THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Ungeni v. Fredrick ,
6 FSM Intrm. 529 (Chuuk S. Ct. App. 1994)

[6 FSM Intrm. 529]

NIPWECH UNGENI,
Appellant,

vs.

BENJAMIN FREDRICK,
Appellee.

CA APPEAL NO. 28

OPINION

Argued:  September 7, 1994
Decided:  September 9, 1994

BEFORE:
     Hon. Keske Marar, Associate Justice, Chuuk State Supreme Court
     Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
     Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

     *Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
     **FSM Public Defender, Chuuk State, Weno, Chuuk

APPEARANCES:
For the Appellant:     Kachou Eko
                                    j Office of the Chuuk Attorney General
                                    P.O. Box 189
                                    Weno, Chuuk FM 96942

[6 FSM Intrm. 530]

For the Appellee:      Joseph Muritok
                                    j Office of the Chuuk Attorney General
                                    P.O. Box 189
                                    Weno, Chuuk FM 96942

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HEADNOTES
Civil Procedure ) Res Judicata
     For a matter to be considered adjudged so that the doctrine of res judicata is applicable, there must be an existing, final judgment that has been decided on the merits without fraud or collusion by a court or tribunal of competent jurisdiction.  The doctrine bars any further litigation of the same issues between the same parties or anyone claiming under those parties.  Ungeni v. Fredrick, 6 FSM Intrm. 529, 531 (Chk. S. Ct. App. 1994).

Civil Procedure ) Res Judicata
     The decisions of the Land Commission are not final judgments for purposes of res judicata until after the time for appeal from a determination of ownership has expired without an appeal or after a properly taken appeal has been determined.  Once the trial court granted a trial de novo on the question of ownership the Land Commission's determination of ownership ceased to exist for purposes of res judicata.  Ungeni v. Fredrick, 6 FSM Intrm. 529, 531 (Chk. S. Ct. App. 1994).

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COURT'S OPINION
KESKE MARAR, Associate Justice:
     This is an appeal from a Trial Division judgment which awarded title to the land Nafou located in Sapun, on the island of Tonoas to the Appellee, Benjamin Fredrick (Benjamin) as the representative of the children of Fredrick.  The dispute came to the Trial Division on appeal from a Land Commission determination of ownership in favor of the Appellant, Nipwech Ungeni (Nipwech). The trial court granted a trial de novo on the question of the title as the Land Commission had no record of the hearings or evidence on which it had based its determination.  We affirm the trial court's judgment.

I.  ISSUE PRESENTED
     Nipwech has not contested the trial court's factual findings but rather claims that its decision to award title of the land to Benjamin was barred by the doctrine of res judicata.  Nipwech claims that since the Land Commission had determined that he was the owner res judicata barred the trial court from reaching a different result.1

     Therefore the issue we must address is:  Does the doctrine of res judicata apply to a

[6 FSM Intrm. 531]

determination of ownership by the Chuuk State Land Commission that has been properly appealed to the Trial Division of this Court?  This is a question of law and is reviewed de novo by this Court.

II.  DOCTRINE OF RES JUDICATA
     The term res judicata literally means "a matter adjudged" or "settled by judgment."  46 Am. Jur. 2d Judgments 394, at 558-59 (1969).  For a matter to be considered adjudged so that the doctrine of res judicata is applicable, there must be an existing, final judgment that has been decided on the merits without fraud or collusion by a court or tribunal of competent jurisdiction.  Id.  If these requirements are met, the doctrine applies.  The doctrine bars any further litigation of the same issues between the same parties or anyone claiming under those parties.  Id.

III.  ANALYSIS
     The doctrine of res judicata is not applicable if the judgment is not final or existing.  In this case, Nipwech asserts that the determination of ownership issued by the Land Commission is a final and existing judgment and the parties could not relitigate the award of title to him.

     Land Commission determinations of ownership are subject to appeal to the trial division of this court.  67 TTC 115.  The appeal must be filed within 120 days of the Land Commissions determination.  Id.  Benjamin timely filed his notice of appeal in the trial division.  The appeal was properly filed.

     The decisions of the Land Commission are not final judgments for purposes of res judicata until after the time for appeal from a determination of ownership has expired without an appeal or after a properly taken appeal has been determined.  67 TTC 117.  In this case, an appeal had been properly filed.  Thus, the requirement of finality necessary to the doctrine of res judicata is absent.

     Another element necessary for a litigant to claim the bar of res judicata is that there be an existing judgment.  46 Am. Jur. 2d Judgment 465, at 632 (1969). Once a judgment has been reversed, set aside or a trial de novo has been granted, the judgment no longer exists for purposes of res judicata.  Id. 459, 465, at 628, 632.  The trial court granted a trial de novo on the question of ownership and the Land Commission's determination of ownership ceased to exist.

IV.  CONCLUSION
     The appeal was properly taken in this case under 67 TTC 115 and a trial de novo was granted.  Therefore, we hold that the determination of the Land Commission was not an existing or final judgment for purposes of res judicata.

     Accordingly, we affirm the judgment of the trial court.

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Footnote:
 
1.  Appellee's counsel, Joseph Muritok, failed to file an answering brief on his client's behalf and was not allowed to argue Benjamin's position pursuant to Chuuk Appellate Rule 31(c).  Nevertheless the Appellant must still bear the burden of proving the trial court committed errors sufficient to require this Court to reverse.