*    *    *    *

HEADNOTES

*    *    *    *

COURT'S OPINION

MARTIN G. YINUG, Special Justice:

On August 12, 2011, this court ordered Winfred Allen Mackwelung ("Winfred") and the other Heirs of Allen Mackwelung ("Heirs") ("the parties") to file, on or before August 31, 2011, briefs on the issue of adequacy of service with regard to notice of the February 23, 2010 Kosrae Land Court heirship determination proceeding. The court further ordered that, because of the history of delays in this matter, the parties either send scanned conformed copies of the filed briefs via e-mail to fsmcourtyap@mail.fm or send conformed copies by facsimile, on or before Wednesday, August 31, 2011.

On August 31, 2011, the Heirs filed a brief, and Winfred's counsel filed a Motion for Enlargement of Time. On September 5, the Heirs filed a brief asserting that Winfred had waived his Due Process claim by failing to respond to the August 12, 2011 order. On September 6, Winfred's counsel submitted a nonconformed copy of a brief in response to the August 12, 2011 order.

I. WINFRED'S MOTION FOR ENLARGEMENT

Winfred's Motion for Enlargement cites as cause the fact that his counsel had begun working on the brief but was unable to submit it on time "due to the method of consultation via e-mail that [counsel] has with her client, who currently lives in California." Under the Rules of Civil Procedure for the Kosrae State Court,

the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period [ordered], or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect . . . .

Kos. Civ. R. 6(b) (emphasis added).

Because granting a motion for enlargement is within the discretion of the court, such a grant is not mandatory. This court has noted the history of delays in this matter. See Order for Br. at 3 (Aug. 12, 2011). This court has also time and again afforded Winfred opportunities, despite delays, to present the merits of his case. He has not done so. Winfred's counsel's argues that communicating by e-mail is inconvenient and takes too long. The court notes that Winfred's counsel, Ms. Marstella E. Jack, has a phone number, as well as a facsimile number. The court further notes that telephone service in the FSM is provided by FSM Telecom Corporation ("FSMTC"), and that all phone books, also

[18 FSM R. 14]

provided by FSMTC, instruct users on the proper method for making international phone calls. The court is confident that, since Winfred is confined by his doctors and not allowed to travel, Ms. Jack should have little problem locating him via an international phone call.

For these reasons, the court DENIES Winfred's Motion for Enlargement.

II. ADEQUACY OF NOTICE FOR FEBRUARY 23, 2010 PROCEEDING

The Heirs' brief addressed the issue about which the court asked for information-i.e., the adequacy of notice, for purposes of Kos. S.C. § 11.613, for the February 23, 2010 Kosrae Land Court heirship determination proceeding. The Heirs make three claims: (1) since Winfred had not objected to the Heirs' counsel's representation of all heirs, including Winfred, service on the Heir's counsel was sufficient as service on Winfred, pursuant to Kos. Land Ct. R. 5; (2) notice was posted and broadcast according to Kos. S.C. § 11.613, and Winfred had himself failed to give adequate notice to the Land Court of his mailing address, making impossible any off-island notice via certified mail forty-five (45) days prior to the hearing under Kos. S.C. § 11.613(5); and (3) notice was adequate because the Land Court's May 27, 2010 Memorandum of Decision asserted the same fact.

The court agrees in part with the Heirs' argument that the Land Court's finding that notice "was duly served . . . as prescribed by law" is a finding of fact and as such should not be disturbed. Heirs' Br. at 6. Generally, a finding of fact, though presumptively correct, may nevertheless be reversed or vacated if a challenger proves clear error. See, e.g., George v. Albert, 17 FSM Intrm. 25, 30 (App. 2010). Here, however, the Land Court has merely asserted a fact incidental to its own actions; that is, its finding of adequate notice is not a resolution of an issue brought before it. Nevertheless, the Heirs have provided evidence which strongly supports a finding that notice was adequate-i.e., the procedures which the Land Court followed in giving notice of the February 23, 2010 proceeding were adequate, and complied with the requirements of Kos. S.C. § 11.613. As Winfred had not made his off-island mailing address known to the Land Court, despite being aware of the decades-long proceedings, the Land Court could not reasonably have known either that Kos. S.C. § 11.613(5) applied, or that in serving the Heirs' counsel they were not also serving Winfred. This court cannot say, based on the evidence, that the Land Court deprived Winfred of property in an unfair fashion, and that the procedures used did not ensure a fair and rational decision-making process.

Finally, although Winfred's brief is late and his Motion for Enlargement has been denied, the court addresses some points raised therein. In his brief, Winfred acknowledges that all of the steps of Kos. S.C. § 11.613 were followed by the Land Court, except for the final step, which reads, in relevant part: "Any claimant who is residing off-island and has informed the Land Court, in writing, of an off-island mailing address shall be notified forty-five (45) days prior to a hearing by the use of certified mail, return receipt requested." Kos. S.C. § 11.613(5) (emphasis added). Again, as the Heirs argue, the long duration of this matter implies that Winfred was surely aware of the goings-on. If he had doubts as to the Heirs' counsel's ability properly to represent him, he should have let the Land Court know. Three months elapsed between the filing of the Notice of Appeal on April 13, 2006, and Winfred's departure from Kosrae. Most importantly, Kos. S.C. § 11.613(5) only obligates the Land Court to provide notice to a claimant that is off-island and has informed the Land Court, in writing, of an off-island mailing address.

Finally, Winfred also claims, in his brief, that the Heirs' counsel "should have taken reasonable steps to inform the Court [sic] and ask for additional time to locate Winfred Allen." Winfred's Br. at 6. The court is similarly troubled by the Heirs' counsel's apparent failure to locate Winfred. However, whatever the Heirs' counsel's failures are, they do not, upon Winfred's allegations of fact, prove that the Kosrae Land Court deprived Winfred of property in an unfair fashion, and that the procedures used

[18 FSM R. 15]

did not ensure a fair and rational decision-making process.

For these reasons, this court CONCLUDES that service of notice of the February 23, 2010 was adequate pursuant to Kos. S.C. § 11.613.

III. DISTRIBUTION OF FUNDS

The court's last orders, prior to Winfred's filings, were to distribute the moneys in the trust funds. Winfred's challenge ultimately went to the issue of adequacy of notice in the February 23, 2010 proceeding. Having established that service of notice was adequate, this court can see no other recourse within this action for Winfred. Though other avenues may exist, this court will not conjecture upon them.

For these reasons, this court ORDERS that the moneys in the trust funds be distributed.

IV. CONCLUSION

For the reasons outlined above, this court:

1. DENIES Winfred's Motion for Enlargement;

2. ORDERS the Trustees, Ms. Shrue C. Lonno, Chief Clerk of the Kosrae State Court, and Mr. Marciano Waguk, Administrative Officer of the Kosrae State Court, to

3. ORDERS the Trustees and each recipient or his legal representative to convene a hearing, including by telephone if reasonable, on September 21, 2011, at 9:00 a.m., for the purpose of the disbursement;

4. NOTIFIES the parties of the hearing;

5. ORDERS the Trustees to make a report of the disbursement; and

6. ORDERS the remainder of the moneys to be retained in the Trust Fund until such time as the Kosrae Land Court has issued a certificate of title for parcel 061-T-32 and determined the Heirs of Kun Mongkeya;