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COURT'S OPINION

YOSTER CARL, Temporary Justice, Presiding:

     This appeal arises from a dispute over the ownership and control of a tideland named "Nenus" along the shore of the island of Tonoas between Nukuno and Pwene villages. The trial court found, among other things, the plaintiff, Seni Moses, and the members of her Sopu lineage to be the traditional owners of the tideland "Nenus" and ordered the defendants, Roke Phillip and Rockson Phillip, not to disturb the plaintiffs' peaceful use of Nenus. We affirm that trial court determination. Our reasons follow.

[10 FSM Intrm. 543]

I. Background

     This dispute began in 1992, when, after the death of their relative Niponu, the plaintiffs (appellees herein) placed a mechen on the tideland Nenus, putting it off-limits for a time. The defendants (appellants herein), Roke and Rockson Phillip ("the Phillips"), claiming that the plaintiffs did not own Nenus, entered Nenus and destroyed the sign that the tideland was mechen. The plaintiffs, asserting that they were the legal owners of Nenus, then brought suit against the Phillips asking for a court declaration that they were the owners and for an injunction enjoining the Phillips and their agents and representatives from interfering with the plaintiffs' ownership interest.

      The tideland Nenus was once larger. The Japanese filled in part of it. The defendants' father, Yerifo Phillip, moved on to part of the filled land shortly after the Japanese left, built houses and dwelt there. The defendants claimed that not only is this dry land owned by the Immo1 Clan, of which their now deceased father was a member, but that the Immo Clan also owns the tideland Nenus and that their rights to Nenus derive from that clan. Because their father was an Immo Clan member, the defendants themselves are not members of this clan but are merely afokur to the clan. As such, they may have some permissive use rights in the clan's lands.

     The trial court found that the plaintiffs had proved by the preponderance of the evidence that they owned the tideland Nenus and enjoined interference with that ownership interest. This appeal followed.

II. Appellants' Assignments of Error

     The appellants, the Phillips, contend that the trial court committed a number of errors of fact and law. These may be summarized as: (1) the trial judge, in making his findings of fact, applied the name "Fanneson" to the wrong piece of dry land, (2) the trial judge erred in ruling that the judgment in Civil Action No. 104-91 had no bearing on the case even though it concerned the ownership of filled land that had once been part of Nenus, and (3) the trial judge erred in his denial of the defendants' oral motion to add the Immo Clan as indispensable parties. The Phillips ask that the case be remanded to the trial court for a new trial in which the Immo Clan or its members will be made a party.

III. Standard of Review

     The Phillips contend that the trial judge's findings mentioned above were clearly erroneous. "The appellate court starts its review of a trial court's factual findings by presuming the findings are correct." Emilios v. Setile, 6 FSM Intrm. 558, 560, 1 CSR 17, 19 (Chk. S. Ct. App. 1994). This means that an appellant "has the burden to clearly demonstrate error in the trial court's findings." Lewis v. Haruo, 8 FSM Intrm. 300L, 300n (Chk. S. Ct. App. 1998). "The reason for this heavy burden is that the trial court had the opportunity to view the witnesses as they testify and to observe their demeanor before reaching its conclusions as to the witnesses' credibility. The reviewing court does not have the same opportunity." Emilios, 6 FSM Intrm. at 560, 1 CSR at 19 (citation omitted). Issues of law are reviewed de novo. Shiro v. Pios, 6 FSM Intrm. 541, 543, 1 CSR 40, 42 (Chk. S. Ct. App. 1994).

[10 FSM Intrm. 544]

IV. Discussion

A. Allegedly Misnamed Dry Land

     The trial court applied the name "Fanneson" to dry land that had once been part of the tideland Nenus in Japanese times. The Phillips claim Fanneson is neighboring land and that the name of the filled land was "Pwemwan." At the start of oral argument, the Phillips offered a copy of what the purported to be Defendants' Exhibit 1, a sketch map of the tideland Nenus and nearby dry land and tideland. The Phillips claim it was admitted at trial, and they had only just noticed that it was not included in the record on appeal. But there was no indication on the sketch that it had been admitted into evidence. Nevertheless, we agreed to look at the submission. The sketch names the dry land adjacent to Nenus as "Pemwan" and calls a dry land next to "Pemwan" by the name "Fan Neson." This exhibit was apparently offered to us as proof that the trial judge erred in naming the dry land filled from Nenus.

     The proffered sketch, even if it had been admitted, would not be enough to demonstrate that this factual finding was clearly erroneous. The trial court's factual finding thus must stand. Furthermore, the Phillips do not explain how the trial court's alleged misnaming of dry land that was not the subject of this suit affected the outcome. There is thus no reversible error here.

B. Judgment in Civil Action No. 104-91

     The Phillips also claim that the trial court erred when it declared that the judgment in Civil Action No. 104-91, Onsin Sellem v. Yerifo Phillip, was not relevant to this case. The Phillips ask that the appellate panel take judicial notice of Civil Action No. 104-91. A copy of that judgment was present in the court file. Also some of what that case entailed can be gleaned from the record. The trial court considered 104-91 and found that it dealt only with the "boundaries and ownership of a filled land called Fanneson also known as Pemwan"2 and that 104-91 did "not include the tideland in dispute herein." The Phillips have not demonstrated that this finding is error. Furthermore, the 104-91 judgment does not mention any tideland at all.

     The Phillips' contention that the court should follow Civil Action No. 104-91 apparently rests on their assumption that since the filled land was once part of the tideland Nenus, both it and Nenus should have the same owners. In the 104-91 judgment, Yerifo Phillip, their father, was adjudged the owner of the filled land. That ownership was decided based on the prevailing party's (Yerifo Phillip's) long, unopposed occupation of the filled land.

     The owner of dry land, however, is not necessarily the owner of the adjacent tideland. See, e.g., Nena v. Walter, 6 FSM Intrm. 233, 236 (Chk. S. Ct. Tr. 1993) (dividing line between owners of dry land and tideland is ordinary high water mark). Tideland ownership derives from the Chuuk Constitution's recognition (as of its effective date, October 1, 1989) of traditional rights in the tidelands. Chk. Const. art. IV, § 4. Sometime during Japanese times, the government had taken away these rights and vested tideland ownership in the government. Simiron v. Trust Territory, 8 TTR 615, 620-21 (App. 1988); Protestant Mission of Ponape v. Trust Territory, 3 TTR 26, 32 (Pon. 1965); Ngiraibiochel v. Trust Territory, 485, 488 (Pal. 1958). This continued during American times. 67 TTC 2.

[10 FSM Intrm. 545]

     Since traditional rights in tideland were not recognized in the law until October 1, 1989, no prior assertion of ownership over filled land could affect the traditional tideland rights. See, e.g., Cheni v. Ngusun, 6 FSM Intrm. 544, 548, 1 CSR 35, 39 (Chk. S. Ct. App. 1994) (adverse possession claim to tideland not possible because the government owned the tidelands, and traditional rights to tidelands not restored, until October 1, 1989; because adverse possession does not run against the government; and because not enough time passed since October 1, 1989 for an adverse possession claim); see also Sellem v. Maras, 7 FSM Intrm. 1, 7 (Chk. S. Ct. Tr. 1995) (traditional rights in tidelands do not include tidelands that became dry land before the Constitution's effective date through filling or other activity that raised land above mean high tide mark), aff'd, 9 FSM Intrm. 36 (Chk. S. Ct. App. 1999); Nena v. Walter, 6 FSM Intrm. 233, 236 (Chk. S. Ct. Tr. 1993) (reversion of tidelands under article IV, section 4 does not apply to any tidelands previously filled or reclaimed); Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 212 (Chk. S. Ct. Tr. 1993) (government retains ownership of land it filled in before traditional rights in tidelands were returned to traditional owners). Thus any assertion of ownership over the filled land in Civil Action No. 104-91 could not have affected the continuing traditional rights in the adjacent tidelands.

     The judgment in 104-91 therefore had no bearing on Nenus's ownership. The trial judge thus properly exercised his discretion to give the judgment in 104-91 no effect.

C. Motion to Add "Indispensable Parties"

     The Phillips claim that the Immo Clan members are indispensable parties because, the Phillips assert, the clan is the true owner of Nenus. The motion to add the Immo Clan as an indispensable party was not brought by the clan itself or by any of its members, seeking to intervene. It was not brought by the plaintiffs asking that the Immo Clan be joined. It was brought by the defendants, the Phillips, seeking to add the clan as defendants. The Phillips further contended that since they did not claim ownership of Nenus they were not proper parties to the suit.

     This last contention overlooks the plaintiffs' prayer for injunctive relief that sought to bar the Phillips from interfering with the plaintiffs' claimed ownership interests in Nenus. It was the Phillips' destruction of the mechen sign that caused the plaintiffs to resort to court action and seek injunctive relief. The Phillips, who as afokur may have themselves claimed some property use rights in Nenus, were thus proper parties even once they declined to claim ownership for themselves.

     Nevertheless, "[p]arties may be . . . added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Chk. Civ. R. 21. A court usually has the discretion to refuse to join a new party at a late stage of the litigation. Cabrera v. Municipality of Bayamon, 622 F.2d 4, 6 (1st Cir. 1980). Refusal to add a party defendant to an action is a matter of discretion for the trial court and absent a showing of abuse of discretion will not be disturbed. Curacao Trading Co. v. Federal Ins. Co., 137 F.2d 911, 914 (2d Cir. 1943). But Rule 19(a) does require a court to join as a party someone who "in his absence complete relief cannot be accorded among those already parties" or someone who claims an interest in the subject of the action and whose absence may impair his ability to protect that interest or would leave those already parties subject to substantial risk of multiple or inconsistent obligations. Chk. Civ. R. 19(a).

     There appears to be no substantial risk that those already parties to this case could be subjected to multiple or inconsistent obligations. Furthermore, the Immo Clan itself does not appear to have made a claim to Nenus. The Phillips, who are afokur to that clan, claimed that the clan owned Nenus and used that claim to justify their actions in destroying the mechen sign. While the Phillips asserted that the Immo Clan owned Nenus, they did not call, when they easily could have, any clan members as witnesses to testify that the Immo Clan owned Nenus. The appellees contended at oral argument, and

[10 FSM Intrm. 546]

the Phillips did not contest this contention, that Immo Clan members were asked if they wanted to join this lawsuit but had declined. At any rate, neither the clan nor any of its members moved to join in the lawsuit. Nor have any tried to join in this appeal.

     If the Immo Clan itself had claimed to own Nenus, and certainly if the clan itself had moved to intervene in the action while claiming to own Nenus, the trial court should then have joined the clan as a party. But the Immo Clan did not move to intervene, and it appears that the clan may not even claim to own Nenus. When seen in that light, we are not inclined to remand the case for a new trial with the Immo Clan, or its members, unwillingly joined as a party.

     Based on the evidence before it, the trial court could conclude that the plaintiffs' claim to ownership of Nenus was superior to the Phillips' and that the Phillips should be enjoined from interfering with the plaintiffs' ownership interest. Complete relief could therefore be accorded among the parties. Final judgments, as a rule, generally bind only the parties to the case and all those in privity with them. If a judgment is final, then the doctrine of res judicata applies, and that doctrine "bars any further litigation of the same issues between the same parties or anyone claiming under those parties." Ungeni v. Fredrick, 6 FSM Intrm. 529, 531, 1 CSR 14, 15 (Chk. S. Ct. App. 1994). As such, this judgment is final between the parties to the case and all those in privity with them and the trial court judgment should be modified to reflect that it applies only to the parties and to anyone in privity with them. Since this is a general principle of law, which would apply anyway, it is not much of a modification. Thus a non-party's absence should not, in this case, impair his interest, if he has one.

     This modification is based on the principle that "[w]here the judgment can be shaped to cure any prejudice to a party absent below, dismissal at the appellate stage is not required." Legal Aid Soc. of Alameda County v. Brennan, 608 F.2d 1319, 1329 n.12 (9th Cir. 1979). "[A] court of appeals may also properly require suitable modification as a condition of affirmance." Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, 112, 88 S. Ct. 733, 739, 19 L. Ed. 2d 936, 946 (1968). The trial court's judgment is therefore affirmed as modified above.

D. Summary

     A trial court's factual findings can be overturned only if they are "not supported by substantial evidence in the record," or if they were "the result of an erroneous conception of the applicable law," or if, after a consideration of the entire record, the appellate court "is left with a definite and firm conviction that a mistake has been made." Cheni, 6 FSM Intrm. at 547, 1 CSR at 37-38. None of these situations apply to the factual findings in this appeal. There was substantial evidence in the record for the trial court's factual findings. This evidence was set forth at length and in detail in the trial court judgment. Furthermore, the trial court's denial of joinder does not require reversal and remand for a new trial. The trial court's decision is therefore affirmed as modified.

V. Appellate Rule 38

During oral argument, the appellees contended that since, in their view, this was a frivolous appeal they were entitled to their appellate costs pursuant to Appellate Rule 38. That rule provides that "[i]f the State Court Appellate Division shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee." Chk. App. R. 38. In their oral motion, the appellees did not ask for any specific amounts for any specific costs or damages.

     The court declines to consider this request on the ground that the appellees should have given the appellants notice that they intended to make this request so that the appellants would have had an opportunity to respond to it. The appellees should also have provided the appellants, and the court,

[10 FSM Intrm. 547]

the amounts of the costs and what damages they were seeking. The current United States Rule 38 requires an appellee to file a separate motion. While the Chuuk rule does not require a motion filed separately from the brief, we believe that is the better practice. In this case, however, the first request for Rule 38 costs and damages came not even in the appellees' answering brief, but at the end of appellees' oral argument. We think that if appellees intend to ask for Rule 38 costs and damages it is proper that the appellants should be given more notice than that. The Rule 38 motion is thus denied.

VI. Conclusion

     Accordingly, the trial court decision is affirmed as modified and the appellees' request for Rule 38 costs and damages is denied.

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