Cite as Rosokow v. Bob,11 FSM Intrm. 454 (Chk. S. Ct. App. 2003)

[11 FSM Intrm. 454]

CIVIL APPEAL NO. 08-1995

Decided: March 30, 2003

BEFORE:

Hon. Keske S. Marar, Associate Justice, Chuuk State Supreme Court
Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Attorney at Law, Weno, Chuuk

APPEARANCES:

HEADNOTES

Appellate Review – Rehearing

A petition for rehearing may be granted if the court has overlooked or misapprehended points of law or fact that may affect the outcome. Ordinarily, petitions for rehearing are summarily denied, but when clarification may be helpful reasons may be given. Rosokow v. Bob, 11 FSM Intrm. 454, 456 (Chk. S. Ct. App. 2003).

[11 FSM Intrm. 455]

Appellate Review – Rehearing; Constitutional Law – Due Process

When counsel, who now claims he was surprised and unprepared by the scheduling of oral argument, did not ask for a couple of days' (or even a few hours') continuance when the case was called, although such a continuance would have been possible and when counsel argued ably, it is not a ground to grant a rehearing. Rosokow v. Bob, 11 FSM Intrm. 454, 456 (Chk. S. Ct. App. 2003).

Appellate Review – Rehearing; Constitutional Law – Chuuk; Courts – Judges

Where the Chuuk Constitution specifically authorizes the appointment of qualified attorneys in Chuuk as temporary appellate justices on a per case basis and the Constitution's framers therefore must have contemplated that counsel in one appeal may well be a temporary justice on a different appeal, the presence of qualified attorneys on an appellate panel is not a ground to grant a rehearing. Rosokow v. Bob, 11 FSM Intrm. 454, 457 (Chk. S. Ct. App. 2003).

Property

A trial court can hold that, as between the parties to the case, who had the better claim to ownership, but that is all the trial court could have decided regarding ownership. Its ruling could not apply to any claims to ownership by non-parties or to other claims not raised in the pleadings or at trial. Rosokow v. Bob, 11 FSM Intrm. 454, 457 (Chk. S. Ct. App. 2003).

Property

When the parties' position at trial, and on this appeal (until now), was that it was a dispute over ownership, the trial court's decision was limited to who among the parties had a better claim to ownership and did not include a claim that no one owned Fayu. Thus the claim that Fayu was owned by no one was not before the trial court. The appellate court's affirmance of the trial court thus does not preclude a non-party from later successfully maintaining a claim that no one owns Fayu. Rosokow v. Bob, 11 FSM Intrm. 454, 457 (Chk. S. Ct. App. 2003).

Property – Public Lands

A claim that no one owned an island is in the nature of a claim that the island is public land. Generally, but not always, it is the state government that would assert that some land is public land. Rosokow v. Bob, 11 FSM Intrm. 454, 457 & n.2 (Chk. S. Ct. App. 2003).

Appellate Review – Standard of Review

When the trial court did not make any finding as to what the prior custom and practice had been, the purpose of a remand to the trial division is for it to determine what the prior customary and traditional practice was. The appellate court can make no finding as to what the customary and traditional practice has been concerning Fayu because that finding must first be made by the trial court. Rosokow v. Bob, 11 FSM Intrm. 454, 457 (Chk. S. Ct. App. 2003).

Appellate Review – Standard of Review

It is not the appellate court's place or function to make factual findings in the first instance. An appellate court may review a trial court's findings for clear error, but it cannot use the trial court record to supplant the trial court and act as fact finder. Rosokow v. Bob, 11 FSM Intrm. 454, 457 (Chk. S. Ct. App. 2003).

Evidence

An appellate ruling that only determined that certain testimony was admissible did not instruct the trial court as to what weight to give his testimony or what inferences it must draw from it on remand. Rosokow v. Bob, 11 FSM Intrm. 454, 458 (Chk. S. Ct. App. 2003).

COURT'S OPINION

KESKE S. MARAR, Associate Justice:

Our opinion in this appeal was entered on November 6, 2002. [Rosokow v. Bob, 11 FSM Intrm. 210 (Chk. S. Ct. App. 2002).] On November 18, 2002, the appellants timely filed their Petition for Rehearing and on November 18, 2002, filed a Motion to Modify Opinion with supporting affidavit. We treat the motion to modify as a supplement to the rehearing petition. Both the petition and the motion are denied.

I. Standard for Granting Rehearing Petition

A petition for rehearing may be granted if the court has overlooked or misapprehended points of law or fact that may affect the outcome. Chk. App. R. 40(a). See also Nahnken of Nett v. United States, 7 FSM Intrm. 612, 613 (App. 1996); Nena v. Kosrae (II), 6 FSM Intrm. 437, 438 (App. 1994); Carlos v. FSM, 4 FSM Intrm. 32, 33 (App. 1989). Ordinarily, petitions for rehearing are summarily denied, but when clarification may be helpful reasons may be given. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 482 (App. 1996). Clarification may be helpful in this case. Our reasons follow.

II. Reasoning

The appellants raise three grounds for their petition. First, they assert that the court misapprehended or overlooked points of law or fact by failing to rule that no one owned the island of Fayu and instead affirming the trial court's determination of ownership. Second, the appellants question the propriety of opposing counsel's appointment as a temporary appellate justice to sit on other appeals heard the same week. Third, the appellants contend that their counsel was unprepared for oral argument because he did not learn exactly when oral argument was scheduled until shortly before it began. The supplemental motion asks that the court's November 6, 2002 opinion be modified to state that no one owns Fayu and that the parties are to share and use it equally, as was the custom. The three grounds will be discussed in reverse order.

A. Oral Argument

The appellants assert that their counsel learned on the morning of Monday, December 10, 2001, that the appellate session (which had originally been scheduled for the week before) was scheduled for that week and that oral argument in this appeal was set as the first one that morning. They contend that their counsel "felt hopeless as he needed at least a few days or hours to review or refresh his argument." This is a claim that they were denied due process.

Counsel, however, did not, when the case was called, ask for a couple of days' (or even a few hours') continuance, although such a continuance would have been possible. The appellate session was scheduled for the entire week. Furthermore, appellants' counsel argued ably. This therefore is not a ground to grant a rehearing.

B. Appellate Panels' Composition

The appellants contend that opposing counsel's presence on other appellate panels might sway

[11 FSM Intrm. 457]

the decision in this appeal because the panel might view him as one of us.¹ The Chuuk Constitution specifically authorizes the appointment of qualified attorneys in Chuuk as temporary appellate justices on a per case basis. Chk. Const. art. VII, § 5(a). The Constitution's framers therefore must have contemplated that counsel in one appeal may well be a temporary justice on a different appeal. No more need be said on this point.

C. Fayu's Ownership

The appellants contend that it was impossible for us to affirm the trial court's holding that the appellees owned Fayu since, in their [present] view, Fayu has never had an owner and because the traditional and customary use of Fayu was that it was never to be owned by one man or lineage.

The appellants misconstrue our opinion. Our opinion affirmed the trial court holding that, as between the parties to the case, the appellees had the better claim to ownership. That is all the trial court could have decided regarding ownership. Its ruling could not apply to any claims to ownership by non-parties or to other claims not raised in the pleadings or at trial.

The plaintiffs' [appellants'] February 12, 1992 complaint starts with a statement that the case was brought because there was a dispute over who the real land owner of Fayu was and asserted that the defendants were not the real landowners of Fayu, but were trespassers. The relief it sought was an order that Fayu belonged to the plaintiffs, or, in the alternative, an order that Fayu belonged to both the plaintiffs and the defendants and that neither party should restrict the land. The defendants' March 26, 1992 answer asserted that they had the power over Fayu because it was their island. The intervenors' [appellees'] March 15, 1992 complaint asserted that they were the true and rightful owners of Fayu and asked the court to declare them the legal owners and that the plaintiffs had no rights to Fayu. The parties' position at trial, and on this appeal (until now), was that this was a dispute over ownership. The trial court's decision was therefore limited to who among the parties had a better claim to ownership and did not include a claim that no one owned Fayu. Thus the claim that Fayu was owned by no one² was not before the trial court. Our affirmance of the trial court does not preclude a non-party from later successfully maintaining a claim that no one owns Fayu.

The trial court declared that the intervenors were Fayu's owners. It did not declare that the plaintiffs had no rights in Fayu because it stated that its decision left undisturbed the long-established, prior custom and practice. The trial court, however (as noted in our November 6, 2002 opinion), did not make any finding as to what the prior custom and practice had been. The purpose our remand to the trial division is for it to determine what the prior customary and traditional practice was. It is not the appellate court's place or function to make factual findings in the first instance. An appellate court may review a trial court's findings for clear error, but it cannot use the trial court record to supplant the trial court and act as fact finder. We thus can make no finding as to what the customary and traditional practice has been concerning Fayu. That finding must first be made by the trial court.

The appellants also dispute the standard of review that this appellate court must apply. Those contentions are rejected as without any merit.

[11 FSM Intrm. 458]

Lastly, the appellants dispute our ruling on Tosiwo Nakayama's testimony on the ground that, in their view, his testimony was inaccurate or untruthful and that others gave more accurate testimony. Our ruling only determined that the testimony was admissible. We did not instruct the trial court as to what weight to give his testimony or what inferences it must draw from it.

III. Conclusion

Accordingly, the rehearing petition and motion are denied. The mandate hereby issues and this matter is hereby remanded to the trial division for such further proceedings as are consistent with our opinion entered on November 6, 2002 and this order.

¹ The appellants also point out as an apparent paradox that while practicing attorneys are appointed as temporary justices, the justices and other state and municipal court staff are prohibited by Chuuk State Law No. 190-08, section 26 from practicing law. We attach no significance to this

² Such a claim would seem to allege that Fayu is in the nature of public land. Generally, but not always, it is the state government that would assert that some land is public land.