* * * *

HEADNOTES

Appellate Review – Briefs, Record, and Oral Argument

    If an appellant fails to appear for oral argument, the court may hear argument on behalf of the appellee if his counsel is present, but an appellee that has not filed a brief will not be heard at oral argument. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 551 (Chk. S. Ct. App. 2009).

Appellate Review – Parties

    If certain parties were named as defendants because they were the senior land commissioners in 1991 and 1999, the current senior land commissioner should have been substituted for them. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 551 n.2 (Chk. S. Ct. App. 2009).

Appellate Review – Motions

    A "Report" that asks for relief, is a motion because any request or application made to the court for relief can only be considered a motion. Since all papers, including motions, must be served on the other parties, when there was no indication that this "Report" had been served on the other parties, the court can disregard it as not properly before the court. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 551 (Chk. S. Ct. App. 2009).

Appellate Review – Motions

    No one should ever presume that any court will reflexively or automatically grant a continuance whenever a motion is filed seeking one. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 552 (Chk. S. Ct. App. 2009).

Appellate Review

    An appellate court should not have to instruct counsel on the rules' requirements. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 552 (Chk. S. Ct. App. 2009).

Appellate Review – Standard of Review – Civil Cases

    An appellate court reviews de novo questions of law, but will overturn a lower court=s factual findings only when 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. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 553 (Chk. S. Ct. App. 2009).

Administrative Law – Judicial Review; Property – Registered Land

    When there were no valid certificates of title for the land at the time of the Land Commission decision, the decision was a determination from which any party aggrieved thereby had 120 days to appeal, and, as such, the Chuuk State Supreme Court=s trial division could exercise review jurisdiction over a timely appeal from that Land Commission decision, and the appellate division could exercise review jurisdiction over a timely appeal from the trial division review decision. Enengeitaw Clan v. Heirs

of Shirai, 16 FSM Intrm. 547, 553 (Chk. S. Ct. App. 2009).

Administrative Law – Judicial Review; Property – Registered Land

    The issuance of a certificate of title is generally not appealable, but since the Land Commission is not authorized to issue certificates of title until after the 120-day appeal period has passed or until after an appeal has been duly taken and decided, certificates of title issued before then are prematurely issued and are thus invalid and may be canceled. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 553 (Chk. S. Ct. App. 2009).

Constitutional Law – Due Process – Notice and Hearing; Property – Land Commission

    Even if the Land Commission thinks it is only correcting its own error, due process still requires that it give notice and an opportunity to be heard to any party which the "correction" might appear to adversely affect. Although the Land Commission may think it is only correcting its own error, it is always possible that its "correction" could be an error. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 554 (Chk. S. Ct. App. 2009).

Property

    A land title determination that someone is "the sole owner" means just that – she is the sole owner and that the land is individually owned by her and any further language in the determination identifying the individual's lineage and lineage head is a means of identifying further who the individual is, particularly if she did not have a surname. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 554 (Chk. S. Ct. App. 2009).

Property – Land Commission; Property – Registered Land

    When an owner of any interest in registered land dies, the Land Commission's duty is to cancel the original and duplicate certificates and issue new ones in the name(s) of the decedent's devisees or heirs. A certificate of title cannot be issued in the name of a person already deceased. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 555 (Chk. S. Ct. App. 2009).

Property – Land Commission; Property – Registered Land

    When the owner of registered land is deceased, it is the Land Commission's statutory responsibility to make a determination of the devisee or devisees or heir or heirs and the interests or respective interests to which each are entitled, and, to make this determination, the Land Commission must conduct a hearing at which evidence shall be heard for the purpose of determining the heir or heirs or devisee or devisees entitled to the decedent's land. Proper notice must be given for the hearing, and within 30 days after the hearing's conclusion, the Land Commission should issue its finding as to the heir or heirs or devisee or devisees and the respective interest or interests to which each are entitled. Once the Land Commission has issued its determination, it cannot issue any certificates of title unless and until after one hundred twenty days – the time to appeal – has passed, and only then, if the 120 days have passed without an appeal or if an appeal has been taken and decided, can the Land Commission issue certificates of title. Enengeitaw Clan v. Heirs of Shirai, 16 FSM Intrm. 547, 555 (Chk. S. Ct. App. 2009).

* * * *

COURT'S OPINION

DENNIS K. YAMASE, Temporary Justice, Presiding:

    This appeal arises from the trial division's dismissal of an appeal from a Land Commission decision to issue certificates of title for land in Iras village called Nenom and the trial division conclusion

that Osame was the sole owner of Nenom. We affirm that conclusion. Our reasons follow.

I. BACKGROUND

    On September 8, 1955, District Land Title Officer George C. Shumard, in Determination of Ownership and Release No. 77.1 (filed September 9, 1955), determined that a tract of land known as Nenom in Iras Village, Moen, was the property of "Osame of the lineage of the Enangeitau Clan of Iras now headed by Taro Mory. Osame is the sole owner." This determination was made after notice and hearing to all parties of record and with Max Mori, an adult member of the Enengeitaw Clan and Osame's brother, present during the proceedings and hearings.

    The Trust Territory retained most of Nenom for use as airport facilities on Moen (Weno). This case and our references below to Nenom concern only that retained land. In 1981 and 1983, the Truk Land Commission, without notice to Osame or her children, issued certificates of title covering Nenom. These certificates were supposedly based on the 1955 determination of ownership but did not include the sentence "Osame is the sole owner."

    In 1984, the State of Truk concluded a lease agreement for rental of the airport land (previously retained by the Trust Territory government). Osame did not sign the lease, but her brothers did "on behalf of the Children of Chisato Shirai of the Enengeitaw lineage of Iras, the land owners." (Osame was Chisato's widow.) Osame shared some of the lease payments with Enengeitaw Clan members. At some point, Osame died.

    In 1991, Osame's son, Fuminory Shirai, went to then Senior Land Commissioner Mitaro Danis and demanded that he be given "corrected" certificates of title for his mother's land. Commissioner Danis later checked the Land Commission files, consulted the other Land Commissioners, and they determined that the 1981 and 1983 certificates of title were in error because they did not conform to the 1955 determination. The Land Commission then canceled and destroyed the 1981 and 1983 certificates and, on May 23, 1991, issued new ones that reflected the 1955 title determination language. When Fuminory Shirai returned to the Land Commission, they gave him the new certificates.

    The Enengeitaw Clan then filed suit in the Chuuk State Supreme Court trial division, alleging that they had been deprived of their property without due process of law since they had not been given any notice before the 1981 and 1983 certificates were canceled and new certificates were issued in 1991. The trial court determined that a due process hearing with proper notice was required before the old certificates could be invalidated and new ones issued; that it was undisputed that no such hearing was held; and therefore invalidated the May 23, 1991 certificates of title and remanded the matter to the Land Commission to take further action consistent with its decision. Enangeitau Clan v. Danis, Civ. No. 127-1991, Summary Judgment at 3-4 (May 12, 1997).

    After a hearing at which no witnesses testified, the Land Commission, by its decision entered June 28, 1999, concluded that it had to uphold the 1955 determination; that there was no lawful ground why the 1981 and 1983 certificates were issued as written; and that certificates of title in compliance with the 1955 determination should be issued. The Land Commission issued three certificates of title on June 29, and September 2, 6, 1999 for Parcel Nos. 011-A-03, 006-A-16, and 011-A-02, respectively. On August 10, 1999, the Enengeitaw Clan appealed to the trial division.

    On May 22, 2001, the trial division dismissed the Enengeitaw Clan's appeal on the grounds that 1) it raised a new issue that had not been before the Land Commission – that is, they now claimed that there was a boundary dispute involved; 2) that the Clan asked for a de novo review of the Land Commission decision when the trial division only had jurisdiction to sit as a court of appellate review

over appeals from Land Commission decisions; 3) that the doctrine of estoppel in pais precluded the clan's claim because "[m]embers of the Enengeitaw Clan . . . were adults, knowledgeable and present at that time" when the 1955 determination that Osame was the sole owner was made and they remained silent; and 4) that "[t]he record in the case and the testimony elicited at the hearings d[id] not support th[e] conclusion" that the 1955 determination "gives title to the land in question to the clan rather than to Osame, individually." Enengeitaw Clan v. Shirai, 10 FSM Intrm. 309, 311 (Chk. S. Ct. Tr. 2001). The Enengeitaw Clan then timely appealed to the appellate division.

II. PRELIMINARY MATTER

    By a January 16, 2009 court order, oral argument of this 2001 appeal was set for May 18, 2009. Counsel for all parties were duly served. On May 2, 2009, the Heirs of Shirai filed a motion to continue oral argument to the last week of May. The reason was that their counsel would be in Pohnpei on official Chuuk state legislature business on some as yet uncertain dates in either the second or third week of May and so might be off-island on May 18. No party joined the motion or filed a response to it. No action was taken on the motion because of the movants= uncertainty of when or whether their counsel would be absent on May 18. In other words, if it turned out that counsel would be present on Chuuk on May 18, there was no reason to continue argument.¹

    At the call of the case on May 18, the Heirs of Shirai counsel and a Chuuk assistant attorney general appeared. The appellants' current counsel, Marstella Jack, did not. Upon questioning by the panel, the Heirs of Shirai counsel indicated that the appellants' counsel had been amenable to a continuance but that he had told her that since he had not heard anything from the court he assumed that argument would go forward as scheduled. The Heirs of Shirai withdrew their motion to continue.

    Under our rules, "[i]f the appellant fails to appear, the court may hear argument on behalf of the appellee, if his counsel is present." Chk. App. R. 34(e). We therefore heard argument from the appellee Heirs of Shirai. Since the other appellees had not filed any brief(s), ² the Chuuk assistant attorney general was not heard at oral argument on their behalf. Chk. App. R. 31(c). We then considered the matter submitted to us for our decision.

    On June 2, 2009, counsel Jack, usually resident on Pohnpei, filed with the appellate clerk a document styled as a "Report." In that "report," she stated that it was only on the morning of May 18, 2009, that she understood that oral argument had not been continued and that the appellees' counsel had appeared in court and withdrawn the motion. She contends that she was misled by opposing counsel and attaches as an exhibit, an e-mail exchange with him that is mostly about settlement efforts, but which indicates that, as of the May 7th date of the e-mail, that opposing counsel expected to be on Pohnpei on official business on the 18th. Counsel Jack asked that she be permitted to present oral argument. Since this "Report" asked for relief, it was a motion because any request or application made to the court for relief can only be considered a motion. Kiniol v. Kansou, 13 FSM Intrm. 456, 459 n.2 (Chk. 2005). All papers, including motions, must be served on the other parties. Chk. App. R. 25(b). Since there was no indication that this "Report" was served on the other parties,

we could have disregarded it as not properly before us. Instead, we ordered that the motion to present oral argument would be denied unless it was served on the opposing parties by June 26, 2009.

    The "report" was then duly served, and no timely opposition was filed. Even though the appellants' motion was unopposed, we would still have been very hesitant to grant the appellants a second chance to present oral argument when they failed, without good cause, to avail themselves of their first chance. It was only because this is a land case, and because we were cognizant of the special importance land has in Micronesian society in general and in Chuukese society in particular, that we, as an act of grace and not as a matter of right, granted the motion so that the appellants could present oral argument. We therefore, on July 15, 2009, set oral argument for July 31, 2009, but cautioned the parties that we were not inclined to entertain any further motions to continue this eight-year old appeal beyond that date.

    On July 27, 2009, appellants' counsel filed, by a partially-legible facsimile transmission, a motion to continue oral argument on the ground that she had earlier circulated a letter asking that no court appearances be scheduled for her from July 16, to August 10, 2009. No reason was given in the motion for her absence, only that she would be off-island. (The June 2, 2009 report/motion to participate in oral argument had not suggested any available dates or mentioned any dates when counsel could not be available.) On July 30, 2009, the Heirs of Shirai filed an opposition to any continuance.

    At the call of the case on July 31, the Heirs of Shirai counsel and a Chuuk assistant attorney general again appeared. The appellants' counsel did not. After a recess, we denied, from the bench, the motion to continue. Appellees' counsel addressed a few more remarks to the court, and then we took the matter under submission.

    We are not pleased with the behavior of the appellants' counsel. First, she failed to appear at oral argument because she presumed, not based on anything the court did or court personnel told her, that oral argument would be continued. No one should ever presume that this, or any, court will reflexively or automatically grant a continuance whenever a motion is filed seeking one. Then, two weeks later, she filed a document asking that oral argument be repeated so that the appellants could participate but neglected to serve it, or for some reason did not think that it needed to be served, on the other parties. Only after we instructed counsel (and we should not have to instruct counsel on the rules' requirements) that the appellants' request had to be served on the other parties or it could only be denied, was it even served.³ Then, once the motion had been granted and a date set, counsel again presumed that, despite our warning that we were not so inclined, oral argument could be continued upon any request and did not appear. Fortunately, we have before us an adequate record and the relevant issues have been fully briefed.

III. ISSUES AND STANDARD OF REVIEW

    The appellants contend that 1) the trial division erred, as a matter of law and fact, and abused its discretion when it dismissed the appeal from the Land Commission; 2) they were denied due process of law when they were not permitted to call witnesses on their behalf about the meaning of the September 8, 1955 determination; and 3) the trial division decision erred in its application of a standard of review instead of reviewing de novo the Land Commission decision and procedures.

    The Heirs of Osame Shirai ("Heirs") contend that the issue is whether the court has any subject matter jurisdiction to take further action to review this matter since the land title was lawfully issued by a Land Title Officer and was not appealed within the statutory 120 days thereafter.

    We conclude that the central, underlying issue is whether, under the language of the 1955 determination of ownership, the land in question was determined to be lineage land or to be individually-owned land.

    We review de novo questions of law, but will overturn a lower court's factual findings only when 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, we are left with a definite and firm conviction that a mistake has been made. Ruben v. Hartman, 15 FSM Intrm. 100, 108 (Chk. S. Ct. App. 2007).

IV. ANALYSIS

A. Jurisdictional Question

    Before turning to the appeal's merits we first consider the Heirs' contention that we, or the trial division, lack jurisdiction to review the Land Title Officer's determination of ownership and, by implication, the Land Commission's 1999 decision to issue certificates of title based on that decision. The Heirs of Shirai contend that since 120 days had elapsed after the 1955 Land Title Officer's determination of ownership without an appeal, no court may now review that decision.

    We, however, do not think that that is the decision before us for review. The decision that was appealed to the trial division, and which we review on appeal from the trial division, is the Land Commission's 1999 decision interpreting the 1955 Land Title Officer's determination of ownership. Since there were no valid certificates of title for Nenom at that time, the June 28, 1999 Land Commission decision was, regardless of what it was called, a determination from which any party aggrieved thereby had 120 days to appeal. 67 TTC 115. As such, the court's trial division could (and did) exercise review jurisdiction over a timely appeal from the June 28, 1999 Land Commission decision. Likewise, we may exercise review jurisdiction over a timely appeal from the trial division review decision.

    The Heirs also contend that this is an appeal from the issuance of a certificate of title and that certificates of title cannot be appealed. The Heirs are correct that the issuance of a certificate of title is generally not appealable. However, the Land Commission is not authorized to issue certificates of title until after the 120-day appeal period has passed or until after an appeal has been duly taken and decided. 67 TTC 117. The June 29, and September 2, 6, 1999 certificates of title for Parcel Nos. 011-A-03, 006-A-16, and 011-A-02 were therefore prematurely issued and are thus invalid. They are also, as explained below, invalid on other grounds. The Land Commission shall therefore cancel them.

B. Ownership of Nenom

    We now turn to the appeal's merits. The parties agree that the 1955 Land Title Officer's determination of ownership is valid. They disagree on how to interpret that determination.

    The September 8, 1955 Determination of Ownership and Release No. 77.1 stated that Nenom was the property of "Osame of the lineage of the Enangeitau Clan of Iras now headed by Taro Mory. Osame is the sole owner." The 1981 and 1983 certificates of title did not reflect that wording. Senior Land Commissioner Danis testified that he had issued the 1981 and 1983 certificates that way because

he was given to understand that there had been an agreement among the parties to convert Nenom to lineage land but that the agreement never materialized. Dep. at 8, Civ. No. 127-91 (Nov. 7, 1991). Thus when Fuminory Shirai came for a certificate in 1991 Danis thought the certificates were wrong so the Land Commission issued new, correct ones without notice. Id. at 5-9.

    The 1997 trial division order to invalidate the 1991 certificates was correct. This is because even if the Land Commission thought it was only correcting its own error, due process still requires that it give notice and an opportunity to be heard to any party which the "correction" might appear to adversely affect. Although the Land Commission may think it is only correcting its own error, it is always possible that its "correction" could be an error. We do not mean to say that due process would require notice and an opportunity to be heard to correct an obvious typographical error such as a name misspelled by transposing two letters. But we do hold that any "correction" of a certificate of title (or a determination of ownership) that might be interpreted to award any property right differently from the "uncorrected" version triggers due process concerns and the right to notice and an opportunity to be heard.

    The 1991 corrections did just that. The uncorrected 1981 and 1983 versions could be interpreted as describing lineage land while the 1991 corrected versions could be (and were intended to be) interpreted as describing individually-owned land. The 1991 certificates were thus properly invalidated and the matter remanded to the Land Commission for proper notice and hearing, which was duly held.

    On remand to the Land Commission, as stated above in part IV.A, the Land Commission made its decision and then prematurely issued certificates of title. The trial division, properly sitting in appellate review of that decision, concluded that Nenom was land individually owned by Osame and that the clan was estopped from challenging that ownership. Enengeitaw Clan, 10 FSM Intrm. at 311. We conclude that the trial division was correct.

    As a matter of law, the 1955 land title determination that Osame was "the sole owner" means just that – she was the sole owner and that the land Nenom was individually owned by her. The language used by the Title Officer – "of the lineage of the Enangeitau Clan of Iras now headed by Taro Mory" was a means of identifying further who Osame was. She did not even have a surname listed, so it was necessary to identify which Osame she was, and having identified her as a member of the Enangeitau Clan of Iras, it was necessary to further identify which Enangeitau Clan of Iras lineage, so the lineage head, Taro Mori, was also named. In Mori v. Haruo, 15 FSM Intrm. 468, 473 (Chk. S. Ct. App. 2008), we held that when land was determined to be lineage land, the identification of a person as the lineage head in the determination of ownership was for the purpose of clarifying the identification of the lineage, and was not to vest in that particular person any separate authority to sell lineage land. This case is the converse. The identification of Osame's lineage and lineage head served to identify her, but did not serve to grant the lineage or its head any authority over the land Nenom.

    The clan urges that the 1955 Land Title Officer determination be interpreted in the light of Chuukese custom to conclude that Nenom was lineage land. They contend that the Land Title Officer may have been ignorant of Chuukese customary land tenure. They further assert that they were prevented from putting on witnesses and evidence to show that Nenom was considered lineage land. We think that Land Title Officer Shumard was conversant enough with Chuukese customary land law and the concept of lineage land that he included the sentence – "Osame is the sole owner." – to avoid any confusion that Nenom might be lineage land. In order to include that language, he had to have determined that Nenom was not lineage land. The Land Commission did not err when it concluded that, as matter of law, "sole owner" meant that Osame individually owned Nenom and that therefore no witness testimony was needed to explain that term.

    Senior Enengeitaw Clan member Max Mori was present in 1955 and not only did not object to but also promoted Osame's claim to what had been her deceased husband Chisato's individual land. There is no evidence or allegation that Osame ever conveyed any interest in Nenom to anyone else while she was alive. Thus, any evidence the clan could produce that its members believed Nenom to be lineage land because they shared in the rental payments or other reason would be irrelevant. Osame remained the sole, individual, and true owner of Nenom until her death.

C. Proceedings on Remand

    We take no position on the current ownership of Nenom. We only hold that Osame was, at one time, the sole owner of Nenom. Into whose hands it, or parts of it, may have passed after Osame=s death is not before us.

    Therefore this matter is remanded to the trial division for it to remand the matter to the Land Commission. The trial division shall instruct the Land Commission that the Land Commission shall not issue any certificates of title in Osame Shirai's name. This is because she is now deceased and the land she owned was registered land. "When an owner of any interest in land dies and that land has been registered," the Land Commission's duty is to cancel the original and duplicate certificates and issue new ones in the name(s) of the decedent's devisees or heirs. 67 TTC 119(2). A certificate of title cannot be issued in the name of a person already deceased.

    It is the Land Commission's statutory responsibility to "make a determination of the devisee or devisees or heir or heirs and the interests or respective interests to which each are entitled." 67 TTC 119(3). To make this determination for Osame's land, the Land Commission "shall conduct a hearing at which evidence shall be heard for the purpose of determining the heir or heirs or devisee or devisees entitled to the decedent's land." 67 TTC 119(3)(a). Proper notice shall be given for the hearing. And within thirty (30) days after the hearing's conclusion, the Land Commission should issue its "finding as to the heir or heirs or devisee or devisees and the respective interest or interests to which each are entitled." 67 TTC 119(3)(b). Once the Land Commission has issued its determination, it shall not issue any certificates of title unless and until after one hundred twenty days – the time to appeal – has passed. See 67 TTC 119(3)(d); 67 TTC 115; 67 TTC 117. Only then, if the 120 days have passed without an appeal or if an appeal has been taken and decided, shall the Land Commission issue certificates of title for Nenom, Parcel Nos. 006-A-16, 011-A-02, and 011-A-03 in the names of whoever are Osame's heirs or devisees.

V. CONCLUSION

    Osame was the sole owner of Nenom, Parcel Nos. 006-A-16, 011-A-02, and 011-A-03. None of these parcels was lineage land. They were all individually owned by Osame. Since Osame is deceased and since the certificates of title for Nenom, Parcel Nos. 006-A-16, 011-A-02, and 011-A-03 were prematurely issued in 1999, those certificates are invalidated. The Land Commission shall follow its statutorily-prescribed procedures, with proper notice, to determine the identity of Osame's heirs or devisees and what interest each may hold before it can, after the statutory 120-day period, issue certificates of title for Nenom, Parcel Nos. 006-A-16, 011-A-02, and 011-A-03.

   The parties shall bear their own costs.