KOSRAE STATE COURT TRIAL DIVISION
Cite as Heirs of Nena v. Heirs of Nena, 13 FSM Intrm. 480 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 480]

HEIRS OF TOLENNA NENA,

Appellants,

vs.

HEIRS OF KINERE NENA,

Appellees.

CIVIL ACTION NO. 53-04

MEMORANDUM OF DECISION; JUDGMENT; ORDER TO LAND COURT

Aliksa B. Aliksa

Associate Justice

Hearing: September 28, 2005

Decided: October 26, 2005

APPEARANCES:

For the Appellants:   Snyder H. Simon, trial counselor

                                       P.O. Box 1017

                                       Tofol, Kosrae   FM   96944

For the Appellees:   Canney L. Palsis, 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

      If the Kosrae State Court finds that a Land Court decision was contrary to law, or not based upon substantial evidence, it must remand the matter to the Land Court for further proceedings. Heirs of Nena v. Heirs of Nena, 13 FSM Intrm. 480, 481 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 481]

Appellate Review ) Standard of Review ) Civil Cases

      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 were based upon substantial evidence, the 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. Heirs of Nena v. Heirs of Nena, 13 FSM Intrm. 480, 481 (Kos. S. Ct. Tr. 2005).

Appellate Review ) Standard of Review ) Civil Cases

      When a decedentís will did not identify or list the parcel as one of the parcels belonging to the decedent; when a brother and a sister of the decedent both testified that the parcel was not owned by the decedent; and when it is the Land Courtís duty to assess the witnessesí credibility, the admissibility of evidence, to resolve factual disputes, and 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, the Land Court properly resolved the factual disputes, whose findings were supported by substantial evidence. The reviewing court will not substitute its judgment for the Land Courtís well-founded findings. Heirs of Nena v. Heirs of Nena, 13 FSM Intrm. 480, 482 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     The hearings on the briefs was held on September 28, 2005. Snyder Simon appeared for the Appellants. Appellees were represented by Canney Palsis, MLSC. After hearing from the parties, I took the matter under advisement. This Memorandum of Decision sets forth my ruling and reasoning.

I.  Factual Background.

      Appellant has appealed the decision of the Kosrae Land Court, entered on April 20, 2004, which awarded ownership of parcel 051-U-02 to the Appellees. Parcel 051-U-02, also called Yekunya or Ekonya in Utwe Municipality. The late fathers of both parties, being Tolenna (Tolenna) Nena and Kinere Nena, were brothers, making the parties in this matter first cousins. The parcel was originally listed on the 1932 Japanese survey under the name of Tolenna Nena, also known as Mathew Nena. Tolennoa Nena was the elder brother of Kinere Nena. Appellants claim that Nena Tilfas gave the subject parcel to Tolennoa Nena. Appellees claim that Kinere Nena is the rightful owner.

II.  Analysis.

      Appellants present one ground of error on appeal. Appellants claim that the findings of the Kosrae Land Court are not based upon substantial evidence. If this Court finds that the Land Court decision was contrary to law, or not based upon substantial evidence, it must remand this matter to the Land Court for further proceedings. Kos. S.C. ß 11.614(5)(d).

      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

[13 FSM Intrm. 482]

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. Specifically, I have considered the Will of Tolenna Nena, which was witnessed by several prominent persons living in Kosrae at the time. The Will of Tolenna Nena specifically identified all of the lands or parcels of land belonging to Tolenna Nena. The Will of Tolenna Nena did not identify or list the parcel "Yekunya" as one of the parcels belonging to Tolenna Nena. Tolenna Nenaís failure to include the Yekunya parcel in his will as one of the parcels belonging to him infers that the Yekunya parcel did not belong to him or was not claimed by him. Furthermore, a brother and a sister of Tolenna Nena both testified in support of ownership of Yekunya by Kinere Nena, and not by Tolenna 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 Will of Tolenna Nena, I conclude that the factual disputes of the Land Court were properly resolved. The Land Courtís findings were 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 Appellees 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.

III.  Judgment and Order to Land Court.

      The Appellants have failed to show that the Kosrae Land Court decision on parcel 051-U-02, awarding ownership to the Appellees, was not based upon substantial evidence or was contrary to law. Accordingly, the decision of the Kosrae Land Court, entered on April 20, 2004, which awarded ownership of parcel 051-U-02 to the Appellees, is hereby affirmed.

      The Kosrae Land Court shall issue the Certificate of Title for parcel 051-U-02 to the Appellees sixty days after service of this Memorandum of Decision and Judgment, or as soon thereafter as possible.

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