KOSRAE STATE COURT TRIAL DIVISION

Cite as Heirs of Tulenkun v. Heirs of Seymour and Ned, 15 FSM Intrm. 342 (Kos. S. Ct. App. 2007)

[15 FSM Intrm. 342]

HEIRS OF EDMOND TULENKUN,

Appellants,

vs.

HEIRS OF TULENSRU SEYMOUR and

HEIRS OF EDMOND NED,

Appellees.

CIVIL ACTION NO. 88-06

MEMORANDUM OF DECISION; JUDGMENT

Aliksa B. Aliksa

Chief Justice

Argued: July 19, 2007

Decided: October 4, 2007

APPEARANCES:

For the Appellants:      Chang B. William

                                    % Kosrae State Legislature

                                     P.O. Box 187

                                     Tofol, Kosrae FM 96944
 

For the Appellees:       Harry Seymour, Esq.

(Heirs of Seymour)      P.O. Box 389

                                    Tofol, Kosrae FM 96944
 

For the Appellees:       Gerson Jackson

  (Heirs of Ned)            P.O. Box 174

                                    Tofol, Kosrae FM 96944
 

[15 FSM Intrm 343]

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases

       In determining whether a trial court’s findings are clearly erroneous, an appellate court must construe the evidence in the light most favorable to an appellee. A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel

       Although Trust Territory court decisions routinely relied on hand drawn maps since there was limited access to precisely drawn maps and accurate surveys, this does not mean that these earlier decisions are to be disregarded. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases

       An issue raised for the first time on appeal is waived. The reason for this rule is that the lower court was not given an opportunity to consider the issue. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases

      When the evidence cited by the appellants to support their new argument is that the hand drawn map from the earlier case does not look enough like the maps in the current case, their conjecture that they may not be the same does not leave the court with a definite and firm conviction that a mistake has been made. When construing the evidence in a light favorable to the appellees; this conjecture is not enough to demonstrate a clear error. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases

       Issues of law are reviewed de novo on appeal. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel

       The doctrine of res judicata bars repetitious litigation. Under res judicata, a final judgment on an action’s merits precludes the parties or their privies from relitigating issues that were or could have been raised in that action. The doctrine of res judicata should and does apply in Kosrae. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 347 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel

       A manifest abuse of authority, a judgment obtained unfairly or working a serious injustice, or fraud or collusion by a court, in addition to fraud and lack of jurisdiction have been considered grounds to ignore the finality of a judgment in the FSM. But, a judgment that is final through the lack of a timely appeal, and claims that the earlier judgment is ill-reasoned, unfair, or even beyond the jurisdiction does not escape the doctrine of res judicata. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 347 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel

       When the appellants do not argue manifest abuse of authority, fraud, collusion by the court, or a lack of jurisdiction but only argue that their own failure to timely pursue an appeal should not be held

[15 FSM Intrm 344]

against them now, this is not sufficient grounds to overcome the finality of a judgment, particularly after more than twenty years. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 347 (Kos. S. Ct. Tr. 2007).

Civil Procedure ) Res Judicata and Collateral Estoppel; Judgments ) Stipulated

       Even if the judgment was based on the parties’ agreement, when there is no suggestion of fraud, lack of jurisdiction, or other serious injustice; only that the appellants themselves failed to timely pursue their case in the past and they claim that this should not be held against them but they recognize that they had two previous opportunities to pursue their case and that their own inaction led to the prior appeal’s dismissal, under these circumstances, the policy supporting finality of judgments should apply and the earlier stipulated judgment should be treated as a final judgment precluding relitigation of ownership. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 347 (Kos. S. Ct. Tr. 2007).

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COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

       Heirs of Edmond Tulenkun, Appellants, appealed an Order of Dismissal by the Land Court dated May 18, 2006 awarding ownership of Parcel Nos. 018U01 and 018U02, locally known as Yawal, in Utwe, to Heirs of Tulensru Seymour and Heirs of Edmond Ned, Appellees. The Land Court relied on the judgment in TTHC Kosrae Tr. Div. No. 4-76 (TTHC 4-76) and Appeal No. 319 (319), holding that case had previously awarded ownership of Yawal to Tulensru Seymour.

      Following argument by counsel on July 19, 2007, I took the matter under advisement. Chang William represents Appellants, Harry Seymour represents Appellees HO Tulensru Seymour, and Gerson Jackson represents Appellees HO Edmond Ned.

I.  Facts and Procedure

      The history of this dispute is divided into sections by date.

1956: TTHC No. 99

       Ownership of the land known as Yawal in Utwe was first litigated in TTHC Civil Action No. 99 (TTHC 99), Tulensru Seymour, Plaintiff v. Edmond T., Defendant. The Plaintiff in that case was also bringing the action on behalf of his brother Edman Ned. The Order, entered on July 27, 1956, stated: "the lower or swampy part of the land known as Yawal, in Utwa, Kusaie, this part consisting of a triangular piece near the shore and most of it west of the river running through it, is owned completely by the defendant Edmond T., who lives in Utwa."

       It went on to state that Plaintiff Tulensru Seymour and his brother Edman Ned, who live in Tafunsak, have no rights in the land and also ordered costs be awarded to Edmond T.

1976 through 1997: TTHC 4-76 and 319

       Tulensru Seymour filed a Complaint against Oteniel Edmund and Brothers on February 11, 1976, TTHC 4-76. The Complaint refers to the Judgment in TTHC No. 99 and says that the earlier judgment addressed ownership of "FO135, FO144, GO145, pa 143." The Complaint also states that most of 135 "was not included to Edmund Tulenkun’s land." The Judgment, entered on April 23, 1979, states that

[15 FSM Intrm 345]

the parties agreed to a boundary line between their lands as shown by "xx xx" on an attached map.

       Edmond Tulenkun filed a motion to set aside the judgment in TTHC 4-76 on April 24, 1979, which was denied. He then appealed the judgment, labeled Civil Appeal No. 319, and requested a stay of execution of the judgment on July 23, 1979. The appeal was dismissed for not specifically identifying the errors claimed and for failing to prosecute on October 29, 1980. Edmond Tulenkun later asked that the dismissal be set aside. The appeal was reinstated, proceedings were stayed for 90 days, the parties were ordered to attempt settlement on the boundary, and Edmond Tulenkun was ordered to perfect his appeal within 90 days if no agreement was reached. On June 18, 1982, the appeal was again dismissed for not specifically identifying the errors claimed and for failing to pursue the appeal.

       There were no further legal proceedings from 1982 until 1997.

1997-2006; LC 53-05, The Current Case

      In December 1997, Appellants and HO Alokoa Seymour received notice of a visit to Yawal by the Land Commission. The next action was an issuance of hearing notices by the Land Court in September 2005. A preliminary hearing was held in November 2005. The parcel numbers assigned were 018U01 and 018U02. Appellees HO Seymour requested dismissal of Appellants’ claims arguing that the decision in TTHC 4-76 and 319 controlled ownership. He argued that the twenty-year statute of limitations had passed and that the judgments in those cases were binding under the doctrine of res judicata. Appellants argued that res judicata was not absolute, that they should not be punished for the failure of counsel to diligently litigate the claim in the 1980s, and that TTHC 99 pre-dated TTHC 4-76 by some 23 years so the statute of limitations prevented enforcement of TTHC 4-76.

       On May 18, 2006, in an Order to Dismiss, the Land Court held that it cannot disregard the judgment in the TTHC cases under Kosrae State Code Section 11.612(6). It held that the two TTHC cases referred to different land and therefore res judicata was not applicable as between TTHC cases 99 and 4-76. It dismissed Appellants’ claims. Appellants requested that the dismissal be vacated and set aside, arguing again that the cases referred to the same land, that TTHC 99 controlled instead of TTHC 4-76 and 319, and that they should not be barred by res judicata from asserting their claims. They continued to argue that res judicata should have barred TTHC 4-76 and 319 and that the Land Court should consider those decisions as void. Appellees’ HO Seymour argued to the Land Court that the judgment in TTHC 99 refers to the disputed land as "the lower and swampy part of the land known as Yawal in Utwe . . . consisting of a triangular piece near the shore and most of it west of the river running through it," that lot 143 was triangular, near the shore, with most of it west of the river running through it, and that TTHC 4-76 and 319 concerned different land, lots 153 to 129-130. The Land Court affirmed its dismissal and Appellants timely filed their appeal to this Court.

II.  Analysis

Issues on Appeal

       Appellants claim that the land at issue in LC 53-05 may not be the same land as in TTHC 4-76 and therefore the Land Court must hold a hearing on the merits. They claim the Land Court improperly assessed the evidence from the earlier case when deciding it was the same land and improperly relied on res judicata because the subject matter of the two cases are different.

      Appellees state that it is the same land, that Appellants failed to properly pursue their appeal of TTHC 4-76, and that res judicata and the statute of limitations foreclose their claims.

[15 FSM Intrm 346]

      For purposes of this appeal, the issues are summarized as:

      1.  Did substantial evidence support the Land Court’s findings?

      2.  Was the Land Court’s application of res judicata contrary to law?

Substantial Evidence Issue

       Appellants argue on appeal that the subject land in LC 53-05 may not be the same as the land at issue in TTHC 4-76. Therefore, the Land Court lacked substantial evidence to dismiss their claim based on res judicata and they are entitled to a remand and a hearing. They also argue that res judicata, relying on TTHC 99, bars the decision in TTHC 4-76 and 319. Appellees argue that TTHC 99 is not about the same parcels as TTHC 4-76 and 319 and that the Land Court’s decision stating TTHC 4-76 and 319 control ownership should be upheld.

      In determining whether a trial court’s findings are clearly erroneous, an appellate court must construe the evidence in the light most favorable to an appellee. A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. George v. Nena, 12 FSM Intrm. 310, 313 (App. 2004); Damarlane v. United States, 8 FSM Intrm. 45, 53 (App. 1997); Kinere v. Kosrae, 6 FSM Intrm. 307, 309 (App. 1993).

      The only significant factual issue in the Land Court’s dismissal of Appellants’ claim is whether the land in the TTHC 99 is the same land as TTHC 4-76. The Land Court found that the land in TTHC 99 was not the same as that in TTHC 4-76 so res judicata did not bar the decision issued in 4-76. The Land Court reviewed the files, maps, and decisions in the earlier cases. Appellants argue that the Land Court did not assess this evidence correctly, that there was no survey or map made after TTHC 99, and that the sketches from the earlier cases present a clear unlikeness to the boundaries established by maps and surveys in the Land Court case. This Court notes that the Trust Territory decisions routinely relied on hand drawn maps and there was limited access to precisely drawn maps and accurate surveys. This does not mean that the earlier decisions are to be disregarded. In addition, a plain reading of the language of the earlier decisions supports the Land Court’s finding that the land in TTHC 99 is not the same as the land in TTHC 4-76. When looking at this evidence in a light favorable to Appellees, Appellants’ claim of a clear unlikeness between an old hand drawn map and a precise map developed from accurate, technologically advanced survey data is not sufficient to support a claim of clear error.

      Appellants argue for the first time on appeal that the land in TTHC 4-76 may not be the land at issue in this case and that possibility is enough to order a hearing on remand. An issue raised for the first time on appeal is waived. George v. Nena, 12 FSM Intrm. 310, 319 (App. 2004). See also FSM v. Moroni, 6 FSM Intrm. 575, 579 (App. 1994). The reason for this rule is that the lower court was not given an opportunity to consider the issue. However, if it is considered, the argument fails. Both cases considered ownership of Yawal and the parties are the same. The evidence cited by Appellants to support this new argument is that the hand drawn map from TTHC 4-76 does not look enough like the maps in the current case. Appellants’ conjecture that they may not be the same does not leave this Court with a definite and firm conviction that a mistake has been made and when construing the evidence in a light favorable to Appellees; this conjecture is not enough to demonstrate a clear error.

      I hold that the Land Court’s decision was supported by substantial evidence.

Application of res judicata

Issues of law are reviewed de novo on appeal. Sigrah v. Kosrae, 12 FSM Intrm. 320, 324 (App. 2004); George v. Nena, 12 FSM Intrm. 310, 313 (App. 2004); Kosrae v. Skilling, 11 FSM Intrm. 311,

[15 FSM Intrm 347]

315 (App. 2003); Tulensru v. Wakuk, 10 FSM Intrm. 128, 132 (App. 2001).

      The doctrine of res judicata bars repetitious litigation. "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. Ittu v. Charley, 3 FSM Intrm. 188, 190 (Kos. S. Ct. Tr. 1987) (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed.2d 308, 313 (1980). In Ittu, this Court considered a claim to land where the Trust Territory Court had previously issued an order concerning ownership. The Court dismissed Plaintiff’s second claim based on res judicata. Plaintiff then requested a new hearing. In refusing to grant a new hearing, the Court discussed the policies supporting the doctrine of res judicata and concluded that it should and does apply in Kosrae.

      A manifest abuse of authority, a judgment obtained unfairly or working a serious injustice, or fraud or collusion by a court, in addition to fraud and lack of jurisdiction have been considered grounds to ignore the finality of a judgment in the FSM. See United Church of Christ v. Hamo, 4 FSM Intrm. 95, 107 (App. 1989); Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 519 (Pon. 1994); Ungeni v. Fredrick, 6 FSM Intrm. 529, 531 (Chk. S. Ct. App. 1994), respectively. But, a judgment that is final through "lack of a timely appeal, and claims that the earlier judgment is ill-reasoned, unfair, or even beyond the jurisdiction" does not escape the doctrine of res judicata. United Church of Christ v. Hamo, 4 FSM Intrm. 95, 107 (App. 1989). Here, the judgment in TTHC 4-76 was based on the agreement of the parties. Later, for unknown reasons, Tulenkun appealed and then failed to pursue his appeal in TTHC 319 after at least two opportunities, again for unknown reasons. Appellants Tulenkun do not argue manifest abuse of authority, fraud, collusion by the court, or a lack of jurisdiction. They only argue that their own failure to timely pursue an appeal should not be held against them now. This is not sufficient grounds to overcome the finality of that judgment, particularly after more than twenty years.

       The Court recognizes that the judgment in TTHC 4-76 was based on an agreement of the parties and that a judgment based on an agreement of the parties does not always have res judicata effect. For example, see Mid-Pacific Constr. Co. v. Semes (II), 6 FSM Intrm. 180, 185 (Pon. 1993). However, in this case Appellants had two opportunities to appeal that they failed to pursue and allowed a significant amount of time to pass without raising another claim. There is no suggestion of fraud, lack of jurisdiction, or other serious injustice; only that Appellants themselves failed to timely pursue their case in the past and this should not be held against them. They recognize that they had these previous opportunities to pursue their case and that their own inaction led to the dismissal of the prior appeal. Under these circumstances, the policy supporting finality of judgments should apply and the judgment in TTHC 4-76 should be treated as a final judgment precluding relitigation of ownership.

       Accordingly, I hold that the Land Court properly gave res judicata effect to the decision in TTHC 4-76 and 319 relying on Kosrae State Code Section 11.612(6) and Appellants’ claims were properly dismissed.

III.  Judgment.

      Judgment is entered in favor of the Appellees. The Land Court decision, entered on May 18, 2006, dismissing the claims of Appellants as to ownership of parcels 018U01 and 018U02 is upheld.

      The Court notes for purposes of clarification only that claims between the two Appellees were continuing, according to the decision of the Land Court. Given the length of time these disputes have existed, the Land Court is encouraged to promptly resolve the claims.

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