IN THE
CHUUK STATE SUPREME COURT
APPELLATE DIVISION - WENO
Federated States of Micronesia
Cite as Emilios v. Setile, 1 CSR 17 (1994)

[1 CSR 17]
KILOTA EMILIOS,
Appellant,

vs

MISAEL SETILE,
Appellee.

CA APP NO 19

OPINION

Argued  September 9, 1994
Decided  October 21, 1994

Before:
     Hon. Machime O'Sonis, Associate Justice, Chuuk State Supreme Court
     Hon. Yoster Carl, Temporary Justice, (Associate Justice, Pohnpei State
          Court)
     Hon. Midasy Aisek, Temporary Justice, (Trial Counsellor, Weno, Chuuk)

Appearances:
                              For Appellant                  For Appellees
                              Anter Chipen                  Joseph Muritok
                              Trial Counsellor              Attorney General's Office
                              Weno, Chuuk, FM          Weno, Chuuk, FM

[1 CSR 18]
Headnotes
(Not in original written decision)
The appellate court reviews challenges to a trial courts factual findings under the clearly erroneous standard.  Emilios v Setile, p 18

Rule 52 states that the findings of fact of a trial court shall not be set aside unless clearly erroneous and that the appellate court shall also give "due regard" to the "opportunity of the trial court to judge the credibility of the witnesses.  Emilios v Setile, p 18

The appellate court starts its review of a trial court's factual findings by presuming the findings are correct.  Emilios v Setile, p 19

The appellant has the heavy burden to clearly demonstrate error in the trial court's factual findings when the findings of the trial court are based primarily upon oral testimony.  Emilios v Setile, p 19

An  appellate court must be "especially circumspect" in reviewing a trial court for clear error when there was conflicting evidence presented on issues of fact. Emilios v Setile, p 19

The appellate court will not set aside the factual findings of the trial court as clearly erroneous unless the appellant demonstrates that one of three conditions exist. Emilios v Setile, p 19

An appellate court may only reverse a trial court's factual findings as clearly erroneous,   if it is shown: (1) that the factual finding of the trial court was not supported by substantial evidence in the record; or (2) that the factual finding was the result of an erroneous conception of the applicable law;  or (3) that after a consideration of the entire record the appellate court is left with a definite and firm conviction that a mistake has been made.  Emilios v Setile, p 19  

An appellant that has not  provided any citation in the record where the points he argues exist nor any place in the record where the trial court was in error fails to sustain his burden of proof and the appellate court must affirm.  Emilios v Setile, p 19

MACHIME O'SONIS, Associate Justice
     The is an appeal from a judgment in the Trial Division that awarded the title to a parcel of land on Amwes Island in Namoluk Municipality.  The court below determined that the appellees (herein referred to as Kachuo) were the traditional owners of the parcel known as Ululun Pieman, which is part of a larger parcel known as Pieman.  The appellants (herein referred to as Kilota) appealed claiming the trial court wrongly determined the facts and therefore the ownership.  We affirm the judgment.

I
FACTS
     The title to this property was originally vested with the Alien Property Custodian in 1961.  In 1981 a case was filed in the former Trust Territory High Court as HC Case 106-81.  That court determined that the Trust Territory Government had no interest in the land and it should be returned to the traditional owners.  A second High Court action, HC Case 46-83, was instituted in 1983 to quiet title.  Judgment was entered based on an agreement between the parties that the title should vest in "the traditional owners of said land, who shall be determined by the Court or by the Land Commission."   This case was transferred to the Trial Division of this court.  A trial was held and two different lineages represented by Kilota and Kachuo each claimed to be the traditional owners.  The lower court found that the lineage represented by Kachuo was the traditional owners of the land in question.  

     Kilota appealed.  Kilota's counsel has not identified the actual basis of any claimed error.  At oral argument, counsel for appellant was unable to point to any specific error in the trial court's judgment other than his belief the trial court awarded title to the wrong party.

II
ISSUES
     Given the wholesale failure of appellant's counsel to explain to this Court the errors committed below we can only assume that appellant is challenging the trial court's factual findings in general.  We review such challenges under the clearly erroneous standard.

III
 FACTUAL FINDINGS OF THE TRIAL COURT

A. Rule 52
     The factual findings of a trial court are governed by Rule 52 of our rules of civil procedure.  Chk.R. Civ. P., Rule 52.  That rule states that the "[f]indings of fact shall not be set aside unless clearly erroneous...". Chk. R. Civ. P., Rule 52(a).  This is the source of the standard of appellate review.  The rule further provides that the appellate court shall also give "due regard" to the "opportunity of the trial court to judge . . . the credibility of the

[1 CSR 19]

witnesses." Id.  

     The appellate court starts its review of a trial court's factual findings by presuming the findings are correct.  Cheni v. Ngusun, 1 CSR 35(1994) [desided this same day]. This means that the appellant has the burden to clearly demonstrate error in the trial court's findings. Id.  The second part of the rule establishes a very strong burden for the appellant to overcome when the findings of the trial court are based primarily upon oral testimony. Id.   The reason for this heavy burden is that the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching it's conclusions as to the witnesses' credibility. Id.  The reviewing court does not have the same opportunity.  As a result, the appellate court must be "especially circumspect" in reviewing a trial court for clear error when there was conflicting evidence presented on issues of fact. Id.  Therefore, this Court will not set aside the factual findings of the trial court as clearly erroneous unless the appellant demonstrates that one of three conditions exist.

     One condition the appellant must show for reversal is that the factual finding of the trial court was not supported by substantial evidence in the record.  Cheni,< supra. Another condition that allows for reversal is that the factual finding was the result of an erroneous conception of the applicable law.  Id.   Finally, the appellate court may reverse a trial court's finding of fact if after a consideration of the entire record the court is left with a definite and firm conviction that a mistake has been made.  Id.  If the appellant fails to met the burden as outlined then the reviewing court can only affirm.

B. ANALYSIS
     Counsel for appellant has failed to follow the rules of appellate procedure concerning the requirements for filing a brief.  In fact, he has filed no brief but rather a list of the same arguments counsel made to the trial judge.  He has not provided any citation in the record where the points he argues exist nor any place in the record where the trial court was in error.  It is fairly clear to this Court that counsel for appellant is not qualified to handle cases in the Appellate Division of this Court.
 
      Nonetheless we have reviewed the record and we hold that the trial court's factual findings were not clearly erroneous under the standards set forth above.  

IV
CONCLUSION
     Having reviewed the record and finding no error, we affirm the judgment.
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