KOSRAE STATE COURT TRIAL DIVISION

Cite as Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141 (Kos. S. Ct. Tr. 2007)

[15 FSM Intrm. 141]

HEIRS OF PALIKKUN OBET

Appellants,

vs.

HEIRS OF JESSE WAKAP,

Appellees.

CIVIL ACTION NO. 20-06

MEMORANDUM OF DECISION; JUDGMENT; AND ORDER TO LAND COURT

Aliksa B. Aliksa

Chief Justice

Decided:  June 26, 2007

APPEARANCES:

For the Appellants:   Snyder H. Simon, Esq.

                                  P.O. Box 1017

                                  Tofol, Kosrae   FM   96944
 

For the Appellees:    Albert T. Welly

                                 Kosrae State Legislature

                                 P.O. Box 187

                                Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Briefs, Record, and Oral Argument

       When, because the appellees were allowed to file an untimely brief, the court exercised its statutory discretion and ordered that they would not be allowed to present oral argument, and when the appellants’ counsel requested a continuance and claimed that the appellees’ counsel agreed to the continuance, but appellees’ counsel opposed the continuance and appeared at the time set for argument stating he had not agreed and that the appellants had not shown sufficient grounds for a continuance and then requested that appellants’ counsel not be allowed to present oral argument, the court ordered that the case would be decided on the briefs and record and that neither party would be allowed to present oral argument. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 143-44 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases

      When, in a March 2004 Order, the court held that the 120-day time limit applied and that the appeal had been filed within 120 days of service of the Land Commission’s decision and therefore the Kosrae State Court had jurisdiction to hear the appeal, and when the appellants presented no new facts or legal argument that would merit reconsidering or changing that decision, it is the law of the case;

[15 FSM Intrm 142]

which the appellants could have appealed after the September 2005 decision, but chose not to do so. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2007).

Constitutional Law ) Due Process ) Notice and Hearing

       When the appellants’ counsel was given notice of the hearing and chose not to appear, request a continuance, or take any other action, the appellants’ due process rights were not violated because due process requires notice and an opportunity to be heard and this was provided. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases

      The standard of review for appeals from the Land Court is set by statute. 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 decision is based upon substantial evidence, the 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. If findings are adequately supported and the evidence has been reasonably assessed, the findings will not be disturbed on appeal. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases

      When the evidence presented at the Land Court hearing on remand is undisputed because the appellants chose not to appear; when the Land Court carefully considered the appellants’ testimony from the records in the case to reach its decision; and when the Land Court’s findings are adequately supported by the evidence, the court will not disturb those findings on appeal. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 145 (Kos. S. Ct. Tr. 2007).

Property ) Adverse Possession

      In order to successfully assert a claim that property rights have been acquired through adverse possession, a party must establish that he entered the land at issue and remained in possession of the land for the entire statutory period of 20 years. In addition to actual possession for the statutory period, adverse possession requires the possessor’s occupancy to have been open and notorious, exclusive, continuous and under a claim of right. Thus, a party claiming property rights based on adverse possession must demonstrate that he came onto the land with the intent of taking complete and exclusive control of the property. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 145 (Kos. S. Ct. Tr. 2007).

Property ) Adverse Possession

      Persons claiming land by adverse possession must show they had actual, exclusive, continuous, open and notorious possession under a claim of right for the statutory period of limitations, twenty years, before successfully asserting ownership of the land under this doctrine. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 145 (Kos. S. Ct. Tr. 2007).

Property ) Adverse Possession; Statutes of Limitation

      Once a claim is filed in court, the time set under a statute of limitations stops running. This means that a claim for adverse possession does not include the time after an action has been filed in a court. Therefore, the 20-year period for the claimants to occupy land openly, notoriously, exclusively, continuously, and under a claim of right must run prior to the time claims were filed. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 145 (Kos. S. Ct. Tr. 2007).

Property ) Adverse Possession

      The appellants did not cite any facts in the record to show that they exclusively and continuously possessed the land for any twenty year period prior to the time the claims were filed when the

[15 FSM Intrm 143]

testimony showed that the appellees gave permission for others to use the land, that the appellees sometimes occupied the land, and that the appellees placed markers claiming ownership at the time of the survey. This evidence shows that the appellants did not have exclusive and continuous possession of the land. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 145 (Kos. S. Ct. Tr. 2007).

Property ) Adverse Possession

      All elements of adverse possession must be demonstrated before title is issued based on this doctrine and when the appellants did not prove all of the elements, their claim of ownership based on adverse possession could not be upheld. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 145 (Kos. S. Ct. Tr. 2007).

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COURT'S OPINION

ALIKSA B. ALIKSA, Chief Justice:

      The dispute in this case arises from alleged verbal gifts of land from the first Jesse Wakap to three adopted sons, Jesse Wakap, Palikkun Obed, and Clinton Benjamin.  There are a number of pending and prior cases resulting from disagreements about dividing the first Jesse Wakap’s lands among these sons.  This case is about Parcel No. 048U06, known as Tenouf.

     Heirs of Jesse Wakap v. Heirs of Palikkun Obet, Case No. 64-03, was first remanded in September 2005.  This Court held that the Land Commission proceedings, held prior to the creation of the Land Court, violated statutory requirements and the due process rights of the Heirs of Jesse Wakap and set aside the determination of ownership on Parcel No. 048U06, Tenouf.  The Land Court was directed to hold new hearings and consider any evidence, including testimony, which was received at the prior hearing, giving appropriate weight to hearsay and statements not subject to cross-examination, and giving appropriate weight to documents without foundation or authentication.

      The Land Court held a hearing after remand on December 29, 2005.  All parties received proper notice of the hearing, but Appellants and their counsel, Snyder Simon, did not appear. Appellees appeared with their counsel, Albert Welly.  As directed by this Court, the Land Court considered the evidence submitted at the new hearing, as well as the evidence received at prior hearing, and disregarded the evidence that had been considered in violation of due process.

      The Land Court issued its Memorandum of Decision on March 6, 2006 and determined that Idosi Jesse, one of the heirs of Jesse Wakap, should be registered as the owner of Parcel No 048U06, Tenouf.

      Appellants filed this appeal on March 17, 2006.  They raise the following issues:

1.  Appellees’ original notice of appeal was not timely filed.

2.  The decision is not supported by substantial evidence.

3.  The decision was contrary to law because it did not consider adverse possession.

4.  The Land Court violated Appellants’ due process rights when it proceeded at the hearing in December 2005 without Appellants present.

      After multiple continuances, Appellees filed their brief on March 20, 2007 arguing that the Land Court’s decision was based on substantial evidence, was not contrary to law, and should be upheld on appeal.  Because Appellees were allowed to file an untimely brief, on March 9, 2007, this Court

[15 FSM Intrm 144]

exercised its discretion under Kos. Code §11.614(5) and ordered that they would not be allowed to present oral argument.

       Argument was scheduled for May 11, 2007.  On May 4, 2007, Appellants’ counsel requested a continuance because he made appointments to meet clients in Pohnpei on May 7, 8 and 9 and intended to attend the fortieth day of his nephew’s funeral that week in Pohnpei.  He claimed that Appellees’ counsel agreed to the continuance.  Appellees’ counsel opposed the continuance and appeared at the time set for argument stating he had not agreed and that Appellants had not shown sufficient grounds for a continuance.  Appellees then requested that Appellants’ counsel not be allowed to present oral argument.  This Court ordered that the case will be decided on the briefs and records and that neither party would be allowed to present oral argument and issued a written order on May 15, 2007.  Snyder Simon represents Appellants and Albert Welly represents Appellees.

      Based on the records in this matter, arguments made in the briefs, and applicable law, I find in favor of Appellees and uphold the decision of the Land Court.

I.  Analysis and Conclusions

      We address issues one and four first, because they are easily disposed of.

      Issue 1:  Appellees’ original notice of appeal was not timely filed.

      This issue was first briefed and argued at a show cause hearing in 2004, when the earlier appeal in Case No. 64-03 was heard.  In a March 2004 Order, this Court held that the 120 day time limit applied and that this appeal had been filed within 120 days of service of the Land Commission’s decision.  Therefore, the Kosrae State Court had jurisdiction to hear the appeal. Appellants presented no new facts or legal argument that would merit reconsidering or changing that decision.  Further, it is the law of the case; Appellants could have appealed this issue after the decision was issued in Case No. 64-03, in September 2005 [Heirs of Wakap v. Heirs of Obet, 13 FSM Intrm. 418 (Kos. S. Ct. Tr. 2005)], but chose not to do so.

      Issue 4:  Appellants’ due process rights were violated because they did not appear at the hearing.

      Appellants argue that because they did not appear at the time set for hearing, the Land Court violated their due process rights by going forward and hearing evidence.  However, their counsel was given notice of the hearing and chose not to appear, request a continuance, or take any other action.  Due process requires notice and an opportunity to be heard.  This was provided.  Counsel is advised that an intentional failure to appear at a hearing where he had proper notice may be grounds for contempt in some circumstances.  A failure to appear when they received proper notice may also be grounds for a default in some circumstances.  Counsel is cautioned against presenting this frivolous argument in the future.

       Issue 2:  The decision was not supported by substantial evidence.

      The standard of review for appeals from the Land Court is set by statute.  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. Kos.S.C. § 11.614.  In considering whether the decision is 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).  If findings are adequately supported and the evidence has been reasonably assessed, the findings will not be disturbed on appeal.  Tulenkun v. Abraham, 12 FSM

[15 FSM Intrm 145]

Intrm. 13, 17 (Kos. S. Ct. Tr. 2003).

      The evidence presented at the hearing on remand is undisputed because Appellants chose not to appear.  However, the Land Court carefully considered Appellants’ testimony from the records in this case to reach its decision.  The Land Court found that Appellees’ family controlled Tenouf, that they authorized others to work on the land and worked on it themselves since the 1932 Japanese registration process.  Kinsiro Nena, whose father had resided on Tenouf with the permission of Jesse Wakap, testified regarding Jesse Wakap’s ownership and control of Tenouf. Idosi Jesse, another witness, was present at the 1970 survey of Tenouf.  According to his testimony, Palikkun Obet was present but failed to place markers to identify his ownership claim. Jesse Wakap was also present and placed markers to show his claim.  We hold that the Land Court’s findings are adequately supported by this evidence and will not disturb those findings on appeal.

      Issue 3:  The decision was contrary to law because it did not consider adverse possession.

      Securing ownership of property by adverse possession is discussed in the case of Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 395 (Pon. 1996):

In order to successfully assert a claim that property rights have been acquired through adverse possession in the FSM, a party must establish that he entered the land at issue and remained in possession of the land for the entire statutory period of 20 years. 6 F.S.M.C. 802(1)(b).  In addition to actual possession for the statutory period, adverse possession requires the possessor’s occupancy to have been open and notorious, exclusive, continuous and under a claim of right.  Etscheit v. Adams, 6 FSM Intrm. 365, 389 (Pon. 1994).  Thus, a party claiming property rights based on adverse possession must demonstrate that he came onto the land with the intent of taking complete and exclusive control of the property.

(cited in Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 103 ( Pon. 2002)).

      Appellants must show they had actual, exclusive, continuous, open and notorious possession under a claim of right for the statutory period of limitations, twenty years, before successfully asserting ownership of the land under this doctrine. Kosrae does not have statutes defining adverse possession, but Kosrae has a twenty-year statute of limitations for bringing actions disputing title to land, similar to the statute referred to in the FSM Code.  Because the explanation of the doctrine in Etscheit, supra, accurately reflects the historic doctrine of adverse possession and is being applied elsewhere in the FSM, the doctrine as stated above will also be applied in Kosrae.

      Once a claim is filed in court, the time set under a statute of limitations stops running.  This means that a claim for adverse possession does not include the time after an action has been filed in a court.  Therefore, the 20-year period for Appellants to occupy Tenouf, openly, notoriously, exclusively, continuously, and under a claim of right must run prior to the time claims were filed.

      Appellants do not cite any facts in the Record to show that they exclusively and continuously possessed the land for any twenty year period prior to the time the claims were filed.  The testimony shows Appellees gave permission for others to use the land, that Appellees sometimes occupied the land, and that Appellees placed markers claiming ownership at the time of the survey.  This evidence shows Appellants did not have exclusive and continuous possession of the land.  All elements of adverse possession must be demonstrated before title is issued based on this doctrine.  Because Appellants did not prove all of the elements, the Land Court could not have upheld their claim of ownership based on adverse possession.

[15 FSM Intrm 146]

      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, the decision of the Land Court is affirmed.

II.  Judgment and Order to Land Court.

      The Appellants have failed to show that the Kosrae Land Court decision on Tenouf 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 March 6, 2006, is hereby affirmed.

      The Kosrae Land Court shall issue the Certificate of Title sixty days after service of this Memorandum of Decision and Judgment, or as soon thereafter as possible.

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