KOSRAE STATE COURT TRIAL DIVISION
Cite as Wesley v. Carl, 13 FSM Intrm. 429 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 429]

PALIKKUN WESLEY,

Appellant,

vs.

LISA PRESLEY CARL,

Appellee.

CIVIL ACTION NO. 166-04

MEMORANDUM OF DECISION; JUDGMENT

Yosiwo P. George

Chief Justice

Hearing: September 15, 2005

Decided: September 20, 2005

APPEARANCES:

For the Appellant:   Robinson Timothy

                                     P.O. Box 261

                                     Tofol, Kosrae   FM   96944

For the Appellee:   Sasaki L. George, Esq.

                                    Micronesian Legal Services Corporation

                                    P.O. Box 38

                                    Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases

     The Kosrae State Court must review a Kosrae Land Court decision on the record, transcripts and exhibits received at the Land Court hearing and the courtís review must determine whether the Land Courtís decision was based upon substantial evidence and whether the decision was contrary to law. If the court finds that the Land Court decision was based upon substantial evidence and was not contrary to law, the Land Court decision must be affirmed. Wesley v. Carl, 13 FSM Intrm. 429, 430 (Kos. S. Ct. Tr. 2005).

Appellate Review ) Standard of Review ) Civil Cases

      The Kosrae Land Courtís factual findings and decision can be overturned only if they are not

[13 FSM Intrm. 430]

supported by substantial evidence. In considering whether the Land Courtís findings and decision were based upon substantial evidence, the Kosrae State Court recognizes that it is primarily the Land Courtís task to assess the witnessesí credibility, the admissibility of evidence and to resolve factual disputes. On appeal, the Kosrae State Court should not substitute its judgment for the well-founded findings of the lower court. Wesley v. Carl, 13 FSM Intrm. 429, 431 (Kos. S. Ct. Tr. 2005).

Evidence ) Burden of Proof

      It is the claimantís burden to present his or her evidence to the Land Court and it is the claimantís burden to request admission of evidence which had been previously presented to the Land Commission in prior proceedings. Wesley v. Carl, 13 FSM Intrm. 429, 431 (Kos. S. Ct. Tr. 2005).

Evidence ) Hearsay

      It is the Land Courtís duty to assess the witnessesí credibility, the admissibility of evidence, and to resolve factual disputes and it retains discretion to accord weight to evidence presented at hearing, including appropriate weight to hearsay evidence made by a person, now deceased, and therefore not subject to cross-examination. Wesley v. Carl, 13 FSM Intrm. 429, 432 (Kos. S. Ct. Tr. 2005).

Appellate Review ) Standard of Review ) Civil Cases

      When, after careful review of the record, the Kosrae State Court concludes that the factual disputes before the Land Court were properly resolved and the Land Courtís finding that the conditions pertaining to continued ownership of land had been fulfilled was supported by substantial evidence, it will not substitute its judgment for the Land Courtís well-founded findings, and when the Land Courtís findings and conclusions in awarding the appellee ownership were supported by substantial evidence and are not contrary to law, the Land Court decision must be affirmed. Wesley v. Carl, 13 FSM Intrm. 429, 432 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

      This matter is an appeal from the decision of the Kosrae Land Court, entered on October 28, 2004, which awarded ownership of parcel 079T01, known as Wiyu, to Appellee. Appellant filed his brief on March 31, 2005. Appellee filed her brief on August 23, 2005. The hearing on briefs was held on September 15, 2005. Robinson Timothy appeared for the Appellant. Appellee was represented by Sasaki George, MLSC. After hearing from the parties, I took the matter under advisement. This Memorandum of Decision sets forth my decision and reasoning.

I.  Analysis.

     This Court must review the Kosrae Land Court decision on the record, transcripts and exhibits received at the Land Court hearing. This Courtís review must determine whether the Land Courtís decision was based upon substantial evidence or whether the decision was contrary to law. Kos. S.C. ß 11.614(5)(d). If this Court finds that the Land Courtís decision was based upon substantial evidence and was not contrary to law, the decision of the Land Court must be affirmed.

     Appellant raised evidentiary issues on this appeal. Appellant claims that the Land Court did not properly assess the evidence presented at the hearing. Specifically, Appellant claims that a cassette tape, which contained a statement made by the Appellantís father, was not considered by the Land Court. Appellant claims that the cassette tape was in the custody of the former Land Commission.

[13 FSM Intrm. 431]

Appellant argues that the cassette tape spelled out conditions applicable to the gift of parcel 079T01 from Wesley to Nena. Although the cassette tape itself was not introduced into evidence at the Land Court hearing, the Appellant himself had testified at the Land Court hearing and had summarized the contents of the cassette tape in his testimony.

     The parties do not dispute that the subject parcel was first possessed and used by Wesley, father of the Appellant. Wesley then gave the parcel to his brother Nena as a gift. Nena is the father of the Appellee. The Land Court found that Nena was owner of the parcel pursuant to the gift from Wesley, and that the Appellee had inherited the subject parcel from her father Nena, after his death, pursuant to his will.

      Appellant disputes the Land Court findings regarding Nenaís ownership of the parcel and Appelleeís subsequent ownership by inheritance. Appellant claims that the cassette tape purportedly contained the conditions applicable to Nenaís continued ownership of the parcel. Specifically, Appellant claims that one of the conditions imposed by Wesley when he gave the parcel to Nena was broken. The specific condition claimed to be broken is that if there was animosity between Nena and Wesley, then the possession and ownership of the land reverts back to Wesley. Appellant claimed that Nena had broken that condition through his actions against him and his father Wesley. Therefore, Appellant argues that the ownership of the parcel should have reverted back to the Appellantís father. Appellant argued that he and his father Wesley tried to get possession of the subject parcel after the condition was broken by Nena, but that they were not successful. The Appellant could not identify any documentation or specific actions taken by Appellant or his father to regain possession of the subject parcel from Nena.

     Appellee argued that Nena had possessed and utilized the parcel throughout his life until his death, and that there was no evidence that Appellant or his father had taken back or tried to take back possession of the parcel. Appellee argues that the contents of the cassette tape were provided to the Land Court through Appellantís testimony, therefore the Land Court did consider the evidence presented regarding the conditions attached to the gift of land from Wesley to Nena.

      The Kosrae Land Courtís factual findings and decision can be overturned only if they are not supported by substantial evidence. In considering whether the Land Courtís findings and decision was based upon substantial evidence, this Court recognizes that it is primarily the task of the Land Court to assess the credibility of the witnesses, the admissibility of evidence and to resolve factual disputes. Anton v. Heirs of Shrew, 10 FSM Intrm. 162 (Kos. S. Ct. Tr. 2001). On appeal, this Court should not substitute its judgment for the well-founded findings of the lower court. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 625 (Kos. S. Ct. Tr. 2004).

      I have carefully reviewed the record in this matter, the partiesí arguments and applicable law. I have considered that the parties did not request admission of the cassette tape into evidence at the Land Court hearing. Pursuant to the KLCRP, Rules 8(7) and 8(8), it is the burden of the claimant to present his or her evidence to the Land Court. Therefore, it is the burden of the claimant to request admission of evidence which had been previously presented to the Land Commission in prior proceedings. See Heirs of Palik v. Heirs of Henry, 12 FSM Intrm at 627 (Land Court properly relied upon record of prior Land Commission proceedings, which had been admitted into evidence at Land Court hearing).

      Here, the Appellant did not request admission of the cassette tape into evidence at the Land Court hearing. However, despite the non-admission of the cassette tape into evidence, I find that the Appellant was not prejudiced. At the Land Court hearing, the Appellant was permitted to present testimony on the contents of the cassette tape, including the conditions relating to the continued

[13 FSM Intrm. 432]

ownership and use of the subject parcel by Nena. Therefore, the Land Court did receive evidence of the contents of the cassette tape, through testimony of the Appellant, which included the conditions of the gift of the parcel from Wesley to Nena.

      It is the duty of the Land Court to assess the credibility of the witnesses, the admissibility of evidence and to resolve factual disputes. The Land Court retains discretion to accord weight to evidence presented at hearing, including appropriate weight to hearsay evidence which was made by a person, now deceased, and therefore not subject to cross-examination. After careful review of the record pertaining to Appellantís arguments on the evidentiary issues presented, including issues pertaining to the cassette tape, the alleged breach of condition by the Appelleeís father, and the continued use of the subject parcel by Nena during his life until his death, I conclude that the factual disputes of the Land Court were properly resolved. The Land Courtís finding that the conditions pertaining to continued ownership of land by Nena had been fulfilled was supported by substantial evidence. On appeal, this Court will not substitute its judgment for the well-founded findings of the Land Court.

      The findings and conclusions of the Land Court in awarding ownership to the Appellee were supported by substantial evidence and are not contrary to law. Accordingly, pursuant to Kosrae State Code, Section 11.614(5)(d), the decision of the Land Court must be affirmed.

II.  Judgment and Order to Kosrae Land Court.

     The Appellant has failed to show that the Kosrae Land Court decision on parcel 079T01 awarding ownership to the Appellee was not based upon substantial evidence or was contrary to law. Accordingly, the decision of the Kosrae Land Court, entered on October 28, 2004, awarding ownership of parcel 079T01 to Appellee is hereby affirmed.

     The Kosrae Land Court shall issue the Certificate of Title for parcel 079T01 to the Appellee sixty days after entry of this Memorandum of Decision and Judgment, or as soon thereafter as possible.

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