Cite as FSM Dev. Bank v. Arthur,13 FSM Intrm. 421 (Kos. S. Ct. Tr. 2005)

[13 FSM Intrm. 421]

CIVIL ACTION NO. 62-04

Hearing: July 20, 2005
Decided: September 19, 2005

[13 FSM Intrm. 422]

APPEARANCES:

HEADNOTES

Civil Procedure – Notice

Defective notice issued by the Land Commission, if repeated by the Land Court, merely becomes defective notice issued by the Land Court. The Land Court has a statutory obligation to independently determine who are the claimants to a parcel, and who are entitled to notice of the proceedings. Heirs of Lonno v. Heirs of Lonno, 13 FSM Intrm. 421, 423 (Kos. S. Ct. Tr. 2005).

Domestic Relations – Probate; Property

Pursuant to state law, when the Land Court found that Lonno was the "previous land owner" of the subject parcels and that Lonno died without leaving a will, all heirs of Lonno were therefore interested parties to the parcels. Heirs of Lonno v. Heirs of Lonno, 13 FSM Intrm. 421, 423 (Kos. S. Ct. Tr. 2005).

Appellate Review – Standard of Review – Civil Cases

When the Kosrae Land Court failed to provide statutory notice of the proceeding to an interested party, the determination of ownership must be vacated. Heirs of Lonno v. Heirs of Lonno, 13 FSM Intrm. 421, 423 (Kos. S. Ct. Tr. 2005).

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COURT'S OPINION

ALIKSA B. ALIKSA, Acting Chief Justice:

The decision of the Kosrae Land Court on Parcels 031-M-11 and 031-M-24, also called Pipi, entered on April 26, 2004 was appealed in this matter. Appellants were represented by Albert Welly. Appellees were represented by Robinson Timothy. A hearing on briefs was held on July 20, 2005. Supplemental briefing was ordered at the hearing, and the parties filed supplemental briefs on August 2, 2005 and August 12, 2005. This Memorandum of Decision sets forth my ruling and reasoning in this appeal.

I. FINDINGS AND ANALYSIS.

The Appellees were determined to be the fee simple owners of parcels 031-M-11 and 031-M-24, through the Land Court's decision. The initial registration proceedings were initiated by the former Kosrae State Land Commission, but the proceedings were never completed. A formal hearing was held in May 1986, but an adjudication was never entered. Subsequently, the matter was transferred to the

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Kosrae Land Court for further proceedings. Another hearing was held on November 24, 2003 by the Land Court. Two witnesses testified at the November 2003 hearing: Mario Lonno and Marumu Lonno. The Land Court also considered the testimony of Theodore Lonno and Moses Lonno provided at the Land Commission hearing in 1986.

Appellants argue on appeal that the Land Court's decision was not supported by substantial evidence. Specifically, Appellants argue that the Court's finding that Lonno did not give the parcels to Theodore was not supported by substantial evidence. Appellants claim that Lonno gave the entire land of Pipi to Theodore to own. Appellants, in April 2003, were determined to be the owners of the three other parcels in Pipi: parcels 031-M-13, 031-M-14 and 031-M-27.

It is undisputed that Lonno, father of Theodore and Moses, possessed and used the whole of Pipi, now designated as five parcels in Malem, plat 031: parcels 11, 13, 14, 24 and 27.

Lonno had two other sons who are not parties to this matter and who were not parties to the Land Court proceedings: Kun, and Clarence. Lonno also had daughters who were not parties to this matter and who were not parties to the Land Court proceedings. It is further undisputed that Lonno died without a will.

The Land Court made a finding that Lonno was the "previous land owner" of parcels 031-M-11 and 031-M-24. Pursuant to State Law and the KLCRP, all children of Lonno, including Theodore, Moses, Kun and Clarence, are heirs to Lonno and are heirs to Lonno's interests in the subject parcels. Therefore, all children of Lonno were entitled to notice of the Land Court proceedings for parcels 031-M-11 and 031-M-24.

For the Land Court hearing held in November 2003, only the heirs of Theodore and Moses were provided statutory notice. The heirs of Kun Lonno, the heirs of Clarence Lonno, were not provided notice, and did not appear at the hearing. Review of the Land Court record does not provide any assistance in determining why some, but not all the heirs of Lonno were provided notice of the hearing. The record does not provide any information as to whether the Land Court simply adopted and repeated the notices issued by the Land Commission for the 1986 proceedings.

Defective notice issued by the Land Commission, if repeated by the Land Court, merely becomes defective notice issued by the Land Court. The Land Court has a statutory obligation to independently determine, pursuant to Kosrae State Code, Title 11, Chapter 6 and the KLCRP, who are the claimants to a parcel, and who are entitled to notice of the proceedings. Merely adopting the parties identified by the former Land Commission in proceedings held almost twenty years ago is inadequate and does not comply with statutory and due process requirements.

Here, the Land Court found that Lonno was the "previous land owner" of the subject parcels. Lonno died without leaving a will. Pursuant to State Law, all heirs of Lonno are therefore interested parties to the parcels. The Land Court failed to provide notice of the ownership determination proceeding to at least two heirs of Lonno: Kun and Clarence. When an interested party is not served statutory notice of the proceeding, the determination of ownership must be vacated. Sigrah v. Kosrae State Land Comm'n, 11 FSM Intrm. 169 (Kos. S. Ct. Tr. 2002). Accordingly, the decision awarding ownership of parcels 031-M-11 and 031-M-024 to the Appellees, entered on April 26, 2004, must be vacated.

II. JUDGMENT.

Judgment is entered in favor of the Appellants and against the Appellees. The Land Court

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decision, entered on April 26, 2004, for parcels 031-M-11 and 031-M-024 is vacated and set aside as void.

III. ORDER OF REMAND.

This matter is now remanded to Kosrae Land Court for further proceedings on parcels 031-M-11 and 031-M-024. Kosrae Land Court shall hold hearings and issue written findings and a decision on parcels 031-M-11 and 031-M-024, consistent with the requirements of Kosrae State Code, Title 11, Chapter 6 and the Kosrae Land Court Rules of Procedures. All proceedings shall be conducted according to the following instructions:

1. The Land Court shall provide notice and hold hearings, as required by Kosrae State Code, Title 11, Chapter 6, the KLCRP and General Court Orders. All heirs of Lonno shall be provided notice of the proceedings and provided the opportunity to appear.

2. The Land Court shall hear the Appellants, Appellees, other interested parties, their witnesses and other evidence which may be offered at the hearing.

3. The Land Court shall follow the requirements of GCO 2002-13 with respect to questioning of claimants not represented by legal counsel.

4. The Land Court may consider any evidence, including testimony, which was received at the prior hearings, giving appropriate evidentiary weight to those testimonies which were based upon hearsay or not subject to cross examination, and giving appropriate evidentiary weight to documentary evidence which were offered without foundation or authentication.

5. This matter shall be assigned highest priority by the Land Court, and shall be assigned for hearing and further action by the first Land Court Justice who is available to hear and adjudicate this matter.

6. The Kosrae Land Court shall complete all hearings within 120 days, and shall issue its written findings and decision within 120 days after the close of the hearings, as provided by law.