tr. Ct. Oct. 15, 1986) (judgment) . Finding no genuine issue of material fact, the Commonwealth Trial Court concluded that the option did not violate Article XII and was, therefore, enforceable. Aldan-Pierce v. Mafnas, 2 CR 855 (C.T.C. 1986).\\nA. Procedural and Factual Background\\nMafnas, a person of Northern Marianas descent, owns in fee simple Lot 008 B 25, situated at San Roque, Saipan. This property contains an area of 8,708 square meters.\\nMafnas and Antonia C. Villagomez (\\\"Villagomez\\\") \\u2014 who is also of Northern Marianas descent \\u2014 executed the option on September 15, 1984. Mafnas agreed to sell \\\"a certain portion of Lot No. 008 B 17\\\" to Villagomez or her designee by warranty deed. The option, which became effective upon execution, was to remain in effect until July 7, 1985.\\nThe option consideration of $500 was paid to Mafnas by Brian McMahon (\\\"McMahon\\\"), who is not of Northern Marianas descent. As directed by Randall T. Fennell (\\\"Fennell\\\") \\u2014 who is also not of Northern Marianas descent \\u2014 Villagomez timely exercised the option by notifying Mafnas in writing that she wished to purchase the property. This notice (dated July 6, 1985) requires Mafnas to obtain a certificate of title to the property and to deliver it and a warranty deed to Villagomez, at which time the purchase price of $10 per square meter would be paid.\\nMafnas refused to comply.\\nVillagomez subsequently assigned her interest under the option to Marian Aldan-Pierce (\\\"Aldan-Pierce\\\"), who filed the present action for specific performance on March 4, 1986.\\nIn his answer to Aldan-Pierce's complaint, Mafnas alleged, inter alia, that Villagomez acted as Fennell and McMahon's agent\\u2014 and that Fennell engaged her as his agent to acquire for himself and McMahon a permanent and long-term interest in real property in violation of Article XII.\\nB. The Superior Court Ruling\\nThe trial court concluded that Villagomez was Fennell and McMahon's agent, and that they had control over her to (1) direct her to exercise the option, (2) turn over their purchase money to Mafnas after he executed a warranty deed to her, and (3) record the deed showing fee simple title in her name. However, the court determined that once Villagomez subsequently leases the property to Fennell and McMahon (as they had previously agreed) the agency relationship will terminate and a lessor-lessee relationship will commence:\\nThe \\\"control\\\" of the principal over the agent to which [Mafnas] bases his theory vanishes upon execution of the lease. There is no substance or merit to [Mafnas'] argument that the prior agency or fiduciary relationship continues and supercedes the lease agreement.\\nAldan-Pierce v. Mafnas, 3 CR at 864. Therefore, the court ruled, the option did not violate Article XII, and was enforceable.\\nMafnas appeals.\\nII.\\nWe review a grant of summary judgment de novo. MPLC v. Kan Pacific Saipan, Ltd., No. 90-014 (N.M.I. Nov. 21, 1990) (amended opinion). If there is no genuine issue of material fact, the analysis shifts to whether the substantive law was correctly applied. Id.\\nThe sole issue Mafnas raises on appeal concerns the constitutional validity of the option. He contends that when Villagomez exercised the option, Fennell and McMahon acquired a freehold (equitable fee) interest in Commonwealth real property. This, he argues, violates Article XII.\\nIII.\\nBefore reaching the merits, we must address the threshold question of our jurisdiction.\\nAldan-Pierce has moved to dismiss this appeal on the ground that we lack jurisdiction. She contends that only the U.S. Court of Appeals for the Ninth Circuit (\\\"Ninth Circuit\\\") has jurisdiction to hear the appeal.\\nWe note that this appeal was pending before the Ninth Circuit on May 2, 1989, the effective date of the Commonwealth Judicial Reorganization Act of 1989, 1 CMC \\u00a7 3101-3404 (\\\"Act\\\"). The Act transferred to this Court appellate jurisdiction over all Commonwealth cases pending before both the Appellate Division of the District Court for the Northern Mariana Islands (\\\"Appellate Division\\\") and the Ninth Circuit. 1 CMC \\u00a7 3109(b).\\nIn Wabol v. Villacrusis, No. 89-005 (N.M.I. Dec. 11, 1989), we examined the validity of 1 CMC \\u00a7 3109(b). We concluded that the statute violated neither the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, reprinted in CMC vol. 1 at B-101 and in 48 U.S.C.A. \\u00a7 1681 note (West 1987) (\\\"Covenant\\\"), nor 48 USC \\u00a7 1694b(c), the federal statute empowering the Ninth Circuit to hear appeals from Appellate Division rulings.\\nSubsequent to our Wabol ruling, the Ninth Circuit rendered a contrary decision concerning the validity of 1 CMC \\u00a7 3109(b):\\n[AJlthough the Act by its terms applies retroactively to appeals from local trial courts which were pending in the appellate division of the district court when it was passed . . . NMI is without power under the Covenant to divest [the Ninth Circuit] of jurisdiction over appeals properly filed from a final order of the appellate division of the district court entered before passage of the Act.\\nWabol v. Villacrusis, 908 F.2d 411, 419 (9th Cir. 1990) (amended opinion).\\nWe are faced with the question of whether we should defer to this decision. For several reasons, we decline to do so.\\nFirst, we note that the appeal of this case to the Ninth Circuit was dismissed upon Mafnas' voluntary motion. The Appellate Division subsequently issued a mandate \\u2014 based on its earlier decision \\u2014 to the Commonwealth Superior Court. When challenged on appeal, the mandate was vacated by the Ninth Circuit, which ruled that the Appellate Division lacked jurisdiction over the appeal after May 2, 1989. Mafnas v. United States District Court for the Northern Mariana Islands, 919 F.2d 101 (9th Cir. 1990). In its decision, the Ninth Circuit recognized the instant appeal taken by Mafnas to this Court. Recently, the Ninth Circuit considered an appeal from our issuance of a writ of prohibition to the Superior Court ordering it to disregard the Appellate Division's mandate. In that decision, Mafnas v. Superior Court of the Commonwealth of the Northern Mariana Islands, No. 90-16078 (9th Cir. June 18, 1991) (1991 WESTLAW 102977), the Ninth Circuit dismissed the appeal as moot because of its earlier decision to vacate the Appellate Division's mandate; the court again recognized the instant appeal to this Court.\\nSecond, we take judicial notice of the fact that the Ninth Circuit's ruling in Wabol is the subject of a petition for reconsideration.\\nThird, our Wabol ruling has been appealed to the Ninth Circuit pursuant to Covenant Section 403. That appeal has not been decided. Although the Ninth Circuit's Wabol ruling notes that this Court's decision need not be accorded full faith and credit (since it is subject to review by that court) the Ninth Circuit has not yet reviewed our decision.\\nThus, we shall follow our decision in Wabol and consider the appeal in this case. 1 CMC \\u00a7 3109(b). Aldan-Pierce's motion to dismiss for lack of jurisdiction is denied.\\nIV.\\nThe issue confronting us relates to Covenant Section 805 (\\\"Section 805\\\"), in addition to Article XII. In analyzing the validity of the exercise of the option, it is necessary to first examine Section 805, which requires that the Commonwealth regulate the alienation of permanent and long-term interests in real property to restrict acquisition of such interests to persons of Northern Marianas descent. Next, we will examine Article XII to determine how Section 805 was implemented. We shall thereafter analyze the facts of this case to determine whether the trial Court ruled correctly.\\nA. Section 805\\nSection 805 provides, in pertinent part:\\nExcept as otherwise provided in this Article and notwithstanding the other provisions of this Covenant, or those provisions of the Constitution, treaties or laws of the United States applicable to the Northern Mariana Islands, the Government of the Northern Mariana Islands, in view of the importance of the ownership of land for the culture and traditions of the people of the Northern Mariana Islands, and in order to protect them against exploitation and to promote their economic advancement and self-sufficiency:\\n(a) will until twenty-five years after the termination of the Trusteeship Agreement, and may thereafter, regulate the alienation of permanent and long-term interests in real property so as to restrict the acquisition of such interests to persons of Northern Marianas descent .\\n(Emphasis added.)\\n\\\"[I]t will be entirely up to the Government of the Northern Marianas and the people of the Northern Marianas to determine the precautions which they will take to prevent their land from being alienated.\\\" Marianas Political Status Commission, Section-bvSection Analysis of the Covenant 117 (1975), Definition of the operative terms and phrases of Section 805\\u2014including \\\"long term interests in real property,\\\" \\\"acquisition,\\\" and \\\"persons of Northern Mariana Islands descent\\\"\\u2014was left to the NMI as its responsibility in implementing the provision. Id.\\nB. Article XII\\nThe sole implementing vehicle for Section 805 is Article XII, which became operative when the NMI Constitution went into effect on January 9, 1978.\\nWe now examine each of the original provisions of Article XII. Section 1 provides:\\nThe acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Marianas descent.\\nSection 2 provides:\\nThe term acquisition used in section 1 includes acquisition by sale, lease, gift, inheritance or other means. A transfer to a spouse by inheritance is not an acquisition under this section. A transfer to a mortgagee by means of a foreclosure on a mortgage is not an acquisition if the mortgagee does not hold the permanent or long-term interests in real property for more than five years.\\nSection 3 provides:\\nThe term permanent and long-term interests in real property used in section 1 includes freehold interests and leasehold interests of more than forty years including renewal rights.\\nSection 4 provides:\\nA person of Northern Marianas descent is a person who is a citizen or national of the United States and who is of at least one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood or a combination thereof or an adopted child of a person of Northern Marianas descent if adopted under the age of eighteen years. For purposes of determining Northern Marianas descent, a person shall be considered to be a full-blooded Northern Marianas Chamorro or Northern Marianas Carolinian if that person was born or domiciled in the Northern Mariana Islands by 1950 and was a citizen of the Trust Territory of the Pacific Islands before the termination of the Trusteeship with respect to the Commonwea1th.\\nSection 5 sets forth requirements for corporations to qualify as a \\\"person of Northern Marianas descent.w Article XII, \\u00a7 6 provides, in pertinent part, that \\\"[a]ny transaction in violation of section 1 shall be void ab initio.\\\"\\nclearly, under Article XII only persons of Northern Marianas descent may acquire permanent and long-term interests in real property in the Commonwealth. The only exceptions are (a) transfers to a spouse (who is not of Northern Marianas descent) by inheritance in certain circumstances, and (b) transfers to a mortgagee (such as a bank or lending institution) by foreclosure on a mortgage if the mortgagee does not hold an interest in the property for more than a specified period. Article XII, \\u00a7 2.\\nIn analyzing the option at issue, we will consider the intent and purpose of Section 805 and Article XII.\\nV.\\nThe parties agree that there is no genuine issue of material fact concerning the constitutional validity (or invalidity) of the exercise of the option. We concur. A review of the affidavits and documents supporting and opposing Aldan Pierce's motion for summary judgment confirms that the material facts are not in dispute.\\nA. The Options\\nThe idea of an option to purchase or lease the San Roque property was apparently conceived before August 1, 1980, by Fennell and other persons who are also not of Northern Marianas descent. Declaration of Randall T. Fennell (August 27, 1986) (hereafter \\\"Fennell Affidavit\\\"). The record reveals that no fewer than five options preceeded the option at issue in this appeal.\\nThe first, dated August 1, 1980, was negotiated by one Howard Luke. Fennell Affidavit at 1. This option, executed by Mafnas, as \\\"Owner\\\", and Luke and Fennell, as \\\"Buyers\\\", states, in part:\\n2. Agreement to Sell or Lease. Owner agrees to convey in fee simple absolute said property, and all of it, or any portion thereof required by Buyers, to Buyers, or their designee pursuant to the terms of this agreement, provided, however, that if at any time from the execution of this agreement it is not legal under the laws and Constitution of the Commonwealth of the Northern Mariana Islands for Buyers to hold in fee interest, then Owner agrees to convey said property in fee simple to any person designated by Buyers who has the legal capacity to own said property in fee simple absolute, or to lease said property to Buyers for as long a term as is legally permissible.\\nThis option expired, unexercised, on April 30, 1981.\\nA second option was executed on May 1, 1981, by Mafnas, as \\\"Owner\\\", and McMahon and Fennell, as \\\"Buyers.\\\" It is essentially the same as the first option, containing a paragraph identical to the provision quoted above. This option expired, unexercised, on October 31, 1981.\\nA third option was executed on April 7, 1982, again by Mafnas, as \\\"Owner\\\", and McMahon and Fennell, as \\\"Buyers.\\\" Except for the dates, it is essentially the same as the first and second options. This option expired, unexercised, on June 7, 1982.\\nA fourth option was executed on July 13, 1983, by Mafnas, as \\\"Owner,\\\" and Fennell as \\\"Buyer.\\\" This option was for a forty-year lease. It expired, unexercised, on July 12, 1984.\\nA fifth option \\u2014 again, to lease the property \\u2014 was executed by Mafnas, as \\\"Owner,\\\" and Villagomez, as \\\"Buyer,\\\" on July 7, 1984, before the fourth option had expired. Other than a difference in consideration and a reduction in the area to be leased, this option was essentially the same as the fourth option. It expired, unexercised, on July 7, 19.85.\\nA sixth option \\u2014 executed on September 15, 1984, before the fifth option expired \\u2014 is the option the exercise of which is at issue. This option enabled Villagomez to purchase Mafnas* fee interest to the entire property. As noted above, Villagomez exercised the option on July 6, 1985, a day before it was to expire.\\nAccording to the option, Villagomez may assign all or any part of her rights, duties, and obligations. She assigned her rights to Aldan-Pierce on January 13, 1986, \\\"for $10.00 . . . and other good and valuable consideration . . . .\\\" Excerpts of Record at 8.\\nB. The Affidavits\\nAccording to Villagomez:\\n2. In 1984, I was approached by Mr. Brian McMahon and Mr. Randall Fennell, who asked if I would be interested in holding title to property in San Roque owned by Leocadio Mafnas.\\n3. Under my agreement with Mr. Fennell and Mr. McMahon, they would provide the money for an option agreement between me and Mr. Mafnas. If the option was exercised, they would provide the money to purchase the property. I, in return, would grant them a lease for the maximum term permitted by law for minimal consideration.\\nAffidavit of Antonia C. Villagomez (July 25, 1986) (hereafter \\\"Villagomez Affidavit\\\").\\nAccording to Fennell, he and Mafnas (who was advised by a \\\"Mr. Magofna1') negotiated the option at issue. Fennell Affidavit at 2. Fennell also stated that he and McMahon had an oral agreement with Villagomez (and subsequently with Aldan-Pierce) to \\\"provide the money for the land purchase in return for a lease for the maximum ieriijth allowed by law.\\\" Id. \\\"Ms. Villagomez left negotiation of the options to Mr. McMahon and I.\\\" Id.\\nMcMahon echoed Fennell's statement regarding their agreement with Villagomez. Declaration of Brian T. McMahon (Aug. 27, 1986) (hereafter \\\"McMahon Affidavit\\\").\\nAccording to Mafnas, \\\"both Mr. Fennell and Mr. McMahon[] made it clear to me that the , . . Option Agreement, although it was to be executed by Antonia C. Villagomez, was for the sole benefit of Mr. Fennell and Mr. McMahon.\\\" Affidavit of Leocadio C. Mafnas (hereafter \\\"Mafnas Affidavit\\\") at 2 (Oct. 7, 1986). He further stated that McMahon personally paid him the $500 consideration for the option. Id.\\n\\\"I am not, nor have I ever been, a 'passive agent, engaged and controlled by Attorney Fennell . 1 as alleged [by Mafnas] , . .\\n.\\\" Declaration of Marian Aldan-Pierce (Aug. 27, 1986) (hereafter \\\"Aldan-Pierce Affidavit\\\"). She also stated:\\n6. I have agreed with Randall Fennell and Brian McMahon that, if I prevail in this action, I will lease them the subject property for the maximum length provided by law. They in return have agreed to provide the funds to exercise the option. I will retain the fee ownership.\\nAldan-Pierce Affidavit at 2.\\nAt the summary judgment hearing, the trial court allowed Aldan-Pierce to file a reply memorandum to Mafnas1 memorandum in opposition by the following day, but made no mention of permission to file supplemental affidavits. Aldan-Pierce v. Mafnas, Civil Action No. 86-86, Transcript of Proceedings at 29 (October 8, 1986). Nonetheless, after the hearing Aldan-Pierce filed three supplemental affidavits in'addition to her reply memorandum. It is not clear whether the trial court considered these post-hearing affidavits in rendering summary judgment, there being no reference to them in its memorandum opinion. The court apparently did not act upon Mafnas' motion to strike the supplemental affidavits.\\nThe supplemental affidavits were evidently introduced to prove that the oral agreement between Aldan-Pierce and Fennell and McMahon did not require Aldan-Pierce to hold or convey title to the property pursuant to their instructions. \\\"Under our agreement, they receive a lease, but other than that what I do with the title is my business.\\\" Supplemental Affidavit of Marian Aldan-Pierce (Oct. 9, 1986) (hereafter \\\"Aldan-Pierce Supplemental Affidavit\\\").\\nVI.\\nSince the material facts are not in dispute, we must determine whether the law was correctly applied below. Kan Pacific Saipan, Ltd., supra.\\nWe begin by noting that Fennell and McMahon\\u2014neither of whom are of Northern Marianas descent \\u2014 may not legally acquire\\n\\\"permananent and long-term interests in real property within the Commonwealth.\\\" Article XII, \\u00a7 1. Persons who are not of Northern Marianas descent are prohibited from acquiring such interests by \\\"sale, lease, gift, inheritance or other means.\\\" Article XII, \\u00a7 2. Any transaction violating the constitutional restriction is void ab initio \\u2014 void from the beginning, as if it had never occurred. Article XII, \\u00a7 6.\\nA. \\\"Freehold Interests\\\" under Article XII\\n.The \\\"permanent and long-term interests\\\" restricted from acquisition by persons who are not of Northern Marianas descent \\\"includes freehold interests and leasehold interests of more than fifty-five years . . . .\\\" Article XII, \\u00a7 3. \\\"Freehold interests are all types of ownership or title \\u2014 fee simple, fee tail, and life estate . . . .\\\" Committee on Personal Rights and Natural Resources, Report to the rFirst NMI Constitutional! Convention, Committee Recommendation No. 8: Restrictions on Land Alienation at\\n7 (November 11, 197 6) . A \\\"freehold\\\" is:\\nAn estate in land or other real property, of uncertain duration; that is, either of inheritence or which may possibly last for the life of the tenant at the least (as distinguished from a leasehold) .\\nAn estate to be a freehold must possess these two qualities: (1) Immobility, that is, the property must be either land or some interest issuing out of or annexed to land; and (2) indeterminate duration, for if the utmost period of time to which an estate can endure be fixed and determined, it cannot be a freehold.\\nBlack's Law Dictionary 598 (5th ed. 1979). \\\"An equitable estate is considered, to all intents and purposes, as a legal estate.\\\" 31 C.J.S. Estates \\u00a7 5 (1964). An equitable interest of indeterminate duration is encompassed within a freehold interest. The absence of any language excluding such interests from the restriction in Article XII leads us to conclude that they are within the restriction.\\nOn its face, the option at issue provides that a person of Northern Marianas descent will acquire title to the property if it is exercised. Mafnas argues that although Villagomez' name appears on the option, she (and now Aldan-Pierce, as her assignee) will acquire only bare legal title to the property, should he transfer his title. He contends that Fennell and McMahon have already acquired an equitable fee interest in the property, in violation of Article XII. This occurred, he asserts, when Villagomez&emdash;acting as ah agent-trustee&emdash;acquired the equitable fee interest upon exercise of the option.\\nInitially, we must determine whether Villagomez acquired such an interest.\\nB. Acouistion of Equitable Fee by Optionee\\n\\\"An option to purchase property is a contract wherein the . owner, in return for valuable consideration, agrees with another person that the latter may buy property within a specified time upon expressed terms and conditions.\\\" Mohr Park Manor, Inc. v. Mohr, 424 P.2d 101, 104 (Nev. 1967), appeal after remand. Mohr Park Manor, Inc. v. Bank of Nevada, 490 P.2d 217 (Nev. 1971). \\\"[S]o long as it remains unaccepted, [an option] is a unilateral writing lacking mutual elements of a contract, but when accepted by [an] optionee, an executory contract, which is mutually binding on the j parties, arises.\\\" Id, at 105; see also Anderson v. Overland Park Credit Union, 643 P.2d 120 (Kan. 1982). \\\"[W]hen the optionee has made his election and the contract has ceased to be an option and has ripened into a mutually enforceable bilateral contract, it becomes subject to specific performance.\\\" Bobo v. Bigbee, 548 P.2d 224, 229 (Okla. 1976). The optionee becomes the owner of an equitable interest in the land. Phillips v. Tetzner, 53 A. 2d 129 (Pa. 1947); Commonwealth v. Gerlach, 159 A.2d 915 (Pa. 1960).\\nThus, when Villagomez exercised the option, she acquired an equitable interest in the property. Phillips, supra.\\nWe now consider whether the record supports Mafnas' contention that Villagomez acted for Fennell and McMahon through an agency-trust relationship.\\nC. The Agencv-Trust Relationship\\nAgency\\nAn agent is a person who agrees to act for and is subject to the control of another. Repeki v. MAC Homes (Saipan) Co., Ltd., No. 90-002 (N.M.I. Mar. 14, 1991) quoting Restatement (Second) of Agency \\u00a7 1, 14 (19 5 8). An agency relationship must be based on an agreement between the parties. Repeki, supra. An agency relationship may exist \\\"although the parties did not call it agency and did not intend the legal consequences of the relation to follow.\\\" Restatement (Second! of Agency \\u00a7 1, Comment b.\\n\\\"The existence of an agency relationship is generally a question of fact to be determined by the trier of fact.\\\" Repeki. slip op. at 14. However, the existence of such a relationship is a question of law where the material facts from which it is to be inferred are not in dispute. Id. at 15. The material facts from which Mafnas urges that an agency relationship can be inferred were not in dispute. Accordingly, this issue presents a question of law which we review de novo. Id.\\nAldan-Pierce contends that she is not Fennell and McMahon's agent\\u2014that their agreement is actually an entrepreneurial venture akin to a partnership.\\nDespite Aldan-Pierce's protestations to the contrary, the trial court was correct in concluding that her predecessor Villagomez was Fennell and McMahon's agent. Villagomez agreed to act at their direction, and did so when she signed the option on September 15, 1984, and exercised it on July 6., 1985. See Dixon v. Huggins, 495 S.W.2d 621 (Tex. Ct. App. 1973) (party purchasing property with payor's knowledge, permission and money was payor's agent in transaction).\\nAs Villagomez8 successor, Aldan-Pierce assumes the role of agent.\\nAs noted above, the trial court ruled that the agency relationship will terminate the moment Aldan-Pierce leases the property to Fennell and McMahon, and a constitutionally permissible lessor-lessee relationship will be established. Aldan-Pierce contends that (even accepting that she is currently Fennell and McMahon's agent) the ruling is correct. Because of our analysis below, we do not need to consider the question of precisely when the agency relationship will terminate. That is because Aldan-Pierce acts as Fennell and McMahon's trustee.\\nTrust\\nA. Resulting Trust\\nWhere a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid, except as stated in \\u00a7 441, 442, and 444.\\\" Restatement (Second) of Trusts \\u00a7 440 (1959) , \\\"Property that is purchased by an agent in his own name, but with the principal's money, is held in trust for the benefit of the principal.\\\" Dixon, 495 S.W.2d at 625; see also 89 C.J.S. Trusts \\u00a7 114 (1955) .\\nThe trustee of a resulting trust holds only the naked legal title for the benefit of the person furnishing the consideration, Ohio State Life Ins. Co. v. Union Properties, 52 N.E.2d 542, 543 (Ohio Ct. App. 1943), who holds the equitable interest.\\n\\\"Within the rule that a resulting trust arises in favor of the one paying for a conveyance to another, a 'conveyance' includes any transfer of title, legal or equitable . . . .\\\" 89 C.J.S. Trusts \\u00a7 118; see McClellan v. Beatty, 53 N.E.2d 1013 (Ind. App. 1944); rehearing denied 55 N.E.2d 327 (Ind. App. 1944) (equitable title held by vendee under executory land sale contract subject to resulting trust in favor of payor). Thus, since Villagomez (and now Aldan-Pierce, as her assignee) has acquired an equitable interest in the property, unless any exception applies a resulting trust for this interest has arisen in favor of the persons who provided the option consideration, Fennell and McMahon.\\nThe exceptions cited in Restatement (Second) of Trusts \\u00a7 440 preclude a resulting trust if the payor: (1) manifests an intention that no trust should arise (\\u00a7 441), (2) purchases the property in the name of a relative \\\"or other natural object of bounty\\\" (\\u00a7 442), or (3) purchases the property to accomplish an illegal purpose (\\u00a7 444) .\\nWe will initially consider the last two exceptions.\\nNeither Villagomez nor Aldan-Pierce are \\\"natural object[s] of bounty\\\" to Fennell or McMahon:\\nThe rule stated in this Section is applicable where the payor and transferee respectively are in the relation of husband and wife; father and child; mother and child; father-in-law and son-in-law; grandparent and grandchild. . . . It applies also where the payor stands in loco parentis to the transferee; that is, where the payor whether or not related to the transferee has assumed to act in the place of a parent of the transferee.\\nId. \\u00a7 442, Comment a. Fennell and McMahon are not related to Villagomez or Aldan-Pierce, and their social or professional association with them are insufficient to trigger this exception.\\nWith respect to the third exception \\u2014 purchase in the name of another to accomplish an illegal purpose \\u2014 closer analysis is necessary. An analogy may be drawn to case law from jurisdictions in which it is (or was formerly) illegal for aliens to acquire land. Land acquired by an alien is subject to forfeiture:\\nIn such States the equitable interest of an alien beneficiary of a trust of land is likewise subject to forfeiture. . . . [I]f an alien pays the purchase price for land and at his direction the land is transferred to another under such circumstances that a resulting trust would arise if the payor were not an alien, a resulting trust arises in favor of the alien, and his interest is subject to forfeiture .\\nId. . \\u00a7 444, Comment f. Thus, unless and until an alien's equitable interest is ruled invalid in a judicial proceeding, a resulting trust in real property in the alien's favor is valid. Isaacs v. De Hon, 11 F.2d 943 (9th Cir. 1926).\\nWe adopt the principle set forth in Isaacs. A resulting trust in real property in the Coiiunonwealth in favor of a person who is not of Northern Marianas descent is valid, unless the equitable interest held for them in trust is declared, in a judicial proceeding, to be violative of Article XII. If the equitable interest is ruled violative of Article XII, the underlying transaction through which the person who is not of Northern Marianas descent acquired the interest becomes void abinitio. Article XII, ~ 6.\\nAccordingly, the third exception to the presumption of a resulting trust does not apply in this case.\\nThe first exception&emdash;Restatement fSecond^ of Trusts \\u00a7 441 (a resulting trust will not arise if the payor manifests an intention that no trust should arise)&emdash;is, at first glance, potentially applicable. However, according to official commentary to this provision:\\nWhere a transfer of property is made to one person and the purchase price is paid by another, the inference that a resulting trust was intended is rebutted if it appears that the payor intended that the transferee should have the beneficial interest in the property transferred. This is the case where it appears that the payor intended to make a gift of the property to the transferee (see \\u00a7 447) , or to make a loan of the purchase price to the transferee. See \\u00a7 445. So also, no resulting trust arises where the purchase price was paid to discharge a debt or other obligation owed by the payor to the transferee. See \\u00a7 446.\\nId., Comment a. There is no evidence in the record that Fennell and McMahon intended to make a loan of the purchase price to Villagomez, or that the money was paid to discharge a debt or other obligation.\\nDid Fennell and McMahon intend to make a gift of the property to Villagomez? In fact, the record indicates that prior to exercise of the option, the pair manifested an intention to retain an equitable interest of indeterminate (i.e., uncertain) duration. Villagomez' affidavit supports this conclusion. At the very least, it is clear that Fennell and McMahon intended to retain an equitable interest limited to a leasehold for the maximum period permitted under Article XII. For the reasons stated below, Fennell and McMahon could not make a gift of this interest to Villagomez or Aldan-Pierce at the time of or subsequent to their acquisition of it.\\nTo explain why this is so, it is necessary to state our ultimate decision in this case.\\nToday we rule that a resulting trust has arisen in favor of Fennell and McMahon for a constitutionally impermissible interest in real property. Since this challenged acquisition violates Article XII, we declare it invalid. Because Article XII, \\u00a7 6 provides that transactions underlying impermissible acquisitions of real property are void ab initio, our decision \\\"springs back\\\" to September 15, 1984, when the option (the underlying transaction) was executed. Fennell and McMahon are thus retroactively divested of their constitutionally impermissible interest. Thus, they could not (and may not now) make a gift of that interest to Villagomez or Aldan-Pierce. In short, they had (have) nothing to give.\\nAccordingly, because of principles set forth in the Restatement (Second^ of Trusts and because of the operative effect of Article XII, no exception applies in this case to rebut the presumption of a resulting trust. Despite Aldan-Pierce1s contention to the contrary, such a trust has arisen in favor of Fennell and McMahon.\\nB. Resulting Trust for Limited Interest\\nAldan-Pierce cites authority for the proposition that a resulting trust may be rebutted in part. She contends that although Fennell and McMahon may have acquired an equitable interest in real property in the Commonwealth, their interest is limited to a constitutionally permissible leasehold.\\nFennell and McMahon disclaim any intention to take more than a leasehold for fifty-five years, the maximum interest they may legally acquire under Article XII. They contend that the underlying fee will remain with Aldan-Pierce.\\nIt is, in fact, possible for a payor to acquire a leasehold interest in real property through a resulting trust. According to pertinent authority:\\nWhere a transfer of property is made to one person and a part of th\\u00e9 purchase price is paid by another, a resulting trust arises in favor of the person by whom such payment is made in such proportion as the part paid by him bears to the total purchase price, unless he manifests an intention that no resulting trust should arise or that a resulting trust to that extent should not arise.\\nRestatement (Second) of Trusts \\u00a7 454. A relevant illustration of this principle is afforded in Byers v. Doheny, 287 P. 988 (Cal. Dist. Ct. App. 1930) , In Bvers. a payor provided one-quarter of the purchase, price for a parcel of real property under an agreement that he would be entitled to a leasehold interest. According to the Bvers court:\\nIf the parties had expressly agreed that the plaintiff would pay $25,000 for the leasehold interest and the defendant $75,000 for the land subject to the lease, the title to be taken in defendant's name, then, upon the consummation of the transfer, the defendant would undoubtedly hold title to the leasehold interest in trust for the plaintiff. This is in effect what the parties actually did, and the conclusion follows that the defendant holds title to the leasehold interest in trust for the plaintiff.\\nId., 287 P. at 992.\\nAs noted above, the record in this case indicates that Fennell and McMahon intended to retain an equitable interest of indeterminate duration. It is plain that they paid the entire option consideration. They also clearly intend to pay the entire purchase price. Villagomez paid nothing, and Aldan-Pierce is to pay nothing. This being so, the principle set forth in Restatement (Second) of Trusts \\u00a7 454 is inapplicable.\\nThe resulting trust that has arisen in favor of Fennell and McMahon is thus not rebutted in part. They have acquired an equitable interest of indeterminate duration in real property in the Commonwealth.\\nAgencv-Trust\\n\\\"An agancy j_s not a trust.\\\" Restatement (Second! of Trusts \\u00a7 8.\\nAgencies and trusts resemble each other in many respects, in that both are relations of trust and confidence, but their points of difference are marked. An agent is ordinarily not the owner of property for the benefit of his principal, while, a trustee always holds the title to property for his cestui que trust.\\nKuck v. Sommers, 100 N.E.2d 68, 75 (Ohio Ct. App. 1950) (emphasis in the original) . \\\"An agent undertakes to act on behalf of his principal and subject to his control . a trustee as such is not subject to the control of the beneficiary, except that he is under a duty to deal with the trust property for his benefit in accordance with the terms of the trust and can be compelled by the beneficiary to perform his duty.\\\" Restatement fSecond) of Trusts \\u00a7 3, Comment b.\\nOn the other hand, \\\"[o]ne who has title to property which he agrees to hold for the benefit and subject to the control of another is an agent-trustee and is subject to the rules of agency.\\\" Restatement (Second^ of Agency \\u00a7 14B (1958), Aldan-Pierce is in the unusual position of occupying this dual relationship with Fennell and McMahon. See Dixon, supra (agent purchasing property m his own name with principal's money held property in trust for benefit of principal).\\none duty imposed under the rules of agency applies to agents holding title:\\nUnless otherwise agreed, an agent who holds the title to something for the principal is subject to a duty to the principal to use reasonable care in the protection of the title which he so holds, to act in accordance with the directions of the principal, to use it only for the principal's benefit, and to transfer it upon demand or upon the termination of the agency.\\nId. \\u00a7 4 2 3 . As set forth below, elements of this duty are also required of a trustee of a resulting trust.\\nD. The Duty of the Trustee of a Resulting Trust\\n\\\"The trustee of a resulting trust, liXe the trustee of an express trust, is in a fiduciary relation to the beneficiary.\\\" Restatement (Second^ of Trusts. Introductory Note to Topic 1 at 326. \\\"The trustee of a resulting trust . is ordinarily under a duty merely to convey the property to the beneficiary or in accordance with his directions.\\\" Id. at 325.\\n\\\"A resulting trust . is always a passive or dry trust, a mere holding of the title for the benefit of another, as the law, in creating a resulting trust in any one who takes title without paying the consideration, never imposes on such grantee any duties or responsibilities as to its management or control or disposition, except . to reconvey to the cestui que trust or at his direction.\\\" Shelton v. Harrison, 167 S.W. 634, 638 (Mo. Ct. App. 1914) . However, the trustee is also \\\"bound not to sell or incumber the property to the injury of the person for whose benefit the trust [is] presumed to arise.\\\" Milloarav v. Zacharias, 165 P. 977, 978 (Cal. Dist. Ct. App. 1917).\\nAldan-Pierce insists that she is under no duty to hold or dispose of title to the property subject to Fennell and McMahon's wishes. \\\"Under our agreement, they receive a lease, but what I do with the title is my business.\\\" Aldan-Pierce Supplemental Affidavit. This is a misconception based on the assumption that a resulting trust in an equitable interest of indeterminate duration has not arisen. In fact, under the principles noted above, Aldan-Pierce is restricted in what she may do with title to the property. Shelton, supra; Millogray, supra.\\n\\\"A resulting trust terminates if the legal title to the trust property and the entire beneficial [i.e. equitable] interest become united in one person.\\\" Restatement (Second) of Trusts \\u00a7 410.\\nIf a trustee of a resulting trust transfers the trust property to the beneficiary or at his direction, the resulting trust terminates. . . . -If the beneficiary of a resulting trust has the entire beneficial interest in the trust property, he can at any time compel the trustee to transfer the trust property to him and thus terminate the resulting trust.\\nId., Comment b.\\nVII.\\nAs noted'above, Mafnas contends that Fennell and McMahon have acquired an equitable fee interest in the property through Villagomez. We agree.\\nA. Fennell and McMahon's Equitable Fee Interest\\nLvillagomez acquired an equitable interest in the property when she exercised the option on July 6, 1985. Phillips, supra. As payors of the option consideration, Fennell and McMahon actually own this interest under a resulting trust. McClellan, supra. Since Fennell and McMahon's equitable interest is of indeterminate (i.e., uncertain) duration it is a freehold interest.\\nIf we were to affirm the trial court judgment compelling Mafnas to convey legal title, Aldan-Pierce would acquire only that: naked legal title. Ohio State Life Ins. Co., supra. Fennell and McMahon would continue to hold their freehold interest, with the right to compel Aldan-Pierce to convey legal title to them or to whomever they chose, at a time of their choosing. Shelton, supra; Milloqray, supra.\\nSince Fennell and McMahon are not of Northern Marianas descent, their acquisition of a freehold interest in the property violated Article XII. The underlying transaction\\u2014the option executed on September 15, 1984\\u2014is thus void ab initio. Article XII, \\u00a7 6.\\nB. The \\\"Other Means11 of Acquisition in Article XII\\nln this case, a freehold interest in Commonwealth real property was acquired by persons who are not of Northern Marianas descent through a trustee who is of such descent. This is one of the \\\"other means\\\" of acquisition prohibited by Article XII, \\u00a7 2: \\\"[t]he term acquisition . . . includes acquisition by sale, lease, gift, inheritance or other means.11 (Emphasis added.) The constitutional restriction would be undermined if persons who are not of Northern Marianas descent could acquire a prohibited interest via a trust relationship. The only interests such persons are permitted to acquire are leaseholds of not more than fifty-five years. Article XII, \\u00a7 3. No other exceptions are permitted to the restriction in Article XII, \\u00a7 1. \\\"For purposes of constitutional interpretation, the express mention of one thing implies the exclusion of another which might logically have been considered at the same time.\\\" State ex rel. O'Connell v. Slavin, 452 P.2d 943, 946 (Wash. 1969) (additional exception to constitutional restriction not permitted).\\nIf a resulting trust in real property in the Commonwealth has arisen in favor of a person who is not of Northern Marianas descent, it is subject to being declared invalid in a judicial proceeding if the equitable interest held for them in trust violates Article XII.\\nIn this case, evidence supporting a constitutionally permissible trust is absent.\\nWe are not saying that Aldan-Pierce\\u2014a person of Northern Marianas descent \\u2014 may not legally acquire in her own name a \\\"permanent or long-term interest[] in real property within the Commonwealth.\\\" Article XII, \\u00a7 1. Rather, we are saying that Fennell and McMahon \\u2014 persons who are not of Northern Marianas descent \\u2014 may not acquire such interests indirectly through her or any other persons of Northern Marianas descent via a trust relationship.\\nWe are not persuaded of the accuracy of Aldan-Pierce's claim that her agreement with Fennell and McMahon is an entrepreneurial partnership, whereby she provides \\\"legal capacity\\\" and Fennell and McMahon provide capital. The record does not support this contention. Even if we accepted it, we are not convinced that the framers of the NMI Constitution intended that acquisition of property under such an agreement would be permissible under Article XII.\\nWe are, however, concerned with the possibility that a decision in favor of Mafnas may \\\"unleash chaos into the Northern Marianas land title system and economy.\\\" Appellee's brief at 43. We note that our ruling might pose problems for land title researchers, who must now ascertain whether a conveyance of the sort we rule invalid in this case has occurred in the chain of title of tracts of Commonwealth real property. An infirmity may not be immediately apparent in land records. We also note amicus' concern that our decision may create difficulties with respect to loans secured by real property, title to which may be constitution ally tainted.\\nThough these difficulties are troublesome, they do not permit us to disregard the mandate of Article XII and permit the trust relationship that has arisen in this case to remain in force. \\\"It is not for the court to engraft an exception where none is expressed in the [state] constitution, no matter how desirable or expedient such an exception might seem.\\\" O'Connell, 452 P.2d at 946. We are duty-bound to give effect to the intention of the framers of the NMI Constitution and the people adopting it. Cobb v. State by Watanabe, 722 P.2d 1032 (Haw. 1986).\\nVIII.\\nBased on the foregoing analysis, we hold that the exercise of the option at issue violated Article XII. Fennell and McMahon acquired a constitutionally impermissible interest in real property in the Commonwealth when the option was exercised on July 6, 1985. Accordingly, the underlying transaction became void ab initio, effective September 15, 1984, when it was executed. Article XII, \\u00a7 6.\\nThe Commonwealth Trial Court's summary judgment granting specific performance is REVERSED, and the case is REMANDED for entry of judgment in favor of Mafnas.\\nEntered this S day of July, 1991.\\nArticle XII \\u2014 the pertinent portions of which are set forth in part IV, infra \\u2014 restricts acquisition of permanent and long-term interests in real property within the Commonwealth to persons of Northern Marianas descent.\\nSince renamed the \\\"Superior Court of the Commonwealth of the Northern Mariana Islands\\\" pursuant to the Commonwealth Judicial Reorganization Act of 1989, 1 CMC \\u00a7 3101-3404. See 1 CMC \\u00a7 3201.\\nThe court also considered and rejected claims of undue influence and unconscionability that have not been raised in this appeal.\\nThe portion which Mafnas owns is Lot 008 B 25.\\n. Villagomez was, at the time, employed by Fennell as his secretary. Fennell and McMahon are attorneys.\\nThis appeal was initially taken to the Appellate Division of the District Court for the Northern Mariana Islands, which affirmed the trial court ruling. Aldan-Pierce v. Mafnas, 3 CR 326 (D.N.M.I. App. Div. 1988). Mafnas subsequently appealed to the Ninth Circuit Court of Appeals. That court granted Mafnas' motion to dismiss the appeal on March 29, 1990. Mafnas filed an appeal of the trial court decision with this Court on May 15, 1989. Part III, infra, discusses the question of our jurisdiction over this appeal.\\nMafnas initially raised (but subsequently abandoned) an issue concerning imposition of a sanction by the Appellate Division of the District Court for the Northern Mariana Islands.\\nSee n.7, infra.\\nMafnas v. Superior Court, Orig. Action No. 90-003 (N.M.I. June 28, 1990).\\nCovenant Section 403 provides that the Ninth Circuit has jurisdiction over appeals from our decisions involving federal questions for the first fifteen years of this Court's existence. See Sablan v. Iginoef, No. 90-008 (N.M.I. Nov. 13, 1990) (order concerning transmittal of appeal to the Ninth Circuit).\\nCovenant Section 105 provides, inter alia, that Section 805 \\\"may be modified only with the consent of the Government of the United States and the Government of the Northern Mariana Islands.\\\"\\nThe Marianas Political Status Commission negotiated the Covenant.\\nCertain provisions of Article XII were amended in 1985, after the option at issue was exercised. None of the amendments have bearing upon our analysis.\\nExtended to ten years by amendment adopted in 1985.\\nExtended to fifty-five years by amendment adopted in 1985.\\nWe note that Aldan-Pierce does not challenge the validity of either provision under the U.S. Constitution. Cf. Wabol v. Muna, 2 CR 963 (D.N.M.I. App. Div. 1987), in which the Appellate Division considered and rejected constitutional challenges to both provisions.\\nWe note that Article XII would clearly have been violated if Mafnas had conveyed his fee interest in the property to Luke and Fennell under this option.\\nWe note that had Mafnas leased the property to Fennell under this option, Article XII would not have been violated.\\nA1 though untimely filed, this affidavit was considered by the trial court when it ruled upon Aldan-Pierce's motion for summary judgment. Aldan-Pierce v. Mafnas, 2 CR at 858-59.\\nThis point is not at issue.\\nAs noted in part IV B, infra. prior to 1985 this provision specified maximum leasehold interests of forty years.\\nIf necessary, in construing constitutional provisions we will consult legislative history. Camacho v. Northern Marianas Retirement Fund. No. 90-007 (N.M.I. Sept. 21, 1990).\\nThis interpretation comports with the apparent intent of Section 805 in restricting acquisition of \\\"interests\\\" in real property:\\n[NJormal usage of the term in American law would cover any right to use or derive profit from land for any period of time. Thus, not only ownership and leases are covered; equitable interests, of the sort possessed by the beneficiary of a trust . , , would . , , appear to be reached.\\nOffice of Transition Studies and Planning, Briefing Papers for the Delegates to the Northern Marianas Constitutional Convention. Briefing Paper No. 12: Restrictions on Land Alienation at 19-20 (1976). See also Sorenson v. City of Bellingham, 496 P.2d 512, 514 (Wash, 1972) (\\\"[freeholders are owners of either a legal or equitable title to real estate\\\"); 31 C.J.S. Estates \\u00a7 l (the term \\\"interest\\\" as applied to property \\\"may include both legal and equitable rights\\\").\\nAn equitable conversion occurs\\nwhen a contract for the sale of real property becomes binding upon the parties. The purchaser is deemed to be the equitable owner of the land and the seller is considered to be the owner of the purchase price. This, because of the maxim that equity considers as done that which was agreed to be done.\\nHarrison v. Rice, 510 P.2d 633, 635 (Nev. 1973). \\\"Equitable conversion does not occur on the date of an option contract because such a contract is not subject to specific performance on that date, but where the option has been exercised, there is a conversion.\\\" 18 C.J.S. Conversion \\u00a7 6 (1990).\\nAn assignee of an optionee may enforce vested contract rights. Beran v. Harris, 205 P.2d 107 (Cal. Dist. Ct. App. 1949). Thus, as Villagomez' assignee, Aldan-Pierce may enforce the vested right that arose after the option was exercised.\\nTwo or more persons may act jointly to engage and authorize an agent to act on their behalf. Restatement (Second1 of Agency \\u00a7 20, Comment f. Common law rules expressed in the Restatements are pertinent to our analysis under 7 CMC \\u00a7 3401, which provides that such rules \\\"shall be the rules of decision in the courts of the Commonwealth, in,the absence of written law or local customary law to the contrary . . . .\\\"\\nThis contention is examined in part VII B, infra.\\nThis rule is based upon an inference that \\\"the purchaser does not intend that the transferee should have the beneficial interest in the property, but that the purchaser himself shall have the beneficial interest.\\\" Id., Introductory Note to Topic 4 at 391. \\\"The rule of equity is that when property is taken in the name of a grantee who did not advance the consideration, there is a presumption that the grantee holds the legal title subject to the equitable ownership of the person who advanced the consideration.\\\" Richards v. Richards, 489 P.2d 928, 930 (Wa. App. 1971); see also Becchelli v. Becchelli, 508 P.2d 59 (Ariz. 1973). It is important to note that a resulting trust may arise regardless of whether the transferee is the agent of the purchaser. See, e.g. United States v. District of Columbia, 596 F.Supp. 725 (D.Md. 1984) (in dispute over ownership of hospital property, although U.S. took title to property, District of Columbia was entitled to resulting trust because it paid purchase price and Congress intended it to have equitable interest); Lewis v. Spitler, 403 A.2d 994 (Pa. Super. Ct. 1979) (party who provided acquaintance with part of sum used to acquire property entitled to partial resulting trust in property).\\nIf the agent wrongfully takes title in his own name, the agent may hold the property upon a constructive trust for his principal. See Restatement of Restitution \\u00a7 190 (1937).\\n\\\"[L]egal and equitable ownership of property may be vested in different persons, especially in situations where a question of trusts arises.\\\" Hereford Land Co. v. Globe Industries, Inc., 387 S.W.2d 771, 775 (Tex. Ct. App. 1965).\\nThe record is unclear as to whether the option consideration belonged to both Fennell and McMahon. In light of our ultimate decision in this case, this question is academic.\\nIn most U.S. jurisdictions prohibiting acquisition of land by aliens, only the state may bring proceedings to divest the alien of his property. See, e.g., Isaacs, supra. This is not the case in the NMI. When the issue has been properly raised, violations of Article XII may be addressed in proceedings involving only private parties.\\nThe record indicates that there may have been an ulterior motive for acquiring title in Villagomez1 (or Aldan-Pierce1 s) name: to obtain a constitutionally impermissible interest in real property under the appearance of compliance with Article XII. According to official commentary to Restatement fSecond! of Trusts \\u00a7 441:\\nAmong the factors which are or may be of importance in determining whether or not the payor manifested an intention to make a gift of the property to the transferee, are (1) declarations as to his intention made by the payor before or at the time of or subsequent to the transfer; (2) the relationship between the payor and the transferee; (3) .^whether the transferee is an individual or a corporation, and if a corporation whether it is a charitable corporation; (4) the relative financial positions of the payor and the transferee; (5) whether a gift by the payor to the transferee would be improvident; (6) the presence or absence of anv probable reason for taking title in the name of the transferee other than to give him the beneficial interest.\\nId., Comment b (emphasis added) . \\\"It is easier to find a manifestation of intention to make a gift [to rebut the presumption of a resulting trust] where no probable reason for taking title in the name of a transferee exists other than to give him the beneficial interest than it is where such reasons exist.\\\" Id.\\nA resulting trust may arise even though the party to be charged as trustee \\\"may never have agreed to the trust and may have really intended to resist it.\\\" Shepard v. Dougan, 76 P.2d 442, 445 (Idaho 1937); see also Hawe v. Hawe, 406 P.2d 106 (Idaho 1965).\\nSee also 5 A. Scott The Law of Trusts \\u00a7 454.4 (3rd Ed. 1967) .\\nWe recognize that commentary to Restatement (Second) of Trusts \\u00a7 441 implies that it may be possible under some circumstances to limit a resulting trust to a leasehold interest despite the fact that a transferee acquiring legal title did not pay any of the purchase price. Id., Comment f. (See illustrations 1 and 2 \\u2014 limitation to resulting trust in life estate. We note that a life estate is a freehold interest.) We are unable to find any case authority on point. Regardless, if this common law principle applied in the NMI, Article XII would effectively be nullified. We cannot presume that Article XII \\\"is a vain effort, or a nullity\\\" and must interpret it to giye it effect. Ada v. Sablan, No. 90-006, slip op. at 13, n.18 (N.M.I. Nov. 16, 1990), quoting Levy v. Kimball, 465 P.2d 580, 583 (Haw. 1970) (noting rule of statutory construction). Therefore, this principle does not apply in the NMI.\\nSee also Moon v. Phipps, 411 P.2d 157 (Wash. 1966):\\nLoyalty is the chief virtue required of an agent. , . . This loyalty demanded of an agent by the law creates a duty in the agent to deal with his principal's property solely for his principal's benefit in all matters connected with the agency.\\n411 P.2d at 161, citing Restatement (Second^ of Agency \\u00a7 387.\\nSee also Seabury v. Costello, 26 Cal.Rptr. 248, 251 (Cal. Dist. Ct. App. 1962) (\\\"[t]he duties of a resulting trust are not active; a resulting trustee merely holds legal title for the beneficiary and, at a proper time, is bound to make a proper conveyance\\\"); Laing v. Laubach, 43 Cal.Rptr. 537, 539 (Cal. Dist. Ct. App. 1965) (\\\"[t]he trustee has no duties to perform, no trust to administer, and no purpose to carry out except the single one of holding or conveying according to the beneficiary's demands\\\").\\n\\\"This result is a necessary consequence of the vesting of both legal and equitable titles in the beneficiary, because there is no longer any purpose in keeping the trust relationship alive.\\\" Zakaessian v. Zakaessian, 161 P.2d 677, 679 (Cal. Dist. Ct. App. 1945).\\nRefusal on the part of a trustee of a resulting trust to reconvey title to the beneficiary is a breach of trust and gives the beneficiary a cause of action against the trustee. Seabury, supra.\\nThe term \\\"owner\\\", as applied to real property, includes \\\"any person who has an equitable right to, or interest in, land.\\\" 73 C.J.S. Property \\u00a7 25 (1983). \\\"The equitable ownership is regarded in equity as the real ownership. The cestui que trust [trust beneficiary] is the beneficial and substantial owner, and, in the consideration of a court of equity, is actually seized of the free hold.\\\" Illinois National Bank of Springfield v. Gwinn, 61 N.E.2d 249, 254 (Ill. 1945).\\nCf. Seminar on the Law of Real Property Acquisition in Mexico, 12 Ariz. L.R. 265, 285-86 (1970) (aliens unable to acquire title to real property in Mexico may acquire beneficial title in property through trust only upon approval of the Mexican government). This article was noted in Office of Transition Studies and Planning, Briefing Papers for the Delegates to the Northern Marianas Constitutional Convention. Briefing Paper No. 12; Restrictions on Land Alienation (1976).\\nApart from certain inheritence rights and transfers pursuant to a mortgage foreclosure. Article XII, \\u00a7 2. See part IV B, infra.\\nWe note that such a trust may be rebutted by clear evidence that the money used to purchase the property was a valid gift, loan, or payment to discharge a debt or other obligation. Restatement (Second) of Trusts \\u00a7 445, 446, 447.\\nAmicus makes a similar claim.\\n0ur interpretation of Article XII should be conclusive. See. e.cr. . American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L. Ed. 873 (1946) (interpretation of state constitution by state courts conclusive in U.S. Supreme Court review).\\nJustice We note that if a property transaction is rendered void as violative of Article XII, an equitable remedy may be available to a possessor of property who constructed improvements under the good-faith (but erroneous) belief that they held clear title or a valid leasehold. Repeki, supra.\"}"

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+"{\"id\": \"1695387\", \"name\": \"IN THE MATTER OF THE DISCIPLINE OF JUAN T. LIZAMA, Respondent\", \"name_abbreviation\": \"In re the Discipline of Lizama\", \"decision_date\": \"1991-12-16\", \"docket_number\": \"APPEAL NO. 90-037; DISCIPLINARY ACTION NO. 90-01\", \"first_page\": 360, \"last_page\": \"387\", \"citations\": \"2 N. Mar. I. 360\", \"volume\": \"2\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-11T00:32:25.497323+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"IN THE MATTER OF THE DISCIPLINE OF JUAN T. LIZAMA, Respondent.\", \"head_matter\": \"December 16, 1991\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nIN THE MATTER OF THE DISCIPLINE OF JUAN T. LIZAMA, Respondent.\\nAPPEAL NO. 90-037\\nDISCIPLINARY ACTION NO. 90-01\\nArgued and submitted May 7, 1991\\nCounsel for Respondent/Appellant: Reynaldo Yana P.O. Box 6529 Saipan, MP 96950\\nCounsel for Petitioner/Appellee: Jane Mack Micronesian Legal Services P.O. Box 826 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"5865\", \"char_count\": \"35234\", \"text\": \"OPINION\\nVILLAGOMEZ, Justice:\\nRespondent, Juan T. Lizama, (\\\"Lizama\\\") appeals the trial court decision which found that he:\\n1. Violated Rule 1.15, of the ABA-Model Rules of Professional Conduct, by placing a client's trust fund in his personal account and commingling it with his own money, without the client's knowledge and consent.\\n2. Violated Rule 1.7(a) and Rule 2.2 by simultaneously representing himself, Teresita T. Camacho (\\\"Teresita\\\"), and his mother while they had conflicting interests.\\n3. Violated Rule 1.8(a) by entering into a business transaction with a client, without clearly explaining the nature of the transaction and without advising the client to seek the advice of an independent counsel.\\n4. Violated Rule 1.8(e) by providing financial assistance to a client in connection with a pending or contemplated litigation.\\n5. Violated Rule 1.8(f) by receiving fees from his client (administratrix) and a third person (Teresita) in a probate case.\\nLizama contends that clear and convincing evidence do not support the factual findings of the trial court, as to each of the above violations found, and that the court erred as a matter of law in concluding that the above rules were violated.\\nI.\\nOn January 10, 1990, Teresita submitted to Charles K. Novo-Gradac (chairperson of the disciplinary committee of the CNMI Bar Teresita Association) a letter of complaint against Lizama. complained that Lizama had taken $9,000.00 of her money, placed it in a trust account, and had refused to return it to her.\\nThe disciplinary committee, through David A. Webber (a committee member) , investigated the complaint. Mr. Webber reported his factual findings to Mr. Novo-Gradac by letter dated February 14, 1990. In his letter, Mr. Webber concluded that Lizama had technically violated Rule 1.7 and recommended that he be given a letter of admonishment.\\nThe bar committee reviewed Mr. Webber's report and decided instead to recommend to the Superior Court that it appoint disciplinary counsel to file a formal complaint with the court.\\nThe court appointed attorney Jane Mack, who filed a formal complaint against Lizama on April 9, 1990. Ms. Mack subsequently filed an amended complaint which alleged ten (10) specific violations of the Model Rules.\\nThe matter went to trial in which both parties presented evidence. The trial court concluded that Lizama violated Rules 1.15, 1.7(a) and 2.2, 1.8(a), (e) and (f) , and imposed disciplinary sanctions as follows:\\nThe respondent is suspended from the practice of law for three (3) years, thirty (30) months of which are suspended on the following conditions:\\n(a) the respondent take and pass the Multi-State Professional Responsibility Examination within eight (8) months from this date.\\n(b) The respondent pay to Teresita Camacho $2,000 for attorney fees collected on October 14, 1988 and February 3, 1989. This is to be paid within 60 days from this date.\\n(c) The respondent allow an independent audit of all trust account deposits and withdrawals made within the past three (3) years. The respondent shall be responsible to pay for said audit. The bar association disciplinary counsel shall select the auditor.\\n(d) The respondent shall pay the costs of this proceeding including attorney fees within 60 days from the date of the billing. This is pursuant to Rule 19 of the Disciplinary Rules.\\n(e) The respondent not be found in violation of any acts giving grounds for discipline pursuant to Rule ?, Com.R.Disc.Pro.\\n(f) Although not made mandatory, it is recommended the respondent institute a retainer agreement policy in his office to reflect at a minimum (1) the fact of the representation, (2) legal work to be done, and (3) fee arrangements.\\nShould respondent fail to comply with conditions (a) , (b) , (c) , (d) and (e) , the suspension of the remaining 30 months shall be vacated and respondent shall be suspended from the practice of law for the full three year term.\\nSince the suspension of the respondent is for a definite term, Rule 16, Com.R.Disc.Pro. will not apply and this court will monitor the conditions imposed herein.\\nIn order to effectively monitor the six month suspension, the respondent shall comply with Rule 15 of the Disciplinary Rules.\\nPursuant to Rule 15(c), this order shall be effective 30 days after entry.\\nWe subsequently issued a stay of the above disciplinary sanctions, pending appeal.\\nII\\nThe facts that led to this disciplinary matter are intricate and confusing. The intricacy derives from several subsets of events occurring simultaneously which eventually merged and became intertwined into one complex set of facts. Unless the separate events are carefully viewed separately, they could be misinterpreted.\\nThere are two main sets of facts which are relevant. First, the probate of the estate of Isidro S. Tudela, deceased. Second, Teresita's sale of her share of inherited land to Francisco C. Wabol (\\\"Wabol\\\"). An integral part of the facts include those surrounding the \\\"short-exchange\\\" claim and the sale by Teresita of her share of that claim.\\nTo set forth these events clearly, we shall present the two main sets of facts separately and show how and when they intertwine.\\nA. Probata of Tudela1s Estate:\\nIsidro S. Tudela (\\\"Tudela\\\") died.intestate on June 17, 1965, on Saipan. At the time of his death, he owned several parcels of land in Saipan. Between 1973 and 1976 Tudela's ten children (including Teresita) and his wife agreed to the partition and distribution of Tudela's land among themselves. They had the various lands surveyed and partitioned. They subsequently executed mutual deeds of conveyance transferring the subdivided lands among themselves in accordance with their agreement.\\nBy virtue of the mutual deeds of conveyance, each individual heir received his/her share of Tudela's land and obtained a certificate of title (from the land commission office) to his/her individual share. (Tr. at 208-209, 215-216) The lands distributed in accordance with the family agreement included Lot E.A. 112, part of which was designated for and transferred to Teresita (Lot E.A. 112\\\"A\\\").\\nOn January 19, 1988, Inocencia T. Apatang (\\\"Inocencia\\\"), one of the ten children of Tudela, filed a petition for letters of administration in order to probate the estate of Tudela. At that time, Inocencia was occupying Tudela's land in Chalan Kanoa (Lot 017 H 44) . Such lot apparently was not subject to the mutual deeds of conveyance which distributed Tudela's lands among the heirs.\\nInocencia petitioned the court to probate only the lands that had not been distributed mutually among the heirs. The trial court appointed her as administratrix and letters of administration were issued on February 29, 1988. In the inventory of the estate filed on April 15, 1988, she entered only Lot 017 H 44 and a short-exchange claim against the Marianas Public Land Corporation ,(\\\"MPLC\\\").\\nThe short exchange claim constituted the difference in the amount of land that she claimed the government should have transferred 'to her father (Tudela) by virtue of a government land exchange (EA 222) , but which the government failed to convey. It amounted to approximately 8,095 square meters.\\nIn filing the first inventory of the estate, the administratrix. decided not to include Lot E.A. 112 because the heirs had distributed that lot to certain of the heirs, through a mutual deed of conveyance, and believed it was not part of Tudela's estate. (Tr. at 208-209, 215-216)\\nOn May 5, 1988, the administratrix petitioned the trial court for final distribution of the estate. The petition requested that Lot 017 H 44 be distributed to Inocencia (the administratrix) as hers and that the land, to be received from the short-exchange claim, be sold and the proceeds therefrom be equally distributed among the ten heirs.\\nHowever, before a final distribution was entered, on September 19, 1988, the administratrix filed an amended inventory, adding to the assets of the estate a war claims award for the sum of $2,347.90. On the same day, she amended her petition for final distribution and requested that:\\n1. Lot 017 H 44 be distributed to the administratrix, Inocencia.\\n2. That any land received by virtue of the short-exchange claim be sold and the proceeds therefrom be distributed equally among the ten heirs.\\n3. That the war claims money be equally divided among the ten heirs.\\nLot E.A. 112 was still not included in the petition for final distribution of the estate.\\nOn January 25, 1989, the administratrix filed a second amended inventory which added Lot E.A. 112 to the estate.\\nThe reasons for the second amended petition is as follows: First, Teresita, an heir of Tudela, decided to sell her share of Lot E.A. 112 (E.A. 112\\\"A\\\") to Wabol. Second, Wabol would not purchase the land unless title insurance was obtained. Third, the title insurance company would not insure title unless Lot E.A. 112 was probated as part of the estate of Tudela. Thus, Lot E.A. 112 was made a part of the estate to confirm the deeds of conveyance arid the title in the respective heirs.\\nOn February 3, 1989, the trial court issued a decree of partial distribution, which, among others, confirmed and approved the conveyance of Lot E.A. 112\\\"A\\\" to Teresita under the mutual deed of conveyance. The decree further confirmed the validity of the land exchange between Tudela and Pangelinan with respect to Lot E.A. 112, as was previously determined by the U.S. District Court. It also authorized the administratrix to file suit against MPLC for the short-exchange claim.\\nOn November 6, 1990, the trial court entered a final decree distributing the land received from MPLC for the short-exchange claim (Lot 031 L 05), to the administratrix to sell and distribute the money among the heirs.\\nB. Teresita's Sale of Lot E.A. 112nAn to Wabol:\\nIn August, 1988, Teresita agreed to sell her share of the Papago land (E.A. 112\\\"A\\\") to Wabol. At that time, Teresita was living in Nevada and was told by Charles Novo-Gradac, the attorney for Wabol, that it would take two months to complete the transaction. Two months later she returned to Saipan and on October 11, 1988, went to the office of Mr. Novo-Gradac to close the transaction. Mr. Novo-Gradac told her that the title insurance company found two defects with her title to Lot E.A. 112\\\"A\\\" and would not insure title unless those defects were removed. Without the title insurance, Wabol would not buy the land. .\\nThe news that Wabol would not buy the land depressed and angered Teresita. (Tr. at 11, 62) Her land had been conveyed to her since 1974 by all of the other heirs of Tudela. The land was no longer in her deceased father's name and she had been issued a certificate of title to the land. (Tr. at 216) She had expected to close the transaction, receive the purchase money, and return to Nevada.\\nThe two defects raised by the title insurance company were (1) the questionable validity of the prior exchange involving Lot E.A. 112 between Tudela and Pangelinan because Pangelinan's estate had not been probated, and (2) Lot E.A. 112 was in the name of Tudela, at the time of his death, and his estate had not been probated.\\nNovo-Gradac advised Teresita to seek legal counsel to correct the defects. Since Teresita knew that Lizama was the attorney in the Tudela probate matter, she went to talk to him about the two defects. Lizama agreed to help Teresita remove those defects for a fee of $1,000.\\nWith respect to the first defect (i.e., the validity of the exchange between Pangelinan and Tudela) , Lizama investigated the matter and discovered that the exception raised by the title insurer was baseless. He found that the federal district court had earlier addressed the matter and had declared the exchange to be valid. Lizama did not have to take any further action in the Tudela probate case to satisfy the title insurer's concern about the Pangelinan/Tudela exchange. Part of Teresita's agreement to pay Lizama was for that work. As a result of that research work, the insurance company was satisfied.\\nWith respect to the second defect (i.e., the non-inclusion of Lot E.A. 112 in Tudela's estate), Lizama called Novo-Gradac and advised him that he was already handling the probate of Tudela's estate and would include Lot E.A. 112 in the inventory of the estate. Therefore, to correct the defect, Lizama amended, the inventory of the estate a second time and included Lot E.A. 112.\\nBefore any of the above work could be done, Teresita found herself in a financial predicament. (Tr. at 78, 226, 313) The removal of the alleged defects would take time. Until then, she could not receive the money she had expected to receive from Wabol (Tr. at 14), and she had to return to Nevada, but had no money for her transportation. (Tr. at 18, 78)\\nKnowing that her brother, Candido, had earlier sold his interest in the short-exchange claim to Ben Salas for $5,000 and that her sister, Margarita, had agreed to sell her interest in the short-exchange land to Lizama's mother for $10,000, Teresita offered to sell her own share in the short-exchange claim to Lizama for $10,000. (Tr. at 226-227)\\nLizama rejected Teresita's offer for ethical reasons. (Tr. 225, 281) Teresita then started crying and begging for help. (Tr. at 226, 313) In response, Lizama told her that he would see what he could do to help her. He walked outside his office and asked one of his employees, Juan B. Tudela, if he would like to purchase Teresita's interest in the short-exchange claim. After telling him the price of the land, Juan B. Tudela replied that he did not have $10,000. Lizama then called his mother and told her about Teresita's offer to sell her land interest. It was then decided that Teresita's expectancy would be purchased. However, Lizama claims that , there was an understanding with Teresita that upon selling her Papago land to Wabol, she would return the $10,000 and take back her expectancy. (Tr. at 230-290)\\nOn October 14, 1988, Lizama drafted two documents (an assignment of expectancy and a deed) for Teresita's signature, transferring her short exchange expectancy to Lizama's mother for the consideration of $10,000. Lizama had previously prepared similar documents for Candido and had also prepared a set for Margarita. Both Teresita and Margarita executed their documents at the same time and each received $10,000, except that Margarita paid Lizama $1,000, out of her $10,000, for Teresita's attorney's fee. For this transaction, Lizama did not advise Teresita to seek the advice of another counsel before selling her short-exchange expectancy.\\nThe $20,000 paid for the purchase of Teresita and Margarita's expectancies came from the account of KST Corporation, a corporation wholly owned by Lizama's employee, Toshiko Yoshimura, and her husband. This corporation was formed by Lizama, who was one of the incorporators and was listed as secretary/treasurer.\\nAfter Lizama had corrected the title defects by having Teresita's ownership of Lot E.A. 112\\\"A\\\" confirmed and approved by the trial court in the probate of Tudela's estate, and by discovering the District Court decision which had validated and approved the Pangelinan/ Tudela exchange, Teresita's sale to Wabol was consummated and Mr. Novo-Gradac delivered a check for $56,325 to Lizama.\\nLizama and Teresita went to the bank where Teresita endorsed the check. Lizama kept $10,000, $1,000 for his fee in representing Teresita in the Wabol sales transaction and placed the remaining $9,000 in a trust account entitled \\\"Lizama, Juan ATF Camacho, Teresita T.\\\" According to Lizama, he deposited the money in the trust account because Teresita suddenly changed her mind and decided not to return the $10,000 to Lizama's mother. Contrary to his understanding, she, at that point, wanted to keep the $10,000. (Tr. at 304) Lizama wanted to give her time to think about whether to return the money or keep it. However, after a certain period of time, if she failed to inform him that she opted to keep the $10,000, and he had to file suit against MPLC regarding the short-exchange claim, then he would have to close the account and give the money to his mother. (Tr. at 250) According to Teresita, she did not agree with what Lizama was doing and thought that the money was hers and would receive notice before it would be taken out of the account. (Tr. at 44-46)\\nOn April 17, 1989, Lizama paid Toshiko Yoshimura $30,000.00, part of which was to reimburse KST Corporation for the $10,000 used to purchase Teresita's short-exchange land. After paying off KST Corporation, Lizama then closed out the trust account on May 23, 1989, and transferred the $9,073.22 in that account to his personal account, without Teresita's knowledge or consent, and without re-conveying to Teresita, her interest in the short-exchange claim.\\nIn November, 1989, Teresita returned to Saipan and asked Lizama for the $9,000 placed in the trust account. Lizama refused, claiming that Teresita had opted to take back her interest in the short-exchange claim. Therefore, the money belonged to him since he had paid off KST Corporation. At the same time, however, the interest in the short-exchange claim remained in Lizama's mother's name and had not been re-conveyed to Teresita.\\n. Thereafter, Teresita filed a complaint with the Bar Association and the disciplinary committee advised Lizama to return the money to Teresita. Lizama returned the money. The complaint brought by Teresita proceeded to trial.\\nIll\\nLizama contends that the factual findings of the trial court, with respect to each of the violations found, are not supported by clear and convincing evidence, as required by Rule 9(g) of the Disciplinary Rules and Procedures, and constitute reversible error.\\nThe disciplinary counsel contends that the findings are substantially supported by clear and convincing evidence, pointing out the evidences in the record that support each of the findings. We agree.\\nWhen the burden of proof at the trial court is that of clear and convincing evidence, and the assigned errbr is that the evidence do not support the trial court's findings of fact, the standard of review is whether the findings are supported by competent and substantial evidence. See In re Estate of Manuel F. Aldan, No. 90-045 (N.M.I. March 6, 1991). This is a question of law. 5 Am.Jur 2d Appeal and Error. \\u00a7 831 (1962) . We review questions of law de novo. In re Adoption of Amanda C. Magofna, No. 90-012, 1 N.Mar.I. 172 (1990).\\nHere, there are conflicting evidence. However, we accord particular weight to the trial judge's assessment of conflicting and ambiguous evidence. And, when a trial court's finding is supported by substantial evidence, it should not be disturbed on appeal. In re Estate of Lorenzo Rofag, No. 89-019 (N.M.I. Feb. 22, 1991) . Upon careful review of the record, we conclude that the findings of the trial court are supported by competent and substantial evidence.\\nIV.\\nThe trial court found Lizama to have violated Rule 1.15 by co-mingling his client's fund with his own personal fund without the client's knowledge and consent. Lizama contends that as a matter of law, the trial court committed an error by reaching that conclusion.\\nThis issue raises a question of law which we review de novo. Dilutaoch v. C & S Concrete Block Products, No. 90-016 (N.M.I. Feb. 1, 1991). In applying that standard of review, it is our opinion that the trial court did not commit an error of law.\\nFirst, the $9,000 placed in the trust account was done in order to safeguard the client's money. Second, the money was taken out of the trust account and the account was closed without the knowledge and consent of the client. Third, the money taken out from the client's trust account was then deposited in Lizama's own personal account without the client's knowledge and consent.\\nSince Teresita was Lizama's client, it is clear that he co-mingled his client's money with his own. Therefore, the trial court did not commit an error of law. We affirm as to the violation of this rule.\\nV.\\nThe trial court found Lizama to have violated Rule 1.7(a) and 2.2 by simultaneously representing himself, Teresita, and his mother when they had conflicting interests. Lizama contends that this conclusion by the trial court constitutes an error of law. We apply the de novo standard of review. Dilutaoch, supra.\\nWhen Lizama agreed to help Teresita in removing the two defects upon her title to Lot E.A. 112\\\"A\\\", she became his client. At the time that Teresita offered to sell the land to him, she was still his client.\\nLizama then arranged for his mother to purchase the short-exchange claim from Teresita and prepared the documents for Teresita's signature, transferring the claim to his mother. At that point, he was using his mother's name to purchase the claim himself.\\nSubsequently, he re-paid KST Corporation the $10,000 and claimed that the money in the trust account became his money. The trial court correctly concluded based on these facts that Lizama was the real purchaser of the land but used his mother's name to make the purchase.\\nThe trial court's analysis is consistent with the principle that the one who advances the money (unless the money is a gift or a loan) becomes the purchaser of the land. See. Aldan-Pierce v. Mafnas, No. 89-003 (N.M.I. July 5, 1991).\\nHowever, since the trial court found that Lizama used his mother's name as a sham, its conclusion that Lizama was representing his mother and Teresita simultaneously was inconsistent and incorrect. Either Lizama represented his mother {acted on her behalf) or used her name (acted for himself) , but not both.\\nTherefore, we conclude that Lizama did not violate Rule 1.7(a) and that the trial court made an error of law as to the violation of this rule. In order to violate Rule 1.7(a), the attorney must be representing more than one client at the same time. We reverse as to the this violation.\\nWe.note, also, that Lizama did not engage in any negotiations regarding the terms of the transaction on behalf of either Teresita or his mother. He did not act. for his mother, but only used her name. Teresita made a definite offer to sell her land for $10,000 and the offer was accepted as is. Lizama did not act as an \\\"intermediary\\\" between Teresita and his mother. For this reason, we conclude that Lizama did not violate Rule 2.2 and we reverse as to the violation of that rule.\\nVI.\\nThe next issue raised by Lizama is whether the trial court made an error of law by concluding that Lizama violated Rule 1.8(a) by entering into a business transaction with a client, without clearly explaining the nature of the transaction and without advising the client to seek the advice of an independent counsel. This is a question of law which we review de novo.\\nThe trial court, having found that Lizama was the person who purchased the land through his mother, while Teresita was his client, was correct in concluding that Lizama entered into a business transaction with his client. We, therefore, affirm as to this violation, but note the following mitigating factors.\\n1. It was Teresita who initiated the offer to sell her land to Lizama. Lizama rejected the offer but was moved to do something when the client (his aunt) started crying in front of him, begging for help.\\n2. The nature of the transaction w.as clear and -simple. Teresita offered to sell her interest in' the short-exchange claim for $10,000 and the offer was accepted.\\n3. Since Teresita was in a predicament and needed the money immediately to return to Nevada, she did not care who was buying the land, how, and where the money was coming from, as long as she got paid.\\nThese factors should be considered in imposing sanction.\\nVII.\\nLizama next contends that the trial court committed an error of law by concluding that Lizama violated Rule 1.8(e) in providing financial assistance to a client in connection with a pending or contemplated litigation. This is an issue of law which we review de novo.\\nwe ? agree. The payment of $10,000 to Teresita was solely for the purchase of her interest in the short-exchange claim. That transaction was not made in connection with either the case subsequently filed against MPLC or the pending probate of the estate of Tudela. Teresita was desperate for money and was anxious to sell her expectancy, not because of any pending or contemplated case, but simply to get back to Nevada. Teresita was not a client of Lizama in either the probate case or the case against MLPC. The only client in both cases was the administratrix, Inocencia.\\nTherefore, we conclude that the trial court made an error of law and we reverse its decision as to the violation of this rule.\\nVIII.\\nLizama contends that the trial court made an error of law by concluding that Lizama violated Rule 1.8(f) by receiving fees from his client (administratrix) and a third person (Teresita) in the probate case. This is an issue of law which we review de novo.\\nWe agree with Lizama partially. Although the trial court correctly found that Teresita was Lizama's client, it failed to identify the precise legal work for which Teresita hired Lizama and paid the first $1,000 (through Margarita) in his office.\\nTeresita hired Lizama to eliminate the two defects raised by the title insurance company. The first defect, involving the Tudela/Pangelinan exchange, had no relationship with the Tudela probate and was resolved simply by legal research. That legal work was properly paid out of the $1,000, but only part thereof. The other part of the $1,000 was to pay for correcting the second defect.\\nAs to the second defect, Lizama had learned that the title to the land (land to be sold to Wabol) had been transferred from Tudela's estate to Teresita by the mutual deed of conveyance. However, to correct the title defect raised by the insurance company, he had to include that land in the estate of Tudela for the court to confirm and approve the prior distribution. Since Inocencia was already paying for that work, Lizama's acceptance of additional fee from Teresita was impermissible. However, the record on appeal does not show what portion of the $1,000 should be applied towards correcting the first defect, and how much should be applied towards amending the inventory of the estate of Tudela. Therefore, we shall remand as to this issue for determination by the trial court.\\nAs to the second $1,000 fee paid by Teresita at the bank, the trial court is correct that such money should be returned to Teresita. -There is nothing in the record that explains what exactly that fee was being paid for. The trial court states in its decision that the \\\"$1,000 was for additional attorney's fee in processing the Wabol sale . . . .\\\" (Emphasis added) We interpret that to mean that the fee is paid for removing the title defects in order to facilitate the Wabol sale. However, Teresita already paid $1,000 for that through Margarita.\\nTherefore, we conclude that as. to the first $1,000 paid by Teresita, the trial court erred (only as to that undetermined amount that would be applied to correct the first defect) as a matter of law and we reverse. As to the second $1,000 paid, the trial court is correct and we affirm.\\nIX.\\nAside from the above issues (directly related to the violations found by the trial court), Lizama also contends that the trial court erred by excluding certain evidence. He asserts that the evidence excluded consisted of oral testimony and respondent's exhibit \\\"C\\\". According to him, the oral testimony would have established that Lizama's mother had also received financial help from her other children and that the $10,000.00 paid to Margarita Riva for her short-exchange claim was paid by another sibling of Juan Lizama.\\nThis is a matter within the discretion of the trial court and we review exclusion of evidence for an abuse of discretion. In Re the Estate of Mueillemar, No. 90-020 (N.M.I. Nov. 29, 1990).\\nLizama argues that had the court admitted the evidence, it would not have found that Lizama used his mother's name as a sham in the purchase of Teresita's expectancy. We disagree. If the allegedly excluded evidence directly and overwhelmingly contradict and negate all the evidence which support the court's finding, Lizama might be able to' show that there has been an abuse of discretion. However, the fact that other children helped Lizama's mother financially does not negate or rrefute Lizama's use of his mother's name to purchase the land expectancy in this matter. Furthermore, there is competent and substantial evidence in the record which support the court's finding. Therefore, we conclude that the trial court did not abuse its discretion.\\nX.\\nFinally, Lizama raises the issue of whether the disciplinary committee violated his right to due process of law since Charles Novo-Gradac, who'represented Wabol in the purchase of Teresita's Papago land, also participated in the committee's deliberation and decision. He equates the disciplinary committee to that of a grand jury, and argues that since a grand jury cannot function as a judge for the same person they have indicted, neither can the disciplinary committee sit in judgment over an attorney whom they have investigated. Also, that Novo-Gradac was a witness and thus, could not be a judge in the same case.\\nFor the reasons set forth below, we conclude that Lizama has not been denied his right to due process of law.\\nUnlike a grand jury indictment, the disciplinary committee does not indict an attorney. Even if the committee decides not to prosecute, the court, independently, may order further investigation and prosecution. Thus, the committee is not an adjudicator but functions as a filter for unfounded disciplinary complaints. Novo-Gradac did not act as a judge in the committee's deliberations.\\nLizama, after the court appointed disciplinary counsel, was served with a summons and complaint. He answered the complaint and was present at trial with counsel. He presented evidence on his behalf and cross-examined adverse witnesses. The findings and conclusions of the disciplinary committee were not introduced at the trial. Therefore, he had a full-blown trial de novo.\\nFurthermore, Lizama did not raise any objection before the trial court regarding Mr. Novo-Gradac1s participation in the decision of the committee. Nor did he raise any objection, at the \\u2022disciplinary committee level, regarding Mr. Novo-Gradac1s participation.\\nXI.\\nAt the outset, we set forth the disciplinary sanctions imposed by the trial court as a result of its conclusions re violations committed by Lizama. Having reversed some of those conclusions, we shall remand this case to the Superior Court for a re-sanctioning consistent with our ruling herein.\\nThe decision of the Superior Court is hereby AFFIRMED as to the violations of Rules 1.15, 1.8(a), and 1.8(f), only as to the second $1,000 paid to Lizama as additional fee; REVERSED as to Rules 1.7(a), 2.2, 1.8(e), 1.8(f), only as to the first $1,000 fee paid through Margarita to clear the two defects, Part B of the sanction (amount to be determined upon remand) and Part C of the sanction; and REMANDED for further proceedings to reconsider disciplinary sanctions, consistent with this opinion.\\nDated this 1 (\\u00bf>day of ~\\\"tbj20Lwb&/\\\" _, 1991.\\nHereafter, reference to a rule pertains to the ABA Model Rules of Professional Conduct, unless otherwise specified.\\nRule 9(g) of the Disciplinary Rules and Procedure requires proof by clear and convincing evidence.\\n\\\"Tr.\\\" stands for transcript of the trial and the number represents the page number of the transcript.\\nSee also, the trial court's file in Civil Action No. 88-05P.\\nSee our opinion in Apatang v. MPLC, No. 89-013, 1 N.Mar.I. 36 (1990).\\nMPLC initially agreed to transfer such land to the heirs, then subsequently decided not to transfer the land unless ordered by the court. Consequently, the heirs, through the administratrix, filed suit against MPLC in Civil Action 89-570. The trial court entered judgment in favor of MPLC and the administratrix appealed to this Court. This Court reversed and instructed that judgment be entered in favor of the heirs. Apatang v. MPLC, No. 89-013, 1 N.Mar.I. 36 (1990). MPLC then transferred the land to the administratrix (which became part of Tudela's probate case) and was distributed in the decree of final distribution.\\nDuring the pendency of the probate, Inocencia purchased from the nine other heirs all their interests in Lot 017 H 44 and received deeds from each of them. See trial court's file in Civil Action No. 88-05P.\\nDuring the pendency of the probate, the war claims award was issued by the government for the heirs of Tudela.\\nIt was at this point that MPLC amicably agreed to transfer such land to the heirs. Subsequently, it changed its position and would not transfer the land to the heirs unless ordered by the court.\\nAt this point, MPLC had decided not to transfer land for the short-exchange claim unless ordered by the court. The administratrix filed a court action which was disposed of in her favor (by this Court) on April 30, 1990. Apatang v. MPLC, supra, n. 5.\\nIt was for this reason that this parcel was not initially entered as part of Tudela's estate.\\nThis fee was for the work to be done in clearing the insurer's concern about the Pangelinan/Tudela exchange and for including Lot E.A. 112 in Tudela's estate.\\nAlthough the trial court found that the $1,000 was for Lizama's representation of Teresita in the Wabol sale, the record does not show what legal work Lizama performed in connection with that representation. However, Lizama testified that when he kept the $1,000, he thought he had not been previously paid by Teresita. (Tr. at 205) In fact, he was previously paid $1,000 by Margarita, on behalf of Teresita.\\nInstead of giving Teresita the money, or returning it to his mother, he decided to place it in the trust account.\\nWe affirm the finding of the trial court that there existed an attorney/client relationship between Lizama and Teresita starting when Lizama agreed to assist in removing the title defects.\\nLizama did testify (and his testimony was not excluded) that his brother paid back the $10,000 used to purchase Margarita's expectancy. (Tr. at 257)\\nDuring the trial, Ms. Mack attempted to introduce evidence which would show that Lizama mishandled other clients' money. The trial court correctly excluded all such evidence as irrelevant. Thus, we find no factual basis for the court's order to audit Lizama's trust account for the last three years. This does not mean that the court is not empowered to do so, only that it has failed to state any legitimate purpose it would serve.\\nOnly as to the undetermined amount that should be applied towards correcting the first defect. On remand, the trial court shall make that determination.\"}"

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+"{\"id\": \"1695393\", \"name\": \"ROGER S. GOVENDO, a minor, by KENNETH L. GOVENDO, his guardian ad litem, Plaintiff/Appellant, vs. MARIANAS PUBLIC LAND CORPORATION, AIBIC INTERNATIONAL CORPORATION, et al., Defendants/Appellees\", \"name_abbreviation\": \"Govendo ex rel. Govendo v. Marianas Public Land Corp.\", \"decision_date\": \"1992-02-11\", \"docket_number\": \"APPEAL NO. 90-036; CIVIL ACTION NO. 90-246\", \"first_page\": 482, \"last_page\": \"508\", \"citations\": \"2 N. Mar. I. 482\", \"volume\": \"2\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-11T00:32:25.497323+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"ROGER S. GOVENDO, a minor, by KENNETH L. GOVENDO, his guardian ad litem, Plaintiff/Appellant, vs. MARIANAS PUBLIC LAND CORPORATION, AIBIC INTERNATIONAL CORPORATION, et al., Defendants/Appellees.\", \"head_matter\": \"February 11, 1992\\nIN THE SUPREME COURT OP THE COMMONWEALTH OP THE NORTHERN MARIANA ISLANDS\\nROGER S. GOVENDO, a minor, by KENNETH L. GOVENDO, his guardian ad litem, Plaintiff/Appellant, vs. MARIANAS PUBLIC LAND CORPORATION, AIBIC INTERNATIONAL CORPORATION, et al., Defendants/Appellees.\\nAPPEAL NO. 90-036\\nCIVIL ACTION NO. 90-246\\nArgued and Submitted March 27, 1991\\nCounsel for Plaintiff/Appellant Kenneth L. Govendo P.O. Box 2377 Saipan, MP 96950\\nCounsel for Defendant/Appellee AIBIC International: Robert J. O'Connor P.O. box 1969 Saipan, MP 96950\\nCounsel for Defendant/Appellee Marianas Public Land Corp.: Brian W. McMahon P.O. Box 909 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"5949\", \"char_count\": \"35595\", \"text\": \"OPINION\\nVILLAGOMEZ, Justice:\\nThe issue before us is whether the trial court erroneously dismissed plaintiff's complaint under Rule 12(b)(6), Com.R.Civ.P., The failure to state a claim upon which relief can be granted. complaint set forth three separate causes of action. Since appellant assigns error to the dismissal of all three causes of action, each of them is separately discussed below.\\nBACKGROUND\\nA. The Lease Agreement\\nOn March 15, 1988, Marianas Public Land Corporation (\\\"MPLC\\\") leased to AIBIC International Corporation (\\\"AIBIC\\\") Lot No. 004 I 40, containing an area of 40,827 square meters, more or less. The land is situated in San Antonio, Saipan-, and is adjacent to the lagoon. The lease term is 25 years, with an option to extend for an additional 15 years, subject to legislative approval. Under the lease agreement, lessee will pay a fixed annual rental plus a percentage of its gross receipts.\\nMPLC did not conduct any public hearing regarding the proposed lease prior to its execution.\\nThe purpose of the lease agreement is for AIBIC to construct and operate a first-class hotel complex with at least 250 rooms. The lease agreement does not provide that AIBIC may not build any permanent structure within 150 feet of the high water mark. It only provides that AIBIC shall comply with all Commonwealth laws.\\nMPLC is a public corporation created under Article XI, Section 4 of the NMI Constitution, entrusted with the management and disposition of public lands.\\nB. The Complaint\\nOn March 2, 1990, Roger S. Govendo (\\\"Govendo\\\"), a minor represented by a court appointed guardian ad litem, filed a complaint against MPLC, AIBIC, and the CNMI Government. The complaint asked the court to (1) declare the lease agreement null and void; (2) order AIBIC to vacate the land and remove its fence; (3) require MPLC and the government to use the land only for public purposes; and (4) require public and legislative participation in future decision making processes regarding public land.\\nGovendo's prayer for relief is based on three causes of action.\\nIn his first cause of action, Govendo alleges that the board's execution of the lease agreement violated their constitutional duty to act under a strict standard of fiduciary care. In support thereof, Govendo alleges:\\na) MPLC leased the largest piece of public land on the western side of Saipan and failed to act as a reasonably prudent trustee in negotiating the agreement.\\nb) MPLC leased a large chunk of the remaining public land on the west side of Saipan, knowing that there was little public land left on the lagoon.\\nc) MPLC ignored the fact that there are no outdoor recreational facilities belonging to the people of the Commonwealth who are of Northern Marianas descent and the leased property was the most logical piece of. land on the on the [sic] southwest side of Saipan to be used.\\nd) MPLC did not consider or wrongfully considered the best interests of the public in preserving public land for public uses.\\ne) MPLC knew that the Director of Natural Resources was a major shareholder of the Lessee and that the Special Assistant for Administration to the Governor at that time was acting as an agent for the Lessee; all this being in violation of Article III, Section 6 and Section 1 of Amendment 40 of the CNMI Constitution. (Conflict of Interest.)\\nf) The entire decision making process for the lease of this land was done quickly and purposefully to prevent any public hearings or public debate about the lease and, as a result, the decision making was without public input, thereby violating strict fiduciary standards.\\nComplaint, \\u00b6 8.\\nIn his second cause of action, Govendo alleges that (a) the leased area under AIBIC's control exceeds five hectares, so as to require legislative approval, which has not been obtained and (b) the lease agreement fails (in violation of law) to prohibit the erection of any permanent structure by lessee within 150 feet of the high water mark.\\nIn his third cause of action, Govendo alleges that the hotel project will result in unsanitary conditions caused by overburdened utilities (e.g. inadequate sewer and water services) which would deprive him of his constitutional right to a clean and healthful public environment.\\nC. Motion to Dismiss\\nMPLC and AIBIC moved to dismiss the complaint for failure to state a claim, pursuant to Rule 12(b)(6) . As to the first cause of action, they argued that the complaint alleged mere conclusions without alleging the facts upon which those conclusions were based.\\nAs to the first segment of the second cause of action, they asserted that since the lease agreement provided for a leased area of 40,824 square meters, (less than five hectares) and the lease agreement itself was attached to the complaint (and incorporated therein) the allegation that the leased land exceeded five hectares failed as a matter of law.\\nAs to the second segment of the second cause of action, they asserted that the lease agreement need not expressly prohibit the erection of permanent structures within 150 feet of the high water mark for three reasons. First, silence as to prohibition does not necessarily imply permission to act. Second, the lease agreement expressly does not include the 150 feet of land from the high water mark and there was no reason to contain provisions about that land. Third, the lease agreement separately requires AIBIC to comply with all CNMI laws. That includes laws which prohibit the erection by lessee of permanent structures on the beach.\\nWith respect to the third cause of action, the defendants contended that the allegations contained speculations and opinions as to what plaintiff believes may result once the hotel is constructed and thus do not constitute allegations of fact.\\nD. Trial Court's Decision\\nThe trial court granted the motion to dismiss the complaint. Govendo timely appealed.\\nANALYSIS\\nI. First causa of Action:\\nIn considering a motion to dismiss for failure to state a claim upon which relief can be granted, the trial court must take the well-pleaded facts as true and admitted. The defendant must then demonstrate that, even after taking the well pleaded facts as true, the plaintiff still fails to state a claim for relief. Scheuer v. Rhodes. 416 U.S. 232, 94 S.Ct. 1963 (1974).\\n\\\"While it is true that a trial court must accept all well-pleaded facts of the non-moving party as true, and must also draw reasonable inferences from allegations, there is no duty to strain to find inferences favorable to the non-moving party.\\\" In re Adoption of Magofna, No. 90-012, 1 N.Mar. 172 (1990).\\nAs to the first cause of action, the trial court ruled that, based on the well-pleaded facts, even if all the alleged acts (or failure to act) of MPLC are true, such acts (or failure to act) do not constitute a breach of fiduciary care.\\nThe Constitution requires the MPLC Board of Directors to act in accordance with strict standards of fiduciary care. We interpret this provision to mean more than the ordinary standard of fiduciary care. The duty of MPLC to act as a fiduciary must be strictly and rigidly observed and complied with. Any deviation from that high standard would violate Article XI, Section 4(c) of the Constitution.\\nAs fiduciaries, members of the board of directors have a duty of loyalty to the people of the Northern Mariana Islands who are of Northern Marianas descent \\u2014 the direct beneficiaries. The people, as beneficiaries, have entrusted upon the board the duty to act responsibly, honestly, and in good faith. They are to act solely for and in the best interest of the beneficiaries of the trust, to the exclusion of the interest of all others, including their own personal interests. Romisher v. MPLC, 1 CR 843 (1983).\\nWe analyze the first cause of action applying the above standard.\\nThe first cause of action essentially asserts that, in executing the lease agreement, MPLC breached its constitutional duty to comply with a strict fiduciary care. This cause of action sets forth six specific allegations in support of the general allegation. We analyze each supporting allegation separately.\\na. MLPC leased the largest piece of public land on the western side of Saipan and failed to act as a reasonably prudent trustee in negotiating the agreement.\\nThere are two parts to this allegation. First, MPLC leased the largest piece of public land on the western side of Saipan. Second, MPLC failed to act as a reasonably prudent trustee in negotiating the agreement.\\nThe first part raises the question of whether the leasing of the largest piece of public land on the western side of Saipan somehow constitutes a breach of the strict standard of fiduciary care. We fail to see how.\\nIt is not alleged that MPLC cannot lease the largest piece of public land on the western side of Saipan or, that by doing so, it is acting contrary to the best interests of the beneficiaries. To the contrary, the lease agreement provides for rental payments to MPLC as trustee for the benefit of the beneficiaries.\\nThe second part alleges that MPLC failed to act as a \\\"reasonably prudent trustee.\\\" This allegation fails to inform the court and MPLC how MPLC failed to act as a reasonably prudent trustee. What did it do, or did not do, that constituted a failure to act prudently?' The leasing of the largest piece of public land on the western side of Saipan, without more, does not constitute an imprudent act.\\nb. MPLC leased a large chunk of the remaining public land on the west side of Saipan, knowing that there was little public land left on the lagoon.\\nWe fail to see how the leasing of a large chunk of the remaining public land on the west side of Saipan, with the knowledge that little public land remain there, constitutes a breach of MPLC's strict standard of fiduciary care.\\nIt is not alleged that MPLC has a duty not to lease the last remaining big chunk of land on the west side of Saipan, or that by doing so, it is acting against the interests of the beneficiaries. There has to be more alleged, such as, for example, that it is against established public policy, or that the land is needed for a public purpose, which would be more beneficial to the beneficiaries.\\nc. MPLC ignored the fact that there are no outdoor recreational facilities belonging to the people of the Commonwealth who are of Northern Marianas descent and the leased property was the most logical piece of public land on the on the (sic) southwest side of Saipan to be used.\\nThis allegation can be broken down into three subparts for clarification.\\n1. There are no outdoor recreational facilities belonging to the people of NMI descent.\\n2. The leased property is the most logical piece for such recreational facilities on the southwest side of Saipan.\\n3. In entering into the lease agreement, MPLC ignored the above facts.\\nThe question that arises is whether MPLC's act of ignoring the first two sets of facts, while entering into the lease agreement, constitutes a breach of its strict standard of fiduciary care. We fail to see how.\\nThere is no allegation of any request or demand for recreational facilities on the southwest side of Saipan by the beneficiaries, or that there is any proposal to use the land for such facilities. Lacking such allegations, MPLC has no affirmative duty to consider the existence, or non-existence, of outdoor recreational facilities before leasing large public lands on the southwest side on Saipan which may be suitable for that purpose.\\nd. MPLC did not consider or wrongfully considered the best interests of the public in preserving public land for public use.\\nThis allegation may be broken down into two parts as follows:\\n1. It is in the best interest of the public to preserve public land for public use.\\n2. MPLC did not consider this public interest when it entered into the lease agreement.\\nWhether public land should be preserved for public use is not I a question of fact. It is a matter of opinion. While some people may think so, others may feel that public land may be used for private hotels, private golf-courses, private farms, cattle pastures, and other non-public uses.\\nThere is no Commonwealth law which requires that public land be preserved strictly for public use, except those within 150 feet of the high water mark on public beaches and specifically designated preservation/recreational lands, such as Managaha. To the contrary, Article XI, Section 5(d) and (g) of the Constitution expressly provides that MPLC may transfer an interest in public land for commercial use and receive compensation therefor.\\nMPLC's decision not to consider this alleged public interest, even if true, did not constitute a breach of strict standard of fiduciary care.\\ne. MPLC knew that the Director of Natural Resources was a major shareholder of the Lessee and that the Special Assistant for Administration to the Governor at that time was acting as an agent for the Lessee; all this being in violation of Article III, Section 6 and Section 1 of Amendment 40 of the CNMI Constitution. (conflict of interest)\\nThis allegation raises the question of whether ML^C's execution of the lease agreement, with the knowledge that the director of Natural Resources was a shareholder of the lessee and that the Governor's special assistant acted as agent for the lessee, constitutes a breach of strict standard of fiduciary care. We fail to see how.\\nFirst, Article III, Section 6 and Section 1 of Amendment 40 of the Constitution do not apply to the facts of this case. Second, there is no allegation that either the director or the special assistant had any connection with or influence over MPLC (which is not a part of the executive branch) that would cause any conflict of interest. See Romisher v. MPLC, 1 CR 843 (1983) . Nor is there any allegation that either of them had actually used his position to unlawfully influence MPLC.\\nMere knowledge of such fact by MPLC, even if true, is insufficient to constitute a breach of fiduciary care.\\nf. The entire decision making process for the lease of this land was done quickly and purposefully to prevent any public hearings or public debate about the lease and, as a result, the decision making was without public input, thereby violating strict fiduciary standards.\\nWe fail to see how MPLC's decision not to conduct a public hearing on the proposed lease agreement, even if true, violated fiduciary care.\\nIt is not alleged that MPLC has a fiduciary duty to hold a public hearing before entering into the lease agreement. There is also no allegation that a public hearing was requested by any person, or that a public hearing would have prevented specific acts or agreements that would be contrary to the best interests of the beneficiaries.\\nII. Second Causa of Action:\\nThe second cause of action contains two distinct allegations of fact. We analyze each part separately.\\na. The area leased and under control of the Lessee is more than five hectares of land which will be used for commercial purposes; thereby requiring the approval of the Legislature in joint session, which was not done.\\nThe question here is, whether these are well-pleaded facts, in light of the provision of Article 1 of the Lease Agreement which states:\\nThe Corporation hereby leases to the Lessee . . . Lot No. 004 I 40, containing an area of 40,827 square meters, more or less, as shown on Survey Plat No. 004 I 04, registered in the Commonwealth Recorder (File No. 88-789) on March 14, 1988.\\nWe do not think so.\\nThe lease agreement has been executed and is binding on both parties. Under the lease, AIBIC is leasing only 40,827 square meters of land.\\nGovendo did not allege that \\\"although the lease agreement grants 40,827 square meters, AIBIC is actually occupying and possessing more than 50,000 square meters.\\\" The complaint only alleges that \\\"[t]he area leased . is more than five hectares . . . .\\\" Complaint at 4. (Emphasis added) Nor has Govendo alleged that MPLC acquiesces to the possession of more than 50,000 square meters of land.\\nb. [T] he lease does hot prohibit the erection of any permanent structure within one hundred fifty feet of the high water mark of a sandy beach as is required by law.\\nGovendo argues that:\\n[B]y not stating it in the lease, MPLC is consenting to the creation of these structures which may be a Constitutional [sic] violation. It is certainly a breach of fiduciary duty since the public is entitled to a beach area broader than an area from the high water mark to the water itself.\\nAppellant's Opening Brief at 20.\\nThe fact that the lease agreement does not expressly prohibit the erection of permanent structure within 15G feet of the high water mark does not, by itself, constitute a violation of Article XI, Section 5(e) of the Constitution, i.e. MPLC's strict standard of fiduciary care.\\nArticle XI, Section 5(e) of the Constitution as originally drafted and ratified stated:\\nThe Corporation may not transfer an interest in public lands located within one hundred fifty feet of the high water mark of a sandy beach.\\nIn 1985, this provision was amended and ratified as follows:\\nThe Corporation may not transfer an interest, and may prohibit the erection of any permanent structure, in public lands located within one hundred fifty feet of high water mark of a sandy beadh, except that the corporation may authorize construction of facilities for public purposes.\\nConstitution, Article XI, Section 5(e) as amended. (The underlined language was added by the amendment).\\nIn the original provision, MPLC was only prohibited from transferring any interest within 150 feet of the high water mark. In the amended version, MLPC is authorized to do two things. First, prohibit the erection of permanent structure within 150 feet of the high water mark. Second, authorize construction of facilities therein but only for public purposes. Under both the original and the second version, MPLC is prohibited from transferring any interest within 150 feet of the high water mark.\\nIt is not clear from the lease agreement whether it encompasses any land within 150 feet of the high water mark. If it does, then the lease agreement would indeed be in violation of the Constitution. Appellees have indicated in their brief that the lease agreement does not cover any land within 150 feet of the high water mark. Govendo has not alleged that the lease agreement covers any part of that protected land.\\nAIBIC has no legal authority to build any structure within 150 feet of the high water mark adjacent to the leased premises, even if the lease agreement does not expressly prohibit it. If AIBIC were to build any such structure, it would be in violation of Article XI, Section 5(e), of the Constitution. Such violation may be prohibited by MPLC under Article XI, section 5(e), or any CNMI citizen of Northern Marianas descent could bring an action against AIBIC to enjoin such violation and seek damages.\\nIII. Third Cause of Action.\\nGovendo alleges that if AIBIC develops a hotel on the leased property, his constitutional right to a clean and healthful public environment would be violated because (1) the beach area would be used almost exclusively by tourists, (2) the reef and lagoon would be destroyed in that area, (3) Saipan would become more\\ncrowded, (4) overburdened utilities such as sewer and water would cause unsanitary conditions, and (5) the beach area he needs for recreation purposes would be removed.\\nIt is unclear whether the legal theory behind this cause of action is that MPLC violated Govendo's constitutional right by leasing public land upon which a hotel would be built, which would result in a harmful environmental impact, or whether the theory behind this cause of action is that AIBIC has violated Govendo's constitutional right by planning to build the hotel. However, it is our opinion that either theory is sustainable.\\nThe trial court has ruled (and appellees argue on appeal) that these allegations are speculative and do not constitute well-pleaded facts or state a claim upon which relief can be granted. We disagree.\\nlt is clear that Govendo and all persons affected in the Commonwealth have a constitutional right to a clean and healthful public environment within the CNMI. Substances, objects or harmful and unnecessary noise pollution \\\"may not be added to or cast upon the air or water by government or private activities . . . that adversely affect the cleanliness of the air, land or water.\\\" Constitutional Analysis, 24 (1986) (emphasis added). If this right is violated by either a private person, private entity, or a government agency, then a private person or the government, its proper agencies and instrumentalities, may bring an action to enjoin such violation and recover damages for injuries sustained.\\nIn addition, the court may enjoin a proposed government or private activity which, if allowed, would adversely and unconstitutionally affect the cleanliness of the air, land, or water. Whether the construction of a large hotel, as proposed in the lease agreement, would in fact causa such a result is not the issue before us. The issue before us is whether the allegations in the complaint constitute well-pleaded facts which state a claim upon which relief can be granted. We think that this cause of action does.\\nIt is alleged that if the hotel is built, the overburdened utilities would cause unsanitary conditions which would destroy the reef and lagoon area. The Constitution clearly prohibits activities that would have such adverse environmental results. If Govendo were to wait and see, it may become too late. See 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, \\u00a7 3532, at 112-144 (2d ed. 1984). He should be given the opportunity to prove his allegations. Whether he proves those allegations or not is not crucial to a Rule 12(b)(6) motion. We hold that the trial court erred and we reverse the dismissal of this cause of action.\\nCONCLUSION\\nThe dismissal of the complaint by the trial court, as to the first two causes of action, is hereby AFFIRMED. We REVERSE as to the dismissal of the third cause of action and REMAND the case for trial. As to all three causes of action, the trial court shall grant Govendo, if he requests, leave to amend his complaint in order to comply with the requirement of well-pleaded facts for the first two causes of action, and to request the proper remedy as to the third cause of action.\\nDated this day of 19'92. I I 7~ I-.--~ (}~\\\\r1\\\\a\\nThe dismissal of a complaint pursuant to Com.R.Civ.P. 12(b)(6), for failure to state a claim, raises a question of law which we review de novo. Govendo v. Micronesian Garment Mfg. Inc., No. 90-013 (N.M.I. Sept. 10, 1991).\\nPublic lands belong collectively to the people of the Commonwealth who are of Northern Marianas descent. Constitution Article XI, Section 1. Section 4(a), provides for a board of directors to direct the affairs of MPLC. Section 4(c), provides that \\\"[t]he directors shall be held to strict standards of fiduciary care.\\\"\\nAs to the defendant, Commonwealth Government, the trial court summarily dismissed it as a party-defendant on the basis that it was not a party to the lease agreement. That part of the decision has not been appealed.\\n\\\"Strict . a: stringent in requirement or control . . . b: severe in discipline . . .2a: inflexibly maintained or adhered to . . . .\\\" Websters Ninth New Collegiate Dictionary 1167 (1984).\\n\\\"Fiduciary Duty\\\" means a duty to act for someone else's benefit, while subordinating one's personal interest to that of the other person. It is the highest standard of duty implied by law. Black's Law Dictionary, Sixth Edition 625 (1990).\\n\\\"Prudent . a: marked by wisdom or judiciousness b: shrewd in the management of practical affairs . Webster's Ninth New Collegiate Dictionary 949 (1984).\\nThis allegation is similar to an allegation that states, \\\"the defendant committed a crime\\\" without stating what crime has been committed. It fails to inform the defendant and the court what the defendant did.\\nNMI Constitution Article III. Executive Branch.\\nSection 6. Other Government Employment. The governor or lieutenant governor may not serve in another Commonwealth position or receive compensation for performance of official duties or from any governmental body except as provided by Section 5.\\nAmendment 40, NMI Constitution.\\nSection 1. Code of Ethics. The legislature shall enact a comprehensive Code of Ethics which shall apply to appointed and elected officers and employees of the Commonwealth and its political subdivisions, including members of boards, commissions, and other instrumentalities. The Code of Ethics shall include a definition of proper conduct for members of the legislature with conflicts of interest and a definition of the proper scope of debate in the legislature, shall require disclosure of financial or personal interests sufficient to prevent conflicts of interest in the performance of official duties, shall define the offense or corrupt solicitation of public officials, and shall provide for punishment of offenses by fine and imprisonment.\\nThis is not to say that if AIBIC does occupy and take over possession of more than 50,000 square meters of land, Govendo would still not have a cause of action. However, that has not been alleged.\\n\\\"It is intended that the corporation maintain the sandy beaches for use by the people of the Commonwealth. This includes maintaining sufficient public access to these beaches . . . .\\\" \\\"[N]o other government agency or the legislature may transfer the sandy beaches protected by this subsection.\\\" Constitutional Analysis, 157 (1976).\\nExcept for MPLC's power to authorize the construction of facilities for public purposes, no statute, regulation or agency action may authorize the erection of any structure within 150 feet of the high water mark of any public beach.\\nWe interpret Article XI, section 5(e) to be self-executing.\\nConstitution, Article I, Section 9, as amended:\\nEach person has the right to a clean and healthful public environment in all areas, including the land, air, and water. Harmful and unnecessary noise pollution, and the storage of nuclear or radioactive material and the dumping or storage of any type of nuclear waste within the surface or submerged lands and waters of the Northern Mariana Islands, are prohibited except as provided by law.\\nThis would constitute a government action that violates an individual's rights.\\nThis would constitute a private action which violates an individual's rights.\\nWe interpret Article I, section 9 of the Constitution to be self-executing.\\nWe note that Govendo \\\"s prayers do not clearly seek an injunction against the activities that would result in the violation of Article I, section 9 of the Constitution. Nevertheless, he should be allowed to amend his complaint to request the proper remedy. See N. 18, infra.\\n\\\"A dismissal under Rule 12(b)(6) is not final or on the merits and the court normally will give plaintiff leave to file an amended complaint.\\\" In re the Adoption of Magfona, supra.\\n\\\"Leave to file an amended complaint shall be freely given when justice so requires.\\\" Com.R.Civ.P. 15(a); In re Adoption of Magofna, supra. \\\"The liberal allowance of amendments of pleadings is a recognition that controversies should be decided on the merits whenever practicable.\\\" 27 Fed Proc L Ed \\u00a7 62:258 (1984) (analysis of Fed.R.Civ.P. 15(a)).\\nAppellee's (AIBIC) argument on appeal that it is a bona fide purchaser of the leasehold interest is premature for our consideration at this time.\"}"

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+"{\"id\": \"1695397\", \"name\": \"ENGRACIA REPEKI, Plaintiff/Appellant., vs. MAC HOMES (SAIPAN) CO., LTD., BALDOMERO NORITA and DELGADINA SABLAN, Defendants/Appellee\", \"name_abbreviation\": \"Repeki v. Mac Homes (Saipan) Co.\", \"decision_date\": \"1991-03-14\", \"docket_number\": \"APPEAL NO. 90-002; CIVIL ACTION NO. 87-712\", \"first_page\": 33, \"last_page\": \"60\", \"citations\": \"2 N. Mar. I. 33\", \"volume\": \"2\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-11T00:32:25.497323+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"ENGRACIA REPEKI, Plaintiff/Appellant., vs. MAC HOMES (SAIPAN) CO., LTD., BALDOMERO NORITA and DELGADINA SABLAN, Defendants/Appellee.\", \"head_matter\": \"March 14, 1991\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nENGRACIA REPEKI, Plaintiff/Appellant., vs. MAC HOMES (SAIPAN) CO., LTD., BALDOMERO NORITA and DELGADINA SABLAN, Defendants/Appellee.\\nAPPEAL NO. 90-002\\nCIVIL ACTION NO. 87-712\\nArgued and Submitted August 28, 1990\\nCounsel for Plaintiff/Appellant: William M. Fitzgerald, Esq. P.O. Box 909 Saipan, MP 96950\\nCounsel for Defendant/Appellee: Charles K. Novo-Gradac, Esq. White, Novo-Gradac and Manglona P.O. Box 222 CHRB Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"6475\", \"char_count\": \"39298\", \"text\": \"OPINION\\nDELA CRUZ, Chief Justice:\\nThe appellant, Engracia Repeki (\\\"Repeki\\\"), obtained a favorable judgment in the Commonwealth Superior Court quieting title to property in Tanapag, Saipan. She appeals that part of the judgment granting the appellee, MAC Homes (Saipan) Co., Ltd. (\\\"MAC Homes\\\" or \\\"the company\\\"), a $392,000 lien for the \\\"enhancement value\\\" of a house and other improvements it constructed on the property in the mistaken belief that it held a valid leasehold interest.\\nWe affirm.\\nI.\\nMAC Homes, an NMI corporation engaged primarily in real estate development, was established in 1985. It is a subsidiary of a Japanese company owned principally by Kazutoyo Sonobe (\\\"Sonobe\\\"), a resident of Japan. MAC Homes is managed locally by Toshiaki Suzuki (\\\"Suzuki\\\").\\nIn 1986, Sonobe told Anthony Pellegrino (\\\"Pellegrino\\\"), a social acquaintance, that MAC Homes was interested in leasing property on Saipan. Pellegrino then contacted Manuel A. Sab\\u00edan (\\\"Sab\\u00edan\\\") to look for property that might interest MAC Homes and orally agreed to split profits and commissions. The two had previously acted together to lease property to others.\\nSab\\u00edan in turn contacted Regino Aquino (\\\"Aquino\\\"), who had a \\\"listing\\\" from Nicanor Norita. Nicanor Norita wished to sell the property at issue in this suit, which was held by his father, Baldomero Norita, as land trustee for the heirs of Maria Norita. Pellegrino, Sab\\u00edan and Aquino agreed to promote the lease of the property. Pursuant to that understanding, Pellegrino showed the property to Sonobe and Suzuki in April, 1986. At the time of the visit, a family was found to be living on a portion of the property, purportedly with the permission of the owner,\\nMAC Homes agreed to lease the property on terms Pellegrino suggested \\u2014 $118,195 for 55 years. Upon Pellegrino's assurance that title was clear and that he would get title insurance, Suzuki paid an earnest money deposit of $20,000 to Nicanor Norita. Subsequently, Pellegrino told Suzuki th\\u00e1t it was necessary to immediately pay an additional $30,000 toward the transaction because someone in the owner's family was ill and required money immediately. Upon further assurance by Pellegrino that the title was sound, Suzuki complied, taking a check payable to Baldomero Norita to Sab\\u00edan's office.\\nOn June 5, 1986, Baldomero Norita quitclaimed the entire property to Delgadina Sab\\u00edan, Sab\\u00edan's wife, for $50,000.\\nDespite this conveyance, on July 23, 1986, Baldomero Norita entered into an agreement which, inter alia, purports to ,\\\"quitclaim\\\" a portion of the property to a member of the family that had been living there.\\nDelgadina Sab\\u00edan obtained an insurance policy insuring her title on July 28, 1986. The policy contained an exception to coverage because of Trust Territory High Court records indicating that Baldomero Norita's claim to be sole heir of Maria Norita was questionable. MAC Homes was not informed of the contents of this policy. Despite the exception, Pellegrino again assured MAC Homes that title to the property was sound. Suzuki paid the balance of the lease price ($68,195) to Delgadina Sab\\u00edan on August 2, 1986.\\nDelgadina Sab\\u00edan and a representative of MAC Homes entered into a lease agreement on August 2, 198 6. The agreement was recorded three days later. On that date \\u2014 August 5, 1986 \\u2014 MAC Homes obtained an insurance policy insuring its leasehold estate. That policy did not contain the exception to coverage noted in Delgadina Sab\\u00edan's title insurance policy.\\nIn September, 1986, MAC Homes cleared and fenced the portion of the property that it was leasing.\\nAround November of 193 6, the company was told by a third party (Saipan resident Noriyasu Horiguchi) that Delgadina Sab\\u00edan had obtained her title from Baldomero Norita for only $50,000 \\u2014 $68,195 less than the sum paid by MAC Homes for the subsequent lease \\u2014 by means of a \\\"quitclaim deed,\\\" which was said to be unreliable, and that the heirs to the property had not yet been legally determined in a probate proceeding. When Suzuki questioned Pellegrino about the difference between the consideration recited in the deed and the sum paid for the lease, Pellegrino said that the consideration in the deed had been understated to allow Baldomero Norita to avoid taxes.\\nAround July of 1987, MAC Homes contracted with Pellegrino to build a residence for Sonobe on the property. Construction commenced the next month.\\nOn November 13, 1987, when construction of the house was approximately eighty percent complete, Repeki filed the present action to quiet title to the property. She claimed that she was Maria Norita's sole surviving child, and thus the true owner. MAC Homes presented several defenses and, in the event that Repeki was determined to be entitled to the property, asserted a claim for equitable reimbursement for the improvements, cross-claimed against Baldomero Norita for damages for breach of warranty and fraudulent representation, and cross-claimed against the other defendants.\\nTwo months after the suit was filed, the Sonobe residence was completed at a cost of $635,000.\\nII.\\nThe Superior Court ruled that the property was owned by the heirs of Maria Norita and that MAC Homes had no leasehold interest, but granted the company a lien for $392,000 for the \\\"enhancement value\\\" of its improvements. The court also held that Delgadina Sab\\u00edan owed MAC Homes compensation for the lease price ($118,195), attorney's fees and costs. No relief was granted on MAC Homes' cross-claims against the other defendants.\\nA. COMPENSATION FOR IMPROVEMENT\\nNoting that the CNMI has no \\\"betterment\\\" statute concerning compensation for improvements to property, the trial court applied the equitable doctrine that one who (in good faith) mistakenly places improvements on the property of another is entitled to compensation, the measure being the amount by which the improver has enhanced the value of the property. It considered two arguments made by Repeki to the effect that MAC Homes lacked the requisite good faith.\\n1. The Asserted Agency Relationship\\nRepeki's first argument concerning MAC Homes' purported lack of good faith centered on the relationship between the company and Pellegrino, Sab\\u00edan and Aquino. Repeki contended that the three were agents of MAC Homes, and that their knowledge (or the fact that they should have known) of the questionable nature of Baldomero Norita's title to the property should be imputed to MAC Homes under agency principles, negating the company's claim of good faith.\\nAt trial, Pellegrino testified that he, Sab\\u00edan and Aquino had not informed MAC Homes of the true cost of the land ($50,000) ; that they had not informed Nicanor Norita of the lease amount subsequently paid by MAC Homes ($118,195); and that they had taken the difference ($58,195) for themselves.\\nBased on this and other evidence, the trial court ruled that there was no agency relationship. It cited several factors, including Pellegrino, Sab\\u00edan and Aquino's lack of: (1) an agency contract, (2) employment by the company, and (3) authority to bind MAC Homes, as well as (4) actions which appeared to have been dictated by their own interest. \\\"As a very practical matter, the triad was working for no one but themselves.\\\" Repeki. memorandum decision at 9. According to the court, the fact that their commissions came from money expended by MAC Homes did not mean that the company employed the three. \\\"It is common for the seller's broker to receive his commission out of the proceeds of the sale which are supplied by the buyer. This does not make the broker the buyer's agent.\\\" Id.\\nFurther, Pellegrino, Sab\\u00edan and Aquino's failure to notify MAC Homes of the possibility that the property could be leased at a much lower rate indicated that they were actually acting adversely to the company's interest:\\nEven if it could be construed that Pellegrino and Manuel Sab\\u00edan were agents of Mac Homes, it is clear that they were acting adversely to the interests of Mac Homes. In such a case, any knowledge of the agent is not imparted to the principal.\\nId.\\n2. The Asserted Reasonable Notice\\nRepeki claimed in the alternative that (even in the absence of imputed knowledge under agency principles) MAC Homes lacked the requisite good faith because it was put on reasonable notice of the faulty title prior to the construction of the home. Among the evidence cited for this proposition was the information MAC Homes received from the third party, Horiguchi, in November of 1986 concerning the apparent lack of a warranty deed conveying the property to Delgadina Sab\\u00edan, the discrepancy between the deed consideration and the sum paid for the lease, and the absence of a probate of Maria Norita's estate.\\nThe court ruled that this evidence did not negate the company's good faith because: (1) the deed was actually a warranty deed, (2) MAC Homes possessed a leasehold insurance policy, and (3) the MAC Homes representatives were inexperienced in Saipan real estate transactions. Repeki, memorandum decision at 11. According to the court:\\nUnder all the circumstances the court cannot find the defendant proceeded in bad faith. Mac Homes may have indulged in blind faith in the trust and confidence placed in Pellegrino but this does not negate good faith.\\nId.\\nFinally, the court found it significant that Repeki and the other heirs failed to notify MAC Homes of the title problems when construction started:\\nHad the lawsuit been filed prior to construction and before the materials were ordered, the defendant would have little to complain about except for the activities of Pellegrino and Manuel Sab\\u00edan. Good faith by Mac Homes is only part of the story. Diligence and action by the owners of the property is also required. They cannot idly stand by and watch a massive structure being constructed on their property and then claim lack of good faith by the improver and object to the construction of an unwanted residence.\\nRepeki, memorandum decision at 12.\\nB. THE REMEDY\\nThe $392,000 lien that the trial court awarded MAC Homes was based on the company's appraisal of the house and property for $1,000,000: $608,000 for the land, $392,000 for the enhancement. Repeki did not counter this appraisal with her own appraisal.\\nAsserting that the house constructed by MAC Homes frustrated the development or sale of the property with condominium units (which MAC Homes' appraiser agreed to be the most economically rewarding \\u2014 \\\"highest and best\\\" \\u2014 use), Repeki contended that the value of the property was thus not enhanced and that MAC Homes should not be reimbursed for the improvement. The trial court rejected this argument.\\n\\\"This attack is repelled because the plaintiff sat by and did not timely inform Mac Homes of her interest and allowed a single family residence to be substantially completed before filing suit.\\\" Reoeki. memorandum decision at 12. The court also observed that a ' \\\"highest and best use\\\" factor is not part of the enhancement formula because:\\nForesight could defeat an otherwise valid equitable claim for compensation. In any appraisal, the nature of the improvement is an essential element at arriving at the enhancement figure. Thus, if Mac Homes had built a condominium (which the plaintiff now apparently professes to want) the plaintiff would probably have to pay Mac Homes a greater amount than what is indicated for a single family residence.\\nId.\\nIII.\\nThe central issue in this appeal is whether MAC Homes satisfies the good faitn requirement, of the doctrine of equitable compensation for the residence it constructed on the Tanapag property. Though repeating many of the arguments she raised at trial, Repeki now contends that only Pellegrino was MAC Homes' agent, and that his duty as agent was limited to an investigation of the ownership of the property. She also asserts that she gave notice of her adverse claim to Manuel Sab\\u00edan before MAC Homes commenced construction of the Sonobe residence.\\nThe trial court correctly noted that there is no NMI \\\"betterment\\\" statute permitting reimbursement for improvements constructed in good faith on the property of another by mistake. Since there is also no local customary law on point, the applicable law is provided in the Restatement of Restitution (1937):\\nExcept to the extent that the rule is changed by-statute, a person who, in the mistaken belief that he or a third person on whose account he acts is the owner, has caused improvements to be made upon the land of another, is not thereby entitled to restitution from the owner for the value of such improvements; but if his mistake was reasonable, the owner is entitled to obtain judgment in an equitable proceeding or in an action of trespass or other action for the mesne profits only on condition that he makes restitution to the extent that the land has been increased in value by such improvements or for the value of the labor and materials employed in making such improvements, whichever is least.\\nId. \\u00a7 42(1) (emphasis added). The emphasized language essentially embodies the equitable doctrine affording compensation to an improver who (1) is in possession of property adverse to the true owner under (2) color or claim of title and who (3) constructs improvements in good faith. See Smith v. Long, 281 P.2d 483 (Idaho 1955) .\\nInequitable conduct by a landowner is not a prerequisite to a good faith improver's right- to compensation. Under circumstances in which a landowner would be unjustly enriched by retaining improvements mistakenly constructed upon the property by a good faith improver, the improver is entitled to compensation \\\"even though [the landowner is] free from any inequitable conduct in coonection with the construction of the [improvement] upon his land....\\\" Somerville v. Jacobs, 170 S.E.2d 805, 810 (W. Va. 1969. In addition:\\nWhere a person is entitled to restitution from another because the other, without tortious conduct, has received a benefit, the measure of recovery for the benefit thus received is the value of what was received, limited, if the recipient was not at fault or was no more at fault than the claimant, to its value in advancing the purposes of the recipient .\\nRestatement of Restitution \\u00a7 155 (emphasis added).\\nMAC Homes clearly fulfills the first two criteria of the doctrine of compensation. Smith, supra. The company's apparently valid leasehold based on Delgadina Sab\\u00edan*s deed satisfies the \\\"color or claim of title\\\" requirement, and MAC Homes' occupancy of the Tanapag property was certainly adverse to the true owners. Our decision hinges upon analysis of the third criteria, the requirement of good faith.\\nIV.\\nWas Pellegrino MAC Homes' agent for the limited purpose of tigating the ownership of the Tanapag property? investigating the ownership of the Tanapag property?\\nWe analyze the existence of an agency relationship with reference to the Restatements. According to the Restatement\\n(Second) of Agency .(1958) :\\n(1)Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.\\n(2) The one to whom action is to be taken is the principal.\\n(3) The one who is to act is the agent.\\nId. \\u00a7 1. There are three essential characteristics of an agency relationship. First, \\\"[a]n agent or apparent agent holds a power to alter the legal relations between the principal and third persons and between the principal and hims\\u00e9lf.\\\" Id. \\u00a7 12. Second, \\\"[a]n agent is a fiduciary with respect, to matters within the scope of his agency.\\\" Id. \\u00a7 13. Third, \\\"[a] principal has the right to control the conduct of the agent with respect to matters entrusted to him.\\\" Id. \\u00a7 14.\\nIf an agency relationship is established, the agent's knowledge can be imputed to the principal:\\nExcept where the agent is acting adversely to the principal or where knowledge as distinguished from reason to know is important, the principal is affected by the knowledge which an agent has a duty to disclose to the principal or to another agent of the principal to the same extent as if the principal had the information.\\nRestatement (Second) of Agency \\u00a7 275 (1958) , Repeki cites official commentary to this provision to support her contention that MAC Homes should be charged with imputed notice of faulty title based on Pellegrino's investigation:\\nP employs A, a real estate broker, to make preliminary negotiations and to investigate the title of land which P is considering purchasing and to report as to the existence of any recorded interests in the property. A, knowing of such an interest, negligently fails to report it to P. P takes the land subject to the unrecorded interest.\\nComment a, illustration l.\\nThe existence of an agency relationship is generally a question of fact to be determined by the trier of fact. 3 C.J.S. Agency \\u00a7 547 (1972). However, \\\"[wjhether . an agency relationship exists is a question of law for the court where the material facts from which it is to be inferred are not in dispute.\\\" Warren v. Mangels Realty, 533 P.2d 78, 81 (Ariz. Ct. App. 1975); see also Butler v. Colorado International Pancakes, Inc., 510 P.2d 443 (Colo. Ct. App. 1973).\\nThe material facts from which Repeki urges that an agency relationship can be inferred were not in dispute. Accordingly, this issue presents a question of law which we review de novo. In re Estate of Rofag, No. 89-019 (N.M.I. Feb. 22, 1991).\\nWe conclude that there is insufficient evidence in the record to establish an agency relationship between MAC Homes and Pellegrino--even for the limited purpose argued in this appeal. As the trial court noted, Pellegrino had no authority to bind the company, negating the \\\"holder of power\\\" attribute specified in Restatement (Second) of Agency \\u00a7 12. The evidence indicates that Pellegrino and his associates were acting for themselves--that they were not subject to any right of control by MAC Homes. ~. ~. \\u00a7 14. Pellegrino owed no fiduciary duty to MAC Homes. His knowledge thus cannot be imputed to MAC Homes under agency principles. See Warren, supra (since real estate broker was not agent of prospective purchaser, no fiduciary relationship existed) . We accordingly decline to reverse on this basis.\\nV.\\nIn the absence of an agency relationship, we now examine whether there was sufficient evidence for the trial court to conclude that MAC Homes' reliance on an apparently valid leasehold was made in good faith.\\nAccording to 42 C.J.S. Improvements (1944):\\nGood faith . . . depends on the circumstances of the particular case in which it is asserted; but stated generally it must be an honest belief on the part of the occupant that he has secured a good title to the property in question, and that there are no adverse claims; and for this belief there must be reasonable grounds that would lead a [person] of ordinary prudence to entertain it.\\nId. \\u00a7 7. \\\"In its traditional sense good faith connotes a moral quality; it is equated with honesty of purpose, freedom from fraudulent intent and faithfulness to duty or obligation.\\\" Raab v. Casper. 124 Cal.Rptr. 590, 593 (Cal. App. 1975). Negligence&emdash;lack of care&emdash;is not an element of good faith unless it is specified as an element in a \\\"betterment\\\" statute. Id.\\nJ \\\"It is usually a question of fact . whether or not an occupant has made improvements in good faith while in bona fide possession under color of title . . . \\u20221I 42 C.J.S. Improvements \\u00a7 14 (1944). However, as with the question of the existence of an agency relationship, if the evidence is undisputed, the question is one of law to be determined by the court. Brown v. Fisher, 193 S.W. 357 (Tex. Civ. App. 1917) . We believe that the evidence concerning this issue is essentially undisputed. Thus, as a question of law, it is subject to de novo review. In re Estate of Rofag, supra.\\nRepeki raises two contentions to refute the trial court's conclusion with respect to the company's good faith. First, when MAC Homes began to erect a fence on the Tanapag property soon after the lease was executed, Repeki asserts that she notified Manuel Sab\\u00edan that the property rightfully belonged to her. \\\"Sab\\u00edan [then] informed Pellegrino as the representative of MAC Homes about the complaint.\\\" Appellant's brief at 2. Second, Repeki argues that MAC Homes was given notice of Delgadina Sab\\u00edan's unreliable title by the third party, Horiguchi, who informed Suzuki of irregularities in the land transfer and lease transaction before construction commenced on Sonobe's residence.\\nNeither contention, even if accepted as true, necessarily negates MAC Homes' good faith:\\nAs a general rule an occupant is regarded as an occupant in bad faith and not entitled to compensation for his improvements, where, and only where, he has either actual notice of the adverse title, or what is equivalent thereto, such as where there is brought home to him notice of some fact or circumstance that would put a [person] of ordinary prudence to such an inquiry as would, if honestly followed, lead to a knowledge of the adverse title.\\n42 C.J.S. Improvements \\u00a7 7 (1944).\\nThe record confirms that MAC Homes had no actual notice of Repeki's adverse title prior to substantial completion of the improvement. As noted infra. Pellegrino's knowledge cannot be imputed to the company under agency principles. Likewise, as the trial court found, Repeki failed to notify MAC Homes of her claim to the Tanapag property prior to the filing of this suit, when the Sonobe residence was eighty percent completed. Repeki, memorandum decision at 11.\\nThe record also confirms that MAC Homes did not have the \\\"equivalent\\\" of actual notice of Repeki's adverse title. Horiguchi's unsolicited remarks do not meet this standard.\\nWe will initially consider Horiguchi's information to the effect that there had been no probate to conclusively settle title to the Tanapag property.\\nIn some circumstances, such information could be a \\\"fact or circumstance that would put a [person] of ordinary prudence to such an inquiry as would, if honestly followed, lead to a knowledge of the adverse title.\\\" 42 C.J.S. Improvements \\u00a7 7 (1944). In this case, however, other facts lead us to conclude that the company's good faith was not negated by its receipt of this information.\\nFirst (and most importantly), Horiguchi did not say that the property actually belonged to anyone other than Delgadina Sab\\u00edan (by way of Baldomero Norita). If Horiguchi told Suzuki that he or another person knew of an adverse claim to the Tanapag property, our conclusion concerning the company's good faith could well be different. However, \\\"in the absence of some information that some particular person knows of an adverse claim to the premises in dispute, there is no duty resting upon the purchaser to make inquiries of such person . . . .\\\" Strong v. Strong, 98 S.W.2d 346, 109 A.L.R. 739, 743 (Tex. 1936) (emphasis added), quoting Bounds v. Little 12 S.W. 1109, 1110 (Tex. 1889) . This rule also applies to prospective lessees. Strong, supra.\\nFurther, there is nothing in the record indicating that MAC Homes actually suspected that the Tanapag property was owned by others, or that the company's representatives remained purposely ignorant of facts pointing to ownership by others. Cf. Strong. 98 S.W.2d 346, 109 A.L.R. at 744 (good faith of lessee apparent from record: \\\"there is no evidence of circumstances tending to prove that those who represented Sun Oil Company remained purposely ignorant of facts pointing to ownership by someone other than [the lessor], or that they suspected that there were other owners, or that they attempted to acquire through the aid of the registration laws a title that they did not really believe to be in the lessor\\\").\\nSecond, Horiguchi's assertion that the title conveyance was by a deed devoid of warranties (the \\\"quitclaim deed\\\") was incorrect. The deed warrants (without exception or reservation) that the property is not subject to lien \\\"or encumbered in anyway [sic] and I have good right and title to sell . . . .\\\" This deed was filed in the Commonwealth Recorder's Office.\\nThird, Horiguchi's information concerning the discrepancy ($68,195) between the lease price and the sale price did not indicate that Baldomero Norita lacked valid title to convey to Delgadina Sab\\u00edan.\\nFourth, it is significant that MAC Homes' leasehold insurance policy did not specify any unusual exception to coverage with respect to a defect in either Baldomero Norita or Delgadina Sab\\u00edan's title. The company could reasonably rely upon this policy as evidence of clear title:\\nThe sole object of title insurance is to cover possibilities of loss through defects that may cloud title. It is not mere guesswork, nor is it a wager. It is designed to be predicated upon careful examination of the muniments of title, an exhaustive study of the applicable law and the exercise of expert contract draftmanship. Some defects will be disclosed by a search of the public transfer records; others will be disclosed only by a physical examination or a survey of the property itself. Often the existence of title defects will depend upon legal doctrines and judicial interpretations of various applicable statutes. Since the average purchaser has neither the skill nor the means to discover or protect himself against the myriad of defects, he must rely upon an institution holding itself out as a title insurer.\\nUnited States v. City of Flint, 346 F.Supp. 1282, 1285 (E.D.Mich., S.D. 1972) (emphasis added).\\nUnder the circumstances, there is sufficient evidence to conclude that MAC Homes built the Sonobe residence on the Tanapag property with the requisite good faith.\\nIt is worth emphasizing that \\\"in cases involving th~ right to recover for improvements placed by mistake upon land owned by one other than the improver, the solution of the questions involved depends largely upon the circumstances and the equities involved in each particular case.\\\" Somerville, 170 S.E.2d at 810. Each such case must be assessed in light of its unique facts. Under the circumstances of this case, it would be inequitable for Repe~ki to retain the Sonobe residence without compensating MAC Homes. \\\"It is as contrary to equity and good conscience for one to retain a house which he has received as the result of a bona fide and reasonable mistake of fact as it is for him to retain money so received,.\\\" Beacon Homes, Inc. v. Holt, 146 S.E.2d 434, 438 (N.C. 1966). 57 438 (N.C. 1966).\\nVI.\\nRepeki's contention that the improvement did not actually enhance the value of the Tanapag property also lacks merit.\\nThe value of improvements made in good faith is usually a question of fact for the trier of fact to determine. 42 C.J.S. Improvements \\u00a7 14 (1944) ; see also Beacon Homes, supra. There was sufficient evidence to permit the trial court\\u2014sitting as the trier of fact--to find that the improvement enhanced the value of the property.\\nIt is, however, necessary for this Court to elaborate on the applicable standard of compensation.\\nIt is only partially correct that \\\"[t]he measure of recompense is the amount by which the improver enhanced the value of the property.\\\" Repeki, memorandum decision at 7 (citing 41 Am.Jur.2d Improvements \\u00a7 22 (1968)). There is a significant part of the standard of compensation that was not noted by the trial court. According to the Restatement of Restitution \\u00a7 42(1), an owner must compensate a good faith improver \\\"to the extent that the land has been increased in value by such improvements or for the value of the labor and materials employed in making such improvements, whichever is least.\\\" (Emphasis added.) There is a practical reason for this distinction:\\n[Ejnhanced value is usually determined by the difference between the value of the land with and without the improvements at the time of dispossession. In most cases . . . the cost of the improvements exceeds the enhanced value of the land, and the court is concerned lest the improver recoup more than the owner is unjustly enriched. . . . But, cost is usually a factor in determining value, and in some cases is a limitation upon the improver's recovery, as where enhancement exceeds cost, and the court is again concerned lest the improver's recovery exceed the amount of the unjust enrichment to the owner. This is so for the test of recovery is not how much the owner is enriched by the improvements, but how much he is unjustly enriched. And, the owner is not unjustly enriched more than the improver's cost. In short, where enhancement exceeds cost, unjust enrichment equals cost. . It was these considerations which undoubtedly led the Restatement to adopt the \\\"whichever is least rule\\\"-. . . .\\nMadrid v. Spears, 250 F.2d 51, 54 (10th Cir. 1957) (emphasis added). See also Larry C. Iverson. Inc. v. Bouma, 639 P.2d 47 (Mont. 1981) (modifying trial court's award because it allowed recovery of value of improvements, rather than cost of improvements, which was lower); Lesny Development Co. v. Kendall, 210 Cal.Rptr. 890 (Cal. App. 1985) (noting distinction).\\nThough the trial court did not explicitly draw this distinction, it nonetheless granted compensation according to the increase in value ($392,000) of the Tanapag property, which was less than the value of the labor and materials employed in the construction of the improvement ($635,000). This was proper. We accept the trial court's findings on value, which were based on the company's appraisal. As noted above, Repeki did not counter this appraisal with her own appraisal.\\nThe trial court was clearly within its authority in imposing a lien. \\\"There is general agreement upon the proposition that, upon an adjudication that the claimant is entitled to recover compensation, the court may, and ordinarily will, impress upon the premises a lien in his favor to secure the payment thereof.\\\" Annotation, Compensation for Improvements Made or Placed on Premises of Another by Mistake, 57 A.L.R.2d 263, 292 (1953); see also Restatement of Restitution \\u00a7 161; Smith. supra.\\nVII.\\nFor the foregoing reasons, the trial court's decision is AFFIRMED.\\nEntered this /4-'tk day of March, 1991.\\nRepeki v. MAC Homes (Saipan) Ltd.. Civil Action No. 87-712 (N.M.I. Super. Ct. Dec. 21, 1989); see also memorandum decision issued December 12, 1989. The property is Lot 017 B 11.\\nRepeki cites this fact as early notice to MAC Homes of uncertain title, and contends that reasonable prudence dictates that the family should have been questioned to determine who had given them permission to reside on the property. This was not done. However, a subsequently-executed agreement between Baldomero Norita and a member of the family describes the family member as a \\\"relative\\\" who \\\"has, on her own volition and accord and without objection by Baldomero Norita or . . . Nicanor F. Norita, been residing [on] and occupying [a] portion of the [property] for residential and retail business purposes . . . .\\\" \\\"Agreement to Relocate\\\" at 2 (Plaintiff's exhibit 9).\\nWe note that the lease agreement conveyed a leasehold in only 3,377 of an estimated 5,443 square meters in the Tanapag property. Even accounting for the 722 square meters purportedly quitclaimed by Baldomero Norita to the member of the family that was living on the property, 1,344 square meters is unaccounted for. Presumably, this portion was to be retained by Delgadina Sab\\u00edan.\\nThe trial court ruled that the deed was in fact a warranty deed. Repeki, memorandum decision at 11.\\nEvidence adduced at trial indicated that Baldomero Norita was Maria Norita's brother \\u2014 thus, his claim to the estate was subordinate to Repeki's claim. In its decision, the trial court noted that the title holders to the property will be determined in In re Estate of Limau. Civil Action No. 88-724, a probate that was commenced after the complaint was filed in this action, This probate has not yet been concluded.\\nThe court held that MAC Homes was entitled to relief from Sab\\u00edan because she warranted title and quiet enjoyment in a lease provision. Repeki, memorandum decision at 13. When it rendered judgment the court authorized attorney's fees and costs of $25,361.08. Due to the fact that Baldomero Norita died before trial commenced and no probate of his estate was pending, the court declined to grant MAC Homes relief against him.\\nNeither party contests the applicability of the doctrine per se in this case, but Repeki disputes the trial court's analysis and conclusions with respect to MAC Homes' good faith and the measure of recovery. As noted infra, the trial court did not fully set forth the applicable standard of compensation, but nonetheless reached the correct result.\\nThe trial court viewed the property and accepted MAC Homes' appraisal. Repeki. memorandum decision at 13. Also uncontradicted was MAC Homes' claim that the Sonobe residence was constructed at a cost of $635,000. As noted infra, the cost figure and the enhancement figure must both be scrutinized in assessing a grant of compensation to a good faith improver.\\nApplicable pursuant to 7 CMC \\u00a7 3401, which dictates that U.S. common law as expressed in the Restatements \\\"shall be the rules of decision\\\" in the absence of NMI written law or local customary law to the contrary.\\nAccording to the reporters' notes to this section, \\\"[i]f the owner of land seeks equitable relief, as where he seeks to quiet title, ordinarily relief is granted only on condition that he make payment for the improvement of the land by respondent: [citations omitted].\\\" (Emphasis added).\\nSee also Annotation, Action to Recover Improvements Made on Land, Taxes or Interest Paid, or Lien Discharged, by One Who Mistakenly Believed Himself the Owner. 104 A.L.R. 577 (1936) (growing trend to permit recovery even in absence of inequitable conduct on part of owner when circumstances render relief just and equitable).\\nAccording to official commentary to this section:\\nIn two types of situations a person may be required to pay for services which he has not requested and for the receipt of which he is not at fault. First, if because of an innocent mistake, improvements have been made upon his land by the improver and he seeks the aid of equity against the improver, he must pay for the increased market value of the land due to the improvements (see \\u00a7 42). Secondly, restitution may be granted to one for services which constitute the performance of another's duty or which are rendered in an emergency in the protection of another's life or property . . . . In all such cases the limit of restitution is the amount by which the recipient or his property has benefited, although the value of the services or the amount which was expended therefor may be greater.\\nRestatement of Restitution, comment d (emphasis added). The emphasized language draws a distinction not explicitly addressed by the trial court, which we examine infra.\\n\\\"A writing which professes to pass title on its face but which does not do so either due to lack of title in the person making it or from some type of defective conveyance may constitute 'color of title.\\\"' Munkres v. Chatmon, 599 P.2d 314, 316 (Kan. Ct. App. 1979).\\nThis is necessary because there is neither NMI written law nor local customary law on point to resolve this issue. 7 CMC \\u00a7 3401.\\nSee also Restatement (Second) of Agency \\u00a7 9(3), 272.\\nRepeki also cites official commentary to Id. \\u00a7 272:\\nA is employed by P to report upon the title to Blackacre and to tell him of any secret equities which he may discover. A discovers that T has an equity in Blackacre, but negligently fails to report this to P, who accordingly buys Blackacre from B. P is affected by A's knowledge.\\nComment c, illustration 4.\\n\\\"[A] prerequisite of an agency relationship is control of the agent by the principal.\\\" Moss v. Vadman, 463 P.2d 159, 164 (Wash. 1970) . In this case, without breaching any duty to MAC Homes Pellegrino could have decided, at any time, not to investigate ownership of the Tanapag property or to look for other land for the company. Instead, the record indicates that he voluntarily undertook to perform these tasks because it was in his interest to do so.\\nThe record supports this finding. There is some authority for the proposition that even if Repeki had given MAC Homes actual notice of her adverse title prior to the construction of the Sonobe residence, the company's good faith would not necessarily have been negated. \\\"The [improver's] mistake may be one concerning the legal effect of a deed, and notice of the true owner's adverse claim to the realty does not vitiate the improver's entitlement to restitution so long as the improvements were made under a good faith belief of the legitimacy of the improver's claim.\\\" Coos County v. State, 734 P.2d 1348, 1363 (Ore. 1987).\\nSee also Annotation, Reputation in the Community as to Title to or Interest in Land as Charging One with Notice or Putting Him on Inguirv, as Regards His Status as Innocent Purchaser or Mortgagee, 109 A.L.R. 746 (1937):\\nIt is well established that vague or general rumors, reports, surmises, covert insinuations, or general assertions, based on hearsay and made by strangers or those not interested in the property, as to the existence of a title or interest in some third person or persons whose title or interest is not recorded, do not constitute notice of title or interest in such third person, or impose upon a purchaser or mortgagee the duty of inquiry.\\nId. at 747.\\nThere is no indication in the record that MAC Homes was aware of documents (including a 1953 Trust Territory determination of ownership) vesting title in \\\"the heirs of Maria Norita, represented by Baldomero Norita as land trustee.\\\" In fact, the record indicates that at least at the time of trial, these documents wer\\u00e9 missing from the NMI Land Commission office, where they were ordinarily kept on file. Testimony revealed that it is unclear how long they had been missing.\\nAs noted infra, the trial court found that MAC Homes had not been advised of the contents of Delgadina Sab\\u00edan's title insurance policy, which did contain an exception to coverage based on uncertainty in Baldomero Norita's title.\\nCf. Sanders v. Jackson, 192 So. 2d 654 (La. Ct. App. 1966) (no right of compensation to good faith improver for construction of dam and pond which did not improve the value of the landowner's property).\\nAccording to the official commentary to this section, \\\"[wjhere the improver is permitted to recover for the improvements, he is entitled to the reasonable value of his labor and materials or to the amount which his improvements have added to the market value of the land, whichever is smaller.\\\" Comment c.\\nWe will set aside a finding of fact only if it is clearly erroneous. Com.R.Cjv.P. 52(a); In re Estate of Rojag, supra.\"}"

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+"{\"id\": \"1695436\", \"name\": \"ESTEVEN M. KING, et al., Plaintiffs/Appellants, vs. BOARD OF ELECTIONS, Defendant/Appellee, and DAVID M. CING, et al., Real Parties in Interest/Appellees\", \"name_abbreviation\": \"King v. Board of Elections\", \"decision_date\": \"1991-12-30\", \"docket_number\": \"APPEAL NO. 91-039; CIVIL ACTION NO. 91-1191\", \"first_page\": 398, \"last_page\": \"406\", \"citations\": \"2 N. Mar. I. 398\", \"volume\": \"2\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-11T00:32:25.497323+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"ESTEVEN M. KING, et al., Plaintiffs/Appellants, vs. BOARD OF ELECTIONS, Defendant/Appellee, and DAVID M. CING, et al., Real Parties in Interest/Appellees.\", \"head_matter\": \"December 30, 1991\\nIN THE COMMONWEALTH OF SUPREME COURT OF THE NORTHERN MARIANA ISLANDS\\nESTEVEN M. KING, et al., Plaintiffs/Appellants, vs. BOARD OF ELECTIONS, Defendant/Appellee, and DAVID M. CING, et al., Real Parties in Interest/Appellees.\\nAPPEAL NO. 91-039\\nCIVIL ACTION NO. 91-1191\\nArgued December 19, 1991\\nCounsel for Plaintiffs/Appellants: Theodore R. Mitchell P. O. Box 2020 Saipan, MP 96950\\nCounsel for Defendant/Appellee: James S. Sirok P. O. Box 2145 Saipan, MP 96950\\nCounsel for Real Parties in .. Interest/Appellees: Rexford C. Kosack P. O. Box 410 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"1814\", \"char_count\": \"11057\", \"text\": \"OPINION\\nBORJA, Justice:\\nThe Northern Mariana Islands Board of Elections (hereafter BOE) promulgated regulations in 1979 providing procedures for voter challenges on election day. Certain of the plaintiffs are registered voters who were challenged at the polls on election day, November 2, 1991, under such regulations. BOE, pursuant to such regulations, scheduled hearings to adjudicate the qualifications of the challenged voters. Plaintiffs brought an action for declaratory and injunctive relief alleging that BOE has no jurisdiction to adjudicate the eligibility of voters challenged at the polls and that the challenge procedure violates the plaintiffs' rights to cast secret ballots. The Superior Court, in a summary judgment proceeding, declared that the BOE regulations are valid and that the challenge procedure does not violate the right to cast a secret ballot. Plaintiffs appeal. We affirm.\\nFACTS-\\nPlaintiffs consist of the Tinian Republican Party candidates and certain registered voters on the island of Tinian. On election day, November 2, 1991, some of the real parties in interest challenged the registered voters on the ground that the voters were not residents of Tinian as required by 1 CMC \\u00a7 6205(b)(1). Pursuant to the procedure set out in the BOE regulations for voter challenges, the ballots of the challenged voters will not be counted and tabulated until the board hears the challenges and determines the eligibility of the voters.\\nPlaintiffs argue that the voter challenge procedure on election day at the polls is in effect an election contest. Consequently, BOE has no jurisdiction to hear and determine the matter since Public Law 5-7, enacted in 1986, withdrew such jurisdiction.\\nReal parties in interest are some of the Tinian Democratic Party candidates and certain voters of Tinian who challenged the eligibility of some of the plaintiffs to vote on Tinian.\\nBoth BOE and real parties in interest contend that Public Law 5-7 did not divest BOE of its jurisdiction to hear and determine voter challenges made at the polls on election day.\\nISSUES PRESENTED\\n1. Does the Board of Elections have the jurisdiction to hear and^adjudicate the eligibility of voters challenged at the polls on residency grounds?\\n2. Are Section 3 of Part VII of the Election' Rules and Regulations and the challenge procedure followed by the Board of Elections null and void because the regulation and procedure violate the voters' right to cast secret ballots pursuant to 1 CMC \\u00a7 6411?\\nSTANDARD OF REVIEW\\nAn appeal of a grant of summary judgment is subject to de novo review. Estate of Mendiola v. Mendiola, No. 90-042 (N.M.I. Aug. 28, 1991). If there is no genuine issue of material fact, the analysis shifts to whether the substantive law was correctly applied. Commonwealth Ports Authority v. Hakubotan Saipan Enterprises, Inc., No. 90-005 (N.M.I. Aug. 8, 1991).\\nIn this appeal, the parties agree that the facts are not in dispute. The only question, therefore, is whether the trial court applied the substantive law correctly.\\nANALYSIS\\nPublic Law 5-7\\nThe trial court concluded that \\\"the Board's regulatory power to hear voter challenges still exists.\\\" King v. Board of Elections. C.A. No. 91-1191, slip op. at 5 (Superior Ct. Dec. 11, 1991).\\nTo determine whether Public Law 5-7 withdrew the jurisdiction of BOE to hear voter challenges made on election day at the polls, we must first address the issue of whether the procedure that allows a voter to challenge the eligibility of another voter on election day is an election contest. Plaintiffs contend that this procedure is an election contest. Defendant and real parties in interest contend that it is not. Counsel for real parties in interest state the distinction as follows:\\nA 'challenge' is made against a voter on election day on the grounds that the voter is not eligible to vote. An 'election contest' is made against the winning candidate, after the vote has been tabulated and the results certified, on the grounds that he has been illegally elected or is not eligible to hold office.\\nBrief of Real Parties-in Interest at 1. (Citations omitted.)\\nClearly, if the procedure is an election contest, then Public Law 5-7 would preclude BOE from entertaining the matter. If the procedure is not an election contest, then Public Law 5-7 does not affect the voter challenges procedure.\\nThe issue then is the meaning of Public Law 5-7. In Govendo v. Micronesian Garment Manufacturing, Inc., No. 90-013, slip op. at 13 (Sept. 10, 1991), we stated that, \\\"A basic principle of construction is that language must be given its plain meaning. When language is clear, we will not construe it contrary to its plain meaning.\\\" (Citations omitted.)\\nIn section 1 of Public Law 5-7, it is stated that:\\nFindings. The Commonwealth Legislature finds that the delegation of review authority of election contests to the Commonwealth Courts was never intended to strip the Legislature of its final review authority pursuant to Article II, Section 14(a) of the Commonwealth Constitution. Furthermore, the Legislature finds that the Election Board should have the sole authority to judge the validity of questionable ballots. That Board has the ability to provide consistency in such decisions because it is aware of the precedents it has established in previous cases. However, the Legislature finds that election contests should be conducted in a court of law where the parties can avail themselves of the established procedures for the determination of questions of fact and law. Furthermore, the Constitution does not allow the Legislature to vest jurisdiction in any other agency or branch, other than the Court to determine the election and qualification of its members.\\nMost of the remaining sections of Public Law 5-7 deal with specific amendments to the existing election laws to make such provisions conform to the findings of the legislature, as stated in section one (each section being labelled \\\"conforming amendment\\\"). In addition, one section of the law deals with a specific repeal of certain provisions that were inconsistent with the findings of the legislature (labelled \\\"repealar\\\").\\nWith the exception of the amendment to section 6415(a), dealing with election administration, all other conforming amendments and the repealer section deal with the chapter on election contests.\\nBased on the above-stated principle of statutory construction, the plain meaning of Public Law 5-7 is that the- jurisdiction of BOE was withdrawn only as to election contests. The law did not address the issue of voter challenges.\\nIf the legislature wanted to withdraw the jurisdiction of BOE concerning voter challenges, it would have clearly stated it in Public Law 5-7. It did not. Its silence is significant. It knew of the voter challenge procedure, yet it kept quiet on the matter when it enacted Public Law 5-7. Therefore, there is no need to resort to the legislative history of Public Law 5-7.\\nRight to Cast Secret Ballot\\nThere is no dispute that the voter challenge procedure creates the possibility that the final tally may, in some instances, reveal how a voter cast his/her ballot. Although the right to cast a secret ballot in the commonwealth is a right granted by statute and not by our Constitution, such a right is fundamental to our democratic system of government. Since the American system of government and the concept of democracy were first introduced to our islands after World War II, the people of the Northern Mariana Islands have always been guaranteed the right to cast a secret ballot. Any infringement upon such right must be on the basis of a substantial Commonwealth interest.\\n1 CMC \\u00a7 6411(a) states that \\\"[e]ach qualified voter has the right to cast a secret ballot in private.\\\" Clearly the right is given to a qualified voter. Before a voter may complain that his or her right to cast a secret ballot has been violated, he or she must be a qualified voter. A qualified voter's right to vote is diluted if unqualified persons vote. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Therefore, the Commonwealth has a substantial interest in ensuring that only qualified voters do vote.\\nThe voter challenge procedure at the polls is an election day mechanism that BOE has determined as a way of preserving the integrity of elections. While this procedure may at times interfere with a person's right to cast a secret ballot, it is a procedure intended to protect a substantial Commonwealth interest.\\nThe trial court believed that the current procedure could be improved. We make no opinion on this matter. We will not act as a super legislature and strike down a statute or a regulation merely because it could have been better written. See, e.g. , People v. Garcia, 541 P.2d 687 (Colo. 1975).\\nConclusion\\nThe Decision and Order of the trial court is AFFIRHED.\\nSection 3' of Part VII of the Election Rules and Regulations provide that:\\nAny person appearing at the polling place to vote shall report his legal name, in full, and his date of birth to the election officials. An election official shall clearly and audibly announce them. Another election official shall then check the register of voters as to whether or not the person appearing is a registered voter, and if so, shall announce the name and date of birth appearing in the register. At this point a challenge may be interposed on the grounds that the ballot is subject to challenge under law or regulations issued by the Board; Voting shall then proceed in accordance with the procedures prescribed by the Board, however, all voting shall be by secret ballot.\\nThe specific section under election administration that was amended is entitled \\\"Ballot Irregularities.\\\" The amendment made it clear that a decision of BOE on the validity of a ballot is final and not appealable to the legislature or the court.\\nThe parties agree that before the passage of Public Law 5-7 BOE had jurisdiction to hear and determine voter challenges, and election contests. The parties further agree that BOE no longer has authority to hear election contests.\\nbecause we conclude that Public Law 5-7 did not withdraw the authority of BOE to hear and determine voter challenges, we do not address the question of whether the legislature can expressly amend or repeal an administrative rule or regulation, of whether it can do so only by amending or repealing the statutory basis.\"}"

n_mar_i/1696194.json

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+"{\"id\": \"1696194\", \"name\": \"IN THE MATTER OF THE ESTATE OF: FRANCISCO C. DELEON GUERRERO, Deceased\", \"name_abbreviation\": \"In re the Estate of Deleon Guerrero\", \"decision_date\": \"1992-09-21\", \"docket_number\": \"CIVIL ACTION NO. 87-294\", \"first_page\": 253, \"last_page\": \"268\", \"citations\": \"3 N. Mar. I. 253\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ, Associate Justice and HILLBLOM, Special Judge.\", \"parties\": \"IN THE MATTER OF THE ESTATE OF: FRANCISCO C. DELEON GUERRERO, Deceased.\", \"head_matter\": \"September 21, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nIN THE MATTER OF THE ESTATE OF: FRANCISCO C. DELEON GUERRERO, Deceased.\\nAPPEAL NO. 91-014\\nCIVIL ACTION NO. 87-294\\nArgued and Submitted February 21, 1992\\nCounsel for Appellant: Douglas Cushnie P.O. Box 949 Saipan, MP 96950\\nCounsel for Appellee: Kenneth L. Govendo P.O. Box 2377 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ, Associate Justice and HILLBLOM, Special Judge.\", \"word_count\": \"3437\", \"char_count\": \"20910\", \"text\": \"OPINION\\nVILLAGOMEZ, Justice:\\nDiana DLG. Villagomez, the administratrix of the estate of Francisco C. Deleon Guerrero (\\\"Guerrero\\\"), deceased, appeals a decision of the Superior Court concluding that Guerrero fathered Ricardo Camacho (\\\"Ricardo\\\"), and that Ricardo is therefore entitled to share in Guerrero's estate. The trial court found that Ricardo \\\"met his burden of proof by proving that he is the son of Francisco C. Deleon Guerrero by clear and convincing evidence.\\\" Findings of Fact and Conclusions of Law, Re: Heirship Claim, at 2.\\nThe administratrix seeks reversal of the heirship ruling on five grounds:\\n1. The Uniform Parentage Act (\\\"UPA\\\") bars Ricardo's parentage claim because (a) Ricardo is, under the law, presumed to be a child of Francisco S. Due\\u00f1as, and (b) Ricardo's assertion that Guerrero is his natural father is barred by the UPA statute of limitation.\\n2. Ricardo failed to establish Guerrero's paternity by clear and convincing evidence.\\n3. The UPA requires the filing of an action, separate from the probate proceeding, in order to establish paternity.\\n4. The equitable doctrines of laches and estoppel bar Ricardo's heirship claim.\\n5. The trial court prejudicially erred in admitting: (a) the testimony of Ricardo's mother, Monica Due\\u00f1as, which testimony in effect bastardized Ricardo, and (b) the hearsay testimony of Monica, Emerienciana Reyes, and Ricardo as to statements allegedly made by Guerrero.\\nI.\\nTHE FACTS\\nGuerrero passed away intestate on April 22, 1987. He had three children from a first marriage to Mariana Camacho Deleon Guerrero and two children from a second marriage to Ok Soon Sa Guerrero. He also fathered a son, out of wedlock, with Monica C. Due\\u00f1as, named David Camacho, born July 16, 1952.\\nMonica C. Due\\u00f1as (\\\"Monica\\\") was married to Lino Blanco, who died in 1942. She subsequently married Francisco S. Due\\u00f1as, a merchant sailor, and they had a child named Cecilia C. Due\\u00f1as, who was born January 1, 1948. Ten months after Cecilia's birth, Due\\u00f1as left Saipan on a merchant ship. He never returned.\\nAfter David's birth in July, 1952, Monica gave birth to a child named Margarita on August 6, 1953. The father was a person whom Monica referred to as a \\\"Mexican.\\\" On December 29, 1954, Monica gave birth to Ricardo. Monica testified at the heirship hearing that Ricardo is the natural son of Guerrero.\\nAfter Guerrero passed away, his daughter, Diana, was appointed administratrix of his estate. Ricardo filed a claim with the estate, asserting that Guerrero was his natural father and was entitled to share in his estate. The administratrix rejected the claim, denying that Ricardo is a natural son of Guerrero.\\nAfter the hearing to determine whether Ricardo is an heir of Guerrero, the trial court found that during the period when Ricardo was conceived, Monica had sexual relations solely with Guerrero. It concluded that Ricardo was thus the natural son of Guerrero and is his heir.\\nII.\\nTHE LAW\\nThe Northern Mariana Islands Probate Law (\\\"Probate Code\\\") which governs intestacy proceedings, became effective on February 15, 1984. 8 CMC \\u00a7 2101-2102. Section 2202(a) thereof provides:\\n[T]he Commonwealth [Superior] Court shall have jurisdiction over all subject matter relating to estates of decedents, including construction of wills and determination of heirs and successors of decedents.\\n(Emphasis added.)\\nSection 2107(o) of the Probate Code defines \\\"heirs\\\" to mean \\\"those persons who are entitled under the chapter on intestate succession to the property of a decedent.\\\" Section 2107(bb) defines \\\"successors\\\" to mean \\\"those persons, other than creditors, who are entitled to property of a decedent under a decedent's will or under this law.\\\"\\nSection 2118 next provides that:\\nIf, for purposes of intestate succession, a relationship of parent and child must be established to determine succession . . . (b) a person born out of wedlock is the child . of the father, if . . . (2) the paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof .\\nAbout a year after enactment of the Probate Code, on April 1, 1985, our \\\"Uniform Parentage Act\\\" (the \\\"UPA\\\") was enacted. 8 CMC \\u00a7 1700, et seq. The provisions of the UPA pertinent to the issues before us are as follows:\\nSection 1703(a). Without limiting the jurisdiction of any other court, the Commonwealth [Superior] Court has jurisdiction of an action brought under this chapter. The action may be joined with an action for divorce, annulment, separate maintenance, or support.\\nSection 1712. Evidence relating to paternity may include: (a) evidence of sexual intercourse between the mother and alleged father at any possible time of conception[.]\\nSection 1714. (a) . . . The mother of the child . . . [is] competent to testify and may be compelled to testify.\\nSection 1715. (b) If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that a new birth certificate be issued under section 1723.\\nIII.\\nANALYSIS\\nA. The Applicability of the UPA to Ricardo's Heirship Claim.\\nThe administratrix contends that the UPA is the exclusive statutory vehicle through which Ricardo may establish Guerrero's paternity. She asserts that paternity claims cannot be determined in probate proceedings. She argues that Ricardo should not be allowed to bring a paternity claim in a probate proceeding because all paternity claims are exclusively governed by the UPA, which has detailed procedure for determining such claims.\\nWe now hold, after reviewing both the UPA and the Probate Code, that heirship claims may be entertained as part of a probate proceeding and are not necessarily excluded by the UPA, a law enacted after the Probate Code.' Our Probate Code expressly allows an heirship proceeding to determine the legal heirs or successors of a decedent. 8 CMC \\u00a7 2202(a).\\nThe Probate Code expressly permits the trial court to determine \\\"for purposes of intestate succession\\\" whether one is an heir either through an adjudication made before the death of the father or an adjudication rendered after his death. We agree that an action to establish paternity before the father's death, beginning with the enactment of the UPA, should be governed by the UPA. Establishing paternity after an alleged father's death, however, could not be undertaken through the UPA because the UPA contemplates that the alleged father is still alive, will be made a party to the action or given notice of the action. Because that cannot be done after the alleged father's death, the UPA clearly cannot be the vehicle to establish paternity after the father's death. The Probate Code, on the other hand, expressly permits the determination of a decedent's heirs in a probate proceeding. In order to determine who is an heir, one's parental lineage must first be established. Such necessarily includes a parental determination.\\nThe administratrix next contends that, under the UPA, Ricardo is presumed to be a child of Francisco S. Due\\u00f1as (\\\"Due\\u00f1as\\\") who was Monica's legal husband and was never formally declared dead after his 1948 departure from Saipan. She argues that, before Ricardo is permitted to establish Guerrero's paternity, he must first establish under the UPA that Due\\u00f1as is not his father. She asserts that both the period within which Ricardo may file an action to declare that Due\\u00f1as is not his father and the period for filing an action to declare that Guerrero is his father have run under the UPA.\\nEven if we assume that the UPA is the- exclusive vehicle to prove paternity, appellant's argument as to this issue is unpersuasive. The record establishes that it was factually impossible for Due\\u00f1as to have fathered Ricardo in 1954 since he was not heard from or seen since 1948 when he left Saipan. Ricardo was born slightly over six years after Due\\u00f1as left Saipan and has never returned. It is true that the common law requires at least a seven-year absence before one is presumed dead. However, the common law presumption of Due\\u00f1as' death is not the exclusive determinative factor of the presumption of his paternity. The presumption that Due\\u00f1as is the father has been clearly.rebutted by the evidence that for at least six years before Ricardo was born, and to this day, Due\\u00f1as was never on Saipan.\\nWe find it strange for the administratrix to concede that Due\\u00f1as is not the father of David, whom Monica also gave birth to four years after Due\\u00f1as' departure from Saipan, but that Ricardo who was born six years after Due\\u00f1as' departure is Due\\u00f1as' son. Either both are presumed to be Due\\u00f1as' children or neither is. The record below supports the trial ruling that the presumption of Due\\u00f1as' paternity has been rebutted, and that neither of the two is Due\\u00f1as' child, particularly because of the undisputed absence of Due\\u00f1as since 1948.\\nWe have explained above the main reason why the UPA does not bar Ricardo from asserting in a probate proceeding that he is an heir of Guerrero. A second reason for so holding is our opinion that to hold that the UPA is the exclusive method for filing paternity actions would adversely affect Ricardo's right to due process of law because (a) he was already 31 years of age when the \\u00daPA was enacted and (b) the UPA limits the filing of paternity actions once a child has reached the age of 21.\\nWe have previously ruled that the UPA applies prospectively. In re Estate of Aldan, supra. To apply the UPA retrospectively would effectively bar heirship claims, like Ricardo's, who have passed the age of 21. In Ricardo's case, applying the UPA would work a deprivation of a property right.\\nFinally, we disagree with the contention that the general limitation period, 7 CMC \\u00a7 2504, bars Ricardo's claim. Such limitation period began to run when Ricardo's claim against the estate accrued, that is, when the administratrix was appointed. Ricardo's claim was timely filed within the required two-year period.\\nB. The \\\"Weight\\\" of the Evidence.\\nIn approaching the issue of the weight of evidence, appellant compares the evidence presented by Ricardo with the opposing evidence. She then argues that the evidence against Guerrero's paternity is more credible and is stronger than the evidence in favor of paternity.\\nUnless we are convinced, after reviewing the trial record, that a mistake was clearly committed below, we will not disturb a trial court's factual findings, or reweigh the evidence below. Such is not an appellate function. In Re Estate of Rofag, No. 89-019 (N.M.I. Feb. 22, 1991). We have independently reviewed the record below, including the transcript of the proceedings, and are satisfied that the trial court's findings are supported by clear and convincing evidence.\\nC. Filing of Independent Action Under the UPA.\\nAppellant contends that an independent paternity action should be brought by Ricardo, separate and apart from the probate proceeding. She reiterates her previous argument that such is the only procedure for establishing paternity, as contemplated by the. UPA. She asserts that since our Probate Code does not expressly provide for a similar procedure, a separate paternity action could only be brought under the UPA. For the reasons we earlier noted, the UPA does not apply to this case. This argument thus has no merit.\\nD. Laches and Estoppel.\\nAppellant asserts that Ricardo (1) has known since he was a child that Guerrero was allegedly his father and (2) was aware of this when the UPA became effective in 1985, while Guerrero was still alive. She asserts that Ricardo knowingly failed to diligently act to establish that Guerrero was his natural father. She argues that Ricardo intentionally waited until Guerrero had died to file his parentage claim.' As a result of his failure to act, significant evidence has dissipated \\u2014 such as Guerrero's testimony, blood test results, and so forth. Appellant further argues that Guerrero's other heirs will now receive less from the estate, unless we find his claim barred by laches and estoppel. This argument has no merit.\\nFirst, appellant's assertions raise questions of fact which were not adjudicated below. For instance, whether Ricardo intended to wait for Guerrero to pass away before filing a paternity claim. Second, the trial court did not rule on the factual or legal issues related to laches and estoppel and therefore are not ripe for our review. Third, Ricardo's claim is more accurately described as an heirship claim under probate proceedings rather than a paternity claim under the UPA. Since the heirship claim was filed promptly, no damage to the estate or the \\u2022 other claimants or heirs has resulted. Fourth, the sharing of an estate with other legal heirs does not constitute \\\"damages.\\\" .It is the natural and legal consequence of descent and distribution of a decedent's estate. And finally, appellant has not shown (under the principle of estoppel) how they have relied upon Ricardo's delay, in filing his heirship claim, to their detriment.\\nE. The Testimony as to Bastardization.\\nAppellant contends that Monica's testimony that Guerrero is Ricardo's father violates the parol evidence rule because her testimony contradicts Ricardo's birth certificate which states that the father is \\\"unknown.\\\" She also asserts that the testimony violates the common law Mansfield Rule which disfavors testimony that would bastardize a person. Both contentions have no merit.\\nWe note that the UPA, although not applicable to this case, modified the Mansfield Rule and recognizes that the natural father of a child, under certain circumstances, may be different from the husband of the child's mother or what is stated (or not stated) in the child's birth certificate. Testimony that one is born out of wedlock (i.e. a bastard) is usually the basis of a parentage action. If so proven, the court orders that a new birth certificate be issued. 8 CMC \\u00a7 1715(b). The same rationale applies iri heirship proceedings where paternity is at issue. Testimony that a child is born out of wedlock is not only permissible but necessary. 8 CMC \\u00a7 1712.\\nThe very nature of an heirship proceeding is to determine one's parents or parental lineage. Ricardo admits that he is a bastard. His certificate of birth states that the father is unknown. The purpose of Monica's testimony is to determine who is Ricardo's natural father, since the presumption that Due\\u00f1as is his father has been rebutted. We hold that the court did not abuse its discretion in allowing testimony which proves that Ricardo is an illegitimate child, born out of wedlock.\\nF. The Hearsay Testimony of Monica. Emerienciana Reyes and Ricardo.\\nThe administratrix challenges the admission of the hearsay testimonies of Monica, Emerienciana Reyes, and Ricardo. The hearsay testimonies consist of statements made by Guerrero admitting that he was the natural father of Ricardo. She contends that the hearsay testimonies do not fall within any of the hearsay exceptions and should not have been admitted. We find this argument to have no merit for two reasons.\\nFirst, the hearsay testimonies of the three witnesses were being offered against the declarant and his estate. The purpose of the offer was to prove Ricardo's birth, illegitimacy, relationship by blood, and ancestry, all of which relate to both Ricardo and Guerrero's personal and family history, and which are admissible under the hearsay exception rules, Rule 804(b)(3) and 804(b)(4)(B), Commonwealth Rules of Evidence.\\nSecond, even if the hearsay testimonies of Monica, Emerienciana, and Ricardo were excluded, we have reviewed the record and find that the remaining evidence is sufficient to sustain the findings of the trial court. Therefore, even if error was committed, it was harmless. See, Pangelinan v. Unknown Heirs of Rita Mangarero, No. 90-015, 1 N.Mar.I. 141 (N.M.I. Nov. 1, 1990); In re Estate of Barcinas, No. 90-24/30 (N.M.I. Jan. 30, 1992).\\nFor the above reasons, we AFFIRM the -decision of the trial court.\\nDated this 21st day of September, 1992.\\nJOSE S. DELA CRUZ, Chief Justice\\nRAMON G. VILLAGOMEZ Associate Justice\\nLARRY L. HILLBLOM, Special Judge\\nWe interpret \\\"any other court\\\" to include a family court, Juvenile court, probate court, and so forth.\\nThis section does not permit joinder of a UPA paternity action with a probate proceeding. The reason for this is because UPA actions may be brought only while the alleged or presumed father is alive and could be made a party or given notice thereof. A thorough review of all the sections would indicate that the UPA contemplates the bringing of an action while the presumed or alleged father is alive and could be made a party to or given notice of the action. Although a UPA case may be joined with a divorce or support case where the father is alive, it could not be joined with a probate case because the father is deceased.\\nWhether the UPA applies to this particular case which involves an heirship determination calls for statutory construction and is reviewable de novo. In re Estate of Aldan, No. 90-045 (N.M.I. Oct. 3, 1991).\\nThe administratrix also argues that to allow Ricardo to establish paternity in a probate proceeding would result in the application of two inconsistent procedures - one under the UPA and the other under the probate procedures. We fail to see how this makes any significant difference.\\nSection 1709 of the UPA requires that \\\"[T]he natural mother, each man presumed to be the father under section 1704, and each man alleged to be the natural father, shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard.\\\" (Emphasis added.) Obviously, this cannot be accomplished where the father is dead.\\nIn the CNMI, this rule has been changed by statute to five years. 8 CMC \\u00a7 2106(d).\\nSince the UPA does not apply in this case, the limitation of time to rebut such presumption also does not apply.\\nThis is a question of fact which we review under the clearly erroneous standard. Pangelinan v. Unknown Heirs of Mangarero, No. 90-015 (N.H.I. Nov. 1, 1990).\\nThis is a question of law which we review de novo. In re Estate of Aldan, supra.\\nThe UPA does not state that it provides the exclusive means by which a paternity action may be instituted. Nor does it nullify a probate court's power to determine heirship. To the contrary, the UPA provides that it does not limit the \\\"jurisdiction of other courts.\\\" 8 CMC \\u00a7 1708(a).\\nThis issue presents a mixed question of law and fact which we review de novo. Trinity Ventures, Inc. v. Guerrero, No. 89-001 (N.M.I. Jan. 12, 1990).\\nThe two issues raised in this part involve the propriety of admitting certain evidence which we review under the abuse of discretion standard. In re Estate of Mueilemar, No. 90-020 (N.M.I. Nov. 29, 1990).\\nThis is an issue involving the admission of hearsay testimony which we review under the abuse of discretion standard. Guerrero v. Guerrero, No. 90-018 (N.M.I. Mar. 14, 1991).\\nRule 804. Hearsay Exceptions: Declarant Unavailable.\\n(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: .\\n(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.\\nRule 804. Hearsay Exceptions: Declarant Unavailable.\\n(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant-is unavailable as a witness: .\\n(4) Statement of personal or family history. . . .\\n(B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related,-to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely, to have accurate information concerning the matter declared.\\nOnly the hearsay testimony of Monica is the subject here. The rest of her testimony were admissible and were heavily relied upon by the court below.\"}"

n_mar_i/1696198.json

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+"{\"id\": \"1696198\", \"name\": \"CARMEN MASGA PANGELINAN, Plaintiff/Appellant, vs. ANTONIA MASGA TUDELA, Defendant/Appellee\", \"name_abbreviation\": \"Pangelinan v. Tudela\", \"decision_date\": \"1992-08-26\", \"docket_number\": \"CIVIL ACTION NO. 88-895(R)\", \"first_page\": 233, \"last_page\": \"242\", \"citations\": \"3 N. Mar. I. 233\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, HILLBLOM and KOSACK, Special Judges.\", \"parties\": \"CARMEN MASGA PANGELINAN, Plaintiff/Appellant, vs. ANTONIA MASGA TUDELA, Defendant/Appellee.\", \"head_matter\": \"August 26, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nCARMEN MASGA PANGELINAN, Plaintiff/Appellant, vs. ANTONIA MASGA TUDELA, Defendant/Appellee.\\nAPPEAL NO. 91-002\\nCIVIL ACTION NO. 88-895(R)\\nArgued and Submitted October 30, 1991\\nCounsel for Plaintiff/Appallant: Reynaldo O. Yana P.O. Box 52 Saipan, MP 96950\\nCounsel for Defendant/Appellee: Vicente T. Salas Douglas Muir SALAS St MANI BUSAN P.O. Box 1309 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, HILLBLOM and KOSACK, Special Judges.\", \"word_count\": \"1917\", \"char_count\": \"11768\", \"text\": \"OPINION\\nDELA CRUZ, Chief Justice:\\nCarmen Masga Pangelinan (\\\"Carmen\\\") appeals an adverse judgment quieting title to a certain parcel of land in favor of her cousin, Antonia Masga Tudela (\\\"Antonia\\\"). She contends that, under principles of administrative res judicata, neither the trial court nor the Northern Mariana Islands Land Commission could set aside a 1958 ownership determination which had adjudicated the ownership to the land in favor of her father. She also contends that, with respect to the certificate of title issued by the Northern Mariana Islands Land Commission (the \\\"Land Commission\\\") in 1984, the Land Commission failed to follow required statutory procedure. She argues that failure to do so rendered the title certificate defective.-\\nBecause we find that the 1958 land title determination issued in favor of Carmen's father had no legal basis when it was issued, and because the trial court was justified in concluding that Carmen's father, by his own admission, never owned the property at issue, we affirm the judgment of the trial court upholding the L\\u00e1nd Commission certificate of ownership in favor of Antonia.\\nI.\\nFACTS\\nOn December 6, 1988, Carmen sued her cousin Antonia to quiet the title to a parcel of land on Rota referred to as \\\"Uyulang.\\\" Carmen based her claim of ownership on a deed of gift executed by her father, Adan M. Masga (\\\"Adan\\\"), by which he conveyed Uyulang to Carmen on May 13, 1975. Antonia counterclaimed alleging that she owns the property as the offspring and sole surviving heir of Gabriel M. Masga (\\\"Gabriel\\\") , deceased, who had received Uyulang as his inheritance from his father before World War II.\\nA bench trial was held, and the court ruled in favor of Antonia. It found that Carmen's father, Adan, had executed,, on October 11, 1972, an 'affidavit\\\" which declared that Adan does not own Uyulang, and which further stated that the property belongs to his deceased brother, Gabriel, as his share in their father's estate. Based on the strength of the affidavit, the Superior Court decided that Uyulang belonged to Gabriel and has descended to his sole surviving heir, Antonia. Other facts pertinent to the issues raised are noted in the discussion below.-\\nII.\\nISSUES PRESENTED\\nCarmen raises two primary issues for our consideration:\\n(1) whether the Superior Court erroneously \\\"set aside\\\" the land title determination made by the district land title officer on October 27, 1958, which determined that Adan owned Uyulang, and\\n(2) whether it was erroneous for the Superior Court to rely on the Land Commission certificate of title when (a) the Land Commission did not follow the statutory procedure required by 2 CMC \\u00a7 4241-4249 and (b) the Land Commission has no authority to set aside a land title determination issued by an agency.\\nAlternatively, Carmen argues that if Adan's affidavit were viewed as an instrument of conveyance, his deed of gift to Carmen was recorded prior to the issuance of the Land Commission certificate of title in favor of Antonia in 1984. Because the deed was recorded before issuance of the certificate of title, Carmen contends that it has priority over, and is superior to, the Land Commission certificate of title.\\nIII.\\nSTANDARD OF REVIEW\\nWhether the Superior Court erroneously'set aside the 1958 land title determination is a question of law which is reviewable de novo. In Re Estate of Mueilemar, No. 90-020, I N.Mar.I. 174 (N.M.I. Nov. 29, 1990).\\nSimilarly, whether the Superior Court erroneously relied on the title certificate of the Land Commission is also a question of law which we review de novo. Camacho v. Northern Marianas Retirement Fund, No. 90-007, 1 N.Mar.I. (N.M.I. Sept. 21, 1990)\\nIf we determine that the affidavit of Adan is an instrument of conveyance, the alternative issue concerning priority of recordation is one of law which is reviewable de novo.\\nIV.\\nANALYSIS\\nSometime before 1958, Adan filed a claim of ownership to Uyulang. At the time, 'Adan's brother, Gabriel, had already passed away. In 1958, the district land title officer issued Determination of Ownership No. 220 (\\\"T.D. 220\\\") in favor of Adan.\\nOn October: 11, 1972, Adan executed an \\\"affidavit,\\\" which he filed with the Land Commission. Adan stated that Uyulang, which he claimed in 1958 and for which T.D. 220 was issued in his name, \\\"shall go to/is for Antonia Masga Tudela because this land was exchanged with the farm at Mi-ingao inherited by Gabriel, my brother, from our father Vicente Masga.\\\"\\nThree years later, in 1975, Adan also executed a deed purporting to convey Uyulang to his daughter Carmen. Relying on Adan's 1972 affidavit,- the Land Commission issued a title certificate on June 27, 1984 declaring Antonia the owner of Uyulang. Carmen filed suit to quiet title.\\nAt trial, the parties focused on the issue of recordation: whether Adan's 1972 affidavit or his 1975 deed to Carmen has priority. The trial court instead determined that Adan's affidavit is not an instrument of conveyance but a \\\"declaration against interest\\\" by which Adan disclaimed ever having any ownership interest in the property. It ruled that the .affidavit \\\"clearly sets forth that Adan Masga does not own Uyulang.\\\" On appeal, Carmen challenges the trial court ruling that her father, Adan, does not own Uyulang. She contends that T.D. 220 had already determined that Adan owned Uyulang, became final, and may not now be set aside.\\nIn Estate of Dela Cruz, No. 90-023 (N.M.I. Feb. 7, 1991), we held that land title determinations issued pursuant to Land Management Regulation No. 1 should be accorded finality under the principle of administrative res judicata unless (1) the determination was void when issued, (2) the record is patently inadequate to support the determination, (3) the administrative ruling contravenes an overriding public policy, or (4) to uphold the administrative decision would result in manifest injustice.\\nWe find that the first, second, and fourth exceptions enumerated in Estate of Dela Cruz apply to the facts of this case. Although Adan had claimed Uyulang and T.D. 220 was issued in his name in 1958, his 1972 affidavit submitted to the Land Commission clearly shows that Adan disclaimed having any ownership interest in Uyulang.\\nBy his own affidavit, Adan declared that Uyulang belonged to Gabriel, that Uyulang was obtained in exchange for the Mi-ingao property which his brother Gabriel had inherited from their father Vicente Masga, and that Uyulang therefore \\\"shall go to/is for Antonia Masga Tudela.\\\" The trial court correctly ruled that Adan's affidavit was not an instrument of conveyance. The affidavit was a declaration against interest. Since he had no interest in Uyulang, Adan had nothing to convey.\\nAdan's affidavit called into question the validity of T.D. 220 from the date it was issued. The certificate of title issued by the Land Commission in 1984 in Antonia's name corrected the error which Adan, through his affidavit, intended to rectify. To allow T.D. 220 to stand would result in \\\"manifest injustice.\\\" None other than Adan himself, while alive, stated that Gabriel owned Uyulang.\\nWe agree with Carmen that the Land Commission \\\"set aside\\\" T.D. 220, but it was justified in doing so because (1) T.D. 220 was clearly erroneous when issued, (2) not to set T.D. 220 aside would result in manifest injustice, and (3) Adan's affidavit effectively rendered the record supporting T.D. 220 \\\"patently inadequate.\\\" We disagree with Carmen's contention, however, that the trial court relied on the Land Commission certificate of title as the basis for its ruling. In upholding the Land Commission certificate of ownership in favor of Antonia, the court based its ruling on Adan's affidavit that he never owned Uyulang and that, consequently, T.D. 220 was erroneous and should be set aside. A court may set aside an administrative adjudication in order to prevent manifest injustice. In Re Estate of Dela Cruz, No. 90-023 (N.M.I. Feb. 7, 1991). Adan's affidavit conclusively shows that T.D. 220 was invalid. It was intended to set aside T.D. 220 in order to prevent the \\\"manifest injustice\\\" which resulted therefrom.\\nCarmen next contends that her right to due process of law was violated by the Land Commission since it failed to follow the statutory procedure required of that agency in determining disputed ownership claims. See 2 CMC \\u00a7 4241, et sea. She argues that Adan was given no notice and opportunity \\\"to challenge the authenticity of [his] affidavit filed in 1972,\\\" and therefore the certificate of title was void. We disagree.\\nAdan himself declared by affidavit that he had no ownership interest in Uyulang. We see no reason why the Land Commission should call \\u00c1dan back so that he could challenge the \\\"authenticity\\\" of his own affidavit.. There is nothing in the record below which shows that the failure of the Land Commission to call back Adan somehow violated Adan's right to due process. At trial, his privy in interest, Carmen, litigated the underlying issue of ownership, and the court entered judgment accordingly. Our review of the trial record shows that the judgment entered is supported by the evidence and should not be disturbed.\\nSince Adan never owned Uyulang, his 1975 deed of gift to Carmen conveyed nothing. Furthermore, the Superior Court correctly determined that Adan's 1972 affidavit was not an instrument of conveyance. Thus the recordation issue \\u2014 whether the Land Commission's certificate of title has priority over Adan's 1975 deed to Carmen \\u2014 has no merit. The only possible significance of the 1975 deed from Adan to Carmen, as recorded, was to create a cloud on Antonia's title. The recordation statute would have relevance where, for example, a bona-fide purchaser for value buys property from a landowner without notice of a previous conveyance by that landowner. See, Pangelinan v. Unknown Heirs of Mangarero, No. 90-015, 1 N.Mar.I. 141 (N.M.I. Nov. 1, 1990). But where, as here, Adan never owned Uyulang, his deed to Carmen, even if recorded, conveyed no interest. And Carmen, in turn, cannot argue that her deed from Adan, who has no interest in Uyulang, is somehow superior to an agency adjudication.\\nV.\\nCONCLUSION\\nAccordingly, the judgment of the Superior Court in favor of Antonia is hereby AFFIRMED.\\nDated at Saipan, MP, this 26th day of August, 1992.\\nJOSE S. DELA CRUZ, Chief Justice\\nLARRY L. HILLBLOM Special Judge\\nREXFORD C. KOSACK Special Judge\\nThe property has been designated as Lot No. 3013, situated at Uyulang, Rota, and containing an area of approximately 7,709 square meters.\\nAdan has since passed away.\\nA concise picture of the land title determination process in the Commonwealth before the advent of the Land Commission Office is set forth in Estate of Dela Cruz, Appeal No. 90-023 (N.M.I. Feb. 7, 1991).\\nSee Echo Ranch, Inc. v. Evans, 693 P.2d 454, 457-58 (Idaho 1984)(recording acts supply notice \\\"to third parties who might otherwise rely to their detriment on the assumption that a purchaser still had valid interest in the property.\\\"); Jeffers v. Doel, 658 P.2d 426, 428 (N.M. 1982)(\\\"The purpose of the [recording] statute is to prevent injustice by protecting innocent purchasers for value without notice of unrecorded instruments who have invested money in property.\\\")\"}"

n_mar_i/1696201.json

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+"{\"id\": \"1696201\", \"name\": \"TOMAS S. RIOS, et al., Plaintiffs/Appellants, v. MARIANAS PUBLIC LAND CORPORATION, Defendant/Appellee\", \"name_abbreviation\": \"Rios v. Marianas Public Land Corp.\", \"decision_date\": \"1993-02-19\", \"docket_number\": \"Civil Case No. 91-244\", \"first_page\": 512, \"last_page\": \"527\", \"citations\": \"3 N. Mar. I. 512\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJ A, Justices.\", \"parties\": \"TOMAS S. RIOS, et al., Plaintiffs/Appellants, v. MARIANAS PUBLIC LAND CORPORATION, Defendant/Appellee.\", \"head_matter\": \"February 19, 1993\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nTOMAS S. RIOS, et al., Plaintiffs/Appellants, v. MARIANAS PUBLIC LAND CORPORATION, Defendant/Appellee.\\nAppeal No. 92-019\\nCivil Case No. 91-244\\nArgued and submitted December 7, 1992\\nAttorney for Appellants: Reynaldo O. Yana, Esq. P.O. Box 52 Saipan, MP 96950\\nAttorney for Appellee: Bret Lubic, Esq. P.O. Box 1267 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJ A, Justices.\", \"word_count\": \"3900\", \"char_count\": \"22850\", \"text\": \"OPINION\\nDELA CRUZ, Chief Justice:\\nPlaintiffs brought this action to recover from the Marianas Public Land Corporation (\\\"MPLC\\\") certain lands allegedly belonging to them as the heirs of Francisco Rios (\\\"Rios\\\"), deceased. Alternatively, they ask that they be compensated with public land equivalent in value. Both sides moved for summary judgment. Concluding that the plaintiffs' action is barred by the 20-year statute of limitations and by laches, the court granted summary judgment in favor of MPLC and dismissed the case.\\nBecause we agree with the trial court that this action is barred by the twenty-year statute of limitations governing the recovery of an interest in land, we affirm the summary judgment entered in favor of MPLC.\\nWe disagree, however, that laches also bars the action. The record below shows that there are material issues of fact with respect to whether the action is barred by laches. The grant of summary judgment based on laches was, therefore, erroneous.\\nI. FACTUAL AND PROCEDURAL HISTORY\\nThis case relates to a parcel of land of approximately 24 hectares on the shores of Lake Susupe, Saipan, now designated as Lot 47-4. When Japan administered the islands, Lot 47-4 consisted of (and is referred to herein) as Lots 69, 70, 77, and 78.\\nOn March 1, 1919, Francisco Rios (\\\"Rios\\\") sold a 3.8 hectare portion of Lot 77 to Jose Ada (\\\"Ada\\\") . In 1929, Ada borrowed 20,000 Yen from Nanyo Kohatsu Kabushiki Kaisa (\\\"NKK\\\"), a Japanese company. That year also, Ada leased to NKK 24.5 hectares of land in Finasisu. The lease was for ten years, and encompassed the same lots 69, 70, 77, and 78. The total lease payment of 6,000 Yen was used to offset the interest on the loan to Ada for the first three years.\\nIn 1934, Rios's then heirs sued Ada in the Japanese Government court (known as the Saipan District Court) seeking the return of the 3.8 hectare portion of Lot No. 77. They claimed that Ada had only leased the property, not purchased it. The Japanese tribunal held that Ada had purchased, not leased, the 3.8 hectare portion of Lot 77.\\nAfter World War II, the lots appear to have escheated to the Trust Territory of the Pacific Islands (\\\"TTPI\\\"), and MPLC succeeded as title trustee to all public land in the Northern Marianas at the inception of the Commonwealth Government in 1978.\\nIn 1948, Jesus and Miguel Rios, two heirs of Francisco Rios, filed separate land claims with the Saipan District Office of Civil Administration for the land in Finasisu. It is not clear from the record before us what became of Jesus and Miguel's claims. Whether the Saipan District Land Title Office ever issued a title determination pursuant to the claims filed by Jesus and Miguel Rios is not known from the record below.\\nOn March 21, 1991, over 50 years after their predecessors had failed in their pre-war attempt to regain the 3.8 hectare portion of Lot 77, plaintiffs brought the present action to recover not just a portion of Lot 77, but Lots 69, 70, and 78 as well.\\nIn their complaint, plaintiffs alleged that Rios had owned all 24 hectares of Lots 69, 70, 77 and 78; that Rios sold only 3.68 hectares of Lot 77 to Ada; that Ada had fraudulently sold to NKK all 24 hectares to NKK; that after World War II, the p*operty escheated to the TTPI; that MPLC, as the TTPI's successor in interest, is in possession of the property; and that the heirs of Rios have not been compensated by MPLC or the TTPI.\\nIn its motion for summary judgment, MPLC contended that plaintiffs' action is barred by either the statute of limitations or laches or, in the alternative, on the ground that plaintiffs have failed to exhaust their administrative remedies. The trial court agreed, holding as follows:\\nThe plaintiffs are barred by the statute of limitation under 7 CMC Section 2502. If in fact they own Lots 69, 70 and 78, they had all the opportunity to bring the action in 1934, as they did for a portion of Lot 77.\\nThe plaintiffs have slept on their rights and are barred by the doctrine of laches. Palacios v. T.T.P.I., 2 CR 904 (D.C.N.M.I. App.Div. 1986), aff'd, 838 F.2d 474 (9th Cir. 1988).\\nOrder of the Superior Court dated June 30, 1992 (hereafter \\\"Order\\\").\\nII. ISSUE PRESENTED AND STANDARD OF REVIEW.\\nThe issue before us is whether the trial court erred in granting MPLC's motion for summary judgment since it improperly weighed the evidence and made a factual determination regarding ownership of the disputed lots.\\nThe trial court granted summary judgment on two grounds. First, the trial court ruled that the applicable statute of limitations had run. Second, it ruled that plaintiffs action is barred by laches. We review de novo an order granting summary judgment.' Apatang v. Marianas Public Land Corporation, No. 89-013, 1 N.Mar.I. 36 (N.M.I. 1990).\\nWe shall affirm the trial court's order granting summary judgment if we find that, as to the legal basis relied on, (1) there was no genuine issue of material fact and (2) the trial court correctly applied the substantive law. Apatang v. Marianas Public Land Corporation, No.89-013, 1 N.Mar.I. 36, 38 (N.M.I. 1990). We may also affirm if we find that the trial court's result is correct under a different theory. Ferreira v. Borja, No. 90-047 (N.M.I. Feb. 18, 1992). In our de novo review of a grant of summary judgment, we view the evidence and inferences to be drawn therefrom in favor of the non-moving party. Id.; Cabrera v. Heirs of De Castro, No. 89-018, 1 N.Mar.I. 102, 104 (N.M.I. 1990).\\nIII. ANALYSIS\\n1. The Statute of Limitations Bar.\\nPlaintiffs contend that the trial court erred in granting MPLC's motion for summary judgment because it improperly weighed the evidence and made a factual determination regarding ownership of the disputed lots. As to the matter of ownership, the trial court wrote:\\nThere is no evidence from the exhibits that Francisco Rios owned Lots 69, 70, and 78. Lots 69, 70, and 78 was [sic] owned by Jose Ada. Jose Ada leased Lots 69, 70, and 78 to the [NKK] with the lease expiration 1939. However, from the exhibit, in a Report to the Land Investigation Office, it appears that Jose Ada was to have sold Lots 69, 70, and 78 to the [NKK]. Francisco Rios did not own Lots 69, 70, and 78. He owned only portion of Lot 77.\\nOrder at 3.\\nFrom this language it is apparent that the trial court touched on the substantive question of ownership of the lots at issue. Because Rios's claim of ownership to the lots must be established, its resolution via summary judgment, in view of the factual dispute as to ownership, was clearly improper. A trial court cannot weigh the evidence and make findings on disputed factual issues on a motion for summary judgment. See Apatang.\\nThe issue of ownership, however, is quite different from the issue of whether the Rios heirs' claim of ownership is barred by the applicable statute of limitations. Only if the claim is not barred may the court then proceed, at trial, to determine whether the Rios's land claim has validity. Thus, although the trial court improperly touched on the disputed question of ownership, its summary judgment ruling was based on its conclusion that the claim is barred.\\nThe issue presented by MPLC's motion for summary judgment is whether Rios's heirs waited too long to file their claim of ownership to the property. Ownership of the property, although a disputed factual issue which must be proven at trial, is not a material fact necessary to determine whether the claim is barred by the statute of limitations.\\nThe trial court needed only to determine whether the plaintiffs' action for \\\"recovery\\\" of the land was barred by either the statute of limitations or laches. The fact that the trial court addressed the disputed question of ownership to the property, although improper, was unnecessary, and does not render its ruling that the action is barred by the 20-year limitations period erroneous.\\nThe statute of limitations applicable to claims for \\\"recovery\\\" of land, 7 CMC Section 2502, provides:\\n(a) The following actions shall be commenced only within 20 years after the cause of action accrues:\\n(1) Actions upon a judgment.\\n(2) Actions for the recovery of land or any interest therein.\\n(b) If the cause of action first accrued to an ancestor or predecessor of the person who presents the action, or to any other person under whom he or she claims, the 2 0 years shall be computed from the time when the cause of action first accrued.\\nOn appeal, plaintiffs in fact do not dispute that the 20-year limitation period under 7 CMC Section 2502 has run. They instead argue that such statute does not bar their action because it is against MPLC, a government agency. They rely on our opinion in Apatang, and argue that \\\"in a case against the Government the statute of limitations and applicable defenses of laches are tolled or lifted by the Commonwealth's Public Purpose Land Exchange Authorization Act [of 1987].\\\" Brief of appellants at 6.\\nIn Apatang, we held that the six-year statute of limitations, which governs land exchange issues, did not bar a landowner's action seeking adequate compensation based on a land exchange transfer conducted over 20 years earlier with the Trust Territory. In Apatang there was no dispute that Apatang's father owned the land that was exchanged with the government. In the instant case, however, plaintiffs' action was a claim of ownership to land. Wa did not rule in Apatang that as to all actions involving land against MPLC, such as an action seeking recovery of an interest in land, the applicable statute of limitations can never be a bar.\\nWe find that 7 CMC Section 2502 applies to this case because the action is, in fact, one for the recovery of land. The trial court correctly ruled that plaintiffs' action is barred by the statute because plaintiffs' cause of action accrued more than 20 years ago.\\nIn their complaint, plaintiffs allege that MPLC has \\\"held the land and converted it as a public land\\\" [sic]. They asked the trial court to \\\"order the defendant to return the said land to the plaintiffs.\\\" Complaint at 2-3. The action is clearly for the \\\"recovery of land or any interest therein\\\" and 7 CMC Section 2502 governs. That statute bars this action because, as we explain below, plaintiffs' cause of action accrued over twenty years ago.\\nThe general rule is that the statute of limitations does not commence to run against the right to recover the possession of real property until the cause of action accrues. Grayson v. Harris, 279 U.S. 300, 49 S.Ct. 306, 73 L.Ed. 700 (1929); see generally. 51 Am.Jur.2d Limitation of Actions Section 120 (1970). The critical question of law we need to answer, then, is when did plaintiffs' cause of action \\\"accrue\\\"?\\nThe answer is found in the Trust Territory Code and case lav/ of the' Trust Territory High Court. Under the Trust Territory Code, \\\"any cause of action existing on May 28, 1951, shall be considered to have accrued on that date.\\\" 6 TTC Section 310 (1970). This statute applies to causes of action seeking to recover land or an interest therein. See Santos v. Trust Territory, 1 TTR 463 (Tr.Div. 19 58) ; Rusasech v. Trust Territory, 1 TTR 472 (Tr.Div. 1958).\\nIt is clear that plaintiffs' cause of action, i.e. their land claim, existed since May 28, 1951. Both the plaintiffs' complaint and the undisputed facts show that plaintiffs (and their predecessors) were aware of their claim to the land and cognizant of the fact that the TTPI, after the war, was in possession of, or had a claim of interest to the land. In fact, one exhibit shows that in early 1948 Jesus and Miguel Rios did file a claim with the TTPI for the same land in Finasisu.\\nThus, as a matter of law, the Rios's claim to the property existed on May 28, 1951, and their cause of action is deemed to have accrued on that date. 6 TTC Section 302. Therefore, their claim was barred by the 20-year statute of limitations, 6 TTC Section 302, after May 28, 1971. For this reason, we hold that the trial court did not err in ruling that the statute of limitations has run on plaintiffs' claim.\\n2. The Defense of Laches.\\nThe trial court also ruled that laches bars the Rios's action. In granting MPLC's motion on this ground, the trial court ruled without any discussion that \\\"[t]he plaintiffs have slept on their rights and are barred by the doctrine of laches.\\\" Order at 4, citing. Palacios v. TTPI, 2 CR 904 (D.C.N.M.I. App.Div. 1986), aff'd, 838 F.2d 474 (9th Cir. 1988).\\nLaches has been defined as \\\"the neglect or delay in bringing suit to remedy an alleged wrong, which taken together with lapse of time and other circumstances, causes prejudice to the adverse party and operates as an equitable bar.\\\" A.C. Aukerman Co. v. R.L. Chaides Construction, Co., 960 F.2d 1020, 1029-30 (Fed.Cir. 1992).\\nA defendant who asserts laches must prove two elements. First, he must show that \\\"the plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant,\\\" and, second, that \\\"the delay operated to the prejudice or injury of the defendant.\\\" A.C. Aukerman Co., 960 F.2d at 1032, citing, Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d 551 (1961); see also Ada v. Ogo, 1 CR 1043 (D.C.N.M.I. App.Div. 1984).\\nThere is a presumption of laches where the statute of limitations has run. See Palacios v. TTPI (and cases cited therein); Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365 (6th Cir. 1985), cert. den., 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986). Once a presumption arises, the plaintiff must \\\"offer proof directed to rebutting the laches factors.\\\" A.C. Aukerman Co., 960 F.2d at 1038. To rebut the presumption, a plaintiff must present evidence showing that its delay was reasonable or that the defendant did not suffer prejudice or both. If the plaintiff's offer of proof raises a genuine issue of fact regarding either the reasonableness for its delay or the prejudice suffered by defendant, then the presumption of laches is overcome. Id.\\nIn Palacios, the plaintiffs offered several reasons for their delay in an attempt to rebut the presumption of laches. The court found none of these reasons persuasive and held that the trial court had not abused its discretion in determining that the action was barred by laches. The trial court in Palacios rendered its decision on the issue of laches only after a two-day trial on the merits relating solely to that issue. Palacios, 2 CR at 907.\\nThe instant case, however, was before the trial court on a motion for summary judgment. There was no trial to determine the facts. The only facts before the court were those stipulated to by the parties. Upon review of the record below, we determine that there are questions of fact to be answered before either of the two necessary elements comprising laches \\u2014 unexcused delay by the plaintiff and prejudice to the defendant \\u2014 could be established.\\nIt is not clear from the record below whether plaintiffs' delay was inexcusable. For example, we note that plaintiffs claimed below that their delay in bringing this action arose from their lack of notice that the property had escheated to the government. If plaintiffs in fact had no notice of the property escheating to the government, that might excuse their delay in filing an action for the purposes of laches. See Portland Audubon Soc. v. Lujan, 884 F.2d 1233 (9th Cir. 1989), cert. den., 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990). Because this issue came up on a motion for summary judgment, the plaintiffs' contention as to lack of notice rebuts the presumption of laches because it raises a material question of fact. The evidence at that point as to laches and the inferences to be drawn therefrom should have been resolved, in favor of the Rios heirs, as the non-moving party. See Cabrera v. Heirs of De Castro.\\nIn addition, as to the second element of laches, there are no facts in the record showing whether plaintiffs' delay in filing their action caused MPLC to suffer any prejudice. Such prejudice may be in the form of evidence, meaning that plaintiffs' delay results in MPLC's inability to present its case due, for example, to lost documents or witnesses long since deceased. This type of prejudice, however, is weakened since the record contains several legible and purportedly authentic legal documents. As to economic prejudice to MPLC, the record below at the time of summary judgment does not show what improvements have been made on the land, if any. All of these are factual issues relating to the elements of prejudice which need to be resolved at trial.\\nBecause a number of unanswered questions remain with respect to both of the elements of laches, we hold that the grant of summary judgment based on laches was erroneous.\\nIV. CONCLUSION\\nSince we hold that this action is barred by the twenty-year limitations period within which to recover land or an interest in land, we AFFIRM the trial court order granting summary judgment in favor of MPLC.\\nDated: this 19th-day of February, 1993 at Saipan, Commonwealth of the Northern Mariana Islands.\\nJOSE S. DELA CRUZ Chief Justice\\nRAMON G. VILLAGOMEZ Associate Justice\\nJESUS C. BORJA Associate Justice\\nAda was to repay the loan by August 25, 1933.\\n\\\"Finasisu\\\" is the area of Saipan just above Lake Susupe. There is evidence in the exhibits contained in the \\\"Report to the Lar.d Investigation Office\\\" that Ada sold, rather than leased, the 24.5 hectares to NKK.\\nThere is no indication in the facts that the heirs of Rios sued for the return of lots 69, 70 and 78, which Ada had also leased or sold to NKK. In fact, there is little in the record as to exactly how the Rios family lost the lots or how Jose Ada obtained them.\\nIn their complaint, plaintiffs alleged that the property escheated to the Government of the TTPI. See Complaint at paragraph 8.\\nThis is the same land that Ada leased or sold to NKK.\\nBoth parties state that there has never been a determination of ownership issued by the Northern Marianas Land Commission adjudicating title to the property.\\nEscheat means \\\"the reversion or forfeiture of property to the government upon the happening of some chance event or default.\\\" 27 Am.Jur.2d Escheat Section 1 (1966). Although escheat of real property generally occurs when a landowner dies without heirs, it may also occur where succession is not claimed within some reasonable time, which is usually defined by statute. Id. at Sections 2 and 3.\\nMPLC argues further that even if Rios had once owned the land, his heirs lost their title and interest to the property upon the expiration of the statute of limitations following the sale of the land by Ada to NKK.\\nWe further note that the trial court itself questioned the ownership of the lots when it wrote: \\\"[I]f in fact [plaintiffs] own lots 69, 70, and 78. they had all the opportunity to bring the action in 1934, as they did for portion of Lot 77.\\\" Order at 3-4 (emphasis supplied). MPLC's answer denied that the lots belong to Rios, putting the issue in dispute.\\nP.L. 5-33, codified at 2 CMC Section 4141, et seq. (hereafter, the \\\"Act\\\"). The Act became effective June 1, 1987, and authorizes MPLC to exchange public lands for private lands needed for a \\\"public purpose.\\\" 2 CMC Sections 4142, 4143(e). The legislature deemed such land exchanges, \\\"rather than monetary compensation, . . . tas] the preferred means of obtaining private lands for public purposes and of providing compensation of public purposes . .\\\" 2 CMC Section 4145.\\nIn Apatang, we quoted the analysis to Section 7 of the Schedule on Transitional Matters, which provides that \\\"[t]he legislature may permit claims against the Commonwealth Government by persons who were compensated inadequately for transfer of interest in property in the past, even though (he applicable statute of limitations have expired. Apatang, slip op. at 7, 1 N.Mar.I. at 39 (emphasis in original). We also note that unlike Apatang, the allegation of wrong-doing in this case is against Jose Ada, a private person.\\nPlaintiffs allege wrong-doing in the first instance by Jose Ada, not MPLC, but fail to include Ada's heirs as defendants to this action. The record is unclear on this point, but it may be because only MPLC holds title to the lots. However, plaintiffs' allegations concerning Jose Ada highlight that their claim to the land may have existed well before the statutorily-mandated 1951 commencement date.\\n6 TTC Section 302 was recodified as 7 CMC Section 2502.\\nMPLC alternatively argues that plaintiffs have not exhausted their administrative remedies by not first pursuing their claim with the Land Commission, which has authority to adjudicate private claims to land ownership. We do not address this argument in view of our holding that the Rios's claim of ownership is barred by the statute of limitations. The record before us is also not clear that the property in question has been designated by the Land Commission for land registration, so as to give that agency jurisdiction to determine the question of ownership. See 2 CMC Section 4231.\\nPrejudice to the defendant caused by the plaintiff's delay may be either evidentiary or economic. Evidentiary prejudice results where the defendant cannot present a defense on the merits due to the loss of records, death of a witness, or unreliability of memories of events long past. Economic prejudice arises \\\"where a defendant and possibly others will suffer the loss on monetary investments or incur damages which likely would have been prevented by earlier suit.\\\" A.C. Aukerman Co., 960 F.2d at 1033.\\nThe plaintiff \\\"bears the burden only of coming forward with sufficient evidence to raise a genuine factual issue respecting the reasonableness of its conduct\\\" once the defendant shows that plaintiff's delay is in excess of the time authorized under the applicable statute of limitations. A.C. Aukerman Co., 960 F.2d at 1039. The presumption of laches does not shift the burden on ultimate persuasion or proof on the defense of laches to the plaintiff; that burden remains with the defendant or other party which pleads the defense. See also, Palacios v. TTPI, 2 CR at 908-909.\\nAs justification for its delay, plaintiffs.could attempt to show that it was involved in other litigation; suffering from poverty or illness; or deterred by wartime conditions. See A.C. Aukerman Co., 960 F.2d at 1033.\"}"

n_mar_i/1696205.json

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+"{\"id\": \"1696205\", \"name\": \"COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. ANTONIO T. CONDINO, Defendant/Appellant\", \"name_abbreviation\": \"Commonwealth v. Condino\", \"decision_date\": \"1993-02-19\", \"docket_number\": \"CRIMINAL CASE NO. 90-160\", \"first_page\": 501, \"last_page\": \"511\", \"citations\": \"3 N. Mar. I. 501\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. ANTONIO T. CONDINO, Defendant/Appellant.\", \"head_matter\": \"February 19, 1993\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nCOMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellee, vs. ANTONIO T. CONDINO, Defendant/Appellant.\\nAPPEAL NO. 92-001\\nCRIMINAL CASE NO. 90-160\\nArgued and Submitted January 15, 1993\\nCounsel for Appellant: Pamela O'Leary-Tower Assistant Public Defender Office of the Public Defender Civic Center Saipan, MP 96950\\nCounsel for Appellee: Cheryl M. Gill Assistant Attorney General Office of the Attorney General 2d Administration Building Capitol Hill Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"2135\", \"char_count\": \"13004\", \"text\": \"OPINION\\nVILLAGOMEZ, Justice:\\nThis is an appeal from the conviction of defendant, Antonio T. Condino (\\\"Condino\\\"), for sexual abuse of a child. We are asked to determine whether the admission into evidence of the child's hearsay statements at trial violates Condino's right to be confronted with adverse witnesses under Article 1, \\u00a7 4(b) of the CNMI Constitution.\\nFACTUAL and PROCEDURAL HISTORY\\nOn October 1, 1990, at about 10:30 p.m., police officer Johnny A. Tomei was on a routine patrol near the Sugar King Hotel in the \\\"China Town\\\" area of Saipan, when he saw a car parked on the gravel road, in the dark. The officer thought this unusual and called police central station for a license plate check. He received a description which did not match the car with the license plate number. Based on that discrepancy, the officer parked his patrol car, with its lights on, facing the other car. He saw two heads inside the car with the car seats reclined. The officer approached the car and found Condino alone with a child (herein \\\"T. S.\\\"). When T. S. came out of the car, the officer observed several red marks on both sides of her neck and that she was \\\"all red between the thighs.\\\"\\nAt the scene, T. S. told Officer Tomei her name and that she was 16 years old. However, the officer felt that T. S. appeared to be around 11 or 12 years old and, therefore, requested the DPS juvenile division to assist him. In response, two officers came and escorted Condino and T. S. to her guardian's house in China Town. At the guardian's house, T. S. was interviewed by Officer Johnny Sokau. She told the officer that Condino placed the love marks on her neck that night. She also told him that Condino had sexual intercourse with her on September 25th, about a week earlier.\\nBased on the child's statement, Condino was arrested and taken to the police station where he was advised of his Miranda rights. Condino waived his Miranda rights and confessed that he had engaged in sexual intercourse with T. S. On October 9, 1990, the government charged Condino with the offense of sexual abuse of a child, pursuant to 6 CMC \\u00a7 1311.\\nOn October 1, 1991, almost a year later, the government received a copy of a psychiatric evaluation report issued by a psychiatrist. The psychiatrist evaluated T. S. to determine her mental stability and capacity to testify at trial. The report states in part:\\nHer attachment for Antonio is deep, of an adult-type and would outlast the litigative process. She does dread going to court over this matter and has planned forms for a suicide if forced to permanently separate from Antonio. I cannot dismiss the suicidal preoccupation as a manipulation of an immature person who is determined to get her own way. Although she is not mentally ill in the accepted sense, she has been psychologically worn down by the protracted proceeding. I feel that a continued prosecution of the case will be detrimental to her mental health and could lead to a considerably heightened risk of suicide.\\nAs a result of the above report, the government, on October 1, 1991, filed its notice of intention to introduce the hearsay statement of T. S., in lieu of her oral testimony, pursuant to Rule 804(b)(5), Commonwealth Rules of Evidence.\\nThe trial court held a hearing on October 2, 1991, and granted the government's motion to introduce T. S.'s hearsay statement into evidence. It ruled, based on the psychiatric report, that T.S. was unavailable to testify as a witness.\\nThe case went to trial and the court admitted, over defense objection, the hearsay statement of T. S. through the testimony of Officer Sokau who had interviewed T. S. and took her statement in October, 1990. The officer testified in relevant part as follows:\\nShe said she admired Antonio . . . and Antonio Condino admires her and she \\u2014 has to ask his family for consent in order to marry her.\\nShe told me \\u2014 she told me \\u2014 she said that she and Condino made \\u2014 had sexual intercourse.\\nOne time on September Twenty-fifth.\\nIt occurred at \\u2014 in Antonio Condino's bedroom at Donicio Atalig's house in China Town.\\nShe said that when the \\u2014 they made love and when Antonio Condino was coming, he ejaculated on the bed.\\nYes. She said that Antonio Condino put the love mark on her neck on October 1st, at Donicio Atalig's house \\u2014 their house.\\nAfter establishing a prima facie case of child abuse based on T. S.'s hearsay statement, the government offered and the trial court admitted the confession of Condino.\\nThe trial court found Condino guilty as charged and sentenced him. Condino timely appealed his conviction on February 18, 1992.\\nANALYSIS\\nArticle 1, Section 4(b) of the CNMI Constitution sets forth the \\\"Confrontation Clause\\\" that is at issue in this case. Because the CNMI Constitution's Confrontation Clause is patterned after the U.S. Constitution's Confrontation Clause (Sixth Amendment), we resort to the U.S. Supreme Court's interpretation of the federal Confrontation Clause in interpreting the CNMI's Confrontation Clause. In Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), the U.S. Supreme Court was presented with the same issue that is before us.\\nIn Wright, the issue was whether the state, as the proponent of the evidence presumptively barred by the hearsay rule and the Confrontation Clause, had carried its burden of proving that the young child's incriminating statements, made to a doctor, bore sufficient indicia of reliability to withstand scrutiny under the Clause. The child in Wright, as in the instant case, was a victim of sexual abuse who was declared unavailable to testify in court. The child's hearsay statement was offered into evidence under a state residual hearsay exception similar to ours.\\nThe U.S. Supreme Court ruled that once a witness is shown to be unavailable, his/her statement may be admitted into evidence only if it bears adequate indicia of reliability. Reliability can be inferred, without more, in a case where the hearsay statement falls within a firmly-rooted hearsay exception. If it does not fall within a firmly-rooted hearsay exception, then the evidence must show \\\"particularized guarantees of trustworthiness,\\\" in order to satisfy the Confrontation Clause. Idaho v. Wright, 110 S.Ct. at 3147.\\nThe Court in Wright recognized that out-of-court statements made by children regarding sexual abuse arise in a wide variety of circumstances. It, therefore, ruled that the Sixth Amendment does not impose a fixed set of procedural prerequisites to the admission of such statements. Instead, the particularized guarantees of trustworthiness must be shown from the totality of the circumstances, i.e., those circumstances surrounding the making of the statement such that it renders the declarant particularly worthy of belief.\\nA number of factors relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable. It includes the child's spontaneity and consistency in giving her statement; the mental state of the child; use of terminology unexpected of a child of similar age; and the lack of motive to fabricate. However, these factors are not exclusive and courts have considerable leeway in their consideration of other appropriate factors.\\nTo be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.\\nIdaho v. Wright, 110 S.Ct. at 3150.\\nCorroborating evidence which is not part of the totality of the surrounding circumstances may not be considered in determining reliability. Idaho v. Wright, 110 S.Ct. at 3150.\\nIn reviewing whether T. S.'s incriminating hearsay statements made to Officer Sokau bear sufficient indicia of reliability so as to satisfy the CNMI Confrontation Clause, we examine whether there are particularized guarantees of trustworthiness from the totality of circumstances surrounding the making of her statements.\\nThe totality of circumstances,, surrounding the making of the statements began when Officer Tomei found Condino and T. S. alone in the car parked in the dark at China Town. When she came out of the car, she had red marks on her neck and redness between her thighs. She immediately told the officer that she was 16 years old.\\nUpon the arrival of the two other officers, they immediately escorted Condino and T. S. to her house, which was also in China Town. Officer Sokau interviewed T. S. in her home instead of at the police station. The interview was done before Condino was arrested. She told the officer that she and Condino loved each other and planned to marry. She also told him that about a week earlier, on September 24th, they slept together and on September 25th they had sexual intercourse in Condino's bed. She added that Condino gave her the hickeys that night.\\nHer statement that they loved each other and planned to marry supports her incriminating statement that they had sexual intercourse and he gave her the hickeys. Such statements are also consistent with their being alone in the car and her having red marks on her neck and inner thighs. She initially attempted to cover-up any wrongdoing by misrepresenting that she was 16 years old. However, the officers did not believe her because she did not look like a 16 year old girl. She then gave the incriminating statement. The circumstances within which the statements were made were such that there was no reason for her to lie. It appeared to have been made spontaneously. Finally, there was no motive for her to fabricate the statement which would incriminate someone she apparently loves and cares for.\\nBased on the totality of circumstances surrounding the making of T. S.'s statement, we conclude that particularized guarantees of trustworthiness are present. We, therefore, hold that the admission of T. S.'s hearsay statement incriminating Condino did not violate his right to be confronted by an adverse witness. The trial court's admission of the statement was correct. We AFFIRM the judgment of conviction.\\nDated this 19th day of February, 1993.\\nJOSE S. DELA CRUZ, Chief Justice\\nRAMON G. VILLAGOMEZ, Associate Justice\\nJesus C. BORJA, Associate Justice\\nArticle 1, Section 4(b) states: \\\"The accused has the right to be confronted with adverse witnesses and to have compulsory process for obtaining favorable witnesses.\\\" Because we affirm the trial court's ruling on this issue, we need not address the second issue raised by appellant - whether the admission of the hearsay statement is reversible error.\\nWhen asked on the witness stand whether these were particular kinds of red marks, the officer responded \\\"yes ma'am, we call it 'hickeys'.\\\"\\nMiranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\nRule 804. Hearsay Exceptions; Declarant Unavailable. . .\\n(B) Hearsay Exceptions.\\n(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that\\n(A) the statement is offered as evidence of a material fact;\\n(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and\\n(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.\\nThe sentence was two and a half years in jail, all suspended except three months, 400 hours of community work and probation with credit for time served.\\nAlthough corroborating evidence have been offered to support the accuracy and truthfulness of the statements (such as Antonio's confession, psychiatric evaluation report, etc.), we do not take those into consideration.\\nLater it was confirmed that she was eleven years old.\\nIndeed, had she told the officer that she did not love Condino and that they had not had any sexual relationship, that would be inconsistent with their being alone in the car and the red marks.\"}"

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+"{\"id\": \"1696209\", \"name\": \"Guadalupe P. Manglona and Patricia Ann Perez Sablan, Plaintiffs/Appellees, v. Serafin B. Kaipat, Juliana Kaipat, Ana Somol, et al., Defendants/Appellants\", \"name_abbreviation\": \"Manglona v. Kaipat\", \"decision_date\": \"1992-12-29\", \"docket_number\": \"Civ. No. 90-618\", \"first_page\": 322, \"last_page\": \"342\", \"citations\": \"3 N. Mar. I. 322\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"Guadalupe P. Manglona and Patricia Ann Perez Sablan, Plaintiffs/Appellees, v. Serafin B. Kaipat, Juliana Kaipat, Ana Somol, et al., Defendants/Appellants.\", \"head_matter\": \"December 29, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nGuadalupe P. Manglona and Patricia Ann Perez Sablan, Plaintiffs/Appellees, v. Serafin B. Kaipat, Juliana Kaipat, Ana Somol, et al., Defendants/Appellants.\\nAppeal No. 91-020\\nCiv. No. 90-618\\nArgued and submitted February 21, 1992\\nAttorney for Appellees: David A. Wiseman, Esq. Wiseman and Eason Law Office P.O. Box 2607 Saipan, MP 96950\\nAttorney for Appellants: Jeanne H. Rayphand, Esq. P.O. BOX 2020 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"4971\", \"char_count\": \"29621\", \"text\": \"OPINION\\nDELA CRUZ, Chief Justice:\\nThe defendants are challenging (1) a ruling of the Superior Court denying their motion for partial summary judgment, and (2) the final judgment quieting title in favor of plaintiff, Patricia Ann Perez Sablan (\\\"Sablan\\\"). At issue is the validity of a deed of gift executed by Dolores Rapaito, since deceased, in favor of the plaintiffs: Sab\\u00edan, a person of Northern Marianas descent (\\\"NMD\\\") as defined in Article XII, Section 4 of the Northern Mariana Islands' Constitution, and Sab\\u00edan's mother, Guadalupe P. Manglona (\\\"Manglona\\\"), who is not an NMD. In denying defendants' motion for partial summary judgment, the trial court held that the deed of gift as to Sab\\u00edan is not rendered void under Article XII because it also conveyed to a co-grantee, who cannot take title because of the land alienation restriction under Article XII.\\nFollowing a bench trial on the non-Article XII issues, the trial court adjudged that the deed of gift vested sola title to the land in Sab\\u00edan.\\nDefendants contend on appeal that the deed of gift constituted a single transaction and that because the transaction was void as to Manglona, the entire deed should be declared void ab initio. They also raise issues relating to the sufficiency of the evidence, the adequacy of the trial court's findings of fact and conclusions of law, the trial court rulings admitting certain evidence, and the denial of their motion for continuance of trial.\\nWe hold that the deed of gift created a tenancy in.common and attempted to convey a one-half undivided interest in the property to both Manglona and Sab\\u00edan. Sab\\u00edan may take her one-half interest in the property pursuant to the deed of gift. However, Manglona's one-half interest is a \\\"transaction\\\" which is void under Article XII. Therefore, Manglona's one-half interest reverts to Rapaito's estate. Rapaito's heirs or devisees, therefore, take the one-half interest in the property as tenants in common with Sab\\u00edan.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nDolores Rapaito (the \\\"grantor\\\") owned in fee simple a certain parcel of land having an area of 21,846.9 square meters and situated at As Falipe, Saipan. She executed a deed of gift on April 14, 1978, conveying approximately 5,500 square meters of the property to Manglona and Sab\\u00edan, as grantees. The deed was recorded on April 25, 1978.\\nRapaito died intestate on May 14, 1983. Defendants are several of her surviving heirs.\\nOn June 28, 1990, Manglona and Sab\\u00edan filed the present action to quiet title to the property given them by Rapaito. On July 23, 1990, defendants answered the complaint and filed a counterclaim alleging, inter alia, that the deed of gift was (i) void ab initio because it violates Article XII, (ii) void because it was made without good and valuable consideration, and (iii) void because it was procured by undue influence, fraud, and at a time when the grantor was mentally incompetent. On August 13, 1990, plaintiffs answered the counterclaim denying the allegations.\\nOn February 6, 1991, defendants moved for partial summary judgment on their affirmative defense that the deed of gift, because it was a single transaction made to two grantees, one of whom could not take under Article XII, violates Article XII and was void ab initio. Plaintiffs conceded that \\\"by virtue of the restrictions of Article XII [Manglona] cannot claim title\\\" under the deed of gift; however, they assert that although Manglona cannot legally hold title, Sab\\u00edan could and did take the entire interest in her name alone.\\nOn February 28, 1991, the trial court entered an order denying defendant's motion for partial summary judgment. In the order, the trial court stated that Article XII:\\n[M]eans that a person [who is not an NMD] cannot acquire a prohibited freehold interest by holding title jointly with a qualified person. The provision does not support the proposition that the qualified person [an NMD] loses his or her interest because the other joint grantee or donee is [not an NMD]. . . Section 1 of Article XII of the Constitution does not say the interest of the [NMD] is somehow voided.\\nOrder at 3.\\nThe trial court ruled that Article XII prohibited Manglona at the outset from taking any interest in the land, and, therefore, the deed of gift \\\"vested complete title in Sab\\u00edan with no tenancy in common.\\\" Order at 4. It determined that the failure of Manglona's interest in the property did not mean that the Deed of Gift was somehow reformed: \\\"[t]he inclusion of Manglona's name on the deed is a void act and consequently it can neither be reformed or enforced.\\\" Id. at 5, citing, McClure v. Cerati, 194. P.2d 46, 52 (Cal.App. 1948). Finally, it decided that principles of equity could not be applied to cancel the deed of gift because such would work an unjust result on Sablan. Id. at 6, citing, Hesselgrove v. Mott, 160 P.2d 521, 528 (Wash. 1945).\\nSubsequently, on April 11, 1991, plaintiffs filed a memorandum to set the case for trial. Defendants filed an opposition thereto on April 22, 1991. The case was set for trial on June 24, 1991.\\nOn June 14, 1991, defendants filed a petition for a writ of mandamus with us, and, on June 17, 1991, also filed a motion with the trial court seeking a stay of the proceedings pending a decision by this Court on their petition for a writ of mandamus. On June 20, 1991, we denied the petition.\\nDefendants subsequently filed a motion for continuance of trial. Their motion was denied and the trial proceeded as scheduled, from June 24 to 26, 1991. On June 28, 1991, the court entered judgment quieting title in favor of Sab\\u00edan.\\nII. THE ISSUES AND STANDARDS OF REVIEW\\nappeal, appellants raise the following issues:\\n1. Whether the trial court erred in denying defendants' motion for partial summary judgment. The trial court's ruling on a motion for summary judgment is reviewable de novo. Estate of Mendiola v. Mendiola, No. 90-042 (N.M.I. Aug. 28, 1991).\\n2. Whether the evidence was sufficient to support the trial court's decision. The standard of review for sufficiency of the evidence is whether the evidence, when viewed in a light most favorable to the prevailing party, is sufficient to support the conclusion of the fact-finder. Robinson v. Robinson, No. 89-012, 1 N.Mar.I. 32 (N.M.I. 1990).\\n3. Whether the trial court's findings of fact and conclusions of law fail to satisfy Rule 52(a) of the Commonwealth Rules of Civil Procedure. The standard of review for determining the adequacy of factual findings is whether the findings are explicit enough on the ultimate issue in the case to give the appellate court a clear understanding of the basis of the decision and enable it to determine the grounds on which the trial court reached its decision. Toombs v. Leone, 777 F.2d 465 (9th Cir. 1985); Louie v. United States, 776 F.2d 819 (9th Cir. 1985).\\n4. Whether the trial court erred in admitting plaintiffs' Exhibit No. 1. Rulings pertaining to the admission of evidence are reviewed for abuse of discretion. Robinson v. Robinson, supra.\\n5. Whether the trial court erred in denying defendants' motion for trial continuance. Such ruling is reviewed for abuse of discretion. Guerrero v. Guerrero, No. 90-013 (N..M.I. March 13, 1991).\\nIII. ANALYSIS\\n1. The Deed of Gift and Article XII.\\nDefendants contend that the trial court erred in denying their motion for partial summary judgment. They challenge the ruling that plaintiff Sablan alone took title under the deed of gift. They argue that the deed, being a single transaction, violated Article XII because the same instrument conveyed an interest to a co-grantee who is not an NMD. The deed of gift states, in pertinent part, as follows:\\n. . . I, DOLORES Rapaito, . . . sole and legal owner of a real estate property situated in . As Falipe, Saipan, . . for and in consideration of natural love and affection which I have and bear unto my cousin-in-law, [Manglona], and my niece, [Sab\\u00edan], . . . also for the better maintenance, support, and protection of their livelihood, do hereby give, grant, alien, and confirm unto [Manglona and Sab\\u00edan], their heirs and assigns, in fee simple, all that certain piece of parcel of land . .\\n\\nTO HAVE AND' TO HOLD . . . with all the rights, title, interest and claim thereto, as well as all improvements, easements, hereditaments and appurtenances thereunto belonging to the said [Manglona and Sab\\u00edan]\\\" their heirs and assigns. FOREVER.\\nWhether a deed of gift is void ab initio because a co=grantee is not an NMD is an issue of first impression. In addressing this question, we turn to Article XII and the common law.\\nWe first need to examine the deed at issue in this case to determine the type of co-tenancy to Manglona and Sablan. At oral argument, the parties stated that the deed created a tenancy in common as opposed to a joint tenancy. Our examination leads us to conclude that the deed created a tenancy in common.\\nUnder the common law, a deed was presumed to convey to the grantees an estate in joint tenancy, which included the right of survivorship. See generally. 48A C.J.S. Joint Tenancy Sections 5, 10 (1981). Under common law principles, when a deed granted property to more than one grantee, the failure of the grant as to one grantee by reason of his or her incapacity to take did not invalidate the grant as to those who were capable of taking.\\nOver the years, however, most states have enacted statutes limiting estates in joint tenancy and favoring tenancies in common. See, 20 AmJur2d Cotenancy and Joint Ownership Section 11, 27 (1965). Under statutes modifying the common law rule, in order for a deed to convey an estate in joint tenancy, the deed must clearly express an intent to do so. Absent an express intent to create a joint tenancy, the common law as modified by statutes determines that a deed creates a tenancy in common.\\nBy statute, we are required to apply the common law \\\"as expressed in the restatements of the law . . . and, to the extant not so expressed as generally understood and applied in the United States, . in the absence of written law or local customary law to the contrary . . . .\\\" See, 7 CMC Section 3401. The restatements of the law do not tjfeat issues regarding the creation of a co-tenancy, nor does the Commonwealth have written law or local customary law on the subject. We therefore resort to the law of co-tenancy as \\\"generally understood and applied in the United States.\\\"\\nThe common law as now understood and applied in the U.S. favors tenancies in common, unless the deed specifically states otherwise. We are bound by the common law rule as modified by the various state jurisdictions in interpreting the deed at issue in this case. Ada v. Sablan, No. 90-006, 1 N.Mar.I. 164. 169 (N.M.I. Nov. 16, 1990).\\nThe deed, of gift to Manglona and Sablan fails to expressly state the type of co-tenancy estate the grantor intended to create. Therefore, under the common law as understood and applied in the U.S., we conclude that the deed conveyed a tenancy in common to the co-grantees with no right of survivorship. Ada v. Sablan, supra.\\nArticle XII prohibits Mangiona from taking title or interest to the one-half interest in the property conveyed by the deed of gift. Therefore, her one-half interest in the property reverts to Rapaito's estate. That one-half interest then passes via Rapaito's will, if any, to her devisees, or by the laws of intestate succession to her heirs.\\nAs we explained in Aldan Pierce v. Mafnas, No. 89-003 (N.M.I. July 5, 1931) and Ferreira v. Borja, No. 90-047 (N.M.I. Feb.18, 1992) , there can never be a situation where there is an \\\"automatic illegal purpose under Article XII.\\\" Ferreira, slip op. at 16. There must first be an acquisition. Then a court may analyze such acquisition to determine if it violates Article XII. If it makes such a determination, then the acquisition, i.e., transaction, becomes void ab initio.\\nRapaito's devisees or heirs who taka the one-half interest will share a tenancy in common with Sab\\u00edan. Either of these tenants in common, if they wish, may petition the Superior Court for partition of the property to their respective one-half interest in a separate and subsequent proceeding.\\nAppallants argue, however, that Article XII, Section 6 renders void any \\\"transaction\\\" made in violation of Section 1. They argue that the term \\\"transaction\\\" should be construed to mean the \\\"entire\\\" deed of gift, which, being but one transaction, is void.\\nThe term \\\"transaction\\\" is not defined in Article XII or by statute. The U.S. Supreme Court has noted that the term has a \\\"flexible meaning.\\\" Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750, 757 (1926). Although we agree that the deed of gift at issue is technically one transaction in the. sense that it is one instrument, we are not persuaded that the entire deed violates Article XII's restriction on land alienation.\\nArticle XII, Section 1 is the substantive provision which restricts land ownership to persons of NMI descent. Where a parson who is not of NMI descent acquires title through an instrument of conveyance, only that acquisition is prohibited and subject to being declared void ab initio. The term \\\"transaction\\\" means the acquisition by a non-NMD of an illegal interest in real property. That acquisition is the transaction which is void under Article XXI. In this case, the acquisition by Manglona, a non-NMD, is the tr-ansacticm that is void ab initio.\\nThe purpose of Article XII is to restrict land ownership to persons of NMI descent. To hold that the deed, because it is one instrument, constituted one transaction gnd, therefore, should be declared void would be to take a narrow, if not myopic, view of Article XII's purpose: limiting land ownership to NMDs.\\nThe purpose of Article XII would not be defeated, circumvented or compromised if Sablan, an NMD, takes a one-half interest in the property under the deed. Section 6 of Article XII is intended to be the enforcement provision for violations of Section 1. While we agree with appellants that Article XII should be strictly enforced, sea Aldan-Piarce, supra; Ferrera v. Borja, supra, the term \\\"transaction\\\" cannot be construed so that it abrogates a legitimate acquisition by an NMD co-grantee. Our holding also serves to effectuate, to the extent legally possible, the intent of the grantor as expressed in the deed of gift; Sab\\u00edan still takes an interest in the property.\\n2. The Sufficiency of The Evidence\\nAppellants contend that the evidence presented at trial was insufficient to support the judgment quieting title in favor of Sablan. In particular they question the credibility of plaintiffs' witnesses by pointing to apparent inconsistences in the testimonies of those witnesses. During the three-day trial, the trial court had ample opportunity to assess and weigh the various testimonies and determine the credibility of the witnesses. The trial court did so.\\nWe accord particular weight to the trial judge's assessment of conflicting and ambiguous evidence. In Re Estate of Rofag. No. 89-019 (N.M.I. Feb. 22, 1991); Aldan v. Kaipat, 2 CR 190 (D.N.M.I. App. Div. 1985), aff'd. 794 F.2d 1371 (9th Cir. 1986). After reviewing the trial record, we are not satisfied that the trial court clearly erred in its assessment of the evidence presented at trial. The assessment of evidence is a trial function. Unless we are firmly convinced that a mistake was clearly committed below, we will not disturb its assessment. Lucky Development Co., Ltd. v. Tokai U.S.A., Inc., 91-003 (N.M.I. April 20, 1992); In re: Estate of Rofag. No. 89-019 (N.M.I. Feb. 22, 1991). Neither are we satisfied that the evidence as found by the trial court, is insufficient, as a matter of law, to sustain the judgement.\\n3. Adequacy of Factual Findings and Legal Conclusions.\\nAppellants contend that the trial court's Memorandum Decision failed to meet the minimum requirements of Rule 52(a) of the Commonwealth Rules of Civil Procedure. Rule 52(a) states, in part:\\nIn all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, . It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of evidence or appear in an opinion or memorandum of decision filed by the court. . .\\nWe adopt the standard set by the U.S. Court of Appeals of the Ninth Circuit regarding the adequacy of factual findings made by a federal trial court. The standard is whether the findings are explicit enough on the ultimate issue in the case to enable the appellate court to have a clear understanding of the basis of the decision and to determine the grounds on which the trial court reached its decision. Toombs v. Leone, 777 F.2d 465 (9th Cir. 1985); Louie v. United States, 776 F.2d 819 (9th Cir. 1985).\\nIn its decision, the trial court \\\"specially\\\" made these findings of fact: (1) Dolores Rapaito executed a deed of gift to Manglona and Sablan, (2) Rapaito owned the property transferred by the deed of gift, (3) plaintiffs' witnesses were credible, (4) defendants' witnesses were \\\"either not credible or equivocal,\\\" (5) plaintiffs made no misrepresentation and did not exercise undue influence over Rapaito, and (6) Rapaito was competent, and she knowingly and voluntarily executed the deed of gift. The trial court accordingly concluded, as a matter of law, that defendants' \\\"inadequacy of consideration . . . allegation is a non sequitur . . . [because] [i]t is a deed of gift.\\\" The trial court concluded that title \\\"will be quieted in [Sab\\u00edan].\\\"\\nThe decision adequately sets forth the trial court's findings of fact and its conclusions of law on each of the contested issues in the case and provides us with an understanding of the basis of its decision. Toombs v. Leone, 777 F.2d 465; Louie v. United States, 776 F.2d 819. Since the trial court had already ruled that Sablan could legally take title under Article XII, the remaining issues at trial were fairly straightforward: to determine whether the grantor had freely and knowingly executed the deed of gift. The trial court's decision, although quite brief, contains the necessary factual findings to support its conclusion that the grantor knowingly and voluntarily executed the deed. A more detailed factual finding might be helpful, if not enlightening, but not necessary.\\nRule 52(a) does not require a comprehensive factual finding. The contention that the trial court's written decision, because of its brevity and style, is inadequate for purposes of Rule 52(a) is not necessarily correct. So long as the trial judge sets forth the material facts based on the evidence presented as to each of the legal issues raised, and so long as the trial court sets forth its legal conclusions based on such factual findings, Rule 52(a) is satisfied.\\n4. The Admission of Plaintiffs' Exhibit No. 1.\\nAt trial, plaintiffs offered into evidence Exhibit 1, which is a photocopy of the deed of gift executed by Dolores Rapaito on April 14, 1978, in favor of the plaintiffs. Defendants objected to the admission of Exhibit 1 on the grounds that it was not an original, not a certified copy, and not a compared copy. The trial court admitted the copy, ruling that defendants had made a judicial admission of the copy as the deed of gift at issue in paragraph 16 of defendants' answer and counterclaim. On appeal, plaintiffs reiterate the trial court's reasoning and further contend that defendants also made a \\\"judicial admission\\\" by attaching the copy of the deed of gift to their motion for partial summary judgment.\\nVie agree with the trial court's basis for admission, but not the additional reason given by plaintiffs. Plaintiffs attached the copy to their complaint as allowed under Rule 10(c), Com.R.Civ.P. In their answer, defendants affirmed that \\\"[t]he claim of plaintiffs is based on that certain writing, a deed of gift, dated April 14, 1978, .\\\" Defendants did not deny in their answer that the copy represents the actual deed of gift at issue. Under our Rules of Civil Procedure, allegations of a complaint which are not denied by the opposing party are deemed admitted. Rule 8(d), Com.R.Civ.P. For this reason, we hold the trial court did not err when it admitted Exhibit no. 1. Because the copy was deemed admitted at the pleading stage, its admission at trial was merely a formality.\\nWe do not agree, however, that because the deed of gift was attached to their motion for summary judgment, defendants made a judicial admission. Ordinarily, motions are not pleadings. 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d \\u00a7 1190 (1990). Merely because documents are attached in support of, or in opposition to, a motion for summary judgment does not mean that the documents have been judicially admitted.\\n5. The Denial of The Motion for Continuance.\\nDefendants contend that the trial court abused its discretion when it denied defendants' motion for a continuance of the trial date. In its order denying the motion, the trial court correctly applied the four-factor test governing continuance we set forth in Guerrero v. Guerrero, No. 90-013 (N.M.I. Mar. 18, 1991). Upon review of the facts and circumstances of the case, we find the trial court did not abuse its discretion in denying the motion.\\nThe trial court found that \\\"[t]he sole purported basis for a continuance is to take the depositions of three persons \\u2014 two of whom are the plaintiffs.\\\" Order Denying Motion To Take Matter Off Calendar, at 2. The trial court further found that although defendants had approximately two months to do so, they had \\\"not prepared, served or attempted to serve any notice for depositions [and] [t]here are no assertions the three persons are unavailable.\\\" Id.\\nWe are not satisfied that defendants diligently pursued discovery. Waiting until the eleventh hour to move for a continuance in order to conduct discovery is inexcusable. The fact that the trial court and opposing party may be minimally inconvenienced by a continuance does not mean that a continuance should be granted where, as here, the moving party fails for two months after the trial date was set to even attempt to conduct discovery.\\nAny \\\"harm\\\" which defendants may have suffered as a result of the trial court's denial of a continuance rested with the moving party. To obtain a continuance, the harm which the movant would suffer, if the continuance is not granted, must not be caused by the movant. Guerrero v. Guerrero, supra. Here, the movant had control over, and time to conduct, their discovery agenda.\\nUnder the circumstances presented by this case, we hold that the trial court did not abuse its discretion in refusing to continue the trial date. See, Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940).\\nIY. CONCLUSION\\nThe trial court did not err in denying the defendant's motion for partial summary judgment. However, in ruling on that motion, the court incorrectly held that deed of gift at issue vests title solely in Sab\\u00edan. We hold that Sab\\u00edan takes a one-half undivided interest in the property pursuant to the deed of gift. Manglona's one-half interest, which is void under Article XII, reverts to Rapaito's estate. Rapaito's heirs or devisees, therefore, take the one-half interest in the property as tenants in common with Sab\\u00edan. Either of them may petition the trial court for partition of the land in half.\\nThe judgment of the trial court is hereby REVERSED and REMANDED. There is no need for a new trial. The right of Sab\\u00edan to take already has properly been determined by the trial court at a trial on the matter. On remand, the trial court is to enter a judgment decreeing that the property at issue is owned by Sab\\u00edan and Rapaito's heirs or devisees as tenants in common, each owning an undivided one-half interest therein.\\nDated this 29th day of December, 1992.\\nJOSE S. DELA CRUZ, Chief Justice\\nRAMON G. VILLAGOMEZ, Associate Justice\\nJESUS C. BORJA, Associate Justice\\nTn its decision, the trial court did not reach the issue of co-tenancy because it determined that Manglona's interest in the property was void from the outset, and therefore the deed of gift passed title solely to Sablan. Under this logic, the issue of co-tenancy does not arise.\\nSee, McCord v. Bright, 87 N.E. 654, 657 (Ind.App. 1909)(\\\"If an estate is limited to two jointly - the one capable of taking, the other not - he who is capable shall take the whole . . . . .\\\") See also, 26 C.J.S. Deeds Section 13.\\n\\\"These statutes most commonly provide in effect that all grants, devises, or transfers of property made to two or more persons shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy, or, under seme of the statutes, unless the instrument clearly discloses an intent to creat Isicl a joint tenancy,\\\" 20 AmJur2d Cotenancy and Joint Ownership Section 11 (1965)(emphasis added).\\nA right of survivorship may attach to a tenancy in common only where such an intent is expressed in the deed. See, 1 ALR 247, \\\"Creation of right of survivorship by instrument ineffective to create estate by entireties or joint tenancy.\\\" The deed at issue makes no mention of a right to survivorship.\\nWe do not hold or imply that the defendants/appellants to this action are necessarily the only, or at all, the heirs or devisees of Rapaito. Indeed, Mrs. Rapaito may have other heirs who are eligible to take an interest in the property. But that issue is not before us.\\nAppellants also suggest that this Court should treat the term \\\"transaction\\\" as having \\\"at least as broad a meaning as the same term\\\" used in Rule 13(a), Com.R.Civ.P. That rule requires a party to bring its counter- or cross-claim in an action if such \\\"arises out of the transaction\\\" which is the subject matter of the lawsuit. As one courS noted, for purposes of Rule 13(a), a \\\"transaction\\\" means all facts which constitute the foundation of a claim. Cantrell v. City of Caruthersville, 221 S.W.2d 471, 474. Certainly, appellants' counterclaim arose out of the deed. Rule 13(a) is strictly a rule of procedure, not substantive law, and therefore does not adequately define the term \\\"transaction\\\" for purposes of Article XII.\\n\\\"The court finds the testimony of the plaintiff's witnesses to be credible. The witnesses for the defendants were either not credible or equivocal.\\\" Memorandum Decision at 2.\\nRegarding a trial court's fact-finding, one authority writes:\\nThe court need only make brief, definite, and pertinent findings and conclusions upon contested matters. . . In preparing his findings, the trial judge is not required to assert the negative of each rejected contention as well as the affirmative of those he finds to be correct.\\n9 C. Wright and A. Miller, Federal Practice and Procedure Section 2579 at 711-12 (West 1971).\\nThe U.S. Supreme Court has held that the trial court should support its determinations with \\\"findings, in such detail and exactness as the nature of the case permits, of subsidiary facts on which the ultimate conclusion of fairness can rationally be predicated.\\\" Kelley v. Everglades Drainage Dist., 319 U.S. 415, 420, 63 S.Ct. 1141, 1144, 87 L.Ed. 1485 (1943). Thus, what facts need to be included in the trial court's decision depends upon the nature and complexity of the case. A complex case involving, say, matters of tax law, may require fact-finding which is relatively specific as compared to another case in order to comply with Rule 52(a). See, Synder v. United States, 674 F.2d 1359 (10th Cir. 1982)(complex nature of tax issues required detailed findings in court's decision in order to comply with Rule 52(a)).\\nAppellees correctly note that Rule 52(b) allows a party, within ten days of the entry of judgment, to move the trial court to \\\"amend its findings or make additional findings.\\\" Appellees state, without more, that appellants did not lodge such a motion. (Brief of appellees at 14.) Even so, we do not believe that a party's failure to make a motion under Rule 52(b) somehow hinders it from asserting on appeal that the decision does not comply with Rule 52(a). Nor is such a failure dispositive of the issue.\\nRule 10(c), Com.R.Civ.P. states, in part, that \\\"(a) copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.\\\"\\nIt is clear from the record that defendants desired a continuance as early as the date on which the trial court established the trial date. See. Notice of Trial dated April 23, 1991.\\nAppellants allege the trial court erroneously concluded that \\\"there is no evidence the defendants did not have time to take the depositions\\\" because appellants had submitted declarations to the trial court \\\"setting forth other ccmmitments, some of which arose unexpectedly after the court's order of April 23, 1991 [which scheduled the trial date].\\\" Brief of appellants at 46. However busy counsel may be, we will not rule that a mere busy schedule, by itself, is grounds for a continuance.\"}"

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+"{\"id\": \"1696211\", \"name\": \"LUCKY DEVELOPMENT CO., LTD., Plaintiff, vs. TOKAI, U.S.A., INC., Defendant/Appellee, and ANTONIO M. ATALIG, Appellant\", \"name_abbreviation\": \"Lucky Development Co. v. Tokai, U.S.A., Inc.\", \"decision_date\": \"1992-04-20\", \"docket_number\": \"CIVIL ACTION NO. 90-828\", \"first_page\": 79, \"last_page\": \"100\", \"citations\": \"3 N. Mar. I. 79\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"LUCKY DEVELOPMENT CO., LTD., Plaintiff, vs. TOKAI, U.S.A., INC., Defendant/Appellee, and ANTONIO M. ATALIG, Appellant.\", \"head_matter\": \"April 20, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nLUCKY DEVELOPMENT CO., LTD., Plaintiff, vs. TOKAI, U.S.A., INC., Defendant/Appellee, and ANTONIO M. ATALIG, Appellant.\\nAPPEAL NO. 91-003\\nCIVIL ACTION NO. 90-828\\nArgued October 18, 1991\\nCounsel for Appellant: Theodore R. Mitchell P. O. Box 2020 Saipan, MP 96950 and Miguel S. Demapan Demapan and Atalig P. O. Box 1638 Saipan, MP 96950\\nCounsel for Defendant/ Appellee: David R. Nevitt Donald C. Williams Marcia K. Schultz Carlsmith Ball Wichman Murray Case Mukai & Ichiki P. O. Box 241 CHRB Saipan, MP 96950\", \"word_count\": \"4634\", \"char_count\": \"27171\", \"text\": \"OPINION\\nBEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and BORJA, Justices.\\nBORJA, Justice:\\nFACTS\\nPlaintiff, Lucky Development Co., Ltd. (hereafter Lucky) sued Tokai, U.S.A., Inc. (hereafter Tokai) and other defendants alleging seven causes of actions. The first cause of action sought a declaratory judgment upholding the validity of a Conditional Lease Agreement (hereafter CLA) between Lucky and Antonio Guerrero (hereafter Guerrero). The second cause of action was for specific performance. The third was for breach of contract. The fourth was for fraud. The fifth was for a violation of the Consumer Protection Act and for unfair business practice. The sixth was for intentional interference with contract relations. The seventh was for interference with economic relations.\\nThe first cause of action mentioned Tokai but did not seek specific relief against it. The fifth, sixth, and seventh counts sought specific relief against Tokai.\\nTokai moved to dismiss the case under Rule 12(b)(6), Com.R.Civ.P. In addition, it sought sanctions under Rule 11, Com.R.Civ.P. The motion to dismiss became moot by the filing of an amended complaint by Lucky's subsequent counsel. The trial court imposed Rule 11 sanctions against Lucky's former counsel, Antonio Atalig (hereafter Atalig), on November 9, 1990. On December 19, 1990, the trial court assessed sanctions in the amount of $3,640. Atalig filed a notice of appeal on January 18, 1991, appealing both the November 9 and December 19 orders.\\nISSUE PRESENTED\\nThe issue for review is whether the Superior Court abused its discretion in its Order, dated November 9, 1990, (hereafter Order) imposing Rule 11 sanctions.\\nSTANDARD OF REVIEW\\nwe adopt and approve the standard of review for rulings on Rule 11 as stated in Cooter & Gell v. Hartmarx Corp., 110 S.Ct. 2447 (1990), and Townsend v. Holman Consulting Corp., 914 F.2d 1136 (9th Cir. 1990). Appellate review of an imposition of Rule 11 sanctions is made under an abuse of discretion standard. However, as noted in the above two cases, it would be an abuse of discretion if a court based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.\\nANALYSIS\\nAt oral argument, counsel for Atalig noted to the Court certain concerns that he thought the Court should be aware of. Neither Atalig's initial counsel nor appellee Tokai had raised any of these concerns in their briefs.\\nFirst, he noted that the notice of appeal may not be timely filed with regard to the November 9, 1990, order. Second, he explained that Atalig's brief asserted that the issue on appeal was only with regard to the \\\"November 19, 1990,\\\" order. Third, he wished to raise the issue of whether the imposition of sanctions was null and void because the trial judge later disqualified himself on the ground that his impartiality might reasonably be questioned. 1 CMC \\u00a7 3308(a) and Canon 3(C)(a), Code of Judicial Conduct.\\nWe will address all the additional concerns because the first two deal with our jurisdiction and the third deals with the important consideration of public confidence in the integrity of the judicial process. We will address all the three additional concerns of Atalig before we address the issue stated in the brief.\\nFiling of Notice of Appeal\\nThe order imposing sanctions issued on November 9, 1991. The order setting the amount of the sanctions issued on December 19, 1991. The notice of appeal was filed on January 18, 1991. The question arises whether this Court has jurisdiction to hear an appeal regarding the November 9, 1991, order since more than 30 days have elapsed. Atalig acknowledges, and the Court agrees, that there is no problem concerning the timely filing of the notice of appeal regarding the December 19, 1991, order. The issue is whether this Court has jurisdiction to entertain an appeal dealing with the November 9, 1991, order.\\nWe hold that the January 18, 1991, notice of appeal timely invoked the jurisdiction of this Court with regard to both the November 9, 1991, and December 19, 1991, orders. The November 9 order imposed sanctions. The November 9 order did not become final until the court determined the amount of the sanctions in its December 19 order.\\nIf we were to rule otherwise, it is conceivable that needless appeals might be filed just to preserve the right. An appeal might not be filed if a later order determining the amount issued in a nominal sum of money. In addition, such a rule would contravene the finality rule set out in Commonwealth v. Hasinto, No. 90-033, 1 N.Mar.I. 179 (Oct. 15, 1990).\\nIssue on Appeal\\nThe January 18, 1991, notice of appeal states that it is appealing the November 9, 1990, and December 19, 1990, orders. It does not specify the issues. In his brief, Atalig stated that the issue on appeal was the appropriateness of the order of \\\"November 19, 1990.\\\"\\nIf one were to conclude that the word \\\"November\\\" was a typographical error and Atalig meant \\\"December 19, 1990,\\\" then the question is whether Atalig adequately preserved his right to appeal the November 9 imposition of sanctions. An argument could be made that since he was appealing only the December 19, 1990, order, he was only appealing the amount of the sanctions and not the imposition.\\nOn the other hand, if the error was in the number \\\"19,\\\" and Atalig meant \\\"November 9, 1990,\\\" then there would be a problem as to the timeliness of the appeal if we held that the 30 day limit starts to run from the November 9, 1990, order. Since we have held that the 30 day appeal period starts to run from December 19, 1990, this is no longer an issue.\\nIf the error was in the word \\\"November,\\\" we hold that such error was of no consequence. Atalig's brief clearly conveys the message that he is arguing against the November 9 imposition of sanctions. He does not argue that the amount determined on December 19 was excessive. He argues that he should not have been sanctioned at all.\\nClearly, the typographical error concerned the use of the number \\\"19.\\\" And as we have already held, he timely invoked the jurisdiction of this Court as to the November 9, 1990, order.\\nDisqualification\\nAtalig was sanctioned by the trial judge. After he was sanctioned, Lucky hired Theodore R. Mitchell (hereafter Mitchell) to continue with the prosecution of the case. Mitchell sought recusal of the trial judge on the ground that his impartiality might reasonably be questioned since he was represented by the same counsel for Tokai in another lawsuit. The trial judge recused himself.\\nSince the trial judge recused himself on grounds that existed since the time he imposed the sanctions, are the sanction orders null and void? Our answer is no.\\nWhen the original complaint was filed, up to the time that the sanctions were imposed, Atalig knew, or should have known, of the disqualifying facts later brought out by Mitchell. Yet he did not move to disqualify. In addition, we deem the disqualifying facts in this case to be insubstantial for purposes of vacating an existing order.\\nThe case of Liljeberg v. Health Services Acquisition Corp., 108 S.Ct. 2194 (1988), cited by Atalig at oral argument, is distinguishable. That case involved a judgment of a trial court in which the trial judge had a substantial interest in the outcome of the case. The factual basis for the ground for disqualification was substantial. In addition, the trial judge in that case refused to recuse himself after such a motion was made. The U. S. Supreme Court found the failure to recuse inexcusable, again, because of the factual basis for the disqualification.\\nIn this case, the trial judge does not have a substantial interest in the outcome of the case. The ground for disqualification was the fact that counsel for Tokai was also cpunsel for the trial judge in an unrelated matter. This ground for disqualification is not substantial for purposes of vacating an existing order. Furthermore, as noted above, Atalig did not seek the recusal of the trial judge.\\nThere is no need to address the question of whether the trial judge's failure to recuse himself on his own motion was inexcusable. We hold that existing orders and/or judgments in a case such as this will not be vacated due to a later disqualification unless the factual basis of the ground for disqualification is substantial and the failure to recuse is inexcusable.\\nThe Stated Issue on Appeal\\nRULE 11\\nRule 11, Com.R.Civ.P., in pertinent part, states that\\nThe signature of any attorney or party constitutes a certificate by him that he had read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\nRule 11, Com.R.Civ.P., is almost identical to our Rule 38(b), R.App.Proc. We have interpreted R.App.Proc. 38(b) in Tenorio v. Superior Court, No. 89-002, 1 N.Mar.I. 12 (Mar. 19, 1990). It would, therefore, be helpful to look at the Tenorio case for guidance.\\nIn Tenorio. we held that\\nSanctions may be imposed under [rule 11] if a document is'not well grounded in fact. An objective reasonableness test is used to determine whether an adequate prefiling inquiry has occurred. The circumstances of each case are considered, including the time available for prefiling information. Furthermore,' a document is riot well grounded in fact if any attorney has misrepresented the evidence.\\nSanctions may also be imposed under [rule 11] if a document is not well grounded in law. A positiori is warranted by existing law if it is supported by a non-frivolous legal argument. A legal argument is non-frivolous if it is likely to succeed on the merits or if reasonable persons could differ as to the likelihood of its success on the merits* A good faith argument for a change of existing law may also be advanced. An objective reasonableness test includes analysis of whether the document candidly acknowledges the current adverse law and argues for a change in existing law.\\nFinally, sanctions may be imposed under [rule 11] if a document is interposed for an improper purpose. Even a document well grounded in fact and law can violate this rule if there is evidence of the signer's bad faith. Whether a signer acted with an improper purpose is judged under an objective standard.\\nId., slip op. at 9-11, 1 N.Mar.I. at 16. (Citations omitted.)\\nThe trial court's order found, based on the complaint and the exhibits, that Atalig was privy to most, if not all, of the events leading up to the filing of the complaint. The factual basis for the complaint was essentially the personal knowledge of Lucky's attorney, Atalig. There was little, if any, reliance on the client for prefiling inquiry. Order, at 3-4. In addition, the trial court found that \\\"the factual basis of the pleading can be ascertained with a high degree of certainty because it rests primarily on written documents - some of which were prepared by the attorney filing the complaint.\\\" Order, at 4. The court found that all the allegations prior to the fifth cause of action had nothing to do with Tokai. All the paragraphs did was to show that Tokai leased the property from Victorino N. Igitol (hereafter Igitol) on April 20, 1990, knowing that Antonio Guerrero had executed the conditional lease agreement with Lucky on February 27, 1990. Order, at 6.\\nThe trial court found the fifth cause of action \\\"a classic, clear cut case of a pleading which is legally unreasonable (and totally unsupportable) and without factual foundation.\\\" Order, at 8. In addition, the trial court noted that the declaration filed by Atalig in opposition to the motion for sanctions does not explain how the Consumer Protection Act applies to Tokai or if the theory espoused is warranted by existing law or a good faith extension of that law. Order, at 9.\\nThe trial court is correct on this point. Atalig's argument that this count is \\\"debatable\\\" is a conclusion without any support. He does not state how it is debatable. From just looking at the former \\u00a7 5103, it is difficult to see how Tokai could be seen as conducting trade or commerce. The term trade or commerce is defined in former \\u00a7 5102(b) as \\\"the advertising, offering for sale, sale, or distribution of . . . any property . . . .\\\" The factual allegations in the complaint do not state how Tokai was advertising, offering for sale, selling, or distributing the lot when it leased the land from Igitol.\\nAtalig did not show, or attempt to show, m his brief how he has a legally plausible theory under the sixth and seventh counts. Normally, we will consider an issue as waived or abandoned if it is not argued. Ratcliff v. Security Nat. Bank, 670 P.2d 1139 (Alaska 1983); Cardin v. Morrison-Knudsen, 603 P.2d 862 (Wyo. 1979). However, in this particular case, we will independently review the sixth and seventh causes of action because we believe that the trial court was clearly wrong on its statement of the law that an enforceable contract is a crucial element for the tort of intentional interference with contract relations and economic relations. The fact that Atalig does not offer much legal analysis of the issues involved does not prevent this Court, in its discretion) from reaching these issues. Ratcliff v. Security Nat. Bank, supra, at 1141 n.4. Contentions raised on appeal that are unsupported by relevant argument will be considered if well-taken on their face. Griffin v. Dept. of Social & Health Services, 590 P.2d 816, 822 n.1 (Wash. 1979); Whatcom County v. Kane, 640 P.2d 1075 (Wash. App. 1982).\\nOur independent review of the sixth and seventh causes of action in the original complaint lead us to conclude that no sanctions are warranted.\\nThe laws on interference with contract relations and with economic relations in the Commonwealth are as expressed in the restatements of the law.\\nAs noted by the trial judge in his Order, the applicable restatement provision is the Restatement (Second) of Torts \\u00a7 766 (1979). This section states that:\\nOne who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.\\nThe trial court ruled that a \\\"valid\\\" contract is needed for these torts. According to W. Prosser, Law of Torts 931 (4th ed. 1971) (hereafter Prosser), the question of the validity of a contract goes to whether the contract is illegal or contrary to public policy. There is nothing in the record that suggests that the CLA, or the option that Guerrero had from Igitol, was illegal or contrary to public policy.\\nThere is no requirement to have an enforceable contract, or a contract that is not voidable, for the tort of interference with performance of contract. According to Comment f of Section 766 of the Restatement (Second) of Torts,\\nIt is not, however, necessary that the contract be legally enforceable against the third person. A promise may be a valid and subsisting contract even though it is voidable. (See Restatement, Second, Contracts \\u00a7 13) [now \\u00a7 7 in the 1981 edition]. The third person may have a defense against action on the contract that would permit him to avoid it and escape liability on it if he sees fit to do so. Until he does, the contract is a valid and subsisting relation, with which the actor is not permitted to interfere improperly. Thus, by reason of the statute of frauds, formal defects, lack of mutuality, infancy, unconscionable provisions, conditions precedent to the obligation or even uncertainty of particular terms, the third person may be in a position to avoid liability for any breach. The defendant actor is not, however, for that reason free to interfere with performance of the contract before it is avoided.\\nSee also Prosser at 932.\\nAccording to Restatement (Second) of Contracts \\u00a7 7 (1981),\\nA voidable contract is one where one or more parties have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance.\\nIn section 8 of the same restatement, it is stated that,\\nAn unenforceable contract is one for t.ha breach of which neither the remedy of damages nor the remedy of specific performance is available, but which is recognized in soma other way as creating a duty of performance, though there has been no ratification.\\nAs shown in Comment f of the Restatement (Second) of Torts \\u00a7 766, for purposes of the tort of interference with performance of contract, it is not a requirement that there exist an enforceable contract, or a contract that is not voidable.\\nThe original complaint, under which sanctions were imposed, gave reasonable notice to Tokai of Lucky's basis for its sixth and seventh claims.\\nParagraph 12 of the original complaint alleges that Lucky and. Guerrero executed on February 27, 1990, a Conditional Lease\\nAgreement, and attached a copy of the CLA as Exhibit D. Paragraph 13 alleges that an Addendum to the CLA was executed, and attached a copy as Exhibit E. There is an allegation that both documents were recorded. In Paragraph 16, it is alleged that Igitol executed an Agreement to Lease to Tokai on April 20, 1990, on the same piece of property. Paragraphs 17 and 18 allege that Tokai and Igitol knew of the CLA on or before April 20, 1990. It is alleged in Paragraph 19 that Atalig notified Guerrero in writing on May 4, 1990, about the April 20, 1990, Agreement to Lease. In Paragraph 20, it is alleged that Guerrero executed a Quitclaim Deed to Igitol involving the same property. Further down the original complaint, in Paragraph 36, it is alleged that Guerrero had an option to purchase the property from Igitol.\\nExhibit D to the original complaint is the CLA. This document stated that Guerrero was to get $1,000 down, 5+ million dollars upon execution of a lease, with the balance of 2+ million dollars to be paid in installments. Exhibit E to the original complaint is the Addendum. This document changed the terms of payment to $1,000 down, 2+ million dollars upon execution of a lease, with the balance of 5+ million dollars to be paid in installments. This document also changed the requirement as to Lot B. The CLA originally stated that Lucky had the option to lease Lot C, with or without Lot B. The Addendum changed this option and stated that another CLA had to be executed with regard to Lot B.\\nExhibit F to the original complaint is the Agreement to Lease between Igitol and Tokai. This document shows that Igitol is to receive $900,000+ down, with the balance of 9+ million dollars upon closing, which would be 45 days after a good title report.\\nThe trial judge's order stated that the CLA made Lucky's lease contingent upon Guerrero acquiring a CLA to Lot B. The order noted that Guerrero did not have any control over the disposition of Lot B. He found that Guerrero never owned or had any right to lease Lot B to Lucky. Therefore, the trial judge concluded that the seventh cause of action was devoid of merit. However, these are facts that would permit Guerrero to avoid the contract with Lucky if and when Lucky sought action on the contract. But as stated in the restatement, \\\"Until he does, the contract is a valid and subsisting relation, with which the actor is not permitted to interfere.\\\" Restatement (Second) of Torts \\u00a7 766, Comment f.\\nThe allegations and exhibits would reasonably give notice to Tokai that it may be liable to Lucky for the torts of interference with contract and with economic relations. Atalig pled with sufficient particularity facts that reasonably could support the elements of these alleged torts of interference. Restatement (Second) of Torts \\u00a7 766. This is particularly so in light of our decision herein that an enforceable contract is not a crucial element of the torts of interference with contract or economic relations. Consequently, Atalig cannot be sanctioned merely for pleading, however unartfully, causes of action which are legally plausible.\\nAlthough the sixth and seventh original claims were deleted when the first amended complaint was filed, this fact does not support Tokai's argument that Lucky had no basis for the two causes of action. The deletions were made by a different attorney. Why the subsequent attorney made the deletions are not on the record. Even if the reasons were on the record, we would not be bound to such reasons. We would still evaluate the original complaint independently in our review of the sanctions imposed.\\nFees and Costs on Appeal\\nTokai requests fees and costs under Rule 38, R.App.Proc. It does not specify whether it seeks fees and costs under subsection (a) or (b) . We assume that it seeks fees and costs under subsection (a) because it argues that the appeal was frivolous. It contends that Atalig provided \\\"no soiind reasons for appeal,\\\" and\\n\\\"the Record on Appeal was not timely filed.\\\"\\nAlthough Tenorio v. Superior Court, supra. specifically dealt with Rule 38(b), we noted in that case that, \\\"Sanctions are imposed under [Rule 38(a)] for many of the reasons that sanctions are imposed under [Rule 38(b)].\\\" Id., n.5 at 9. (Citation omitted.) As such, we will be guided by the analysis in the Tenorio case.\\nWe agree that the appeal on the imposition of sanctions as to the fifth causa of action was frivolous. We do not see how Tokai could have violated the Consumer Protection Act as alleged in the complaint. This cause of action is not well grounded in law. It is not supported by any valid legal argument. As noted earlier, there is no basis for the legal argument that Tokai was conducting trade or commerce when it entered into a lease agreement with Igitol. An imposition of single costs and reasonable attorney's fees will be assessed as to this cause of action.\\nRule 38(a) states that an award of damages and costs and fees may be made if the appeal is frivolous. We hold that this does not mean that the entire appeal must be frivolous before we are able to impose sanctions. We have the discretion to impose damages and/or costs and/or reasonable attorney's fees as to each issue on appeal.\\nCONCLUSION\\nBased on the above, we AFFIRM as to the sanctions for the fifth cause of action, and REVERSE as to the sixth and seventh causes of action. The case is REMANDED to allow the trial court to re-determine the amount of sanctions based only on the fifth cause of action.\\nTokai is awarded single costs and reasonable attorney's fees against both Atalig and his initial counsel on appeal, Miguel S. Demapan, equally, for the filing of a frivolous appeal as to the fifth count. Tokai shall file and serve its request for costs and reasonable attorney's fees as to the fifth count within 30 days from the date of this opinion. The costs, and attorneys' fees shall be separately filed, itemized, and verified. Atalig and Miguel S. Demapan shall have 14 days from the date of receipt of the request for costs and attorneys' fees to file and serve objections.\\nJose S. Dela Cruz Chief Justice\\nRamon G. Villagomez Justice\\nJesus C. Borja Justice\\nAtalig notified this Court that his counsel for oral argument would be different from his counsel who prepared the brief.\\nThe Court notes that its use of the word \\\"final\\\" is only as to the issue of sanctions. We do not imply that the December 19, 1990, order was the final order as to the merits of the case. The December 19 order was final under the collateral order doctrine, enunciated in Commonwealth v. Hasinto, No. 90-033, 1 N.Mar.I. 179 (Oct. 15, 1990).\\nThe trial court judge was a member of Loyola University's Board of Trustees \\\"while Liljeberg was negotiating with Loyola to purchase a parcel of land on which to construct a hospital. The success and benefit to Loyola of these negotiations turned, in large part, on Liljeberg prevailing in the litigation before Judge Collins.\\\" 108 S.Ct. at 2197. Judge Collins ruled in Liljeberg's favor.\\nWe note that Atalig's citations to the Consumer Protection Act refer to the old law that was adopted from the Trust Territory Code. That Consumer Protection Act was amended by P.L. No. 6-46, effective February 2, 1990, and the section numbers were rearranged. Atalig should have cited to the new section numbers to minimize confusion. However, he had no plausible argument as to how the law, in its original version or in its amended version, applied to Tokai.\\nTo say that allegations in a complaint are debatable is not an argument. It is a conclusion that must be supported by legally plausible arguments.\\nIn the absence of written law or local customary law to the contrary, the rules of the common law as expressed in the restatements of the law, approved by the American Law Institute, or as generally understood and applied in the United States if they are not so expressed are the rules of decision in the courts of the Commonwealth. 7 CMC \\u00a7 3401.\\n(a) If this Court determines that an appeal is frivolous, it may award just damages and single or double costs to the appellee, including reasonable attorney's fees.\\n(b) Every brief, motion, and any other pleading of a party represented by an attorney shall be signed by aiv attorney or record. A party who is not represented by an attorney shall sign the same. The signature of an attorney or party constitutes a certification by the signer that the signer has read the brief, motion, or any other pleading; that to the best of the signer's knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law (or a good faith argument for the amendment or repeal of existing law can be made) and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay, or needless increase in the cost of litigation. If a brief, motion, or any other pleading is signed in violation of this rule, the Court, upon motion or upon its own initiative, shall impose upon the signer, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the brief, motion, or any other pleading, including a reasonable attorney's fee.\"}"

n_mar_i/1696215.json

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+"{\"id\": \"1696215\", \"name\": \"CARMEN K. OLOPAI, RITA K. BILLY, MAXIMINO K. TAITANO, SERAFINA K. NAOG, and JULIAN K. TAITANO, Plaintiffs/Appellants, vs. LARRY L. HILLBLOM, ROGER GRIDLEY, KIM BATCHELLER, JACK D. LAYNE, REALTY TRUST CORPORATION, SAN ROQUE BEACH DEVELOPMENT COMPANY, LTD., Defendants/Appellees\", \"name_abbreviation\": \"Olopai v. Hillblom\", \"decision_date\": \"1993-05-03\", \"docket_number\": \"CIVIL ACTION NO. 92-948\", \"first_page\": 528, \"last_page\": \"534\", \"citations\": \"3 N. Mar. I. 528\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ, Justice, and CRUZ, Special Judge.\", \"parties\": \"CARMEN K. OLOPAI, RITA K. BILLY, MAXIMINO K. TAITANO, SERAFINA K. NAOG, and JULIAN K. TAITANO, Plaintiffs/Appellants, vs. LARRY L. HILLBLOM, ROGER GRIDLEY, KIM BATCHELLER, JACK D. LAYNE, REALTY TRUST CORPORATION, SAN ROQUE BEACH DEVELOPMENT COMPANY, LTD., Defendants/Appellees.\", \"head_matter\": \"May 3, 1993\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nCARMEN K. OLOPAI, RITA K. BILLY, MAXIMINO K. TAITANO, SERAFINA K. NAOG, and JULIAN K. TAITANO, Plaintiffs/Appellants, vs. LARRY L. HILLBLOM, ROGER GRIDLEY, KIM BATCHELLER, JACK D. LAYNE, REALTY TRUST CORPORATION, SAN ROQUE BEACH DEVELOPMENT COMPANY, LTD., Defendants/Appellees.\\nAPPEAL NO. 93-004\\nCIVIL ACTION NO. 92-948\\nArgued and Submitted March 22, 1993\\nCounsel for Plaintiffs/Appellants: Theodore R. Mitchell Jeanne H. Rayphand P.O. Box 2020 Saipan, MP 96950\\nCounsel for Defendant/Appellee: Larry L. Hillblom Richard Pierce P.O. Box 222 CHRB Saipan, MP 96950\\nCounsel for Defendants/Appellees: Roger Gridley, Kim Batcheller, Jack D. Layne, and Realty Trust Corporation Marcia K. Schultz P.O. Box 5241 Saipan, MP 96950\\nCounsel for Defendant/Appellee: San Rogue Beach Development Co., Ltd. Michael W. Dotts P.O. Box 1969 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ, Justice, and CRUZ, Special Judge.\", \"word_count\": \"1380\", \"char_count\": \"8597\", \"text\": \"OPINION\\nVILLAGOMEZ, Justice:\\nPROCEDURAL BACKGROUND\\nThis is an appeal of an order disqualifying the law office of Theodore R. Mitchell from representing the plaintiffs. The Superior Court disqualified Mitchell and his firm because he had previously represented defendants Larry L. Hillblom and San Roque Beach Development Company with respect to the same land that is at issue in this case. In addition, the court found that Mitchell represented Hillblom in a separate land lease transaction in Palau at the time Mitchell filed the complaint in this case.\\nUpon filing this appeal, plaintiffs sought in Superior Court a stay of the disqualification order. On February 22, 1993, the Superior Court denied the request for stay. In the Superior Court's opinion and order denying the stay, the court alluded that the Supreme Court does not have jurisdiction to hear an interlocutory appeal of a disqualification order.\\nThis Court has jurisdiction over final judgments and orders of the Superior Court. CNMI v. Hasinto, Nos. 90-033 & 90-034, 1 N.Mar.I. 179, 180-82 (1990). An exception to the \\\"finality\\\" rule is the collateral order doctrine we adopted in Hasinto. In that case, we noted a three-prong test and stated that:\\nAt a minimum, to come within the collateral order exception to the final judgment rule, the order sought to be appealed must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.\\nId. at 181 n. 6. (Citation omitted).\\nThe Superior Court concluded that, because the order was not final and does not fall within the collateral order doctrine, an immediate appeal cannot lie.\\nThe appellees have moved to dismiss the appeal taken on the basis that we do not have jurisdiction. The issue of whether we have jurisdiction to entertain an appeal is one we must determine ourselves.\\nANALYSIS\\nIn CNMI v. Guerrero, No. 93-006 (N.M.I. Feb. 18, 1993), we held that a pre-trial order disqualifying defendant's attorney, in a criminal case, is not a final judgment or order, nor does it fall within the collateral order exception so as to be immediately appealable. Following the U.S. Supreme Court's reasoning in Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed. 2d 288 (1984), we dismissed the appeal for lack of jurisdiction.\\nAfter the Flanagan decision, the U.S. Court of Appeals for the District of Columbia Circuit was confronted with a similar issue, but in a civil context. Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (1984). On appeal to the D.C. Circuit, the court distinguished the case from Flanagan, a criminal case, and concluded that an order disqualifying an attorney in a civil case may be appealed immediately under the collateral order exception to the final judgment rule. On further review, the U.S. Supreme Court disagreed and held that the disqualification of an attorney in a civil case neither constitutes a final order for purposes of an immediate appeal nor falls within the collateral order exception. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 2766-67, 86 L.Ed 2d 340 (1985).\\nThe plaintiffs in this case urge us to adopt the position of the dissenting opinion in Koller, which is in line with the rationale taken by the D.C. Circuit. The defendants, on the other hand, urge us to adopt the majority opinion of the U.S. Supreme Court.\\nWe have reviewed the Koller opinions of the D.C. Circuit and the U.S. Supreme Court. Both raised concern over the prejudicial effect an attorney disqualification may have upon the course of the trial and whether that should be a factor in determining whether the disqualification order is erroneous. The U.S. Supreme Court differs with the D.C. Circuit on the issue of whether subsequent prejudice at trial has to be shown in order to have a disqualification order in a civil case reversed.\\nThe D.C. Circuit states: \\\"Only an erroneous disqualification combined with prejudice at trial could conceivably result in outright reversal of a civil judgment.\\\" The U.S. Supreme Court, in contrast, states: \\\"This Court has never held that prejudice is a prerequisite to reversal of a judgment following erroneous disqualification of counsel in either criminal or civil cases.\\\" Koller, 105 S.Ct. 2765. The U.S. Supreme Court then concluded by reiterating that it \\\"has expressly rejected efforts to reduce the finality requirement of \\u00a7 1291 to a case-by-case determination of whether a particular ruling should be subject to appeal.\\\" Id. (Citation omitted) . Consequently, \\\"orders disqualifying counsel in civil cases, as a class, are not sufficiently separable from the merits to qualify for interlocutory appeal.\\\"\\nWe choose not to adopt either view. It is our opinion that a disqualification order is either proper or not, at the time it is rendered, based on the facts and circumstances existing. What subsequently happens at trial, after disqualification, does not make the order right or wrong. We recognize, of course, that where a party, whose counsel has been erroneously disqualified, prevails on the merits, there would be no reason to appeal an erroneous disqualification order. On the other hand, where the same party fails on the merits, that party may appeal and obtain reversal based on the erroneous disqualification order, regardless of whether the order prejudiced that party at trial.\\nApplying this view to the case at hand, we conclude that the first two prongs of the collateral order doctrine are met, but not the third. The order conclusively determines the issue of whether plaintiffs' counsel should be disqualified. Hence, it meets the first condition of the doctrine. Also, as the order is either right or wrong at the time that it was rendered, it resolves an important issue completely separate from the merits, and meets the second condition of the collateral order doctrine.\\nHowever, because a determination, after trial, by this Court that the disqualification order is erroneous, would send the case back for a new trial with the disqualified counsel, the order is effectively reviewable following a judgment on the merits. Thus, the third condition of the collateral order doctrine is not met and the disqualification order is not immediately reviewable.\\nCONCLUSION\\nBased on the foregoing analysis, we hold that we have no jurisdiction to entertain this appeal and the same is hereby DISMISSED. Our Mandate shall issue forthwith.\\nDated this 3rd day of May, 1993.\\nJOSE S. DELA CRUZ, Chief Justice\\nRAMON G. VILLAGOMEZ, Associate Justice\\nBENJAMIN J. F. CRUZ, Special Judge\\nKoller v. Richardson-Merrell, Inc., 737 F.2d 1038, 1052 (1984).\\nThe U.S. Supreme Court in Koller noted: \\\"As a matter of professional ethics, however, the decision to appeal should turn entirely on the client's interest. Koller, 105 S.Ct., at 2763.\\nIn this particular case, the record indicates that the motion to disqualify below raised four grounds, but the trial court considered only two. In light of our conclusion that an erroneous disqualification order would send this case back for a new trial, we urge the trial court to consider each and every ground raised in a motion to disqualify and set forth specific findings of fact and conclusions of law as to each of those grounds.\\nWe are also concerned about the small number of practicing attorneys in the CNMI and whether plaintiffs could find substitute counsel willing to take their case. If not, they should be allowed to seek further reconsideration of the disqualification order.\"}"

n_mar_i/1696219.json

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+"{\"id\": \"1696219\", \"name\": \"ABEL R. OLOPAI, on behalf of himself individually and on behalf of the Heirs of Rosa I. Olopai, Plaintiff/Appellee, vs. GREGORIA FITIAL, BENIGNO R. FITIAL, DOMININA F. OLOPAI, PEDRO L. OLOPAI, as individuals and as representatives of the Heirs of Benigno Kapileo, Defendants/Appellants\", \"name_abbreviation\": \"Olopai ex rel. Heirs of Olopai v. Fitial\", \"decision_date\": \"1992-04-24\", \"docket_number\": \"CIVIL ACTION NO. 90-289\", \"first_page\": 101, \"last_page\": \"109\", \"citations\": \"3 N. Mar. I. 101\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices\", \"parties\": \"ABEL R. OLOPAI, on behalf of himself individually and on behalf of the Heirs of Rosa I. Olopai, Plaintiff/Appellee, vs. GREGORIA FITIAL, BENIGNO R. FITIAL, DOMININA F. OLOPAI, PEDRO L. OLOPAI, as individuals and as representatives of the Heirs of Benigno Kapileo, Defendants/Appellants.\", \"head_matter\": \"April 24, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nABEL R. OLOPAI, on behalf of himself individually and on behalf of the Heirs of Rosa I. Olopai, Plaintiff/Appellee, vs. GREGORIA FITIAL, BENIGNO R. FITIAL, DOMININA F. OLOPAI, PEDRO L. OLOPAI, as individuals and as representatives of the Heirs of Benigno Kapileo, Defendants/Appellants.\\nAPPEAL NO. 91-007\\nCIVIL ACTION NO. 90-289\\nArgued and Submitted February 20, 1992\\nCounsel for Defendants/Appellants Douglas Cushnie P.O. Box 949 Saipan, MP 96950\\nCounsel for Plaintiff/Appellee: Jay Sorensen P.O.- Box 1184 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices\", \"word_count\": \"1779\", \"char_count\": \"10619\", \"text\": \"OPINION\\nVILLAGOMEZ, Justice:\\nI.\\nThe primary issue raised by this appeal is whether the trial court erred in concluding that plaintiff has acquired an easement by prescription over defendants' land. For the reasons set forth below, we vacate the judgment and remand the case for specific findings of fact relative to each of the elements of prescriptive easement.\\nThe second issue raised is whether the trial court abused its discretion by permitting plaintiff to reopen his case after trial. Based on our analysis below, we conclude that the trial court did not abuse its discretion.\\nII.\\nPlaintiff, Abel Olopai (\\\"Abel\\\"), is a co-owner of a parcel of land located on a mountain on Saipan. The land is identified as Lot 1636, containing 8.4 hectares (\\\"Abel's land\\\"). Adjacent to Abel's land are Lots 1816 and E.A. 846, 2 of 2, owned by defendant, Dominina R. Olopai, (\\\"Dominina\\\").\\nAbel presented evidence establishing that there is only one access road leading to his land. That road runs through Dominina's land. He also presented testimony that he and members of his family have traversed Dominina*s land, in order to get to his land, since the 1950s to the present. Dominina presented evidence contradicting the evidence offered by plaintiff regarding the existence and use of a road running through her land.\\nIll\\nAbel's suit against Dominina and the other defendants alleged that on March 9, 1990, the defendants blocked the roadway running through Dominina*s land, depriving him of his prescriptive easement right.\\nAfter an evidentiary hearing on Abel's motion for preliminary injunction, the trial court noted that the testimony of the witnesses was difficult to evaluate because of the extreme versions regarding what did or did not occur. At the same time, it stated that the court was convinced that Abel and his predecessors did plant crops and utilized Abel's land for agriculture purposes for over 20 years. It then concluded that Dominina's land was used for access to Abel's land and granted preliminary injunction. Olopai v. Olopai, Civil Action No. 90-289, Preliminary Injunction at 2 (N.M.I. Super. Ct. 1990).\\nAfter trial, the court issued a decision which stated:\\nThe further testimony and exhibits admitted into evidence at the trial further supports the finding that the plaintiff has used a roadway over and across Lot 1816 for over 20 years and this use has ripened into a prescriptive easement.\\nOlopai v. Olopai, supra. Memorandum Decision at 1.\\nThe week after the trial concluded, Abel moved to reopen the case for the limited purpose of offering evidence which would establish a definitive legal description of the easement as shown on defendant's Exhibit \\\"E.\\\" The trial court granted the motion.\\nIV\\nOn appeal, the defendants contend that the evidence failed to establish the acquisition of a prescriptive easement over Dominina's land because it fails to establish (1) an open and notorious use, (2) a continuous and uninterrupted use over the prescriptive period, (3) a use of a uniform route, (4) a use adverse to Dominina, and (5) that Dominina had knowledge of Abel's claims and use of the land at a time when she was able to assert her ownership right. They point to sections of the record to support their contention.\\nIn response, Abel contends that the evidence overwhelmingly supports the conclusion of the trial court and refers to parts of the record supporting his contention.\\nWe have reviewed the transcript of the trial proceedings and the trial court's preliminary injunction, memorandum decision, and the judgment. Neither the preliminary injunction nor the memorandum decision set forth specific findings of fact relative to each of the elements of a prescriptive easement.\\nV.\\nPrescriptive Easement\\nFor Abel to establish that he has acquired easement by prescription over Dominina's land, he has the burden of establishing by preponderance of the evidence each of the elements of a prescriptive easement. Those elements are:\\n1. Adverse use of the land against the possessory owner.\\n2. The adverse user must act on a claim of right.\\n3. The use must be continuous and uninterrupted for the prescriptive period.\\n4. The use must be open and notorious.\\n5. The use must be with knowledge and acquiescence of the owner.\\n6. The use must generally be confined to one definite and certain line or path.\\nThe trial court concluded that an easement by prescription was established by the evidence. Yet, it failed to set forth specific findings of fact to support its conclusion that the elements of prescriptive easement were met.\\nFor some of the elements, it. may be easy to read the transcript and find supporting evidence. But for others, it may not be so easy. For instance, it may be easy to establish whether a road exists through someone's land, but not so easy to establish whether one traverses another persons' land under claim of right or with the other person's knowledge and acquiescence.\\nWith respect to issues which are difficult to determine, the specific findings of' fact made by the trial court would make our review more pragmatic and meaningful.\\nWithout specific findings by the trial court, we are unable to determine the facts upon which the trial court reached its conclusion that a prescriptive easement was established.\\nRule 52(a), Com.R.Civ.P. states:\\nIn all actions tried upon the facts without a jury . . ., the court shall find the facts specially and state separately its cpnclusions of the law thereon, and judgment shall be entered pursuant to Rule 58; . . . .\\n(Emphasis added.)\\nThe requirement of Rule 52(a) that the trial court find the facts and state its conclusions of law is mandatory and may not be waived. 9 C. Wright & A. Miller, Federal Practice and Procedure, \\u00a7 2574 (1971), Castro v. Castro, No. 89-020 (N.M.I. Oct. 22, 1991).\\nThe purpose of findings of fact is threefold:\\n(1) As an aide in the process of adjudication;\\n(2) For purposes of res judicata and estoppel by judgment; and\\n(3) As an aide to the appellate court on review.\\n5A Moore's Federal Practice \\u00b6 52.06[1] (1989).\\nFindings of fact are required under Rule 52(a) . . . The findings should be so explicit so as to give the appellate court a clear understanding of the basis of the trial-court's decision, and to enable it to determine the ground on which the trial court reached its decision.\\nIrish v. United States, 225 F.2d 3, 8 (9th Cir. 1955).\\nIn view of the difficulty in evaluating the testimony of the witnesses, as stated by the trial court, the trial court should all the more set forth specific findings of fact as to each of the elements of prescriptive easement. Its failure to do so leaves us with no alternative but to remand the case to the trial court to set forth specific findings of fact regarding each of the elements of a prescriptive easement.\\nVI.\\nReopening of the Case.\\nWhether to grant a motion to reopen the case and receive additional evidence is a matter within the discretion of the trial court and would not be disturbed on appeal unless there has been a clear abuse of discretion. 11 C. Wright & A. Miller, Federal Practice and Procedure, \\u00a7 2804 (1973), Keppelman v. Heikes, 245 P.2d 54 (Cal. App. 1952).\\nWe are not convinced that the trial court clearly abused its discretion in this case. The trial court reopened the case for the limited purpose of allowing a surveyor to testify as to the definitive legal description of the road constituting the prescriptive easement. Such description would only augment the survey of the road across Dominina's land which was already in evidence.\\nThe reopening of the case was done promptly and the taking of additional testimony was not lengthy. The evidence adduced at the reopening was helpful for the court. The defendants were not prejudiced by the reopening, and the reason for not presenting the evidence at the trial did not stem from any negligence or misconduct on the part of plaintiff or his counsel.\\nVII.\\nThe judgment (but not the preliminary injunction) of the trial court is hereby VACATED and the case is REMANDED to the trial court for entry of specific findings of fact relative to each of the elements of a prescriptive easement. Since the judge who heard this matter is no longer with the trial court, the trial court may not be able to make the specific findings of fact from the trial record. If that is the case, then the trial court shall conduct a new trial.\\nEntered this 24th day of April, 1992.\\nRestatement of Property, \\u00a7 456(a) (1944).\\nId., \\u00a7 458 comment d.\\nId., \\u00a7 457 and \\u00a7 459.\\nId., \\u00a7 458 Comment h.\\n\\\"Acquiescence is here used in its ordinary sense; it does not mean license or permission in the active sense, but means passive assent or submission, quiescence or consent by silence.\\\" 25 Am.Jur. 2d, Easement and Licenses. \\u00a7 61 (1966).\\nId., \\u00a7 458 comment h. See also, 2 Thompson on Real Property. \\u00a7 340 (1961) which states \\\"[b]ut it is commonly stated that for prescription, the use must be actual, open and notorious, hostile and adverse to the title of the one against whom the prescription is claimed, continuous and uninterrupted for the statutory period under a claim of right with knowledge of the servient owner.\\\"\\nThe Restatement of Property does not mention this sixth element. Nor does the 'Restatement (Second) of Property touch upon the law of easement by prescription. However, current practices in certain states include this as one of the elements. The inclusion of this element clarifies what may be implied in the third element as listed above. Therefore, we will adopt this element as one necessary for the acquisition of an easement by prescription. See 25 Am.Jur. 2d, Easement and Licenses, \\u00a7 63 (1966).\\nAt oral argument, both counsel indicated the possibility of relocating the access road to the boundaries of the affected lots. Under Com.R.Civ.P., Rule 16, the trial court may direct the attorneys to appear for a conference to discuss such an alternative resolution to this.matter.\"}"

n_mar_i/1696220.json

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+"{\"id\": \"1696220\", \"name\": \"CECILIA L. ROSARIO, Plaintiff/Appellee/Cross Appellant, vs. SYDNEY G. QUAN & PRISCILLA T. QUAN, Defendants/Appellants/Cross Appellees, and DOO YOUNG JANG, Defendant/Appellee/Cross Appellant, and JOAQUIN M. MANGLONA, Defendant/Appellee/Cross Appellee\", \"name_abbreviation\": \"Rosario v. Quan\", \"decision_date\": \"1992-09-21\", \"docket_number\": \"CIVIL ACTION NO. 90-290\", \"first_page\": 269, \"last_page\": \"283\", \"citations\": \"3 N. Mar. I. 269\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEEORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"CECILIA L. ROSARIO, Plaintiff/Appellee/Cross Appellant, vs. SYDNEY G. QUAN & PRISCILLA T. QUAN, Defendants/Appellants/Cross Appellees, and DOO YOUNG JANG, Defendant/Appellee/Cross Appellant, and JOAQUIN M. MANGLONA, Defendant/Appellee/Cross Appellee.\", \"head_matter\": \"September 21, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nCECILIA L. ROSARIO, Plaintiff/Appellee/Cross Appellant, vs. SYDNEY G. QUAN & PRISCILLA T. QUAN, Defendants/Appellants/Cross Appellees, and DOO YOUNG JANG, Defendant/Appellee/Cross Appellant, and JOAQUIN M. MANGLONA, Defendant/Appellee/Cross Appellee.\\nAPPEAL NOS. 91-019, 91-021 & 91-022 (Consolidated)\\nCIVIL ACTION NO. 90-290\\nArgued June 30, 1992\\nCounsel for Plaintiff/Appellee/ Cross Appellant Cecilia L. Rosario: Joe Hill Hill & Sawhney P. O. Box 917 Saipan, MP 96950\\nCounsel for Defendants/Appellants/ Cross Appellees Sydney G. Quan & Priscilla T. Quan: Antonio M. Atalig Demapan and Atalig P. 0. Box 1638 Saipan, MP 96950\", \"word_count\": \"2715\", \"char_count\": \"16397\", \"text\": \"OPINION\\nCounsel for Defendant/Appellee/ Cross Appellant Doo Young Jang: Timothy H. Bellas P. 0. Box 2845 Saipan, MP 96950\\nCounsel for Defendant/Appellee/ Cross Appellee Joaquin M. Manglona: John A. Manglona White, Novo-Gradac and Manglona P. 0. Box 222 CHRB Saipan, MP 96950\\nBEEORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\\nBORJA, Justice:\\nThese three appeals have been consolidated.\\nCecilia L. Rosario (hereafter Rosario) filed a quiet title action to Lot 015 F 01, containing an area of 1000 square meters, located in Chalan Laulau (hereafter sometimes the lot), against Sidney G. Quan and Priscilla T. Quan (hereafter Quans), Doo Young Jang (hereafter Jang), Joaquin M. Manglona (hereafter Manglona), and others.\\nThe case involves several different transactions involving the same piece of property. The Quans, Jang, and Manglona claimed adverse interests to the same piece of property. We will state the facts in chronological order. Then we will address each of the claims made by each claimant.\\nFACTS\\nRosario started to live on Lot 015 F 01 since at least 1971. Rosario does not recall a more specific date when she started occupying the lot other than she was there already in 1971 when she married. The lot was public land. The government has since conveyed the property to her. She still lives on the property.\\nOn April 30, 1936, a \\\"Temporary Lease Agreement\\\" was executed by Sidney G. Quan (hereafter Sidney) and Rosario. This document was recorded on May 2, 198 6. No payments were made by Sidney pursuant to this agreement.\\nOn May 6, 1986, Rosario received a homestead permit to the lot from MPLC.\\nOn May 12, 1986, Rosario executed a warranty deed on the lot in favor of Priscilla T. Quan (hereafter Priscilla).\\nOn June 26, 1989, Rosario received a Quitclaim Deed from the Marianas Public Land Corporation (hereafter MPLC) conveying the lot to her.\\nOn August 31, 1989, Rosario executed an agreement to lease the lot to Jang. This was recorded on September 1, 1989.\\nOn October 12, 1989, the warranty deed from Rosario to Priscilla was recorded.\\nRosario filed a quiet title action on March 19, 1990. Named defendants were Sidney G. Quan, Priscilla T. Quan, Lee Young Shin, Trinity Ventures, Inc., Lewie Adams, Doo Young Jang and Joaquin M. Manglona. Lee Young Shin was dismissed from the lawsuit because he was never served with the summons and complaint. Trinity Ventures, Inc. and Lewie Adams defaulted.\\nSidney and Priscilla are husband and wife. Sidney is not a person of NMI descent. Priscilla is a person of Northern Marianas descent.\\nTHE TRIAL COURT DECISION\\nThe trial court issued its decision by separating and deciding each of the three claims.\\nWith regard to the claim of the Quans, the trial court held that both the temporary lease agreement and the warranty deed were invalid. The court ordered that the Quans be reimbursed the sum of $2,650.\\nThe trial court concluded that the lease agreement between Manglona and Rosario was still valid. Manglona had to pay the balance due under his lease agreement with Rosario within 30 days from the date of judgment into an interest-bearing account. If Manglona failed to do so, the lease would have no force and effect. If an appeal is filed, the funds would remain in the interest-bearing account until disposition of the appeal.\\nThe trial court further held that if Manglona did not perfect his leasehold interest by paying the balance of the lease payment, then Jang would be entitled to specific performance on his agreement to lease with Rosario. The term would commence upon \\\"the entry of a final adjudication in this matter and the extinguishment of Manglona's interest. .\\\" Memorandum Decision at 10.\\nIf Manglona perfects his interest, Jang will not be entitled to specific performance of his agreement to lease. However, he will be entitled to the return of $24,000, plus interest. In addition, he will be entitled to reasonable attorney's fees.\\nANALYSIS\\nBecause of the Settlement Agreement between Rosario and Manglona, made after these appeals were filed, we shall proceed as if Manglona did not perfect his leasehold interest pursuant to the trial court's decision. The trial court's decision will now read that Jang is entitled to specific performance. Jang is not entitled to the return of $24,000, plus interest. Neither is he entitled to reasonable attorney's fees.\\nFor the reasons stated herein, we affirm the decision of the trial court.\\nThe Quans' Appeal\\nIssues Presented\\nThe Quans state the issues as follows:\\n1. Did the Temporary Lease Agreement provide constructive notice to third parties?\\n2. Does the doctrine of merger apply where the lease was executed by an agent of Lessee and subsequently, a deed was executed in the name of the lessee-grantee?\\n3. Does the doctrine of after-acquired title apply?\\n4. Was the execution and recordation of the lease enforceable under the doctrine of after-acquired title?\\nThe standard of review for all the above issues is de novo because they involve either questions of law, Borja v. Rangamar, No. 89-009, (N.M.I. Sept. 17, 1990), or mixed questions of law and fact, Guerrero v. Guerrero, No. 90-018 (Mar. 18, 1991).\\nA. The Temporary Lease\\nWe agree with the trial court that the temporary lease agreement was canceled, rescinded and replaced by the warranty deed. Rosario received no payments under the temporary lease and possession was not delivered to Sidney. Such acts show a clear intent between Rosario and Sidney that they agreed to cancel the temporary lease. We will not disturb the findings of the trial court. They were not clearly erroneous. Its conclusion that the temporary lease has no validity is not in error.\\nThe Constructive Notice Issue\\nRosario had no equitable interest in the lot when she executed the temporary lease agreement. She signed the temporary lease agreement on April 30, 1936, and the Quans recorded it on May 2, 1986. She received a homestead permit on May 12, 1986. Receipt of a homestead permit does not give the homesteader any vested equitable interest in the property. Rosario, as a homesteader, may have had a contingent equitable interest. However, this contingent equitable interest is not transferable. See Castro v. Commonwealth, 2 CR 270 (CTC 1985) (a transferable equitable interest in homestead land arises when a certificate of compliance is issued, or is warranted). Since Rosario had not acquired a certificate of compliance or title to the lot at the time she executed the temporary lease, its recordation cannot provide constructive notice to a subsequent lessee who leases the lot after Rosario acquired a certificate of compliance.\\nThe Lease and After-Accruired Title Issue\\nWe agree with the Quans that the doctrine of after-acquired title may be applied to a leasehold situation. However, such a doctrine is not applicable to the facts in this case. When Rosario obtained title from MPLC on June 26, 1989, the temporary lease no longer existed. As noted above, the execution of the warranty deed on May 12, 1986, by Rosario to Priscilla rescinded the temporary lease.\\nB. The Warranty Deed\\nWe agree with the trial court that the warranty deed is invalid.\\nThe Merger Issue\\nThe Quans' merger theory that the lease between Rosario and Sidney merged with the warranty deed from Rosario to Priscilla does not have merit. Sidney and Priscilla are two different persons. The mere fact that they are husband and wife, without more, does not make the merger doctrine applicable.\\nThe merger doctrine states that \\\"when a greater and lesser estate meet in the same person, the lesser is merged or 'drowned' in the greater.\\\" See 28 Am.Jur.2d Estates \\u00a7 374 (1966). The Quans argue that the temporary lease in favor of Sidney merged with the subsequent warranty deed in favor of Priscilla. There are two additional reasons why this argument fails.\\nFirst, even if the warranty deed to Priscilla, the greater estate, was valid, it could not have merged with the temporary lease, the lesser estate, because there was no existing lesser estate to merge with.\\nSecond, the warranty deed to Priscilla violated Article XI, Section 5(a) of the NMI Constitution. Article XI prohibits a freehold transfer of a homestead for 10 years from the issuance of a quitclaim deed from MPLC. Here, we have a freehold transfer to Priscilla even before the issuance of a quitclaim deed from MPLC to Rosario. A merger cannot be possible because there is no greater estate that can be merged with the lesser estate, the leasehold interest, even if still in existence. The greater estate does not exist because it is invalid as violative of Article XI of the NMI Constitution.\\nThe After-Acouired Title Issue\\nWe agree with the general principal of law enunciated by the Quans on after-acquired title.\\nA grantor who executes a deed purporting to convey land to which he has no title or to which he has a defective title at the time of the conveyance will not be permitted, when he afterward acquires a good title to the land, to claim in opposition to his deed as against the grantee or any person claiming title under him.\\n23 Am.Jur.2d Deeds \\u00a7 341 (1983). However, this doctrine does not apply to the facts in this case.\\nThe warranty deed from Rosario to Priscilla was not recorded until after Rosario executed an agreement to lease the lot to Jang. The agreement to lease was recorded prior to the recordation of the warranty deed from Rosario. In addition, the warranty deed from Rosario to Priscilla was constitutionally defective. The doctrine can have no applicability when to do so would violate a constitutional provision.\\nThe Quans* argument on the applicability of the Homestead Waiver Act is without merit. First, they do not state in their brief how it applies. Second, the deed from MPLC to Rosario specifically states that the conveyance is subject to Article XI.\\nThe Rosario Appeal\\nIssues Presented\\n1. Whether the trial court abused its discretion in determining that Rosario must repay certain amounts to the Quans.\\n2. Whether the trial court committed reversible error in determining that Jang has an enforceable lease.\\nRosario seeks attorney's fees from Jang under paragraph 8(c) of the agreement to lease and section 22 of the lease agreement. In addition, he seeks attorney's fees under this Court's inherent power to award fees in matters showing bad faith or frivolous claims or defenses.\\nThe first issue is subject to the abuse of discretion standard of review. Hemlani v. Villagomez, 1 CR 203, 208 (D.NMI App.Div. Oct. 19, 1981).\\nThe second issue involves a legal question and is reviewed de novo. Borja v. Rangamar. supra.\\nI. The Quans' transaction\\nRosario argues that it was an abuse of discretion for the trial court to order that Rosario reimburse the Quans $2,650. She supports her argument with the trial court's conclusions that the Quans were overreaching, and there was a failure of consideration.\\nThe trial court, pursuant to its equity power, stated that \\\"the Quans will be reimbursed the sum of $2,650 for payments made Memorandum Decision at 7. A trial for the invalid warranty deed.\\\" court's use of its equity power will be reviewed under the abuse of discretion standard. Sinclair v. Sinclair, 718 P.2d 396 (Utah 1986).\\nWhile we may differ with the trial court's decision to-reimburse the Quans the sum of $2,650, we do not think that the order was an abuse of discretion. See Hamlani v. Villagomez, supra, (\\\"We will not interfere with the trial judge's discretion, unless clearly abused, to fashion a remedy where equity is involved.\\\"). We will not reverse the order.\\nII. \\\" The'Jang Transaction.\\nRosario argues that Jang has an exclusive legal remedy under the agreement to lease, i.e., the return of the $24,000 paid by Jang to Rosario. Jang, therefore, cannot seek specific performance. We disagree.\\nClearly, the equitable remedy of specific performance is always available in matters dealing with contracts for the sale of real property. See Restatement (Second) of Contracts \\u00a7 360 comment e (1981). However, such a remedy is not always available in matters dealing with an agreement to lease since terms.may not be certain. See 71 Am.Jur.2d Specific Performance \\u00a7 147 (1973).\\nHowever, where an agreement to lease was validly entered into and the terms of the lease agreement that will be entered into are definite and certain, the agreement to lease will be specifically enforced. See Annotation, \\\"Specific Performance\\u2014Lease Contract,\\\" 73 A.L.R. 1163 \\u00a7 2 (1948).\\nIn this case, the agreement to lease attached a copy of the proposed lease agreement that would be entered into later. The proposed lease agreement was definite and certain in its terms. As such, Jang could seek specific performance. It was not an abuse of discretion for the trial court to grant such a remedy.\\nRosario seeks attorney's fees from Jang under paragraph 8(c) of the agreement to lease and under section 11 of the lease. We deny both requests. Attorney's fees are allowed under both provisions if Rosario is a prevailing party. She is not.\\nRosario further seeks attorney's fees from Jang under this Court's inherent authority in matters showing bad faith or frivolous claims or defenses. We deny this request. Rosario has failed to show how Jang acted in bad faith in this appeal, or how Jang's claims or defenses were frivolous.\\nCONCLUSION\\nThe judgment of the trial court is AFFIRMED as to all parties except Joaquin M. Manglona. The matter, however, is REMANDED to the trial court to amend its judgment and memorandum decision in light of the Settlement Agreement executed by Manglona and Rosario on June 26, 1992.\\nIt is hereby ORDERED that Antonio M. Atalig shall show cause why he should not be sanctioned by this Court for his failure to follow this Court's rules of appellate procedure. This Court proposes a sanction of $1,000 to be paid to the Court. Mr. Atalig shall file his response within 30 days of this opinion.\\nJose S. Dela Cruz Chief Justice\\nRamon G. Villagomez Justice\\nJesus C. Borja Justice\\nOn June 29, 1992, Rosario and Manglona filed a \\\"Settlement Agreement\\\" with the Court where the two agreed as follows:\\na. Rosario agrees to release and pay over the sum of Two Hundred Fifteen Thousand Dollars ($215,000.00) plus 50 % of interest now on deposit at Union Bank in Savings Account No. 0272-503157. The remaining 50% of interest shall be paid over to Rosario.\\nb. Manglona agrees that all claims, demands, rights, and causes of action that Manglona has against Rosario with respect to the above-described dispute and property are satisfied, discharged, and settled.\\nc. Rosario agrees that all claims and demands that she has or may have against Manglona with respect to the above-described dispute and property are satisfied, discharged, and settled.\\nd. Manglona and Rosario agree to release; rescind and cancel the Option to lease dated February 29, 1989 and Lease Agreement dated July 29, 1989.\\nCounsel for the other parties to the appeal did not file any objection to the Settlement Agreement. The Settlement Agreement was signed both by Rosario, Manglona, and their counsel.\\nThe Court will address the appeal as if Manglona was never a party to the appeal. Without Manglona, Jang is the prevailing party and now becomes only an appellee with regard to the appeals filed by the Quans and Rosario.\\nWe note that counsel for the Quans failed to file an excerpt of record as required under Rule 30, R.App.Proc. We note that this is the third time that Attorney Antonio M. Atalig has been cautioned by this Court to follow the rules of appellate procedure. Mr. Atalig shall be ordered to show cause why he should not be sanctioned for failing to follow the rules of appellate procedure.\"}"

n_mar_i/1696224.json

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+"{\"id\": \"1696224\", \"name\": \"IN RE THE MATTER OF \\\"S.S.,\\\" A Minor Child\", \"name_abbreviation\": \"In re \\\"S.S.\\\"\", \"decision_date\": \"1992-06-25\", \"docket_number\": \"JUVENILE CASE NO. 91-22\", \"first_page\": 177, \"last_page\": \"185\", \"citations\": \"3 N. Mar. I. 177\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"IN RE THE MATTER OF \\\"S.S.,\\\" A Minor Child.\", \"head_matter\": \"June 25, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nIN RE THE MATTER OF \\\"S.S.,\\\" A Minor Child.\\nAPPEAL NO. 91-016\\nJUVENILE CASE NO. 91-22\\nArgued February 21, 1991\\nCounsel for Appellant: Pamela O'Leary Tower Office of the Public Defender Civic Center Complex Saipan, MP 96950\\nCounsel for Appellee: Robert C. Naraja Attorney General Maggie Gleason Assistant Attorney General Capitol Hill Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"1514\", \"char_count\": \"8722\", \"text\": \"OPINION\\nBORJA, Justice:\\nFACTS\\nA minor child (hereafter sometimes S.S.) appeals the denial of a motion to dismiss a complaint of delinquency under 6 CMC \\u00a7 5103(a). The facts are not in dispute.\\nAt the time the complaint was filed, S.S. was a 13 year old minor. The charge was theft of a vehicle in violation of 9 CMC \\u00a7 7102(b), an act that would be a crime if committed by an adult. In the motion to dismiss, the minor child argued that the juvenile court lacked jurisdiction under 6 CMC \\u00a7 5103(a) because, the minor child was 13 years of age. The argument is premised on 6 CMC \\u00a7 253. The minor child contended that the juvenile court had jurisdiction only under 6 CMC \\u00a7 5103(b), (c), or (d).\\nWhen the trial court denied the motion, the minor child entered a conditional admission to the complaint under Rule 11(a)(2), Com.R.Cr.P. There was a specific reservation by the minor child that the admission was conditioned on the right to appeal the denial of the motion to dismiss.\\nISSUE\\nThe sole issue on appeal is whether a child under the age of 14 can be adjudicated a delinquent child under 6 CMC \\u00a7.5103(a), in view of 6 CMC \\u00a7 253.\\nSTANDARD OF REVIEW\\nInterpretations of statutes are subject to de novo review. Nansay Micronesia Corp. v. Govendo, No. 90-040 (N.M.I. Feb. 28, 1992).\\nANALYSIS\\n6 CMC \\u00a7 5103 states that:\\nAs used in this Division, \\\"delinquent child\\\" includes any juvenile:\\n(a) Who violates any Commonwealth law, ordinance, or regulation while under the age of 18? provided that a juvenile 16 years of age or older, accused' of a traffic offense, murder, or rape shall be treated in the same manner as an adult.\\n(b) Who does not subject himself or herself to the reasonable control of his or her parents, teachers, guardian, or custodian, by reason of being wayward or habitually disobedient; or\\n(c) Who is a habitual truant from home or school; or\\n(d) Who deports himself or herself so as to injure or endanger his or her morals or health or the morals or health of others.\\n6 CMC \\u00a7 253 provides that\\nChildren under the age of 10 are. conclusively presumed to be incapable of committing any crime. Children between the ages of 10 and 14 are also conclusively presumed to be incapable of committing any crime, except the crimes of murder and rape, in which case the presumption is rebuttable. The provisions of this section, however, do not prevent proceedings against and the disciplining of any person under 18 years of age as a delinquent child.\\nS.S. argues that \\u00a7 253 must be interpreted to mean that a minor child can never be adjudicated a delinquent child under \\u00a7 5103(a). Section 253 states that a child between the ages of 10 and 14 is conclusively presumed to be incapable of committing any crime, other than the crimes of murder or rape. Because S.S. was only 13 at the time of the incident, an incident that would be a crime if committed by an adult,- S.S. contends that \\u00a7 253 mandates that the child cannot be adjudicated a delinquent child under \\u00a7 5103(a). S.S. maintains that the two statutory provisions must be read together. S.S. admits that subsections (b), (c), or (d) of section 5103 would still be available to the government to adjudicate such a child as a delinquent child.\\nThe government, on the other hand, argues that the defense of infancy under \\u00a7 253 has no application to \\u00a7 5103. It argues that \\u00a7 253 applies to criminal proceedings and not to juvenile proceedings. The two statutory provisions cannot be read together. It cites to \\u00a7 5104 for its argument that, \\\"an adjudication that a person is a delinquent child does not constitute a criminal conviction.\\\"\\nWe agree with the interpretation of the government.\\nThe common law defense of infancy states that children under the age of 7 could not be held responsible for criminal conduct. Between the ages of 7 and 14, common law states there is a rebuttable presumption that children are incapable of criminal acts. 21 Am.Jur.2d Criminal Law, \\u00a7 38 (1981).\\nThe common law defense is different from our statute. Section 253 states that there is a conclusive presumption that a child under 10 is incapable of committing any crime. Between the ages of 10 and 14, there is also a conclusive presumption for all crimes, except murder and rape. Therefore, the common law defense has been modified by statute in our commonwealth. Most jurisdictions in the United States have also modified the common law defense by either raising the age of the presumption, or by making the presumption rebuttable,, or both. For example, in California, the presumption that a child under 14 is incapable of committing any crime can be rebutted by clear proof. Cal. Penal Code \\u00a7 26 (West 1988). Our statute makes it rebuttable only as to the crimes of murder and rape.\\nThe two statutory provisions must be read separately. Section 5103 is not inconsistent with section 253. They are two different laws that apply in two different settings. Section 5103 deals with juvenile proceedings. Section 253 deals with criminal proceedings.\\nAn additional argument for separate applications of the two statutory provisions is that there is no difference in consequence in an adjudication under any of the subsections. A child adjudicated a delinquent under subsection (a) would not necessarily get a harsher disposition than a child adjudicated a delinquent under any other subsection. There is no existing statutory provision making the disposition of an adjudication under subsection (a) different from a disposition under any of the other subsections.\\nAt oral argument, the parties gave opposing views on the practical consequences. We are persuaded by the arguments of the government. There is no practical difference whether a minor child is adjudged a delinquent child because of the commission of an act that would be a crime if committed by an adult under subsection (a), or under one of the other subsections. For example, even if a child was charged under subsection (d) , i.e., \\\"deports himself or herself so as to injure or endanger his or her morals . . .\\\" because he or she stole a television set from a store, the record would still have to reflect that the child stole a television set. The minor has to know the basis of the charge to satisfy due process. The court has to know the basis to determine the appropriate disposition to make. This basis would be the same as if subsection (a) had been used.\\nCONCLUSION\\nThe denial of the motion to dismiss was not erroneous. The adjudication of S.S. as a delinquent child under 6 CMC \\u00a7 5103(a) is AFFIRMED.\"}"

n_mar_i/1696228.json

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+"{\"id\": \"1696228\", \"name\": \"PRUDENCIO T. MANGLONA, as Mayor of Rota, and JAMES MENDIOLA, as Mayor of Tinian and Aguiguan, Petitioners/Appellees, vs. CNMI CIVIL SERVICE COMMISSION and DEPARTMENT OF FINANCE, CNMI Government, Respondents/Appellants\", \"name_abbreviation\": \"Manglona v. CNMI Civil Service Commission\", \"decision_date\": \"1992-09-18\", \"docket_number\": \"CIVIL ACTION NO. 91-322\", \"first_page\": 243, \"last_page\": \"252\", \"citations\": \"3 N. Mar. I. 243\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"PRUDENCIO T. MANGLONA, as Mayor of Rota, and JAMES MENDIOLA, as Mayor of Tinian and Aguiguan, Petitioners/Appellees, vs. CNMI CIVIL SERVICE COMMISSION and DEPARTMENT OF FINANCE, CNMI Government, Respondents/Appellants.\", \"head_matter\": \"September 18, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nPRUDENCIO T. MANGLONA, as Mayor of Rota, and JAMES MENDIOLA, as Mayor of Tinian and Aguiguan, Petitioners/Appellees, vs. CNMI CIVIL SERVICE COMMISSION and DEPARTMENT OF FINANCE, CNMI Government, Respondents/Appellants.\\nAPPEAL NO. 91-013\\nCIVIL ACTION NO. 91-322\\nArgued and Submitted February 20, 1992\\nCounsel for Appellants David A. Wiseman WISEMAN \\u201d& EASON P.O. Box 404 Saipan, MP 96950\\nCounsel for Appellees: ROBERT O'CONNOR P.O. Box 1969 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"2155\", \"char_count\": \"13947\", \"text\": \"OPINION\\nVILLAGOMEZ, Justice:\\nI.\\nMayor Prudencio T. Manglona of Rota and Mayor James Mendiola of Tinian (\\\"Mayors\\\") each hired certain employees for their respective municipality without submitting to the Civil Service Commission (\\\"Commission\\\"), for review and approval, the employment contracts of those hired. They contend that because the employees hired are exempt from the civil service system, pursuant to 1 CMC \\u00a7 8131(a)(13), they need not obtain Commission approval.\\nOn March 18, 1991, the Office of the Attorney General rendered to the Commission's Personnel Officer a legal opinion stating that, notwithstanding the statutory exemption of the mayors' staff employees from the civil service system, the Commission retains the authority to determine, before hiring, which of the positions within the mayors offices, are exempt. The opinion noted that'each mayor must submit a list of the positions to be filled to the Commission for such prior determination. Further, the opinion noted that all personnel actions for employees of the mayor must be submitted to the Personnel Office for its review to determine compliance with the Excepted Service Personnel Regulations.\\nSubsequent to the opinion rendered by the Attorney General, the Department of Finance withheld the salaries of the Mayors' staff employees affected, until such time as the Mayors comply with the Attorney General's opinion. Disagreeing with the opinion, the Mayors filed an action seeking a writ of mandamus and declaratory relief against the Commission and Finance. On May 2, 1991, the trial court entered judgment in favor of the Mayors, ruling as follows:\\nThe personnel and staff of the Mayors' offices are exempt from the civil service and the Civil Service Commission and the Personnel Officer acting for the Civil Service Commission have no authority or responsibility to review the contracts to determine if, in fact,, the positions are to be exempt.\\nThe Commission timely appealed.\\nII.\\nThe appellants raise four issues for our review. After a review of the record below and the pertinent constitutional and statutory provisions, we find only one of them as the dispositive issue. That issue is whether the trial court erred in declaring that the Commission and the Personnel Officer have no legal authority or any role whatsoever in the exemption process for employees of the Mayors' offices. We conclude that the trial court is correct in its ruling, on this issue.\\nThe first issue raised by the Commission is whether the trial court erred by allowing the case to proceed when the initial pleading was entitled \\\"petition\\\" rather than \\\"complaint\\\" as contemplated by the Commonwealth Rules of Civil Procedure. Appellants cite Rule 3 of the Com.R.Civ.P. which states that \\\"[a] civil action is commenced by filing a complaint with the court.\\\" (Emphasis added.) For that reason, appellants urge us to reverse and remand this case. Assuming we did reverse on this ground, we anticipate the appellee would simply amend its pleading to change the word \\\"petition\\\" to \\\"complaint.\\\" That would be a waste of time, exalting form over substance. The pleading filed is in fact a complaint, notwithstanding that it was labeled a \\\"petition.\\\"\\nThe second issue raised is whether employees of the Mayors * offices are employees of the CNMI government. The trial court did not reach this issue because of its conclusion that the employees are exempt from the civil service and the Commission has no authority to review their exempt status. We find that the issue is irrelevant. Whether those hired are CNMI government employees or not have no bearing on the Commission's authority over them, once they were exempted from the civil service system.\\nThe third issue raised, whether the Commission has the authority to review the employment contracts of the Mayors' staffs, is dispositive of this appeal.\\nThe fourth issue raised is whether the Personnel Officer has to review the Mayors' employees' contracts before they can be paid their salaries by the Department of Finance. Our answer to this issue depends entirely upon the answer to the dispositive third issue. If the Commission has no authority to review the employment contracts, then the employees may be paid their salaries without any review of their contracts by the Personnel Officer.\\nIII.\\nArticle XX of the CNMI Constitution provides:\\nSection 1: Civil Service:\\nThe legislature shall provide for a non-partisan and independent civil service with the duty to establish and administer personnel policies for the Commonwealth government. . . . The commission's authority shall extend to positions (other than those filled by election or by appointment of the governor) in the departments and agencies of the executive branch and in the administrative staff of the legislative and judicial branches. Exemption from the civil service shall be as provided by law, and the commission shall be the sole authority authorized by law to exempt positions from civil service classifications. (Parenthetical marks added.)\\nPursuant to the above constitutional provision, the legislature enacted 1 CMC \\u00a7 8131(a)13 which added, to the list of exempted positions, the staff employees of the mayors.\\nThe heart of this dispute stems from that sentence of Article XX, \\u00a7 1, which states: \\\"Exemption from the civil service shall be as provided by law, and the Commission shall be the sole authority authorized by law to exempt positions from civil service classifications.\\\" The first clause appears irreconcilable with the second.\\nThe Commission contends that under the quoted language, the legislature may, by law, grant exemptions from the civil service system, but that although the law may grant exemptions from the civil service system, the Commission alone has the authority to review those positions and determine specifically which ones are exempt from the civil service and assure compliance with the Excepted Service Personnel Regulations. The Mayors, on the other hand, contend that once the legislature has exempted, by law., certain positions within the government, such positions need not be reviewed by the Commission. We agree with the Mayors' contention.\\nWe resort to the legislative history of the Second Constitutional Convention, which adopted this language in Article XX, for information explaining the intent of constitutional Amendment 41. That history reveals that an exemption from the civil service system is to be treated differently from an exemption from the civil service classifications.\\nThe constitutional provision at issue here has two distinct parts. The first part relates only to exemptions from the civil service that may be provided by law. We read this part to mean that only if the legislature passes a law providing for exemptions may there be exemptions from the civil service system. Only the legislature can exempt government employees from the civil service system. The second part relates to the authority given the Commission alone to exempt positions from the civil service classifications. This authority has to do with positions that are within the civil service system, but which, for one reason or another, the Commission decides should be exempt from civil service classifications. This necessarily means that the position is already within the civil service classifications but the Commission can exempt it from such classified position. Neither the legislature nor any other entity has any authority to make an exemption from civil service classifications for positions within the civil service system.\\nit is clear from Convention history that the Convention intended to remove from the legislature (or any other entity designated by the legislature) its prior authority to exempt positions from the civil service classifications and to place that authority strictly with the Commission. However, while Amendment 41 accomplished that, it also granted to the legislature the authority to exempt positions from the civil service system.\\nExemption by law from the civil service \\\"system\\\" means an exemption from the entire civil service system. In contrast, an exemption by the Commission from civil service \\\"classifications\\\" means that the Commission alone may authorize an exemption from a position already classified within the system.\\nAs to the latter (re: classifications) , every aspect of the employee's contract with the government is administered by the Commission, including the decision to exempt, the processing of the contract, the assurance that the contract complies with the Excepted Service Personnel Regulations, and the enforcement of all other applicable provisions of the Personnel Service System Rules and Regulations. As to the former (re: exemption from the system), the Commission has no authority. The employing agency hires within the FTE ceilings and the annual budget for the exempted position.\\nIV.\\nWe hold, based on our construction of the last sentence of Article XX, Section 1, of the CNMI Constitution, that neither the Commission nor its Personnel Officer has any authority to review the contracts of personnel and employees of the offices of the Mayors of Rota and Tinian. Nor do they have the authority to review or approve the exempt status of the employees of those offices.\\nWe, therefore, AFFIRM the judgment of the trial court.\\nDated this 18th day of September, 1992.\\nJOSE S. DELA CRUZ, Chief Justice\\nRAMON G. VILLAGOMEZ, Associate Justice\\nJESUS C. BORJA, Associate Justice\\n\\u00a7 8131. Civil Service System: Applicability; Exemptions.\\n(a) Except as provided in this section, the Civil Service System shall apply to all employees of and positions in the Commonwealth Government now existing or hereafter established. Unless this Act is otherwise specifically made applicable to them, the following persons or positions are exempt from the Civil Service System: . . .\\n(13) Personnel and staff of the Mayor's Offices of Rota, Tinian, Saipan and the Northern Islands as defined by the FTE ceilings and established by annual appropriation for those offices.\\nThis is a question involving the interpretation and application of Article XX of the Constitution which is reviewed de novo. Comnonwealth v. Peters, No. 90-026 (N.M.I. Jan. 8, 1991).\\nAmendment 41 repealed section 16, Article III, of the Constitution and added a new Article XX relating to Civil Service. Section 16 provided:\\nThe legislature shall provide for a non-partisan and independent civil service commission with the duty to establish and administer personnel policies for the Commonwealth government. The commission's authority shall extend to positions other than those filled by election or by appointment of the governor in the departments and agencies of the executive branch and in the administrative staffs of the legislature and Judicial branches. Appointment and promotion within the civil service shall be based on merit and fitness demonstrated by examination or by other evidence of competence.\\nThe original committee proposal introduced during the Second Constitutional Convention provided only that \\\"the commission shall be the only authority to exempt positions from the civil service classifications.\\\" (Emphasis added.) The committee report contains the following explanatory and supporting statements:\\n\\\"The authority to exempt positions from the civil service classifications will be constitutionally delegated to the Commission. Presently, the Constitution leaves to the legislature the classification of positions other than Executive Department Heads.\\\"\\n\\\"The extension of the Commission's authority will provide for a uniform classification system for employees in the Commonwealth Government. The present set-up allows for different compensations for the same position.\\\"\\n\\\"The Constitutional amendment will allow the Commission also to make determinations on the categories of positions to be excluded from the civil service classifications.11 (Emphasis added.)\\nThe proposed amendment and,the committee report did not contain any language regarding exemption from the civil service system. However, during the Convention's deliberation on the floor, Delegate Jesus P. Mafnas offered a floor amendment which added the language \\\"(e)xemption from the civil service shall be as provided by law.\\\"\\nBecause this floor amendment was made after the committee made its report to the floor of the Convention, the committee did not deliberate on this newly added language. Nor did Delegate Mafnas, who made the motion to add this new language, explain why he wanted to grant the legislature the power to exempt positions from the civil service system (as opposed to'classifications).\\nPart IV, Sub-Part A of the Personnel Service System Rules and Regulations defines Position Classification: \\\"Position classification means the process by which employment positions in an organization are identified, described and defined according to their duties and responsibilities, with like positions segregated into groups called 'classes'. A systematic record is made of the classes found and a listing is made of the particular positions found to be of each class.\\\"\\nThis opinion addresses only the effect of subsection (13) of \\u00a7 1831(a) pursuant to our interpretation of Article XX, \\u00a7 a. of the Constitution. Me note that subsection 13 was enacted after the ratification of Article XX.\"}"

n_mar_i/1696230.json

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+"{\"id\": \"1696230\", \"name\": \"NANSAY MICRONESIA CORPORATION, Plaintiff/Appellee, vs. KENNETH L. GOVENDO, Defendant/Appellant\", \"name_abbreviation\": \"Nansay Micronesia Corp. v. Govendo\", \"decision_date\": \"1992-02-28\", \"docket_number\": \"CIVIL ACTION NO. 90-525\", \"first_page\": 12, \"last_page\": \"21\", \"citations\": \"3 N. Mar. I. 12\", \"volume\": \"3\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T17:29:25.069436+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"parties\": \"NANSAY MICRONESIA CORPORATION, Plaintiff/Appellee, vs. KENNETH L. GOVENDO, Defendant/Appellant.\", \"head_matter\": \"February 28, 1992\\nIN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS\\nNANSAY MICRONESIA CORPORATION, Plaintiff/Appellee, vs. KENNETH L. GOVENDO, Defendant/Appellant.\\nAPPEAL NO. 90-040\\nCIVIL ACTION NO. 90-525\\nArgued and Submitted March 6, 1991\\nCounsel for Plaintiff/Appellee: Rexford-C. Kosack, Esq. P.O. Box 410 Saipan, MP 96950\\nCounsel for Defendant/Appellant: Kenneth L. Govendo, Esq. Pro se P.O. Box 2377 Saipan, MP 96950\\nBEFORE: DELA CRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices.\", \"word_count\": \"1893\", \"char_count\": \"11265\", \"text\": \"OPINION\\nDELA CRUZ, Chief Justice:\\nKenneth L. Govendo (\\\"Govendo\\\") appeals a declaratory judgment entered in favor of Nansay Micronesia Corporation (\\\"Nansay\\\"), declaring that the notice of administrative appeal filed by Govendo with the CNMI Coastal Resources Management (\\\"CRM\\\") Office was \\\"null and void\\\" because it was untimely filed.\\nI.\\nNansay applied to CRM for a coastal resources permit to build a hotel. Govendo, who opposed the Nansay project and objected to the issuance of a permit, petitioned for and was granted intervenor status, pursuant to CRM regulation 8(F)(ii)(c).\\nCRM approved the application and issued the permit in favor of Nansay on March 13, 1990. Notice of the agency decision was published in a Saipan newspaper on April 6, 1990. Govendo filed a notice of appeal with CRM on May 4, 1990, fifty-one days after the permit decision was issued. He was not served a copy of the decision.\\nAt the time Govendo filed his appeal of the agency decision to the CRM Appeals Board, there were no board members on the CRM Appeals Board. CRM regulation 8(H)(ii) provides for a Board quorum of two members and that \\\"the vote of at least two . members is necessary for Board action on appeal.\\\"\\nBecause of the lack of membership on the CRM Appeals Board, Nansay decided to seek a declaratory judgment in Commonwealth Superior Court to the effect that Govendo's appeal to the CRM Appeals Board was untimely and, therefore, the Appeals Board, even if it were duly constituted, has no jurisdiction over the appeal. It contended that 2 CMC \\u00a7 1541(b), which provides a 30-day period within which to file the notice of appeal, is mandatory.\\n2 CMC \\u00a7 1541(b) provides, in part:\\nAny person aggrieved shall have 30 calendar days to appeal the joint decision of the coastal resources management regulatory agencies to the Appeals Board. The Appeals Board shall hear and rule on appeals brought by any person aggrieved by coastal permit decisions, as prescribed by regulations.\\nAfter a hearing, the trial court ruled that because Govendo failed to file his appeal within thirty days of the date of permit issuance, his administrative appeal was \\\"null and void.\\\" The court summarily rejected Govendo's argument that the 30-day filing period under 2 CMC \\u00a7 1541(b) is not mandatory because to so interpret the statute would violate his right to due process.\\nGovendo contends, in the instant appeal, that the trial court erred in concluding that the notice of appeal filed with CRM was not timely and was \\\"null and void.\\\" He specifically argues (a) that the 30-day filing period under 2 CMC \\u00a7 1541(b) is directory, not mandatory; (b) that interpreting the statute as mandatory violates his right to due process of law; and (c) that the 30-day filing period begins to run Only after an aggrieved person has received actual notice of the CRM permit decision. All of these issues involve conclusions of law or matters of statutory interpretation, which we review de novo. Sablan v. Iginoef, Appeal No. 89-008 (N.M.I. June 7, 1990).\\nII.\\nWe begin our analysis by pointing out that Govendo is not challenging the propriety of Nansay's court action for declaratory judgment to determine the question of whether the appeal taken by Govendo to the CRM Appeals Board is barred by 2 CMC \\u00a7 1541(b). Instead, the basic issue he is raising for our review is his contention that the declaratory judgment entered in favor of Nansay was erroneous because the 30-day period within which to file an appeal to the CRM Appeals Board, pursuant to 2 CMC \\u00a7 1541(b), begins running after an aggrieved person has received actual notice of the CRM permit decision.\\nNansay does not dispute that Govendo, an intervenor, is an aggrieved person within the meaning of 2 CMC \\u00a7 1541(b). That being the case, we proceed to review the meaning of the first sentence of the statute: \\\"Any person aggrieved shall have 30-calendar days to appeal the joint decision of the coastal resources management regulatory agencies to the Appeals Board.\\\" (Emphasis added).\\nGovendo contends that the 30-day period provided for appealing a CRM permit decision should be read to mean that such period begins running only after an aggrieved person has \\\"actual knowledge\\\" of the permit decision. He further contends chat the CRM agency attorney had informed him that such was CRM's view of the statute and, therefore, CRM is estopped from asserting that his appeal was untimely filed and, therefore, barred.\\nWe have previously ruled in Tudela v. Marianas Public Land Corporation, No. 90-011 (N.M.I. June 7, 1990), that the filing of a notice of appeal, within the context of Com.R.App.Proc. Rule 4(a)(1), is both mandatory and jurisdictional. Tudela, however, involves the untimely filing of a notice of appeal from a Superior Court judgment. The timely filing of the notice of appeal, we noted in Tudela. confers appellate jurisdiction on this Court.\\nThe instant case, however, involves a somewhat different situation. It involves the filing of a notice of appeal entirely within the administrative level. Since the entire CRM permit process and any administrative appeal taken are governed by the Coastal Resources Management Act (\\\"Act\\\") (2 CMC \\u00a7 1501, et seq.) and the regulations issued pursuant thereto, we need to first address the question of when the 30-day period begins and whether the appeal taken by Govendo, an aggrieved intervenor, was timely or not. If untimely filed, we next address whether the 30-day requirement is mandatory and jurisdictional. If it is, then the CRM Appeals Board does not have jurisdiction to entertain the appeal taken by Govendo.\\nIn construing the meaning of 2 CMC \\u00a7 1541(b) we are guided by relevant canons of statutory construction. A basic canon is that statutory language must be given its plain meaning. Commonwealth Ports Authority v. Hakubotan Saipan Ent., Inc., No. 90-005 (N.M.I. Aug. 8, 1991). 2 CMC \\u00a7 1541(b) provides for the taking of an administrative appeal to the CRM Appeals Board established under 2 CMC \\u00a7 1541(a). Section 1541(b) permits an aggrieved person to appeal a CRM permit decision, but the same section gives that person only 30-days to appeal the decision.\\nGovendo contends that the 30-day period begins to run only after he has received actual notice of the CRM permit decision. Otherwise, he asserts, one cannot appeal a decision that he does not know has been issued.\\nThe right to file an administrative appeal is provided by the Act. The Act, however, is not altogether clear whether the 30-day period begins running from the date of issuance o.f the CRM permit decision or upon receipt of actual notice. Because of this ambiguity in the statute, we need to ascertain what is the intent of this particular provision of \\u00a7 1541(b).\\nAlthough the words \\\"shall have 30 calendar days\\\" appear to be mandatory, rather than directory, the dispositive issue is when does the 30-day period begins. For the reasons hereafter set forth, we hold that the 30-day period began running on the day the CRM permit decision was issued, and not on the day Govendo received actual notice of the decision.\\nOur holding is based on Section 8(H), now Section 8(G), of the CRM Rules and Regulations (\\\"CRM Regs.\\\") which clarifies the ambiguity in 2 CMC \\u00a7 1541(b) and clearly specifies that \\\"[a]ny person aggrieved by a decision of the CRM Agency Officials . may appeal the decision to the CRM Appeals Board by filing a notice of appeal with the CRM Office within thirty (30) days of the issuance of the CRM Permit decision.\\\" (Emphasis added). Commonwealth Register. Vol. 7 No. 10, October 17, 1985, p. 4083 et seq; and as amended, Vol. 12 No. 7, July 15, 1990, p. 7186, et seq. Any statutory ambiguity was erased by the CRM Regulation.\\nSince the decision at issue came out on March 13, 1990, Govendo had until April 12, 1990 to file his appeal. His filing of the appeal on May 4, 1990, was thus untimely and the CRM Board had no jurisdiction to hear the appeal. See, e.g. Country Care View Center. Inc. v. Colorado Department of Social Services, 703 P.2d 1334 (Colo. Ct.App. 1985) (Mandatory time limits for commencing administrative appeals are generally viewed as jurisdictional).\\nWe reject Govendo's contention that our interpretation \\u2014 that \\u00a7 1541(b) is mandatory and jurisdictional \\u2014 violates his right to procedural due process. We fail to see where or how Govendo's due process right is implicated. Our interpretation does not deprive him of iife or property. His contention that his liberty interest at stake is the \\\"liberty given to him by law to effectively participate in the coastal decision making process,\\\" Appellant's Opening Brief, at 6, is without merit. We do not question the right given him under the Act to participate as an intervenor. But the right to file an appeal is also governed by the Act and the regulations promulgated. That is the process due him at law.\\nWe also reject Govendo's alternative argument that, since the CRM attorn\\u00e9y erroneously advised him as to when the 30-day period began running, therefore, the CRM Appeals Board is estopped from not entertaining his appeal. Where both the statute and regulation at issue are clear on the matter, one may not rely on an erroneous legal advise given by another. Further, the party to this case is Nansay, not CRM whose counsel gave the wrong advice. Nothing precludes Nansay from asserting what the CRM statute and regulation together clearly provides.\\nAccordingly, the declaratory judgment entered by the Superior Court that the administrative appeal taken by Govendo was \\\"null and void\\\" is hereby AFFIRMED.\\nDated this 28th day February, 1992.\\nJose S. Dela Cruz, Chief Justice\\nRamon G. Villagomez, Associate Justice\\nJesus C. Borja, Associate Justice\\nSuch permits are required for certain construction projects under the Coastal Resources Management Act of 1983, 2 CMC \\u00a7 1501, et seg.\\n\\\"Any person who can show that the general public would be adversely affected by the proposed CRM permit project shall be admitted as parties [sic] upon timely filing of a petition for intervenor [sic].\\\"\\nAside from the erroneous advice given Govendo by the CRM attorney as to the 30-day period, we note that the CRM Permit Decision at Part V (page seventeen) contributed to the erroneous views of CRM on the matter. Part V (Right Of Appeal) reads: \\\"A notice of appeal must be filed in writing, stating the disputed issue(s), and delivered to the Coastal Resources Management Office within thirty (30) days of the date of receipt of this permit.\\\" (Emphasis added.) Such provision is contrary to the clear language of the CRM Regulations. The regulation is the law and prevails over the decision's language format. CRM is advised to amend the language at issue so that no further confusion will take place.\"}"

n_mar_i/1697424.json

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+"{\"id\": \"1697424\", \"name\": \"Paul Vincent Riley, Plaintiff/Appellee, v. Public School System, Defendant/Appellant\", \"name_abbreviation\": \"Riley v. Public School System\", \"decision_date\": \"1994-02-09\", \"docket_number\": \"Appeal No. 93-027; Civil Action No. 92-0169\", \"first_page\": 85, \"last_page\": \"90\", \"citations\": \"4 N. Mar. I. 85\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"parties\": \"Paul Vincent Riley, Plaintiff/Appellee, v. Public School System, Defendant/Appellant.\", \"head_matter\": \"Paul Vincent Riley, Plaintiff/Appellee, v. Public School System, Defendant/Appellant.\\nAppeal No. 93-027\\nCivil Action No. 92-0169\\nFebruary 9, 1994\\nSubmitted on Briefs October 28, 1993\\nCounsel for appellee: Michael A. White, Saipan (White, Pierce, Mailman & Nutting).\\nCounsel for appellant: Robert C. Naraja, Attorney General, Douglas H. Strand, Assistant Attorney General, Saipan.\\nBEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\\nThe panel unanimously agrees that this case is appropriate for submission without oral argument. See Com. R. App. P. 34(a).\", \"word_count\": \"3008\", \"char_count\": \"18526\", \"text\": \"ATALIG, Justice:\\nThe Public School System (\\\"PSS\\\") of the Commonwealth of the Northern Mariana Islands (\\\"CNMI\\\") appeals from summary judgment orders in favor of the plaintiff/appellee, Paul V. Riley (\\\"Riley\\\"). We hold that the trial court did not err when it concluded that Riley's wife was a dependent, entitled to repatriation expenses, under Riley's employment contract with PSS.\\nISSUE AND STANDARD OF REVIEW\\nThe sole issue before us is whether, pursuant to the terms of Riley's excepted service employment contract with PSS, Riley's wife was a dependent entitled to repatriation expenses to Riley's point of recruitment. We review orders granting summary judgment de novo. Rios v. Marianas Pub. Land Corp., 3 N.M.I. 512, 518 (1993). On appeal, the evidence in the record is viewed in the light most favorable to the nonmoving party. Id.; Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 583 (1st Cir. 1993).\\nFACTS AND PROCEDURAL BACKGROUND\\nRiley, while still single, was hired by PSS for a term from August 21, 1989, to November 20, 1989, as a Classroom Teacher IV under an excepted service employment contract. His point of recruitment was Hawaii. On November 22, 1989, Riley signed a renewal contract with PSS as a Classroom Teacher V for a term commencing November 20, 1989, and ending June 30, 1991. Section 8 of the terms and conditions (\\\"terms\\\"), appended to and made a part of the renewal contract, provides, in pertinent part:\\nExpatriation and Repatriation:\\n(A) Travel: Travel and transportation expenses shall be paid by the Employer as follows:\\n(1) Coach or tourist-class air transportation costs by the shortest direct route for the Employee and the Employee's dependents from the point of recruitment to the duty station.\\n(D) Repatriation: Upon completion of the agreed upon period of service under this contract or any subsequent Certified or Non-Certified contract entered into upon the expiration of this contract, the Public School System shall pay all return travel and transportation expenses to the point of recruitment, to the same extent and subject to the same limitations, as enumerated in sections 7(A) [sic] and 7(B) [sic], and if authorized Section 7(C) [sic] . However, the Employer will be discharged of this responsibility if repatriation expenses are not incurred within one (1) year of the termination date.\\nSee Appellant's Excerpts of Record.\\n\\\"[S]pouses\\\" are included in the definition of \\\"dependents\\\" under \\u00a7 8(E) of the terms, supra.\\nRiley was subsequently married in the CNMI on March 7, 1991, a little less than three months prior to the expiration of his contract with PSS. On May 23, 1991, Riley informed PSS in writing that he would not renew his contract when it expired. He also stated that he intended to remain in the CNMI but that he would be claiming reimbursement, under the contract, for expenses he would incur for planned air travel to Hawaii for both he and his wife.\\nOn February 25, 1992, Riley filed a complaint in the Superior Court seeking payment from PSS for the cost of airline transportation for his wife from Saipan to Honolulu. Riley and his wife flew to Honolulu on May 20, 1992. PSS provided for Riley's ticket but not his wife's ticket. Riley moved for summary judgment on March 23, 1993, on both the repatriation and other related contractual issues. PSS filed a cross motion for summary judgment on April 14, 1993.\\nOn April 29, 1993, the court found that Riley's wife was a dependent under the language of the contract, and that if she flew to Honolulu within one year after the expiration of the contract Riley was entitled to reimbursement for her fare. The court further found that the cost of such fare was $502. However, the court declined to award Riley the repatriation expenses, because there was no evidence in the record showing that Riley's wife flew to Hawaii within the one-year period. It stated that Riley's motion could be renewed to show that his wife's air travel occurred during the specified period.\\nOn May 4, 1993, Riley renewed his motion for summary judgment. Attached to this renewed motion was an exhibit of a plane ticket to Honolulu showing a travel date of May 20, 1992. On May 19, 1993, PSS filed a notice of non-opposition to Riley's renewed summary judgment motion, based on the April 29, 1993, order of the court and the documents supporting the motion for summary judgment.\\nOn May 25, 1993, the court entered an order granting Riley's renewed motion for summary judgment, awarding him reimbursement for his wife's plane fare in the amount of $502. On the same day, the court entered judgment on related contractual disputes which included this amount with interest. PSS timely appealed on May 28, 1993.\\nDISCUSSION\\nPSS argues that the mutual intent of the parties, at the formation of the contract, was to exclude any dependents who subsequently assumed such status from coverage under the repatriation clause. It urges us to go beyond the plain language of the contract and interpret differently '\\\"words or clauses [which] would, if taken literally, defeat the intention.'\\\" Appellant's Brief at 10 (citations omitted).\\nFor the following reasons, we conclude that the contract language is neither patently ambiguous nor susceptible to reasonable differing meanings and, therefore, could be construed by the court. Additionally, we hold that the court did not err in concluding that Riley's wife falls within the contract's definitions of \\\"spouse\\\" and \\\"dependent\\\" for purposes of the repatriation clause.\\nI. Intent of Contracting Parties Encompassed by Unambiguous Contract Language\\nThe intent of contracting parties is generally presumed to be encompassed by the plain language of contract terms. See Fidelino v. Sadhwani, 3 CR 284, 287 (N.M.I. Trial Ct. 1988). The language need only be given legal effect, or construed, by the court and may be disposed of by summary judgment. See Ada v. Sadhwani's, Inc., 3 N.M.I. 303, 310 (1992). Summary judgment is inappropriate, however, where the court, as a fact-finder, must resort to determining the parties' intent because of ambiguity arising from disputed relevant evidence. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)); Barris Indus., Inc. v. Worldvision Enters., Inc., 875 F.2d 1446, 1450 (9th Cir. 1989).\\nPSS's arguments imply that the parties' intent in forming the contract is a disputed issue, necessitating an interpretation of the contract terms. Therefore, we must consider whether the contract terms are ambiguous and, if not, whether PSS submitted disputed relevant evidence supporting its interpretation of the contract.\\nA. Contract Terms not Ambiguous\\nIn this matter, the court appears to have found no ambiguity in the contact terms. The court simply construed the contract according to the plain meaning of its terms. An ambiguity arises from contract language if it is either facially inconsistent (i.e., patent ambiguity), Rodriguez-Abreu, 986 F.2d at 586, or either disputed relevant extrinsic evidence or the contract language itself shows potential reasonable differing meanings of the term(s) (i.e., latent ambiguity). Cf. id. and Barris, 875 F.2d at 1450 (California courts look to see if evidence renders otherwise patently unambiguous contract ambiguous).\\nViewing the contract in a light most favorable to PSS, its terms, particularly \\\"dependents,\\\" \\\"spouse\\\" and \\\"repatriation,\\\" either individually or together are not ambiguous, rendering the legal construction of the terms by summary judgment inappropriate. The term \\\"dependent\\\" is generally understood to mean \\\"one who . . . relies on another for support.\\\" Black's Law Dictionary 437 (6th ed. 1990), and commonly includes spouses and children, such as listed in the terms, supra. The term \\\"spouse,\\\" included in the definition of \\\"dependents,\\\" is not qualified in any way in the contract and generally means \\\"[o]ne's husband or wife.\\\" Black's Law Dictionary, supra, at 1402. \\\"Repatriation,\\\" though not defined in the contract, generally means \\\"[t]he return or restoration of a person or object to his or its country of origin.\\\" Id. at 1299.\\nWe do not see these general, unqualified terms as being either inconsistent with each other or susceptible to reasonable differing meanings. Thus, we look to see if PSS effectively raised a factual dispute below about the parties' intent.\\nB. PSS Failed to Raise a Disputed Material Fact Regarding Parties ' Intent\\nOnce a movant for summary judgment has shown that no genuine issue of material fact exists, the burden shifts to the opponent to show that such an issue does exist. Cabrera v. Heirs of De Castro, 1 N.M.I. 172, 176 (1990). Pursuant to Com. R. Civ. P. 56(e), the opponent, by affidavit or otherwise, \\\"must set forth specific facts showing . a genuine issue for trial.\\\" General denials or conclusory statements are insufficient. See id.; Cabrera, 1 N.M.I. at 176-77. A party, on appeal, may not allege a genuine issue of material fact where it failed to raise the issue below. Cf. NRM Corp. v. Hercules Inc., 758 F.2d 676, 680 (D.C. Cir. 1985).\\nIn this matter, Riley moved for summary judgment, contending that his wife fell within the definition of \\\"dependent,\\\" for repatriation purposes, under the plain language of the contract. To have defeated this construction, it was incumbent upon PSS to raise disputed evidence about the parties' intent. Cf. Borja v. Goodman, 1 N.M.I. 225, 231 (1990) (Dela Cruz, C.J., concurring). This was not done. PSS merely cross-moved for summary judgment and made conclusory allegations, with no supporting evidence or affidavits, regarding the parties' intent at the signing of the contract. Because we find neither ambiguity in the relevant contract terms nor evidence in the record giving rise to reasonable differing meanings of those terms, we will look only to see if the court properly construed the contract language.\\nII. Court did not Err in Concluding that Riley's Wife Fell within Definition of \\\"Dependent\\\" for Purposes of Repatriation\\nWhere possible, terms in \\\"a contract should be given their ordinary and common meaning.\\\" Hills Materials Co. v. Rice, 982 F.2d 514, 516 (Fed. Cir. 1992); cf. Ada, 3 N.M.I. at 309. We conclude that the court properly construed the relevant terms of the employment contract.\\nRiley's wife is his \\\"spouse.\\\" Because this term is not qualified in the contract, she falls within the contract's definition of \\\"dependent,\\\" which includes spouses. See supra note 3. When Riley was repatriated under the contract terms and returned to Hawaii, he was accompanied by his wife. As his dependent, Riley's wife was entitled to repatriation expenses as well. In addition, the court's construction of the contract language gave effect to the entire agreement, as opposed to severing its provisions and reforming the definition of \\\"dependent\\\" to suit any undisclosed intentions of a party. See supra note 4 and accompanying text.\\nPSS states that it \\\"bargained for the hire of a single person [thereby] defining] its costs.\\\" Appellant's Brief at 11. In other words, it contracted to hire a single person and it did not expect that single status to change. Further, PSS objects to its \\\"being required to use public funds to pay for Mr. Riley's wife to accompany him on a trip to his point of recruitment although he is employed in the Commonwealth and both reside [in the Commonwealth].\\\" Id. at 6. We do not see the relevance of these arguments. The contract does not require, for purposes of repatriation, that either the employee or his or her dependents return to the point of hire to resume residence, nor does it link PSS's duties to repatriate a spouse with the employee's marital status at the time of hiring.\\nPSS also argues that because \\\"the definition of 'dependent' in both contracts is broad, it follows that PSS was not bargaining to repatriate an unlimited number of subsequently acquired dependents.\\\" Id. at 11 (emphasis added). We do not follow this argument. The legal effect of a broad definition is more inclusive than a narrow one. Cf. generally Trinity Ventures, Inc. v. Guerrero, 1 N.M.I. 54 (1990).\\nFinally, PSS asks us to infer that because the provision is entitled \\\"Expatriation and Repatriation,\\\" repatriation is limited only to those persons expatriated under the contract. We disagree. Nowhere in the provision is it stated that repatriation is applicable only to those persons expatriated under the contract. Consequently, we will not read the two terms as relying upon each other for effect.\\nHad PSS intended to exclude any subsequently-acquired dependents from coverage under the repatriation clause, it should have drafted the contract accordingly.\\nCONCLUSION\\nFor the foregoing reasons, we AFFIRM the Superior Court's orders and judgment in favor of the plaintiff/appellee, Paul V. Riley.\\nSee Excepted Service Employment Contract No. 90-E00063 at 2 (renewal contract effective Nov. 20, 1989) and Terms and Conditions of Excepted Service Employment Contract [hereinafter \\\"terms\\\"] \\u00a7 8(F) in Appellant's Excerpts of Record. The repatriation provision was not amended by a February 7, 1991, contract amendment.\\nThe provision refers to subsections 7(A), (B) and (C), which do not exist. Section 7 merely states the means by which additional terms and conditions may be added to the contract. The correct reference appears to be subsections 8(A), (B) and (Q.\\nDependents are defined, in relevant part, as:\\nEmployee's Dependents: The Employee's dependents are defined as spouse, children . . . unmarried and under twenty-one (21) years of age, or physically or mentally incapable of supporting themselves regardless of age, wholly dependent parents of the Employee and/or spouse, or children by a previous marriage for whom the Employee or his spouse has legal custody.\\nTerms, supra note 1, \\u00a7 8(E).\\nSee also NRM Corp. v. Hercules Irte., 758 F.2d 676, 681 (D.C. Cir. 1985). The intention relevant to the formation of a contract is manifested intent and not an undisclosed intention. See Restatement (Second) of Contracts [hereinafter Contracts] \\u00a7 2, 3, 5, 17-20 (1981). A party generally should not be bound to an intent of the other party unless there is evidence that he had reason to know of that intent. See id. \\u00a7 201.\\nThe construction of a contract is a legal process whereby contract terms are given effect. See Nevets C.M., Inc. v. Nissho Iwai Am. Corp., 726 F. Supp. 525, 531 (D.N.J. 1989). This differs from contract interpretation, which requires a choice between alternative reasonable meanings which may attach to contract terms. See id. and infra notes 7-9 and accompanying text.\\nSee also Orkin Exterminating Co., Inc. v. FTC, 849 F.2d 1354, 1360 (11th Cir. 1988), cert. denied, 488 U.S. 1041, 109 S. Ct. 865, 102 L. Ed. 2d 989 (1989).\\nSee Aso Lumpkin v. Envirodyne Indus., Inc., 933 F.2d 449, 456 (7th Cir.), cert denied, 502 U.S._, 112 S. Ct. 373, 116 L. Ed. 2d 324 (1991): \\\"[I]f the parties dispute the extrinsic evidence on an ambiguous contract, then a fact-finder must be called upon to determine the intent of the parties.\\\" The rationale behind this is that intent is the pivotal factor choosing between alternative interpretations. See Roberts v. Consolidated Rail Corp., 893 F.2d 21, 25 (2d Cir. 1989).\\nThe \\\"interpretation\\\" of a contract relates to \\\"the ascertainment of its meaning,\\\" Contracts, supra note 4, \\u00a7 200. and is distinguishable from the \\\"construction\\\" of a contract, which deals with the determination of the \\\"legal operation or effect\\\" of a contract, id. \\u00a7 200 and reporter's note at 82-83.\\nWere we to fmd the contract terms either patently or latently ambiguous we would, absent disputed relevant evidence, look to see if the court interpreted the contract properly. Had there been disputed evidence going to the interpretation of the contract terms, we would remand for fact-finding of the parties' intent.\\nEven where a contract is facially ambiguous, it may be interpreted by the court as a matter of law where \\\"there is no evidence that would support a [reasonable] conflicting interpretation of the agreement.\\\" America First Inv. Corp. v. Goland, 925 F.2d 1518, 1522 (D.C. Cir. 1991) (emphasis added); see also Lumpkin, 933 F.2d at 456 (\\\"If the court finds that a contract is ambiguous and that extrinsic evidence is undisputed, then the interpretation of the contract remains a question of law\\\").\\nSee generally Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 586 (1st Cir. 1993). However, for the evidence to be admissible, it must give rise to a reasonably susceptible interpretation of the contract language. See A. Kemp Fisheries, Inc. v. Castle & Cooke, Inc., 852 F.2d 493, 496-97 (9th Cir. 1988); America First, 925 F.2d at 1522 (summary judgment appropriate if there is no evidence supporting conflicting interpretation).\\nWhen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\\nCom. R. Civ. P. 56(e).\\nWe have examined the record fully and have found only two instances in which PSS argued in memoranda that the mutual intent of the parties, at the formation of the contract, was to exclude subsequently-acquired dependents from coverage under the repatriation clause. Conclusions submitted in a memorandum are not sufficient for purposes of Com. R. Civ. P. 56. See supra note 12 and accompanying text.\\nIn Trinity, we found the lower court's broad interpretation of the term '\\\"land transaction' to mean any land transaction involving any of the . . . lots . [to be] a reasonable, lawful, and effective interpretation\\\" of the contract. Trinity Ventures, Inc. v. Guerrero, 1 N.M.I. 54, 64 (1990).\"}"

n_mar_i/1697428.json

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+"{\"id\": \"1697428\", \"name\": \"Antonio A. Benavente, Doing Business as Benavente Security Agency, Plaintiff/Appellee, v. Double One Enterprises, Inc., Defendant/Appellant\", \"name_abbreviation\": \"Benavente v. Double One Enterprises, Inc.\", \"decision_date\": \"1995-10-02\", \"docket_number\": \"Appeal No. 95-018; Civil Action No. 93-1217\", \"first_page\": 299, \"last_page\": \"300\", \"citations\": \"4 N. Mar. I. 299\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"parties\": \"Antonio A. Benavente, Doing Business as Benavente Security Agency, Plaintiff/Appellee, v. Double One Enterprises, Inc., Defendant/Appellant.\", \"head_matter\": \"Antonio A. Benavente, Doing Business as Benavente Security Agency, Plaintiff/Appellee, v. Double One Enterprises, Inc., Defendant/Appellant.\\nAppeal No. 95-018\\nCivil Action No. 93-1217\\nOrder of Dismissal October 2, 1995\\nCounsel for appellee: Michael A. White, White, Pierce, Mailman & Nutting, Saipan.\\nAppearing for appellant: Yi Qing Han, Saipan.\\nBEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"word_count\": \"568\", \"char_count\": \"3316\", \"text\": \"PER CURIAM:\\nOn September 14, 1995, the appellee, Antonio A. Benavente, filed a motion to dismiss this matter, pursuant to Com. R. App. P. 42(c), for failure to comply with Com. R. App. P. 11. This motion was disregarded because service of the motion was executed upon the co-defendant, Yi Qing Han (\\\"Han\\\"), individually and not upon the appellant, Double One Enterprises, Inc. (\\\"Double One\\\"). Han, the president of Double One, is listed on the notice of appeal as the attorney of record, and the record reflects that he is proceeding pro se on behalf of Double One. Han is not a member of our Bar Association. See Northern Marianas Bar Association, Active CNMI Bar Members (July 1995).\\nGenerally, \\\"a corporation without counsel[] cannot be a party to [an] appeal.\\\" Jones v. Hardy, 727 F.2d 1524, 1527 n.2 (Fed. Cir. 1984). Instead, it must be represented by an attorney, see, e.g., In re Highley, 459 F.2d 554, 555 (9th Cir. 1972), and not its president appearing pro se on its behalf. See United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969) (cited in Highley, 459 F.2d at 555); cf. Church of the New Testament v. United States, 783 F.2d 771, 774 (9th Cir. 1986) (\\\"non-attorney litigants may not represent other litigants\\\"). Otherwise, the corporation is not properly before the appellate court. Highley, 459 F.2d at 556; cf. Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir. 1986). Hence, we question the jurisdiction of this Court over Double One's appeal.\\nOn September 22, 1995, we issued an order for Double One to show cause why this appeal should not be dismissed for lack of jurisdiction. In that order we noted the general rule that a corporation must be represented by counsel. On September 29, 1995, Han, in his capacity as president of Double One, responded to the order by letter. That letter, however, addresses only the merits of Double One's appeal and not the lack of counsel.\\nAccordingly, it is hereby ORDERED that this appeal is DISMISSED for lack of jurisdiction, each party to bear its own costs. It is FURTHER ORDERED that the mandate shall issue immediately.\\nIn Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir. 1986) the Ninth Circuit dismissed a pro se co-party's appeal for lack of jurisdiction under Fed. R. Civ. P. 11 and Fed. R. App. P. 3(c). In that case, the party did not personally sign the notice of appeal. While Fed. R. App. P. 3(c), which is identical to Com. R. App. P. 3(c), does not require either a pro se party's signature or that of a represented party's attorney, the court in Carter held that such was required where there are multiple parties which may appeal from a decision and it is \\\"'[t]he only means of determining which litigants are interested in pursuing an appeal.'\\\" Carter, 784 F.2d at 1008 (citation omitted). Like the court in Carter, the record before us evinces confusion as to the identity of the appellant(s) in this matter.\"}"

n_mar_i/1697430.json

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+"{\"id\": \"1697430\", \"name\": \"Manuel S. Villagomez, Plaintiff/Appellee, v. Antonio P. Sablan, Gabriel P. Sablan, and Gregorio P. Sablan, Defendants/Appellants\", \"name_abbreviation\": \"Villagomez v. Sablan\", \"decision_date\": \"1996-06-12\", \"docket_number\": \"Appeal No. 94-037; Civil Action No. 93-0822\", \"first_page\": 396, \"last_page\": \"400\", \"citations\": \"4 N. Mar. I. 396\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: TAYLOR, Chief Justice, and LAMORENA and MACK, Special Judges.\", \"parties\": \"Manuel S. Villagomez, Plaintiff/Appellee, v. Antonio P. Sablan, Gabriel P. Sablan, and Gregorio P. Sablan, Defendants/Appellants.\", \"head_matter\": \"Manuel S. Villagomez, Plaintiff/Appellee, v. Antonio P. Sablan, Gabriel P. Sablan, and Gregorio P. Sablan, Defendants/Appellants.\\nAppeal No. 94-037\\nCivil Action No. 93-0822\\nOrder of Dismissal June 12, 1996\\nCounsel for appellants: Antonio P. Sab\\u00edan, Gabriel P. Sab\\u00edan and Gregorio P. Sab\\u00edan, pro se, Saipan.\\nCounsel for appellee: John A. Manglona, Saipan.\\nBEFORE: TAYLOR, Chief Justice, and LAMORENA and MACK, Special Judges.\", \"word_count\": \"2181\", \"char_count\": \"13223\", \"text\": \"TAYLOR, Chief Justice:\\nOn March 29, 1996, the appellee, Manuel S. Villagomez, moved for dismissal of this action pursuant to Com. R. App. P. 42(c). The motion is based on the failure of the appellants, Antonio P. Sab\\u00edan, Gregorio P. Sab\\u00edan and Gabriel P. Sab\\u00edan, to prosecute this appeal, despite the Court's repeated warnings and repeated opportunities for the appellants to correct past procedural mistakes. We grant the motion for dismissal.\\nPROCEDURAL HISTORY\\nThe appellants are acting pro se. This appeal was filed on September 26, 1994. Thereafter, the appellants filed a \\\"Motion for Retrial at the Superior Court.\\\" This Court denied the motion, explaining that the Rules of Appellate Procedure must be followed for all appeals. The Court's order denying the motion states: \\\"The Court realizes that appellants are not represented by counsel and may not be familiar with the Court rules; these facts, however, do not excuse them from compliance.\\\" Villagomez v. Sablan, App. No. 94-037 (N.M.I. Sup. Ct. Nov. 29, 1994) (Order Denying Motion for Retrial at Superior Court at 1-2).\\nOn April 11, 1995, the appellee, Manuel S. Villagomez, moved to dismiss this appeal for failure of the appellants to order a transcript of proceedings in the Superior Court or certify that none was necessary under Com. R. App. P. 10(b)(1). On the same date, this Court issued its first order to show cause, asking the parties why the appeal should not be dismissed for failure to prosecute under Com. R. App. P. 42(c). Villagomez, supra (Apr. 11, 1995) (Order to Show Cause Why the Appeal Should not be Dismissed). That order reiterated the Court's caution to the appellants regarding failure to comply with the Rules of Appellate Procedure. Id. On May 3, 1995, the appellants responded to the motion to dismiss and the order to show cause by filing a \\\"Transcript Designation and Order Form\\\" designating \\\"the whole testimony\\\" of the two-day trial in this matter for transcription. Response to Motion to Dismiss (attaching Transcript Designation and Order Form). The Superior Court filed a certificate of record with this Court on June 26, 1995. However, the appellants took no further steps to ensure that the transcript was actually prepared.\\nOn December 22, 1995, it appearing that the transcript had still not been prepared, this Court issued a second order to show cause. Villagomez, supra (Dec. 22, 1995) (Second Order to Show Cause Why the Appeal Should Not Be Dismissed). The Court took pains to explain to the appellants the seriousness of their repeated failure to assemble an appropriate record on appeal:\\nUnder Commonwealth law, violations of Com. R. App. [P]. 10(b)(2) are grounds for sanctions, including, in extreme cases, dismissal of an appeal. In re Estate of Deleon Castro, [4 N.M.I. 102, 108 (1994)]. Likewise, Federal courts interpreting counterpart Federal Rules of Appellate procedure have dismissed appeals where an appellant challenges a trial court's findings but does not provide a transcript on appeal. Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991); Guam Sasaki Corp. v. Diana's, Inc., 881 F.2d 713, 717 (9th Cir. 1989).\\nAppellants here are proceeding pro se. This Court has twice cautioned them that the Rules of Appellate Procedure must be followed by all parties, regardless of whether they have an attorney. See Order Denying Motion for Retrial at Superior Court (Nov. 29, 1994); Order to Show Cause Why the Appeal Should not be Dismissed (Apr. 11, 1995).\\nNevertheless, this Court will provide Appellants one more opportunity to explain or correct the procedural errors in their appeal. Accordingly, Appellants are ordered to show this Court why it should not dismiss this appeal for failure to comply with the Commonwealth Rules of Appellate Procedure as described herein. Appellants' response to this Order to Show Cause shall be due on January 8, 1996. Appellee shall have an opportunity to file an opposition memorandum, which shall be due on January 12, 1996. Both parties' submissions shall be confined to the matters raised by Appellant's Motion to Dismiss and this Order to Show Cause; they shall not discuss the merits of this appeal.\\nId. at 3-4. In response, on January 2, 1996, the appellants sought and obtained from the Superior Court a sixty-day extension of time in which to file a transcript.\\nA hearing on the Court's second order to show cause was held on January 15, 1996. At the hearing, the Court agreed to give the appellants a final opportunity to cure their past failures to assemble the record on appeal. The Court issued an order on that same date, summarizing its ruling from the bench:\\nAppellants have repeatedly professed reliance on Court personnel as the basis for their failure to follow the applicable Rules of Appellate Procedure in this matter. The Court cautions Appellants that it is their responsibility to become aware of the applicable Rules and ensure compliance with them. Their pro se status does not excuse failure to comply with the Rules. In particular, Com. R App. P. 11(a) requires an appellant to take all actions necessary to assemble the record on appeal. Appellants here have not discharged this duty. Nevertheless, despite Appellants' repeated failures to comply with the Rules, the Court will grant them one final, limited opportunity to assemble the record on appeal.\\n. . . The Superior Court is authorized to supplement the record with the transcript of the trial in this matter, provided that the transcript is completed within the sixty day period established by that Court's Extension of Time to File Transcript. Appellants shall ensure that a supplementary Certificate of Record is filed by the Superior Court by March 4, 1996.\\n. . . Appellants must also comply strictly with Com. R. App. P. 30 in submitting excerpts of record containing the relevant portions (and only the relevant portions) of the transcript to this Court by March 4, 1996. No further briefing by Appellants is authorized.\\n. . . Appellee may, if desired, submit supplemental excerpts of record and/or file a supplemental brief concerning the newly-supplemented record. Such supplemental submissions shall be due on March 15, 1996.\\n. . . This Court shall retain jurisdiction over this matter during the period of remand. In the event that Appellants fail to carry out in a timely fashion any of the actions required of them by this Order, this matter will again be considered for dismissal for failure to prosecute the appeal, pursuant to Com. R. App. P. 42(c).\\nVillagomez, supra (Jan. 15, 1996) (Order at 1-2) (\\\"January 15 order\\\"). On March 5, 1996, the Superior Court filed its new certificate of record, which showed that the transcript of proceedings had been completed and filed at the Superior Court on February 9, 1996.\\nTo date, no excerpts of record have been filed with this Court. Instead, on March 7, 1996, the appellants filed an \\\"Extension of Time to File Transcript,\\\" requesting an additional seven days to complete this filing. As grounds for this request, the appellants state:\\nBoth Marian D. Calvo and I (Antonio) misunderstood of where to file the transcript. The transcript was filed since February 9, 1996 at the Superior Court which was supposed to be at the Supreme Court.\\nAnother thing, we did not quite understand that only the relevant parts to be filed so we would like to apologize for that error.\\nExtension of Time to File Transcript. The appellee's renewed motion for dismissal followed on March 29, 1996.\\nANALYSIS\\nAs the Court has repeatedly stressed to the appellants, Com. R. App. P. 11 places upon them the duty to assemble the record on appeal. Moreover, violations of Com. R. App. P. 10(b)(2) may in extreme cases warrant dismissal. In re Estate of Deleon Castro, 4 N.M.I. 102, 108 (1994); see also Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991); Guam Sasaki Corp. v. Diana's, Inc., 881 F.2d 713, 717 (9th Cir. 1989). At this juncture, the time limits set forth in this Court's January 15 order have passed, and the appellants have still not provided us with the excerpts of record which are necessary to any meaningful review of the merits of this appeal. Their most recent request for an extension of time comes after the March 4 deadline clearly set forth in the Court's January 15 order.\\nAny one of the appellants' failures to comply with particular deadlines or adhere to particular orders, taken in isolation, would not warrant dismissal. Certain other errors, such as the improper filing of a motion for retrial, or arguing the merits in a brief when expressly instructed not to, amount to technical errors which, standing alone, do not affect the validity of the appeal. See Lucky Dev. Co., Ltd. v. Tokai U.S.A., Inc., 2 N.M.I. 81, 86-87 (1991). Nevertheless, there comes a time when the Court must view the appellants' actions as a whole and must address repeated, unexcused and prejudicial violations of our rules.\\nThe appellants were cautioned in the Court's January 15 order that they were being given \\\"one final, limited opportunity\\\" to present an adequate record on appeal. Id. at 2. The order listed the actions the appellants were to take and provided clear deadlines by which they were to be taken, among them that they must \\\"comply strictly with Com. R. App. P. 30 in submitting excerpts of record containing the relevant portions (and only the relevant portions) of the transcript to this Court by March 4, 1996.\\\" Id. In justifying their failure to do so, appellants claim that \\\"we did not quite understand that only the relevant parts to be filed.\\\" Extension of Time to File Transcript. The fact that the appellants are acting pro se does not explain or justify this failure to follow the plain, express language of the Court's January 15 order. Moreover, coming on the heels of the appellants' series of other procedural lapses, this latest error creates grave doubts in our mind that appellants will follow future procedural requirements relating to prosecuting this appeal.\\nAn additional factor in favor of dismissal is that the appellants' failure to meet the deadline, like other past failures in this case, is prejudicial to the appellee, who was required by the Court's January 15 order to file a responsive brief in this matter by March 15, 1996. Allowing the extension requested by the appellants would have afforded the appellee only one day to do so. In a more fundamental sense, the appellants' conduct of this appeal has created one delay after another in the final disposition of this matter. According to the unsworn statement of appellee's counsel (unrebutted by the appellants), the appellants have continued to occupy the land which is the subject of this lawsuit. Memorandum in Support of Motion to Dismiss Appeal at 7. Regardless of which party now occupies the land, the appellants have unreasonably frustrated the ultimate resolution of the question of its ownership. It may be said that another seven days will not change significantly the positions of the parties. But the appellants' unwillingness or inability to follow the most express orders of this Court gives us grave doubts that the seven days' delay sought here will be the end of the matter. Moreover, repeated and unexcused rule violations are disruptive and prejudicial to the Court itself. See Guam Sasaki Corp., 881 F.2d at 717. Com. R. App. P. 42(c) authorizes dismissal in extreme cases. We regretfully conclude that the appellants' failure to move this case along has become extreme.\\nCONCLUSION\\nFor the foregoing reasons, this appeal is hereby DISMISSED with prejudice.\\nVillagomez v. Sablan, Civ. No. 93-0822 (N.M.I. Super. Ct. Jan. 2, 1996) (Extension of Time to File Transcript); Answer: Why the Appeal Should Not Be Dismissed?, Appeal No. 94-037 (N.M.I. Sup. Ct. filed Jan. 5, 1996). The appellants' memorandum, despite the order's clear instruction not to address the merits of the appeal, was largely devoted to the appellants' view of the merits, and did not provide any valid excuse for the lengthy delay in preparing the transcript. At the hearing, the Court ordered that the improper portions of the memorandum be stricken.\"}"

n_mar_i/1697434.json

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+"{\"id\": \"1697434\", \"name\": \"Diego M. Songao, Crisencia Burch, Maria Didonato, and Francisco Songao, heirs of Serafina M. Songao, deceased, Plaintiffs/Appellants, v. Commonwealth of the Northern Mariana Islands, Defendant/Appellee\", \"name_abbreviation\": \"Songao v. Commonwealth\", \"decision_date\": \"1994-10-05\", \"docket_number\": \"Appeal No. 93-028; Civil Action No. 90-0165\", \"first_page\": 186, \"last_page\": \"191\", \"citations\": \"4 N. Mar. I. 186\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLA-GOMEZ, Justice, and KOSACK, Special Judge.\", \"parties\": \"Diego M. Songao, Crisencia Burch, Maria Didonato, and Francisco Songao, heirs of Serafina M. Songao, deceased, Plaintiffs/Appellants, v. Commonwealth of the Northern Mariana Islands, Defendant/Appellee.\", \"head_matter\": \"Diego M. Songao, Crisencia Burch, Maria Didonato, and Francisco Songao, heirs of Serafina M. Songao, deceased, Plaintiffs/Appellants, v. Commonwealth of the Northern Mariana Islands, Defendant/Appellee.\\nAppeal No. 93-028\\nCivil Action No. 90-0165\\nOctober 5, 1994\\nArgued and Submitted March 8, 1994\\nCounsel for appellants: Eric S. Basse, Saipan (Office of James H. Grizzard).\\nCounsel for appellees: Douglas H. Strand, Assistant Attorney General, Saipan.\\nBEFORE: DELA CRUZ, Chief Justice, VILLA-GOMEZ, Justice, and KOSACK, Special Judge.\", \"word_count\": \"2631\", \"char_count\": \"16478\", \"text\": \"VILLAGOMEZ, Justice:\\nDiego Songao, Crisencia Burch, Maria Didonato, and Francisco Songao (collectively the \\\"Songaos\\\"), appeal a Superior Court decision remanding a Land Commission determination of ownership issued in favor of the Commonwealth government. The trial court concluded, after review, that: (1) the Land Commission violated the Songaos' rights to procedural due process, and (2) the Land Commission determination that the Commonwealth government owned the land at issue was not supported by substantial evidence.\\nThe Songaos claim ownership of Lot 3210 in Finagtan, Rota, based on a land exchange between two private individuals. Although the trial court stated that there was \\\"ample testimony that an exchange did occur between Fintano and Francisco, whereby the latter received the Finagtan property,\\\" the court decided that \\\"this evidence should not be used to bolster the claims of the [Songaos] in the proceedings before this court.\\\" The trial court remanded the matter to the Land Commission for further evidentiary hearings.\\nISSUE AND STANDARD OF REVIEW\\nThe Songaos present the substantive issue of whether the trial court erred in failing to find the Songaos owners of Lot 3210. We do not reach this issue, however, because our decision turns on the preliminary procedural question of whether the court erred in remanding the case to the Land Commission. Whether the trial court may remand a case to the Land Commission under 2 CMC \\u00a7 4249 is a question of law which we review de novo.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nDuring the Japanese occupation of Rota, Francisco Maratita, deceased (\\\"Francisco\\\"), owned a parcel of land in Papa'lada, Rota. At the same time, Fintano Taisacan, deceased (\\\"Fintano\\\"), owned a lot at Finagtan, presently identified as Lot 3210. Based on a purported exchange of these lots, Francisco's daughter Serafina M. Songao (\\\"Serafina\\\") filed a claim of ownership of Lot 3210 with the Land Commission.\\nThe Land Commission issued a preliminary determination of ownership to Lot 3210 in favor of Serafina. The Land Commission subsequently reversed that decision and, on October 18, 1989, issued a determination of ownership in favor of the Commonwealth government.\\nOn February 15, 1990, the Songaos, as Serafina's heirs, filed a complaint to quiet title in Superior Court. The complaint is an appeal from the Land Commission determination pursuant to 2 CMC \\u00a7 4249, which provides:\\nAny person who . . . claims an interest. . . and who disagrees with the [Land Commission's] determination of ownership . . . may file for a review of the determination of ownership by filing a complaint in the [Superior Court] . . . . The complaint shall be in the nature of a quiet title suit.... The complaint shall name as defendants all those persons known to the plaintiff who claim an interest in the land. A determination of ownership shall be upheld if it is supported by substantial evidence found in the record taken as a whole including the record before the Land Commission and such additional evidence as shall be admitted before the [Superior Court].\\nThe trial court reviewed the evidence upon which the Land Commission based its determination, as well as two affidavits submitted to the court. From this review, the court found \\\"ample\\\" evidence that \\\"an exchange did occur between Fintano and Francisco, whereby the latter received the Finagtan property.\\\" However, the court ruled that such evidence \\\"should not be used to bolster the claims of the Plaintiffs in the proceedings before [the trial] court.\\\" Thus, instead of quieting title in favor of the Songaos, based on the evidence taken as a whole, the trial court vacated the title determination to Lot 3210 and remanded the matter to the Land Commission \\\"with instructions that the Land Commission be required to hold another, public, hearing, consistent with [the court's decision], for an opportunity to build a substantial documented record.\\\"\\nThe Songaos timely appealed the decision to remand the case to the Land Commission. They argue that the evidence before the trial court was sufficient to enable entry of judgment in their favor. We hold that the trial court erred by failing to enter judgment in favor of one of the parties, and should not have remanded the case to the Land Commission.\\nANALYSIS\\nWhere a statute establishes an administrative adjudicatory scheme, we look to that statute to determine the scope, if any, of judicial review of the agency's actions. Here, the Land Commission Act of 1983 (\\\"Act\\\") creates the Land Commission, charges it with the task of registering all land in the Commonwealth, and provides for judicial review of the Land Commission's land ownership determinations.\\nTwo CMC \\u00a7 4249 of the Act governs this appeal. That provision mandates that the Superior Court uphold a determination of ownership which it finds to be supported by substantial evidence \\\"in the record taken as a whole.\\\" The record \\\"as a whole\\\" comprises \\\"the record before the Land Commission and such additional evidence as shall be admitted before\\\" the court.\\nIn the present case, the Superior Court reviewed the evidence on which the Land Commission based its decision, as well as additional evidence consisting of two affidavits. The court found that the Land Commission based its determination of ownership for Lot 3210 on \\\"insufficient\\\" relevant evidence.\\nThe Act does not expressly preclude the trial court from remanding to the Land Commission where, as here, the record taken as a whole does not support the Land Commission determination. The authority to remand in such instances has been deemed an inherent part of a court's power under other statutory schemes providing for judicial review of agency action. In this case, however, the Act specifically provides that appeals of Land Commission determinations must be brought as quiet title actions, and directs the trial court to review the whole record, including any additional evidence that the court decides to admit. From our analysis of this language and the rest of the Act's text and legislative history which follows, we conclude that the legislature intended: (1) 2 CMC \\u00a7 4249 of the Act to provide for trial de novo of a Land Commission determination which has been appealed, and (2) where an ownership determination is not supported by substantial evidence, to authorize the court to reverse and enter judgment, based on the \\\"record taken as a whole.\\\"\\nI. The Text of the Land Commission Act\\nTwo CMC \\u00a7 4249 of the Act specifies that \\\"[t]he complaint shall be in the nature of a quiet title suit.\\\" The section requires the plaintiff to name as defendants \\\"all those persons known . . . who claim an interest in the land,\\\" not simply the adverse party or parties from the administrative proceeding. Additionally, the section specifies that the trial court should apply the procedures it utilizes \\\"for processing and disposing of civil litigation.\\\"\\nWe interpret this text to direct the trial court to conduct a trial de novo in appeals from Land Commission determinations, reverse a determination where it is not backed by substantial evidence (just as the court is to affirm determinations supported by substantial evidence), and quiet title to the land in question, rather than remand the matter to the Land Commission. The legislative history of the Act confirms our conclusion.\\nBE. Legislative History\\nIn construing legislation a court may, if necessary, consult legislative history. Standing committee reports in particular, while not decisive, are highly persuasive indicia of legislative intent. The most persuasive evidence, however, comes from conference committee reports, which represent \\\"the final statement of terms agreed to by both houses\\\" of a legislature.\\nThe Land Commission Act originated as House Bill 94 (\\\"H.R. 94\\\" or \\\"bill\\\") in the Third Commonwealth Legislature. As passed initially by the House of Representatives, section 18 of H.R. 94 included the following provision: \\\"A determination of ownership shall be upheld if it is supported by substantial evidence found in the record taken as a whole.\\\"\\nH.R. 94 then moved to the Senate. The Attorney General's office submitted a letter, which the Senate Standing Committee on Judiciary, Government & Law attached to its final report. The letter states, in part:\\nSection 18 provides that administrative determinations of ownership shall be upheld by the courts if factual determinations are supported by \\\"substantial evidence.\\\" It is obviously the intent of the draftsmen to confine judicial review to the administrative record made below by the land registration teams. We would suggest that the Committee underline this notation by inserting the following phrase . . . between \\\". . . land\\\" and \\\"A determination . . .\\\"Judicial review shall be confined to the administrative record.\\nTellingly, rather than adding the language suggested by the Attorney General's office, the Senate inserted a phrase to make the relevant sentence of H.R. 94 \\u00a7 18, read as follows: \\\"A determination of ownership shall be upheld if it is supported by substantial evidence found in the record taken as a whole[,] including the record before the Land Commission and such additional evidence as shall be admitted before the Commonwealth Trial Court. \\\"\\nThe House conference committee which subsequently considered the bill accepted the Senate's amendment to section 18. The legislature then passed H.R. 94, as amended. The Governor signed it into law in 1983 as the Land Commission Act.\\nUnfortunately, we have no explanation for the Senate's addition of the language \\\"including the record before the Land Commission and such additional evidence as shall be admitted before the Commonwealth Trial Court\\\" because a typhoon destroyed the Senate records from the Third Commonwealth Legislature. Nevertheless, the surviving House records establish that the Senate introduced the amendment, and that it did so with knowledge of the Attorney General's previously quoted letter. The acceptance of the Senate's amendment to the bill verifies the legislature's intent to provide for trial de novo of appeals from Land Commission determinations.\\nIn summary, although 2 CMC \\u00a7 4249 of the Act does not expressly say so, the trial court is empowered to determine de novo whether a Land Commission determination of ownership should stand. As a procedural matter, the court should begin by examining the administrative record to establish whether substantial evidence supports the Land Commission's determination. If substantial evidence supports the agency's otherwise proper decision, the court should affirm. If the administrative record is deficient and the court is consequently unable to determine whether the Land Commission's determination should stand, the court should permit the parties to submit additional evidence. Thereafter, the court may affirm or reverse the Land Commission's determination, depending on whether the agency record, as supplemented, warrants affirmance or reversal.\\nCONCLUSION\\nUnder the Act, an appeal from a Land Commission determination of ownership takes the form of a quiet title action. In adjudicating such actions, the court considers all issues de novo and admits additional evidence it deems relevant. The court then adjudicates the matter accordingly, based on the record taken as a whole.\\nWe VACATE the Superior Court's order and REMAND for the trial court to quiet title to Lot 3210 based on the evidence found in the record taken as a whole, including such additional evidence as the court may admit.\\nThe Songaos' predecessor in interest.\\nSongao v. Commonwealth, Civ. No. 90-0165 (N.M.I. Super. Ct. Apr. 28, 1993) (opinion and orders at 22).\\nAppellate courts generally deem orders remanding actions to administrative agencies for further proceedings to be interlocutory in nature and not appealable as final decisions. See, e.g., Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990); 2 Charles H. Koch, Jr., ADMINISTRATIVE Law and Practice, \\u00a7 8.12[l](c) (1985 & Supp. 1994). However, due to the unique nature of the Land Commission Act, this rule is inapplicable. The decision below was a \\\"final judgment\\\" for purposes of vesting appellate jurisdiction over this appeal from an erroneous decision in a quiet title action.\\n2 CMC \\u00a7 4249.\\nSongao. supra note 2, opinion and orders at 22.\\nId.\\nId. at 23.\\n1 CMC \\u00a7 9112(c). See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 735, 105 S. Ct. 1598, 1602, 84 L. Ed. 2d 643, 651 (1985) (\\\"We begin . . . with the language of the statute\\\").\\nPL 3-79 (1983) (codified at 2 CMC \\u00a7 4211 et seq.).\\n2 CMC \\u00a7 4249.\\nId. (emphasis added).\\nSongao, supra note 2, opinion and orders at 22.\\nSee, e.g., Secretary of Labor v. Farino, 490 F.2d 885, 891 (7th Cir. 1973) (discussing the judicial review provision of the federal Administrative Procedure Act); accord Seo v. United States Dept. of Labor, 523 F.2d 10, 13-14 (9th Cir. 1975).\\nCommonwealth Ports Auth. v. Hakubotan Saipan Enters., Inc., 2 N.M.I. 212, 224 (1991) (legislative intent is to be discerned by analyzing the statute as a whole, not just an isolated phrase) (citing Office of the Attorney General v. Cubol, 3 CR 64, 73 (D.N.M.I. App. Div. 1987)).\\n2 CMC \\u00a7 4249. A quiet title action is defined as \\\"[a] proceeding to establish the plaintiffs title to land by bringing into court an adverse claimant and there compelling [the adverse claimant] either to establish his [or her] claim or be forever after estopped from asserting it.\\\" Black's Law Dictionary 1249 (6th ed. 1990). As suggested by this definition, decisions in such actions are final and binding on the parties or their privies.\\n2 CMC \\u00a7 4249.\\nId.\\nA court may look to legislative history for guidance where the enacted text may reasonably be read in two ways, or where no single path of meaning clearly appears. 2A Norman J. Singer. Statutes and Statutory Construction \\u00a7 48.01 (5th ed. 1992); see also Camacho v. Northern Marianas Retirement Fund, 1 N.M.I. 362, 369 n.5 (1990).\\nSinger, supra note 18, \\u00a7 48.06.\\nId. \\u00a7 48.08.\\nThe bill was first introduced, but never acted upon, during the Second Commonwealth Legislature. H.R. Report No. 119 at 2, 3d N.M.I. Legis. (1983).\\nLater codified as amended as 2 CMC \\u00a7 4249.\\nH.R. Report No. 94 \\u00a7 18, 3d N.M.I. Legis. (1983).\\nSee Sen. Report No. 240, 3d N.M.I. Legis. (1983).\\nLetter from William S. Mount, Commonwealth Assistant Attorney General & Chief of Civil Division, to Ignacio K. Quichocho, Chairman, Commonwealth Senate Committee on Judiciary, Government & Law at 2 (May 17, 1983) (appended to S. Rep. No. 240) (emphasis added).\\nH.R. Report No. 94 \\u00a7 18, 3d N.M.I. Legis. (1983) (emphasis in original).\\nCf. Singer, supra note 18, \\u00a7 48.10 (noting that in determining legislative intent, federal courts consider statements of interested parties at congressional committee hearings to be helpful because records of the hearings are printed and distributed to members of Congress, and it is assumed, therefore, that the legislators \\\"had knowledge of [the witnesses'] statements and of the evils described\\\").\\nCf. id. \\u00a7 48.10 (\\\"If the legislature adopts an amendment urged by a witness, it may be assumed that the intent voiced was adopted by the legislature,\\\" especially if the witness's proposed amendment is incorporated into a standing committee report).\\nThe Coastal Resources Management Act of 1983, PL 3-47 (1983) (codified as amended at 2 CMC \\u00a7 1501 et seq.) (\\\"CRM Act\\\"), serves as a useful point of comparison here. This statute, like the Land Commission Act enacted the same year, provides for judicial review of decisions of the agency in question. The CRM Act, however, specifies that \\\"[t]he standard for judicial review [of Coastal Resources Management Appeals Board decisions] is whether the decision is supported by substantial evidence on the record made before the Board, taken as a whole; the facts in question are not subject to trial de novo.\\\" 2 CMC \\u00a7 1541(b) (emphasis added).\"}"

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+"{\"id\": \"1697435\", \"name\": \"Aniceto H. Mundo, Petitioner, v. Commonwealth Superior Court and Board of Elections, Respondents, Marja Lee Taitano, Real Party in Interest\", \"name_abbreviation\": \"Mundo v. Commonwealth Superior Court\", \"decision_date\": \"1996-06-07\", \"docket_number\": \"Original Action No. 96-001\", \"first_page\": 392, \"last_page\": \"396\", \"citations\": \"4 N. Mar. I. 392\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: TAYLOR, Chief Justice, VILLA-GOMEZ, Justice, and MACK, Special Judge.\", \"parties\": \"Aniceto H. Mundo, Petitioner, v. Commonwealth Superior Court and Board of Elections, Respondents, Marja Lee Taitano, Real Party in Interest.\", \"head_matter\": \"Aniceto H. Mundo, Petitioner, v. Commonwealth Superior Court and Board of Elections, Respondents, Marja Lee Taitano, Real Party in Interest.\\nOpinion and Order\\nOriginal Action No. 96-001\\nJune 7, 1996\\nCounsel for petitioner: Paul A. Lawlor, Saipan.\\nCounsel for respondent Board of Elections: William J. Ohle, Assistant Attorney General, Saipan.\\nCounsel for real party in interest: Bruce L. Jorgenson, pro hac vice, Randall T. Fennell, Saipan.\\nBEFORE: TAYLOR, Chief Justice, VILLA-GOMEZ, Justice, and MACK, Special Judge.\", \"word_count\": \"3020\", \"char_count\": \"18489\", \"text\": \"TAYLOR, Chief Justice:\\nThis original proceeding, filed on May 1, 1996, arises from an election contest over a seat on the Board of Education from Rota District 6. The petitioner, Aniceto H. Mundo, was originally declared the winner of that post in the election held November 4, 1995, by a margin of three votes. The real party in interest, Marja Lee Taitano, received the next highest vote tally. She filed an election contest action before the respondent Superior Court claiming that the respondent Board of Elections (\\\"BOE\\\") had committed errors in the conduct of the election resulting in certain voters being improperly prevented from casting their ballots. The court heard the contest action on January 18 and 19, 1996. On April 11, 1996, it issued a decision mandating that four additional voters be allowed to cast their ballots and that BOE recertify the results once those four votes were added to the total. The four voters cast their ballots in favor of Ms. Taitano, giving her a one-vote margin of victory.\\nMr. Mundo filed this petition on May 1, 1996, seeking a writ \\\"prohibiting Respondent Superior Court from requiring its order of April 11, 1996[,] to be complied with as to requiring the Board of Elections to recertify the result [of the election], and prohibiting Respondent Board of Elections from complying with that order.\\\" Petition for Writ of Prohibition at 3. Upon Mr. Mundo's further motion, this Court stayed the April 11 order requiring BOE to recertify the new election result no later than May 10, 1996, pending our review.\\nISSUES PRESENTED AND STANDARDS OF REVIEW\\nThis petition raises three issues for our consideration:\\nI. Whether this Court may assume jurisdiction to issue a writ of prohibition to review an order of the Superior Court which is alleged to be outside its statutory authority when the election contest statute, 1 CMC \\u00a7 6425(c), mandates that the Superior Court's judgment \\\"shall be final and unappealable\\\";\\nII. Whether the Superior Court lost jurisdiction over this election contest when it did not issue findings and conclusions within three days of receiving submission of the evidence, as mandated by 1 CMC \\u00a7 6425(c); and\\nIII. Whether the remedy mandated by the April 11 order is outside the authority conferred by the election contest statute, 1 CMC \\u00a7 6421 et seq.\\nMr. Mundo's petition invokes this Court's supervisory jurisdiction. 1 CMC \\u00a7 3104. Whether to assume such jurisdiction is a matter within our discretion, based on the facts presented. See Mafnas v. Hefner, 1 N.M.I. 22, 31 (1989) (declining supervisory jurisdiction); Planned Parenthood v. Operation Rescue, 550 N.E.2d 1361, 1365 (Mass. 1990).\\nIf the Court determines that it should exercise supervisory jurisdiction, the writ of prohibition is nevertheless reserved for extraordinary situations. Writs may be issued only to \\\"confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.\\\" Taimanao v. Superior Ct., 4 N.M.I. 94, 97 (1994) (iquoting Tenorio v. Superior Ct., 1 N.M.I. 1, 7 (1989). Five factors govern the issuance of writs:\\n(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired; (2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) whether the lower court's order is clearly erroneous as a matter of law; (4) whether the lower court's order is an oft-repeated error, or manifests a persistent disregard of applicable rules; and (5) whether the lower court's order raises new and important problems or issues of law of first impression.\\nId.\\nANALYSIS\\nThis Court has twice before assumed supervisory jurisdiction over election contests. See Taimanao, 4 N.M.I. at 96; Board of Elections v. Superior Ct., 4 N.M.I. 111, 112 (1994). After careful consideration of several countervailing factors presented in this case, we decline to do so here.\\nI. Issue Not Presented Below\\nOur first concern is that supervisory jurisdiction is not typically exercised where the trial court has not had an opportunity to rule on the issue presented. Mafhas, 1 N.M.I. at 32 (declining supervisory jurisdiction where Superior Court had not been afforded opportunity to entertain issue presented). Here, there is no evidence that Mr. Mundo directed the trial court's attention to the matters he brings before us in his petition. Indeed, as to the claim that the trial court delayed beyond the statutory time limitation in rendering its decision, there is some indication in the record that this alleged error may have been invited. On January 23, the Superior Court issued a post-hearing procedural order which stated:\\nThe parties also requested that they be permitted to make their closing arguments in writing, and the Court consented. Therefore, the plaintiff shall be given until February 5, 1996, to file her closing argument, Defendants shall have until February 12, 1996, to file their closing and any response to Plaintiffs argument, and plaintiff will then have until February 15, 1996, to file any rebuttal argument.\\nTaitano v. Mundo, Civ. No. 95-1082 (N.M.I. Super. Ct. Jan. 23, 1996) (Procedural Order at 2) (emphasis added). While this order does not state which party requested a lengthy post-hearing briefing schedule, neither does it indicate that any party objected. In the context of such a failure to object, it is inconsistent (at best) for Mr. Mundo or BOE now to demand strict compliance with the statute requiring the court to issue its findings \\\"after hearing the evidence and within three days after the submission thereof.\\\" 1 CMC \\u00a7 6425(c).\\nSimilarly, there is no indication that Mr. Mundo or BOE presented to the Superior Court the arguments they bring before us now regarding the remedy ordered by the court. A review of the briefs on file at the Superior Court does not indicate that any party discussed the proper remedy in the event that Ms. Taitano prevailed in her challenge. Rather, it appears that the court confronted the question for the first time in its April 11 order (\\\"the Court is now faced with the difficult task of fashioning a remedy which is appropriate to the voters and the plaintiff). Taimanao, supra (Apr. 11, 1996) (\\\"April 11 order\\\"). Nor does the record at the Superior Court indicate that any party moved for reconsideration of the April 11 order based on the authorities presented to us now. We will not issue extraordinary writs to intervene in matters not squarely presented to and ruled on by the trial court. Cf. Western Food Plan, Inc. v. District Court, 598 P.2d 1038, 1042 (Colo. 1979) (en banc) (declining to issue prohibitory writ where trial court had had no opportunity to rule on issue presented).\\nOf course, there is ordinarily no duty to move for reconsideration at the trial court before filing an appeal to this Court. However, this case comes before us under the expedited timetable and special statutory framework of an election contest, which mandates that the Superior Court's judgment is \\\"final and unappealable.\\\" 1 CMC \\u00a7 6425(c). This statute plainly means that, absent exceptional circumstances as discussed below, the Superior Court should have the last word on the matter. In this context, where the trial court's ruling raises issues never briefed by the parties, a motion to reconsider is a procedural prerequisite to an application for the exercise of this Court's supervisory jurisdiction.\\nH. Superior Court Judgment not Subject to Appeal\\nEven looking beyond the parties' failure to call the trial court's attention to the issues presented here, other considerations weigh against our assumption of jurisdiction. As noted above, the election contest statute provides that the judgment of the trial court in an election contest is \\\"final and unappealable.\\\" 1 CMC \\u00a7 6425(c). This provision is based on strong public policy considerations that election contests should not be permitted to drag on indefinitely, disrupting the ability of elected officials to discharge their duties during significant portions of their terms. Comparable provisions in the election laws of other jurisdictions have been strictly enforced. See Kreidler v. Eikenberry, 766 P.2d 438, 441-42 (Wash. 1989) (holding that interest in finality of elections requires strict construction of statute barring appeal of trial court decision); Perdue v. Sapp, 233 P.2d 973, 974 (Okla. 1951) (dismissing appeal as \\\"a nullity where contest statute provided that decision of trial court \\\"shall be final\\\"); Hiett v. Brier, 586 P.2d 55, 58 (Kan. Ct. App. 1978) (en banc).\\nIn such jurisdictions, parties may still seek discretionary review of election contests by petitioning for an extraordinary writ, but the scope of review is sharply limited. See Hiett, supra (limiting writ review of election contest results to instances where decision below was induced by bad faith or was the result of \\\"arbitrary acts showing wrongful conduct amounting to fraud, corruption or oppression\\\"); Kreidler, 766 P.2d at 443 (restricting review of trial court's orders on ballot title challenges to instances of \\\"wilful and unreasoning action, without consideration and in disregard of facts or circumstances\\\"); State ex rel. Halpin v. Hamilton County Bd. of Elections, 126 N.E.2d 145, 146 (Mass. 1952), rev'don other grounds, 118 N.E.2d 840 (confining review of election contest decisions to instances where board \\\"flagrantly misinterpreted the statute, or clearly disregarded an applicable legal provision\\\"). We find these authorities persuasive and hold that writ review of election contests is limited to instances of flagrant misinterpretations of binding law, arbitrary and capricious findings of fact, or wrongful conduct.\\nHI. Nature of Alleged Errors\\nThe final step in our jurisdictional analysis, therefore, is to determine whether the trial court's errors, as alleged in the petition, constitute flagrant misinterpretations of binding law, arbitrary and capricious findings of fact, or wrongful conduct. If not, the overriding policy interest in speedy determinations of election contests mandates that we decline jurisdiction and let the judgment of the Superior Court stand.\\nA. Post-Hearing Delay. One CMC \\u00a7 6425(c) provides in part that \\\"[a]fter hearing the evidence and within three days of the submission thereof, the court shall issue its findings of fact and conclusions of law, and immediately thereafter announce judgment in the case, either confirming, or reversing the result of the election.\\\" We made clear in Taimanao that, in election contests, \\\"time limits are not meant to restrict the jurisdiction of the court.\\\" Taimanao, 4 N.M.I. at 97. There is no dispute here that the trial court properly acquired jurisdiction over this matter. \\\"[0]nce a valid claim has been stated under a contest statute and a court has properly assumed jurisdiction, procedural defects in the adjudication of the contest will not strip a court of the jurisdiction thus assumed.\\\" Mendiola v. Taimanao, Civ. Nos. 94-0024, 94-0025 & 94-0026 (consol.) (N.M.I. Super. Ct. Feb. 9, 1994) (Decision and Order on Motion to Reject Pleadings and Motion to Dismiss at 5) (citing O'Dowd v. Superior Ct., 111 P. 751, 753 (Cal. 1910)); Taimanao, 4 N.M.I. at 97-98. In light of these authorities, the timing of the April 11 order does not constitute a flagrant misapplication of the statute warranting our assumption of jurisdiction.\\nB. The Remedy Ordered by the Superior Court. On its face, the election contest statute limits the trial court to an order \\\"either confirming, or reversing the result of the election.\\\" 1 CMC \\u00a7 6425(c). Statutes governing election contests are to be strictly construed. See Mendiola, supra (citing Seman v. Aldan, 2 CR 619 (N.M.I. Trial Ct. 1986), aff'd, 3 CR 152 (D.N.M.I. App. Div. 1987)). Employing a strict construction here, it appears that the trial court, in adjudicating an election contest, may employ only two possible remedies: to confirm the election of the original winner, or to reverse the result and declare another candidate the winner. The statute does not expressly provide for allowing disenfranchised voters to add their votes into the tally at a later date.\\nIn the April 11 order, the Superior Court mandated the following remedy:\\n1. Danny C. Charfauros, John A. Atalig, Gina Marie T. Aldan and Annabelle Atalig shall be given the opportunity to cast their votes for the Rota District No. 6 Board of Education representative within ten days of the date of this order;\\n2. The Board shall, within twenty days of the date that any such ballots are cast, retabulate the election result and recertify the result for the Rota District No. 6 Board of Education representative.\\nApril 11 order at 10-11. Following a strict construction of 1 CMC \\u00a7 6425(c), this remedy is beyond the scope of the jurisdiction expressly conferred by the election contest statute.\\nHowever, under a somewhat broader construction of the statute, the procedure mandated by the Superior Court could be considered a method of \\\"reversing the result of the election.\\\" Indeed, Ms. Taitano's original election contest complaint alleges that the four voters at issue, \\\"on information and belief, would not have voted for Mundo.\\\" Verified Complaint at 2, Taimanao, supra (filed Nov. 24, 1995). While no transcript of the trial court hearings is before us, it appears that these allegations were proven up at trial, and that the court expected the remedy mandated in the April 11 order actually to cause a reversal of the election result. Thus, while the trial court erred in ordering a remedy not expressly called for in the statute, the error arises from a plausible reading of the statute and therefore cannot be deemed a flagrant misinterpretation of binding law.\\nIn its pleading in support of the writ, BOE also objects to the trial court's choice of remedy on the grounds that it is contrary to the common law rules governing election contests. BOE Answer at 8-9. BOE cites cases holding that it is improper to correct an election result by asking a small number of voters to vote after the impact of their votes is known. See Pennington v. Hare, 62 N.W. 116, 117 (Minn. 1895) (asking a few voters to decide election result by casting votes after margin of victory is known is \\\"an uncertain and dangerous experiment\\\"); Martin v. McGarr, 117 P. 323, 327-28 (Okla. 1910). The common law rule of Pennington has also been adopted in the following jurisdictions: Arkansas (Rubens v. Hodges, 837 S.W. 2d 465, 468 (Ark. 1992)), Arizona (Babnew v. Linneman, 740 P.2d 511, 514 (Ariz. Ct. App. 1987)); Massachusetts (McCavitt v. Registrars of Voters of Brockton, 434 N.E.2d 620, 630-31 (Mass. 1982)); Missouri (Missouri ex rel. Wagster v. Consolidated Sch. Dist., 213 S.W. 2d 271, 275 (Mo. Ct. App. 1948), aff'd, 717 S.W. 500 (Mo. 1949) (en banc)); South Dakota (Pawlowski v. Thompson, 264 N.W. 723, 724 (S.D. 1936)); Georgia (Brisco v. Between Consol. Sch. Dist., 156 S.E. 654, 656 (Ga. 1931)); Iowa (Coggeshall v. City of De Moines, 117 N.W. 309, 314 (Iowa 1908)); and Wisconsin (Wold v. Hanson, 58 N.W. 237, 237-38 (Wis. 1894)). This rule is rooted in a policy concern that asking a few voters to cast their ballots after the fact exposes them to pressure, invites corruption, and deprives the electors in question of the secrecy of their ballots.\\nHowever, the courts of the Commonwealth are bound by the common law of the fifty states only \\\"in the absence of written law or local customary law to the contrary.\\\" 7 CMC \\u00a7 3401. Because the Commonwealth has applicable written law in the form of the election contest statute, these cases are not binding in this jurisdiction. Whether they would constitute persuasive authority in a proceeding which is less restricted in scope than the limited review we conduct here, we express no opinion. Nor will we express an opinion on the policy concerns raised by these cases and echoed in BOE's brief. Such concerns are best addressed by seeking to amend the election contest statute itself, by promulgating regulations and procedures aimed at avoiding future recurrence of the situation presented here, or simply by bringing all relevant authorities to the attention of the trial court prior to its issuance of a final judgment.\\nIn sum, the errors complained of in the petition do not rise to the level of flagrant misinterpretations of binding law. Therefore, they do not satisfy the narrow criteria for writ review of election contests, and we decline to exercise jurisdiction to correct them.\\nCONCLUSION\\nFor the reasons stated above, we decline supervisory jurisdiction over this matter, and we hereby DENY Mr. Mundo's petition for a writ of prohibition.\\nTaitano v. Mundo, Civ. No. 95-1082 (N.M.I. Super. Ct. Apr. 11, 1996) (Order).\\nIt is possible to read the phrase \\\"after submission thereof' in 1 CMC \\u00a76425(c) to mean after the conclusion of any post-hearing briefing. Under this interpretation, the three-day period would not have begun to run until after February 15, 1996, the deadline set by the court for submission of the briefs. However, this interpretation is not consistent with the overriding intent of the legislature to \\\"resolve election contests in an expedited fashion.\\\" Taimanao v. Superior Ct., 4 N.M.I. 94, 98 (1994). Nor is this the reading of the statute BOE offers in support of the petition for a writ of prohibition. In its answer to the petition, BOE states: \\\"[Ajfter hearing on the merits, while under a statutory obligation to issue its order in three days, 1 CMC \\u00a7 6425(c), the Superior Court waited almost three months to issue its order.\\\" Respondent's Answer at 10 (emphasis added). April 11 is less than two months after the trial court's February 15 deadline for post-hearing briefs. Thus, BOE's statement makes clear that it now insists that the court should have rendered its decision by January 22, 1996, a position that, by all indications, it did not take below.\"}"

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+"{\"id\": \"1697438\", \"name\": \"Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Francisco H. Ramangmau, Defendant/Appellant\", \"name_abbreviation\": \"Commonwealth v. Ramangmau\", \"decision_date\": \"1995-01-24\", \"docket_number\": \"Appeal No. 93-040; Traffic Case No. 93-1284\", \"first_page\": 227, \"last_page\": \"239\", \"citations\": \"4 N. Mar. I. 227\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"parties\": \"Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Francisco H. Ramangmau, Defendant/Appellant.\", \"head_matter\": \"Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Francisco H. Ramangmau, Defendant/Appellant.\\nAppeal No. 93-040\\nTraffic Case No. 93-1284\\nJanuary 24, 1995\\nSubmitted on Briefs November 2, 1994\\nCounsel for appellant: Brien Sers Nicholas, Saipan.\\nCounsel for appellee: Cheryl M. Gill, Assistant Attorney General, Saipan.\\nBEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"word_count\": \"5775\", \"char_count\": \"35115\", \"text\": \"VILLAGOMEZ, Justice:\\nFrancisco H. Ramangmau appeals his convictions for vehicular homicide and reckless driving. A jury found him guilty of vehicular homicide, and the trial judge found him guilty of reckless driving.\\nWe have jurisdiction over this appeal pursuant to 1 CMC \\u00a7 3102(a). We affirm.\\nISSUES\\nRamangmau raises six issues for our review:\\n1. Whether, under the totality of the circumstances, the trial court erred when it continued to poll the jury after a lack of unanimity among the jurors was revealed;\\n2. Whether Ramangmau was denied his right to a unanimous jury verdict and a fair trial because of the duplicitous nature of Count I, and by the trial court's failure to give a specific unanimity instruction;\\n3. Whether the trial court erred in denying Ramangmau's motion to suppress evidence as to statements he made at the scene of the accident and later at the Department of Public Safety (\\\"DPS\\\") headquarters;\\n4. Whether the court erred in denying Ramangmau's motion in limine to exclude evidence as to how he was driving approximately one to one-and-one-half miles before the accident;\\n5. Whether the trial court erred in denying Ramangmau's motion for a judgment of acquittal after the government rested its case in chief; and\\n6. Whether the trial court erroneously instructed the jury as to the essential elements of the offense of vehicular homicide under 9 CMC \\u00a7 7110.\\nFACTUAL AND\\nPROCEDURAL BACKGROUND\\nDuring the afternoon of April 18, 1993, Ramangmau, while driving south on Beach Road in Saipan, hit and killed a bicyclist who was riding north on the bike path immediately adjacent to the southbound lane.\\nDPS officers arrived to investigate the accident. They spoke to Ramangmau as well as other witnesses who were present at the scene of the accident. The officers asked Ramangmau for his driver's license and car registration, and whether he was the driver of the car. The officers directed Ramangmau to stand away from the scene so that they could secure it.\\nRamangmau stated that he was the driver and moved away as requested. DPS officers questioned him about the accident. He answered the questions asked, but did not volunteer any information.\\nOn two separate occasions at the scene, Ramangmau told Officer Baubauta and Captain D.R. Sab\\u00edan that he wanted to speak with his father. Captain Sab\\u00edan drove Ramangmau to DPS about an hour after the accident, administered Miranda warnings to him, and again questioned him. From the time Ramangmau left the scene in the police car to the time his interview was completed at DPS, Ramangmau did not repeat his request to see his father. Ramangmau was not placed under formal arrest at any time on the day of the accident.\\nThe government filed an information against Ramangmau on April 19, 1993. Count I (vehicular homicide) charged Ramangmau, under 9 CMC \\u00a7 7110 , with unlawfully causing the death of a bicyclist while violating 9 CMC \\u00a7 5251 (speeding), 5311 (passing in bicycle lane), and 7104 (reckless driving). Count II separately charged Ramangmau with reckless driving in violation of 9 CMC \\u00a7 7104(a).\\nRamangmau moved to suppress the statements that he made to police officers at the scene of the accident and at DPS, both of which had been reduced to writing. The court denied the motion.\\nRamangmau also made a motion in limine to exclude evidence as to the manner in which he was driving approximately one to one-and-one-half miles from the scene of the accident. The court denied this motion, as well.\\nAfter the government rested its case in chief, Ramangmau moved for a judgment of acquittal, pursuant to Com. R. Crim. P. 29(a), with respect to the reckless driving charge and that part of the vehicular homicide charge that relied on the underlying offense of reckless driving. The court denied both motions.\\nRamangmau then presented evidence in his behalf, but did not renew the motions for acquittal at the close of all the evidence. Ramangmau subsequently filed post-verdict motions for acquittal, arrest of judgment, and a new trial under Com. R. Crim. P. 29(c), 34, and 33, respectively. The court denied all three motions.\\nAfter deliberation, the jury returned to announce its verdict. Ramangmau requested a poll of each juror. Jurors 1 through 4 stated that their verdict was \\\"guilty.\\\" Juror 5 said \\\"no.\\\" The court then polled the last juror, 6, who said \\\"yes.\\\" At that point, the court sent the jury back to the jury deliberation room. Ramangmau then moved unsuccessfully for a mistrial. The court called the jury out again, repeated the general unanimity instruction, and sent them back to deliberate further. Immediately thereafter, the court ordered deliberation to stop because Ramangmau had requested an additional instruction about the need for an individual opinion from each juror. A short time later, the court released the jury for dinner.\\nWhen court proceedings resumed after dimer, the court denied Ramangmau's renewed motion for a mistrial, gave additional jury instruction pursuant to Ramangmau's request, and immediately called a recess for the weekend. The following Monday, the judge bifurcated the single verdict form into two forms and re-instructed the jury.\\nThe jury then deliberated for two hours and thereafter returned a unanimous verdict of guilty on the vehicular homicide count based on the underlying charges of speeding and reckless driving. The court separately found Ramangmau guilty of reckless driving, a misdemeanor, as charged in Count II.\\nRamangmau was sentenced to ten years imprisonment for vehicular homicide and six months imprisonment for reckless driving, both sentences to run concurrently. This appeal followed.\\nANALYSIS\\nI. The Polling of the Jury\\nThe propriety of the polling of the jury under Com. R. Crim. P. 31(d) is reviewed for abuse of discretion.\\nWe disagree with Ramangmau's contention that per se error occurs if the trial judge continues to poll the jury, under Com. R. Crim. P. 31(d) , as soon as one juror disagrees with the verdict. Com. R. Crim. P. 31(d) authorizes the trial judge to discharge the jury or order it to retire for additional deliberations if a poll reveals a lack of unanimity. The court does not abuse its discretion, however, merely by continuing to poll the jury after one juror dissents. Reversible error occurs only when it is apparent that the trial judge has coerced the jurors into prematurely rendering a verdict.\\nThe following factors are considered, applying a totality of circumstances test, to assess whether the method of polling is coercive: (1) whether counsel objected to the polling, and did so specifically and contemporaneously; (2) whether the court repeated a cautionary instruction to \\\"carefully weigh and consider the view of their fellow jurors\\\" before sending the jury to deliberate further; and (3) the length of time the jury deliberated after being sent for further deliberation. We are not persuaded that the trial court coerced the jury into prematurely reaching a verdict in the present case.\\nIt was Ramangmau who requested that the jury be polled. He did not object to further polling after Juror 5 voiced his dissent. The court did not interrogate the dissenting juror or any other member of the panel. Having completed the poll, the court immediately ordered the jury to retire to the jury room.\\nThe court then re-instructed the jurors and ordered them to deliberate further. At this point, Ramangmau objected and the court ordered the jury to halt deliberation. At Ramangmau's request, and before deliberations resumed, the court gave the jury a cautionary instruction, reminding each juror that he or she had to reach an individual opinion and decide the case independently, after discussing the evidence and the instructions with the other jurors.\\nAfter the poll, which occurred on Friday, the jurors remained together for approximately two-and-one-half hours, after which they were excused for the weekend. On Monday, the jurors resumed their deliberations and reached a unanimous verdict within two hours.\\nIn summary, the record shows that a coercive atmosphere did not exist during the jury poll or subsequent jury deliberations. Defense counsel did not object immediately and specifically to the polling of Juror 6, the court gave a series of cautionaiy instructions prior to the resumption of deliberations on Monday, and the jurors spent little time reaching their final verdict.\\nII. Duplicity of Indictment and Failure to Give Specific Unanimity Instruction\\nRamangmau argues that Count I of the information was duplicitous and that this, combined with the trial court's failure to give specific unanimity instructions as to vehicular homicide and each predicate offense, confused the jury and violated his right to a unanimous verdict. Count I, charging Ramangmau with vehicular homicide, included two predicate offenses considered by the jury: speeding and reckless driving. Therefore, Ramangmau asserts, Count I was duplicitous.\\nRamangmau further argues that while all of the jurors may have found him guilty of vehicular homicide, this finding could have been based on some jurors' belief that he was guilty of speeding, and other jurors' belief that he was guilty of reckless driving. Therefore, Ramangmau concludes, his right to a unanimous verdict was violated. Our analysis reveals otherwise.\\nWhether a criminal count is duplicitous is a question of law which we review de novo. The government contends, though, that Ramangmau failed to preserve the duplicity issue for review, because he failed to challenge the information on this ground prior to trial.\\nObjections to the form of an information must be made prior to trial. Com. R. Crim. P. 12(b)(1). Ramangmau failed to raise his duplicity objection prior to trial and, therefore, waives the issue on appeal. The issue of unanimity, however, involves Ramangmau's substantive right to a unanimous verdict under Com. R. Crim. P. 31(a), which provides, in relevant part, \\\"[t]he verdict shall be unanimous.\\\" Courts interpreting Fed. R. Crim. P. 31(a), the counterpart to our rule, have determined this to be an '\\\"unequivocal command'\\\" that precludes even express waiver. Therefore, Ramangmau's failure to challenge the information prior to trial does not foreclose our review of the jury unanimity question.\\nWith respect to the specific unanimity instructions, Ramangmau participated in the court's formulation of the instructions that were given. Ramangmau did not object to the instructions given and did not proffer the alternative instructions which he now alleges the court erred in failing to give. Our review, therefore, is for plain error.\\nThe information charged Ramangmau with vehicular homicide, one underlying element of which, in this case, was the commission of any of three materially distinct traffic offenses: speeding, reckless driving, and passing in the bicycle lane. The court gave a general unanimity instruction to the jury. This general instruction on unanimity would not have been sufficient had the court not augmented the instruction with special interrogatories in the verdict form.\\nThe single verdict form initially given the jury contains interrogatories about Ramangmau's culpability as to the charges of speeding, reckless driving and vehicular homicide. When the jury first reached a purportedly unanimous verdict and polling revealed that the jurors' decision was not, in fact, unanimous, the trial court divided the single verdict form into two parts. One part contained the questions of whether Ramangmau committed the offense of speeding, and, if so, whether such speeding was the proximate cause of the bicyclist's death, and, if so, whether Ramangmau was guilty of vehicular homicide. The second part contained the same questions, except that reckless driving was substituted for speeding.\\nOur review of the record below shows nothing indicating that the jurors were confused or disagreed about the factual basis of Ramangmau's guilt when they reached their final verdict. The instructions given to the jury were straightforward and easily understood. The instructions informed the jurors that speeding and reckless driving were predicate offenses. Under these facts, we will not presume the jury was confused. Therefore, we find no violation of Ramangmau's rights to a fair trial and a unanimous jury decision.\\nin. Denial of Motions to Suppress Statements\\nWe review a motion to suppress de novo. Whether a suspect was in custody for purposes of determining whether the government discharged its duty to apprise the accused of his or her constitutional rights, based on Miranda v. Arizona, is a question of law.\\nWhether a defendant's confession was voluntary or not is a mixed question of fact and law. The government has the burden of establishing that the defendant intelligently, knowingly, and voluntarily waived his or her rights. The determination of whether there was a valid waiver depends upon the totality of the circumstances.\\nA. Statements at the Scene of the Accident\\nRamangmau contends that he was in custody when police officers questioned him at the scene of the accident. At that time, the officers did not give him the warnings which, he asserts, were required by Miranda. The trial court, Ramangmau argues, therefore violated his right to due process when it denied his motion to suppress his statements.\\nThe government argues that Ramangmau was not in custody at the time these statements were taken. The trial court found that Ramangmau was not in custody for purposes of Miranda until he was asked, at the scene of the collision, to get into the police car to go to DPS headquarters.\\nMiranda warnings must be given when a defendant is subject to police interrogation while in custody. In determining whether custody exists, a court must decide whether there was a \\\"formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.\\\" The test to be applied \\\"is whether a reasonable person in the defendant's position would believe that he or she was in police custody of the degree associated with a formal arrest.\\\" The factor of particular concern is whether the atmosphere was \\\"police dominated.\\\"\\nPolice officers at the scene did not arrest Ramangmau. They asked him to step aside to enable them to secure the scene and attend to the bicyclist. The officers neither attempted to restrain Ramangmau nor treated him harshly. When the officers asked Ramangmau whether he was the driver of the car, bystanders who were not police officers were present. The officers' questions were informational, directed at assessing the accident when they first came on the scene.\\nUnder the circumstances, a reasonable person in Ramangmau's situation would not have felt the pressures of police domination of the type to which Miranda and its progeny speak. The interrogation was non-custodial. Miranda warnings were not required and denial of Ramangmau's motion to suppress was not error.\\nB. Statements at the Department of Public Safety\\nRamangmau contends that, during questioning at DPS headquarters, he did not voluntarily waive his constitutional right to remain silent or his right to counsel. He maintains that the trial court erred, therefore, in admitting his statements.\\nThe government bore the initial burden of proof on this issue. During the suppression hearing, the government introduced a constitutional rights waiver form initialed and signed by Ramangmau and the testimony of the interviewing officer, Officer Sab\\u00edan. Ramangmau testified on his own behalf. After considering the pleadings, testimony and exhibits on this issue, the court concluded that Ramangmau \\\"voluntarily and intelligently waived\\\" his rights. We find no error.\\nThe \\\"totality of the circumstances\\\" that must be considered to determine whether there was a valid waiver of rights includes the characteristics of the defendant and the details of the questioning. We address each factor in turn below.\\n1. Characteristics of Ramangmau\\nRamangmau asserts that when he signed the form in which he acknowledged his rights and waived his right to have a lawyer present, he was concentrating \\\"on the accident,\\\" not on the form. Appellant's Brief at 18. We are not persuaded that this rendered Ramangmau's statements inadmissible.\\nThe collision with the bicyclist may well have been on Ramangmau's mind, but this fact does not establish that he was physically or psychologically incapable of making reasoned decisions. His level of concentration was sufficient to enable him to listen to Officer Sab\\u00edan read him his rights in both English and Chamorro, initial each statement and sign the form to acknowledge that he understood, and answer the officer's questions coherently. In short, we find no evidence that Ramangmau's statements were \\\"not the product of a rational intellect and a free will.\\\"\\n2. Details of the Interrogation\\nIn the absence of coercive police activity, a confession will not be deemed involuntary. Evidence of such activity includes physical threats of harm, deprivation of sleep or food, lengthy questioning, and psychological persuasion. Nothing in the record indicates that the DPS officer behaved coercively.\\nRamangmau was not threatened with physical harm or deprived of food or water. To the contrary, Officer Sab\\u00edan expressly advised Ramangmau that he was not under arrest, and when Ramangmau requested a drink of water, Officer Sab\\u00edan allowed him to walk, unaccompanied, away from DPS headquarters to get some water. After Officer Sab\\u00edan finished questioning Ramangmau that afternoon, Ramangmau was not detained, and he left DPS headquarters.\\nAfter considering both Ramangmau's personal characteristics and the circumstances surrounding the interrogation, we hold that Ramangmau voluntarily waived his constitutional right to remain silent when he spoke to Officer Sab\\u00edan at DPS headquarters.\\nIV. Denial of Motion to Exclude Evidence of Driving a Mile from the Scene\\nRamangmau made a motion in limine seeking exclusion of evidence of how he was driving one to one- and-one-half miles from the scene of the accident. The trial court, expressly finding that the relevance and probative value of the evidence outweighed its prejudicial effect, denied the motion. We review this ruling for an abuse of discretion.\\nRamangmau asserts that the evidence of his driving behavior at a distance of one to one-and-one-half miles from the scene was neither relevant to nor probative of his conduct at the point the accident occurred. Appellant's Brief at 20. The record shows otherwise.\\nTo be relevant, evidence need not relate to any particular time with respect to commission of the offense: \\\"The evidence may relate to acts committed or conditions existing prior to, concurrent with, or subsequent to, the commission of the crime. The only limitation with respect to time is that the evidence should not be so remote as to cease to have any probative value.\\\"\\nNo fixed standard exists for determining remoteness. The court should, therefore, consider the nature of the evidence offered, the nature of the crime, and all attendant circumstances. The trial court could not have been more clear about conducting this analysis, asking \\\"would that evidence [of the driving behavior in question] have any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable tha[n] it would be without the evidence?\\\" Transcript of Proceedings at 354. The court concluded that the evidence \\\"tends to show that the defendant was driving fast,\\\" id., and \\\"shows [the] manner of driving.\\\" Id. at 355.\\nA trial court's decision to admit circumstantial evidence, such as that of Ramangmau's driving behavior immediately prior to the scene, will be sustained if the evidence \\\"tended even somewhat remotely to show that a fact in controversy did or did not exist.\\\" We find no error in the trial court's ruling that this evidence was relevant.\\nThe trial court still could have excluded the evidence of the driving conduct at issue upon a finding, under Com. R. Evid. 403, that the danger of unfair prejudice substantially outweighed the evidence's probative value. After considering the requisite factors under Com. R. Evid. 403, the court decided to admit this \\\"very probative\\\" evidence, Transcript of Proceedings at 355. We find no abuse of discretion.\\nV. Denial of Motion for Judgment of Acquittal\\nIf a defendant moves for acquittal at the close of the government's case in a jury trial, but fails to renew the motion at the close of all the evidence, the earlier objection to the sufficiency of the evidence will be deemed waived. However, a defendant does not waive an appellate challenge to the sufficiency of the evidence where, as here, she or he first makes a motion for a judgment of acquittal at the close of the government's case-in-chief, then fails to renew the motion at the close of all the evidence, but makes a timely post-trial motion for a judgment of acquittal pursuant to Com. R. Crim. P. 29(c). Such was the case here.\\nWe review de novo the denial of Ramangmau's motion for a judgment of acquittal. The test applied is the same as that for a challenge to the sufficiency of the evidence. We determine, therefore, whether any rational trier of fact could have found the essential elements of the crime in question beyond a reasonable doubt. Our review must encompass all of the evidence, direct or circumstantial, viewed in the light most favorable to the government.\\nRamangmau limits his argument to the contention that the government failed to present evidence that he was driving recklessly and that such recklessness proximately caused the death of the bicyclist. We find no merit to this claim.\\nA trial court should deny a motion for a judgment of acquittal under Com. R. Crim. P. 29(a) unless the government's evidence \\\"is insufficient to sustain a conviction.\\\" In other words, the motion for acquittal must be granted only if \\\"there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.\\\" In making this assessment, the court may not weigh or draw inferences from the evidence, or assess witnesses' credibility; these are functions of the jury. The existence of conflicting testimony does not, in itself, merit a judgment of acquittal.\\nRamangmau concedes that the government offered evidence \\\"as to [the] speed,\\\" Appellant's Brief at 22, at which Ramangmau was traveling when the collision occurred. Sergeant N. Guerrero gave expert testimony that Ramangmau's speed on impact with the bicyclist was at least forty-nine miles per hour, and Sergeant J. Guerrero testified that the collision occurred in an area with a posted speed limit of thirty-five miles per hour. From this testimony, a fact finder could infer that Ramangmau was driving in a manner evincing a willful or wanton disregard for the safety of property or persons.\\nThe government also called an eyewitness who testified that, one to one-and-one-half miles from the scene of the accident, Ramangmau pulled his car in front of the vehicle in which the eyewitness was traveling, nearly causing the two vehicles to collide. This same eyewitness expressed her belief, however, that Ramangmau was not speeding when he collided with the bicyclist. It was up to the jury to assess the credibility of this witness and the other witnesses called. Viewing the evidence in the light most favorable to the government, we hold that a reasonable fact finder could have concluded beyond a reasonable doubt that Ramangmau committed the offense of reckless driving, and that such driving was a proximate cause of the bicyclist's death.\\nVI. Jury Instruction on the Elements of Vehicular Homicide\\nWhether the trial court properly instructed the jury as to the elements of vehicular homicide is a question of law which we review de novo. However, where the defendant fails to object contemporaneously to the instruction, we review for plain error.\\nRamangmau claims that commission of the crime of vehicular homicide requires (1) occurrence of an accident, (2) the commission of a predicate offenses (e.g., reckless driving or speeding), and (3) occurrence of the accident on a \\\"public highway.\\\" Appellant's Brief at 24. He asserts that the trial court committed reversible error by failing to instruct the jury on the \\\"essential elements\\\" of vehicular homicide because it did not use the term \\\"public highway.\\\" Our analysis shows otherwise.\\nThe trial court must instruct the jury '\\\"[o]n all essential questions of law whether requested or not.'\\\" In assessing the completeness of the instructions, we \\\"'consider whether the instructions as a whole were misleading or inadequate to guide the jury's determination.'\\\"\\nThe court instructed the jury as follows:\\nReckless Driving is every person who drives or operates any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of Reckless Driving . As to the speeding charge, all motor vehicles traveling upon the highway shall be operated at a careful prudent rate of speed not greater than nor less than is reasonable and proper having due regard to the surface of the highway, the width of the highway, and the condition of traffic upon the highway, and all other restrictions and conditions then and there existing. In no event shall any motor vehicle be operated at a speed greater than will permitted to be stopped within the assured clear distance ahead. And subject to those two paragraphs that I have just read to you, speeds in excess of 45 miles per hour are unlawful. The director may desig nate, by regulation^] certain areas as limited speed areas and mark those areas with appropriate warning signs, no vehicle may be operated in those areas in excess of the maximum speeds as are indicated by the signs. . . . [I]n order to find defendant guilty of the crime of Homicide by Vehicle the government must prove . [n]umber one, . . . Ramangmau, while operating a motor vehicle unlawfully and unintentionally caused the death of [the bicyclist]; and, two . . . Ramangmau, while operating a motor vehicle was committing the offense of speeding, or reckless driving, or both; and . . . three, the violation of one or both of those laws was the proximate cause of [the bicyclist's] death.\\nOne element of the crime of vehicular homicide consists of the violation of \\\"any law applying to the operation or use of a vehicle or to the regulation of traffic.\\\" In the present case, the underlying traffic laws alleged to have been violated were the crimes of speeding and reckless driving. The elements of these underlying offenses differ from the elements of vehicular homicide.\\nThe statutory definition of vehicular homicide in 9 CMC \\u00a7 7110 does not use the term \\\"public highway.\\\" The definition of reckless driving includes the term \\\"highway,\\\" and the definition of speeding includes \\\"public highway.\\\" In instructing the jury with respect to reckless driving and speeding, the trial court used the term \\\"highway\\\" five times. Thus, the trial court did not err by not using the term \\\"public highway\\\" when instructing the jury on the elements of vehicular homicide. The instructions as a whole were not misleading or inadequate.\\nCONCLUSION\\nFor the reasons set forth above, we AFFIRM the judgment of conviction entered against Ramangmau.\\nRamangmau was not a minor at the time of the accident.\\nThis provision provides, in relevant part:\\nWhoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any law applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of homicide when the violation is the proximate cause of the death.\\n9 CMC \\u00a7 7110(a).\\nSee United States v. Brooks, 420 F.2d 1350, 1353 (D.C. Cir. 1969) (trial judge has limited discretion \\\"in assessing the impact of a dissenting vote during a jury poll [conducted pursuant to Fed. R. Crim. P. 31(d)], and the reasonable exercise of this discretion should be accorded proper deference by a reviewing court\\\"). We find interpretations of the Federal Rules of Criminal Procedure instructive, as the Commonwealth Rules of Criminal Procedure are patterned after the federal rules. See, e.g., Commonwealth v. Martinez, 4 N.M.I. 18, 20 (1993).\\nPursuant to this rule,\\nWhen a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.\\nCom. R. Crim. P. 31(d).\\nSee United States v. Gambino, 951 F.2d 498, 501 (2d Cir. 1991), cert. denied sub nom.. D'Amico v. United States, _U.S._, 112 S. Ct. 1962, 118 L. Ed. 2d 563 (1992) (general rule is that a trial judge does not commit per se error by continuing to poll a jury, pursuant to Fed. R. Crim. P. 31(d), after one juror voices dissent with the verdict).\\nId., 951 F.2d at 502 (internal quotation marks and citation omitted).\\nId., 951 F.2d at 501-02.\\nThe court said, in relevant part:\\nYou shall now retire and select one of your number to act as a foreperson. He or she will decide [sic] over your deliberations. In order to reach a verdict, all six jurors must agree to the decision. As soon as all of you have agreed upon verdicts, so that when polled, each may state truthfully that the verdict expressed his or her vote, have it dated and signed .\\nTranscript of Proceedings at 1111.\\nSee id. at 1125-26.\\nUnited States v. Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988).\\nSee id.\\nCom. R. Crim. P. 31(a).\\nUnited States v. Lopez, 581 F.2d 1338, 1341 n.2 (9th Cir. 1978) (quoting United States v. Scalzitti, 578 F.2d 507, 512 (3d Cir. 1978)).\\nSee, e.g., Lopez, 581 F.2d at 1340 (\\\"Without reaching the constitutional implications of the question, we hold that jury unanimity required by [Fed. R. Crim. P.] 31 cannot be waived by the defendant\\\").\\nSee United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986).\\nThe government properly used the conjunctive word \\\"and\\\" rather than \\\"or\\\" in enumerating the three predicate offenses. Had \\\"or\\\" been used, Ramangmau would not have known for which of the three offenses to prepare his defense. See 1 Charles A. Wright, Federal Practice and Procedure \\u00a7 125 (2d ed. 1982) (hereinafter \\\"Wright\\\").\\nSee United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983).\\nAfter its case-in-chief, the government dismissed the predicate offense of passing in the bicycle lane as a basis for Count I.\\nUnited States v. Khan, 993 F.2d 1368, 1375 (9th Cir. 1993).\\n384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).\\nKahn, 993 F.2d at 1375.\\nSee United States v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987).\\nCommonwealth of the N. Mariana Islands v. Mendiola, 976 F.2d 475. 484 (9th Cir. 1993); United States v. Kelley, 953 F.2d 562, 564 (9th Cir. 1992).\\nMendiola, 976 F.2d at 484.\\nSee N.M.I. Const, art. I, \\u00a7 4(c).\\nMiranda, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07.\\nCalifornia v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983) (per curiam) (citation and internal quotation marks omitted).\\nConnecticut v. DesLaurier, 646 A.2d 108, 111 (Conn. 1994) (citing Stansbury v. California._U.S._, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298-99 (1994); 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure \\u00a7 6.6 (1984 & Supp. 1991)).\\nDeslaurier, 646 A.2d at 111-12 (citing Miranda, 384 U.S. at 445, 467, 86 S. Ct. at 1612, 1624. 16 L. Ed. 2d at 707, 719). We find the DesLaurier court's analysis of the custody issue instructive in this case, as the defendant in Deslaurier, like Ramangmau, was questioned by police following a serious traffic accident.\\nKelley, 953 F.2d at 564-65.\\nId., 953 F.2d at 565 (citing Gladden v. Unsworth, 396 F.2d 373. 380-81 (9th Cir. 1968)).\\nId. (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473, 484 (1986)).\\nId.\\nSee Commonwealth v. Saimon, 3 N.M.I. 365, 375 n.2 (1992) (trial court's admission of evidence over a timely objection is reviewed for abuse of discretion).\\n1 Charles E. Torc\\u00eda, Wharton's Criminal Evidence \\u00a7 91 (14th ed. 1985).\\nId. \\u00a7 92.\\nId. \\u00a7 94; see, e.g., Commonwealth v. Delos Santos, 3 CR 661. 671 (D.N.M.I. App. Div. 1989) (finding no abuse of discretion where court admitted photograph which made it significantly more likely, but did not conclusively prove, that gun seized by police was same gun held by defendant in photograph).\\nSee Saimon, 3 N.M.I. at 375.\\nUnited States v. Winslow, 962 F.2d 845, 850 (9th Cir. 1992); 2 Wright, supra note 16, \\u00a7 463.\\nSee United States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992), cert. denied sub nom., Sarraff v. United States, 508 U.S._, 113 S. Ct. 2935, 124 L. Ed. 2d 684 (1993).\\nUnited States v. Lessard, 17 F.3d 303, 304 (9th Cir. 1994).\\nCommonwealth v. Tenorio, 3 CR 679, 683 (D.N.M.I. App. Div. 1989).\\nId.\\nCom. R. Crim. P. 29(a).\\nCurley v. United States, 160 F.2d 229, 232-33 (D.C. Cir.), cert. denied. 331 U.S. 837. 67 S. Ct. 1511, 91 L. Ed. 1850 (1947).\\nSee id.; 2 Wright, supra note 16, \\u00a7 467.\\n2 Wright, supra note 16, \\u00a7 467.\\nUnited States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir.), cert. denied, 508 U.S._, 113 S. Ct. 2948, 124 L. Ed. 2d 696 (1993).\\nNot only did Ramangmau fail to object, but he also acquiesced in the content of the instruction during discussions with the court and the government.\\nUnited States v. Fagan, 996 F.2d 1009, 1016 (9th Cir. 1993); see also Commonwealth v. Esteves, 3 N.M.I. 447, 452 (1993).\\nEsteves, 3 N.M.I. at 454 (quoting Morris v. United States, 156 F.2d 525, 527 (9th Cir. 1946)). We decline to follow the government's suggestion, based on Baldwin, supra, that we deny review of Ramangmau's challenge to the jury instruction based on the invited error doctrine.\\nEsteves, 3 N.M.I. at 454 (quoting Stoker v. United States, 587 F.2d 438, 440 (9th Cir. 1987)).\\nTranscript of Proceedings at 1100-02 (emphasis added). From the context, it is clear that the trial court used the term \\\"highway\\\" to mean \\\"public highway.\\\" Indeed, \\\"highway\\\" means \\\"[a] free and public roadway; one which every person has the right to use.\\\" Black's Law Dictionary 728 (6th ed. 1990).\\n9 CMC \\u00a7 7110(a).\\nEven if the trial court erred by failing to instruct the jury on the \\\"public highway element,\\\" the harmless error analysis applies. See Baldwin, 987 F.2d at 1438. Error is harmless \\\"if the omitted element is undisputed and, therefore, its omission could not possibly have been prejudicial.\\\" United States v. King, 587 F.2d 956, 966 (9th Cir. 1978). As noted above, it is an undisputed fact in this case that the collision occurred on Beach Road in Saipan. Therefore, the error, if any, was harmless.\"}"

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+"{\"id\": \"1697442\", \"name\": \"Eurotex (Saipan), Inc., Plaintiff/Appellee, v. Manuel D. Muna, Defendant/Appellant\", \"name_abbreviation\": \"Eurotex (Saipan), Inc. v. Muna\", \"decision_date\": \"1995-05-23\", \"docket_number\": \"Appeal No. 94-007; Civil Action No. 92-0443\", \"first_page\": 280, \"last_page\": \"287\", \"citations\": \"4 N. Mar. I. 280\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"parties\": \"Eurotex (Saipan), Inc., Plaintiff/Appellee, v. Manuel D. Muna, Defendant/Appellant.\", \"head_matter\": \"Eurotex (Saipan), Inc., Plaintiff/Appellee, v. Manuel D. Muna, Defendant/Appellant.\\nAppeal No. 94-007\\nCivil Action No. 92-0443\\nMay 23, 1995\\nArgued and Submitted March 14, 1995\\nCounsel for appellant: Reynaldo O. Yana, Saipan.\\nCounsel for appellee: Eric S. Smith, Saipan.\\nBEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"word_count\": \"3895\", \"char_count\": \"23126\", \"text\": \"VILLAGOMEZ, Justice:\\nManuel D. Muna appeals from a Superior Court order granting summary judgment to Eurotex (Saipan), Inc. The court ordered Muna to specifically perform the option contained in a fifty-five year \\\"Ground Lease and Option to Lease.\\\"\\nWe have jurisdiction under 1 CMC \\u00a7 3102(a). We affirm.\\nISSUES & STANDARD OF REVIEW\\nMuna presents two issues for our review:\\nI. Whether the trial court erred in granting sum mary judgment in favor of Eurotex. We review this question of law de novo.\\nII. Whether the trial court erred in ordering Muna to specifically perform the option. Specific performance is an equitable remedy. We review the trial court's exercise of its equitable powers for an abuse of discretion.\\nUNDISPUTED FACTS\\nThe trial court did not set forth any undisputed facts or make conclusions of law in its order granting summary judgment. The following undisputed facts, therefore, were sorted from the pleadings and papers presented to the trial court.\\nIn 1985, Muna told Rex Kosack, trade counsel in the Governor's office, that he was seeking someone to lease about 13,276 square meters (\\\"m \\\") of his land in San Vicente, Saipan. Kosack told Trevor E. Boucher, president of Eurotex, about the land. As trade counsel, Kosack \\\"assisted in negotiating prices for . . . invest- or[s],\\\" including Boucher.\\nAt approximately 6:00 a.m. on April 17, 1987, Mhina, Boucher, Kosack, and a notary public met at the Saipan airport. Boucher and Muna had not spoken to each other prior to this meeting. They proceeded to sign a document entitled \\\"Ground Lease and Option to Lease\\\" (\\\"Lease\\\"), which had been drafted by attorney Tim Bellas. Mima, who speaks and reads English, thereby agreed to lease 6,500 m of his land to Boucher for fifty-five years for a total of $65,000.\\nPage two of the twenty-three page Lease provides:\\n1.1 Option to Lease Remainder. For the additional sum of . . . $3,250,00 . . . [Muna] grants to [Boucher] an option to lease the remainder of the . . . parcel or any portion thereof for a like period of . . . 55 . . . years, said period to commence from the date the option is exercised.\\n1.1.1 Duration of Option. The term of the option shall be for a period of . . . 24 . . . months from the date that this Lease is effective.\\n1.1.2 Terms of Option. Upon exercise of the option to lease . , the lease shall be under the same terms and conditions as provided for herein, except that the rental shall be either . .\\n. $10.00 . per square meter for the entire 55 year period, or . $1.00 . . per square meter per year.\\nThe last clause of the Lease provides, in relevant part:\\nLESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO, THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.\\nTHIS LEASE HAS BEEN PREPARED FOR THE LESSEE AND MAY BE SUBMITTED BY THE LESSOR TO HIS ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE LESSEE AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO; THE PARTIES SHALL RELY SOLELY UPON THE ADVISE [sic] OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.\\nOn May 21, 1987, Kosack, by this time counsel for Eurotex, wrote Muna one check on behalf of Eurotex for $50,000 and one for $18,225. Muna accepted and cashed both checks.\\nBy written assignment dated June 18, 1987, Boucher assigned Eurotex all of his rights in the Lease. During the three months that followed, Eurotex built a garment factory and barracks on the leased land.\\nDuring April, August, and September 1988, Eurotex wrote Muna three checks for $20,000, $20,000 and $25,000, respectively. Muna accepted and cashed each check. These payments were for the lease, under the option, of the other half of the land.\\nThe record shows that at about this time, Eurotex took possession of the portion of land covered by the option and built a number of structures and sewage facilities on it. In 1988, Eurotex put a security fence around the perimeter of the entire 13,276 m of land. Muna did not object to any of these improvements.\\nIn January 1992, Eurotex wrote Muna a check for $2,789. Muna accepted and cashed it.\\nIn a letter dated November 21, 1991, Eurotex asked Muna to verify in writing that it held a valid lease of the second half of Muna's land. On March 20, 1992, Eurotex requested that Muna sign a \\\"Superseding Ground Lease\\\" that included the second half of Muna's property under the same conditions and terms as the original Lease. Muna refused to sign any new documents.\\nThere is no document evincing an exercise by Eurotex of its option to lease the balance of Muna's land. Muna had dinner, though he did not recall when, with two Eurotex representatives, one of whom he remembered as Tommy Lee. He did not remember the other person's name. The option was one topic of discussion at this meeting.\\nPROCEDURAL BACKGROUND\\nIn April 1992, Eurotex sued Muna for specific performance of the option and attorney's fees pursuant to the Lease. Eurotex filed a motion for summary judgment in November 1993 based on the pleadings, a sworn declaration by Lee, Muna's deposition, and various exhibits including Muna's written answers to interrogatories. Muna submitted an opposition to Eurotex's motion without counter-affidavits or other documents. He did, however, refer to his deposition testimony. Eurotex filed a reply which included a sworn declaration by Kosack. By written order, the Superior Court granted Eurotex's motion. Mima timely appealed.\\nANALYSIS\\nI. Summary Judgment\\nA reviewing court will affirm a grant of summary judgment if, viewing the evidence and inferences in favor of the non-moving party, no genuine issue of material fact appears and the moving party was entitled to judgment as a matter of law. Eurotex, the claimant seeking specific performance, bore the burden of proving the existence of a valid, enforceable, and properly exercised option. On its motion for summary judgment, therefore, Eurotex had the burden of establishing the absence of a genuine issue of material fact as to its prima facie case. Once Eurotex did so, it became Muna's responsibility to set forth specific facts which were admissible in evidence and showed \\\"a genuine issue for trial.\\\"\\nA \\\"genuine\\\" dispute exists '\\\"if the evidence is such that a reasonable jury could return a verdict for the non-moving party.\\\"' If the evidence set forth by Muna was \\\"merely colorable . or [was] not significantly probative . . . summary judgment may be granted.\\\"\\nA. Eurotex's Prima Facie Case\\nEurotex presented the trial court with evidence including: the signed and notarized Lease; proof that it paid the rent in full for the first half of Muna's property, and the consideration for the option pursuant to the terms of the Lease; proof that it tendered and Muna accepted an additional $65,000 during the summer of 1988; and proof that Eurotex took possession and control of the entire 13,276 nr of Muna's land and built improvements on it. Muna conceded that he voluntarily signed the Lease and believed at the time that he was entering into a legally binding agreement.\\nIn the sworn declaration submitted by Eurotex, Kosack stated that, as trade counsel, he did not represent real estate agents, attorneys, or land owners, including Muna, who sent him descriptions of land and prices desired. He did not act as an attorney or agent for any such persons, and he rejected all offers of fees.\\nBy the time Muna signed the Lease, Kosack maintained, Muna \\\"had negotiated at length the rent term of his lease and the option to lease, so he fully knew the terms.\\\" Specifically, Kosack contacted Muna to relay Boucher's offer of $65,000 for a fifty-five year lease of the first half of the land and an option for the second half. According to Kosack, Muna agreed to the offer and suggested three alternatives for structuring the option. One suggestion was for Muna to sell an option of the second half of his property for five percent of the lease value, which was $3,250. The rent, if this option were exercised, would be $65,000. Boucher chose this alternative, and Kosack communicated Boucher's decision to Muna.\\nThe checks written by Kosack in April 1987 totaled $68,225. Sixty-five thousand dollars of this amount constituted rent for Eurotex's lease of the 6,500 m2, and $3,225 was consideration for the option.\\nEurotex also submitted an affidavit by Lee, who stated that he and another Eurotex representative had dinner with Muna on April 18, 1988, to discuss how payment for the lease of the property under option should be made. Lee told Muna that Eurotex \\\"had exercised\\\" the option. Lee and Muna agreed that rent totaling $65,000 would be paid in three installments, one in the amount of $20,000 the following day, one in the amount of $20,000 in August 1988, and one in the amount of $25,000 in September 1988. \\\"At this dinner meeting Mr. Muna never raised the question of the lack of existence of an option or the amount of money that Eurotex was paying for the optioned property.\\\" Eurotex prepared the first check for Muna the following day, April 19, 1988. The three checks issued to and cashed by Muna during the summer of 1988 totaled $65,000 and constituted full payment of the rent for the second half of Muna's land.\\nWe conclude that Eurotex met its burden of setting forth facts that, if uncontroverted, entitled it to summary judgment under Com. R. Civ. P. 56. We now turn to Muna's allegations purportedly showing the existence of a genuine issue for trial.\\nB. Muna's Response\\nMuna asserts that there are issues of fact which should have defeated Eurotex's motion for summary judgment. Our review of the record shows otherwise. Muna's contention that there are issues of fact is based on conclusory statements rather than facts. He simply denies the facts established by Eurotex. \\\"Mere conclusions will not suffice\\\" to defeat Eurotex's prima facie case.\\nThe first matter that Muna claims raises an issue of fact was his belief that he was renting his land for $100 per m2. Muna asserts that this belief stems from the single statement he made to Kosack to the effect that he wanted to rent his land for $100 m2. However, Muna makes no allegation that either he or Kosack negotiated to lease his property for that price. On the contrary, the Lease clearly states on page one, paragraph two, and page three, clause five, that one-half of Muna's land was being leased for a total of $65,000. Additionally, the Lease specifies that Muna was to receive $3,250 for the option to lease the other half of his land. In fact, Muna received the $65,000 and all but $25 of the $3,225 within five months of signing the Lease. He received another $65,000 during the summer of 1988.\\nThe record does not show that, prior to 1991 when Eurotex sought certification that it was the holder of a valid lease of the whole lot, Muna ever sought from Eurotex the balance of the $1,000,000 which he now claims he thought he would receive under the Lease. If Muna truly believed that he was entitled to $1,000,000 under the Lease, he would have acted accordingly during the three year period between 1988 and 1991.\\nThe second conclusoiy statement which Muna claims raises an issue of fact is that he believed Kosack was his attorney at the time he entered into the Lease. Eurotex, through Kosack's sworn statement, showed that Kosack was not acting as attorney for Muna. Muna fails to allege any facts contradicting this showing. For instance, Muna does not assert that he paid Kosack attorney's fees for negotiating the Lease on his behalf, having the Lease drafted, or any other legal work done on his behalf. Nor does Muna claim that Kosack was permitted to represent him privately while Kosack was a full-time employee of the NMI government.\\nMuna's third conclusoiy statement which he asserts raises an issue of fact is that Kosack acted as an agent both for him and for Eurotex during the lease negotiations. Thus, when presented with the Lease at the airport, Muna relied on Kosack and accepted Kosack's statement that \\\"everything's fine\\\" with respect to the Lease, and he signed the Lease without reading it. Again, Eurotex established through Kosack's sworn statements that Kosack did not act as Muna's agent. Muna has not alleged any facts contradicting this showing. Muna makes no factual allegations, for instance, as to when, how, and under what circumstances the purported agency was created, and how Kosack was to be compensated for his services as an agent.\\nFourth, Muna denies knowing that the Lease contained an option to lease the second half of his property. He attempts to blame Kosack for his failure to learn about the option. However, he does not allege any facts to support his conclusion that the responsibility for learning about the contents of the Lease fell upon Kosack. The Lease specifically states on its face that it is a \\\"Ground Lease and Option to Lease\\\" (emphasis added). The provision regarding the option to lease appears on the very next page, page two. If Muna was mistaken about the contents of the Lease, it was because he chose not to further inform himself about the document's contents. Such \\\"conscious ignorance\\\" cannot be used as grounds to avoid an otherwise valid and binding lease agreement.\\nMuna argues that, based on the above conclusory statements, the trial court erred when it granted summary judgment and ruled that the option in the Lease should be specifically enforced. We find no merit in Muna's arguments, and hold that he failed to establish the existence of a genuine issue of material fact as to the validity and enforceability of the option. We now turn to the question whether Eurotex properly exercised the option and should be granted a decree of specific performance.\\nH. Proper Exercise of the Option\\nA party that requests specific performance of an option must establish that he or she has complied with the terms of the agreement. Here, Eurotex presented evidence that it: tendered and Muna accepted $3,225 as consideration for the option; notified Muna that it was exercising the option in April 1988, well within twenty-four months of the effective date of the Lease; established with Muna that rent totaling $65,000 would be paid for the lease of the second half of the land; tendered and Muna accepted checks totaling $65,000; and took possession of, and built improvements on, the second half of the property.\\nMuna advances three arguments to show the existence of disputed issues of material fact as to whether Eurotex exercised and performed under the option. First, the Lease does not prescribe a particular form of notice for exercise of the option. It is undisputed that Eurotex did not give Muna written notice, within the twenty-four month term of the option, that it was exercising the option. Muna asserts, therefore, that the option was never exercised.\\nAn option, where supported by consideration, constitutes an irrevocable offer by the offeror. The option ripens into a bilateral contract when the offeree properly accepts it. \\\"Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.\\\" Thus, notice may be given verbally.\\nHere, it is undisputed that Muna met with Lee and another Eurotex representative in April 1988, and that the option was raised as a topic of discussion during their meeting. Eurotex presented Lee's sworn statement that, during this meeting, he notified Muna that Eurotex was exercising the option. In response, Muna does not argue or present evidence that Eurotex's oral exercise of the option was unreasonable. Rather, he attempts to refute Eurotex's evidence by denying it. As discussed above, mere denials are insufficient to establish the existence of an issue of material fact in the context of summary judgment. This is particularly true here, where Muna's subsequent acts show that he knew of Eurotex's exercise and agreed to a price of $65,000. Specifically, without complaint, Muna both accepted and cashed the checks tendered by Eurotex, and observed that Eurotex had exercised dominion over his entire piece of property.\\nMuna next contends that, even if oral exercise of the option was permissible under the terms of the Lease, this exercise violated the Statute of Frauds. As a matter of law, this argument has no merit.\\nUnder the Commonwealth Statute of Frauds,\\nNo estate or interest in real property other than for leases for a term not exceeding one year, nor any trust or power in any manner relating thereto, can be created, granted, assigned, surrendered, declared or otherwise transferred except by operation of law, or by written conveyance or other written instrument subscribed by the party creating, granting, assigning, surrendering, declaring, or transferring the same, or by the party's lawful agent authorized in writing.\\nMuna asserts that Eurotex's exercise of the option constituted a declaration of the creation or transfer of an interest in real property. He reasons that exercise of the option, therefore, had to be in writing.\\nGenerally, verbal notice of acceptance of an option/o/' renewal of a written lease does not violate the Statute of Frauds. The theory behind this rule is that the written lease embodies the terms and conditions of the contract, and the notice of acceptance serves merely \\\"to make the original lease operative for the renewal period.\\\" Although the option in the present case provides for the lease of an additional portion of the premises described in the original Lease, the same theory applies. The Lease is in writing, and it contains the option. Furthermore, the language of the option makes explicit that the lease of the remainder of Muna's property \\\"shall be under the same terms and conditions as provided for\\\" in the original Lease. Thus, when Eurotex exercised the option, it became the holder of a lease of the second half of the lot by virtue of the original Lease, which satisfies the Statute of Frauds.\\nMima's final argument concerns the price term under the option. The option does not include a set price term, but instead sets forth two specific, alternative prices: \\\"[T]he rental shall be either ten dollars ($10.00) per square meter for the entire 55 year period; or one dollar ($1.00) per square meter per year.\\\" Muna contends, therefore, that the option should not be specifically enforced on the grounds that a disputed issue of material fact exists as to whether the parties agreed on a rent figure for the second half of the land.\\nAs previously discussed, Eurotex presented evidence that, during their meeting in April 1988, Lee and Muna agreed on a rental price of $65,000 for the second half of Muna's property. Muna concedes that he met with Lee and that the option was mentioned during their discussions. It is undisputed that Muna cashed the $65,000 in checks that Eurotex tendered to him during the course of the four months that followed in 1988. Nevertheless, Muna denies that he agreed to a price of $65,000. Again, mere denials will not suffice. Muna has not alleged facts that, for example, between September 1988 and November 1991, he ever objected to receiving only $65,000 from Eurotex.\\nWe conclude that there is no issue of material fact as to the sufficiency of Eurotex's exercise of and performance under the terms of the option. The trial court did not err in granting summary judgment in Eurotex's favor.\\nCONCLUSION\\nFor the reasons set forth above, we AFFIRM the entry of summary judgment in favor of Eurotex.\\nSantos v. Santos, 4 N.M.I. 206, 209 (1995).\\nPangelinan v. Itaman, 4 N.M.I. 114, 117 (1994).\\nThe trial court need not identify the undisputed facts, if any, or make conclusions of law when ruling on a motion for summary judgment. See Com. R. Civ. P. 52(a). However, for puiposes of appeal, it is immensely helpful if the trial court sets out the undisputed facts and makes conclusions of law, as these enable us more accurately to assess the court's decision. Cf. Olopai v. Fitial, 3 N.M.I. 101, 107 (1992) (one purpose of findings of fact is to assist the appellate court on review).\\nSupplemental Excerpts of Record at 156.\\nId. at 157, 159.\\nId. at 14, 59.\\nSee Lease at 1, 3 and Answer at 2 in Excerpts of Record.\\nLease at 2, clauses 1.1-1.1.2, in Excerpts of Record.\\nId. at 22, cl. 51.\\nExcerpts of Record at 93-95.\\nId. at 96.\\nWe decline to follow Eurotex's suggestion that the grant of summary judgment should be affirmed solely on the ground that Muna failed to file counter-affidavits with his opposition. Under Com. R. Civ. P. 56(e):\\nThe court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts .\\n(Emphasis added.)\\nSantos, 4 N.M.I. at 209.\\nSee Com. R. Civ. P. 56(c); Santos, 4 N.M.I. at 210.\\nCom. R. Civ. P. 56(e).\\nBorja v. Rangamar, 1 N.M.I. 347, 355 (1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 (1986)).\\nAnderson, 477 U.S. at 249-50, 106 S. Ct. at 2510-2511. 91 L. Ed. 2d at 212 (internal citations omitted).\\nSupplemental Excerpts of Record at 156.\\nId.\\nId. at 159.\\nSee id. at 157-58.\\nId. at 158.\\nId. at 24.\\nId.\\nSantos, A N.M.I. at 211. Additionally, Muna made allegations of fraud in his opposition to Eurotex's motion for summaty judgment. He did not, however, raise the defense of fraud or fraudulent misrepresentation in his answer. Thus, his fraud argument is waived. See Com. R. Civ. P. 8(c), 12(b).\\nSee Restatement (Second) of Contracts \\u00a7 154 cmts. a, c (1981).\\nSee Diamond Hotel, Inc. v. Matsunaga, 4 N.M.I. 213, 217 (1995) (an option contract's primary function is to limit promisor's power of revocation) (citing RESTATEMENT (SECOND) of Contracts \\u00a7 25 cmt. d (1981)), aff'd, 99 F.3d 296 (9th Cir. 1996).\\nRestatement (Second) of Contracts \\u00a7 30(2) (1981).\\nSee 8A George W. Thompson, COMMENTARIES ON THE Modern Law of Real Property \\u00a7 4445 (John S. Grimes ed., 1963) (discussing options to purchase land).\\n2 CMC \\u00a7 4912.\\nSee Gruber v. Castleberry, 533 P.2d 82, 83 (Ariz. Ct. App. 1975).\\nId.\\nExcerpts of Record at 69.\\nCf. Kaybill Corp., Inc. v. Cherne, 320 N.E.2d 598, 608 (Ill. Ct. App. 1974) (option to renew lease).\\nExcerpts of Record at 69.\"}"

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+"{\"id\": \"1697446\", \"name\": \"Estate of Jacinto K. Faisao, Juana K. Faisao, Administratrix, Plaintiff/Appellant, v. Norman Tenorio, Roque A. Santos, and Mary Ann Milne, Defendants/Appellees\", \"name_abbreviation\": \"Estate of Faisao v. Tenorio\", \"decision_date\": \"1995-04-13\", \"docket_number\": \"Appeal No. 94-018; Civil Action No. 93-0976\", \"first_page\": 260, \"last_page\": \"268\", \"citations\": \"4 N. Mar. I. 260\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"parties\": \"Estate of Jacinto K. Faisao, Juana K. Faisao, Administratrix, Plaintiff/Appellant, v. Norman Tenorio, Roque A. Santos, and Mary Ann Milne, Defendants/Appellees.\", \"head_matter\": \"Estate of Jacinto K. Faisao, Juana K. Faisao, Administratrix, Plaintiff/Appellant, v. Norman Tenorio, Roque A. Santos, and Mary Ann Milne, Defendants/Appellees.\\nAppeal No. 94-018\\nCivil Action No. 93-0976\\nApril 13, 1995\\nArgued and Submitted March 14, 1995\\nCounsel for appellant: Joe Hill, Saipan (Hill & Sawhney).\\nCounsel for appellee Norman Tenorio: David W. Dooley, Guam (Moore, Ching, Boertzel, Civille, Dooley & Roberts).\\nCounsel for appellee Roque A. Santos: Vicente T. Salas, Saipan.\\nCounsel for appellee Mary Ann Milne: Michael W. Dotts, Saipan (Law Offices of Robert O\\u2019Connor).\\nBEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"word_count\": \"4828\", \"char_count\": \"29007\", \"text\": \"ATALIG, Justice:\\nJuana K. Faisao (\\\"Juana\\\"), the administratrix of the estate of Jacinto K. Faisao (\\\"Jacinto\\\"), appeals on behalf of Jacinto's estate (\\\"Estate\\\") from the grant of summary judgment in favor of defendants Norman Tenorio (\\\"Tenorio\\\"), Roque A. Santos (\\\"Santos\\\") and Mary Anne Milne (\\\"Milne\\\") (collectively \\\"defendants\\\"). We have jurisdiction pursuant to 1 CMC \\u00a7 3102(a), and hold that the trial court did not err in ruling that homestead property on Saipan, title to which was transferred to Jacinto's wife Hermana F. Faisao (\\\"Hermana\\\") under the Marital Homestead Title Act (\\\"Marital Act\\\"), does not belong in the Estate.\\nISSUE PRESENTED\\nThe issue on appeal is whether the trial court erred in ruling that the homestead property is not a part of the Estate. Because this appeal is from a grant of summary judgment, our review is de novo. See Cushnie v. Bank of Guam, 4 N.M.I. 198, 199 (1994).\\nFACTS AND PROCEDURAL BACKGROUND\\nOn September 30, 1980, Jacinto, a Carolinian, received a quitclaim deed for property homesteaded during his marriage to Hermana. A certificate of title was issued to him in his name for Agricultural Homestead 493 (Tract 21965) on June 7, 1983, by the Land Commission. Appellee Tenorio's Excerpts of Record at 11.\\nOn April 13, 1983, Jacinto conveyed approximately 3,085 square meters of the property, Tract 21965-1 (\\\"1\\\"), to Milne by warranty deed. See Declaration of Defendant Milne at Attachment 2, Estate of Faisao v. Tenorio, Civ. No. 93-976 (N.M.I. Super. Ct. filed Jan. 19, 1994).\\nJacinto died intestate on January 4, 1985. He was survived by Hermana, three daughters, Juana, Dolores F. Mendiola, and Susana F. Faisao, and three sons, Juan F. Faisao (\\\"Juan\\\"), Marcelo F. Faisao and Francisco F. Faisao (\\\"Francisco\\\").\\nOn May 22, 1985, Hermana filed a title transfer application for Tract 21965 under the Marital Act with the Land Commission. This application was granted and the Commission issued a certificate of title to Hermana on May 24, 1985, designating her as the fee simple owner of Tract 21965-R1 H-493, consisting of approximately 25,647 square meters.\\nHermana then subdivided the lot into separately enumerated Tracts 21965-2 (\\\"2\\\"), 21965-3 (\\\"3\\\"), 21965-4 (\\\"4\\\"), 21965-5 (\\\"5\\\"), 21965-6 (\\\"6\\\"), 21965-7 (\\\"7\\\"), 21965-8 (\\\"8\\\"), 21965-9 (\\\"9\\\"), 21965-10 (\\\"10\\\"), 21965-R/W (\\\"R/W\\\") and 21965-R4 (\\\"R4\\\"). Some of these tracts were conveyed to the defendants and Joseph C. Reyes (\\\"Reyes\\\") by either Hermana, Francisco, Juan or Juana.\\nIn 1992, Juana petitioned for and received letters of administration for the Estate. See In re Estate of Faisao, Civ. No. 92-1320 (N.M.I. Super. Ct. Nov. 10, 1992) (order appointing administratrix). In the petition, Juana listed as an asset of the Estate the land transferred to Hermana by the Land Commission. See Petition for Letters of Administration, In re Estate of Faisao, Civ. No. 92-1320 (N.M.I. Super. Ct. filed Oct. 9, 1992).\\nOn September 2, 1993, Juana filed a quiet title action against the defendants. Santos and Tenorio answered the complaint on, respectively, September 23 and September 27, 1993. Santos alleged ownership of Tract 2-1 and counterclaimed, arguing that Jacinto conveyed Tract 2-1 to him. In his answer, Tenorio alleged ownership of Tract 5 under a conveyance from Hermana. On October 22, 1993, Milne answered the complaint alleging ownership of Tracts 1, 2, 3, 4, 6, 7, 8 and 9 pursuant to deeds issued by Hermana. See supra notes 6, 7.\\nJuana moved for summary judgment on December 10, 1993, alleging a violation of due process rights, deprivation of property rights and that the certificate of title contravened the rights of the heirs under the probate code.\\nOn April 14, 1994, the trial court entered judgment in favor of each of the defendants, holding that the Estate had no rights, title, lien or interest in the homestead property. Specifically, the court held that title to Tracts 1, consisting of 4,477 square meters, 2, 21965-2-R1, consisting of approximately 1,000 square meters, 3 and 4 was vested in Milne; title to Tracts 6, 7, 8 and 9 was vested in Milne and Reyes; title to Tract 5 was vested in Tenorio, and title to Tract 2-1 was vested in Santos. Juana timely appealed.\\nANALYSIS\\nA quiet title action is one in which a plaintiff seeks a declaration from the court that an allegedly adverse interest in property is invalid. See Aquino v. All Those Persons Having any Claim or Interest in Lot No. 069 D 05, 3 CR 415, 418-19 (N.M.I. Trial Ct. 1988) and Kasdon v. G. W. Zierden Landscaping, Inc., 541 F. Supp. 991, 995 (D. Md. 1982), aff'd sub nom., Kasdon v. United States, 707 F.2d 820 (4th Cir. 1983). Where the parties allege title from a common source, such as here, the court may render judgment as to which party's claim is superior. Fetzer v. Bodcaw Co., 601 F.2d 356, 360-61 (8th Cir. 1979); cf. Yokeno v. Mafnas, 973 F.2d 803, 808 (9th Cir. 1992).\\nGenerally, to show superiority of title each party must \\\"plead or prove his or her own claim to the property in question.\\\" Yokeno, supra. Here, however, the parties agree that there are no material issues of fact in dispute and that the defendants' title claims are based on Hermana's receipt of title under the Marital Act. Also, the validity of the transactions between Hermana and the defendants, apart from whether she held title to the property, is not in dispute, nor are the transfers by Juan, Juana and Francisco. Thus, the dispositive issue in determining superiority of title as between the Estate and defendants is whether title properly vested in Hermana.\\nThe Estate argues that title did not vest in Hermana because: (1) the Marital Act was impliedly repealed by the subsequent enactment of contrary language in the probate code, and, alternatively, (2) transfer of ownership to Hermana by the Land Commission constituted a violation of either Jacinto's or his heirs' due process rights. For the following reasons we disagree and conclude that the trial court did not err in determining that title vested in Hermana. As between the Estate and defendants, the defendants' claims to title are superior. Further, we conclude that the due process claims are without merit.\\nI. Marital Act neither Inconsistent with nor Repealed by Probate Code\\nBecause Jacinto died after the effective date of the probate code, see 8 CMC \\u00a7 2102 (effective Feb. 15, 1984), and the Marital Act, see 2 CMC \\u00a7 4344 (effective Sept. 7, 1983), we examine each of these code provisions to determine whether, for purposes of probate, the homestead property is a part of the Estate.\\n'\\\"[A] basic principle of [statutory] construction is that language must be given its plain meaning.'\\\" Commonwealth v. Hasinto, 1 N.M.I. 377, 382 (1990) (citations omitted). Also, \\\"[o]ne statutory provision should not be construed to make another provision [either] inconsistent or meaningless,\\\" In re Estate of Rofag, 2 N.M.I. 18, 29 (1991), or unconstitutional where open to a constitutional interpretation. In re Seman, 3 N.M.I. 57, 73 (1992). Finally, a statute will be an implied repealer of an earlier-enacted statute only where the two are in '\\\"irreconcilable conflict'\\\" and \\\"an intent to repeal is 'clear and manifest.'\\\" In re North, 16 F.3d 1234, 1243 (D.C. Cir. 1994) (quoting Rodriguez v. United States, 480 U.S. 522, 524, 107 S. Ct. 1391, 1392, 94 L. Ed. 2d 533, 536 (1987)).\\nA. Probate Code and Marital Act Ambiguous with Respect to Limited Number of Homestead Properties\\nUnder the probate code, any property in the estate of an intestate decedent would pass under the intestacy laws. See 8 CMC \\u00a7 2901. Under these provisions, Jacinto's homestead property would pass to his wife for a life estate and be held by her as customary trustee with the remainder going to the eldest surviving daughter as customary trustee. See 8 CMC \\u00a7 2905(a)(2).\\nHowever, under the Marital Act the surviving spouse of a homestead grantee may file a title transfer application with the Land Commission. 2 CMC \\u00a7 4342. If the application is approved, the title is transferred to the surviving spouse. 2 CMC \\u00a7 4343(b). Once title is transferred, the surviving spouse possesses \\\"all right, title and interest in the property\\\" previously held by the spouse. Id.; 2 CMC \\u00a7 4344.\\nRead together, these statutory provisions do pose a patent ambiguity, see Riley v. Public Sch. Sys., 4 N.M.I. 85, 89 (1994), as they appear to potentially conflict in the circumstances of this case. Under the probate code, homestead property would pass to the children with a life estate to the surviving spouse. Yet, the Marital Act allows a surviving spouse to apply for title to the homestead land.\\nNonetheless, two statutory provisions may produce different results when applied to the same factual situation and not be in \\\"irreconcilable conflict.\\\" Radzanower v. Touch Ross & Co., 426 U.S. 148, 155, 96 S. Ct. 1989, 1993, 48 L. Ed. 2d 540, 547 (1976). They are irreconcilable only where \\\"there is a positive repugnancy between them or . . . they cannot mutually coexist.\\\" Id. Furthermore, a narrowly tailored and precise statute will not be repealed by a later more general statute unless it is clearly intended by the legislature. See id., 426 U.S. at 153, 96 S. Ct. at 1992, 48 L. Ed. 2d at 546.\\nBecause the terms of the probate code do not expressly repeal the Marital Act, and because the latter is narrowly tailored and potentially conflicts with the probate code with respect to only a limited number of homestead properties, we will not presume that it was impliedly repealed by the probate code. Instead, we look to the legislative history of the statutes to determine the intent of the legislature. Cf. Radzanower, 426 U.S. at 157-58, 96 S. Ct. at 1994-95, 48 L. Ed. 2d at 548-49 (Court looks to legislative history to determine if either intent to repeal or abandonment of previous policy indicated).\\nB. Legislative History Indicates Marital Act Intended to Operate Independently of Probate Code\\nThis Court's objective, in interpreting statutes which reflect an ambiguity, is to \\\"ascertain and give effect to the intent of the legislature.\\\" In re Estate of Rofag, 2 N.M.I. at 29 n.10 (quoting Office of the Attorney General v. Cubol, 3 CR 64, 73 (D.N.M.I. App. Div. 1987)) ; see also Island Aviation, Inc. v. Mariana Islands Airport Auth., 1 CR 353, 371 (D.N.M.I. 1983) (citing Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 871 (9th Cir. 1981)). In examining legislative history, congressional committee reports receive greater weight than less formal material such as floor debates. See Island Aviation, Inc., 1 CR at 371-72.\\nAdditionally, we will not \\\"impute to [the legislature] an intent to pass legislation that is inconsistent with the Constitution as construed by this [c]ourt. \\\" United States v. X-Citement Video, Inc.,_U.S._, 115 S. Ct. 464, 470, 130 L. Ed. 2d 372 (1994). Under our interpretation of due process as applied to the parties' arguments, the homestead property could have properly passed in only one of two ways at Jacinto's death: either to Hermana, upon compliance with the Marital Act, or to Jacinto's putative heirs, subject to confirmation by the probate court.\\nThe available legislative history of the probate code is devoid of any reference to either the Marital Act or the definition of assets to be included in the estate of an intestate decedent. See generally H.R. Report No. 138, 3d N.M.I. Legis. (1983). However, the standing committee reports of the House and Senate regarding the Marital Act make it clear that the legislature intended all rights in the homestead property to vest in a surviving spouse.\\nThe House standing committee stated that the purpose of the Marital Act \\\"is to provide a fair and necessary legal process whereby a surviving spouse may transfer title or sell homestead property.\\\" H.R. Report No. 116, 3d N.M.I. Legis. (1983). It alluded to the probate process in noting that, at the time, a surviving spouse could not acquire title \\\"without the expense of considerable time and money.\\\" Id. Testimony was cited noting that the Marital Act would \\\"eliminat[e] the probate court process.\\\" Id. at 2 (citing testimony of Mr. T.G. Mattson, Micronesian Legal Services Corporation).\\nThe Senate standing committee urged passage of the Marital Act in order to \\\"further the purpose of Title 67 of the Trust Territory Code[] and to resolve the issue of title transfer to surviving spouses of legitimate homesteaders.\\\" Sen. Report No. 149, 3d N.M.I. Legis. (1982).\\nFrom these reports, we conclude that the legislature intended that, prospectively, all new homesteads were to be held in joint tenancy with right of survivorship. Furthermore, the pertinent legislative history evinces that the legislature intended that marital homestead property bypass the probate process and not be included in a decedent's estate for purposes of intestate succession. We also conclude that the legislature intended that unnamed grantee spouses be afforded succession rights to homestead property in fee simple upon compliance with the Marital Act.\\nThese conclusions are further supported by the time frame within which both the Marital Act and probate code were enacted. It is presumed that a legislature intends \\\"to enact an effective law.\\\" Ada v. Sablan, 1 N.M.I. 415, 429 n.18 (1990) (citation omitted). Here, both acts were under consideration at the same time and were passed by the same legislature. Furthermore, this legislature was aware of concerns raised about the succession rights of a decedent's children to homestead property under the Marital Act. See Letter from Jesus G. Villagomez, Executive Director, Marianas Public Land Corporation, to Pedro P. Tenorio, Governor (Aug. 9, 1983), H.R. Gov. Comm. No. 123, 3d N.M.I. Legis. at 2-3 (1983). It chose, nonetheless, to abandon a proposed amendment and leave the Marital Act intact. See id. at attachment 2.\\nBecause of the limited nature and purpose of the Marital Act, recognition of its continuing effect, as intended by the legislature, will not undermine the otherwise comprehensive nature of the probate code. The two acts are not inconsistent and can be read to give effect to each. Thus, there is no basis to infer the repeal of the Marital Act by the probate code.\\nThe next issue implicated by the Estate's arguments is whether the legislature may enact laws regarding the distribution of homestead property.\\nII. Legislature Empowered to Enact Laws Altering Succession to Intestate Decedent's Property\\nThe Estate argues that, under the Marital Act, the legislature improperly changed the nature of Jacinto's interest from one in fee simple to one in joint tenancy with right of survivorship. We disagree. The Marital Act had no effect on the property interest as held by Jacinto. He was free during his lifetime to convey, devise or otherwise alienate any portion or all of that interest. See 2 CMC \\u00a7 4342(f). Rather, the Marital Act designates the recipient of a decedent's homestead property.\\nThe NMI Legislature is empowered to establish laws regulating the distribution of a decedent's assets. Cf. Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S. Ct. 398, 401, 86 L. Ed 452 (1942) (\\\"Rights of succession to the property of a deceased, whether by will or by intestacy, are of statutory creation\\\") (quoted in Appellee Tenorio's Brief at 12). Not only may the legislature pass laws regarding the distribution of a decedent's assets, but it may do and has done so outside of the probate code.\\nHI. Title Vesting in Hermana not Violative of Due Process\\nThe Estate argues that vesting of Jacinto's property interest, upon his death, in Hermana violated either Jacinto's or his heirs' due process rights. For the following reasons, we disagree.\\nFirst, Jacinto's interest in the homestead property, or his right to alienate that interest, was never retroactively impeded by the Marital Act. The Marital Act only affected the succession to the property. Indeed, his undisputed conveyance of a portion of the homestead land to Milne evinces this.\\nSecond, Jacinto's children had no interest or potential interest in the property when held by Jacinto. See Irving Trust Co., 314 U.S. at 562, 62 S. Ct. at 401 (\\\"Expectations or hopes of succession, whether testate or intestate, to the property of a living person do not vest until the death of that person\\\"). Cf. Restatement of Property \\u00a7 30 cmt. b (1936) (\\\"A living person cannot have an heir\\\"). An heir's rights are abridged by a change in law only where such rights to vested interests are retroactively altered. Cf. In re Estate of Aldan, 2 N.M.I. 288, 297-98 (1991) (dicta) (retroactive change in law affecting succession rights of illegitimate children, enacted after death of decedent and prior to probate of estate, would violate due process). That the Marital Act may have altered the expectations of the heirs in acquiring the property does not make it violative of due process. Cf. United States v. Carlton,_U.S._, 114 S. Ct. 2018, 2023, 129 L. Ed. 2d 22 (1994) (prospective change in tax law disturbing expectations not violative of due process).\\nFinally, the homestead property interest passed to Hermana, subject to her perfection of title under the Marital Act. Therefore, the disputed property is not part of the Estate and no interest in the property vested in Jacinto's heirs under intestate succession laws. Hence, the heirs had no interest of which they could have been unconstitutionally deprived. See N.M.I. Const, art. I, \\u00a7 5; cf. Sablan v. Iginoef, 1 N.M.I. 190, 195, 204-205 (1990) (vested interests of heirs of intestate decedent must be affected to allege due process violation), appeal dismissed sub nom., Sablan v. Manglona, 938 F.2d 970 (9th Cir. 1991).\\nCONCLUSION\\nBased on the foregoing, we hereby AFFIRM the trial court's summary judgment orders in favor of the defendants.\\nThe judgment did not dispose of the Estate's claim to all 25,647 square meters. See facts and procedural background, infra. However, all parties to the appeal argue that the judgment is final, and the Estate acknowledges that the \\\"summary judgment. . . resolved all of the claims in dispute between the parties.\\\" Appellant's Brief at 2. Hence, this Court has jurisdiction under 1 CMC \\u00a7 3102(a). Cf Georgia Ry. & Power Co. v. Town of Decatur, 262 U.S. 432, 436-37, 43 S. Ct. 613, 615, 67 L. Ed. 1065 (1923); Winthrop Iron Co. v. Meeker, 109 U.S. 180, 183-84, 3 S. Ct. 111, 113-14, 27 L. Ed 898 (1883).\\nThe appellant states the issues for review as follows:\\n1. Whether the Commonwealth Superior Court erred in determining that at the time of the commencement of this action, title to the property was vested in defendants/appellees.\\n2. Whether the Commonwealth Superior Court erred in determining that plaintiff Estate of Jacinto K. Faisao has no right, title, lien or interest in the subject real property.\\nAppellant's Brief at 1.\\nSee Appellee Tenorio's Excerpts of Record at 19-20. Jacinto previously had been issued a certificate of compliance for Agricultural Homestead 493; see id. at 18. The land is described in the quitclaim deed to Jacinto as follows: \\\"Tract No. 21965 containing an area of 28,732 square meters more or less as shown on the Division of Lands and Surveys Official Survey Plat Number 2065/74 dated June 11, 1975.\\\" Id. at 19.\\nThis transfer is not in dispute. See and compare note 5, infra, with note 8, infra, and accompanying text.\\nSee Appellant's Excerpts of Record at 21. The square footage reflects the initial 28,732 square meters held by Jacinto minus the 3,085 square meters he conveyed in 1983 to Milne.\\nSpecifically, Tracts 2, 3 and 4, consisting of, respectively, 1,375, 6,628, and 929 square meters, were conveyed to Milne by Hermana between August 1, 1985, and December 2, 1985. Declaration of Defendant Milne at Attachments 3-5 in Appellant's Excerpts of Record at 1-6. Hermana then conveyed Tract 5, consisting of approximately 9,787 square meters, by warranty deed to Tenorio on December 31, 1985. Appellee Tenorio's Excerpts of Record at 7-10. A second and distinct Tract 21965-2 (\\\"2-1\\\"), consisting of approximately 2,000 square meters, was conveyed to Santos by Hermana by both warranty deed and quitclaim deed on, respectively, May 24, 1985, and December 18, 1985. Id. at 22-25. The trial court noted that while the lot number for this lot conveyed to Santos and the number for one of those conveyed to Milne were the same, the coordinates on the deeds evince that they are separate lots.\\nOn November 15, 1991, Francisco conveyed Tract 7, consisting of 724 square meters, to Milne and Joseph C. Reyes (\\\"Reyes\\\") by warranty deed. A portion of Tract 8 and all of Tract 9 were conveyed to both Milne and Reyes by, respectively, Juana and Juan. The Tract 8 portion consists of approximately 404 square meters and Tract 9 consists of approximately 724 square meters. See Declaration of Defen dant Milne at Attachments 6-8, In re Estate of Faisao, Civ. No. 93-0976 (N.M.I. Super. Ct. filed Jan. 19, 1994).\\nShe sought a declaration that all 25,647 square meters of the property transferred to Hermana were a part of the Estate. Complaint at 2, In re Estate of Faisao, supra note 7.\\nThe Estate acknowledges that the adverse interests purportedly held by the defendants were originally held by Jacinto, the same source from which it claims the property interest.\\nOtherwise, the '\\\"claimant, whether a Plaintiff or a counterclaiming Defendant, has the burden of persuasion . . . as to the strength of his or her own title' . if neither party carries its burden, the court must deny both parties relief by refusing to quiet title in the name of either party.\\\" Alexander Hamilton Life Ins. Co. of America v. Government of Virgin Islands, 757 F.2d 534, 541 (3d Cir. 1985) (citations omitted).\\nAs Hermana deeded all her interest in the disputed portions of the property to the defendants, she was not necessary to the action below. See Chance v. Buxton, 164 F.2d 341, 342 (5th Cir. 1947); Jones v. Sturgis, 199 P.2d 645, 647 (Colo. 1948).\\nWe note inconsistencies between the evidence in the record and the court's judgment with respect to the defendants Reyes and/or Milne's title to portions of the disputed property. For example: (1) there is no evidence in the record showing that Hermana deeded Tract 6 to Milne and Reyes; (2) the judgment appears to be erroneous with respect to the size of Tract 1, and includes not only an undisputed portion of the property deeded to Milne by Jacinto but the square meterage of a superseding deed conveying the same tract as well; (3) although the judgment vests title in Milne to Tract 21965-2-R1, of approximately 1,000 square meters, there is no reference to this tract by either number or size in the record; and (4) the judgment states that all of Tract 8 is in Milne and Reyes, while the record shows that Juana conveyed to them only a 404 square meter portion of this tract. Additionally, we are concerned with the failure to join Reyes as a defendant, given that his right to hold title to certain portions of the property was at issue. Although these inconsistencies are important to certain defendants and persons not named as parties to this action, they are immaterial to the issue of superiority of title as between the defendants and the Estate before this Court. Hence, we need not remand this matter for trial.\\nAlternatively, the Estate argues that its due process rights were violated. We summarily reject this argument. Due process is a constitutional right against the improper deprivation of a property interest, see N.M.I. Const, art. I, \\u00a7 5, to be brought by '[(Interested personal,\\\" see 8 CMC \\u00a7 2107(p) (\\\"interested person\\\" under probate code \\\"includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against the estate of a decedent') (emphasis added). An \\\"estate\\\" is merely a legal description of a decedent's assets. See 8 CMC \\u00a7 2107(j), 2107(x). Even if we were to consider the due process claim of the Estate proper, any of its rights would derive from Jacinto, and we conclude that his due process rights were not violated by the Marital Act.\\nWhere they \\\"'are capable of co-existence, it is the duty of the courts... to regard each as effective.'\\\" Radzanower v. Touch Ross & Co., 426 U.S. 148, 155, 96 S. Ct. 1989, 1993, 48 L. Ed. 2d 540, 547 (1976) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S. Ct. 2474, 2483, 41 L. Ed. 2d 290, 301 (1974)).\\n\\\"'Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.'\\\" Radzanower, 426 U.S. at 153, 96 S. Ct. at 1992, 48 L. Ed. 2d at 546 (quoting Morton, 417 U.S. at 550-51, 94 S. Ct. at 2482, 41 L. Ed. 2d at 301).\\nThe Marianas Public Land Corporation is vested with the authority to determine the nature of the interest transferred to a homestead grantee. See COVENANT TO ESTABLISH A Commonwealth of the Northern Mariana Islands in Political Union with the United States of America \\u00a7 805(b), 48 U.S.C. \\u00a7 1801 note, reprinted in CMC at B-116, and N.M.I. Const, art. XI, \\u00a7 3, 4; Northern Marianas Constitutional Convention, Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands at 154 (Dec. 6, 1976). Hence, the legislature may change the nature of the interest to be transferred to include survivorship rights to pending homestead applicants, see 2 CMC \\u00a7 4346. and new homestead applicants, see 2 CMC \\u00a7 4347. The situation presented in this case, however, applies to a defined group: surviving spouses of grantees who received title to homesteaded property before the enactment of the Marital Act but who died after the effective date of the probate code.\\nOn appeal from a summary judgment, we may determine, as a matter of law, the legislature's intent. See, e.g., Camacho v. Northern Marianas Retirement Fund, 1 N.M.I. 362. 369-70, 369 n.5 (1990).\\nGenerally, '\\\"a statute should be so interpreted to give it effect . we must start with the presumption that [the] legislature intended to enact an effective law, and it is not to be presumed that the legislation is a vain effort, or a nullity.'\\\" Ada v. Sablan, 1 N.M.I. 415, 429 n.18 (1990) (quoting Levy v. Kimball, 465 P.2d 580, 583 (Haw. 1970)).\\nSee also Songao v. Commonwealth, 4 N.M.I. 186, 190 n. 18 (1994) (\\\"court may look to legislative history for guidance where the enacted text may reasonably be read in two ways, or where no single path of meaning clearly appears\\\").\\nFor applications filed after the effective date of the Marital Act, both spouse's names are to be included and \\\"each homestead shall be deemed to be held jointly with the right of survivorship.\\\" 2 CMC \\u00a7 4347.\\nAppellant's Brief at 7-8.\\nA surviving spouse may file a title transfer application with the Land Commission on a form to be made available by the Land Commission, which provides at least the following information:\\n(f) An affirmation that, to the knowledge of the surviving spouse, the marital homestead property has not been sold or otherwise conveyed to a third person.\\n2 CMC \\u00a7 4342.\\n'\\\"A legislative enactment . . . changing the course of descent and distribution of property and the right to inherit or transmit property, is not an unlawful interference with or deprivation of vested rights, and, unless expressly inhibited by constitutional provisions, is to be deemed valid.'\\\" In re Estate of Millward, 141 N.E.2d 462, 464-65 (Ohio 1957) (quoting Ostrander v. Preece, 196 N.E. 670, 671 (Ohio 1935), appeal dismissed, 296 U.S. 543, 56 S. Ct. 151, 80 L. Ed. 386 (1935)) (quoted in Appellee Tenorio's Brief at 12-13).\\nThere are several statutory provisions outside of the probate code under which assets of a decedent are distributed. See, e.g., 1 CMC \\u00a7 8348-8350 (retirement benefits distributed by statute where no named beneficiary); 4 CMC \\u00a7 9309 (Worker's Compensation Law, providing specific distribution of benefits upon a covered death resulting from injury); 4 CMC \\u00a7 7502(d) (life insurance proceeds to named beneficiary). These assets are not considered a part of a decedent's estate for purposes of the probate code where, otherwise, the payment of funds would normally be included in the estate.\\nWe also note that under Com. R. App. P. 44, any appellant intending to argue on appeal the unconstitutionality of a statute must notify the Attorney General's office of such intent. This was not done.\"}"

n_mar_i/1697452.json

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+"{\"id\": \"1697452\", \"name\": \"Concepcion S. Wabol, et al., Plaintiffs/Appellees, v. Victorino U. Villacrusis, et al., Defendants/Appellants\", \"name_abbreviation\": \"Wabol v. Villacrusis\", \"decision_date\": \"1994-04-06\", \"docket_number\": \"Appeal No. 89-005; Civil Action No. 84-0397\", \"first_page\": 539, \"last_page\": \"541\", \"citations\": \"4 N. Mar. I. 539\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"parties\": \"Concepcion S. Wabol, et al., Plaintiffs/Appellees, v. Victorino U. Villacrusis, et al., Defendants/Appellants.\", \"head_matter\": \"Concepcion S. Wabol, et al., Plaintiffs/Appellees, v. Victorino U. Villacrusis, et al., Defendants/Appellants.\\nAppeal No. 89-005\\nCivil Action No. 84-0397\\nOrder of Dismissal April 6, 1994\\nMotion Concerning Jurisdiction Argued and Submitted November 27, 1989\\nCounsel for appellants: Theodore R. Mitchell, Saipan.\\nCounsel for appellants: Marybeth Herald, Saipan (Fitzgerald, Herald & Bergsma).\\nBEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"word_count\": \"1917\", \"char_count\": \"11934\", \"text\": \"PER CURIAM:\\nThe U.S. Court of Appeals for the Ninth Circuit issued a judgment on December 6, 1993 , reversing our December 11, 1989, decision and order asserting jurisdiction over the appeal on this matter. The Ninth Circuit ruled that we have no jurisdiction. We have received its mandate with directions to dismiss this particular appeal. In view of that mandate, therefore, it is ORDERED that this appeal be, and is hereby, DISMISSED. The clerk of court shall issue our mandate immediately to the Superior Court.\\nWabol v. Villacrusis, Appeal No. 90-15101 (9th Cir. Dec. 6, 1993).\\nWabol v. Villacrusis, 1 N.M.I. 34 (1989).\"}"

n_mar_i/1697456.json

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+"{\"id\": \"1697456\", \"name\": \"Commonwealth of the Northern Mariana Islands, Plaintiff/Appellant, v. Quirino Adlaon, Defendant/Appellee\", \"name_abbreviation\": \"Commonwealth v. Adlaon\", \"decision_date\": \"1994-07-28\", \"docket_number\": \"Appeal No. 93-029; Traffic Case No. 93-0614\", \"first_page\": 171, \"last_page\": \"176\", \"citations\": \"4 N. Mar. I. 171\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"parties\": \"Commonwealth of the Northern Mariana Islands, Plaintiff/Appellant, v. Quirino Adlaon, Defendant/Appellee.\", \"head_matter\": \"Commonwealth of the Northern Mariana Islands, Plaintiff/Appellant, v. Quirino Adlaon, Defendant/Appellee.\\nAppeal No. 93-029\\nTraffic Case No. 93-0614\\nJuly 28, 1994\\nArgued and Submitted December 9, 1993\\nCounsel for appellant: Cheryl M. Gill, Assistant Attorney General, Saipan.\\nCounsel for appellee: Daniel J. DeRienzo, Public Defender, Saipan.\\nBEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"word_count\": \"3492\", \"char_count\": \"21044\", \"text\": \"DELA CRUZ, Chief Justice:\\nThe government appeals the dismissal of reckless driving and driving while under the influence of alcohol charges against the defendant, Quirino Adlaon. The trial court ruled that the government's failure to timely provide certain discovery material violated the defendant's right to due process. For the following reasons we vacate the order of dismissal and remand the case for further proceedings.\\nI. PROCEDURAL AM) FACTUAL BACKGROUND\\nAdlaon was arrested on February 7, 1993, and charged pursuant to 9 CMC \\u00a7 7104 (reckless driving) and 7105 (driving under the influence of alcohol or other drugs). He was administered a blood alcohol content test (\\\"BAC\\\" or \\\"Breathalyzer test\\\") pursuant to 9 CMC \\u00a7 7106. The result of the test, which we do not know, is not at issue in this appeal.\\nIn an affidavit in support of his pre-trial motions, Adlaon stated that he was coerced into taking the Breathalyzer test. Appellee's Supplemental Excerpts of Record at 32. He stated that an unidentified police officer slapped him into submitting to the test. He also asserted that the police withheld his car keys until the morning after the test, and only after he had signed a document acknowledging that he had consented to take the Breathalyzer test. The test, he contends, was taken in violation of the Commonwealth's implied consent law. 9 CMC \\u00a7 7106(c).\\nOn March 15, 1993, Adlaon filed an administrative complaint with the Department of Public Safety (\\\"DPS\\\") for the assault and battery he allegedly sustained the night he took the Breathalyzer test. The complaint was designated as DPS Case No. 93-1909. Documents regarding this complaint are not in the trial record.\\nOn March 22, 1993, defense counsel Daniel DeRienzo wrote a letter to the director of DPS requesting information regarding the administrative complaint the defendant had earlier filed. A copy of the letter was sent to DPS's legal counsel. DPS did not respond.\\nOn March 30, 1993, Adlaon filed three pre-trial motions along with his affidavit noted above, including a \\\"Motion for Discovery.\\\" Among the discovery material requested, Adlaon sought disclosure of: (1) all information regarding DPS Case No. 93-1909 (request no. 36); (2) the witnesses the government intended to call at trial (request no. 1); and (3) all police officers who observed him within \\\"one hour after his arrest\\\" (request no. 19).\\nThe motions were initially set for hearing on April 27, 1993. For reasons not set forth in the record the hearing on the discovery motion and the other two pretrial motions was continued to May 4, 1993, which was also the date set for trial.\\nOn May 4, immediately before the discovery hearing, the government produced a number of documents regarding DPS Case No. 93-1909. Following argument, the court found the government's tardy disclosure inexcusable. It then stated: \\\"I think that the most fair, the most fair and most logical way to proceed in this matter would be to give this defendant another two week's time to prepare for trial.\\\" Appellant's Excerpts of Record [hereinafter \\\"ER\\\"] at 14.\\nAdlaon requested the court to clarify that the continuance was given to allow him time to analyze the materials received that morning, and was not for the benefit of the government. The government objected to Adlaon's attempt to foreclose it from supplementing its previously-disclosed discovery, witness list or evidence for trial. Adlaon's counsel then chose to forego a continuance and the matter proceeded to trial.\\nAt the beginning of the government's case, the prosecutor informed the court that four witnesses would be called to testify. The defense objected, noting that in the government's earlier responses to discovery it had indicated that only two witnesses would be called.\\nThe government's first witness was Officer Anthony Moreham, who stated that Officer Anthony Macaranas was at the arrest scene. ER at 58. At this point, defense counsel moved for dismissal of the case on the ground that he had not received any discovery information to the effect that Officer Macaranas was involved in the case. Id. at 61.\\nAfter hearing the arguments of counsel, the trial judge stated:\\nIt is very important for me, it is very important, that the government or especially the prosecution side, as much as possible . be truthful in their presentation of evidence or sharing of documents that would be used in trial.\\nIn this case, I cannot help it, but I have to dismiss both charges .\\nId. at 72.\\nThe court noted that the case was being dismissed on \\\"due process\\\" grounds alone. Id. at 76. In a written order, the court added:\\nThe Defendant also represented to the Court that critical to the issue of this case is the assault and battery complaint filed at [DPS] .\\nThe issue presented in the assault and battery complaint, DPS Case No. 93-1909, is critical for the defense. It happened during the period the Defendant was being held by the police. The resultant investigation by DPS and the turning over of such material(s) to the defense on the eve of trial is prejudicial. Without that information being provided [in] a timely fashion, the defense would not have adequate time to conduct further research or even issue subpoena(s) to any potential witnesses with respect to the allegation. That issue alone, coupled with Officer Anthony Moreham's testimony that Officer Anthony Macaranas was present at the scene where the Defendant was stopped, are material to the issue of exculpation.\\nId. at 79-80 (emphasis added).\\nThe government timely appealed the dismissal of the case.\\nH. ISSUES AND STANDARD OF REVIEW\\nThe government raises two issues on appeal.\\nThe government first contends that the trial court erred in dismissing this action on due process grounds because it failed to \\\"produce documents pertaining to DPS Case No. 93-1909 until the day of trial\\\" and refused to \\\"list fact witnesses in response to the defendant's discovery requests.\\\"\\nWe review de novo a dismissal of a criminal case on due process grounds. Commonwealth v. Campbell, 4 N.M.I. 11, 15 (1993), aff'd, 42 F.3d 546 (9th Cir. 1994).\\nNext, the government contends that, assuming it violated its duties to produce discovery, the trial court erred in choosing the sanction of dismissal to remedy the alleged violation. It asserts that the violation did not warrant dismissal. Our review of this issue is for abuse of discretion. Id.\\nm. ANALYSIS\\nThe trial court dismissed the case against Adlaon on \\\"due process\\\" grounds. The due process violation the trial court found concerned Adlaon's right to a fair trial. The factual basis of the court's decision, as we gather from the court's oral and written statement and order, was the government's untimely production of the documents in DPS Case No. 93-1909 and its failure to disclose as a witness the name of an officer who was present at the arrest scene.\\nThe trial court determined that the results of DPS Case No. 93-1909 were critical to Adlaon's defense. The government, however, contends that DPS Case No. 93-1909 does not contain exculpatory material within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Thus, it had no duty to disclose them and there was no due process violation. Also, the government contends that it was under no constitutional or statutory duty to disclose its trial witness list, and that the allegedly undisclosed name of the officer at the arrest scene was in fact disclosed to the defense well before the trial date.\\nWe need to examine the circumstances leading up to the day of trial before a determination can be made that Adlaon's right to a fair trial and right to discovery were violated. If it is determined that there has been a violation, we shall then proceed to the issue of whether dismissal of the charges was an appropriate sanction.\\nA. Due Process\\nWe begin by noting that the discovery motion and the trial were set for the same day. Rather than confront the motion, the government produced documents on the morning before the hearing on the pre-trial motions. To ensure that Adlaon would not be prejudiced by the government's late disclosure, the court offered to continue the trial so that he would have the time to review the materials. Adlaon chose instead to proceed to trial. It was in this context that the trial began.\\nAfter the government's first witness, Officer More-ham, testified that Officer Macaranas was present at the arrest scene, the defendant immediately objected. Adlaon argued that Officer Macaranas was not disclosed as a witness as requested. The prosecutor disagreed, stating that Officer Macaranas was earlier identified as being present at the scene in a previously-disclosed document. Nevertheless, the judge stopped the trial.\\nThe trial court admonished the government that it should \\\"as much as possible be truthful in their [sic] presentation of evidence or sharing of documents that would be used at trial.\\\" ER at 72. Viewing the issue relating to the defendant's assault and battery complaint as critical to the defense and material to the issue of exculpation, the court dismissed the charges.\\nUnder Brady, the government must disclose \\\"evidence favorable to an accused\\\" which is \\\"material either to guilt or to punishment.\\\" 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. In Campbell, we held that the failure to disclose pretrial materials did not constitute a Brady violation where the content of the subject documents were unknown. 4 N.M.I. at 17. We also held that \\\"a Brady 'claim will have no merit' where the disclosure of material evidence 'did not come too late to deprive the defendant of a fair trial.'\\\" 4 N.M.I. at 15. Finally, we stated that an accused does not suffer a due process violation until he or she has been tried and convicted. 4 N.M.I. at 16.\\nHere, the matter was dismissed after the trial began but before the end of the government's case. There has been no conviction. Like Campbell, the nature of the alleged exculpatory material is unknown. The defendant would like us to infer that DPS Case No. 93-1909 contains per se exculpatory material because the prosecutor's and DPS's conduct in failing to disclose the material earlier connotes bad faith. The underlying issue we face is whether to uphold a finding of a due process violation that has no support in the record. We decline to do so.\\nThe record before us does not disclose whether the materials handed over on the day of trial are in fact exculpatory. If they are exculpatory, then sanctions, even dismissal of the charges, may have been justified to cure the violation. However, we do not know the exculpatory or non-exculpatory nature of the documents. Neither did the trial court.\\nThe documents regarding DPS Case No. 93-1909 may not be exculpatory. If so, there would be no duty to disclose them under Brady and no prejudice would result to the defendant because of non-disclosure. We hold that the trial court erred in finding a due process violation because it did not inquire into the nature of the documents, i.e., whether the documents are, in fact, exculpatory.\\nIt clearly was irritating to the trial court for the government to produce the requested materials on the day of the discovery hearing and just before trial. The government should have known that unless the trial was continued, the materials handed over could be of no help to a defendant who had not reviewed them. The defense, however, chose to forego the continuance offered by the trial court. Adlaon cannot now argue that he was denied the right to a fair trial.\\nAlthough we hold that on the record before us there was no due process violation based on Brady, we go on to determine whether there was a statutory duty requiring disclosure of the documents or the identity of Officer Macaranas. We therefore next examine the prosecution's statutory duty of disclosure and the appropriateness of the sanction imposed.\\nB. Disclosure under Com. R. Crim. P. 16(a)(1)(C)\\nThe government does not adequately address its failure to timely disclose the apparently critical DPS record pursuant to Com. R. Crim. P. 16. Certainly, information regarding the voluntariness of the defendant's consent in taking the Breathalyzer test, at issue in DPS Case No. 93-1909, would fall under this category.\\nA defendant is entitled to discover documents which are \\\"material to the preparation of his/her defense.\\\" Com. R. Crim. P. 16(a)(1)(C). The government failed in its duty to timely provide such information to enable Adlaon to adequately prepare for trial.\\nThis failure appears unjustified, particularly in light of Adlaon's sworn statement that he was the subject of physical coercion by the police. The government failed in its duty to provide the defendant with potentially critical information after two requests (discovery request no. 36 and defense counsel's direct request to DPS), without justification.\\nGenerally, with regard to discovery a continuance will cure any prejudice that might result due to the government's delay. United States v. Peveto, 881 F.2d 844, 861-63 (6th Cir.), cert. denied sub nom., Hines v. United States, 493 U.S. 943, 110 S. Ct. 348, 107 L. Ed. 2d 336 (1989). However, where the government's actions are taken in bad faith, suppression of evidence may be appropriate. United States v. Wicker, 848 F.2d 1059, 1061-62 (10th Cir. 1988). Dismissal is, however, a remedy of last resort and should be employed where the defendant is prejudiced by the government's \\\"flagrant\\\" misconduct. Campbell, 4 N.M.I. at 18. We are not satisfied that such was the case here.\\nThe trial court did not examine the requested documents and did not know whether they were material to the preparation of Adlaon's defense. The government's disclosure on the morning of trial appears to suggest that the documents fall within the purview of Com. R. Crim. P. 16(a)(1)(C). We agree with the trial court that the government's failure to timely disclose the documents was unjustified. We disagree, however, that dismissal was an appropriate sanction. We hold that the trial court abused its discretion by failing to continue the case, as it had earlier suggested. It should have imposed a sanction short of dismissal.\\nIn Campbell, which involved a somewhat similar situation, we noted that the sanction of dismissal is a harsh and disfavored remedy. Campbell, 4 N.M.I. at 18. To warrant dismissal, the government's misconduct must not only be flagrant but must also have prejudiced the defendant. Id. The defendant rejected the court's offer of continuance, and cannot now claim that the untimely production of the allegedly exculpatory documents in DPS Case No. 93-1909 would somehow have prejudiced him at trial. Moreover, the trial court made no specific finding that the prosecutor engaged in flagrant misconduct.\\nC. Disclosure of the Witness List\\nA defendant does not have a due process right to discover the government's witness list. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845, 51 L. Ed. 2d 30, 42 (1977). Similarly, no right is provided by our rules of criminal discovery. See Com. R. Crim. P. 16. However, the court has the inherent power to order disclosure of witnesses to promote the efficient administration of our criminal justice system. United States v. Moore, 936 F.2d 1508, 1515 (7th Cir.), cert. denied, 502 U.S._, 112 S. Ct. 607, 116 L. Ed. 2d 630 (1991); United States v. Eisenberg, 773 F. Supp. 662, 683 (D.N.J. 1991). We review the trial court's decision to order disclosure for abuse of discretion. Moore, 936 F.2d at 1515; Eisenberg, 773 F. Supp. at 683.\\nThe disclosure of the government's witness list should not be ordered except upon a specific showing of need. A motion for disclosure has been denied where the defendant made \\\"only an abstract, conclusory claim that such disclosure was necessary to its proper preparation of trial.\\\" United States v. Feldman, 731 F. Supp. 1189, 1199 (S.D.N.Y. 1990), aff'd, 992 F.2d 320 (2d Cir. 1993). For example, claims that the government's investigation was lengthy, the witness pool was large and disclosure would greatly facilitate defense preparation were deemed unspecific, and thus did not justify the requested relief in the form of government disclosure of its witnesses. Id.\\nWe therefore agree with the government that it was not required to disclose its witness list to Adlaon. We note that the trial court dismissed the case before it could order further disclosure. The dismissal was principally based on the government's failure to produce documents regarding DPS Case No. 93-1909. However, to the extent that the trial court's dismissal was based on (1) a violation of Adlaon's asserted due process right to discover the government's witness list, or (2) its failure to comply with an order in a previous, unrelated case as authority that the government must produce a witness list, we hold that the trial court erred.\\nIV. CONCLUSION\\nWe find the government's conduct in this case quite disturbing. Any allegation of physical coercion should not be taken lightly. Yet here, the government all but ignored Adlaon's complaint of physical coercion by the police, after two formal requests by the defense counsel and upon receipt of a sworn statement by Adlaon testifying to the abuses he suffered.\\nClearly, the government should have responded immediately after being notified of such allegations of police abuse and coercion, particularly under the circumstances presented here. The government's conduct in ignoring Adlaon after he submitted a sworn statement to the court and tried in vain to use legal process to uncover the abuses indeed reflects poorly on the government. The trial court's displeasure with the prosecutor was justified. However, under the circumstances, its remedy was not justified.\\nThere is no question that the government must address claims of police coercion promptly and openly. We therefore remand the case to the trial court to reconsider the imposition of sanctions. Adlaon contends that the Breathalyzer test was taken illegally, by coercion, and thus against his consent. If the trial court finds that Adlaon's allegations have merit, it may suppress the Breathalyzer results on the ground that the test was taken without consent in violation of 9 CMC \\u00a7 7106.\\nWe note that the reckless driving charge filed pursuant to 9 CMC \\u00a7 7104 should not have been dismissed, as this charge is unrelated to the events leading to the Breathalyzer test and corresponding allegations of coercion. This opinion relates only to the charge under 9 CMC \\u00a7 7105 and should not affect the charge of reckless driving under 9 CMC \\u00a7 7104 on remand.\\nThe order of the trial court dismissing the action is VACATED and the case is REMANDED for further proceedings consistent with this opinion.\\nOn March 30, 1993, Adlaon filed motions for discovery, to suppress the Breathalyzer test results and relating to an expert witness.\\nNine CMC \\u00a7 7106(c) provides:\\nA person requested to submit to a test as provided above shall be warned by the police officer requesting the test that a refusal to submit to the test will result in revocation of his or her license to operate a motor vehicle for six months. Following this warning, if a person under arrest refuses upon the request of a police officer to submit to the test, none shall be given, but the Court upon the receipt of a sworn report of the police officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the highways of the Commonwealth while under the influence of alcohol or any drug and that the person had refused to submit to the test upon the request of the police officer, shall revoke that person's license subject to review as provided for in Section 7108.\\nThe court also noted that a memorandum sent by Superior Court Judge Alexandra Castro to the Attorney General in September 1992, pursuant to an order issued in an unrelated criminal action, Commonwealth v. Villanueva, Crim. No. 81-0082 (N.M.I. Tr. Ct. Sept. 21, 1981), construed Com. R. Crim. P. 16. Appellant's Excerpts of Record at 82-86. Com. R. Crim. P. 16, according to this memorandum and order, requires the government to disclose the \\\"names and addresses of all potential witnesses\\\" who may have some knowledge of the facts of the present case. The government failed to satisfy the dictates of this ruling.\\nAfter the appeal was filed, the government moved to supplement the trial record with matters outside the record below. We denied the motion.\\nThis document is not a part of the record before us.\\nSee note 3, supra.\"}"

n_mar_i/1697463.json

@@ -0,0 +1 @@
+"{\"id\": \"1697463\", \"name\": \"Vicente N. Rivera, for himself and as president of Investment Group International (I.G.I.), Taiwan Harbour Engineering Construction Company, Ltd., Chi Yung Enterprises Company, Ltd., Kuo's Construction Company, Ltd., and Chi Man Enterprises Company, Ltd., doing business as Taiwan Marine Group, Plaintiffs/Appellants, v. Jesus M. Guerrero, Chairman, Commonwealth Ports Authority, and Samsung Engineering and Construction Company, Defendants/Appellees\", \"name_abbreviation\": \"Rivera v. Guerrero\", \"decision_date\": \"1993-12-22\", \"docket_number\": \"Appeal No. 93-015; Civil Action No. 93-0157\", \"first_page\": 79, \"last_page\": \"85\", \"citations\": \"4 N. Mar. I. 79\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"parties\": \"Vicente N. Rivera, for himself and as president of Investment Group International (I.G.I.), Taiwan Harbour Engineering Construction Company, Ltd., Chi Yung Enterprises Company, Ltd., Kuo\\u2019s Construction Company, Ltd., and Chi Man Enterprises Company, Ltd., doing business as Taiwan Marine Group, Plaintiffs/Appellants, v. Jesus M. Guerrero, Chairman, Commonwealth Ports Authority, and Samsung Engineering and Construction Company, Defendants/Appellees.\", \"head_matter\": \"Vicente N. Rivera, for himself and as president of Investment Group International (I.G.I.), Taiwan Harbour Engineering Construction Company, Ltd., Chi Yung Enterprises Company, Ltd., Kuo\\u2019s Construction Company, Ltd., and Chi Man Enterprises Company, Ltd., doing business as Taiwan Marine Group, Plaintiffs/Appellants, v. Jesus M. Guerrero, Chairman, Commonwealth Ports Authority, and Samsung Engineering and Construction Company, Defendants/Appellees.\\nAppeal No. 93-015\\nCivil Action No. 93-0157\\nDecember 22, 1993\\nArgued and Submitted October 8, 1993\\nCounsel for appellants Vicente N. Rivera and Taiwan Marine Group: Reynaldo Yana, Saipan.\\nCounsel for appellee J.M. Guerrero: Stephen Nutting, Saipan.\\nCounsel for appellee Samsung Engineering & Construction Company: Douglas Cushnie, Saipan.\\nBEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.\", \"word_count\": \"3454\", \"char_count\": \"21413\", \"text\": \"VILLAGOMEZ, Justice:\\nThis is an appeal by the plaintiffs, Vicente Rivera and Taiwan Marine Group (collectively \\\"Rivera\\\"), from the dismissal of their complaint. The trial court dismissed the complaint for lack of subject matter jurisdiction, for failure to state a claim upon which relief could be granted, and because there is no factual dispute that the rejection of Rivera's proposal by the Commonwealth Ports Authority (CPA) was neither arbitrary nor capricious.\\nWe have jurisdiction over this appeal under the Commonwealth Judicial Reorganization Act of 1989. We affirm the dismissal of Rivera's complaint on the ground that the Superior Court lacked jurisdiction.\\nISSUES AND STANDARD OF REVIEW\\nRivera raises the following three issues for our review:\\n1. Whether the trial court erred in ruling that it lacked subject matter jurisdiction due to Rivera's failure to exhaust his administrative remedy.\\n2. Whether the trial court erred in ruling that the complaint failed to state a claim upon which relief could be granted with respect to Rivera's claim that his constitutional rights to due process and equal protection under the law were violated by CPA.\\n3. Whether the trial court erred in ruling that CPA's rejection of Rivera's proposal was neither arbitrary nor capricious as a matter of law.\\nThe first issue, as stated by Rivera, does not adequately or accurately reflect what actually happened at the administrative level. Rivera did not simply file a protest with CPA and then proceed to court for judicial review without exhausting his administrative remedy. Instead, he filed an \\u00abtimely protest. Then, four days later, he abandoned his administrative protest and filed a separate action in court. Thus, the issue, more accurately stated, is whether Rivera's failure to file a timely protest with the CPA precludes judicial review of his complaint.\\nBecause we affirm the dismissal based on lack of subject matter jurisdiction, we do not address the second and third issues. Dismissals made pursuant to Com. R. Civ. P. 12(b)(1) are subject to de novo review.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nIn response to a request for proposals published by the Commonwealth Ports Authority (CPA), Rivera submitted a proposal to serve as contractor for the Saipan Harbor Improvement Project (\\\"Harbor Project\\\"). Rivera's proposal was determined by CPA's contracting officer to be non-responsive to certain requirements set forth in the request for proposals, unclear in several respects, and five million dollars higher than the lowest responsive proposal.\\nCPA formally rejected Rivera's proposal on December 24, 1992, following the review by and advice of CPA consultants. On that day, Rivera received written notice from the CPA chairman, acting in his capacity as contracting officer, that Rivera's proposal had been rejected and that the CPA board of directors (\\\"board\\\") would pursue negotiations with the four companies that were deemed qualified to participate in the contract bidding. CPA, acting pursuant to its procurement regulations, subsequently awarded the Harbor Project contract to Samsung Engineering and Construction Company (\\\"Samsung\\\"), which CPA determined to be the lowest responsive and responsible bidder.\\nSamsung and CPA executed a contract for the Harbor Project on January 28, 1993. That same day, CPA received Rivera's \\\"Official and Formal Protest of Award of Contract for Improvement and Development of the Saipan Harbor, and Questionable/Illegal Conduct by the CPA,\\\" dated January 27, 1993. In his formal protest, Rivera requested that \\\"negotiations be held and that [Rivera's] company will be included.\\\"\\nAlthough the CPA procurement regulations provide that proposers such as Rivera may protest the rejection of their proposals within ten days, Rivera did not submit his protest until thirty-four days after the rejection of his proposal. Then, instead of proceeding with his administrative protest, Rivera filed a complaint in the Superior Court on February 1, 1993. In his complaint, Rivera seeks only to have CPA's contract with Samsung declared void, and requests attorney's fees.\\nOn February 2, 1993, CPA notified Rivera in writing that his letter of protest had been received, but would not be considered \\\"a formal protest/grievance as it was not received [by CPA] within 10 days from the date [Rivera] received CPA's letter [of rejection] dated December 24, 1992.\\\" CPA subsequently moved to dismiss Rivera's complaint in the Superior Court pursuant to Com. R. Civ. P. 12(b)(1), 12(b)(6), and 56(b). The trial court dismissed the complaint based on each of the three grounds asserted by CPA. Rivera timely appealed.\\nANALYSIS\\nCPA rejected Rivera's proposal on December 24, 1992. Rivera subsequently filed an untimely protest with CPA. He then filed the present action. For the following reasons, we affirm the dismissal of Rivera's complaint for lack of jurisdiction under Com. R. Civ. P. 12(b)(1). We base our decision on Rivera's failure to meet the deadline for filing a protest with CPA.\\nA. The Effect of the Untimely Protest under CPA Regulations\\nCPA advised Rivera on February 2, 1993, that his formal letter of protest would not be considered because it was not filed within ten days of CPA's rejection of Rivera's proposal. The trial court likewise correctly found that Rivera's protest was untimely.\\nThe Commonwealth Ports Authority Act (\\\"the Act\\\") provides the standards for contracting and bidding. It also empowers the CPA \\\"[t]o adopt and enforce rules and regulations for the orderly, safe, and sanitary operation of its ports.\\\"\\nUnder regulations promulgated by CPA, \\\"[a]ny actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the Executive Director.\\\" Protests must be received in writing by the executive director within ten days after the aggrieved person \\\"knows or should have known of the facts giving rise thereto.\\\"\\nThe executive director is obligated to consider all protests or objections, whether submitted before or after an award of a contract. Within thirty days, the executive director must decide the protest or certify that the complexity of the matter requires a longer time. An appeal from the executive director's decision then may be taken, \\\"to the appeal committee . . . provided that the party taking the appeal has first submitted a written protest to the Executive Director as provided in section 10.1 . . and the Executive Director has denied the protest or has failed to act on the protest within the time provided for in section 10.1 (l)(c).\\\" The appeal committee must receive the written appeal within ten days after the appellant receives the Executive Director's decision.\\nOn December 24, 1992, Rivera received written notice of the contracting officer's rejection of his proposal. He had ten days within which to file a written objection to that decision. However, as the trial court found, Rivera mailed his formal protest on January 27, 1993, long after the ten days had expired.\\nThe time limit for filing an intra-agency appeal is mandatory and jurisdictional. The protest was thus barred from administrative consideration.\\nB. The Effect of the Untimely Administrative Protest on the Court's Jurisdiction\\nA court lacks jurisdiction to review administrative decisions not timely appealed during the administrative process. Thus, Rivera's untimely protest bars not only further administrative consideration, but also judicial review.\\nRivera contends, however, that he need not have exhausted his administrative remedies, a process which would have begun with a timely filed protest, because exhaustion would have been futile. He advances four arguments in support of his position.\\nFirst, Rivera asserts that CPA has no power to declare the CPA-Samsung contract void because CPA itself is a party to the contract. This argument contradicts the express provisions of the CPA regulations.\\nThe CPA regulations provide that if, before CPA awards a contract, it receives a protest against award of the contract, then CPA must: (1) withhold the award pending disposition of the protest, unless a limited exception applies, and (2) cancel or revise the solicitation or proposed award if CPA determines that the solicitation or proposed award violates a law or regulation.\\nIf CPA receives a protest challenging a contract after it has been awarded, CPA may: (1) ratify and affirm the contract or terminate it and compensate the awardee, if the latter has not acted in bad faith or fraudulently, or (2) declare the contract null and void, or ratify and affirm the contract and seek damages as appropriate, if the person awarded the contract has acted fraudulently or in bad faith. This survey of CPA regulations makes it abundantly clear that CPA has not only the authority, but also the duty, to consider and act upon protests and requests that are properly filed.\\nSecond, Rivera argues that CPA cannot be expected to invalidate its own illegal action. Again, this argument is unpersuasive because CPA regulations require that the agency determine whether it has violated a law or regulation and, if so, that it cancel or revise the solicitation, proposed award, or contract award. We have to presume that CPA would follow this regulatory directive and invalidate any of its own actions that it finds to be illegal. Only if it fails to do so may judicial review follow.\\nThird, Rivera claims that his allegations that his right to due process and equal protection raise constitutional issues which only a court may adjudicate. Rivera argues that he need not, therefore, have presented his grievances to CPA. This argument has no merit.\\nAs a general rule, the mere presence of a constitutional claim does not bar operation of the doctrine of exhaustion of administrative remedies. Courts have made exceptions to the exhaustion doctrine in instances where a plaintiff brings constitutional challenges to the validity of a statute or ordinance under which the agency acts, and demonstrates positively what the administrative decision would be, or that the administrative remedy would be inadequate or irreparably harmful, in his or her particular case. In this instance, however, Rivera is not challenging the constitutionality of the Act or the CPA regulations, nor has he demonstrated positively that following the procedures required here would afford him inadequate relief or cause him irreparable harm. Thus, the constitutional claims raised by Rivera are not of the type which fall within the exception to the exhaustion rule.\\nRivera cites Torres v. Marianas Pub. Land Corp., 3 N.M.I. 484 (1993), for the proposition that one who is aggrieved by an agency's action need not exhaust his or her administrative remedies where the person believes that his or her constitutional rights have been infringed by the agency. Torres, however, does not stand for that proposition. In Torres, a citizen of the Northern Marianas (Torres) sued a private company (Nakamoto Enterprises) to prevent it from violating his right to a clean and healthful public environment, as guaranteed by N.M.I. Const, art. I, \\u00a7 9. With respect to that cause of action, Torres, unlike Rivera, was not aggrieved by an agency action.\\nIn Torres, the plaintiff alleged that the construction of a large hotel in a particular area of Saipan, under the terms of a lease agreement between Nakamoto Enterprises and the Marianas Public Land Corporation, would adversely impact the environment and violate his constitutional right to a clean and healthful public environment. The defendants in Torres urged the court to dismiss the action for lack of subject matter jurisdiction on the ground that the plaintiff had not exhausted his administrative remedies by waiting until the Office of Coastal Resources Management (\\\"CRM\\\"), which was not a party to the lawsuit, decided whether to issue a permit for the hotel. The trial court dismissed for failure to exhaust.\\nOn appeal, we determined that since N.M.I. Const, art. I, \\u00a7 9 is self-executing, the plaintiff did not have to wait for a ruling from CRM, the non-party agency. Neither a statute nor regulations required that Torres wait for such a ruling. Following our earlier ruling in Govendo v. Marianas Pub. Land Corp., 2 N.M.I. 482 (1992), that a strong public policy supports strict enforcement of rights secured by N.M.I. Const, art. I, \\u00a7 9, we held in Torres that the plaintiffs cause of action was viable.\\nIn the present case, Rivera alleges that the agency's action in awarding the contract to Samsung violated his rights to due process and equal protection of the law. The CPA rules and regulations provide for claims such as this to undergo review at the administrative level. However, Rivera failed to timely lodge his administrative appeal, and thereby precluded CPA from considering the merits of his protest. His case is distinguishable from Torres.\\nFourth, Rivera argues that even if he is required to exhaust his administrative remedies, he could not have executed his administrative appeal because his bid was rejected by J.M. Guerrero, the board chairman and contracting officer, who alone could not make the rejection decision. Rivera asserts that only the CPA board is authorized to act on a proposal and, since the board never rejected his bid, there is no action by the board from which Rivera may appeal. This argument lacks merit in light of express CPA regulations.\\nEven if Guerrero lacked the authority to reject a proposal, Rivera incorrectly assumes that CPA regulations permit a party to protest only board actions. The regulations expressly provide that \\\"[a]ny . . . bidder . . . who is aggrieved in connection with the solicitation or award of a contract may protest to the Executive Director.\\\" If Rivera's bid was improperly rejected because the rejection should have been made by the board, then Rivera became an \\\"aggrieved\\\" party and he should have timely protested the rejection.\\nIf Rivera had submitted his protest within the requisite time period, it would have been reviewed by the executive director, whose decision in turn would have been subject to review by the appeal committee. Rivera then could have proceeded to court for review of the committee's decision. Having failed to timely appeal administratively, he may not appeal now to the court.\\nC. Judicial Review under the Commonwealth Administrative Procedure Act (APA)\\nAlthough the parties did not raise or discuss the issue of finality under the APA, we note that the APA provides for judicial review of \\\"[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.\\\" An aggrieved party may seek such review within thirty days after the agency issues its final decision about the matter in question.\\nIn the instant case, CPA's December 24, 1992, notice to Rivera of the rejection of his proposal might or might not be deemed final agency action. If it was a non-final CPA action, then Rivera could not seek review under the APA, which authorizes review only of final agency decisions.\\nIf the December 24, 1992, rejection was a final CPA action, then Rivera had thirty days within which to seek judicial review of the rejection. He would not have had to exhaust his administrative remedy under such circumstances. Rivera, however, did not file his action in court until thirty-nine days after he received notice of the rejection of his proposal. Consequently, even if he could have sought judicial review of the rejection of his proposal as final agency action under the APA, Rivera's court action was untimely.\\nCONCLUSION\\nFor the above reasons, the dismissal of Rivera's complaint for lack of subject matter jurisdiction is hereby AFFIRMED.\\nSee 1 CMC \\u00a7 3102(a).\\nWe note here that when the Superior Court determines that it has no subject matter jurisdiction and dismisses a complaint under Com. R. Civ. P. 12(b)(1), the court should proceed no further. See United States v. 40.60 Acres of Land, 483 F.2d 927, 928 (9th Cir. 1973).\\n5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure \\u00a7 1350 (2d ed. 1990); Aquino v. Tinian Cockfighting Bd., 3 N.M.I. 284, 291-92 (1992); Seman v. Aldan, 3 CR 152, 155 (D.N.M.I. 1987).\\nLetter from Vicente N. Rivera, President, Investment Group International, to Jesus M. Guerrero, Board of Directors Chairman and Contracting Officer, Commonwealth Ports Authority (Jan. 27, 1993) in Supplemental Excerpts of Record of Appellees/Cross-Appellants at tab 5.\\nThe CPA regulations use the term \\\"protest\\\" to describe the first stage of the administrative appeal process established in its regulations. The protest serves as the first step in the overall process of administrative appeal. We use the words \\\"protest\\\" and \\\"appeal\\\" interchangeably for purposes of this opinion.\\nLetter from Roman T. Tudela, Executive Director, Commonwealth Ports Authority, to Vicente N. Rivera, President, Investment Group International (Feb. 2, 1993).\\nFindings of Fact \\u00b6 5, Rivera v. Guerrero, Civ. No. 93-0157 (N.M.I. Super. Ct. Mar. 15, 1993) (order). An agency's dismissal of an intra-agency appeal for failure to file in a timely fashion does not bar a reviewing court from examining the timeliness of the appeal. See Smith v. Prokop, 496 F. Supp. 861, 863 (N.D. Ohio 1980).\\n2 CMC \\u00a7 2121 et seq.\\n2 CMC \\u00a7 2132.\\n2 CMC \\u00a7 21220).\\nCommonwealth Ports Authority Procurement Rules and Regulations [hereinafter \\\"CPA Regulations\\\"] \\u00a7 10.1(l)(a), 10 Com. Reg. 5642-43 (Aug. 15, 1988).\\nId.\\nId.\\nId. \\u00a7 10.1(l)(c), 10 Com. Reg. 5643.\\nId. \\u00a7 10.2(1), 10 Com. Reg. 5645.\\nId. \\u00a7 10.2(3), 10 Com. Reg. 5645.\\nSee Nansay Micronesia Corp. v. Govendo, 3 N.M.I. 12, 18-19 (1992) (Coastal Resources Management board lacked jurisdiction to hear untimely appeal of agency's permit decision); see also Da Cruz v. Immigration & Naturalization Serv., 4 F.3d 721, 722 (9th Cir. 1993).\\nSee Nansay, 3 N.M.I. at 19-20; see also Da Cruz, 4 F.3d at 722-23 (court lacked jurisdiction to review administrative law judge's decision because agency did not timely appeal to its own board of appeals).\\nCPA Regulations, supra note 11, \\u00a7 10.1(2)-(5), 10 Com. Reg. 5644, 5646.\\nId. \\u00a7 10.3(1), 10 Com. Reg. 5648.\\nId. \\u00a7 10.3(2)(a), 10 Com. Reg. 5648.\\nId. \\u00a7 10.3(2)(b), 10 Com. Reg. 5648.\\nSee id. \\u00a7 10.3, 10 Com. Reg. 5648.\\nSee, e.g., Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 67 S. Ct. 1493, 91 L. Ed. 796 (1947).\\nSee, e.g., American Fed. of Gov't Employees v. Acree, 475 F.2d 1289, 1292 (D.C.Cir. 1973); Ogo Ass'n. v. City of Torrance, 112 Cal. Rptr. 761, 763 (Ct. App. 1974).\\nThis constitutional guarantee provides, in pertinent part, \\\"[e]ach person has a right to a clean and healthful public environment in all areas, including the land, air, and water.\\\" N.M.I. Const, art. I, \\u00a7 9, cl. 1.\\nTorres v. Marianas Pub. Land Corp., 3 N.M.I. 484, 486-87 (1993).\\nSee Govendo v. Marianas Pub. Land Corp., 2 N.M.I. 482, 502 n.16 (1992).\\nSee id 2 N.M.I. at 501-02.\\nSee Torres, 3 N.M.I. at 492.\\nCPA formally amended its procurement rules and regulations to authorize the chairman of the board to negotiate and execute a contract for the Saipan Harbor Improvement Project. See Commonwealth Ports Authority, Public Notice, Commonwealth Ports Authority Emergency Amendment to Section 2.3(1) of the Commonwealth Ports Authority's Procurement Rules and Regulations, 14 Com. Reg. 9769-75 (Oct. 15, 1992).\\nCPA Regulations, supra note 11, \\u00a7 10. l(l)(a), 10 Com. Reg. 5642-43.\\n1 CMC \\u00a7 9101 et seq.\\nSee 1 CMC \\u00a7 9112(d) (emphasis added).\\nThe APA specifies that, unless otherwise precluded by statute, \\\"[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action, is entitled to judicial review of the action within 30 days thereafter in the Commonwealth Trial Court.\\\" See 1 CMC \\u00a7 9112(a) -(b) (emphasis added).\\nWe raise this issue without deciding it here.\\nParties seeking review under the APA must first exhaust all intra-agency appeals expressly mandated either by statute or by the agency's regulations. Such exhaustion requirements create jurisdictional prerequisites to proceeding to court. See Montgomery v. Rumsfeld, 512 F.2d 250, 252-53 (9th Cir. 1978); Lopez v. Civil Serv. Comm'n, 283 Cal. Rptr. 447, 449- 51 (Ct. App. 1991). Where no statute or regulation mandates exhaustion, a court may proceed to review the agency's final decision under the APA, and may not impose additional exhaustion requirements. See Darby v. Cisneros, 509 U.S._, 113 S. Ct. 2539. 2445, 125 L. Ed. 2d 113, 123 (1993).\"}"

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+"{\"id\": \"1697467\", \"name\": \"Estate of Lina M. Taisacan, Plaintiff/Appellant, v. Juan Hattori and Daiwa International Corporation, Defendants/Appellees\", \"name_abbreviation\": \"Estate of Taisacan v. Hattori\", \"decision_date\": \"1993-08-09\", \"docket_number\": \"Appeal No. 92-031; Civil Action No. 91-0778\", \"first_page\": 26, \"last_page\": \"31\", \"citations\": \"4 N. Mar. I. 26\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, VILLA-GOMEZ, Justice, and HILLBLOM, Special Judge.\", \"parties\": \"Estate of Lina M. Taisacan, Plaintiff/Appellant, v. Juan Hattori and Daiwa International Corporation, Defendants/Appellees.\", \"head_matter\": \"Estate of Lina M. Taisacan, Plaintiff/Appellant, v. Juan Hattori and Daiwa International Corporation, Defendants/Appellees.\\nAppeal No. 92-031\\nCivil Action No. 91-0778\\nAugust 9, 1993\\nArgued and Submitted March 11, 1993\\nCounsel for appellant: Douglas F. Cushnie, Saipan.\\nCounsel for appellees: Antonio M. Atalig, Saipan.\\nBEFORE: DELA CRUZ, Chief Justice, VILLA-GOMEZ, Justice, and HILLBLOM, Special Judge.\", \"word_count\": \"2818\", \"char_count\": \"17454\", \"text\": \"DELA CRUZ, Chief Justice:\\nThe estate of Lina M. Taisacan (hereinafter \\\"Estate\\\") through its administratrix, Olympia T. Leon Guerrero, appeals an adverse judgment entered in an encroachment action. The case arose as a result of an allegedly erroneous government survey of a certain parcel of land located in Teteto, Rota, that belongs to Juan Hattori. Concluding that neither Hattori nor his predecessor in interest acted \\\"negligently or intentionally\\\" in extending the boundaries of the defendants' property, the trial court held that the Estate was not entitled to relief against the named defendants.\\nWe have jurisdiction pursuant to 1 CMC \\u00a7 3102. For the reasons noted below, we vacate the judgment of the trial court.\\nI\\nOn July 28, 1959, the Trust Territory government issued land title Determination of Ownership 422 (\\\"TD 422\\\") in favor of the late Presentaci\\u00f3n Atalig, defendant Hattori's mother. TD 422 encompasses Lot 3048 (hereinafter \\\"Lot 3048\\\" or \\\"Hattori property\\\"). The size of the Hattori property is approximately 4.75 hectares. On September 6, 1967, the Trust Territory government issued Determination of Ownership 519 (\\\"TD 519\\\") in favor of the late Lina M. Taisacan, whose estate filed this action. TD 519 encompasses Lot 3150 (hereinafter \\\"Lot 3150\\\" or the \\\"Estate property\\\"). The size of the Estate property is approximately 1.5 hectares.\\nIn 1983, the Commonwealth government performed a survey of privately-owned lands situated next to the public road running from Songsong Village to Sinapalo. The Hattori property was among the parcels surveyed. The Hattori property, after the survey, showed an increase of 9,611 square meters from the approximate area stated in TD 422. The Estate property, adjacent to the Hattori property but away from the public road, was not surveyed.\\nOn July 6, 1984, the Northern Marianas Land Commission issued a certificate of title to defendant Hattori's mother. The certificate, relying on the 1983 government survey, states that Lot 3048 has a land area of 57,111 square meters.\\nIn 1990, the Estate retained Alfred K. Pangelinan, a licensed land surveyor, to conduct a survey of the Estate property, Lot 3150. Based on his review and survey, Pangelinan asserted that Lot 3150 was short by some 2,175 square meters. He testified that the shortage resulted from the increase in size of the Hattori property and another adjoining lot, Lot 3159, due to the 1983 government survey.\\nThe survey of the Estate property was based on government-established survey controls. Pangelinan used a \\\"brass disk\\\" located in the center of the main highway abutting the Hattori property as the survey's reference point. From there, Pangelinan was able to identify the northwest and southwest comers of the Estate property. Concrete markers had been placed on these comers in or before 1983 by Rota Land Management. The location of these two comers was further confirmed by the existence of a barbed wire fence running along the western edge of the Estate property.\\nPangelinan relied on Rota Land Management data showing the distances between the Estate property's southwest and southeast comers, the northwest and northeast comers, and northwest and southwest comers. The southeast comer, where a Japanese concrete marker was located, coincided with Land Management computations. Coconut trees line the border, at least partially, of Lot 3150 between the southwest and southeast comers.\\nThe parties do not dispute the validity of TD 422, TD 519 or the information used by Pangelinan in surveying the Estate's property.\\nIn contrast, only two documents support the defendants' position that the Hattori property is substantially larger than the area designated in TD 422. These are the 1983 government survey of the Hattori property and the corresponding certificate of title issued to Presentaci\\u00f3n Hattori based on the 1983 survey. The defendants' witnesses could not satisfactorily explain the approximate one hectare variance in the size of the defendants' property between that set forth in the 1983 Land Commission certificate of title and TD 422, issued in 1959. The defendants rely on one of their witness's assertion that the Land Commission somehow \\\"negotiated\\\" this increase.\\nIn fact, the record reveals that after the Land Commission issued the certificate of title to the Hattori property, defendant Hattori and another adjoining landowner, Abraham E. Taisacan, on behalf of the heirs of Servino Taisacan, signed an \\\"Agreement Regarding Land Dispute\\\" which, inter alia, states that the Hattori property is only 47,500 square meters (4.75 hectares).\\nConcluding, however, that the evidence was insufficient to show that Hattori 'negligently' or 'intentionally' extended the boundaries of his mother's property,\\\" the trial court entered judgment for the defendants. It then noted that the Estate should instead seek relief at the administrative level and, if that failed, should sue the government for the shortfall in the size of its property. This appeal followed.\\nn\\nThe Estate raises four issues for our review: (1) whether an encroachment exists on Lot 3150; (2) whether defendant Hattori owns Lot 3048, as his mother's successor in interest, and is bound by her previous acts; (3) whether the trial court \\\"used the proper rule of law applicable to a boundary dispute\\\"; and (4) whether the issuance of the certificate of title to Hattori's mother based on the 1983 government survey violated the Estate's due process rights and the principle of res judicata.\\nThe first two issues raise mixed questions of law and fact which we review de novo. Guerrero v. Guerrero, 2 N.M.I. 61 (1991). The remaining two issues are issues of law and are reviewable de novo. Ada v. Sablan, 1 N.M.I. 415 (1990).\\nm\\nA. The Claim of Encroachment\\nThe Estate contends that the trial court erred in concluding that the defendants were not liable based on the theory of encroachment. It asserts that the trial court disregarded evidence showing that the 1983 government survey of the Hattori property erroneously includes a portion of the Estate property. We are not persuaded by the Estate's contention that the 1983 government survey by itself, even if erroneous, constitutes an encroachment on the Estate's property.\\n\\\"An encroachment is an intrusion or invasion on adjoining property\\\" without the benefit of an easement. 2 C.J.S. Adjoining Landowners \\u00a7 41 (1972). An encroachment is a \\\"continuing\\\" trespass or nuisance. Kafka v. Bozio, 218 P. 753, 755 (Cal. 1923). A trespass, in turn, \\\"consists of a physical entry upon the lands of another and taking possession thereof under such circumstances.\\\" Id. (Emphasis added.) Where the encroachment is above the land and not on it, it is a nuisance. Case v. Sisich, 275 P. 492, 494 (Cal. Dist. Ct. App. 1929). Thus, the general rule is that \\\"[n]o person may erect buildings or other structures on his own land so that any part thereof, however small, extends beyond his boundaries and encroaches upon adjoining premises.\\\" McKee v. Fields, 210 P.2d 115, 116 (Or. 1949).\\nAn encroachment requires some \\\"physical\\\" intrusion from the encroacher's land onto the land of another. To show an encroachment, one must establish the existence of some tangible thing (structure, trees, plants) that overlaps onto an adjoining lot. We are aware of no cases where an encroachment has been found without a physical or some tangible invasion on adjoining land.\\nNone of the authorities cited by the Estate support the proposition that an encroachment occurs solely on the basis of an erroneous survey. Each of the following cases cited by the Estate involve a physical intrusion on the land of another: Maull v. Lindsley, 84 So. 92 (Fla. 1920) (action to enjoin defendants from obstructing dedicated public highway); Overstreet v. Lamb, 128 So. 2d 897 (Fla. Dist. Ct. App. 1961) (action to remove structure encroaching on plaintiffs property); Boone v. Robinson, 152 S.W. 753 (Ky. 1913) (action to establish boundary lines on basis of mutual mistake where partition fence built on plaintiffs land); Murray Hotel Co. v. Golding, 216 P.2d 364 (N.M. 1950) (adobe wall on land in dispute).\\nThe record below shows no physical or tangible object extending from the Hattori property onto the Estate property. The Estate's claim of encroachment rests solely on its allegation that the government's 1983 survey of defendants' property was too expansive. Without more, the Estate's claim of encroachment fails.\\nThis case is instead an action to quiet title \\u2014 that is, an action to resolve a boundary dispute resulting from an allegedly erroneous survey. It is not an encroachment case. Although the Estate's complaint alleged only an encroachment cause of action which is not supported by the evidence, the parties did litigate the underlying boundary dispute issue, including whether the government survey of the Hattori property was wrong and whether the Estate's survey was correct. The Estate's failure to technically plead a quiet title claim for relief does not preclude the Court from granting declaratory relief resolving the boundary dispute between the parties and quieting title to the Estate property. The underlying issue as to the proper location of the mutual boundary should have been addressed below.\\nB. The Underlying Boundary Dispute\\nRather than addressing what is clearly a boundary dispute, the trial court concluded that a finding of encroachment depends on the existence of negligent or intentional conduct of the encroacher. In effect, the court ruled that even if it found an encroachment on the Estate property, liability rests with the government. It never addressed the boundary dispute, which generally must be established first in an action for encroachment. We may do so now, based on the undisputed evidence set forth at trial.\\nThe Estate presented the testimony of Pangelinan, a licensed surveyor, who established the comers and boundaries of Lot 3150 using the land title determinations of Lots 3048, 3150 and other adjacent lots, and the Asia Mapping Services and Land Commission surveys. The existence of a barbed wire fence and coconut trees which either completely or partially lined the borders between certain comers of the Estate property buttressed Pangelinan's conclusions as to the mutual boundary between the Hattori and Estate properties. His testimony was not contradicted by the defendants.\\nEach document in the record before the trial court regarding the Hattori property shows that the property is approximately 4.75 hectares, except for the disputed 1983 government survey upon which the Land Commission certificate of title was based. Where the title determination, as here, does not describe any monuments but only size, quantity of land should be considered as evidence, although we acknowledge that it is \\\"least reliable of all descriptive particulars.\\\" Tellei v. Ngodrii, 2 TTR 450, 452 (Trial Div. 1963); Erickson v. Wick, 591 P.2d 804, 807 (Wash. Ct. App. 1979).\\nThe defendants' witnesses could not explain the significant variance in the size of the Hattori property between that set forth in the Land Commission certificate of title and TD 422. A party cannot rely on a claim of ownership of substantially more land than \\\"that mentioned in the grants\\\" to him. Tellei, 2 TTR at 453. Despite the defendants' contrary assertions, the term \\\"more or less\\\" when applied to quantities should be applied with precaution and only to cover \\\"some slight or unimportant inaccuracies].\\\" Ingersol v. Olson, 272 N.W. 270, 273 (Minn. 1937). If the calls in the deed render the words unnecessary, they should be rejected. Id.\\nHattori acknowledged in the \\\"Land Dispute Agreement\\\" he signed with another adjacent land owner that his property is 4.75 hectares\\u2014not 5.71 hectares as he maintains in this litigation. He signed this agreement about six weeks after the certificate of title was issued. We find that this admission fortifies our conclusion that the Hattori property is not larger than 4.75 hectares.\\nFinally, the defendants do not dispute the accuracy of TD 519 or TD 422, nor do they question the accuracy of the Rota Land Management data or the survey methodology used by Pangelinan. Based on the undisputed evidence presented to the trial court, we hold that the Pangelinan survey of the Estate property is accurate, and that the boundary between Lots 3048 and 3150 is that shown on the survey prepared by Pangelinan. The trial court should, as to that mutual boundary, order the Land Commission to correct the 1983 government survey of the Hattori property and the certificate of title upon which it was based insofar as those documents erroneously show the boundary between adjoining Lots 3048 and 3150.\\nThe Estate asserted below that another portion of its property was erroneously included in still another adjoining property, Lot 3159, according to the 1983 government survey. Because the owner of this other adjoining lot was not a party to this action, we are not at liberty to determine the boundary between the Estate property and Lot 3159. See Aquino v. Tinian Cockfighting Bd., 3 N.M.I. 284 (1992).\\nTV\\nThe judgment of the trial court is hereby VACATED and the matter is REMANDED for entry of judgment consistent with this opinion. In particular, the trial court's judgment shall declare that the mutual boundary between Lot 3048 and Lot 3150 be the same as that shown on the Alfred Pangelinan survey of the Estate property identified as DLS CHECK NO. 3050/90 and Plaintiffs Exhibit 1. The judgment shall also remand the matter to and instruct the Northern Marianas Land Commission to amend its record, in particular the July 6, 1984, certificate of title issued for Lot 3048, so that the mutual boundary between Lot 3048 and Lot 3150 corresponds to the Pangelinan survey of the Estate property.\\nThe Hattori property is described as:\\nBounded on the North by property of Manuel Ayuyu, on the East by property of Juan Atalig, on the West by the Ocean, and on the South by properties of Jose Taimanao and Antonio Barsinas, containing an area of 4.75 hectares, more or less, subject to survey. Determination of ownership is exclusive on [sic] any existing roadway, right of way or easement upon said land.\\n(Emphasis added.)\\nThe Estate property is described as:\\nBounded on the North by property of Manuel H. Ayuyu, on the East by property of Huberto A. Taisacan, on the West by property of Presentaci\\u00f3n A. Hattori, and on the South by property of Juan Lizama Atalig, containing an area of 1.5 hectares, more or less, subject to survey. Determination of ownership is exclusive of any existing roadway, right of way, or easement upon said land.\\n(Emphasis added.)\\nSee Plaintiffs Exhibit 9, entitled \\\"AGREEMENT REGARDING LAND DISPUTE BETWEEN JUAN A. HATORRI [sic] AND ABRAHAM E. TAISACAN REPRESENTING THE HEIRS OF SERVINO TAISACAN,\\\" dated August 21, 1984.\\nThis litigation arose because of an allegedly erroneous government survey and resulting certificate of title. The appellate briefs and trial transcript trial clearly establish that the parties intended to quiet title. For example, during trial, defendants' counsel stated: \\\"[T]he dispute between the plaintiff and the defendant[s] is basically a boundary dispute.\\\" Transcript at 154/7-8. Also, the Estate's brief states: \\\"[T]he focus of the court is to determine where the correct boundary is and provide the appropriate relief.\\\" Plaintiff/Appellant's Opening Brief at 21. Under the circumstances, remanding the matter to the trial court for the Estate to amend its complaint to conform to the evidence in order to assert a cause of action for quiet title, Com. R. Civ. P. 15, and obtain a ruling by the trial judge regarding the boundary dispute would unjustifiably raise form over substance and waste judicial resources. Manglona v. Civil Serv. Comm'n, 3 N.M.I. 243 (1992).\\nWe need not address the issue as to the correctness of this legal conclusion because the trial record does not support a finding of encroachment.\\nWe note that even the Japanese land document introduced as Defendants' Exhibit \\\"A\\\" (and \\\"Al\\\") indicates that the Hattori property is 4.716 hectares, which is less than that set forth in TD 422.\\nThe defendants' assertion that the certificate of title is binding on the Estate pursuant to 2 CMC \\u00a7 4251 is without merit. No evidence was presented that the Estate had actual or constructive notice of the Land Commission's determination of ownership of Lot 3048 or the issuance of the certificate of title. Accordingly it is not binding on the Estate. And, where the accuracy of a boundary is at issue, the Land Commission was obligated to notify the Estate and give it the opportunity to agree or disagree with any claim made affecting its land. 2 CMC \\u00a7 4241(a)(2).\\nBecause of our disposition of this matter, we need not address the remaining two issues raised by the Estate. However, we note that the defendants' answer admits ownership of Lot 3048. And, there was never a dispute as to Hattori's ownership even after Hattori was substituted into this action by order of the court.\"}"

n_mar_i/1697473.json

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+"{\"id\": \"1697473\", \"name\": \"In re Estate of Santiago C. Tudela, Deceased\", \"name_abbreviation\": \"In re Estate of Tudela\", \"decision_date\": \"1993-06-16\", \"docket_number\": \"Appeal Nos. 92-010 & 92-011; Civil Action No. 86-0844\", \"first_page\": 1, \"last_page\": \"7\", \"citations\": \"4 N. Mar. I. 1\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ and ATALIG, Justices, and BELLAS, Special Judge.\", \"parties\": \"In re Estate of Santiago C. Tudela, Deceased.\", \"head_matter\": \"In re Estate of Santiago C. Tudela, Deceased.\\nAppeal Nos. 92-010 & 92-011\\nCivil Action No. 86-0844\\nJune 16, 1993\\nArgued and Submitted May 6, 1993\\nCounsel for appellant Maria Haruko Tudela: Paul A. Lawlor, Saipan (Lawlor & Zamsky).\\nCounsel for appellants Connie Pangelinan, et al.: Douglas Cushnie, Saipan.\\nCounsel for appellee Loriebell A. Tudela: F. Randall Cunliffe, Saipan.\\nBEFORE: VILLAGOMEZ and ATALIG, Justices, and BELLAS, Special Judge.\", \"word_count\": \"3964\", \"char_count\": \"23792\", \"text\": \"ATALIG, Justice:\\nThe appellants, the wife and nieces and nephews of Santiago C. Tudela, deceased (\\\"Santiago\\\"), appeal a probate court order in which Loriebell Avelino Tudela (\\\"Loriebell\\\") was found to be Santiago's child and a decree of final distribution in which Loriebell received all the real and one-half of the personal property in Santiago's estate. We conclude that the probate court improperly applied the presumption of paternity under the Uniform Parentage Act (\\\"UPA\\\") to the probate proceedings in determining whether Loriebell was an heir of Santiago. Additionally, we hold that claims of ownership in specific land in a decedent's estate are not \\\"claims\\\" for purposes of 8 CMC \\u00a7 2924. Finally, we will not address whether the application and operation of 8 CMC \\u00a7 2411, 2601 and 2902 of the probate code are unconstitutional because it is not necessary for the resolution of this appeal.\\nISSUES AND STANDARD OF REVIEW\\nAmong the issues raised on appeal are:\\nI. Whether the UPA applies to determine paternity issues in probate proceedings.\\nII. Whether on their face, or by their application to a surviving spouse not of Northern Marianas descent, 8 CMC \\u00a7 2411, 2601 and 2902 violate Article XII of the NMI Constitution.\\nIII. Whether 8 CMC \\u00a7 2924(b) applies to either a claim of ownership of land included in the inventory of an estate or a claim of paternity in probate proceedings. The first issue involves the construction and application of a statute and is reviewed de novo. In re Estate of Deleon Guerrero, 3 N.M.I. 253, 259 n.3 (1992). The second issue raises a constitutional question and is subject to de novo review. The third issue is a question of law subject to de novo review as well. See, e.g., Sablan v. Iginoef, 1 N.M.I. 190, 197 (1990), appeal dismissed sub nom., Sablan v. Manglona, 938 F.2d 970 (9th Cir. 1991); In re Estate of Mueilemar, 1 N.M.I. 441, 444 (1990).\\nFACTUAL AND PROCEDURAL BACKGROUND\\nThe appellants are Maria Haruko Tudela (\\\"Maria\\\"), the wife of Santiago, Francisco S. Pangelinan (\\\"Francisco\\\"), and Santiago's nieces and nephews, Connie P. Pangelinan (\\\"Connie\\\"), Donicio T. Palacios, Herman T. Palacios, Augustin T. Palacios, Rosario T. Palacios, and Susan P. Schwartz.\\nSantiago, a person of Northern Mariana Islands (\\\"NMI\\\") descent, and Bella Avelino Tudela (\\\"Bella\\\"), not of NMI descent, were married on February 28, 1985. Bella became pregnant during the marriage. Santiago filed for divorce on November 22, 1985. They signed a marital settlement agreement in which Bella not only admitted that she engaged in adultery but that Santiago was not the father of her then unborn child. The court granted the divorce on December 23, 1985, and incorporated the marital settlement agreement into the divorce decree. On June 6, 1986, Bella gave birth to Loriebell on Guam.\\nSantiago and Maria were married on November 13, 1986. Five days later, on November 18, 1986, Santiago died intestate. The marriage produced no children. On November 24, 1986, Maria initiated the probate of Santiago's estate, petitioning for letters of administration. The petition was granted on March 16, 1987. On April 24, 1987, through her counsel, Loriebell filed a \\\"Notice of Heir\\\" in the probate action alleging that she was Bella and Santiago's child. On August 13, 1987, Maria filed an inventory of the estate. The following day she filed a petition for final distribution.\\nOn June 22, 1988, Bella, acting as guardian for Loriebell, filed a motion for declaratory judgment on the paternity issue, to which the appellants filed then-opposition. On July 13, 1988, the court granted Bella's motion, finding that: (1) Maria and the nieces and nephews had no standing to dispute the father-child relationship between Loriebell and Santiago under 8 CMC \\u00a7 1706(a) of the UPA; and (2) Loriebell was Santiago's issue and was, therefore, entitled to share in his estate. See In re Estate of Tudela, Civ. No. 86-0884 (N.M.I. Super. Ct. July 13, 1988) (Declaratory Decree and Order). That determination was based on a presumption of paternity pursuant to 8 CMC \\u00a7 1704 of the UPA. Declaratory Decree and Order, supra, at 4-5.\\nOn July 27, 1990, and September 18, 1990, Maria filed amended inventories and petitions for final distribution, which included both personal and real property. The real property consisted of five parcels: (1) Tract 22905-3 containing 1,943 square meters; (2) Lot 1877-1-R1 containing 6,574 square meters; (3) a 10,002 square meter portion of Lot 003 C 06; (4) an agricultural homestead of 40,001 square meters; and (5) a 10,000 square meter portion of Lot 001 C 11. Tudela, supra (May 22, 1992) (Order at 2-3). On September 27, 1990, the court substituted Rexford Kosack for Maria as administrator of the estate. He filed a petition for final distribution on February 24, 1992. On March 9, 1992, Connie and Francisco filed an objection in which they asserted that they each owned a parcel of land included in the inventory. On May 22, 1992, the court distributed Santiago's estate.\\nThe probate court concluded that Connie and Francisco's claims of ownership to specific parcels of land included in the estate were barred for failure to file a creditor's claim against the estate within sixty days of first notice to the creditors, as required by 8 CMC \\u00a7 2924. Order, supra, at 6. In addition, the probate court found three sections of the probate code, 8 CMC \\u00a7 2411, 2601 and 2902, unconstitutional either on then-face or by their application, as they violated Article XII of the CNMI Constitution.\\nFirst, the court found that 8 CMC \\u00a7 2411 was an improper legislative attempt to transform an unconstitutional acquisition of a long-term interest in land by a person not of NMI descent. Order, supra, at 9. Second, the court found the application of 8 CMC \\u00a7 2601 to non-NMI surviving spouses unconstitutional, as it improperly allowed the transfer of a family home to a person of non-NMI descent, in violation of Article XU (where there are children of the decedent). Order, supra, at 11. Finally, the court found 8 CMC \\u00a7 2902 unconstitutional in its application to a non-NMI spouse, as it allowed the spouse of a decedent to obtain a life estate in ancestral land, with the children taking a vested remainder in fee simple, contrary to Article XII. Order, supra, at 12-13. Pursu ant to its decree and order, the court divided the personal property equally between Maria and Loriebell. As the court concluded that Maria could not receive any interest in the land under Article XII, all the lands were distributed to Loriebell.\\nANALYSIS\\nI. Whether the UPA Applies to Determine Paternity Issues in Probate Proceedings\\nThe appellants contend that the probate court improperly applied the presumption of paternity under the UPA, and not 8 CMC \\u00a7 2918 (determination of parentage for heirship purposes) of the probate code. Loriebell argues that the appellants should be barred from arguing against the applicability of the UPA in the determination of paternity under the doctrine of invited error. We find Loriebell's argument to be without merit. The doctrine of invited error is applicable where an appellant has either failed to take exception to the court's rulings, see Mach v. Abbott Co., 136 F.2d 7 (8th Cir. 1943), cert. denied, 320 U.S. 773, 64 S. Ct. 80, 88 L. Ed. 464 (1943) (cited in Appellee's Opening Brief) or taken \\\"a position on appellate review inconsistent with that [taken] in the trial court,\\\" Graham v. Graham, 252 P.2d 313, 316 (Wash. 1953) (cited in Appellee's Opening Brief). The record fails to show that this doctrine is applicable to the appellants. Additionally, we conclude that 8 CMC \\u00a7 2918 of the probate code provides the appropriate means by which the trial court may determine if Loriebell is Santiago's child for purposes of intestate succession.\\nUnder 8 CMC \\u00a7 2202, the probate court has wide discretion in probate proceedings to entertain any relevant matters that may come before it in a probate matter, and the court is specifically granted the authority to determine the heirs and successors of decedents. See In re Estate of Rofag, 2 N.M.I. 18 (1991) and supra note 8. Such authority of the court encompasses a wide variety of issues, see Rofag, supra (customary adoption), and In re Estate of Deleon Guerrero, 1 N.M.I. 301 (1990) (intestate succession under Chamorro custom), including paternity issues under intestate succession. See In re Estate of Deleon Guerrero, 3 N.M.I. 253 (1992) (hereinafter Deleon Guerrero). In probate proceedings, interested persons may participate in heirship determina tions, which may include the resolution of paternity issues.\\nIn Deleon Guerrero, this Court addressed the applicability of the UPA to establish paternity in probate proceedings. We held that not only does the probate code provide the probate court with the means to establish paternity regarding intestate succession, id., 3 N.M.I. at 260, but that the establishment of paternity after the alleged father's death must be done within the purview of the probate code and not the UPA as well. The UPA \\\"contemplates that the alleged father is still alive [and] will be made a party to the action or given notice of the action.\\\" Id. As such, he could then rebut the presumption of paternity under 8 CMC \\u00a7 1704.\\nAdditionally, the UPA should not be used to circumvent the traditional disposition of land in the CNMI, traditions embodied in the underlying purposes and policies of the probate code. See 8 CMC \\u00a7 2104(a). It is of great interest that the trial court, in its determination of the heirs of a decedent of NMI descent, ensure that the tradition of distributing land to sanguineous or adopted heirs is observed. Traditions and bloodline are not considered by the paternity presumption in the UPA.\\nII. Whether on their Face, or by their Application to a Surviving Spouse not of Northern Marianas Descent, 8 CMC \\u00a7 2411, 2601 and 2902 Violate Article XII of the NMI Constitution\\nThe trial court found 8 CMC \\u00a7 2411 of the probate code unconstitutional as it improperly reformed a void transaction, and 8 CMC \\u00a7 2601 and 2902 unconstitutional in their application to non-NMI surviving spouses in violation of N.M.I. Const, art. XII. We note, however, that constitutional issues will not be considered by this Court unless necessary. Marianas Pub. Land Trust v. Marianas Pub. Land Corp., 1 CR 974, 975 (N.M.I. Trial Ct. 1984).\\nThe determination of the constitutionality of these sections depends upon a factual issue which has not been determined below. The court failed to determine whether the properties are ancestral or not. It appears that the court presumed that the lands involved are ancestral; the court only briefly noted that the same constitutional analysis rendering 8 CMC \\u00a7 2902 unconstitutional, as applied to non-NMI surviving spouses, applies to 8 CMC \\u00a7 2903, which affords the surviving spouse one-half of all non-ancestral properties, as well. Additionally, in light of our decision that the UPA is not applicable to this probate proceeding, the probate court must determine, pursuant to 8 CMC \\u00a7 2918(b)(2), whether Loriebell is Santiago's issue. We are not free to determine these factual issues on review. Cf. Deleon Guerrero, 3 N.M.I. at 265. As such, the constitutional issues raised before us are not ripe. See Marianas Pub. Land Trust, supra; Duty Free Shoppers Ltd. v. Sablan, 3 CR 623 (N.M.I. Trial Ct. 1989).\\nm. Whether 8 CMC \\u00a7 2924(b) Applies to a Claim of Ownership of Land Included in the Inventory of an Estate or a Claim of Paternity in Probate Proceedings\\nThe appellants Connie and Francisco contend that the probate court erred in applying 8 CMC \\u00a7 2924(b) to bar their claims of ownership in two parcels of land included in Santiago's estate. They further contend that, if applicable, Loriebell's claim against the deceased's estate should have been barred thereunder as well. We agree with the appellants and conclude that the term \\\"creditor\\\" in 8 CMC \\u00a7 2924(b) does not include persons or entities claiming specific property in the estate of a decedent.\\nFirst, 8 CMC \\u00a7 2924(b) applies to \\\"creditors,\\\" a term which usually applies to pecuniary claims, compare Downey v. Humphreys, 227 P.2d 484, 490 (Cal. Dist. Ct. App. 1951), and, as applied to probate proceedings, means \\\"one to whom the decedent was indebted.\\\" State ex rel. Gentry v. O'Byrne, 46 N.E.2d 687, 690 (Ind. 1943). The term \\\"creditor\\\" does not apply to claims of ownership of specific property included in the inventory of the estate. See, e.g., In re Bailey's Estate, 109 P.2d 356, 357 (Cal. Dist. Ct. App. 1941) (claims to specific property in estate neither those of \\\"creditor\\\" nor subject to filing requirements thereof); Newport v. Hatton, 231 P. 987, 993 (Cal. 1924). Cf. Knott v. Vachal, 752 P.2d 39, 40 (Ariz. Ct. App. 1988) (equitable claims to specific property do not fall under statutory creditor claims). Correspondingly, this section should not proscribe those who claim to be heirs of the decedents, because they too do not fall within the definition of creditor in 8 CMC \\u00a7 2924.\\nAdditionally, excluding Connie and Francisco from the definition of \\\"creditor\\\" in 8 CMC \\u00a7 2924(b) appears to comport with common sense. A court may distribute only that property in the estate rightfully included therein. See, e.g., Matter of the Estate of Swandal, 587 P.2d 368, 371 (Mont. 1978) (court could not distribute mineral rights improperly included in estate of deceased). Otherwise, anyone would be able to include in an inventory the personal or real property of another, property to which any legitimate claim of ownership during the probate proceedings would be barred after sixty days.\\nCONCLUSION\\nBased on the above analysis, we:\\nI. VACATE the July 13, 1988, order of the Superior Court finding Loriebell an heir of the decedent and the decree of final distribution and REMAND this matter for further probate proceedings to determine the paternity and heirship issues consistent with this opinion;\\nII. VACATE the court's finding that 8 CMC \\u00a7 2411, 2601 and 2902 are unconstitutional in their operation and application and REMAND for further proceedings to determine the factual issues regarding the nature of the property in the estate; and\\nIII. REVERSE the court's finding that appellants Francisco and Connie Pangelinan were barred from filing claims of ownership to specific land in the inventory for failure to file a creditor's claim and REMAND for further proceedings on their claims.\\nThe appellee, Loriebell, also asserts, in the statement of jurisdiction in her opening brief, that this Court is without jurisdiction to consider the appellants' appeals from the July 13, 1988 order. See Appellee's Opening Brief. Pursuant to a December 7, 1992, order of this Court, In re Estate of Tudela, App. No. 92-009 (Order Denying Motion to Dismiss), we already found that we had appellate jurisdiction, as \\\"[t]he decision of whether an order, which is appealable pursuant to 8 CMC \\u00a7 2206, should be appealed immediately, or after entry of the final decree of distribution (provided proper objections are made), is one properly left to the discretion of the parties.\\\" Tudela, supra, order at 4. The appellants also argue that Loriebell's paternity claim should have been brought in a separate paternity action. This issue is one that is subsumed by that of whether or not the UPA is applicable in probate proceedings.\\nA question of whether the application of a statute is constitutional is reviewed de novo. Cf. Commonwealth v. Peters, 1 N.M.I. 466, 470 (1991).\\nThe court entertained this motion notwithstanding the court appointment, on January 18, 1988. of Jane Mack as Loriebell's guardian ad litem. The court also set a hearing for the determination of paternity pursuant to 8 CMC \\u00a7 1710 of the UPA. and gave the administratrix or any potential heirs of Santiago the opportunity to have blood tests done, pursuant to the UPA.\\nPursuant to 8 CMC \\u00a7 1706 of the UPA, only the presumed father, natural mother and child may present evidence regarding paternity.\\nA man is presumed to be the natural father of a child if: . . . he and the child's natural mother are or have been married to each other and the child is bom during the marriage, or within 300 days after the marriage is terminated by . . . divorce, or after a decree of separation is entered by a court....\\n8 CMC \\u00a7 1704(a)(1). Loriebell was born within 300 days of the date of the divorce decree. See supra, factual and procedural background.\\nIf, for the purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:\\n(b) In cases not covered by (a), above, a person bom out of wedlock is a child of the mother. That person is also a child of the father, if:\\n(2) the paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof....\\n8 CMC \\u00a7 2918.\\nLoriebell is neither adopted, 8 CMC \\u00a7 2918(a), nor of \\\"natural parents\\\" known, see 8 CMC \\u00a7 2918(b)(1), which appears to presume that the identity of the natural father is known. Under 8 CMC \\u00a7 2918(b)(2), a deceased father-child relationship is established by \\\"clear and convincing proof.\\\" Loriebell argues that 8 CMC \\u00a7 2918, by which the natural parent-child relationship for purposes of intestate succession is established, by its language does not apply to the instant matter, as Loriebell was neither adopted nor born out of wedlock. \\\"Wedlock\\\" simply means \\\"[s]tate of marriage.\\\" Black's Law Dictionary 1594 (6th ed. 1990). Loriebell was born after the marriage was dissolved and Santiago and Bella were \\\"restored . to the state of unmarried persons,\\\" 8 CMC \\u00a7 1311, thirty days from the date of the divorce decree. See 8 CMC \\u00a7 1103(a) (decree final upon expiration of period for appeal). Loriebell was born beyond thirty days from the date of the divorce decree, hence, Loriebell was born of an unmarried mother. Her argument to the contrary assumes that 8 CMC \\u00a7 1704(a) of the UPA is applicable to the instant matter, an argument with which we disagree.\\nTo the full extent permitted by the Northern Mariana Islands Constitution and the Schedule on Transitional Matters, the Commonwealth Trial Court on over all subject matter relating nts, including construction of wills of heirs and successors of deceshall have jurisdictu to estates of decedei and determination dents.\\n8 CMC \\u00a7 2202(a).\\nThe procedure for the determination of a decedent's heirs, the Commonwealth Rules of Probate Procedure, which govern the administration of wills and intestacy, see 8 CMC \\u00a7 2923, mandates that the court take testimony from interested persons in determining parentage: \\\"At the hearing, the Court will hear from petitioner and any heirs or other interested parties as to facilitate the appointment of an administrator and to determine the heirs of the decedent.\\\" Com. R. Prob. P. 17 (emphasis added).\\nIn re Estate of Deleon Guerrero, 3 N.M.I. 253, 260-61 (1992).\\n\\\"The Probate Code expressly permits the trial court to determine 'for purposes of intestate succession' whether one is an heir either through an adjudication made before the death of the father or an adjudication rendered after his death.\\\" Id.\\nContrary to Loriebell's argument, we find these cited passages in Deleon Guerrero to be holdings and not dicta.\\nSee supra note 5.\\nWhenever a person not of Northern Marianas descent takes title to real property under this code, he or she shall take the maximum allowable legal interest in the real property and the remaining interest if any shall vest in the next closest heirs or devisees who can legally take title to the real property pursuant to Article 12 of the Commonwealth Constitution.\\n8 CMC \\u00a7 2411.\\nEight CMC \\u00a7 2601 and 2902 provide, respectively, that: (1) \\\"[t]he surviving spouse of a decedent who was domiciled in the [NMI] is entitled to the primary family home and lot\\\"; and (2) under Chamorro intestacy succession \\\"[t]he surviving spouse obtains a life estate, with the issue obtaining a vested remainder in fee simple by representation.\\\"\\nArticle XII provides that \\\"[t]he acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of [NMI] descent.\\\" N.M.I. Const, art. XU, \\u00a7 1 (as amended 1985). An \\\"acquisition\\\" \\\"includes acquisition by sale, lease, gift, inheritance or other means.\\\" Id. \\u00a7 2. However, this term does not include \\\"[a] transfer to a spouse by inheritance . if the owner dies without issue or with issue not eligible to own land in the [NMI].\\\" Id. Section three provides that \\\"[t]he term permanent and long-term interests in real property used in Section 1 includes freehold interests and leasehold interests of more than fifty-five years including renewal rights.\\\"\\nEight CMC \\u00a7 2903 provides, in pertinent part:\\n(a) The surviving spouse obtains one-half of all properties, other than those listed in section 2902 of this chapter.\\n(b) The issue of the decedent obtain one-half of all properties, other than those listed in section 2902 of this chapter, by representation.\\n(c) If there is no surviving spouse, the surviving issue obtain all properties by representation.\\n(d) If there is no surviving spouse and no issue, the parents of the decedent take all properties, other than those listed in section 2902 . and if no surviving parents, then to the siblings of the decedent by representation.\\nA ripe dispute is one which has matured sufficiently for judicial resolution. Bauer v. McCoy, 1 CR 248 (D.N.M.I. 1982).\\nFor example, if, on remand, the probate court finds that Loriebell is not an heir of Santiago and that the properties are not ancestral, Maria would take the properties in fee simple consistent with Article XU, see supra note 15, and the issue of the validity of 8 CMC \\u00a7 2601 and 2902 would be moot. See In re Duncan, 3 CR 383, 387 (N.M.I. Trial Ct. 1988) (case rendered moot \\\"when the parties lack a legally cognizable interest in the outcome\\\").\\nAll claims against a decedent's estate which arise at or after the death of the decedent, including claims of the Commonwealth of the Northern Mariana Islands and any of its subdivisions, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate . . . unless presented . . . within 60 days after [either] performance by the personal representative is due . . . [or] after it arises .\\n8 CMC \\u00a7 2924(b)(l)-(2).\\nGenerally, a \\\"creditor\\\" is one who holds some contractual obligations against another and who has a right to require the fulfillment of an obligation or contract. See, e.g., Downey v. Humphreys, 227 P.2d 484 (Cal. Dist. Ct. App. 1951) (citing, in part, RESTATEMENT OF Trusts \\u00a7 12 cmts. b, g (1935); Restatement of Agency \\u00a7 378 cmt. c, \\u00a7 72 cmt. c (1933) (contrasting debtor/creditor relationship with those of trust and agency)). See generally BLACK'S Law DICTIONARY 368-69 (6th ed. 1990); cf. Restatement of Security \\u00a7 82(d) (1941).\\n\\\"It is well settled . . . that no one who claims as his own, adversely to an estate, specific property held and claimed by an estate, cannot be called a creditor of the estate within the meaning of probate law, and is not required to present a claim.\\\" Newport v. Hatton, 231 P. 987, 993 (Cal. 1924).\"}"

n_mar_i/1697477.json

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+"{\"id\": \"1697477\", \"name\": \"Concepcion S. Wabol and the Estate of Elias S. Wabol, Plaintiffs/Appellees, v. Victorina U. Villacrusis, Philippine Goods, Inc., and Transamerica (Saipan), Corp., Defendants/Appellants\", \"name_abbreviation\": \"Wabol v. Villacrusis\", \"decision_date\": \"1995-12-19\", \"docket_number\": \"Appeal Nos. 94-014 & 94-020; Civil Action No. 84-0397\", \"first_page\": 314, \"last_page\": \"322\", \"citations\": \"4 N. Mar. I. 314\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ and ATALIG, Justices, and LAMORENA, Special Judge.\", \"parties\": \"Concepcion S. Wabol and the Estate of Elias S. Wabol, Plaintiffs/Appellees, v. Victorina U. Villacrusis, Philippine Goods, Inc., and Transamerica (Saipan), Corp., Defendants/Appellants.\", \"head_matter\": \"Concepcion S. Wabol and the Estate of Elias S. Wabol, Plaintiffs/Appellees, v. Victorina U. Villacrusis, Philippine Goods, Inc., and Transamerica (Saipan), Corp., Defendants/Appellants.\\nAppeal Nos. 94-014 & 94-020\\nCivil Action No. 84-0397\\nDecember 19, 1995\\nArgued and Submitted July 6, 1995\\nCounsel for appellants Villacrusis and Philippine Goods, Inc.: Douglas F. Cushnie & Robert W. Jones, Saipan.\\nCotinsel for appellant Transamerica (Saipan), Corp.: Eric S. Smith, Saipan.\\nCounsel for appellees: Theodore R. Mitchell & Jeanne H. Rayphand, Saipan.\\nBEFORE: VILLAGOMEZ and ATALIG, Justices, and LAMORENA, Special Judge.\", \"word_count\": \"5388\", \"char_count\": \"32829\", \"text\": \"ATALIG, Justice:\\nAppellants Victorino U. Villacrusis (\\\"Villacrusis\\\"), Philippine Goods, Inc. (\\\"PGI\\\"), and Transamerica (Saipan), Corp. (\\\"Transamerica\\\"), appeal from an April 19, 1994, judgment of the trial court, issued on remand. This Court has jurisdiction pursuant to 1 CMC \\u00a7 3102(a). We hold that the trial court failed to follow our mandate and the dictates of the remanding Appellate Division of the U.S. District Court for the Commonwealth of the Northern Mariana Islands (\\\"Appellate Division\\\") decision. Hence, we vacate the trial court judgment and remand this matter for further proceedings.\\nISSUE PRESENTED AND STANDARD OF REVIEW\\nThe dispositive issue on appeal is whether or not the trial court's judgment violates the mandate of this Court. This is a question of law, reviewable de novo. Loren v. E'Saipan Motors, Inc., 1 N.M.I. 133, 136 (1990).\\nFACTUAL AND PROCEDURAL BACKGROUND\\nOn August 1, 1985, the trial court determined that a lease between PGI and Filomenia W. Mu\\u00f1a, a sister of appellee Concepcion S. Wabol (\\\"Wabol\\\"), for a term of thirty years with an option to extend the lease term in PGI, the lessee, for twenty years, violated N.M.I. Const, art. XR (\\\"Article XII\\\"). However, in light of the undisputed facts that PGI and Transamerica had been paying rent and had placed extensive improvements on the property (located on Saipan), the court employed an equitable solution, partially granting and denying the cross-motions for summary judgment and declaring void ab initio only the ten-year portion in excess of the thenpennissible forty years. See Wabol v. Muna, 2 CR 231, 236-37, 252-54 (N.M.I. Trial Ct. 1984). Wabol and the estate of Elias S. Wabol (collectively \\\"appellees\\\") appealed from this decision to the Appellate Division.\\nOn February 2, 1987, the Appellate Division reversed the trial court decision in part. It concluded that N.M.I. Const, art. XII, \\u00a7 6 proscribed the reformation of a lease that violates Article X3I and held that the entire lease was void. The Appellate Division remanded the matter to the trial court\\nto determine the terms and conditions of any obligations which may have arisen in quasi contract or as a result of a periodic tenancy. Additionally, the appellees have made several improvements on the land . . . [and that] [o]n remand, the court should determine the amount, if any, of payment appellees should receive enrichment for those additions.\\nWabol v. Mum, 2 CR 963, 981 (D.N.M.I. App. Div. 1987).\\nPGI appealed from this decision to the Ninth Circuit Court of Appeals. That court affirmed \\\"in all respects\\\" the Appellate Division decision and remanded the matter \\\"for further proceedings.\\\" Wabol v. Villacrusis, 958 F.2d 1450, 1463 (9th Cir. 1990). The Ninth Circuit decision was appealed; the U.S. Supreme Court denied certiorari on December 7, 1992. Philippine Goods, Inc. v. Wabol, 506 U.S. 1027, 113 S. Ct. 675, 121 L. Ed. 2d 598 (1992).\\nThis Court received the mandate from the Ninth Circuit on April 4, 1994. On the same date we issued our mandate to the trial court advising it that the Ninth Circuit affirmed the Appellate Division decision.\\nAfter receipt of our mandate, the trial court entertained an ex parte motion for judgment filed by Wabol. On April 19, 1994, without a hearing, the court issued a judgment on remand, stating, in pertinent part:\\nTHIS COURT having received the mandate of the Supreme Court of the Commonwealth of the Northern Mariana Islands, which mandate was issued on the 4th day of April, 1994,\\nIT IS HEREBY ADJUDGED AND DECREED THAT the plaintiffs shall have judgment against the defendants; it is hereby declared that the lease of August 18, 1978 is void ab initio and the plaintiffs to be entitled to exclusive possession of Lots 1897 B-3 and B-4.\\nWabol v. Villacrusis, Civ. No. 84-0397 (N.M.I. Super. Ct. Apr. 19, 1994) (judgment).\\nThe appellants timely appealed from this judgment and moved the trial court for a stay of its execution pending appeal. The appellees cross-moved for a writ of possession based on the judgment. The matter was heard on May 18, 1994, and on May 26, 1994, the trial court issued an order denying the motion to stay and granting the motion for a writ of possession in the appellees. This writ was issued to Wabol on June 3, 1994. On June 13, 1994, this Court denied the appellants' motion for a stay of the execution of the judgment pending appeal.\\nANALYSIS\\nThe appellants argue that the trial court judgment violates the mandate of this Court because the court failed to follow the dictates of the Appellate Division decision and determine on remand either whether any quasi-contractual or periodic-tenancy obligations arose or the amount, if any, that they should receive from the appellees in order to prevent unjust enrichment for improvements upon the disputed property. As such, they contend that the judgment should be vacated and the matter remanded for proceedings consistent with the Appellate Division decision. Furthermore, the appellants argue that this Court should remand with instructions to apply the statutory remedies mandated in PL 8-32 (enacted Oct. 29, 1993; codified at 2 CMC \\u00a7 4941 et seq.).\\nThe appellees counter that the judgment carries into effect the mandate of this Court because the Appellate Division's remanding instructions \\\"as to restitution [are] permissive, not mandatory.\\\" Appellees' Brief at 12. They also argue that PL 8-32 is unconstitutional in that: (1) it \\\"is an encroachment on the judicial function of the courts,\\\" id. at 17, and (2) it contravenes, and was designed to repeal, Article XII, id. at 19-23.\\nWe conclude that the trial court failed to follow our mandate and the dictates of the Appellate Division decision. On remand, it was incumbent upon the trial court to conduct further proceedings consistent with the remand instructions. This was not done. Further, we conclude that we should afford the trial court the opportunity to first address the issue of the applicability, and, if necessary, constitutionality, of PL 8-32.\\nI. Trial Court Failed to Follow Mandate\\nThe arguments on appeal implicate the interrelated doctrines of rule of mandate and law of the case. \\\"On remand, the . . . court 'must proceed in accordance with the mandate and such law of the case as was established by the appellate court.'\\\" United States v. Alpine Land & Reservoir Co., 983 F.2d 1487, 1491 (9th Cir. 1992) (citations omitted); see also In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S. Ct. 291, 293, 40 L. Ed. 414 (1895) (lower court \\\"is bound by the decree as the law of the case, and must carry it into execution according to the mandate\\\"). We conclude that the trial court failed to comply with either doctrine.\\nA. Rule of Mandate\\nSpecific to the rule of mandate, the lower court, upon receiving the mandate of an appellate court, is under a duty \\\"to [strictly] comply with the mandate . . . and to obey the directions therein without variation.\\\" Loren, 1 N.M.I. at 137 (citation omitted); see also Sanford, 160 U. S. at 256, 16 S. Ct. at 293, 40 L. Ed. 414. Actions of the lower court not in conformity with the directions are \\\"'void.'\\\" See Loren, 1 N.M.I. at 138 (citation omitted). This is true \\\"even though the mandate may be erroneous.\\\" Id. at 137-38 (citation omitted).\\nThe appellees argue that the language of the Appellate Division remand instructions is permissive and not mandatory. This argument is without merit. The first portion of the instructions is clearly mandatory. The Appellate Division specifically remanded the matter for proceedings on any obligations which may have arisen under either quasi contract or periodic tenancy. See supra, factual and procedural background.\\nThe second portion of the instructions, regarding unjust enrichment, employs the term \\\"should.\\\" While jurisdictions differ as to the nature, permissive or mandatory, of this term, these differences are prompted by the context within which the term is used.\\nHere, in light of the circumstances, both the initial trial court and Appellate Division decisions were concerned with any inequities which would arise as a result of the entire lease simply being voided. This is highlighted by the Appellate Division's mention, in its remand instructions, of the improvements made upon the property by the appellants, and that consideration of such on remand should be effected \\\"in order to prevent unjust enrichment.\\\" See source quoted supra, factual and procedural background. We read this instruction as imparting an obligation upon the trial court to afford the parties the opportunity to address the issue of unjust enrichment on remand. This is in addition to the mandatory language concerning the determination of any quasi-contractual or periodic-tenancy obligations.\\nInstead, the trial court, upon an ex parte request for judgment and without a hearing, issued the disputed judgment, compare Alpine Land, 983 F.2d at 1491-92 (reversing and remanding to district court which, after prior remand, again affirmed decision \\\"without further briefing, fact finding, or a hearing\\\" on issues placed squarely before district court by the Ninth Circuit), thereby foreclosing any discussion on the issues specifically addressed in the Appellate Division's remand instructions.\\nB. Law of the Case Doctrine\\nUnder the narrower law of the case doctrine, courts are generally required to follow legal decisions of the same or a higher court in the same case. See generally Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (\\\"'The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case'\\\") (citation omitted). This is true even where the court on remand disagrees with or finds error in the remanding court's decision. Sanford, 160 U. S. at 255, 16 S. Ct. at 293, 40 L. Ed. 414 (cited in United States v. Jacobs, 955 F.2d 7, 9 (2d Cir. 1992)).\\nThe policy underlying this doctrine is one of finality of court decisions. Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 834-35 (9th Cir. 1982) (analogizing law of the case principles to those of res judicata); see also Camacho v. J.C. Tenorio Enters., Inc., 2 N.M.I. 407, 413-14 (1992) (\\\"Law of the case principles . are a matter of practice that rests on good sense and the desire to protect both court and parties against the burdens of repeated reargument by indefatigable diehards\\\"). Further, the law of the case doctrine applies to issues either explicitly or implicitly decided by the previous court, Alberti v. Klevenhagen, 46 F.3d 1347, 1351 n.1 (5th Cir. 1995); Herrington, 12 F.3d at 904, and we afford Appellate Division decisions in the same case the deference we would afford a prior decision of this Court. See Vaughn v. Bank of Guam, 1 N.M.I. 160, 165 (1990) (\\\"This Court cannot sit in review of the Appellate Division's judgment\\\"); Camacho, 2 N.M.I. at 413 (applying federal law of the case doctrine to prior Appellate Division decision).\\nThe appellees argue that the Appellate Division improperly addressed the unjust enrichment issue on appeal, an issue which had not been raised by the appellants in their initial answers to the complaint. However, it is not for this Court to question, absent reasons mandating an exception to the law of the case doctrine, the propriety of the Appellate Division decision. Rather, had the appellees disagreed with the remand instructions, they should have moved for a rehearing or reconsideration of the decision or cross-appealed the issue to the Ninth Circuit Court of Appeals. Cf. Loren, 1 N.M.I. at 138.\\nFurthermore, while the trial court observed, to an extent, the law of the case doctrine, in that it deemed the lease to be void ab initio, it failed to fully comply with that doctrine. In its order of May 26, 1994, the trial court noted that it received the mandate to follow the Appellate Division decision but declined to address the issue of restitution because the appellants had not initially raised it as a counterclaim in their original answer.\\nHence, it is clear that the trial court was aware of the unjust enrichment issue but that it disagreed with the Appellate Division and refused to follow the mandate. This is in direct contravention of the law of the case doctrine. It was not for the trial court to pass judgment on and disregard the decision of the Appellate Division. Rather, the trial court had a duty to comply with the decision remanded by the mandate, regardless of its perception of the propriety of the decision.\\nn. Applicability and Constitutionality of PL 8-32\\nBest Resolved by Trial Court in First Instance\\nThe appellees urge this Court to conclude that PL 8-32 is unconstitutional. However, the constitutional issues now raised by the appellees for the first time are best resolved in the first instance by the trial court and not this Court on appeal.\\nWe will neither unnecessarily resolve constitutional issues, see In re Estate of Tudela, 4 N.M.I. I, 5 (1993) (this Court will not resolve constitutional issues unnecessarily), appeal dismissed, 43 F.3d 1479 (9th Cir. 1994), nor deprive the trial court of an opportunity to first evaluate the applicability and constitutionality of a statute. See id. (declining to determine constitutional issue dependant upon unresolved factual findings); Mafnas v. Hefner, 1 N.M.I. 22, 31 (1989) (declining to entertain issue going to constitutional authority of judge to preside at court, in part because \\\"the Superior Court properly should have the first opportunity to entertain the case\\\").\\nCONCLUSION\\nBased on the foregoing, we hereby VACATE the trial court's April 19, 1994, judgment and REMAND this matter for proceedings consistent with our mandate and the Appellate Division decision.\\nSpecifically, on remand the court is to determine whether any quasi-contractual or periodic-tenancy obligations have arisen on the part of Concepcion S. Wabol or the estate of Elias S. Wabol, and the amount, if any, of any unjust enrichment incurred as a result of improvements made on the property by the appellants. Further, on remand the court shall entertain the applicability of PL 8-32 to this matter as well as any other equitable considerations raised by the parties. These considerations on remand must be entertained prior to the entry of judgment.\\nWHEREAS, the mandate from the Ninth Circuit, affirming the decision of the Appellate Division of the District Court, was received by this Court on April 4, 1994; and\\nWHEREAS, this Court has jurisdiction to issue the mandate to the Superior Court and the Appellate Division no longer had jurisdiction in this matter; THEREFORE, this MANDATE is issued to the Superior Court, advising the Superior Court that the decision of the Appellate Division, which reversed the decision of the trial court, has been affirmed by the Ninth Circuit.\\nWabol v. Villacrusis, App. No. 89-005 (N.M.I. Sup. Ct. Apr. 4, 1994) (mandate) (emphasis added).\\nThey also argue that the writ of possession issued by the court should be vacated as it was premised on the April 19, 1994, judgment. However, the possession of the property has no relationship to the issues of restitution and unjust enrichment as argued by the appellants.\\nThey further argue that the judgment of the court is not appealable because: (1) the final judgment in the matter is the denial of certification by the U.S. Supreme Court on My 7, 1992; and (2) the judgment did not adjudicate anything. This argument is without merit in light of the issues raised on appeal with respect to the rules of mandate and law of the case.\\nIn Loren, the Appellate Division reversed, holding a contract enforceable, and remanded with specific instructions to determine damages and fees. See Loren v. E'Saipan Motors, Inc.. 3 CR 564, 576-78 (D.N.M.I. App. Div. 1988). That court then issued a mandate which stated that \\\"[t]he appeal in the above matter is hereby ordered and adjudged reversed and remanded.\\\" Loren, App. No. 87-9019 (D.N.M.I. App. Div. Dec. 7, 1988) (mandate). On remand, the trial court concluded that the contract was still unenforceable on a ground raised initially but not specifically appealed. See Loren v. E'Saipan Motors, Inc., 1 N.M.I. 133, 135-36 (1990). This Court concluded that the Appellate Division's mandate was violated by the trial court's failure to follow the specific remand instructions. Id. at 136-38.\\nOnly those matters left open by the mandate may be reviewed on remand. In re Sanford Fork & Tool Co., 160 U.S. 247, 256, 16 S. Ct. 291, 293, 40 L. Ed. 414 (1895). While an order issued after remand may, in some instances, diverge from the appellate court's mandate, it must be consistent with the \\\"spirit\\\" of the appellate decision and within the scope of the remand. Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir.) (determination regarding damages on remand not an abuse of discretion), cert. denied._U.S._, 114 S. Ct. 64, 126 L. Ed. 2d 34 (1993).\\nWhile the term \\\"should\\\" is not always a mandatory term, compare American Heritage Dictionary of the English Language 1199 (1981) (term \\\"should\\\" may indicate conditional form of term \\\"shall\\\") with Aquino v. Tinian Cockfighting Bd., 3 N.M.I. 284, 292 (1993) (statutory term \\\"shall\\\" creates duty and is mandatory), it does \\\"ordinarily imply a duty or obligation.\\\" Black's Law Dictionary 1379 (6th ed. 1990).\\nWe note that the record is devoid of the \\\"need for swift action [via an ex parte] proceeding without notice.\\\" Without notice and a need for such swift action, there is an abrogation of one's due process rights. See RESTATEMENT (SECOND) OF Judgments [hereinafter Judgments] \\u00a7 2 cmt. h (1982).\\nBut see Wabol v. Villacrusis, 4 N.M.I. Appendix (1994) (order of dismissal) (Villagomez, J., concurring) (agreeing that mandate with directions to dismiss must be executed but questioning remanding appellate court's legal analysis and jurisdiction) and compare with. Olopai v. Hillblom, 3 N.M.I. 528, 530-31 (1993) (noting allusion by trial court that this Court lacks appellate jurisdiction and stating that \\\"whether we have jurisdiction to entertain an appeal is one we must determine ourselves\\\").\\nThe exceptions to the law of the case doctrine under which we will revisit a prior determination in the same case, see Camacho v. J.C. Tenorio Enters., Inc., 2 N.M.I. 407, 413 (1992) (applying federal law of the case doctrine to prior Appellate Division decision), are not implicated by the record before us.\\nThis court has received a mandate, issued by the Supreme Court of the Commonwealth of the Northern Mariana Islands on April 4, 1994, directing this court to carry the decision of the Appellate Division into effect, as affirmed by the United States Court of Appeals for the Ninth Circuit, into effect [sic]\\nBecause defendant Transamerica has not filed any claim in this action for restitution, in the form of a counterclaim or in any other form and as a consequence. the Court is now powerless to entertain or adjudicate with respect to any such nonexistent claim;\\nBecause Defendants Villacrusis and Philippine Goods have not filed any counterclaim seeking restitution, the Court is now powerless to entertain or adjudicate any such claim.\\nOrder on Defendants' Motions for Stay Pending Appeal and Plaintiffs' Motion for Writ of Possession, Wabol v. Villacrusis, Civ. No. 84-0397 (N.M.I. Super. Ct. May 26. 1994).\\nThere was no mention in the trial court's May 26, 1994, order of the Appellate Division's directions with respect to the quasi-contractual and periodic-tenancy issues.\\n\\\"While the issues raised and the relief sought may be difficult and sensitive, they do not by themselves rise to a level where we should permit the by-passing of a lower court's ordinary trial functions.\\\" Mafnas v. Hefner, 1 N.M.I. 22, 30 (1989).\"}"

n_mar_i/1697482.json

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+"{\"id\": \"1697482\", \"name\": \"Jesus R. Sablan, Plaintiff/Appellant, v. Froilan C. Tenorio, Governor, Commonwealth of the Northern Mariana Islands, Juan S. Demapan, Paul A. Manglona, David M. Cing, Eusebio A. Hocog, Ricardo S. Atalig, Senators, and the Ninth Commonwealth Legislature, Defendants/Appellees\", \"name_abbreviation\": \"Sablan v. Tenorio\", \"decision_date\": \"1996-04-18\", \"docket_number\": \"Appeal No. 94-034; Civil Action No. 94-0500\", \"first_page\": 351, \"last_page\": \"377\", \"citations\": \"4 N. Mar. I. 351\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"parties\": \"Jesus R. Sablan, Plaintiff/Appellant, v. Froilan C. Tenorio, Governor, Commonwealth of the Northern Mariana Islands, Juan S. Demapan, Paul A. Manglona, David M. Cing, Eusebio A. Hocog, Ricardo S. Atalig, Senators, and the Ninth Commonwealth Legislature, Defendants/Appellees.\", \"head_matter\": \"Jesus R. Sablan, Plaintiff/Appellant, v. Froilan C. Tenorio, Governor, Commonwealth of the Northern Mariana Islands, Juan S. Demapan, Paul A. Manglona, David M. Cing, Eusebio A. Hocog, Ricardo S. Atalig, Senators, and the Ninth Commonwealth Legislature, Defendants/Appellees.\\nAppeal No. 94-034\\nCivil Action No. 94-0500\\nApril 18, 1996\\nArgued and Submitted July 6, 1995\\nCounsel for appellant: Theodore R. Mitchell and Jeanne H. Rayphand, Saipan.\\nCounsel for appellee Governor Frailan C. Tenorio: Douglas M. Muir, Assistant Attorney General, Saipan.\\nCounsel for appellee Commonwealth Senate: Stephen C. Woodruff, Legislative Counsel, Saipan.\\nCounsel for appellee Senators Demapan, Manglona, Cing, Hocog and Atalig: Michael W. Dotts (Law Offices of Robert O\\u2019Connor), Saipan.\\nCounsel for appellee Commonwealth House of Representatives: Maya B. Kara, Legislative Counsel, Saipan.\\nAmicus Curiae: Howard P. Willens, pro se, Saipan.\\nBEFORE: VILLAGOMEZ and ATALIG, Justices, and MACK, Special Judge.\", \"word_count\": \"17560\", \"char_count\": \"109190\", \"text\": \"VILLAGOMEZ, Justice:\\nThe appellant, Jesus R. Sab\\u00edan (\\\"Sab\\u00edan\\\"), appeals the trial court's decision dismissing certain of his claims and entering summary judgment for the appellees on other claims.\\nWe have jurisdiction under 1 CMC \\u00a7 3102(a). We affirm as to those issues we have decided to review.\\nISSUES & STANDARDS OF REVIEW\\nSab\\u00edan presents five issues for our review:\\nI. Whether the appellees, Governor Frailan C. Tenorio (\\\"Governor\\\") and the Ninth Commonwealth Legislature (\\\"legislature\\\"), have legislative immunity from Sablan's action challenging the apportionment of the Senate under 42 U.S.C. \\u00a7 1983 (\\\"\\u00a7 1983\\\").\\nThe trial court dismissed Sablan's \\u00a7 1983 actions against the Governor and the legislature without citing a specific subsection of Com. R. Civ. P. 12. However, we infer from the court's clearly stated reason for the dismissals that it invoked Com. R. Civ. P. 12(b)(6).\\nLegislative immunity is an affirmative defense which provides absolute, comprehensive protection from suits challenging actions taken in the performance of official legislative functions. Where the complaint itself establishes legislative immunity, a \\u00a7 1983 action should be dismissed under Com. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. A dismissal under Com. R. Civ. P. 12(b)(6) is reviewed de novo.\\nWe base our review on the contents of Sablan's complaint, construe it in the light most favorable to him, and accept all well-pleaded facts as true. The dismissal will be deemed proper if \\\"it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\\\"\\nII. Whether the composition of the Senate of the Ninth Commonwealth Legislature violates the rights, under the Fourteenth Amendment to the U.S. Constitution, of the residents of Saipan to equal protection of the law. The trial court granted summary judgment as to this claim. Our review is, therefore, de novo.\\nIII. Whether the trial court erred by making findings of fact in a summary judgment proceeding when those facts were disputed. This issue challenges the propriety of deciding factual matters in the context of ruling on cross-motions for summary judgment and a preliminary injunction. This is a question of law which we review de novo.\\nIV. Whether the claim that the May 13, 1994, election of new Senate officers violated the Senate Rules of Procedure (\\\"Senate Rules\\\") is a political question. The trial court dismissed this claim and, as with the \\u00a7 1983 action, the court did not cite a specific procedural rule. Nevertheless, from the reasoning underlying the dismissal, we infer that the court invoked Com. R. Civ. P. 12(b)(6).\\nA determination that the alleged Senate Rules violation constituted a nonjusticiable political question should have led to a dismissal for failure to state a claim under Com. R. Civ. P. 12(b)(6). Our review is de novo.\\nV. Whether the Senate violated the Commonwealth's Open government Act of 1992 (\\\"Open Government Act\\\") during the special session of the Senate called by the Governor and held on May 13, 1994. We will not review this issue because we conclude, as the parties have suggested, that the question is now moot.\\nFACTUAL & PROCEDURAL BACKGROUND\\nUnder Section 203(c) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (\\\"Covenant\\\") and N.M.I. Const, art. II, \\u00a7 2(a), the Commonwealth is divided into three senatorial districts: Saipan, Tinian, and Rota. The population of the Saipan senatorial district exceeds the population of the other two senatorial districts by more than ten times. Notwithstanding this disparity, each senatorial district is equally allotted three seats in the Commonwealth Senate.\\nI. Senate Session\\nOn January 10, 1994, at the first regular session of the Ninth Commonwealth Legislature, Sab\\u00edan was elected Senate President and the Senate adopted the official Rules of the Senate for the Ninth Commonwealth Legislature.\\nOn May 11, 1994, three Senators asked Sab\\u00edan in writing to call a special Senate session for that day. Four other Senators signed a request asking the Governor to call a special Senate session for, among other purposes, considering matters \\\"relating to Senate leadership organization.\\\" The Governor called a special Senate session for 5:00 p.m. the same day.\\nAlthough Sab\\u00edan did not call a special Senate session for that day, he did call a special session for May 13, 1994, at 1:00 p.m. to consider \\\"[r]econsideration of the Government Reorganization Plan.\\\" The call, which was distributed to the media, did not list \\\"Senate leadership organization\\\" as an item on the agenda. Sab\\u00edan asked the Governor to rescind his call for a session at 5:00 p.m., noting that the Governor's call was not supported by a majority of the Senate, and that there should have been a longer notice period. In response, acting Governor Jesus C. Borja rescinded the call for the special Senate session at 5:00 p.m. No special Senate session took place on May 11.\\nOn May 13, 1994, Sab\\u00edan canceled the special Senate session he had called for 1:00 p.m. However, at the request of five Senators who wanted to consider matters \\\"relating to Senate leadership organization,\\\" the Governor called a special Senate session for 2:30 p.m.\\nAt 2:45 p.m., the appellees, Senators Demapan, Cing, Manglona, Hocog and Atalig (\\\"Named Senators\\\"), met in special session. The session was open to the public and attended by members of the media. The Named Senators voted to suspend Senate Rules 1 and 9, and then elected Senator Demapan to replace Senator Sab\\u00edan as Senate President.\\nII. Court Action\\nOn May 16, 1994, Sab\\u00edan filed a complaint and motion for a temporary restraining order (TRO) and preliminary injunction. Following a hearing, the trial court denied the motion for a TRO and set the matter for supplemental briefing and a hearing on Sablan's motion for a preliminary injunction.\\nSab\\u00edan subsequently filed an amended complaint and a second amended complaint for declaratory and injunctive relief. The second amended complaint includes a claim under \\u00a7 1983 alleging that the Governor and legislature, by failing to reapportion the Senate, violated Sablan's right, secured by the Fourteenth Amendment to the U.S. Constitution, to equal protection of the law. The second amended complaint does not, on its face, include a direct cause of action under the U.S. Constitution.\\nOn June 29, 1994, Sab\\u00edan filed a motion for partial summaiy judgment and the Governor and Named Senators filed motions to dismiss the second amended complaint. The trial court issued an order on July 5, 1994, consolidating Sablan's motion for a preliminary injunction with trial on the merits under Com. R. Civ. P. 65(a).\\nOn July 6, 1994, the House of Representatives (\\\"House\\\") filed a motion to dismiss, and the Named Senators, legislature and Governor filed cross-motions for summary judgment. The trial court conducted a hearing on the Governor's, Named Senators' and legislature's motions to dismiss, and separately heard all remaining motions on July 13, 1994.\\nOn July 18, 1994, the trial court issued a \\\"Memorandum Decision on Motions to Dismiss and Judgment.\\\" The court dismissed, as a nonjusticiable political question, the claim that the Senate violated its rules, dismissed the \\u00a7 1983 claims against the legislature and Governor on grounds of legislative immunity, and ruled against Sab\\u00edan on the merits on the Open Government Act and Senate apportionment claims.\\nSab\\u00edan filed a motion for reconsideration, which the court denied. He timely appealed.\\nANALYSIS\\nI. Whether the Legislature and Governor Have a Viable Legislative Immunity Defense to Sablan's \\u00a7 1983 Claim\\nIn the fifth cause of action of Sablan's second amended complaint, he purports to set forth a statutory claim, averring in part that\\nthe present composition of the Senate is violative of the Equal Protection Clause of the Fourteenth Amendment [to] the Constitution of the United States . . . and . the plaintiff is entitled to relief pursuant to the federal Civil Rights Act, 42 U.S.C. \\u00a7 1983.\\nSecond Amended Complaint at 24. Sab\\u00edan requests injunctive relief and, alternatively, a judicially-formulated plan to reapportion the Senate. The trial court granted the Governor and the legislature's motion to dismiss on the ground that absolute legislative immunity shielded these defendants from actions brought under \\u00a7 1983.\\nWith respect to the \\u00a7 1983 issue, Sablan's entire argument on appeal consists of the statement that \\\"[n]either the Legislature nor the Governor have legislative immunity from this reapportionment suit.\\\" Appellant's Brief at 69. In support of this conclusion, Sab\\u00edan cites Dyer v. Abe, a federal district court case. We find the ruling in Dyer unpersuasive in view of the U.S. Supreme Court's later decision in Supreme Court of Virginia v. Consumers Union of the United States, Inc., which we discuss below.\\nNevertheless, we will examine Sablan's second amended complaint to determine whether he could prove any set of facts that would entitle him to relief under \\u00a7 1983. We affirm the dismissal of the action against the legislature, but on different grounds than those cited by the trial court. We also affirm the dismissal of the \\u00a7 1983 action against the Governor.\\nWe must first consider whether the Governor and legislature are \\\"persons\\\" and therefore amenable to suit under \\u00a7 1983. Only if one or both defendants are persons will we proceed to address the question of legislative immunity.\\nA. Whether the Legislature or the Governor is a \\\"Person\\\"\\nThe Commonwealth \\\"is not a 'person' within the meaning of \\u00a7 1983.\\\" Thus, \\\"[n]either the [Commonwealth] nor its officers acting in their official capacity can be sued under \\u00a7 1983.\\\" With respect to the Commonwealth itself, this rule applies and thus bars suits for injunctive and monetary relief. However, with respect to its officers, when sued in their official (not personal) capacity, the same rule applies and bars only suits for monetary relief. Thus, officers still can be sued in their official capacity for injunctive relief.\\n\\\"Commonwealth\\\" means the Commonwealth government as a whole, and governmental entities that would be considered arms of the Commonwealth for purposes of immunity under the Eleventh Amendment to the U.S. Constitution. The Commonwealth Legisla ture is one such entity.\\nSab\\u00edan's \\u00a7 1983 cause of action runs in part against the legislature. Because the legislature is not a \\\"person\\\" within the meaning of \\u00a7 1983, the trial court did not err in dismissing the action against the legislature. However, the Superior Court dismissed as to both the legislature and the Governor on grounds that both parties have legislative immunity. Reaching this issue would be proper as to the legislature if the legislature were a \\\"person\\\" under \\u00a7 1983. The legislature not being a \\\"person,\\\" the trial court need not have reached the immunity question.\\nA different result obtains with respect to the Governor. The Governor is a Commonwealth officer who has been sued in his official capacity for injunctive relief. When sued in that capacity, the Governor constitutes a \\\"person\\\" under \\u00a7 1983. Therefore, we proceed to determine whether the Governor is shielded by legislative immunity.\\nB. Whether Legislative Immunity Extends to the Governor\\nThe Superior Court determined that legislative immunity provides the Governor with a viable defense to Sablan's action. Sab\\u00edan contends that this holding is erroneous. We find no error.\\nIn the context of a \\u00a7 1983 action, a state official who, as here, is sued for injunctive relief in her/his official capacity normally may not claim absolute immunity for her/his official action. Officials who assert that they have such immunity \\\"must show that [the] immunity is justified for the governmental function at issue.\\\" To determine whether a particular task is legislative, executive or judicial for purposes of extending immunity, the function performed by the defendant officer, and not his or her title, is determinative.\\nWith respect to officials engaged in legislative activity, the U.S. Supreme Court explained in Consumers Union that granting absolute immunity is justifiable\\nto insure that the legislative function may be performed independently without fear of outside interference. To preserve legislative independence, . . . legislators engaged in the sphere of legitimate legislative activity should be pro tected not only from the consequences of litigation's results but also from the burden of defending themselves.\\nThe Court considered the specific issue of whether the Supreme Court of Virginia was immune from suit under \\u00a7 1983 for the promulgation of the Virginia State Bar Code. The plaintiffs in Consumers Union, like Sab\\u00edan, sought only declaratory and injunctive relief. The Court ruled that (1) the Virginia court acted in a legislative capacity when propounding the bar code, and (2) when acting as a legislative body, the Virginia court enjoyed common law immunity for its legislative acts, defined as \\\"acts undertaken in a field where legislators traditionally have power to act.\\\"\\nIn the case at bar, we must focus not on the Governor's title, but rather on the affirmative duty that Sab\\u00edan alleges that the Governor failed to perform. If the function in question is legislative, then the Governor is entitled to absolute immunity.\\nSablan's second amended complaint \\\"is essentially self-defeating\\\" because it contains the elements of a built-in defense of legislative immunity. Specifically, Sab\\u00edan alleges that \\\"[bjecause the Commonwealth Legislature has failed to reapportion the Senate, it is incumbent upon the Governor to act, pursuant to Article II, \\u00a7 4(b) of the Commonwealth Constitution.\\\" Second Amended Complaint at 17-18. In his fifth cause of action, brought pursuant to \\u00a7 1983, Sab\\u00edan asserts that he \\\"is entitled to an injunction compelling the . . . defendant Tenorio . to develop and submit to [the] court a plan which will establish nine senatorial election districts.\\\" Id. at 24 (emphasis added). Finally, in his prayer for relief under his sixth cause of action, Sab\\u00edan requests that the court \\\"issue an affirmative injunction commanding [the Governor] . to enact legislation calling a special election for the purpose of electing the membership of the Senate in accordance with the new redistricting and reapportionment plan.\\\" Id. at 29 (emphasis added).\\nThus, by its plain language the second amended complaint makes clear that Sab\\u00edan is not demanding that the Governor be compelled to act in an executive capacity. Rather, he is requesting that the Governor be required to perform a constitutionally-delegated legislative function. The trial court correctly held that, under these circumstances, the Governor enjoys absolute immunity from Sablan's suit for prospective relief under \\u00a7 1983.\\nII. Whether the Legislature and Governor were Entitled to Summary Judgment on the Merits of the Senate Apportionment Claim\\nThe trial court granted summary judgment in favor of the legislature and the Governor, holding that \\\"the composition of the Commonwealth Senate offends neither the Fourteenth Amendment to the U.S. Constitution nor Art. I, \\u00a7 6 of the Commonwealth Constitution.\\\" Sab\\u00edan contends that the Superior Court erred in granting judgment against him on the merits. The parties and amicus extensively discussed this issue. However, as further explained below, the procedural stance of this case made it unnecessary for the Superior Court to decide the merits of Sablan's claim that the Senate's apportionment violates his right to equal protection under the U.S. Constitution.\\nWhen properly invoked, defenses such as absolute immunity from suit under \\u00a7 1983 defeat an action at the outset. A court need not proceed further; it should \\\"not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.\\\" It was unnecessary, therefore, for the Superior Court to determine whether Sab\\u00edan has been deprived \\\"of any rights, privileges, or immunities secured by the Constitution.\\\"\\nHaving determined that Sab\\u00edan was barred from bringing a statutory action under \\u00a7 1983, it would not avail this Court to search Sablan's second amended complaint to determine whether he stated an implied cause of action directly under the U.S. Constitution. Sab\\u00edan can state no such direct cause of action because, under the facts before us, federal law requires that \\\"a litigant complaining of a violation of a constitutional right . . . utilize 42 U.S.C. \\u00a7 1983.\\\"\\nSection 1983 is not a source of substantive rights, but rather provides a means of vindicating federal rights conferred by, for example, the Fourteenth Amendment and other provisions of the U.S. Constitution. Section 1983 \\\"provides a substitute remedy which is equally effective to a direct cause of action under the Constitution.\\\" Thus, as a matter of law, Sablan's \\u00a7 1983 cause of action subsumes any action that he might purport to state directly under the Fourteenth Amendment.\\nFinally, even if we were to recognize the existence of an implied direct cause of action under the Fourteenth Amendment, the legislature and the Governor could invoke the same immunity defenses that led to the dismissal of the \\u00a7 1983 actions.\\nHI. Whether Findings of Fact were Erroneously Made during Grant of Summary Judgment on Merits of Senate Apportionment Claim\\nSab\\u00edan contends that the trial court erred by making certain material findings of fact while granting summary judgment against him on his claim that the apportionment of the Commonwealth Senate violates the U.S. and Commonwealth Constitutions. We have stated above that the trial court should not have reached the merits of the Senate apportionment issue. Any error arising from the Superior Court's making of findings of fact during its adjudication of the merits is, therefore, inconsequential for purposes of our review.\\nIV. Whether the Senate Rules Violation Claim is a Nonjusticiable Political Question\\nSab\\u00edan alleges that in the process of electing Senator Demapan to replace Sab\\u00edan as Senate President, the Named Senators violated one of the Senate Rules. Specifically, Sab\\u00edan asserts that there was a transgression of Rule 1(2), which pertains to Senate officers' terms of office.\\nSab\\u00edan maintains that the election of Senator Demapan must be declared null and void as a result of the alleged Senate Rules violation. The Superior Court found this to be a nonjusticiable political question and dismissed the claim. On appeal, Sab\\u00edan contends that the court \\\"has the duty to say what the law is,\\\" Appellant's Brief at 74, notwithstanding concerns regarding separation of powers. Prior to addressing the justiciability question and potentially the merits, we must determine whether this issue has become moot. We conclude that this matter, while technically moot, is still subject to review because it falls within an exception to the mootness doctrine. Furthermore, we hold that under the facts of this case, the trial court did not err in its ruling.\\nA. Mootness\\nThe Court takes judicial notice of the fact that during the pendency of this appeal, the Ninth Commonwealth Legislature ceased to exist and Sab\\u00edan was elected President of the Senate of the Tenth Commonwealth Legislature. The Court can no longer grant Sab\\u00edan relief in the form of reinstatement to the Presidency of the Senate of the Ninth Commonwealth Legislature.\\nThis Court's duty \\\"is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.\\\" Moreover, we have previously decided that for policy reasons Commonwealth courts lack jurisdiction to decide moot issues.\\nThe mootness doctrine has exceptions, however, one of which applies where (1) the issue raised affects the public interest, (2) similar issues are likely to arise in the future, and (3) the issue will probably become moot prior to completion of review by an appellate tribunal. The present case fits squarely into this exception.\\nThe Senate of each Commonwealth Legislature adopts its own rules of procedure. Disputes among legislators as to interpretation of the rules have been litigated, and may well in the future be brought to the courts for resolution. Sab\\u00edan may, for example, be removed again from the Senate presidency by the same or similar means as used in the case at bar, which would likely result in the reappearance of the issue now before us. Furthermore, to the extent that this matter affects the operation of the Senate, it also affects the public interest. Finally, the relatively brief two-year life of each Senate means, in addition to the fact that controversies like the one before us may occur at any time within each two-year period, that appellate review might be made problematic due to mootness. We therefore conclude that review of this issue comes within the proper exercise of our jurisdiction.\\nB. Justiciability\\nThe separation of powers concept came into being \\\"to safeguard the independence of each branch of the government and protect it from domination and interference by the others.\\\" The separation of powers concept takes the form of the \\\"political question\\\" doctrine in the context of judicial review of legislative and executive decisions.\\nThe political question doctrine \\u2014 a doctrine of judicial abstention \\u2014 comes into play when the controversy brought before the court (1) involves a decision made by a branch of the government coequal to the judiciary, and (2) concerns a political matter. The presence of a political question renders the controversy nonjusticiable. In other words, it immunizes the disputed legislative or executive decision from judicial scrutiny.\\nThe assessment of whether a given controversy presents a political question must be made on a case-by-case basis. A number of factors may be considered in this analysis: whether there is a textually demonstrable commitment of the issue to a coordinate branch of government; whether judicially discoverable and manageable standards for assessing the dispute are lacking; whether a court could render a decision without also making an initial policy determination that clearly should be left to another branch; whether it would be possible for a court independently to resolve the case without undercutting the respect due to coordinate branches of government; whether there is an unusual need to adhere to a political decision already made; or whether an embarrassing situation might be created by various governmental departments ruling on one question. With respect to the present case, multiple factors weigh heavily in favor of abstention from judicial review of the Senators' actions.\\nThe Commonwealth Constitution empowers each house of the legislature to \\\"choose the presiding officer from among its members, . . . and promulgate rules of procedure.\\\" We read the term \\\"promulgate\\\" to include the power to interpret, suspend, waive and enforce the rules by any constitutional means. By refraining from interfering with the Senate's constitutionally-exercised power to promulgate rules, we accord proper respect to the legislature as a separate and coequal branch of government which must be free from domination and unnecessary intrusion by the judiciary.\\nWe also believe it is necessary to adhere to a political decision already made. Sab\\u00edan was replaced by Senator Demapan, the Senate resumed its legislative duties, and it has continued to function since the leadership change. As the Alaska Supreme Court observed in a factually similar case, \\\"[intervention by a court at this point would be apt once again to disrupt the legislative processes . Nor is it at all clear that judicial intervention during the reorganization would have shortened it or otherwise have been of benefit.\\\"\\nSab\\u00edan suggests that Mafiias v. Inos stands for the proposition that Senate Rules, once promulgated, must be enforced by the courts. Our ruling in Mafiias is not as broad as Sab\\u00edan submits. Review might be merited here if Sablan's claim presented cognizable constitutional questions, as in Mafiias. However, as the Superior Court correctly ruled, this is not the case in this dispute.\\nMafiias concerned a dispute in which the Senate split into two competing factions, effectively paralyzing the legislative branch and significantly impeding the executive branch's ability to function: \\\"[T]he lower house of the legislature and the executive branch of the Government of the Northern Marianas could not work with the [Sjenate and the [Sjenate could not function.\\\" In determining that we should exercise jurisdiction, we implicitly recognized the constitutional dimensions of the controversy: \\\"Absent expeditious resolution of the dilemma, the Commonwealth Government would remain crippled. No laws could be passed and the new Governor's executive appointments could not be acted upon.\\\" The gravity of the situation in Mafiias merited judicial intervention.\\nIn a well-reasoned analysis, the Superior Court determined that Sablan's grievance concerning the Senators' interpretation of and adherence to the Senate Rules was not of constitutional magnitude. The court properly declined to address the merits of the issue, and we will not disturb that decision.\\nCONCLUSION\\nFor the reasons set forth above, we AFFIRM the decision of the Superior Court.\\nSee Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir. 1978) (holding that question whether defendant is qualifiedly or absolutely immune \\\"is not a jurisdictional issue[; rjather, immunity is an affirmative defense which may defeat the section 1983 claim once that subject matter jurisdiction has been established\\\"), overruled on other grounds, Polk County v. Dodson, 454 U.S. 312, 321, 102 S. Ct. 445, 451, 70 L. Ed. 2d 509. 518 (1981) (by implication); see also Larsen v. Gibson, 267 F.2d 386, 387 (9th Cir.) (per curiam) (holding that trial court had jurisdiction and properly granted summary judgment dismissing complaint on ground that state supreme court justices are immune from \\u00a7 1983 suit for damages), cert, denied, 361 U.S. 848, 80 S. Ct. 106, 4 L. Ed. 2d 87 (1959). But see Partington v. Gedan, 961 F.2d 852, 860 n.8 (9th Cir.) (dictum) (suggesting, with respect to \\u00a7 1983 claim, that issue of absolute immunity is jurisdictional), cert, denied, 506 U.S. _, 113 S. Ct. 600, 121 L. Ed. 2d 537 (1992).\\nCepeda v. Hefner, 3 N.M.I. 121, 126 (1992).\\nCf. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90, 96 (1974) (discussing federal court's assessment of complaint's sufficiency in \\u00a7 1983 actions).\\nGovendo v. Micronesian Garment Mfg., Inc., 2 N.M.I. 270. 283 (1991); see also Saffioti v. Wilson, 392 F. Supp. 1335, 1337 n.1 (S.D.N.Y. 1975) (discussing assessment of \\u00a7 1983 actions under Fed. R. Civ. P. 12(b)(6)).\\nGovendo. 2 N.M.I. at 283; see also Saffioti, 392 F. Supp. at 1337 n.1.\\nKing v. Board of Elections, 2 N.M.I. 398, 401 (1991).\\nCf. Brown v. Hansen, 973 F.2d 1118, 1121 (3d Cir. 1992) (noting that effect of political question doctrine is not to deprive courts of subject matter jurisdiction, but rather to preclude court \\\"from granting relief that would violate the separation of powers mandated by the [federal] Constitution\\\") (citing Powell v. McCormack, 395 U.S. 486, 516-17, 89 S. Ct. 1944, 1961-62, 23 L. Ed. 2d 491, 514 (1969)); see also United States Dept. of Commerce v. Montana, 503 U.S. 442,_, 112 S. Ct. 1415, 1425, 118 L. Ed. 2d 87, 101 (1992) (\\\"When a court concludes that an issue presents a nonjusticiable political question, it declines to address the merits of that issue\\\").\\nCepeda, 3 N.M.I. at 126.\\nPL 8-41 (enacted Jan. 21, 1994) (codified as amended at 1 CMC \\u00a7 9901 et seq.).\\nThe Ninth Commonwealth Legislature ceased to exist on January 8,1996. Consequently, the Court can no longer grant the relief requested by Sab\\u00edan. See Govendo, 2 N.M.I. at 281. Furthermore, after the filing of this lawsuit, the legislature repealed that portion of the Open Government Act expressly making the Act applicable to the legislature. See PL 8-41. \\u00a7 14, repealed by PL 9-2, \\u00a7 5. Thus, unlike issue IV, infra, the present issue is not amenable to consideration by the Court as a dispute capable of repetition yet evading review. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996).\\n48 U.S.C. \\u00a7 1801 note, reprinted in CMC at B-101 et seq. (\\\"Covenant\\\").\\nThe Saipan Senatorial District includes the islands to Saipan's north, collectively known as the Northern Islands. The Commonwealth Constitution provides for the establishment of a fourth Northern Islands senatorial district when the population of the Northern Islands exceeds one thousand persons. N.M.I. Const, art. n, \\u00a7 2(a). For purposes of this opinion, all further references to Saipan will be taken to include the Northern Islands.\\nSablan v. Tenorio, Civ. No. 94-0500 (N.M.I. Super. Ct. July 18, 1994) (Memorandum Decision on Motions to Dismiss and Judgment at 4).\\nId.\\nJd. at 5.\\nSection 1983 provides, in relevant part:\\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.\\n42 U.S.C. \\u00a7 1983.\\n138 F. Supp. 220, 232 (D. Haw. 1956), rev'dasmoot, 256 F.2d 728, 729 (9th Cir. 1958) (per curiam). This case has no progeny.\\n446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980).\\nSee Govendo, 2 N.M.I. at 283.\\nThe trial court's dismissal based on legislative immunity was not in error. However, the court did not have to reach that issue because, as we discuss below, the legislature is not a \\\"person\\\" under \\u00a7 1983.\\nThe legislature and Governor made this argument below, in their joint motion to dismiss. See [Governor and Senate's] Notice of Motion to Dismiss, Motion to Dismiss, and Memorandum in Support of Motion to Dismiss at 3, [House of Representatives'] Notice and Motion to Dismiss at 2, Sabian, Civ. No. 94-0500 (N.M.I. Super. Ct. filed May 16, 1994). The Superior Court ruled against them, and they have not raised the argument again on appeal. However, we will consider this matter because we may affirm the trial court's decision on any ground that is supported in the record, Partington, 961 F.2d at 860, and because this question implicates our jurisdiction. See DeNieva v. Reyes, 966 F.2d 480, 482-83 (9th Cir. 1992).\\nDeNieva, 966 F.2d at 483.\\nId.; see also Ngiraingas v. Sanchez, 495 U.S. 182, 192, 110 S. Ct. 1737, 1743, 109 E. Ed. 2d 163, 174 (1990) (holding, in a suit for monetary relief, that neither \\\"Guam nor its officers acting in their official capacities are 'persons' under \\u00a7 1983\\\"); Hafer v. Melo, 502 U.S. 21, 26, 112 S. Ct. 358, 362, 116 L. Ed. 2d 301, 310 (1991) (holding that neither a state nor its officials when sued for monetary relief in their official capacities are \\\"persons\\\" under \\u00a7 1983); Covenant \\u00a7 502(a)(2) (a given federal law may be applicable to the Commonwealth if it is applicable to Guam and generally applicable to the states, as it is applicable to the states).\\nSee DeNieva, 966 F.2d at 483 & n.3 (making no distinction between prospective and monetary relief with respect to a state itself not being a \\\"person\\\" under \\u00a7 1983, while noting that state officers are \\\"persons\\\" when sued in their official capacities for prospective relief, but are not persons when sued in official capacity for damages); Derechin v. State Univ. of New York, 731 F. Supp. 1160, 1164 (W.D.N.Y. 1989) (holding that state (university) is not a \\\"person\\\" under \\u00a7 1983 in a suit for declaratory and injunctive relief).\\nIt is unsettled whether the Commonwealth enjoys Eleventh Amendment immunity. The Covenant contains no express provision making the Eleventh Amendment applicable to the Commonwealth. See Covenant \\u00a7 501(a) (enumerating specific provisions of the U.S. Constitution applicable within the Commonwealth); Fleming v. Department of Pub. Safety, 837 F.2d 401, 406 & n.6 (9th Cir.) (holding, in \\u00a7 1983 action, that Commonwealth does not enjoy Eleventh Amendment immunity from suit), cert. denied, 488 U.S. 889, 109 S. Ct. 222, 102 L. Ed. 2d 212 (1988), overruling on other grounds recognized in DeNieva, 966 F.2d at 483. Conducting the present analysis as if the Eleventh Amendment applies is nevertheless appropriate, because \\u00a7 1983 applies to the Commonwealth \\\"as [it is] applicable to the several states.\\\" Covenant \\u00a7 502(a)(2). See DeNieva, 966 F.2d at 483.\\nSee Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989) (defining parameters of \\\"state\\\" which is not a \\\"person\\\" amenable to suit under \\u00a7 1983); Hafer, 502 U.S. at 30, 112 S. Ct. at 364, 116 L. Ed. 2d at 312 (explaining that states are immune from \\u00a7 1983 actions in both federal and state courts); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 & n.11, 104 S. Ct. 900, 908 & n.11, 79 L. Ed. 2d 67, 79 & n.11 (1984) (holding that suit in federal court is barred by Eleventh Amendment when a state is \\\"the real, substantial party\\\" sued, regardless of the type of relief sought).\\nSee N.A.A.C.P. v. Committee on Offenses, 114 S.E. 2d 721, 728 (Va. 1960) (holding that a suit against the Virginia Legislature is a suit against the state).\\nSee Derechin, 731 F. Supp. at 1164 (dismissing \\u00a7 1983 actions for declaratory and injunctive relief against state university and university branch campus on ground that universities are state entities and therefore not \\\"persons\\\" under \\u00a7 1983) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 63-70, 109 S. Ct. 2304, 2308-11, 105 L. Ed. 2d 45, 53-57 (1989)).\\nAs noted above, even though it did not have to reach this issue with respect to the legislature, the Superior Court did not err in concluding that the legislature has a viable defense in the form of absolute legislative immunity. See Consumers Union, supra. In Consumers Union, a \\u00a7 1983 action for declaratory and injunctive relief, the U.S. Supreme Court opined:\\n[TJhere is little doubt that if the Virginia Legislature had enacted the State Bar Code and if suit had been brought against the legislature, its committees, or members for refusing to amend the Code in the wake of our cases indicating that the Code in some respects would be held invalid, the defendants in that suit could successfully have sought dismissal on the grounds of absolute legislative immunity.\\nId., 446 U.S. at 733-34, 100 S. Ct. at 1975, 64 L. Ed. 2d at 654-55 (dictum) (footnote omitted); see also Daggett v. Kimmelman. 617 F. Supp. 1269, 1279 (D.N.J. 1985) (holding that legislature that enacted congressional redistricting plan would have been absolutely immune from a \\u00a7 1983 suit if it had not intervened to defend the statute), aff'd, 811 F.2d 793, 795 n.2 (3d Cir. 1987).\\nThe question whether a state legislature is a \\\"person\\\" within the meaning of \\u00a7 1983 was neither argued nor decided in Consumers Union or Daggett. However, in Consumers Union the U.S. Supreme Court seemed to suggest that the Virginia Supreme Court might not be a \\\"person\\\" under \\u00a7 1983. See 446 U.S. at 737 n.16, 100 S. Ct. at 1977 n.16, 64 L. Ed. 2d at 651 n.6.\\nSee Will, 491 U.S. at 70 n.10, 109 S. Ct. at 2312 n.10, 105 L. Ed. 2d at 58 n.10 (dictum); see also Derechin, 731 F. Supp. at 1164 (applying Will and holding that state university administrators acting in official capacities are \\\"persons\\\" under \\u00a7 1983 when sued for prospective injunctive relief).\\nSee Hafer, 502 U.S. at 29, 112 S. Ct. at 364, 116 L. Ed. at 312.\\nId., 502 U.S. at 29, 112 S. Ct. at 363, 116 L. Ed. 2d at 312.\\nForrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538, 544, 98 L. Ed. 2d 555, 565 (1988) (\\\"[Ijinmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches\\\"); Terry v. Bobb, 827 F. Supp. 366, 368-69 (E.D. Va. 1993) (citing, inter alia, Consumers Union, supra).\\nConsumers Union. 446 U.S. at 731-32, 100 S. Ct. at 1974, 64 L. Ed. 2d at 351 (internal quotation marks and citations omitted).\\nId., 446 U.S. at 731, 100 S. Ct. at 1974, 64 L. Ed. 2d at 351.\\nId., 446 U.S. at 734, 100 S. Ct. at 1976, 64 L. Ed. 2d at 655; see also Daggett, 617 F. Supp. at 1279 (holding that when legislature intervened in suit in order to defend statute being challenged under \\u00a7 1983, it \\\"took on a quasi-enforcement role, and gave up its immunity\\\").\\nConsumers Union, 446 U.S. at 733, 100 S. Ct. at 1975, 64 L. Ed. 2d at 654 (internal quotation marks and citation omitted).\\n5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure \\u00a7 1357 (2d ed. 1990) (discussing situations in which a plaintiffs own allegations demonstrate that a defense exists, entitling defendant to dismissal of the action based on plaintiff's failure to state a claim).\\nArticle II of the Commonwealth Constitution establishes the \\\"Legislative Branch\\\" of the government. N.M.I. Const, art. n, \\u00a7 4(b) provides, in pertinent part, that \\\"[i]f the legislature fails to act pursuant to sectionQ 4(a) [to redistrict or reapportion the House of Representatives], the governor shall promulgate a reapportionment or redistricting plan.\\\" (Emphasis added.)\\nWe do not reach the question of whether N.M.I. Const, art. n, \\u00a7 4(a) (providing for reapportionment and redistricting of the House of Representatives) could be used as a basis for compelling the Governor to reapportion or redistrict the Senate, as opposed to the House of Representatives.\\nCourts have permitted \\u00a7 1983 suits to proceed against governors who have performed or failed to perform executive functions, such as enforcing allegedly unconstitutional election districting laws. See, e.g., Roberts v. Babcock, 246 F. Supp. 396, 399 (D. Mont. 1965) (enjoining governor and secretary of state from \\\"in any manner enforcing or recognizing\\\" state statute apportioning congressional districts, and from \\\"proclaiming, certifying or conducting any election\\\" of members of Congress).\\nSablan, supra (Memorandum Decision on Motions to Dismiss and Judgment at 30).\\nDue to the importance of the Covenant issue, we note that if the matter were properly before us we would affirm on the merits based not only on the Superior Court's reasoning, but also on the following factors.\\nThe relationship between the U.S. and the CNMI is governed solely by the Covenant, not the U.S. Constitution. United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir. 1993). The Covenant is not simply a statute enacted by the U.S. Congress. Sablan v. Inos, 3 N.M.I. 418, 428 (1993). It is a bilateral international agreement which required mutual consent and, after years of negotiations, established a unique and unprecedented political union between the U.S. and the people of the NMI.\\nPrior to the effective date of the Covenant, none of the U.S. Constitutional provisions applied in the NMI. Sovereignty resided in the people of the NMI. The NMI was not a U.S. \\\"territory\\\" and did not become a U.S. \\\"territory\\\" by uniting politically with the U.S. through the Covenant. A \\\"territory\\\" is subject to the plenary power of Congress pursuant to the Territorial Clause. U.S. Const, art. IV, \\u00a7 3, cl. 2. Although Covenant \\u00a7 101 provides that the CNMI is under U.S. sovereignty, Covenant \\u00a7 105 limits U.S. sovereignly by giving express recognition to the CNMI's right of self-government, and to the fundamental provisions (Articles I, n, in and Sections 501 and 805) of the Covenant which cannot be altered without the mutual consent of the parties.\\nIn view of this, it would be incorrect to conclude that in approving and effectuating the Covenant's terms, the U.S. Congress and President derived their authority from the Territorial Clause. Rather, the U.S. Government's authority to negotiate and become a party to the Covenant may properly be said to have derived from the treaty power, U.S. Const, art. n, \\u00a7 2, cl. 2, and the Necessary and Proper Clause, U.S. Const, art. I, \\u00a7 8, cl. 18. It is the broad authority granted under these provisions that enables the U.S. government to enter into treaties and enact laws that, as in the case of the Covenant, it deems necessary to protect U.S. security and other national interests.\\nThe Covenant's negotiating history shows that absent the Covenant's fundamental provisions, no agreement would have been possible. Commonwealth of the N. Mariana Islands v. Atalig, 723 F.2d 682. 685-86 (9th Cir.), cert. denied. 467 U.S. 1244, 104 S. Ct. 3518, 82 L. Ed. 2d 826 (1984). One such fundamental provision is Section 203, providing for composition of the Senate.\\nA Senate apportioned by island is one feature of the government chosen by the people of Saipan, Rota, and Tinian in the exercise of their right of self-determination. The people desired a representative republican form of government, with a bicameral legislature, akin to that of the Congress of Micronesia and the U.S. Congress.\\nThe composition of the Senate does not transgress international norms recognizing the right of all people to vote. Section 203's inclusion in the Covenant should, therefore, be upheld as a proper and valid exercise of the U.S. Government's authority under the U.S. Constitution.\\nIn his appellate briefs, Sab\\u00edan argues only that the trial court erred in granting summary judgment as to his claim that apportionment of the Commonwealth Senate violates his rights under the federal Constitution. See Appellant's Brief at 1, 37. The propriety of the Superior Court's grant of summary judgment as to Sablan's claim under the Commonwealth Constitution is not, therefore, an issue properly before us.\\nHaynesworth v. Miller, 820 F.2d 1245, 1265-66 (D.C.Cir. 1987).\\nAshwander v. T.V.A., 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed. 2d 688 (1936) (Brandeis, J., concurring).\\n42 U.S.C. \\u00a7 1983.\\nAzul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (citations omitted), cert, denied._ U.S._. 113 S. Ct. 1049, 122 L. Ed. 2d 357 (1993); Thomas v. Shipka, 818 F.2d 496. 499 (6th Cir.) (holding that, where plaintiff states a constitutional claim under \\u00a7 1983, that statute provides exclusive remedy for alleged constitutional violations), reh'g in part on other grounds denied, 829 F.2d 570 (6th Cir. 1987), vacated in part on other grounds, 488 U.S. 1036, 109 S. Ct. 859, 102 L. Ed. 2d 984 (1989) (mem.), on remand in part on other grounds, 872 F.2d 772, 773 (6th Cir. 1989) (emphasizing that relevant portion of original opinion was never appealed and remains good law).\\nBaker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d 433, 442 n.3 (1979).\\nThomas, 818 F.2d at 500 (concluding \\\"that it is unnecessary and needlessly redundant to imply a cause of action arising directly under the Constitution where Congress has already provided a statutory remedy of equal effectiveness through which the plaintiff could have vindicated [his] constitutional rights\\\"); see also Haynesworth, 820 F.2d at 1248 n.1 (opining that, if recognized by a court, an implied right to sue directly under the federal Constitution for civil rights violations should mirror \\u00a7 1983 \\u2014 the express statutory cause of action \\u2014 to the fullest possible extent).\\nSee Valerio v. Dahlberg, 716 F. Supp. 1031, 1036 (S.D. Ohio 1988).\\nSee, e.g., Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (en banc) (suggesting that plaintiff might have been permitted to bring a direct cause of action under the Constitution if defendant municipality were not a \\\"person,\\\" and therefore were not amenable to suit, under \\u00a7 1983).\\nSee Haynesworth. 820 F.2d at 1264 n.151 (finding it unnecessary, for the purpose of assessing immunity from suit, to distinguish between implied actions against federal officers brought directly under the Constitution from suits brought against state officers under \\u00a7 1983); Hearth, Inc. v. Department of Pub. Welfare, 617 F.2d 381. 383 (5th Cir. 1980) (per curiam) (dictum); see also Thomas, 818 F.2d at 500 (noting that the same standards of immunity apply to suits brought directly under the Constitution and under \\u00a7 1983 because \\\"both provide remedies for violations of the same constitutional protections\\\").\\nThe relevant portion of the rule provides:\\nThe President, Vice President, Floor Leader, and Senate Legislative Secretary, shall hold office until the next Legislature is called to order, until noon on the second Monday in January following the next general election unless such tenure be terminated at an earlier date by death or resignation. . . . This rule shall not be suspended without a unanimous vote of the total membership of the Senate and shall not be amended without the unanimous vote of the total membership of the Senate.\\nOfficial Rules of the Senate, Ninth Northern Marianas Commonwealth Legislature, 1(2) (1994).\\nIn re Seman, 3 N.M.I. 57, 64 (1992).\\nGovendo, 2 N.M.I. at 281.\\nSeman, 3 N.M.I. at 64-65.\\nSee, e.g., Mafnas v. Inos, 1 N.M.I. 101 (1990).\\n2 Chester J. Antieau, Modern Constitutional Law \\u00a7 11:13 (1969) (discussing separation of powers doctrine under the federal Constitution).\\nSee id. \\u00a7 11:19.\\nSee Baker v. Carr, 369 U.S. 186. 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663, 685-86 (1962).\\nN.M.I. Const, art. II, \\u00a7 14(b).\\nMafnas, 1 N.M.I. at 105 n.1.\\nCf. Moffitt v. Willis, 459 So.2d 1018, 1021 (Fla. 1984) (interpreting similar provision of Florida Constitution).\\nMalone v. Meekins. 650 P.2d 351, 357 (Alaska 1982).\\nSee supra note 58.\\nId. at 104.\\nId. at 105. See N.M.I. Const, art. n, \\u00a7 1 (legislative duties vested in legislature), 7 (power of Governor to act on bills after passage by legislature), art. HI. \\u00a7 14 (duty of Governor to appoint heads of executive departments with advice and consent of the Senate).\\nSee Sablan, supra (Memorandum Decision on Motions to Dismiss and Judgment at 7-9) (citing, inter alia, Malone v. Meekins. 650 P.2d 351, 355-56 (Alaska 1982)).\\nSee Montana, 503 U.S. at_, 112 S. Ct. at 1425, 118 L. Ed. 2d at 101-02; Brown v. Hansen, 973 F.2d 1118, 1122 (3d Cir. 1992) (\\\"If the defendant [legislator]s' conduct here did not violate any constitutional or statutory provision, the question whether the legislature violated its own internal rules is nonjusticiable\\\").\"}"

n_mar_i/1697486.json

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+"{\"id\": \"1697486\", \"name\": \"Enrique A. Santos, Plaintiff/Appellant, v. Jose A. Santos, Roque Santos, Heirs of Vicente A. Santos, Heirs of Francisca A. Santos, and Heirs of Ramon A. Santos, Defendants/Appellees\", \"name_abbreviation\": \"Santos v. Santos\", \"decision_date\": \"1994-12-15\", \"docket_number\": \"Appeal No. 93-017; Civil Action No. 92-1366\", \"first_page\": 206, \"last_page\": \"211\", \"citations\": \"4 N. Mar. I. 206\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: DELA CRUZ, Chief Justice, and CRUZ and MACK, Special Judges.\", \"parties\": \"Enrique A. Santos, Plaintiff/Appellant, v. Jose A. Santos, Roque Santos, Heirs of Vicente A. Santos, Heirs of Francisca A. Santos, and Heirs of Ramon A. Santos, Defendants/Appellees.\", \"head_matter\": \"Enrique A. Santos, Plaintiff/Appellant, v. Jose A. Santos, Roque Santos, Heirs of Vicente A. Santos, Heirs of Francisca A. Santos, and Heirs of Ramon A. Santos, Defendants/Appellees.\\nAppeal No. 93-017\\nCivil Action No. 92-1366\\nDecember 15, 1994\\nAmended January 6, 1995\\nArgued and Submitted March 8, 1994\\nCounsel for appellant: Timothy H. Bellas, Saipan.\\nCounsel for appellees, the heirs of Francisca A. Santos and Evelyn S. Benavente as representative of the heirs of Roman A. Santos: Jeanne H. Rayphand & Theodore R. Mitchell, Saipan.\\nCounsel for appellees Jose A. Santos, Roque A. Santos and the heirs of Vicente A. Santos: Vicente T. Salas, Saipan.\\nBEFORE: DELA CRUZ, Chief Justice, and CRUZ and MACK, Special Judges.\", \"word_count\": \"3088\", \"char_count\": \"17822\", \"text\": \"DELA CRUZ, Chief Justice:\\nThe plaintiff/appellant, Enrique A. Santos (\\\"Enrique\\\") appeals from an order granting summary judgment in favor of the defendants/appellees on res judicata grounds. At issue is the ownership of Lots 013 B 19, 013 B 20 and 008 B 05, located on Saipan (hereinafter Lots 19, 20 and 05, respectively). The trial court found that the three parcels belong to all of the heirs of Nicolas C. Santos (\\\"Nicolas\\\"), Enrique's deceased father, and not to Enrique alone. We affirm in part and reverse in part.\\nI. FACTS\\nThe estates of Eduvigis Camacho Santos (also known as Debis Delos Santos; hereinafter \\\"Debis\\\") and her brother Nicolas were probated in consolidated orders by the Trust Territory High Court in 1979 (\\\"probate cases 30 and 31\\\"). Those cases resolved the ownership of eight specific parcels. Enrique inherited two of these lots, Lots 013 B 15 and 013 B 16. These two parcels were formerly part of a larger tract of land designated as Lot 13 B 01 (\\\"Lot 01\\\"), which Debis originally owned. See Santos v. Santos, 3 N.M.I. 39, 42 (1992). After Debis's death, ownership of Lot 01 passed to Nicolas, then her only surviving heir. Id. Upon Nicolas's death, Lot 01 was subdivided and distributed to Ramon, Enrique and Jose pursuant to the order of final distribution issued in probate cases 30 and 31 (\\\"1979 order\\\"). A map depicting the distribution was attached to that order.\\nThe 1979 order did not mention Lots 19, 20 or 05, the lots at issue here. Enrique claims that these lots were part of the land distributed to him under the 1979 order, pursuant to a partida made by his father.\\nLots 19 and 20 are access lots (i.e., roadways) across former Lot 01. Neither Lot 19 nor Lot 20 were expressly distributed to any heir in either probate case. Certificates of title were issued for Lots 19 and 20 to the \\\"Heirs of Debis Delos Santos\\\" in 1981. Excerpts of Record at 8-9, 12-13. The certificates of title for both lots were issued pursuant to the 1979 order. Id. at 2, 8, 12.\\nLot 05 is also an access lot, which Enrique claims. He alleges that \\\"pursuant to the express wishes of his father, Nicolas[,] . . . [Enrique] was to have received Lot [05] which was part of his original parcel.\\\" Complaint for Quiet Title to Real Property \\u00b6 14, Santos v. Santos, Civ. No. 92-1366 (N.M.I. Super. Ct. filed Oct. 16, 1992) (\\\"complaint\\\"). Enrique admitted that the 1979 order and attached map, which partitioned and distributed Lot 01, do not mention Lot 05. Transcript of Proceedings at 8:2-5, Santos, Civ. No. 92-1366 (N.M.I. Super. Ct. Mar. 17, 1993). Enrique argued to the trial court that Lot 05 was \\\"carved out of [Lot] 01.\\\" Id. at 10:8-9. He also asserted that Lot 05's distribution was part of a partida allegedly effectuated by the 1979 order. Id. at 7:17-22. In 1981 a certificate of title was issued to Debis's heirs for Lot 05, pursuant to \\\"a determination of ownership made by the [Land Title Division of the Saipan District of the Trust Territory].\\\" Excerpts of Record at 10.\\nn. issues\\n1. Whether the trial court erred in granting the motion for summary judgment on the basis that Enrique's claim to Lots 19, 20, and 05 was barred by the doctrine of res judicata.\\n2. Whether the Superior Court erred in presuming that Enrique sought to set aside the distribution order in probate cases 30 and 31.\\n3. Whether the Superior Court's ruling that the three lots at issue belong to all seven of Nicolas's heirs was inconsistent with this Court's ruling in Santos v. Santos, 3 N.M.I. 39 (1992).\\nm. DISCUSSION\\n1. Summary Judgment\\nSummary judgment may be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Com. R. Civ. P. 56(c). In deciding a summary judgment motion, a court will construe the evidence and inferences drawn therefrom in favor of the non-moving party. Rios v. Marianas Pub. Land Corp., 3 N.M.I. 512, 518 (1993). If we determine that no genuine issue of material fact exists, our analysis shifts to whether the substantive law was correctly applied. Borja v. Rangamar, 1 N.M.I. 347, 355 (1990). Our review of an order granting summary judgment is de novo. Id\\n2. Res Judicata\\nThe trial court entered summary judgment in favor of the appellees pursuant to the doctrine of res judicata. \\\"'Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'\\\" Santos, 3 N.M.I. at 49 (emphasis omitted) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308, 313 (1980)).\\nThe appellees' summary judgment motion below was based on the assertion that the 1979 order incorporated a map, Excerpts of Record at 4, somehow showing that Lots 19 and 20 were to be distributed to them. On appeal, the appellees also state that the certificates of title to Lots 19 and 20 were issued to Debis's heirs based on the 1979 order and were, therefore, final. The 1979 order is the basis of their res judicata defense. The appellees conclude that these two parcels belong to Debis's heirs and thus to them as Nicolas's heirs.\\nAs to Lot 05, the appellees state that the lot's certificate of title was also issued to Debis's heirs. They contend that the doctrine of administrative res judicata renders this ownership determination conclusive. See In re Estate of Dela Cruz, 2 N.M.I. 1, 10-11 (1991). Therefore, the appellees argue, this land also belongs to all the heirs and not to Enrique alone.\\nThe appellees also advance an alternative basis of support for the trial court's ruling on res judicata grounds. In 1988, Enrique's two sisters, Asuncion and Maria, filed suit to set aside the 1979 order because they were not given notice of probate cases 30 and 31. Thus, they were improperly excluded from sharing in their father's estate. See Santos, 3 N.M.I. at 44 n.2, discussing Ooka v. Santos, Civ. No. 88-0367 (N.M.I. Trial Ct. filed Apr. 26, 1988). The appellees assert that Ooka bars Enrique's claim because the claim should have been brought in that action. They do not, however, offer any justification for this last assertion.\\nThe appellees' motion for summary judgment was made without any supporting declarations or other documents. They relied solely on the documents attached to the complaint filed by Enrique. On appeal, they advance documents in their supplemental excerpts of record that apparently were a part of the record in other related cases, e.g., probate cases 30 and 31, but were not expressly included in the record of this case below. These documents purportedly support the order granting summary judgment.\\nEnrique disagrees that the 1979 order resolved the issues of ownership of Lots 19, 20, and 05. He argues that the order did not specify \\\"the precise nature\\\" of the \\\"res\\\" adjudicated in probate cases 30 and 31. Appellant's Brief at 6. While he does not dispute the ownership of the eight lots specifically distributed in the 1979 order, Enrique asserts that the order did not identify and distribute Lots 19, 20 and 05, the lots at issue here. He argues that these lots nevertheless were part of the land distributed to him pursuant to the 1979 order. He concludes that res judicata does not bar his action.\\nA moving party bears the \\\"initial and the ultimate\\\" burden of establishing its entitlement to summary judgment. Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1516 (1st Cir. 1991). If a moving party is the plaintiff, he or she must prove that the undisputed facts establish every element of the presented claim. Id. If a movant is the defendant, he or she has the correlative duty of showing that the undisputed facts establish every element of an asserted affirmative defense. Id. Upon satisfying this burden, the non-moving party must establish that there exists a genuine issue of material fact. Bais v. Advantage Int'l, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990).\\nA. Lots 19 and 20\\nHere, the burden of establishing the affirmative defense of res judicata rested with the defendants/appellees. They had the burden of establishing that no genuine issue of material fact existed with respect to the defense of res judicata, i.e., that prior actions resolved Enrique's present claim or that he should have asserted the claim in a prior action but failed to do so.\\nWe have reviewed the 1979 order and the map attached to it. Lots 19 and 20 are not mentioned in the order. The map attached to the order is illegible and incomprehensible. Consequently, we do not find any clear indication from the map as to whom the probate court distributed Lots 19 and 20. Moreover, the \\\"Order Amending Order of Distribution,\\\" which was subsequently entered in the same case, does not mention Lots 19 and 20. Excerpts of Record at 6.\\nThe appellees offer no declaration establishing that the 1979 order distributed Lots 19 and 20 to Debis's heirs and thereby to them as Nicolas's heirs. The order does not mention that any unidentified lots, such as Lots 19 and 20, were to be distributed to Debis's heirs and thus to them as Nicolas's heirs, as the appellees contend it does. The 1979 order states that \\\"[i]n the event that the names written upon the said map indicate a distribution different from that set forth [in the order], then and in such event this Order shall govern and take precedence.\\\" Id. at 2. This language does not necessarily mean that lots not mentioned in the 1979 order but appearing on the map attached to it were to be distributed to all of Nicolas's heirs. In summary, there is no evidence showing that the 1979 order was intended to distribute Lots 19 and 20 to all of Nicolas's heirs. We cannot and will not presume these facts.\\nWe also fail to see how Enrique's claim is barred by Ooka. That action was initiated because two of Enrique's sisters were excluded by lack of notice of the probate cases from sharing in their father's estate. Enrique claims that Lots 19 and 20 were part of the land distributed to him by the 1979 order, which was not changed by Ooka. The appellees' summary judgment motion provided no facts or documents showing the precise nature of Ooka and how that action precluded Enrique's claim.\\nIn order for the appellees successfully to assert the affirmative defense of res judicata in a motion for summary judgment, they must have showed that, according to the undisputed facts, the rights to Lots 19 and 20 were adjudicated in probate cases 30 and 31, or that Enrique's claim should have been brought in Ooka, and thus relief was precluded. The appellees failed to meet their burden in this motion.\\nThe fact that certificates of title were issued to the \\\"heirs of Debis,\\\" thereby entitling the appellees to the land as Nicolas's heirs, is of no consequence here because they were issued pursuant to the 1979 order, which did not resolve the question of ownership of Lots 19 and 20. This factor distinguishes our decision (which follows) with regard to Lot 05. The certificate of title for Lot 05 was not issued pursuant to the 1979 order and it appears valid on its face.\\nB. Lot 05\\nAs to Lot 05, the appellees assert that the certificate of title issued on September 14, 1981, evi dences their entitlement to the land. A certificate of title \\\"shall be prima facie evidence of ownership as therein stated against the world.\\\" 2 CMC \\u00a7 4251(a). The appellees have met their burden of establishing ownership in all of Nicolas's heirs.\\nEnrique refuted the appellees' claim of ownership below with the conclusory statement that based on his \\\"belief' Lot 05 was given to him by his father by partida. An adverse party \\\"must set forth specific facts showing that there is a genuine issue for trial.\\\" Com. R. Civ. P. 56(e). Mere conclusions will not suffice. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990); Redden v. Wal-Mart Stores, Inc., 832 F. Supp. 1262, 1267 (N.D. Ind. 1993). Merely stating that it was his belief that he owned the land as the result of a partida did not create a factual dispute on the issue of ownership. See Griggs-Ryan, 904 F.2d at 115.\\nEnrique argued below that Lot 05 was \\\"carved\\\" out of former Lot 01. Transcript of Proceedings, supra, at 10:8-9. Nowhere in his declaration did he set forth any facts supporting this allegation. Furthermore, from the record before us, Lot 05 appears to lie outside of former Lot 01. Enrique's declaration was also silent as to the nature of the alleged partida and the nature of his entitlement under it. Accordingly, as to Lot 05 we hold that the order granting summary judgment in favor of all the heirs was correct.\\nC. The Santos Opinion\\nBefore concluding, we address Enrique's claim that the trial court's summary judgement order was inconsistent with our earlier opinion in Santos, supra. In Santos we held that Vicente, Enrique's late brother, disclaimed any interest in former Lot 01. 3 N.M.I. at 50. However, the trial court in the present action distributed the three lots at issue to all of Nicolas's heirs, including Vicente. Enrique's argument as to Vicente appears meritorious if he can show on remand that Lots 19 and 20 are encompassed by former Lot 01. Because of our disposition of this appeal, Lot 05 is the only lot belonging to all of Nicolas's heirs, including Vicente. Enrique failed to show that Lot 05 is part of former Lot 01. Consequently, there is no inconsistency between the trial court's order of summary judgment regarding Lot 05 and Santos.\\nTV. CONCLUSION\\nAlthough Lots 19 and 20 appear from the documents and briefs to be parts of former Lot 01, the 1979 order and map do not refer to or clearly identify these lots or indicate to whom they should be distributed. The 1979 order was silent as to the distribution of Lots 19 and 20, and thus did not establish a finding or conclusion as to whether Enrique's claim was barred by res judicata for purposes of summary judgment. Similarly, the motion failed to establish how Ooka barred relief. Accordingly, the order granting summary judgment as to these two lots is REVERSED, but AFFIRMED as to Lot 05, and the case is REMANDED for further proceedings consistent with this opinion.\\nThe appellees Jose A. Santos, Roque A. Santos and the heirs of Vicente A. Santos join in the brief of the other appellees. Maria A. Santos joins in the brief, as well. She was not, however, named in the complaint. Despite the fact that she was not named, she was served a summons in this action. For an unidentified reason, the appellants' counsel never filed an amended complaint. Thus Maria was never named as a party. Nevertheless, she filed an answer. Similarly, Evelyn S. Benavente was not named in the complaint but she filed an answer as the representative of the heirs of Ramon A. Santos and in her individual capacity. Others, too, were served with a summons and complaint but were never named as parties to this action. The record does not indicate the relationship that any of these people have to this action.\\nNicolas had seven heirs. They were Ramon, Enrique, Francisca, Vicente, Jose, Asuncion and Maria.\\nThe 1979 order stated: \\\"[T]he Northern Marianas Land Commission shall, in due course, issue Certificates of Title for the land herein distributed to the distributees as set forth herein.\\\" Excerpts of Record at 3. On September 14, 1981, certificates of title to Lots 19 and 20 were issued to the \\\"Heirs of Debis Delos Santos\\\" pursuant to \\\"a[n] Order of the Trial Division of the High Court made on the 20th day of December 1979, numbered Probate Case 30 & 31.\\\" Id. at 8, 12.\\nLot 05 is \\\"contiguous to Lots 013 B 15 and 16 and is part of the public roadway adjacent to Lot 013 B 15.\\\" Complaint for Quiet Title to Real Property \\u00b6 15, Santos v. Santos, Civ. No. 92-1366 (N.M.I. Super. Ct. filed Oct. 16, 1992).\\nEnrique's counsel represented below that this Court \\\"makes factual findings in its [Santos v. Santos, 3 N.M.I. 39 (1992)] opinion and says that this distribution in probate cases 30 and 31 occurred pursuant to a partida.\\\" Transcript of Proceedings at 7:19-22, Santos, supra note 4. Counsel is wrong. Santos does not indicate that probate cases 30 and 31 followed a partida; the partida mentioned in Santos involved an entirely different case, entitled In re Estate of Vicente Ag\\u00fcito Santos, Civ. No. 88-0598 (N.M.I. Trial Ct. filed Aug. 15, 1988). See Santos, 3 N.M.I. at 44 n.3. Probate cases 30 and 31 concerned the estates of Vicente's father, Nicolas C. Santos, and his aunt, Eduvigis (Debis). Neither Santos nor probate cases 30 and 31 indicate that the 1979 distribution was made pursuant to a partida. The distribution set forth in the 1979 order may have followed a partida, but there was no record made by the parties to substantiate this claim.\\nWe will not consider these documents since it is not clear that the trial court relied on them.\\nIronically, Asuncion S. Ooka was not served in this action, either. Because of our disposition of this matter, Ooka's interest in the land at issue is not impaired. On remand, the trial court should consider whether this action may properly proceed without Ooka being named as a party.\"}"

n_mar_i/1697492.json

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+"{\"id\": \"1697492\", \"name\": \"Jesus Ramon Arriola Sonoda, Plaintiff/Appellee, v. Maria Arriola Villagomez and Carmen Arriola Pablo, Defendants/Appellants\", \"name_abbreviation\": \"Sonoda v. Villagomez\", \"decision_date\": \"1993-09-15\", \"docket_number\": \"Appeal No. 92-034; Civil Action No. 90-1035\", \"first_page\": 34, \"last_page\": \"37\", \"citations\": \"4 N. Mar. I. 34\", \"volume\": \"4\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T19:50:59.956805+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ, Justice, and KOSACK and MACK, Special Judges.\", \"parties\": \"Jesus Ramon Arriola Sonoda, Plaintiff/Appellee, v. Maria Arriola Villagomez and Carmen Arriola Pablo, Defendants/Appellants.\", \"head_matter\": \"Jesus Ramon Arriola Sonoda, Plaintiff/Appellee, v. Maria Arriola Villagomez and Carmen Arriola Pablo, Defendants/Appellants.\\nAppeal No. 92-034\\nCivil Action No. 90-1035\\nSeptember 15, 1993\\nSubmitted on Briefs August 19, 1993\\nCounsel for appellants: James S. Brooks, Guam (Brooks & Brooks).\\nCounsel for appellee: Richard W. Pierce, Saipan.\\nBEFORE: VILLAGOMEZ, Justice, and KOSACK and MACK, Special Judges.\", \"word_count\": \"1644\", \"char_count\": \"9800\", \"text\": \"VILLAGOMEZ, Justice:\\nThe appellants, Maria Arriola Villagomez (\\\"Villagomez\\\") and Carmen Arriola Pablo (\\\"Pablo\\\"), appeal the trial court decision that the appellee, Jesus Arriola Sonoda (\\\"Sonoda\\\"), has acquired a roadway easement across Villagomez and Pablo's land by both implication and prescription. Villagomez and Pablo seek reversal of the court's decision on two grounds. First, the creation of an easement by implication failed because such an easement, once established, may not be relocated and, in this case, Sonoda relocated an established easement. Second, because Sonoda, in a letter to Pablo, sought Sonoda's permission to maintain power poles on her land, Sonoda admitted having no roadway easement and such admission warrants summary reversal of the trial court decision.\\nWe have jurisdiction over this matter pursuant to 1 CMC \\u00a7 3102(a). We find no error in the decision of the trial court and we affirm.\\nISSUES AND STANDARD OF REVIEW\\nThe appellants raise the following issues for our review:\\n1. Is Sonoda, the owner of Lot 1602, entitled to change the location of the access road to his lot [across] Lot 1879, which is owned by Villagomez and Pablo?\\n2. Once an easement of necessity is established, may it be unilaterally relocated by the owner of the dominant tenement?\\n3. Does the admission made by Sonoda in his letter to Villagomez and Pablo, which letter was admitted in evidence, warrant summary reversal of the judgment?\\nAppellants' Brief at 1. Each of the three issues raises a question of law which we review de novo. See, e.g., Deleon Guerrero v. Nabors, 4 N.M.I. 31, 33 (1993).\\nBACKGROUND\\nMiguel Lizama Arriola, grandfather of Villagomez and Pablo, was the original owner of adjoining Lots 1602 and 1879 prior to World War II. Today, Villagomez and Pablo own Lot 1879. Prior to the war, Miguel sold two hectares of Lot 1602 to Ana Arriola Benavente, Sonoda's mother. The land sold to Ana became landlocked in that it had no direct access to a public road. At that time, there was a road \\\"which may have\\\" provided access from a public thoroughfare to Lot 1602 and which did not cross over Lot 1879. In its memorandum decision, the trial court noted that there was \\\"no testimony or other evidence presented as [to] who used this other easement and for how long.\\\" It further stated: \\\"The Court viewed the general area in which this prior easement should have been but noted no present day indications of the existence of such an easement.\\\"\\nAfter World War II, the U.S. military used the area for military housing and built and paved part of the present-day roadway. Numerous maps and aerial photographs admitted into evidence, including an official map of Saipan, depict the existence of the current road now in dispute. The trial court noted that a disinterested witness used this roadway to gain access to the area (Lot 1602) around 1967 or 1968. This road is in a different location from the road that allegedly existed prior to World War II.\\nSonoda built his three-story house on Lot 1602 and had been using the current disputed roadway for access to his house until power poles and lines were installed along the roadway. Villagomez and Pablo objected to such installation. On April 26, 1990, Sonoda wrote to Pablo, in longhand, stating, in part:\\nWe've been trying to get in touch with you but\\nhaven't been succesful [sic], C.U.C. had informed me that you had filed a complaint regarding the power pole in your property.\\nI apologize for the intrusion but I also ask for your kind consideration to please allow me to keep the power pole in your lot. I have approached other people in the area and they refused for one reason or another. My last resort was your lot and since we are closely related, I took the liberty of assuming that you would not mind, especially since having power into the area would be of benefit to all. If I am wrong in this assumption then please forgive me.\\nIf you still insist that I remove the pole then what else can I do. All I ask is you give us a couple of weeks so I can search for ways to continue power connection to our house, especially since I have an ailing 85 year-old mother with us.\\nIn December 1990, Villagomez and Pablo dumped coral on the road, thereby blocking it. The blocking of the road led to the filing of this action in the Superior Court. Shortly thereafter, that court ordered Villagomez and Pablo to remove the coral and to not block the road. After finding that Sonoda had acquired an easement by both implication and prescription, it permanently enjoined Villagomez and Pablo from further obstructing the roadway. Villagomez and Pablo appeal from the trial court's decision.\\nDISCUSSION\\nVillagomez and Pablo argue that because the location of the easement was established before World War II, from the west boundary of Lot 1602 to a road running between Lots 1879 and 1880, Sonoda has no right to change the location of the easement without their consent. As a matter of law, this statement is generally correct. Once the location of an easement has clearly been established, the easement holder may not relocate such easement without either the consent of the owner of the servient estate, or by openly, continuously, and adversely using the newly-claimed easement area without interruption for a prescribed period.\\nIn the present case, as a matter of fact, the trial court did not find that an easement was established prior to World War II, or that Sonoda relocated such an ease ment. Rather, the trial court found that the present road is an easement under two separate rationales: easement by implication and easement by prescription. Neither form of easement depends upon the status of the preWorld War II road. The present road did not come into existence as a result of Sonoda changing the pre-war easement to a new location. It came into existence when the U.S. military built new and different roadways after the war. Therefore, while the appellants correctly state the law, it has no application to the facts as found by the trial court.\\nNext, Villagomez and Pablo argue that in order for Sonoda to establish an easement by necessity, he would have to show that there is \\\"strict necessity.\\\" However, because Sonoda could re-establish the road that existed prior to World War II, there could be no \\\"strict necessity\\\" to maintain the present roadway. Again, as a matter of law, Villagomez and Sonoda are correct in stating that if the old roadway were identifiable and could be re-established, that would be the preferred remedy. However, there is no evidence in the record regarding the current location of such a road, the current condition or ownership of the lands through which it passed, and whether or not it could be re-opened. Therefore, the facts are insufficient to support their legal argument. Furthermore, the trial court found that Sonoda acquired an easement not only by implication but also by prescription. And, where an easement is established by prescription, \\\"strict necessity\\\" is irrelevant.\\nThe third and final argument that Villagomez and Pablo raise is that because Sonoda admitted in his letter to Pablo that he could not maintain the power poles on Pablo's land without her consent, such admission \\\"readily supports a conclusion that Sonoda realized he was not entitled to the easement he claimed,\\\" citing Hair v. County of Monterey, 119 Cal. Rptr. 639 (Ct. App. 1975). However, Hair is not on point. In that case, the plaintiffs counsel wrote to the court and stated in part: \\\"In the case at Bench, I do not believe that we would be able to prove actual physical injury.\\\" Id., 119 Cal. Rptr. at 642. No such admission has been made to the court by Sonoda in this case. Additionally, the statement is irrelevant to whether or not there was an easement established for the purpose of Sonoda's access to a public thoroughfare. While the owner of an easement may maintain and repair that easement, the extent of an easement is fixed upon its creation. \\\"Every easement is a particular easement privileging the owner thereof to make particular use of a servient tenement. . . and the process which creates an easement necessarily fixes its extent.\\\" That Sonoda wrote for permission to maintain power poles on the easement is irrelevant to the existence of the roadway easement. Therefore, we find no error in the trial court's interpretation and disposition of the letter in evidence.\\nCONCLUSION\\nBased on the foregoing, we find no error in the trial court decision, and the decision is hereby AFFIRMED.\\nSee Sonoda v. Villagomez, Civ. No. 90-1035 (N.M.I. Super. Ct. Sept. 9, 1992) (Memorandum Decision at 3).\\nId. at 5.\\nId. at 3.\\nSee, e.g.. Restatement of Property [hereinafter Property] \\u00a7 457 & cmt. a (1944) (easement by prescription).\\n\\\"[T]he dominant and servient tenements were at one time owned by the same person, who conveyed a portion of Lot 1602 to plaintiffs predecessor in interest. Under such circumstances, an easement by implication arises.\\\" Sonoda, supra note 1, memorandum decision at 4.\\nEasement by \\\"necessity\\\" as used here is synonymous with easement by \\\"implication\\\"; the terms are interchangeable.\\nAn easement by prescription is created where \\\"for the period of prescription . the use is . . . adverse, and . . . continuous and uninterrupted.\\\" PROPERTY, supra note 4, \\u00a7 457.\\nSee id. \\u00a7 480-82, 485.\\nId. \\u00a7 482 cmt. a (emphasis added); see also id. \\u00a7 478 cmt. a.\"}"

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+"{\"id\": \"611040\", \"name\": \"In re Mercedita Feliciano, a Minor, In the Matter of the Estate of Larry Lee Hillblom, Deceased, Milagros Feliciano, individually, and as the Legal Guardian for Mercedita Feliciano, Petitioner, v. Commonwealth Superior Court, Respondent\", \"name_abbreviation\": \"Feliciano v. Commonwealth Superior Court\", \"decision_date\": \"1999-02-04\", \"docket_number\": \"Original Action No. 98-006; Civil Action Nos. 95-626 & 96-1337\", \"first_page\": 211, \"last_page\": \"219\", \"citations\": \"5 N. Mar. I. 211\", \"volume\": \"5\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T18:12:02.159054+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: DEMAPAN, Associate Justice, TAYLOR and LAMORENA, Justices Pro Tern.\", \"parties\": \"In re Mercedita Feliciano, a Minor, In the Matter of the Estate of Larry Lee Hillblom, Deceased, Milagros Feliciano, individually, and as the Legal Guardian for Mercedita Feliciano, Petitioner, v. Commonwealth Superior Court, Respondent.\", \"head_matter\": \"In re Mercedita Feliciano, a Minor, In the Matter of the Estate of Larry Lee Hillblom, Deceased, Milagros Feliciano, individually, and as the Legal Guardian for Mercedita Feliciano, Petitioner, v. Commonwealth Superior Court, Respondent.\\nOriginal Action No. 98-006\\nCivil Action Nos. 95-626 & 96-1337\\nFebruary 4, 1999\\nArgued and Submitted January 13, 1999\\nCounsel for petitioner: Michael W. Dotts, Saipan.\\nCounsel for respondent: Jack W. Londen, San Francisco, CA. (Morrison & Foerster) and Charles R. Rotbart, Saipan.\\nBefore: DEMAPAN, Associate Justice, TAYLOR and LAMORENA, Justices Pro Tern.\", \"word_count\": \"5800\", \"char_count\": \"35983\", \"text\": \"PER CURIAM:\\nWe are asked by petitioners to issue a writ of prohibition against the Superior Court denying the motions regarding actions taken against Milagros Feliciano (\\\"Milagros\\\"). The petitioners ask us to allow the O'Connor, Berman, Dotts & Banes Firm (\\\"the O'Connor firm\\\") and Manuel Teehankee (\\\"Teehankee\\\") to represent Milagros in her capacity as guardian for Mercedita Feliciano (\\\"Mercedita\\\"). We are further asked to direct the Superior Court to start the proceedings that led up to the reference to the Special Master with O'Connor and Teehankee as counsel. We deny the petition in its entirety.\\nJURISDICTION AND STANDARD OF REVIEW FOR ISSUANCE OF A WRIT\\n; We have jurisdiction over extraordinary writs pursuant to our general supervisory powers codified at 1 CMC \\u00a7 3102(b). Taimanao v. Superior Court, 4 N.M.I. 94 (1994); see also Tenorio v. Superior Court, 1 N.M.I. 1, 7 (1989).\\n\\u00b63 A writ of prohibition is a drastic remedy that will not be granted except to confine an inferior court to the exercise of its prescribed jurisdiction. Tenoriov. Superior Court, 1 N.M.I. 1 (1989). In determining whether to issue a writ, we are guided by the five factors set out in Tenorio.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b64 Mercedita, born on December 22,1995, is a Qualified Heir Claimant (\\\"QHC\\\") to the Hillblom Estate. Milagros is Mercedita's grandmother and guardian ad litem.\\nFrom November 1996 until the present, attorney Charles Rotbart (\\\"Rotbart\\\") has represented Milagros in her capacity as guardian ad litem for Mercedita. Rotbart is also currently representing attorney Perry B. Inos (\\\"Inos\\\"), co-guardian ad litem to Mercedita. Milagros is currently represented by three other attorneys, Antonio Atalig (\\\"Atalig\\\"), Teehankee and Jerome Leitner (\\\"Leitner\\\").\\n\\u00b65 On December 17, 1997, the CNMI Probate Court approved a Settlement Agreement for a share in the Estate of Larry Hillblom reached by the major claimants to the Estate: the Trust and the pretermitted heirs. Mercedita has established a presumption that she is a Qualified Heir Claimant entitling her to receive 15% of the net distributable estate. The probate proceedings have continued since 1997, the year of the settlement, and are expected to continue through at least this year.\\n\\u00b66 On October 15, 1998, the CNMI Probate Court conducted a hearing on estate administration matters and an in camera hearing to address issues relating to QHC Mercedita.\\n\\u00b67 On October 19,1998, the CNMI Probate Court issued an Order Regarding Executor's Ex Parte Petition for Expedited Hearing and Instructions Regarding Guardianship Proceedings and Petition. The Probate Court issued other orders on October 19 that were directed to all Qualified Heir Claimants: an Order to Show Cause Why Services Payments and Interim Payments ShouIdNot Be Suspended or Repaid; an Order Appointing Special Master; and an Order Regarding Inclusion of Executor in Aid of Probate Court Jurisdiction.\\n\\u00b68 On November 12, 1998, the Probate and Guardianship Courts issued a joint order appointing the Special Master to report to both courts on the six issues enumerated in the October 19 Special Master Order. On November 13, 1998, pursuant to the mandate of the Executor Inclusion Order, the Executor moved for a hearing regarding QHC Feliciano's Interim Payments Accounting, filed on October 28,1998. In that motion the Executor outlined deficiencies in the accounting that were to be provided by the reporting obligations of the March 9, May 6, and October 19 orders. The Executor sought the appointment of an emergency guardian residing in the Commonwealth until a full hearing could be conducted.\\n\\u00b69 On November 17, 1998, Milagros moved for the appointment of Fausto R. Preysler Jr. as co-guardian ad litem. On the same day the Probate Court and Guardianship Court jointly issued a \\\"Special Emergency Reference to Special Master\\\" authorizing and directing Special Master Rexford C. Kosack to investigate and report on issues relating to Mercedita and her guardian ad litem, Milagros. The court concurrently issued a sua sponte appointment of Inos as Mercedita's emergency temporary co-guardian ad litem.\\n\\u00b610 On November 18,1998, Milagros appeared with off-island attorney Teehankee and local attorney Michael Dotts (\\\"Dotts\\\"), both seeking permission to participate in the hearing as counsel for Milagros in her capacity as guardian ad litem and to substitute Teehankee for Rotbart as lead counsel for Milagros. The Special Master denied the oral motion to substitute, directed Milagros to file a formal motion seeking a substitution from the court. Teehankee, Dotts and Preysler were denied participation in the proceedings unless the Commonwealth courts expressly permitted participation. The Special Master ordered a medical examination of Mercedita and issued a standing order of confidentiality governing all proceedings concerning QHC Mercedita.\\n\\u00b611 On November 19, 1998, Inos filed an Ex Parte Emergency for Approval of Retention of Counsel motion to retain Rotbart as counsel. This motion to retain counsel of record was joined the next day by The Barde of Saipan as Executor of the Estate. Inos stated he believed it was not in the best interest of Mercedita to terminate Rotbart as counsel.\\n\\u00b612 On November 20, 1998, Milagros moved for a substitution of counsel. The motion sought to dismiss Rotbart and to retain Teehankee along with attorneys Dotts and O'Connor of the O'Connor firm and Atalig, as local counsel. Atalig also filed an application for Teehankee to appear pro hac vice. Milagros also filed papers seeking to have the motion to substitute heard on shortened time. The motions were signed by O'Connor and Teehankee.\\n\\u00b613 The Executor opposed the substitution of Teehankee and joined Inos' retention motion. The court issued an order which (1) ordered the attendance of Milagros, Mercedes, and Mercedita at the scheduled hearing on November 27, 1998; (2) suspended the pro hac vice admission of Teehankee until the November 27, 1998 hearing; (3) held Rotbart in contempt for failing to have his clients appear pursuant to the October 19,1998, order; (4) ordered a special hearing in the attorney retention and substitution motions on November 24, 1998; and (5) ordered the confidentiality of all proceedings. In the Matter of the Estate of Larry Lee Hillblom, No. 96-0626 (N.M.I. Super. Ct. Nov. 23, 1998) (Corrected and Amended Order).\\n\\u00b614 At the November 24, 1998, hearing, the court issued its written order denying the motion to substitute counsel for Mercedita and the motion to amend the Special Emergency Reference. In re Mercedita Feliciano, a Minor, No 96-1337 (N.M.I Super. Ct. Nov. 27, 1998) (Order Denying Motion to Substitute Counsel). The court determined that substitution of counsel was not in the best interest of QHC Feliciano, although the court specifically approved of the representation by Teehankee, through local counsel Atalig for Milagros in her individual capacity in the Special Master proceedings. Id. The Motion to Substitute Counsel was denied on a number of grounds. Id. Inos's motion for retention of Rotbart as counsel for QHC Feliciano was granted. Id. Teehankee was later joined in his representation of Milagros by off-island counsel Leitner.\\n\\u00b615 On November 30, 1998, Rotbart filed a motion to withdraw as counsel of record for Milagros. Through this motion, Rotbart intended to disassociate himself from the co-guardian ad litem Milagros while continuing to represent QHC Feliciano through co-guardian ad litem Inos. On January 6, 1999, the trial court issued an order denying the motion for stay, and motions to disqualify, and for Rotbart to withdraw as counsel.\\n\\u00b616 On December 1, 1998, the trial court issued an order pursuant to the November 27, 1998, hearing stating that: (1) the attendance requirement of the Felicianos was satisfied; (2) interim payments would be made by the Executor to Inos, to be placed in a trust account and distributed by Inos upon his own discretion in the best interest of QHC Feliciano, after consultation with Milagros Feliciano; (3) the contempt finding against Rotbart was vacated; and (4) the suspension of Teehankee's pro hac vice was lifted to permit him to represent Milagros in her individual capacity. The Court again ordered that all proceedings and communications in the matter be confidential, under seal and to be served only upon the Special Master, the Executor, Rotbart for QHC Feliciano and Atalig as local counsel for Teehankee, in his role as attorney for Milagros.\\n\\u00b617 On December 11, 1998, Milagros with her local counsel Atalig filed with the trial court a Motion to Disqualify Counsel seeking to remove Rotbart from representing QHC Feliciano through co-guardian ad litem Inos.\\n\\u00b618 On January 6, 1999, \\\"based upon the need to responsibly manage proceedings and upon inadequate arguments\\\" the trial court denied the motion to withdraw as counsel filed by Rotbart and the motion to disqualify counsel filed by Milagros. The court granted leave to resubmit upon submission of findings by the Special Master. In re Mercedita Feliciano, a Minor, No. 96-1337 (N.M.I. Sup. Ct. Jan 6, 1999) (Order Denying Motion For Stay; Motions to Disqualify and to Withdraw as Counsel).\\n\\u00b619 Based on these orders, petitioners timely filed this writ of mandamus.\\nANALYSIS\\nI. Extraordinary Writs in General\\n\\u00b620 Before addressing the grounds asserted for issuance of the writ requested, we need to first examine this Court's jurisdictional basis for entertaining any petition for issuance of extraordinary writs. 1 CMC \\u00a7 3102(b) provides as follows:\\nThe Supreme Court has original jurisdiction but not exclusive jurisdiction to issue writs of mandamus . . . and all other writs or orders necessary and appropriate to the full exercise of its appellate and supervisory jurisdiction.\\n\\u00b621 Like the federal All Writs Statute of 28 U.S.C. \\u00a7 1651, authorizing federal appellate courts to issue writs, our all writs statute authorizes this Court to issue any writ necessary in aid of its appellate jurisdiction. Tenorio v. Superior Court, 1 N.M.I. at 6-7.\\n\\u00b622 The United States Supreme Court has given general guidance on when we may issue writs:\\nThe traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.\\nAmerican Fidelity Fire Insurance Co. v. United States District Court for the Northern District of California, 538 F.2d 1371, 1374 (9th Cir. 1976).\\n\\u00b623 The issue before us should not be whether the district court was in error, but whether the disqualification issue was so far afield that a writ of mandamus, rather than appeal, is a permissible method of review. In establishing the general rule that only final judgments are reviewable, the Unites Stated Congress contemplated that some individual convenience would be sacrificed for the greater overall effectiveness and efficiency of the appellate process. American Fidelity, 538 F.2d at 1376; see also Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L. Ed. 1185 (1943). Even though we have power to grant the writ, the power is discretionary and wisdom dictates a thorough examination of all the facts to be sure the issuance is appropriate. Id.\\n\\u00b624 In an ordinary civil case, an order either disqualifying or refusing to disqualify a law firm is not appealable when entered, because it is not deemed \\\"final\\\" within the meaning of 28 U.S.C. \\u00a7 1291, which governs the appeal of such cases. The party complaining about the order must wait until there is final judgment. Develieg Inc. v. Devleig-Bnllard, Inc., 56 F.3d 32, 33 (7th Cir. 1995); see also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985). In orders denying disqualification motions, pointing to the frequent use of such appeals as tools for harassment and delay, courts have overruled prior decision and have held denial orders as non-appealable. In re Continental Inv. Corp., 637 F.2d 1,5 (1st Cir. 1980). \\\"[E]ven were a particular disqualification motion to raise important questions of law, no interlocutory appeal would lie from the denial of such a motion in the absence of showing that irreparable harm might otherwise result.\\\" Id., at 7. Only \\\"in the exceptional case, the movant may petition this court for a writ of mandamus.\\\" Id.\\n\\u00b625 The Ninth Circuit has a finality rule intended to save time and resources, both ours and the parties. In re Stanton, 766 F.2d 1283, 1287 (9th Cir. 1985), see also In re Martinez, 721 F.2d 262, 2625 (9th Cir. 1983). An appellate process will likely be much shorter if we decline jurisdiction and await \\\"ultimate review on all combined issues.\\\" In re Stanton, 766 F.2d at 1288. Prudent appellate procedure requires that we do not sever some issues that we can decide from those that we cannot decide. Instead we should take a case as a whole whenever possible. Id.\\n\\u00b626 There are dangers to unprincipled use of peremptory writs, as for example, the possibility that its use would be an impermissible alternative to the normal appellate process. Tenorio, 1 N.M.I. at 8. Its abuse could operate to undermine the mutual respect generally existing between trial and appellate courts. Id. \\\"While a function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal, it may not appropriately be used merely as a substitute for the appeal procedure prescribed by the statute.\\\" American Fidelity, 538 F.2d at 1374; see also Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L. Ed. 1185 (1943).\\n\\u00b627 Courts traditionally have not considered remands final decisions because of the policy disfavoring piecemeal appeals. In re Stanton, 166 F.2d at 1287. The policy against piecemeal appeals is frustrated in the very case before us.\\nII. The Petition Fails to Meet the Burden Necessary to Justify the Extraordinary Relief Requested\\n\\u00b628 A petition for a writ of prohibition or mandamus is a drastic remedy which should be exercised only in extraordinary situations, that only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy. Tenorio, 1 N.M.I. at 9. There are dangers to an unprincipled use of peremptory writs, as for example, the possibility that its use would be an impermissible alternative to the normal appellate process. Its abuse could operate to undermine the mutual respect generally existing between trial and appellate courts. Id. at 8. A petition seeking such a writ is judged according to five guidelines set out in Tenorio, Id. at 4.\\n\\u00b629 We hold that the petitioner fails to establish the presence here of any of the five Tenorio factors to warrant the extraordinary relief requested for a ruling in their favor, as explained fully below.\\nA. The Party Seeking the Writ Has No Other Adequate Means, Such as Direct Appeal, to Attain the Relief Desired\\n\\u00b630 A denial of a motion to substitute counsel is reviewed after trial is complete and a final judgment is entered on the merits. Olopai v. Hillblom, 3 N.M.I. 528, 533 (1993). Milagros argues that if the O'Connor firm is not allowed an appearance then she is shut out of her only chance at a fair hearing. Milagros has an adequate remedy of appeal, after judgment is final, during which time she may challenge the order as erroneously granted.\\nB. The Petitioner Will Be Damaged or Prejudiced In A Way Not Correctable On Appeal\\n\\u00b631 Milagros argues the threatened harm is personal and she is forced to proceed without counsel of her choice. Milagros claims she will suffer the personal harm of standing trial all alone. The very order from the Superior Court approves of Milagros' continuing representation in her individual capacity by counsel of her own choosing throughout the special master proceedings. Milagros is currently represented in her personal capacity by her lead attorneys of choice Teehankee and Leitner together with her local counsel of choice Atalig. There has been no suggestion that these individual counselors are in any way incompetent to protect her interests. Milagros is free to hire a different counsel who has no conflict in the case to represent her.\\nC. The Lower Court's Order is Not Clearly Erroneous as a Matter of Law\\n\\u00b632 The Superior Court's order is not clearly erroneous for the reason's that we set forth below.\\nThe fourth Tenorio factor, that the lower court's order is an oft-repeated error, or manifests a persistent disregard of applicable rules and the fifth factor that the lower court's order raises new and important problems, or issues of law of first impression will not be addressed as they are irrelevant to the present motion.\\nIII. The Superior Court's Decision to Deny the Motion to Substitute the O'Connor Firm Is Not Erroneous\\n\\u00b633 The proposed substitution of the O'Connor firm and Atalig as local counsel along with Teehankee as counsel for QHC Mercedita in place of counsel of record Rotbart. The trial court's decision included the determination that the O'Connor firm possessed conflicts that would prevent its representation of Milagros of QHC Mercedita in the proceedings.\\nA. Milagros Received Full Due Process in Connection with her Motion to Substitute Counsel\\n\\u00b634 Milagros argues in support of the petition, that her due process rights were violated by the denial of the motion to substitute the O'Connor firm to represent Milagros in her capacity as guardian ad litem.\\n\\u00b635 The Due Process clause of the Fourteenth Amendment to the U.S. Constitution, as well as the Commonwealth Constitution, ensures certain procedural safeguards protecting individual's rights. Due process requires that a party be provided with notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 70 S. Ct. 652, 339 U.S. 306, 314, 94 L. Ed. 865 (1950). Milagros had adequate notice and an opportunity to be heard in respect to the motion to substitute counsel. Milagros herself filed the motion to substitute and requested that the matter be heard on shortened time. Milagros was personally present and represented by counsel at the hearing for the motion. The Superior Court in it's order stated it considered declarations filed by Milagros after the deadline for their submission. In re Mercedita Feliciano, No. 96-1337 (N.M.I. Super. Ct.Nov. 27, 1998) (Order Denying Motion to Substitute Counsel at 2).\\n\\u00b636 Milagros continues to have a right to counsel, but not to conflicted counsel. Milagros' due process rights were not violated. No order from the trial court has precluded Milagros from retaining counsel. The trial court expressly approves of Milagros continuing representation in her individual capacity by counsel of choice Teehankee and Atalig.\\nB. The Superior Court Properly Found the Milagros Attempted Substitution for Counsel was Inappropriate\\n\\u00b637 Petitioners contend the trial court was erroneous in disqualifying Dotts and Teehankee for their potential representation of Milagros as guardian ad litem. We find no such error.\\n\\u00b638 Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. Comden v. Superior Court, 20 Cal. 3d 906, 969 (1978). In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. Bullis v. Security Pac. Nat. Bank, 21 Cal.3d 801, 805 (1978).\\n1. Milagros Failed to Demonstrate that Substitution of Counsel Was in the Best Interest of Mercedita Feliciano\\n\\u00b639 The court has a duty to protect the rights of the minor. Berry v. Chaplin, 74 Cal. App. 2d 652, 657; 169 P.2d 442, 447 (1946). In effect, the court is the guardian and the guardian ad litem is an officer and agent of the court who appointed him. Id.; see also Sarracino v. Superior Court, 13 Cal. 3d 1, 13 (1974); (A guardian ad litem is appointed by the court, remains at all times an officer of the court. Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9thCir. 1978)). It is the duty ofthe guardian and the attorney to protect the rights of the minor, and it is the duty of the court to see that such rights are protected. Id.; see also In re Christina B, 19 Cal. App. 4th 1441 (1993).\\n\\u00b640 Whether a guardian ad litem is competent may be determined at any stage of the court proceedings and is subject to the continuing discretion and approval of the court. Fong Sik Leung v. Dulles, 226 F.2d 74,82 (9th Cir. 1955). Similarly, attorneys representing the interests of the minor must be approved by and are subj ect to the same exercise of discretionary supervision by the court. Torres v. Freidman, 169 Cal. App. 3d 880 (1985).\\n\\u00b641 In the instant case, the Court is concerned with what is in the best interest of Mercedita. Because the court has a duty to see that the minor's rights are not unfairly compromised by those appointed to represent [her], a California appellate court held that an attorney must obtain court approval prior to withdrawal as attorney of record for a minor appearing through a guardian ad litem. Torres v. Freidman, 169 Cal. App. 3d 880,888 (1985). The consent of the guardian ad litem is insufficientto execute withdrawal of counsel without court approval.\\n\\u00b642 The need for court approval of an attorney's withdrawal from representation of a minor who appears through a guardian ad litem is apparent from the circumstances of this case. The guardian ad litem here tried to terminate the services of Rotbart and to retain the services of Teehankee, Atalig, and the O'Connor firm by circumventing the Superior Court's authority. The Special Master ordered Milagros to apply to the Superior Court for a motion to substitute. The Superior Court has referred to the Special Master for issues involving the compliance of court orders involving the guardian and the guardian ad litem's performances. Motions to substitute or withdraw as counsel for a guardian are left to the exercise of the judge's discretion. Torres v. Friedman, 169 Cal. App. 3d 880, 888 (1985).\\n\\u00b643 The courts' duties are to Mercedita. Absent from the motion to substitute was the showing that the substitution would be in Mercedita's rather than in Milagros' best interest. Because Mercedita is a minor and lacks capacity to ensure that her agents and fiduciaries are complying with their obligations, the lower court has the power and the on-going duty to monitor the fiduciaries appointment to represent the child's best interest.\\n2. Numerous Conflicts with the O'Connor Firm and Teehankee\\n\\u00b644 The Superior Court was correct in denying the substitution of counsel because the O'Connor firm and Teehankee have numerous conflicts of interest which would prevent them from representing Milagros as guardian ad litem. The relevant test for disqualification is whether the former representation is \\\"substantially related\\\" to the current representation. Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980). The ethical rules applicable the CNMI are the substantial relationship test:\\nA lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interest's are materially adverse to the interests of the former client unless the former client consents after consultation.\\nA.B.A. Model Rules of Professional Conduct, Rule 1.9(a). Attorneys may not represent a client in any other matter that threatens the use of a former client's confidences. Sheffield v. State Bar of California, 22 Cal. 2d 627, 630 (1943).\\n\\u00b645 If the existence of a substantial relationship between the two representations is established, the court will conclusively presume that the attorney possesses confidential information adverse to the former client and order disqualification. Henriksen v. Great American Savings and Loan, 11 Cal. App. 4th 109, 114 (1992). The Superior Court did not abuse its discretion in finding the Dotts and Teehankee's proposed representation of Milagros as guardian ad litem would have been substantially related to their prior representation of the Executor.\\na. O'Connor Firm's Attorney-Client and Fiduciary Obligations to the Estate's Assets\\nThe determination that the O'Connor firm should be disqualified rests upon notorious conflicts that are a matter of record. Dotts and O'Connor had represented Hillblom in his life time in connection with a number of assets in the Estate. Among other contacts, Dotts was Hillblom's agent and attorney in fact, and managed Hillblom's business affairs in Saipan during Hillblom's absence from Saipan. O'Connor was personally involved in connection with Hillblom's businesses. Dotts and O'Connor both represented Hillblom during his lifetime and, by participating in representation, have continuing obligations to the Estate, through the Executor. They have the obligation to guard Hillblom's client confidences and not to represent parties adverse to the Estate in connection with the Estate. The legal rights Hillblom could have asserted during his life continue after his death through the Executor.\\nb. The Nocasa Representation\\n\\u00b646 The most obvious \\\"substantial relationship\\\" demanding disqualification is that the O'Connor firm represents Josephine Nocasa (\\\"Nocasa\\\") in obtaining a settlement of claim against the Hillblom Estate. In September 1995, Nocasa filed a claim against the Estate alleging that she was a pretermitted common-law spouse, entitled to 50% of the Estate. Nocasa's claim, as that of a common-law wife, could potentially entitle her to half the estate. The O'Connor firm continues to represent Nocasa while she waits to be paid.\\n\\u00b647 The representation of Nocasa in her claim against the Estate is directly adverse to the interests of Mercedita in the same proceeding. Mercedita and Nocasa could have potential claims against one another if the settlement agreements are set aside. In such a contentious case, we do not find this solely as conjecture, but a distinct possibility which Mercedita must be protected against. We agree with the trial court that the existence of separate settlement agreements with the Executor is not enough to overcome that conflict.\\nc. Teehankee Conflicts of Interest\\n\\u00b648 Teehankee also has conflicts of interests with the Executor. Both of the firms Teehankee is associated with, LeBoeuf, Lamb, Green & MacRae and the Romulo Mabanta Buenaventura Sayoc & DeLos Angeles firms, have previously represented the Executor in the same matter. As the Superior Court noticed on Teehankee's application to proceed pro hac vice, he described himself as \\\"international counsel to the firm of Romulo Mabanta Buenaventura Sayoc & DeLos Angeles and as of counsel/Asia adviser to the firm of LeBoeuf, Lamb, Green & MacRae.\\\" In re Mercedita Feliciano, a minor, No. 96-1337 (N.M.I. Super. Ct. Nov. 27, 1998) (Order Denying Motion to Substitute Counsel). The Superior Court correctly found that Teehankee's proposed representation of Milagros as guardian ad litem would be substantially related to his firm's prior representation of the Executor. We find the Superior Court did not err in concluding that the current proposed representation shared common factual and legal issues involved with the former representations.\\n3. Conflicts Disqualifying a Law Firm\\n\\u00b649 There is no dispute for this Court that in the Nocasa representation, O'Connor acquired confidential information regarding the representation. The representation has tainted the O'Connor firm. The Superior Court did not err by failing to instruct on implementing appropriate screening measures for O'Connor's firm to avoid conflicts given the plethora of conflicts that already justified disqualification.\\n\\u00b650 The cases presented to this court to allow screening measures were cases that enabled a firm to represent a current client by screening members of that firm who had previously worked on cases in conflict. Here, the conflicts presented by Teehankee, Dotts and the O'Connor firm all relate to the same matter, the Hillblom Estate. The conflicts are substantial and are not speculative but substantial and justify disqualification of the entire firm.\\n\\u00b651 The attorneys in the law firm of one who is disqualified from representing a client are also vicariously disqualified. The vicarious disqualification principle is set forth in our ethical rules, \\\"[wjhile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing along would be prohibited from doing so\\\". A.B.A. Model Rules of Professional Conduct, Rule 1.10(a). When a lawyer is required to decline employment or is disqualified by a conflict of interest, disqualification is imputed to the entire firm. Allen v. Academic Games Leagues of America, Inc., 831 F. Supp. 785, 790 (C.D. Cal. 1993). This is especially true where the attorney's disqualification is due to his prior representation of the opposing side during the same lawsuit. Henriksen, 11 Cal. App. 4th at 115.\\n4. Waivers\\n\\u00b652 Where the two matters involve the same factual context and legal questions, a substantial relationship exists, and the attorney cannot proceed with out a written waiver from both clients. H.F. Ahmanson & Co. v. Salomon Bros., Inc., 229 Cal. App. 3d 1445 (1991). Nocasa has consented to the O'Connor film representing both herself and the Felicianos. Dotts and O'Connor's waivers from clients other than the Estate did not cure ' their conflicts with the Executor or with Mercedita's interests as Distributee of the Estate. We consider it is the non-delegable responsibility of the court to obtain the adherence of its bar to proper ethical standards in the management of cases before it. Kesselhaut v. United States, 555 F.2d 791, 794 (1977). Accordingly the consent of the adverse party would not necessarily compel our assent to a flagrant conflict of interest. Id.\\nCONCLUSION\\n\\u00b653 The parties have called to our attention to various assertions relating to the issues. The Superior Court properly denied the motion to substitute counsel. The writ of mandamus did not meet the criteria set out in Tenorio v. Superior Court, supra. Accordingly, the petition for a Writ of Prohibition is DENIED.\\nThe Court will address additional orders and concerns we have relating to this case.\\n1. Unseal the Proceedings\\n\\u00b654 We ORDER all proceedings at the trial court and special master level to be open and unsealed. Any party affected may seek an order of the Superior Court to seal or conduct closed hearings permitted by statute or court rules that are in the best interest of a particular minor child.\\n2. Ex Parte Communications\\n\\u00b655 Except for good cause, all counsel, officers of the court and parties shall not make ex parte communications with the court and the special master.\\n3. Costs\\n\\u00b656 Counsel is hereby placed on NOTICE that the court is concerned that the other potential \\\"heirs\\\" and distributees are incurring costs by proceedings such as this.\\n4. Interlocutory Appeals\\n\\u00b657 It is further ORDERED that no more interlocutory appeals be filed without permission of this court.\\n5. Ex Parte Applications\\n\\u00b658 It is further ORDERED that no ex parte orders shall be issued unless 24 hours notice is given to all parties of the proposed orders and a hearing set within ten days.\\n\\u00b659 Except for good cause shown, all applications for ex parte orders shall be heard in open court. Such applications shall be accompanied by a declaration containing the following.\\n1. Name of counsel of the opposing party, if known:\\n2. Who opposes the application; and\\n3. Which counsel or parties have expressed an intention to be present at the time the application will be presented to the court.\\n\\u00b660 Parties should be given the opportunity to object or agree to the proposed ex parte orders. An ex parte order issued henceforth shall be a temporary order subject to the hearing within 10 days to make the temporary-order a final order.\\n6. Attorney Rotbart is Excused\\n\\u00b661 Attorney Rotbart is in conflict and is hereby EXCUSED from further participation in this matter. Attorney Rotbart is disqualified because he is in conflict with Milagros, the guardian ad litem. Rotbart has used the confidences gained in his representation of Milagros against Milagros. Milagros, as guardian ad litem, is free to choose another attorney who is not in conflict. Milagros terminated Rotbart as counsel. Rotbart petitioned to be let go as counsel. The termination of Rotbart effectively allows Rotbart as former and current counsel to use all that he learned from representing Milagros against her when his new client, the interim co guardian ad litem Inos, participates in proceedings involving guardian ad litem Milagros. Rotbart aligning himself against Milagros and then disclosing privileged communications to her detriment would be a violation of Rotbart's fiduciary obligations to his client Milagros.\\n7. Inos is Excused\\n\\u00b662 Finally, attorney Perry Inos is hereby EXCUSED from further participation from this case on the basis that Milagros is presently the continuing guardian ad litem for the minor child Mercedita Feliciano.\\nPetitioners also ask the courts to (1) unseal everything relating to guardianship proceedings; (2) to deny the Executor from participating in the guardianship proceedings; and (3) to not allow attorney Charles Rotbart to represent the interim co-guardian ad litem.\\nThese five factors are:\\n1. The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired;\\n2. The petitioner will be damaged or prejudiced in a way not correctable on appeal;\\n3. The lower court's order is clearly erroneous as a matter of law;\\n4. The lower court's order is an oft-repeated error, or manifests a persistent disregard of applicable rules; and\\n5. The lower court's order raises new and important problems, or issues of law of first impression.\\nTenorio v. Superior Court, 1 N.M.I. 1 (1989); see also Commonwealth v. Superior Court, 1 N.M.I. 287, 294-95 (1990).\\nBy its October 19, 1998, Order Regarding Inclusion of Executor in Aid of Probate Court Jurisdiction, the Probate Court has ordered the Executor to participate in Guardianship matters in furtherance of the Executor's duties pursuant to Com. R. Civ. P. 10 and 12. The Executor has also been instructed to participate in the Special Master Proceedings by references jointly issued on November 11 and 17, 1998.\\nThe CNMI enacted the A.B.A. Model Rules of Professional Conduct as adopted by the American Bar Association in September 30, 1989. Com. Disc. R. 2\\nPetitioners cite to Torres v. Tenorio, 1997 MP 2 \\u00b6 15, 5 N.M.I. 46, to stand for attorney's disqualification as \\\"too drastic\\\"; however this Court specifically referenced the particular facts of that case. The attorney in question had already been serving as counsel, and not trying to get on as counsel.\\nPetitioner cites to Kesselhaut v. United States, 555 F.2d. 791 (1977) that the Kesselhaut's court's endorsement of the ABA Ethic's Committee's Formal Opinion reflects a \\\"rational reluctance to deprive clients of representation by large firms in a large proportion of cases.\\\" However as the court went on the say \\\"[e]ach case depends on its own merits\\\". The present case can be distinguished on its merits as we are not dealing with a large law firm.\"}"

n_mar_i/611044.json

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+"{\"id\": \"611044\", \"name\": \"Commonwealth of the Northern Mariana Islands, Prosecution/Appellee, v. Jose L. Itibus, Defendant/Appellant\", \"name_abbreviation\": \"Commonwealth v. Itibus\", \"decision_date\": \"1997-06-27\", \"docket_number\": \"Appeal No. 95-034; Criminal Case No. 95-0120(F)\", \"first_page\": 78, \"last_page\": \"80\", \"citations\": \"5 N. Mar. I. 78\", \"volume\": \"5\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T18:12:02.159054+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: TAYLOR, Chief Justice, VILLAGOMEZ and ATALIG, Associate Justices.\", \"parties\": \"Commonwealth of the Northern Mariana Islands, Prosecution/Appellee, v. Jose L. Itibus, Defendant/Appellant.\", \"head_matter\": \"Commonwealth of the Northern Mariana Islands, Prosecution/Appellee, v. Jose L. Itibus, Defendant/Appellant.\\nAppeal No. 95-034\\nCriminal Case No. 95-0120(F)\\nJune 27, 1997\\nSubmitted on the Briefs March 10, 1997\\nCounsel for Appellant: Brien Sers Nicholas, Saipan.\\nCounsel for Appellee: Loren A. Sutton, Deputy Attorney General, Saipan.\\nBEFORE: TAYLOR, Chief Justice, VILLAGOMEZ and ATALIG, Associate Justices.\", \"word_count\": \"1711\", \"char_count\": \"10419\", \"text\": \"TAYLOR, Chief Justice:\\n\\u00b61 Appellant, Jose L. Itibus (\\\"Itibus\\\"), appeals the 6 CMC \\u00a7 4113 condition of Suspension of Imposition of Sentence set by the Superior Court following bench trial guilty verdicts of three counts of assault and battery, in violation of 6 CMC \\u00a7 1202. We have jurisdiction pursuant to 1 CMC \\u00a7 3102(a). We remand the case to the Superior Court for reconsideration of the community work service order.\\nISSUE PRESENTED AND STANDARD OF REVIEW\\n\\u00b62 The issue before us is whether the Superior Court may require a defendant to be incarcerated as a condition of his suspended imposition of sentence pursuant to 6 CMC \\u00a7 4113(a). The legality of a condition of suspended imposition of sentence is a question of law which we review de novo. Commonwealth v. Sab\\u00edan, 1996 MP 22 \\u00b62, 5 N.M.I. 43.\\nFACTS AND PROCEDURAL BACKGROUND\\n\\u00b63 On August 31, 1995, following a bench trial, Itibus was found guilty of three counts of assault and battery, in violations of 6 CMC \\u00a7 1202.\\nOn October 19, 1995, the Superior Court suspended the imposition of Itibus' sentence pursuant to 6 CMC \\u00a7 4113. As one of the terms and conditions of Itibus' suspended imposition of sentence, he was placed on \\\"supervised\\\" probation for a one year six month period and was ordered to serve 600 hours of detention on the weekends at the Department of Corrections, Department of Public Safety. Itibus timely appealed.\\nANALYSIS\\n\\u00b64 Itibus contends that his suspended imposition of sentence is illegal because he cannot be required to serve any incarceration time as a condition of his probation under the Probation and Suspension of Imposition of Sentence statute of 6 CMC \\u00a7 4113.\\n\\u00b65 Section 4113(a) of Title 6 of the Commonwealth Code states in its entirety:\\n(a) Upon entering a judgment of conviction of any offense not punishable by life imprisonment, the court, when satisfied that the ends of justice and the best interests of the public as well as the defendant will be served, may suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence which may be imposed, and upon the terms and conditions which the court determines, and shall place the person on probation, under the charge and supervision of a probation officer or any other person designated by the court, during the suspension (emphasis added).\\nItibus asserts that 6 CMC \\u00a7 4113(a), by its own wording, gives the trial court the discretion to suspend the imposition of his sentence, by placing him on probation and not incarceration, if the court determines that the ends of justice and the best interests of the public as well as his interests will be served. We disagree.\\n\\u00b66 We begin our analysis of \\u00a7 4113(a) by looking at the language of the statute itself. Commonwealth Ports Auth. v. Hakubotan Saipan Enter. Inc., 2 N.M.I. 212, 221 (1991). Unless the statute provides otherwise, the courts should adhere to the rule that words be given their plain meaning. Id., Nansay Micronesia Corp. v. Govendo, 3 N.M.I. 12, 16 (1992). Accordingto6CMC\\u00a74U3(a),the Superior Court may suspend the imposition of sentence \\\"upon the terms and conditions which the court determines\\\" (emphasis added). Although the statute is silent as to whether or not incarceration is a permissible condition, the statute specifically authorized the court to determine the terms and conditions of the suspension. Interpreting the statue for its plain meaning, therefore, we hold that the sentencing judge has the discretion to impose incarceration as one of the conditions of a \\u00a7 4113 suspension, absent statutory language to the contrary. This Court has previously noted that:\\nTitle 6, section 4113 is a provision which provides for a form of deferred imposition of sentence. The defendant is placed on probation for a fixed period of time based on certain conditions. If the defendant complies with all the conditions of the suspended imposition of sentence, then the conviction is expunged.\\nSabLan, supra, 1996 MP ? \\u00b644, 5 N.M.I. 43. Thus, no conviction occurs after a defendant complies with all the conditions of the suspension as the record is subsequently expunged. This Court recognizes that the Superior Court could have sentenced Itibus according to the assault and battery statute of 6 CMC \\u00a7 1202(b) which carries a maximum penalty of imprisonment up to one year for each count. However, the Superior Court did not sentence Itibus according to 6 CMC \\u00a7 1202(b), but instead suspended imposition of sentence pursuant to 6 CMC \\u00a7 4113(a) and placed him on probation for a one year six month period and ordered him to serve 600 hours of incarceration as one of the conditions of his suspended imposition of sentence.\\n' When suspending Itibus' sentence, the Superior Court looked specifically into Itibus' background and various \\\"special circumstances\\\" when it ruled that,\\nthe court is satisfied that the ends of justice and the best interest of the public as well as the defendant will be served by suspending the imposition of sentence . Defendant has no prior criminal record, has served in the United States Armed Forces, is married and has two children ages 9 and 16, and was gainfully employed on the date of the incident.\\nCommonwealth v. Itibus, Crim. Case No. 95-120(F) (N.M.I. Super. Ct. Oct. 20,1995) (Suspended Imposition of Sentence at 1). The Superior Court, being satisfied that \\\"the best interests of the public . . . will be served by suspending the imposition of sentence,\\\" and noting Itibus' lack of any prior criminal record, may suspend the imposition of his sentence according to 6 CMC \\u00a7 4113 and order incarceration as one of the conditions. Id. The sentencing judge may, for example, feel that a short term of incarceration is necessary for the reformation of the defendant. We decline to usurp the sentencing judge's discretion at this time.\\n\\u00b68 Accordingly, we find that the Superior Court did not err when it placed Itibus on probation and simultaneously ordered him to serve 600 hours of detention as one of the conditions of the suspended imposition of suspension. However, upon examining the sentencing order, this Court notes the community work service order is indefinite. The Superior Court, not the probation officer, must impose a specific number of hours of community work service to be performed.\\nCONCLUSION\\n\\u00b69 For the reasons set forth above, we AFFIRM the Superior Court's decision to impose incarceration as a condition of a suspended imposition of sentence. However, we REMAND this case for an entry of a definite community work service order.\\nAlthough the Superior Court uses the phrase \\\"supervised\\\" probation in its sentence, this Court notes the term \\\"supervised\\\" probation is redundant since persons placed on probation are assuredly \\\"supervised\\\" by the Probation Office under 6 CMC \\u00a7 4205(a).\\n\\\"Defendant shall report to the Department of Corrections [\\\"DOC\\\"J commencing October 20, 1995 at 6:00 p.m. and every Friday thereafter until such time he completes 600 hours of detention. The DOC shall release the defendant on Sundays at 6:00 p.m.\\\" Commonwealth v. Itibus, Crim. Case No. 95-120(F) (N.M.I. Super. Ct. Oct. 20. 1995) (Suspended Imposition of Sentence at 1). This Court notes that 600 hours of detention would require Itibus to be detained for a period of twenty-five (25) days, or slightly over twelve (12) weekends.\\nCommonwealth v. Itibus, Crim. Case No. 95-120(F) (N.M.I. Super. Ct. Oct. 20.1995) (Suspended Imposition of Sentence at 2). This Court also notes that there is no reference to an indefinite community work service order in the Appellant's brief.\"}"

n_mar_i/611048.json

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+"{\"id\": \"611048\", \"name\": \"Jose A. Ulloa, Plaintiff/Appellant, v. Edward Maratita, Vicente A. Manglona and Marianas Management Corporation, Defendants/Appellees\", \"name_abbreviation\": \"Ulloa v. Maratita\", \"decision_date\": \"1997-08-25\", \"docket_number\": \"Appeal No. 95-025; Civil Action No. 91-0365\", \"first_page\": 93, \"last_page\": \"95\", \"citations\": \"5 N. Mar. I. 93\", \"volume\": \"5\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T18:12:02.159054+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: VILLAGOMEZ, Justice, WISEMAN and LIZAMA, Special Judges.\", \"parties\": \"Jose A. Ulloa, Plaintiff/Appellant, v. Edward Maratita, Vicente A. Manglona and Marianas Management Corporation, Defendants/Appellees.\", \"head_matter\": \"Jose A. Ulloa, Plaintiff/Appellant, v. Edward Maratita, Vicente A. Manglona and Marianas Management Corporation, Defendants/Appellees.\\nAppeal No. 95-025\\nCivil Action No. 91-0365\\nAugust 25, 1997\\nArgued and submitted June 25, 1997\\nCounsel for Appellant: Douglas F. Cushnie, Saipan.\\nCounsel for Appellee Edward U. Maratita: Vicente T. Salas, Saipan.\\nCounsel for Appellee Vicente M. Manglona: Stephen S. Nutting, Saipan.\\nCounsel for Appellee Marianas Management Corporation: Antonio M. Atalig, Saipan.\\nBEFORE: VILLAGOMEZ, Justice, WISEMAN and LIZAMA, Special Judges.\", \"word_count\": \"1975\", \"char_count\": \"11700\", \"text\": \"VILLAGOMEZ, Justice:\\n\\u00b61 Appellant, Jose A. Ulloa (\\\"Ulloa\\\"), appeals the Superior Court judgment holding that appellee, Edward U. Maratita (\\\"Maratita\\\"), possessed proper authority, as Ulloa's agent, when he sold Ulloa's land, and did not breach his fiduciary duty when he sold the land for $550,000 and retained his agreed share of the proceeds.\\nI.\\n\\u00b62 Ulloa raises the following five issues. 1. Whether the Superior Court erred in ruling that the power of attorney signed by Ulloa authorized Maratita to sell Lot No. 3159.\\n2 Whether the Superior Court erred in ruling that Maratita did not breach any fiduciary duty.\\n3. Whether the Superior Court erred in ruling that Maratita did not hold funds in a constructive trust for Ulloa.\\n4. Whether the Superior Court erred in not rescinding the transfer of Lot No. 3159.\\n5. Whether the Superior Court erred by rejecting 14 of Ulloa's proposed jury instructions and by giving a verdict form to the jury that was improper.\\nThese issues are either questions of law or mixed questions of law and fact subject to de novo review. Rosario v. Quart, 3 N.M.I. 269, 276 (1992)\\nII.\\n\\u00b63 At all times relevant to this case, appellant Ulloa lived on Saipan at the home of Maratita's mother. Appellee Maratita is Ulloa's nephew who lived on Rota. Ulloa initially owned Lot No. 3159 containing 9.5 hectares located in Rota. After a period of discussions regarding the sale or lease of Ulloa's property, Maratita, who is not lawyer, drafted a power of attorney which Ulloa executed on June 23, 1988. The power of attorney appointed Maratita as attorney in fact for Ulloa and gave Maratita the power:\\nTo endorse in my name and on my behalf, all real estate transactions and other negotiable instruments that may require my endorsement pertaining to my real estates . . . situated, lying and being located on Rota . . . Lot 3159 . . . containing an area of 9.5 hectares, more or less.\\nE.R. at 3-2 (Plaintiffs Exh. 1). On the same day, Ulloa signed a letter addressed to Maratita which states in part: \\\"Based on my June 23,1988 Power of Attorney, if a lease or sale of my property is to be made my price is $250.000.00.\\\" Id. at 3-3 (Plaintiffs Exh. 2).\\n\\u00b64 During their discussions and the execution of these documents Ulloa and Maratita orally agreed that if the land were sold or leased for $250,000, Maratita would keep 10% of the proceeds. If the land were sold or leased for more than $250,000 but less than $ 1,000,000 Maratita would keep any amount above $250,000 and pay the government tax. If sold or leased for more than $1,000,000 then they would split the proceeds equally.\\n\\u00b65 Maratita negotiated a sale of the land to Vicente M. Manglona (\\\"Manglona\\\") and showed him the power of attorney and the letter. On August 11, 1988, Maratita, on behalf of Ulloa, entered into an agreement to sell Lot 3159 to Manglona for $550,000. On August 23, 1988, Manglona entered into a conditional agreement to sell Lot 3159 to Marianas Management Corporation for $2,581,305. The condition was for Manglona to clear title. Maratita was unaware of this conditional agreement prior to his conveyance of the property to Manglona. On October 31, 1988, Maratita, as attorney in fact for Ulloa, executed a \\\"warranty deed\\\" transferring the land to Manglona. The following day, Manglona transferred the land to Marianas Management Corporation by a Warranty Deed dated November 1, 1988.\\n\\u00b66 On November 9,1988, Maratita obtained a cashier's check in the amount of $250,000 payable to Ulloa. He personally delivered the check to Ulloa at his store in San Antonio, Saipan, on the same date. In December 1988, Maratita came to Saipan to give Ulloa $27,000 to pay for the government tax. Ulloa was not at home, therefore, he gave the money to his mother to give to Ulloa when he returned home. Maratita kept the balance of the sales proceeds pursuant to his agreement with Ulloa.\\n\\u00b67 On May 28, 1991, Ulloa filed a complaint with the Superior Court alleging that Maratita had no authority to sell Ulloa's land, that Maratita defrauded Ulloa, and that the two deeds are null and void. Ulloa prayed for general damages, punitive damages, rescission of the deeds, and return of the land to him. Ulloa also demanded a jury trial.\\n\\u00b68 The Superior Court referred to the jury, for its adjudication, the issue of fraud. The court retained, for its own adjudication, the issues of constructive trust, breach of fiduciary duty, and rescission of the two warranty deeds. The jury returned a verdict for Maratita finding that he did not commit any act of fraud against Ulloa. The court found that Maratita did not hold any part of the sales proceeds in constructive trust for Ulloa, that Maratita did not breach any fiduciary duty, and that there was no basis for rescinding the two deeds. The court found that Maratita had the authority to sell the land on behalf of Ulloa and that he legally kept his share of the proceeds pursuant to their express agreement.\\n\\u00b69 Ulloa states on page 4 of his opening brief that he timely appealed. However, he did not separately demonstrate the statutory basis of the jurisdiction of the Superior Court and of this Court, and the timeliness of the appeal, as required by Com. R. App. P. 28(L)(2) and (3). We conclude that we have jurisdiction pursuant to I CMC \\u00a7 3102(a). We affirm the findings, conclusions and judgment of the Superior Court.\\nIII.\\n\\u00b610 Ulloa argues that the power of attorney did not authorize Maratita to sell the land because it does not use the terms \\\"sale, gift, bargain, transfer, convey, and encumber.\\\" Instead it uses the word \\\"endorse.\\\" According to Ulloa, to endorse means to sign the back of a negotiable instrument. It does not authorize a sale or conveyance of land. In addition, the Commonwealth statute of frauds prohibits oral employment of an agent or broker for the sale of land if the employment is to extend over one year. Because the power of attorney does not authorize Maratita to sell the land, but only to find a buyer or lessee, the agreement regarding Maratita's commission must be in writing and since it not, it is invalid.\\n\\u00b611 The question before us on appeal is whether the Superior Court committed a reversible error by interpreting the power of attorney, along with the letter, to grant Maratita the authority to sell the land on behalf of Ulloa. We find no reversible error.\\n\\u00b612 The power of attorney appointed Maratita as Ulloa's attorney in fact and authorized him \\\"to endorse in my name and on my behalf, all real estate transactions . . . that may require my endorsement pertaining to my real estates . . . situated, lying and being located on Rota . . . Lot 3159 . containing an area of 9.5 hectares, more or less.\\\" At oral argument the parties agreed that \\\"to endorse\\\" may be and is often used to mean \\\"to sign.\\\" To sign further means to execute. The Superior Court interpreted the power of attorney to have empowered Maratita to sign the land sales agreement and the warranty deed as attorney in fact for Ulloa. The sale of the land is a \\\"real estate transaction\\\" and Maratita is authorized to sign or execute such transaction in the name and on behalf of Ulloa. The letter dated June 23, 1988, made it crystal clear that Ulloa, through the power of attorney, authorized Maratita to either lease or sell the land. In the event of a sale, Ulloa's price was $250,000. Pursuant to their oral agreement, Maratita was to keep any amount above the $250,000 and pay the government tax. Maratita complied fully with their agreement.\\n\\u00b613 The oral agreement between the parties did not violate 2 CMC \\u00a7 4914(d). Under this section, an agreement employing an agent to sell land must be in writing if the agreement is to extend for over one year. Here, Ulloa appointed Maratita as his agent to sell his land within one year. Therefore, no writing is required.\\nIV.\\n\\u00b614 Ulloa contends that under Maratita's fiduciary duty, he should have sold the land for at least $2.5 million. His failure to sell at this market price, and to have sold the land for merely $550,000 constitutes a breach of fiduciary duty. He argues that the Superior Court committed reversible error by finding no breach of fiduciary duty. We find no reversible error.\\n\\u00b615 Maratita had no knowledge that Manglona was negotiating a subsequent sale of the land for a higher price to Marianas Management Corporation. He testified that had he known of Marianas Management Corporation's willingness to pay the $2.5 million, he would have dealt directly with that buyer. Maratita is neither an experienced nor trained real estate broker. The land itself was not formally appraised and he must have thought that $550,000 was a reasonable price for such Rota land. Even Ulloa himself expressly manifested that his price was $250,000. Maratita sold the land for double that price.\\n\\u00b616 The Superior Court found and concluded that the sale of the land for $550,000 did not constitute a breach of fiduciary duty. This finding and conclusion is amply supported by the evidence.\\nV.\\n\\u00b617 Having correctly found and concluded that Maratita had legal authority to sell the land and did not breach his fiduciary duty, the Superior Court had no basis for finding either that Maratita holds funds in a constructive trust or that the transfer of the land should be rescinded. We, therefore, have no reason to reverse the decision of the Superior Court as to issues number three and four.\\nVI\\n\\u00b618 Ulloa contends that the court's refusal to give 14 of his proposed jury instructions constitutes reversible error. In addition, he contends that the verdict form given to the jury was improper and constitutes reversible error. We find no reversible error as to either contention\\n\\u00b619 We have reviewed the proposed instructions which were not given and those instructions that were given. Most of the proposed instructions not given pertain to the fiduciary relationship between a principal and agent, rather than the issue of fraud. The instructions that were given cover the issues assigned to the jury for its determination. They cover the following: (1) the essential elements of fraud; (2) concealment or suppression of a material fact; (3) duty to disclose known facts in a fiduciary relationship; (4) definition of \\\"fiduciary\\\" or \\\"confidential relationship;\\\" and, (5) the making of a promise, not intended to be performed.\\n\\u00b620 These five areas are fully explained in the given instructions. Because of these instructions, the verdict form given to the jury is not so improper as to constitute reversible error. The verdict form specifically asks the jury whether Maratita defrauded Ulloa by concealing or suppressing a material fact regarding the sale of the land.\\nVII.\\n\\u00b621 For the above reasons, we AFFIRM the findings, conclusions and judgment of the Superior Court.\\n\\\"An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate for a longer period than one year, orto procure, introduce or find a purchaser or seller of real estate or a lessor or lessee of real estate where such lease is for a longer period than one year for compensation or commission.\\\" 2 CMC \\u00a7 4914(d).\"}"

n_mar_i/611050.json

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+"{\"id\": \"611050\", \"name\": \"Oriental Crystal (Holdings) Ltd., Plaintiff/Appellee, v. Lone Star Casino Corporation (CNMI) And Lone Star Casino Corporation, Defendants/Appellants\", \"name_abbreviation\": \"Oriental Crystal (Holdings) Ltd. v. Lone Star Casino Corp. (CNMI)\", \"decision_date\": \"1997-11-18\", \"docket_number\": \"Appeal No. 97-003; Civil Action No. 96-0173C\", \"first_page\": 122, \"last_page\": \"123\", \"citations\": \"5 N. Mar. I. 122\", \"volume\": \"5\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T18:12:02.159054+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: TAYLOR, Chief Justice, VILLAGOMEZ and ATALIG, Justices.\", \"parties\": \"Oriental Crystal (Holdings) Ltd., Plaintiff/Appellee, v. Lone Star Casino Corporation (CNMI) And Lone Star Casino Corporation, Defendants/Appellants.\", \"head_matter\": \"Oriental Crystal (Holdings) Ltd., Plaintiff/Appellee, v. Lone Star Casino Corporation (CNMI) And Lone Star Casino Corporation, Defendants/Appellants.\\nAppeal No. 97-003\\nCivil Action No. 96-0173C\\nNovember 18, 1997\\nArgued and Submitted on October 1, 1997\\nCounsel for Appellants: William M. Fitzgerald, Saipan.\\nCounsel for Appellee: Anthony Long, Saipan.\\nBEFORE: TAYLOR, Chief Justice, VILLAGOMEZ and ATALIG, Justices.\", \"word_count\": \"1058\", \"char_count\": \"6357\", \"text\": \"VILLAGOMEZ, Justice:\\n\\u00b61 Lone Star Casino Corporation (\\\"Lone Star\\\") appeals a decision of the Superior Court which denied its motion to set aside a default judgment entered against it. A default judgment which has also been entered against the other defendant, Lone Star Casino Corporation (CNMI) (\\\"Lone Star (CNMI)\\\"), has not been set aside or appealed.\\nI.\\n\\u00b62 Lone Star raises the issue of whether the Superior Court lacked personal jurisdiction over it because of a defective service pursuant to 7 CMC \\u00a7 1104(a), and therefore erred in denying the motion to set aside the default judgment.\\n\\u00b63 During oral arguments, the court raised the issue of whether this appeal is moot. The parties have filed their supplemental briefs on this issue. We conclude that this issue is moot and therefore we lack jurisdiction.\\nII.\\n\\u00b64 Lone Star (CNMI), obtained a casino license from the Tinian Casino Gaming Control Commission (\\\"Commission\\\") in January 1995. Lone Star (CNMI) is a CNMI corporation and a wholly owned subsidiary corporation of Lone Star, a Delaware corporation. During this same period, Oriental Crystal (Holding) Ltd. (\\\"Oriental\\\") was also interested in investing in casino operations on Tinian. On May 5, 1995, Lone Star and Oriental signed an agreement which provided that Oriental would not directly or indirectly compete with Lone Star within atwo-hundred mile radius of Tinian for three years. In May 1995, Lone Star (CNMI) commenced its casino operation on Tinian on a small scale. It had intended to build a sizable casino hotel in the near future. However, in December 1995, it discontinued its casino operations.\\n\\u00b65 In January 1996, Oriental informed Lone Star that their agreement was no longer binding since Lone Star (CNMI) had discontinued its casino operations on Tinian. Lone Star responded that their agreement was enforceable and would take Oriental to court if it violated their agreement.\\n\\u00b66 On February 8, 1996, Oriental filed this action seeking declaratory relief and contending that the agreement was void and unenforceable. On February 29, 1996, Oriental obtained a court order allowing it to serve Lone Star by certified mail pursuant to 7 CMC \\u00a7 1104. Oriental served Lone Star with the summons and complaint via certified mail on March 22, 1996.\\n\\u00b67 On June 7,1996, Lone Star's (CNMI) casino license was tenninated by the Commission for (1) failure to open its larger casino facilities on December 31, 1995; (2) failure to make full payment of its 1995 casino license fee; (3) failure to pay its 1996 casino license fee; (4) selling off its Tinian casino assets; (5) failure to pay CNMI tax obligations; (6) failure to pay CNMI agencies of its financial obligations; (7) failure to pay numerous CNMI vendors; (8) failure to maintain an office on Tinian; and (9) termination of its lease agreement on the premises of the casino site.\\n\\u00b68 On June 12, 1996, the Superior Court entered a default judgment against Lone Star. Lone Star moved to set aside the default judgment on November 6,1996, but it was denied on January 8, 1997. Appellants timely appealed.\\nIII.\\n\\u00b69 Oriental filed this action in February 1996, asking the court to declare that the agreement it entered into with Lone Star is void and unenforceable. One of the reasons given is that Lone Star (CNMI) no longer engaged in any casino operation on Tinian. At the time this case was filed, Lone Star (CNMI) had a valid casino license which authorized it to reopen its casino operations at any time.\\n\\u00b610 However, on June 7, 1996, the Commission terminated the license. Consequently, Lone Star (CNMI) no longer had the authority to operate a casino on Tinian. As a result, Oriental cannot compete with either Lone Star (CNMI) or Lone Star because neither of the two can operate a casino on Tinian. The court notes that Lone Star itself has never held any casino license on Tinian.\\n\\u00b611 If the court were to dwell on the issue of enforceability of the agreement, then it would be giving an opinion on a moot question or abstract proposition, or declaring principles or rules of law which cannot affect the matter at issue in this case. In re Seman, 3 N.M.I. 57, 64 (1992) (citations omitted). The duty of the court is to \\\"decide actual controversies by a judgment which can be earned into effect.\\\" Id. Here, even if Lone Star were to proceed to trial, as a matter of law, it has no basis to enforce the agreement or compete with Oriental, after June 7,1996. An action to enjoin a competition is moot when such a competition is no longer possible,\\n\\u00b612 In Govendo v. Micronesian Garment Mfg., Inc., 2 N.M.I. 270 (1991)., we found mootness because the construction sought to be enjoined had been completed. In Seman, we found mootness because Seman had been released from the hospital before the case, seeking her release, came to us. However, in both cases we found a public concern exception to the rule precluding consideration of the moot claims. We found that such claims were likely to recur, and if they did, would become moot before they could be determined on appeal.\\n\\u00b613 Here, we find mootness because the ability of Lone Star to compete with Oriental has been terminated. In addition, the issue here does not involve a public concern, only a private concern, which is unlikely to recur.\\nFor the above reasons, we hereby DISMISS this appeal for mootness and lack of jurisdiction.\\nAn appellate court may raise sna sponte the issue of mootness. Govendo v. Micronesian Garment Mfg. Inc., 2 N.M.I. 270, 281 (1991).\\n\\\" A case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. A question is 'moot' when it presents no actual controversy or where the issues have ceased to exist. Generally, an action is considered 'moot' when it no longer presents ajusticiable controversy because issues involved have become academic or dead.\\\" Black's Law Dictionary, 1008 (6th ed. 1990).\"}"

n_mar_i/611051.json

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+"{\"id\": \"611051\", \"name\": \"Rosa A. Jasper and Lourdes T. Manglona, Plaintiffs/Appellees, v. Antonio O. Quitugua and The Office of the Governor, Defendants/Appellants\", \"name_abbreviation\": \"Jasper v. Quitugua\", \"decision_date\": \"1999-02-08\", \"docket_number\": \"Appeal No. 97-009; Civil Action No. 95-1174(R)\", \"first_page\": 220, \"last_page\": \"225\", \"citations\": \"5 N. Mar. I. 220\", \"volume\": \"5\", \"reporter\": \"Northern Mariana Islands Reporter\", \"court\": \"Commonwealth of the Northern Mariana Islands Supreme Court\", \"jurisdiction\": \"Northern Mariana Islands\", \"last_updated\": \"2021-08-10T18:12:02.159054+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: LIZAMA, Justice Pro Tem, TAYLOR, Justice Pro Tem, and SALAS, Special Judge.\", \"parties\": \"Rosa A. Jasper and Lourdes T. Manglona, Plaintiffs/Appellees, v. Antonio O. Quitugua and The Office of the Governor, Defendants/Appellants.\", \"head_matter\": \"Rosa A. Jasper and Lourdes T. Manglona, Plaintiffs/Appellees, v. Antonio O. Quitugua and The Office of the Governor, Defendants/Appellants.\\nAppeal No. 97-009\\nCivil Action No. 95-1174(R)\\nFebruary 8, 1999\\nArgued and Submitted September 29, 1998\\nCounsel for appellant Antonio O. Quitugua: F. Randall Cunliffe (Cunliffe & Cook), Agana, Guam, and Brien Sers Nicholas, Saipan.\\nCounsel for appellees: John M. Chambers, Saipan.\\nBEFORE: LIZAMA, Justice Pro Tem, TAYLOR, Justice Pro Tem, and SALAS, Special Judge.\", \"word_count\": \"3219\", \"char_count\": \"19761\", \"text\": \"TAYLOR, Justice Pro Tem:\\n\\u00b61 Appellant/defendant, Antonio O. Quitugua (\\\"Quitugua\\\"), appeals from a jury verdict awarding appellees/plaintiffs, Rosa A. Jasper and Lourdes T. Manglona, $225,000 in damages for assault, battery, and intentional infliction of emotional distress. We have jurisdiction pursuant to 1 CMC \\u00a7 3102, and article IV, \\u00a7 3 ofthe Commonwealth Constitution. N.M.I. Const, art. IV, \\u00a7 3 (1997). We reverse and remand for further proceedings consistent with this opinion.\\nISSUES PRESENTED AND STANDARDS OF REVIEW\\nThe appellant raises four issues for our review:\\nI. Whether the trial court's jury instructions regarding the statements of Quitugua were erroneous as a matter of law.\\nII. Whether the trial court's instructions regarding punitive damages were inadequate as a matter of law.\\nIII. Whether the trial court's refusal to permit the pro se Chamorro Defendant Quitugua to question the witnesses in Chamorro, violated the Commonwealth Constitution and Quitugua's right to due process and equal protection of the laws.\\nIV. Whether the withdrawal of the Attorney General's Office (\\\"AGO\\\") as counsel for Quitugua and subsequent failure to obtain other counsel for him, and the AGO's subsequent representation ofthe Office ofthe Governor with a theory antagonistic to Quitugua violated his right to due process of law and a fair trial in this action.\\n\\u00b62 Issues I and II involve questions of law and are reviewed de novo. Rosario v. Quan, 3 N.M.I. 269, 276 (1992). Issues III and IV involve constitutional questions and are reviewed de novo. Office of the Attorney General v. Rivera, 3 N.M.I. 436, 441 (1993).\\nFACTS AND PROCEDURAL BACKGROUND\\n\\u00b63 Rosa A. Jasper and Lourdes T. Manglona (\\\"appellees\\\"), filed suit against Quitugua for assault, battery, and intentional infliction of emotional distress arising out of a December 5, 1995, incident that occurred at the Office ofthe Governor on Rota. The appellees also brought suit against the Governor's Office for breach of contract. Initially, the AGO filed answers to the original complaint on behalf of Quitugua and the Governor's Office on January 10,1996. The matter then proceeded to discovery, and after eight months, the AGO moved to withdraw from representing Quitugua on September 26, 1996, after the AGO determined that it would no longer be able to represent both parties for conflict of interest reasons. The matter was brought forth in a bifurcated trial on Rota on March 3, 1997, wherein Quitugua appeared pro se. On March 5, 1997, the jury returned a verdict against Quitugua for a total of $225,000 in damages. Quitugua timely appealed.\\nANALYSIS\\nI. The Juiy Instructions\\n\\u00b64 Quitugua appeared pro se after the AGO withdrew its representation of him. At trial, preceding his testimony, the trial court made the following statement:\\nWell alright, members of the jury, this is a bit unusual. What's going to happen is since Mr. Quitugua is not represented, he'll probably just testify in the narrative. It means he'll just give us a statement and after that, both parties are entitled to cross examine him and ask him questions, alright? All right, go ahead Mr. Quitugua.\\n(R. at 429, In. 13-18). Quitugua then took the witness stand and narrated a statement to the jury. Following his testimony, he was cross-examined by opposing counsel and then the court. When the trial court instructed the jury, it gave the following instruction: \\\"The arguments and statements made by the lawyers and Mr. Quitugua are not evidence.\\\" (R. at.489, In. 4-5.) Quitugua now argues that such a jury instruction constitutes plain error and was clearly erroneous, and, therefore, merits reversal by this Court. We disagree.\\n\\u00b65 The trial court correctly distinguished between those statements Quitugua made on the witness stand which were admissible evidence, and those statements made during opening and closing statements which were clearly inadmissible evidence. After Quitugua received the oath, the court instructed the jury by stating \\\"members of the jury, this is a bit unusual. What's going to happen is since Mr. Quitugua is not represented, he'll probably just testify in the narrative.\\\" (R. at 429, In. 14-15) (emphasis added).\\n\\u00b66 At the conclusion of the trial, the court instructed the jury with two separate jury instructions. The first pertained to evidence which the jury could consider during its deliberations:\\nNow, a good question might be what is evidence?\\nThe evidence from which you decide what the facts are consist of, No. 1, the sworn testimony of the witnesses that you heard on the stand, both the direct examination and the cross examination, regardless of who called the witness.\\n(R. at 488, In. 14-18) (emphasis added). The court then proceeded with its second instruction pertaining to those items which were not in evidence. The court stated, \\\"[t]he arguments and statements by the lawyers and Mr. Quitugua are not evidence,\\\" and clarified in the next sentence that the arguments and statements to which he was referring were the opening and closing arguments. \\\"What they have said in their opening and closing statements and in their closing arguments and at other times is intended to help you interpret evidence, but it is not evidence.\\\" (R. at 489, In. 4-8).\\n\\u00b67 These two instructions were both necessary and proper in order for the jury to grasp the distinction between admissible evidence and inadmissible testimony during opening and closing statements. Quitugua interprets the first instruction in an extremely narrow fashion. Upon further review of the entire record, however, especially the judge's second sentence, we hold that the jury instructions given were proper.\\nII. The Jury Instructions Regarding Punitive Damages\\n\\u00b68 Quitugua takes exception to the jury instruction regarding punitive damages. Quitugua argues that the Restatements of Torts pertaining to punitive damages should have been read to the jury instead of California BAJI Instruction 14.71, because of the applicability of the common law to the Commonwealth, codified at 7 CMC \\u00a7 3401. The Restatement pertaining to punitive damages reads as follows:\\n(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.\\n(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.\\nRestatement (Second) of Torts \\u00a7 908(1), (2) (1979). Quitugua contends that the California instruction uses terminology and language which is not found in the Restatement definition. Here, we emphasize that the Restatement definition does not articulate a burden of proof. Thus, the California BAJI's Instruction's burden of proof - by a preponderance of the evidence \\u2014 does not run inconsistent with the common law rule found embodied in the Restatements. In addition, we find that the differences between the proposed jury instructions regarding punitive damages based upon the Restatements and the instructions given based upon the California statute were negligible. Quitugua's rights, therefore, were not affected by the instruction as given.\\n\\u00b69 Even further, we agree with the appellees who assert that Quitugua failed to preserve for appeal the question of whether the trial court erred in its jury instructions as Quitugua neither offered any jury instructions of his own, nor objected to the proposed instructions at the beginning of or during the trial. According to Com. R. Civ. P. 51, \\\"[N]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.\\\" Absent such objection, Quitugua lost his chance to appeal this issue.\\nIII. The trial court's refusal to permit Quitugua to question the witnesses in Chamorro.\\n\\u00b610 The N.M.I. Constitution provides that Chamorro, Carolinian and English shall be the official languages of the Commonwealth. Quitugua was permitted to do his opening and closing arguments in Chamorro, but the court denied his request to question the witnesses in Chamorro stating that his request \\\"posed too many translational problems.\\\" (R. at 171, In. 24-25). The court then went on to express its feelings as to appellant's ability to speak English - Quitugua spoke very good English - and the court felt it would put the court at a disadvantage and take longer. (R. at 172, In. 3-8). Quitugua argues that the court's failure to allow Quitugua to proceed in questioning the witnesses in his native tongue, Chamorro, disadvantaged him and violated his rights to due process and equal protection, as guaranteed by the N.M.I. Constitution. We agree.\\n\\u00b611 While we recognize that the decision on whether to appoint an interpreter vests within the discretion of the trial court, State v. Mendez, 784 P.2d 168, 170 (Wash.App. 1989) (trial court does not have affirmative duty to appoint interpreter for defendant where defendant's lack of fluency or faculty in language is not apparent), because there are three official languages in the Commonwealth, Quitugua should have been given the opportunity to question the witnesses in Chamorro. Had Quitugua been represented by counsel, this Court would have recognized the obligation to inform the lower court prior to trial that he preferred to speak Chamorro so that arrangements for an interpreter to assist the court in the proceedings could have been made. He was not, and therefore, his request to speak Chamorro, even at the day of trial, should have been recognized and it was error not to allow him to proceed in Chamorro.\\nIV. The AGO's Withdrawal as Counsel for Quitugua.\\n\\u00b612 Quitugua argues that the AGO's representation of the Governor's Office was directly hostile to his defense, and as a former client, Quitugua should have been afforded adequate safeguards under the Model Rules of Professional Conduct. In addition, Quitugua claims he was prejudiced by the AGO's withdrawal, by the AGO's defense which was directly antagonistic to him, and by the AGO's use of privileged, confidential information against him. We agree.\\n\\u00b613 Initially, the AGO agreed to represent Quitugua pursuant to 7 CMC \\u00a7 2301 et seq., which provides for the legal defense of public employees and the public entity's right of indemnification. See 7 CMC \\u00a7 2304. The AGO filed an answer on January 10, 1996, on behalf of Quitugua. On February 21, 1996, the AGO, on behalf of Quitugua, filed an Ex Parte Motion for an Extension of Time to Answer Discovery; on July 18, 1996, the AGO filed the appellants' (both Quitugua and the Office of the Governor) Responses to Plaintiffs Second Set of Interrogatories. It took the AGO approximately eight months to withdraw from representing Quitugua, after it discovered a conflict of interest.\\n\\u00b614 While the initial representation of Quitugua and the subsequent withdrawal by the AGO alone is not enough to find reversible error, we find persuasive the fact that the AGO continued to represent the Office of the Governor instead of withdrawing itself from representation of both clients and seeking alternate counsel. We recognize that according to the Model Rules of Professional Conduct, the AGO needed the prior consent of Quitugua, a formerly represented client, before representing the Office of the Governor. Rule 1.9(a) provides as follows:\\n(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.\\nNo such prior consent was obtained. Therefore, we hold that the AGO's representation of the Office of the Governor directly adverse to Quitugua, a former client, was error.\\n\\u00b615 Further, the trial testimony elicited by the AGO uses privileged, confidential information directly adverse to Quitugua's position. The trial strategy of the Office of the Governor was that it had not breached the contract with the plaintiffs in this case, because there was never a termination. (R. at 130, In. 10-11, In. 16-17, In. 19-20). It was the position of Quitugua in his statements to the court and to the jury that the accusations that he pushed or poked the plaintiffs were false and unfounded.\\n\\u00b616 At trial, on behalf of the Office of the Governor, the Assistant Attorney General asked Vivian Hocog:\\nQ: And you've never come to work before and see [sic] Mr. Quitugua or anybody else poke anybody in the chest or push them backward, you've never seen that, have you?\\nA: No.\\nQ: And you've never seen anybody take chairs away from people and cause them to jerk against tables or anything like that, have you?\\nA: No.\\nQ: Any you've never \\u2014 okay, this whole thing was just very different than anything that had ever happened before in the Office of the Governor, isn't that right?\\n(R. at 162, In. 15-25).\\nQ: I think you mentioned in your testimony something to the effect of Mi-. Quitugua said that he needed some of the chairs ah, because there was a meeting \\u2014 that there was going to be a meeting and he needed the chairs, do you recall that?\\nA: Yes.\\nQ: Was there actually a meeting?\\nA: No.\\nQ: So, Mr. Quitugua was lying when he told the plaintiffs that he needed those chairs for a meeting, is that right?\\nA: There was no meeting that day. I would have known it. Ah whenever they use the conference room, they let me know.\\n(R. at 164, In. 19-25, & R. at 165, In. 1-6) (emphasis added). Eventually, the Attorney General elicited testimony from Vivian Hocog that she thought Quitugua was a liar. \\\"Isn't it true that you think that Mr. Quitugua is a liar? . And, how long did you know him before you came to the personal feeling, just at least for you that Mr. Quitugua was a liar?\\\" (R. at 334, In. 3-4, 17-19) (emphasis added).\\nDuring closing argument, presented in the Rota Courthouse while the jurors were deliberating the fate of Quitugua in the adjacent room, the same attorney who had represented Quitugua previously for over eight months, summed up his case as follows: \\u00b617\\n[MR. COTTON:] Even if there was a meeting and it was canceled, she told them there wasn't one and so they knew that Victor was lying after Victor Hocog .\\nTHE COURT: Ah, do you mean Victor was lying or? MR. COTTON: I'm sorry, knew that Antonio was lying.\\n(R. at 511, In. 1-6) (emphasis added).\\n[MR. COTTON:] Rosa testified that next day, Vivian told her that Quitugua had lied about the meeting. She knew Quitugua was lying.\\n(R. at 514, In. 5-7) (emphasis added). In short, the Attorney General repeatedly called his former client a liar while the jurors were deliberating Quitugua's fate in the adjacent juror deliberation room.\\n\\u00b618 While the trial judge properly explained to the jury that this was a bifurcated trial, that the judge would be trying only those issues pertaining to the Office of the Governor, and that the jury would be trying only those issues pertaining to Quitugua, the issues were too interrelated to be tried together. Some issues were proper for the judge's ears only, while others were exclusively before the jury to consider. Therefore, we hold that it was error to conduct this case as a bifurcated trial. The plaintiffs' cases against each defendant should be tried separately.\\nCONCLUSION\\n\\u00b619 Based upon the foregoing reasons, we hereby REVERSE this decision and REMAND this matter for further proceedings consistent with this opinion. Because we find that the AGO used privileged, confidential information of a former client, the AGO is hereby DISQUALIFIED from further representing either party.\\nAt all times pertinent to this case, Quitugua was a Special Assistant for Administration employed by the Governor's Office and was stationed at the Office ofthe Governor's Representative on Rota. He was sued both individually and in his official capacity for wrongfully terminating the plaintiffs' employment contract. Excerpts of Record (\\\"E.R.\\\") at 2.\\nJasper v. Quitugua, Civil Action No. 95-1174R (N.M.I. Super. Ct. March 12, 1997) (Jury Verdict and Decision at 1-2) (\\\"Order\\\"). At the conclusion of the bench trial for the plaintiffs' breach of contract claim, the trial court found that the Office of the Governor did not breach its employment contract with the plaintiffs, but ordered that the plaintiffs receive compensation for certain Commonwealth holidays for the duration of their employment contract, as conceded by the defense, the Office of the Governor. Order at 4.\\nCalifornia BAJIInstruction 14.71 is substantially longer than the Restatements because it defines the terms in the Restatement, and was read to the jury as follows:\\nPunitive Damages. There is also a claim for punitive damages. If you find that plaintiffs suffered damage as a proximate result of the conduct of defendant upon which you base a finding of liability, you may then consider whether you should award punitive damages against defendant for the sake of example and by way of punishment. You may, in your discretion, award such damages if, and only if, you find by a preponderance of the evidence that said defendant is guilty of oppression or malice in the conduct upon which you base your finding of liability.\\nMalice means conduct which is intended by the defendant to cause injury to the plaintiff or carrying on by the defendant with a conscious disregard of the rights or safety of others. A person acts with a conscious disregard of the rights or safety of others when he or she is aware of the probable dangerous consequences of his conduct and wilfully fails to avoid these consequences.\\nOppression means subjecting a person to cruel and unjust hardship in conscious disregard of that person's rights.\\nThe law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury's sound discretion to exercise without passion or prejudice.\\nIn arriving at any award of punitive damages, you are to consider the following: the reprehensibility of the conduct of the defendant; the amount of punitive damages which will have a deterrent effect on the defendant in light of the defendant's financial condition. Punitive damages must bear a reasonable relation to actual damages.\\nIf you find that plaintiff is entitled to an award of punitive damages against defendant, you shall state the amount of punitive damages separately in your verdict form.\\nThe Court is concerned with potential violations of Rule 1.7(b) and Rule 1.9 of the ABA Model Rules of Professional Conduct by the AGO, and therefore, transmits a copy of this opinion to the Northern Marianas Bar Association Disciplinary Committee for further investigation.\\nModel Rules of Professional Conduct Rule 1.9(a) (1998) (emphasis added). The Model Rules are made applicable to the Commonwealth according to Com. Disc. R. 2 (1999).\"}"