KOSRAE STATE COURT TRIAL DIVISION

Cite as Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521 (Kos. S. Ct. Tr. 2007)

[14 FSM Intrm. 521]

HEIRS OF SCHMELLING TARA,

Appellants,

vs.

HEIRS OF JOB KURR,

Appellees.

CIVIL ACTION NO. 114-05

MEMORANDUM OF DECISION; JUDGMENT;

AFFIRMING LAND COURT DECISION

Aliksa B. Aliksa

Chief Justice

Hearing: November 16, 2006

Decided: January 3, 2007

APPEARANCES:

For the Appellants:        Snyder H. Simon, Esq.

                                      P.O. Box 1017

                                      Tofol, Kosrae   FM   96944

[14 FSM Intrm. 522]

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 ) Briefs and Record

     Although Kosrae Appellate Rule 14(c) provides that if an appellant fails to file his brief within the time provided by the rule, or within time as extended by court order, an appellee may move for dismissal of the appeal and also that the court, on its own motion, may issue an order to show cause why the appeal should not be dismissed for appellant’s failure to file a brief, under Kos. S.C. § 11.614(5), governing Land Court appeals, the State Court may refuse to allow oral argument by a party who fails to file a timely brief. Since the statute differs from the appellate rules and the statute specifically applies to appeals from Land Court, it governs over the general appellate rules and the court may exercise its discretion to allow oral argument by appellants from a Land Court decision who have not filed a brief. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 523 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases

     Land Court findings and decisions will be overturned if they are not supported by substantial evidence or if they are contrary to the law. In considering whether the decisions were based upon substantial evidence, the Kosrae State Court recognizes that it is primarily the Land Court’s task to assess the credibility of the witnesses, the admissibility of evidence and to resolve factual disputes. On appeal, the Kosrae State Court should not substitute its judgment for the lower court’s well-founded findings. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 524 (Kos. S. Ct. Tr. 2007).

Courts; Property ) Land Commission

     The Land Court took over the Land Commission’s responsibilities and is required by statute to give effect to determinations issued by the Land Commission. It does not have the discretion to ignore a Land Commission determination because it is handwritten or because it has not yet been served on the parties. The Land Court’s duty is to take over, or "succeed" to the Land Commission’s responsibilities, not re-hear matters previously decided by it. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 525 (Kos. S. Ct. Tr. 2007).

Administrative Law ) Judicial Review; Property ) Land Commission

     In reviewing a Land Commission decision, the Kosrae State Court considers whether the Land Commission exceeded its constitutional or statutory authority, has conducted a fair proceeding, has properly resolved any legal issues, and has reasonably assessed the evidence presented. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 525 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Notice of Appeal; Civil Procedure ) Notice; Constitutional Law ) Due Process ) Notice and Hearing

     Actual notice as required by statute must be given for preliminary and formal hearings at the Land Commission. Notice is required because it gives a chance to be heard. However, the consequences for failing to give notice of decisions are different. The party has had a chance to be heard and to present evidence. Serving notice of an adjudication, or decision, is required in order to give the party a chance to appeal. If a party is not properly served notice of a determination of ownership, the statutory appeals period that an appeal shall be made within sixty days of the written decision’s service upon the party, does not run. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 525

[14 FSM Intrm. 523]

(Kos. S. Ct. Tr. 2007).

Constitutional Law ) Due Process ) Notice and Hearing

     If a party was not served notice and was then denied the right to appeal, his due process rights are violated. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 525 (Kos. S. Ct. Tr. 2007).

Constitutional Law ) Due Process

     When the parties received a Land Commission determination from the Land Court, which then granted the appellants’ request for a continuance after issuing its decision and which agreed to consider the appellants’ motion to vacate the determination, if it was filed in writing; when the appellants filed their appeal, the Kosrae State Court agreed to hear the matter; when the appellants had notice and an opportunity to be heard at the preliminary and formal hearings and they participated in both the preliminary and final hearings and presented evidence regarding the parcel’s alleged transfer; and when they were not served with the Land Commission adjudication, the appeals period did not run, the Land Commission and Land Court complied with statutory requirements and conducted a fair proceeding. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 525 (Kos. S. Ct. Tr. 2007).

COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

      Appellants filed their notice of appeal on August 18, 2005 about the ownership determination on Parcel No. 092M08, commonly known as Fwoko Mosral, in the Municipality of Malem. Appellants filed two motions to enlarge time to file their brief, which were granted. Appellants’ third motion to enlarge time to file their brief was denied on August 10, 2006. Appellants’ motion to reconsider this order was also denied. Appellees then filed a motion to enlarge time to file their brief, which was granted.

     On August 25, 2006, this Court ordered that Appellants present their oral arguments without the benefit of a brief. Appellees then moved to dismiss the appeal on November 15, 2006, arguing Kosrae Civil Procedure Rule 14(c) permits the Court to dismiss an appeal if an appellant fails to file his brief within the allowed time.

      Under GCO 2006-3, Kosrae Rules of Appellate Procedure apply to appeals from Land Court. Kosrae Appellate Rule 14(c) provides that:

If an appellant fails to file his brief within the time provided by this rule, or within time as extended by court order, an appellee may move for dismissal of the appeal. The court, on its own motion, may also issue an order to show cause why the appeal should not be dismissed for appellant’s failure to file a brief as ordered. If an appellee fails to file his brief, he will not be heard at oral argument.

     However, under Kos. S.C. § 11.614(5), governing Land Court appeals, the State Court may refuse to allow oral argument by a party who fails to file a timely brief. The statute differs from the Appellate Rules. This Court ruled that the statute, which specifically applies to appeals from Land Court, governs over the general appellate rules and exercised its discretion to allow oral argument by Appellants.

     The Court heard oral argument from the parties on November 16, 2006. Snyder Simon appeared

[14 FSM Intrm. 524]

on behalf of Appellants. Canney Palsis, MLSC, appeared on behalf of Appellees.

Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellees. This Memorandum of Decision explains the Court’s decision and reasoning.

I.   Analysis and Conclusions.

      Parcel 092M08 was part of a registration area designated by the Malem Registration Team under the former Land Commission on December 9, 1998. Schmelling Tara and HO Job Kurr both filed applications for registration of the parcel on June 7, 1999 and participated in the preliminary inquiry. Formal Hearing Testimony was taken in December 1999. The Land Registration Team issued an adjudication for Parcel 092M08 on February 9, 2000. The record does not show when this adjudication was served.

      There was no further action in this matter until the Land Court issued formal hearing notices in March 2005. The hearing was continued on Mary 3, 2005 and again on June 17, 2005.

      On July 19, 2005, the Land Court granted a continuance requested by HO Tara. This Order also addresses a verbal request form HO Schmelling Tara to reconsider its dismissal of Parcels 092M07 and 092M08 from a pending Land Court case. The Land Court ordered that HO Tara must submit its motion to reconsider in writing no later than September 6, 2005 at 2:00 pm. The Land Court refused to rule on a verbal claim of agreement by the parties or a verbal motion to reconsider.

      On August 9, 2005, HO Tara filed a Motion to vacate the determination of ownership and to set aside the Order dated July 19, 2005. They described the July 19, 2005 Order as a dismissal.

      HO Tara also filed their Appeal on August 18, 2005. This resulted in the Land Court issuing an Order on September 30, 2005. This Order states that the Land Court lacks jurisdiction to rule on the Motion to Vacate and Set Aside the determination of ownership because the appeal has been filed.

      Appellants’ issues on appeal can be summarized as:

1.   The decision of the Land Commission and Land Court was not based on substantial evidence.

2.   The decision was contrary to law and a violation of due process because of a failure to follow procedural requirements and a failure to consider a quitclaim deed from Job Kurr to Schmelling Tara.

      Findings and decisions of the Land Court will be overturned if they are not supported by substantial evidence or if they are contrary to the law. In considering whether the decisions were 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, 628 (Kos. S. Ct. Tr. 2004). Appellants claimed in their Motion to Vacate filed with the Land Court that the exchange of land between Job Kurr and Schmelling Tara was "mistakenly and inadvertently overlooked, misinterpreted, and misapprehended by the Land Commission." They describe the Land Commission’s mistake as one of interpreting the language of the deed and its intentions.

      The record shows Schmelling Tara received notice of and participated in the preliminary inquiry, giving testimony on June 7, 1999. The Land Commission also held a formal hearing and heard

[14 FSM Intrm. 525]

testimony from Jason Schmelling on December 12, 1999. The adjudication, dated February 9, 2000, reviews the testimony of witnesses, discusses the exchange of $700.00 for the land described in the quitclaim deed, considers the "major boundary dispute" presented by the HO Schmelling Tara, and finds that Schmelling Tara is clearly staked out by the works he had done on the parcel sold to him by Job. That Schmelling Tara was planting, cultivating, harvesting at the upper portion of the parcel in question and never the lower portion. That this is in accord to the testimonies of the HO of Job. The Land Commission considered all

evidence presented by Appellants and addressed the boundary dispute raised by them. We hold that the Land Commission had sufficient evidence to support its findings in the adjudication.

      The Land Court took over the responsibilities of the Land Commission and is required by statute to give effect to determinations issued by the Land Commission. Kos. S.C. § 11.616(b). It does not have the discretion to ignore a determination by the Land Commission because it is handwritten or because it has not yet been served on the parties. The duty of the Land Court is to take over, or "succeed" the responsibilities of the Land Commission, not re-hear matters previously decided by them. When the Land Court issued its order to dismiss Parcel 092M08 from the pending case, based on the record from the Land Commission, it properly complied with Kos. S.C. § 11.616.

      Second, the Appellants claim a violation of due process and action contrary to law because of the Land Commission’s failure to give notice of its adjudication. In reviewing the Land Commission's decision, the Court considers whether the Land Commission exceeded its constitutional or statutory authority, has conducted a fair proceeding, has properly resolved any legal issues and has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988) cited in Isaac v. Benjamin, 9 FSM Intrm. 258, 259 (Kos. 1999). In Isaac, this Court held that actual notice as required by statute must be given for preliminary and formal hearings at the Land Commission. Notice is required because it gives a chance to be heard. It remanded the case back to the Land Commission to give notice and conduct preliminary inquiries, formal hearings, and take evidence as necessary to issue determinations of ownership.

      The consequences for failing to give notice of decisions are different. The party has had a chance to be heard and to present evidence. Serving notice of an adjudication, or decision, is required in order to give the party a chance to appeal. Kos. S.C. Section 11.614 states that an appeal shall be made within sixty days of service of the written decision upon the party. If a party is not properly served notice of a determination of ownership, the appeals period does not run. Sigrah v. Kosrae Land Comm’n, 11 FSM Intrm. 169, 174 (Kos. S. Ct. Tr. 2002).

      If a party was not served notice and was then denied the right to appeal, his due process rights are violated. Here, the parties received determination by the Land Commission from the Land Court. It granted Appellants’ request for a continuance after issuing its decision to dismiss Parcel 092M08 from its pending case. It agreed to consider Appellants’ Motion to vacate the determination, if it was filed in writing. When Appellants filed their appeal, this Court agreed to hear the matter. Appellants had notice and an opportunity to be heard at the preliminary and formal hearings. They participated in both the preliminary and final hearings and presented evidence regarding the alleged transfer of the parcel from Job Kurr to Schmelling Tara. When they were not served with the adjudication made by the Land Commission, the appeals period did not run. They were given an opportunity to have the Land Court reconsider its decision to remove Parcel 092M08 from the pending case, based on the Land Commission’s adjudication. And, they were given the opportunity to be heard in this appeal. We hold that the Land Commission and Land Court complied with statutory requirements and conducted a fair proceeding.

      Based upon the record and the above analysis, I conclude that the Land Court’s decision

[14 FSM Intrm. 526]

pertaining to parcel 092M08 was based on sufficient evidence and was not contrary to law.

      Therefore, the decision of the Land Court is affirmed.

II.   Judgment.

      Judgment is entered in favor of the Appellees and against the Appellants.

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