Cite as Heirs of Tulenkun v. George, 14 FSM Intrm. 560 (Kos. S. Ct. Tr. 2007)

CIVIL ACTION NO. 53-05

Decided: February 12, 2007

      When the appellants appeal from a decision fully in their favor; when the appellants challenge the ownership of a portion of Parcel 069M05, which shares a boundary with Parcel 069M03 but their appeal is from a Land Court determination of the ownership for Parcel 069M03 in their favor; when all parties agree the appellants own Parcel 069M03; when the appellants admit that they are disputing the ownership of a portion of Parcel 069M05, which is not part of the Land Court determination in the matter below; and when the appellants previously appealed the determination about that parcel and the court’s order in that previous case is final, there is no justiciable dispute being presented to the court in the appeal. Heirs of Tulenkun v. George, 14 FSM Intrm. 560, 561-62 (Kos. S. Ct. Tr. 2007).

     The doctrine of res judicata bars repetitious litigation. Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Heirs of Tulenkun v. George, 14 FSM Intrm. 560, 562 (Kos. S. Ct. Tr. 2007).

     When the appellants participated in the Land Commission proceedings and in the appeal on ownership of Parcel 069M05, they are barred from re-litigating the ownership of any portion of that parcel under the doctrine of res judicata. Heirs of Tulenkun v. George, 14 FSM Intrm. 560, 562 (Kos. S. Ct. Tr. 2007).

     When the appellee filed a motion to dismiss the matter on January 19, 2007 and the appellants were served on January 19, 2007 and chose not to file a response to the motion, the appellants’ failure to respond also offers grounds for dismissal. Heirs of Tulenkun v. George, 14 FSM Intrm. 560, 562 (Kos. S. Ct. Tr. 2007).

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     On April 18, 2005, Appellants filed a Notice of Appeal from the decision of the Land Court determining ownership of Parcel No. 069M03. After lengthy delays caused by Appellants, their brief was filed on December 26, 2006. On January 19, 2007, Appellee filed a Motion to Dismiss on the grounds that he has no interest in the ownership of Parcel No. 069M03 and, in essence, he agrees with the Land Court’s determination that title to this parcel may be issued to Appellants. Appellants filed no response to the Motion to Dismiss. Albert Welly represents Appellants. Chang William represents Appellees.

     Upon considering all files, records and proceedings in this matter, we grant Appellee’s Motion to dismiss and affirm the Land Court’s decision to issue certificate of title to Appellants.

     The Land Court’s decision was issued on February 10, 2005. The Land Court held that the Heirs of Lulu Tulenkun, Appellants, owned the parcel by tenancy in common. Takumi George, Appellee, was a witness in the proceeding and claims no ownership interest in Parcel No. 069M03.

     Appellee owns a neighboring parcel, 069M05. His ownership of 069M05 was the subject of appeal in Likiak Tulenkun v. Takumi George, Civil Action No. 25-00. This Court issued an Order affirming the decision of the Land Commission determining Takumi George to be the owner of 069M05 on March 5, 2001.

     Appellants are taking the unusual step of appealing from a decision fully in their favor. Also, their named Appellee claims no interest in the parcel that is the subject of the ownership determination by the Land Court. Appellee agrees with the decision of the Land Court giving Appellants title to Parcel 069M03.

     According to Appellants’ brief, they are challenging the ownership of a portion of Parcel 069M05, which shares a boundary with Parcel 069M03. They argue that Appellees should have been made a party in this case because they continue to dispute the boundary between the parcels and believe they should have been given a portion of 069M05. Appellants argue that Appellee should have been given notice in proceedings about Parcel 069M03 because of this ongoing dispute and therefore the Land Court’s determination must be set aside.

     First, Appellants agree that they are the owners of Parcel 069M03. Appellees also agree that Appellants are the owners of Parcel 069M03. The Land Court issued a determination that Appellants are the owners of Parcel 069M03. There is no justiciable dispute being presented to this Court in this appeal.

     Second, Appellants admit in their brief that they are disputing the ownership of a portion of Parcel 069M05, which is not part of the determination made by the Land Court in the matter below. Appellants previously appealed the determination about that Parcel in Likiak Tulenkun v. Takumi George, Civil Action No. 25-00, and this Court’s Order issued on March 5, 2001 in that previous case is final.

     The doctrine of res judicata bars repetitious litigation. "Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Ittu v. Charley, 3 FSM Intrm. 188, 190-91 (Kos. S. Ct. Tr. 1987) (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308, 311 (1980). Appellants participated in the Land Commission proceedings and in the appeal on ownership of Parcel 069M05. They are barred from re-litigating the ownership of any portion of that parcel under the doctrine of res judicata.

     Third, Appellee filed their Motion to Dismiss this matter on January 19, 2007. Rule 10 of the Kosrae State Rules of Appellate Procedure require a response to be filed within ten (10) days. Appellants were served with the Motion on January 19, 2007 and chose not to file a response to the Motion. It would appear that Appellants do not dispute dismissal of the appeal. Rule 20(b) of the Kosrae State Rules of Appellate Procedure state "an appeal may be dismissed by the court on motion filed by a party in accordance with these Rules." Appellee complied with these Rules. Appellants’ failure to comply with these Rules also offers grounds for dismissal.

     Based on Appellee’s Motion to Dismiss, Judgment is granted in favor of Appellants and affirming the Land Court’s determination of ownership.