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ANDON L. AMARAICH, Chief Justice:
This case is an appeal of a trial de novo held in the Kosrae State Court on July 29, 1998, after an appeal was taken from a Determination of Ownership issued by the Kosrae State Land Commission on January 19, 1995.
A Land Registration Team conducted a preliminary inquiry regarding Parcel Nos. 716 and 717 in Malem, Kosrae, on May 14, 1992. On November 6 and 11, 1992, and November 20, 1993, the Land Registration Team held a formal hearing on Parcel Nos. 070-M-05 (716) and 070-M-06 (717). The "Findings of Fact and Opinion" issued by the Land Registration Team awarded Lot No. 070-M-06 (717) to appellee Brinton Nena. This document is dated November 25, 1992, except for one signature which apparently was added sometime in 1993. The Land Commission issued a Determination of Ownership to Brinton Nena. Takeo George appealed the Determination of Ownership of 070-M-06 in
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favor of Brinton Nena by filing a notice of appeal in the Kosrae State Court on February 17, 1995. Judge Aliksa B. Aliksa ordered a trial de novo because one of the two audio tapes of the Land Commission formal hearing on Lot No. 070-M-06 was determined to be irreparably damaged and it had not been transcribed. A trial was held in the case, Civil Action No. 9-95, on July 29, 1998.
On December 16, 1998, the trial court entered judgment in favor of Brinton Nena and against Takeo George in Civil Action No. 9-95. Takeo George filed a notice of appeal with this Court on January 25, 1999.
The following is a diagram of how each party claims that the land passed to him:
II. Standard of Review
The standard of review of a trial courtís factual findings is whether those findings are clearly erroneous. Senda v. Mid-Pac Constr. Co., 5 FSM Intrm. 277, 280 (App. 1992). In determining whether a factual finding is clearly erroneous, an appellate court must view the evidence in the light most favorable to the appellee. Kinere v. Kosrae, 6 FSM Intrm. 307, 309 (App. 1993). If, upon viewing all evidence in the record, the appellate court is left with a definite and firm conviction that a mistake has been made, it may then conclude that the trial courtís finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court. Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1996).
Issues of law are reviewed de novo on appeal. Nanpei v. Kihara, 7 FSM Intrm. 319, 323-24 (App. 1995).
III. Findings of the Trial Court
The trial court reached the same result as the Land Commission and awarded Brinton Nena Parcel No. 070-M-06. The Land Commission originally found in favor of Brinton Nena because it found that Tulenkun (or Tulen Finkol) gave the land to Lipar, who split it between George and Timothy. The trial court found that Lipar received the land from Tepuke. It is undisputed that Tepuke, through whom
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Nena claims ownership, was the brother of Meun, through whom George claims ownership. It is also undisputed that on the 1932 Japanese Map, Nena Georgeís name appeared on Parcel No. 070-M-05 (716) and Palokoa Timothyís name appeared on Parcel No. 070-M-06 (717). The parties each have a different explanation for this.
Appellant Takeo George claims that he received the land from his mother, Kenye Niar (Kenye Nena George), who received it from her father Tulenkun (Tulen Finkol), who inherited it from his father Meun.1
Takeo George testified below that his family was unaware of Palokoa Timothyís claim to ownership of Parcel No. 070-M-06 until the 1970's, when the Land Registration Team began to erect cement markers in accordance with the boundaries on parcels as marked on the 1932 Japanese Map. He also testified that his brother Linus had a conversation with Palokoa about the 1932 Map, and that Palokoa told Linus that he just put his name on the map because he thought George and Timothy owned the land. Palokoa allegedly put his name on half (Parcel No. 070-M-06 (717)) and Nena Georgeís name on half (Parcel No. 070-M-05 (716)), because Palokoa is Timothyís son, and Nena George is Georgeís son. See diagram, supra, page 313. Takeo George testified that Linus gave Palokoa only the right to use Parcel No. 070-M-06 (717) for life. Takeo Georgeís sister-in-law, Yosie George, testified that, in the 1970's when the family learned that Palokoa Timothy claimed Parcel No. 070-M-06, her husband Linus was upset, but that he agreed to allow Palokoa to use that parcel for life so as not to cause any trouble. She also testified that Linus told her that he had told Palokoa to remember that the property belonged to Takeo George. Takeo George also presented testimony from his niece, Takae Rentun, that she lived on Lokanku and that Takeo George lived there with her when he was younger. Rentun also testified that Palokoa died in 1992, and that he lived with Yatsio and Brinton Nena before his death. She testified that Yatsio and Brinton did not work the land 070-M-06, and that she did not hear of them claiming the land until the time that Palokoa died.
Appellee Brinton Nena claims that he received the land as a gift from his wife Yatsioís father, Palokoa Timothy, who received it from his father, Timothy. Timothy allegedly received the land from his half-brother George, in payment of a debt. Brinton Nena claims that George inherited the land from his step-father Lipar, who received it from Tepuke. Nena testified below that Palokoa gave him the land in about 1973, and that he has worked the land since. This testimony was corroborated by the testimony of Timothy Timothy, Palokoa Timothyís son and Brinton Nenaís brother-in-law. Timothy also testified below that, some time in 1986, Takeo George approached Timothy and asked him to ask his father Palokoa to give the land back. Timothy Timothyís testimony below also corroborates the history of the land claimed by Brinton Nena, and as told to Timothy by his father, Palokoa.
With regard to the evidence presented by Takeo George below, the trial court found that, while it is recognized that women customarily inherit land from their parents, no one corroborated Takeo Georgeís testimony that his mother Kenye owned the land. Significantly, the trial court found that the then living children of Tulen Finkol would have known if Kenye owned the land and would have been able to testify that Kenye received the land from their father. Specifically, the trial court noted that Tulen Finkolís son Lulu Tulenkun testified at the Land Commission that Tulen Finkol gave land to his sons, but not his daughters. The trial court also noted that, on cross examination, Takeo George admitted that his only basis for knowing that his mother owned this land was "that it was told to me
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The trial court found that Yosie Georgeís statements about Linus granting Palokoa a life use right were not credible because they were not corroborated. The trial court interpreted Takae Rentunís testimony as an attempt to establish adverse possession over the land by saying the George family had worked the land for more than 20 years after the 1932 Map. However, the trial court found that it was unclear what portion of Lokanku that Takae lived on, whether it was Parcel No. 070-M-05 or 06, as both are called Lokanku.
The trial court found the testimony by Brinton Nena and his brother in law, Timothy Timothy to be credible. The trial court also found that appellant had not produced sufficient evidence to rebut the evidence of ownership of Palokoa Timothy of Parcel No. 070-M-06 as stated on the 1932 Map.
IV. Issues Presented
The issues presented as stated by appellant are:
(1) Whether the trial court erred when it based findings of fact on Lulu Tulenkunís out of court testimony, when Takeo George was not permitted to cross examine her?
(2) Whether the trial court erred when it found that Takeo George failed to rebut the evidence of ownership on the 1932 Japanese map?
(3) Whether the trial court erred when it failed to disqualify Patrick Olter from representing Takeo George in the trial court, when it knew he had a conflict of interest?
(1) Did the trial court commit clear error in basing factual findings on Lulu Tulenkunís testimony?
The first issue is whether it was error for the trial court to consider Lulu Tulenkunís testimony. If it was error for the trial court to consider this evidence, the issue then is whether the trial courtís findings of fact, which are based in part on Lulu Tulenkunís testimony, are clearly erroneous.
Takeo George asserts that the Land Commission violated Kosrae State Code Section 11.609 when it held a hearing concerning Parcel No. 070-M-06 and took the testimony of Lulu Tulenkun without giving him notice. The record reflects that the Land Commission held a separate hearing on November 20,1993 at which time they questioned only Lulu Tulenkun. There is no indication why this hearing was held one year after all of the other witnesses appeared and gave testimony on the parcel, nor is there anything in the record stating exactly who received notice of this hearing.
Kosrae State Code Section 11.609 states that:
(1) before a registration team conducts a hearing concerning a parcel it gives notice containing a description of the parcel and the time and place of the hearing at least thirty days before the hearing by:
a. posting notice on the parcel in both the Kosraen and English language;
b. posting notice at the municipal office of the municipality in which the parcel lies;
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c. serving notice without charge on all the parties shown by the preliminary inquiry to have an interest in the parcel by:
(1) personal service by the Commission or in the manner prescribed for service of a civil summons by the Courts rules of civil procedure, if a claimant is residing in the state, or
(2) registered air mail, postage prepaid, to the partyís last known address, if a claimant is living outside the State.2
Takeo George claims that, because he did not have notice of this hearing, he did not have the opportunity to attend the hearing and cross examine Lulu Tulenkun or present any rebuttal testimony to challenge his testimony. Accordingly, he argues, his right to due process is violated if the Court relies upon this testimony to award ownership of Parcel No. 070-M-06 to Brinton Nena.
Cases previously have held that it violates due process for the Land Commission to hold a hearing and adjudicate ownership of a parcel of land without giving notice to a party with a demonstrated interest in that land. See Palik v. Henry, 7 FSM Intrm. 571, 577 (Kos. S. Ct. Tr. 1996). However, in this case the Land Commission did not rely upon Lulu Tulenkunís testimony when it awarded Parcel No. 070-M-05 to Takeo George and Parcel No. 070-M-06 to Brinton Nena. The Land Registration Team stated in its opinion that it did not recognize Luluís claim on either lot.3
The issue, then, is whether the trial court committed clear error by relying in part upon Luluís testimony in rendering its decision following the trial de novo. A trial de novo gives each side the opportunity to present evidence as if no previous adjudication had been made. The trial judge is placed in the fact finding position) rather than just reviewing the record, he receives evidence and testimony and reaches his own conclusions based upon all of the evidence. Thus, it does not matter to the trial court, or to us, what conclusion the Land Commission reached regarding the parcel at issue.
The trial court in this case did rely in part on Lulu Tulenkunís testimony which may have been taken without giving appropriate notice to all interested parties to Parcel Nos. 070-M-05 and 06. There was no mention in the transcript below of Luluís testimony. There was no specific objection to its admissibility as part of the Land Commission records, and, in fact, the parties stipulated to the Land Commission record and its use in this case. It is unclear what the parties meant by this) whether they stipulated to what precisely should be included in the Land Commission record, or to the admissibility of all of the material contained therein without objection:
MR. TIMOTHY: As mentioned, the parties have agreed on those issues therefore
COURT: So parties stipulated on the available records from the Land Commission, the Court will consider them. That should be clear. Okay? Is that our understanding? . . .
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Tr. at 4 (July 29, 1998).
No objection was made by counsel for Takeo George.
However, even if an objection had been made, the relevant inquiry is whether there is other credible evidence in the record to support the trial courtís findings of fact. An appellate court should not set aside a finding of fact where there is credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. Hadley, 7 FSM Intrm. at 452. The fact that the trial court based its findings of fact in part on Lulu Tulenkunís testimony, when she was not subject to cross examination, is not clear error if other credible evidence supports the same findings of fact. Id.
Timothy Timothy and Brinton Nena both testified that Palokoa owned Parcel No. 070-M-06 through Tepuke-Lipar-George-Timothy. This testimony was properly admitted and provides significant evidence of Brinton Nenaís ownership of Parcel No. 070-M-06.
Viewing the evidence in the light most favorable to the appellee, we do not have a definite or firm conviction that any mistake was made by the trial court, and we cannot find that the trial courtís decision was clearly erroneous. Hadley, 7 FSM Intrm. at 452; Kinere, 6 FSM Intrm. at 309. Because there is evidence in the record to support Brinton Nenaís claim of ownership, and the trial court is in the best position to evaluate witnesses and testimony, we will not substitute our judgment for the trial courtís. Accordingly, we affirm the trial courtís decision that Brinton Nena is the owner of Parcel No. 070-M-06, based on our review of the record.
(2) Whether the trial court erred when it found that Takeo George failed to rebut the evidence of ownership on the 1932 Japanese Map?
In its judgment, the trial court quoted from Jesse v. Ebream, 1 TTR 77 (Pon. 1953), and acknowledged that the 1932 Japanese Map is only "some evidence" as to ownership or control. It then went on to say that, "[t]he above case, as discussed, requires strong evidence to show that the person named on the map is not the owner, in order to give another claimant the land." George v. Nena, Civ. Action No. 9-95, slip op. at 3 (Kos. S. Ct. Tr. Dec. 16, 1998). The case itself does not say that "strong" evidence is required to overcome evidence of ownership presented by the 1932 Map. However, it is clear that the trial court did not believe Takeo Georgeís explanation of why Palokoa Timothyís name was placed on the 1932 Map. Georgeís testimony was quoted by the trial court:
Q: Why are you claiming this land?
A: Itís awkward for that name to be on family land, I donít think the land is owned by Palokoa.
Q: How did Palokoa come to own the land?
A: It was a mistake. Palokoa put his name on it, it is not owned by the Timothy and George family. It came from my motherís family.
Appx. at 17. The trial court then stated that it was of the opinion that, to overcome the presumption of ownership presented by the 1932 Map, a claimant needed to present "clear and convincing evidence, not just because itís awkward." Appx. at 17. The trial court goes on to say that it does not believe Takeo Georgeís testimony that Palokoa Timothy placed his name on the 1932 Map in jest, given that there had not been any dispute between Nena George and Palokoa Timothy. The trial court notes that
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the claimants in the Jesse v. Ebream case presented evidence that they, not the individual listed as owner on the 1932 Map, had worked the land for more than 20 years before the map was made. The trial court noted that there was no such evidence presented by Takeo George in this case.
In fact, there is no clear evidence in the record that anyone besides Palokoa Timothy had significant involvement with Parcel No. 070-M-06. Given this, and the trial courtís judgment as to Takeo Georgeís credibility, there is no significant evidence to overcome even "some evidence" of Palokoa Timothyís ownership as presented by the 1932 Map.4 The only evidence appellant points to in the record to rebut Palokoaís ownership of Parcel No. 070-M-06 is testimony by Clain George in the Land Commission hearing, Appx. at 28, in which he claims ownership of Parcel No. 070-M-05 (716) by gift from Tulen Finkol in 1952, and states that Tulen Finkol owned Lokanku. Lokanku encompasses both lots, but the testimony does not specifically refer to Parcel No. 070-M-06. It was up to the trial judgeís discretion to determine what weight to give this evidence. The trial judge believed Brinton Nena and Timothy Timothyís testimony, and found their version of the ownership of Parcel No. 070-M-06 to be more believable.
Accordingly, we find that the trial court did not err when it found that Takeo George failed to rebut the evidence of Palokoa Timothyís ownership of Parcel No. 070-M-06 provided by the 1932 Japanese Map.
(3) Whether the trial court erred when it failed to disqualify Patrick Olter from representing Takeo George in the trial court, when it knew he had a conflict of interest?
Kosrae State Court General Court Order 2001-5 makes the ABA Model Rules of Professional Conduct applicable to all lawyers practicing before the Kosrae State Court.5
Appellant argues that the trial court erred when it failed to disqualify Patrick Olter from representing Takeo George at the trial level, when the trial judge knew that Olter had a conflict of interest. The applicable Model Rules of Professional Conduct are 1.7 and 1.9, Conflict of Interest, and Conflict of Interest-Former Client. Rule 1.7 states that a lawyer shall not represent a client if the representation will be "materially limited" by the lawyerís responsibilities to another client or to a third person, or by the lawyerís own interest, unless the lawyer reasonably believes the representation will not be adversely affected, and the client consents after consultation. It is not clear what limitation Olter might have had, since his mother apparently had already abandoned her claim to Parcel No. 070-M-05 at the time Olter began to represent his maternal uncle.
Rule 1.9 is aimed at protecting the former client rather than the current client. Even though this could be construed as the same matter in which Olter previously represented his mother, his former
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client (his mother) is the one who may consent or refuse to consent if the positions are adverse.
First, it is unclear whether Olter represented the interests of his mother in the Land Commission hearings, or his own interests. If he was representing his motherís interests, it is unclear whether he appeared as her attorney or as her family representative. Either way, he was personally involved in this case when it was before the Land Commission, and he attempted to secure Lot No. 070-M-05 for his family. It is not clear whether he had any claimed interest in Lot No. 070-M-06:
Q: Are you claiming Lot No. 717?
A: The land under Nena Georgeís name.
Appx. at 27. If this is interpreted to mean only the name listed on the 1932 Map in Nena Georgeís name, it only refers to Lot No. 070-M-05 (716).
It also is unclear what adverse position Olter conceivably had to Takeo George at the time Olter undertook representation of Takeo George, who is his motherís brother. The Land Commission did not recognize Shrue Joseph Olterís claim to the land, and there is no evidence that this was appealed. Also, the position advocated by Olter in support of his motherís claim was that the land belonged to Nena George, which is the same position he advocated for Takeo George.
There has been no showing that Olter had actual conflict, and, even if there was some conflict, Takeo George must demonstrate that the trial judge committed plain error by failing to disqualify Olter from representing him.
An issue raised for the first time on appeal is waived. Kosrae Island Credit Union v. Obet, 7 FSM Intrm. 416, 419 (App. 1996); Nena v. Kosrae (I), 6 FSM Intrm. 251, 254 (App. 1993); Paul v. Celestine, 4 FSM Intrm. 205, 210 (App. 1990); Loney v. FSM, 3 FSM Intrm. 151, 154 (App. 1987). An exception to this rule is in the case of plain error) error that is obvious and substantial and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001).
Here, appellant argues that, because the trial judge did not inquire into a potential conflict of interest, he is entitled to reversal. A conflict of interest is a conflict that affects counselís performance) as opposed to a mere theoretical division of loyalties.
Appellant has made no showing that the alleged conflict adversely affected counselís performance; without such showing, appellant cannot demonstrate that Olterís connection to previous stages of the proceedings, related to an adjacent land parcel, affected the fairness or integrity of the trial de novo. Olter competently presented witnesses on Takeo Georgeís behalf, entered evidence and made relevant objections. Accordingly, we find that, under the facts of this case, the trial judge did not commit any plain error when he did not inquire sua sponte, that is, on its own motion, into a potential conflict of interest.
We hold that: (1) the trial court did not commit clear error in considering Lulu Tulenkunís testimony; (2) the trial court did not err when it found that Takeo George failed to rebut the evidence of ownership on the 1932 Japanese Map; and (3) the trial judge did not err when he did not inquire sua sponte into a potential conflict of interest.
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Accordingly, we affirm the judgment of the trial court, and remand this case to the trial court to take any appropriate action not inconsistent with this decision.
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1. In the course of this litigation, Takeo George has advanced two theories for ownership of Parcel No. 070-M-06) one, that it was inherited from his mother, Kenye Niar, who inherited it from Tulen Finkol; and an alternate theory, that he owned the land through his father, Nena George, who purportedly received it from his father, George. See diagram, supra, page 313. In the trial de novo, he advanced the former theory.
2. This statute was amended in October, 2001. This is the relevant statute in effect at the time of the hearing in 1993.
3. It also appears that the team issued its opinion before Lulu Tulenkunís testimony was taken, as the four dates on the opinion are 11/25/92, 11/25/92, 11/17/92, and 11/7/93.
4. Appellant notes in his brief that the 1932 Map was never an exhibit and is not part of the record on appeal, although there does not seem to be any dispute that Palokoa Timothy is listed on that map as the owner of Parcel No. 070-M-06.
5. Kosrae State Court GCO 2001-5 Rule Four states in part that:
All persons admitted to practice law in the State of Kosrae shall comply with the Model Rules of Professional Conduct as adopted by the American Bar Association in August 1983 as Amended through 1995. The word "lawyer" as it appears in the Model Rules of Professional Conduct shall be deemed to refer to attorneys and trial counselors practicing law in the State of Kosrae.