THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Thomson v. George,
8 FSM Intrm. 517 (App. 1998)

[8 FSM Intrm. 517]

MASAKI THOMSON,
Appellant,

vs.

WEBSTER GEORGE,
Appellee.

APPEAL CASE NO. K1-1997

OPINION

Argued:  June 23, 1998
Decided:  December 4, 1998

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court*

*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:
For the Appellant:     Harry Seymour, Esq. (on the briefs)
                     Andrew Sprenger, Esq. (argued)
                     Micronesian Legal Services Corporation
                     P.O. Box 129
                     Kolonia, Pohnpei FM 96941

For the Appellee:      Joses Gallen, Esq.
                     P.O. Box 189
                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Standard of Review
     The standard of review of a trial court's adoption of a special master's report is whether the adoption of the special master's findings was clearly erroneous.  This same standard of review applies

[8 FSM Intrm. 518]

to a special master's report.  Thus, if a special master's report is clearly erroneous, then it, like a trial court opinion, may be set aside.  Thomson v. George, 8 FSM Intrm. 517, 521 (App. 1998).

Appeal and Certiorari ) Standard of Review
     In determining whether a factual finding is clearly erroneous, an appellate court cannot substitute its judgment for that of the fact finder.  The trial court's factual findings are presumed correct.  A factual finding is clearly erroneous when the appellate court, after reviewing the entire body of the evidence and construing the evidence in the light most favorable to the appellee, is left with the definite and firm conviction that a mistake has been committed.  Thomson v. George, 8 FSM Intrm. 517, 522 (App. 1998).

Constitutional Law ) Due Process
     It is a violation of a litigant's constitutional right to due process for a trial court to rely on evidence, not a part of the record, without prior notice to the parties and an opportunity for the parties to comment on it.  Thomson v. George, 8 FSM Intrm. 517, 523 (App. 1998).

Constitutional Law ) Due Process
     It is error for a trial court to rely on exhibits never identified, described, or marked at trial.  Thomson v. George, 8 FSM Intrm. 517, 523 (App. 1998).

Constitutional Law) Due Process
     A special master commits reversible error when its decision has relied on unidentified sketches not a part of the record and about which there was not extensive testimony and cross examination.  Thomson v. George, 8 FSM Intrm. 517, 523 (App. 1998).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This is an appeal from a Kosrae State Court decision which established the location of common boundary separating two parcels of land in Loal, Tafunsak Municipality, State of Kosrae.  Before reaching its decision, the trial court appointed the Kosrae State Land Commission (the "Commission") to serve as a special master to determine the location of the boundary in question.  Following a hearing, the Commission issued a report, which the trial court adopted.  Plaintiff Masaki Thomson now appeals the trial court's final decision.  For the reasons set forth below, this case is hereby remanded to the trial court for further proceedings consistent with this opinion.

I.  Background
     In a separate, unrelated civil action, John Allen et al. v. Lensin Albert and Webster George, Kosrae State Court Civil Action No. 61-91, the Kosrae State Court addressed Webster George's claim that he owned certain land known as Loal, which is located in Tafunsak Municipality, Kosrae.  Ruling in Mr. George's favor, the trial court's December 28, 1992 opinion directed the Kosrae State Office of Land Management to conduct a survey of Mr. George's property based upon the boundaries that were established during the litigation in that case.  In addition, that court's order required the Commission to then issue a Certificate of Title to Webster George.

     Masaki Thomson was not a party to Civil Action No. 61-91, referred to above. However, he also owns a portion of Loal.  A review of the trial court record shows that on or about April 8, 1993, the

[8 FSM Intrm. 519]

Kosrae State Office of Land Management attempted to mark the boundaries of Mr. George's property, pursuant to the court's order in Civil Action No. 61-91.  It was at that time that Mr. Thomson apparently became aware that the judgment entered in Kosrae State Court Civil Action No. 61-91 awarded a "significant" portion of land that he believed was his to Webster George.  Accordingly, on May 5, 1993, Mr. Thomson filed suit to quiet title to the land that he believed he owned, which included a portion of the land which the court in Civil Action No. 61-91 stated was land owned by Mr. George.  Thomson v. George, Civ. No. 25-93, Compl. (May 5, 1993).1

     In his answer to that complaint, Mr. George did not deny that he and Mr. Thomson own adjoining parcels of land.  Thomson v. George, Civ. No. 25-93, Answer (May 20, 1993).  However, he denied that he is trespassing on Mr. Thomson's land.  He further maintained that the boundary between the two parcels of property was established in Civil Action No. 61-91.  Id.

     On October 12, 1994, the trial court granted partial summary judgment, ruling that the earlier judgment in Civil Action No. 61-901 was not binding on Mr. Thomson with respect to the location of the common boundary between Mr. Thomson's claimed land and Mr. George's claimed land.  Thomson v. George, Civ. No. 25-93, unpublished order (Oct. 12, 1994).  Neither party challenges that ruling on appeal.

     Thereafter, on November 9, 1995, the trial court entered an order appointing the Land Commission to serve as a Special Master for the purpose of surveying the land in question.  The Court directed the Special Master to submit a report to the trial court that established the boundary between the land claimed by the parties.  Thomson v. George, Civ. 25-93, unpublished order (Nov. 9, 1995).

     On January 19, 1996, the Commission filed a report with the trial court.  That report, however, was not included in the record from the trial court and as such, it is unclear what findings, if any, it may have contained.  The parties' subsequent litigation, however, shows that that report was apparently deficient.  Indeed, on April 23, 1996, the parties filed a joint motion for and Order compelling the Special Master to comply with Rule 53 of the Kosrae State Rules of Civil Procedure.  According to the parties, the Commission, acting as a special master, failed to hold a hearing to determine the common boundary between the two parcels of property in question, as required by the court's November 9, 1996 order.

     Based upon the parties' motion, the trial court, on May 13, 1996, issued a second order requiring the Commission to issue yet another report.  Thomson v. George, Civ. No. 25-93, unpublished order (May 13, 1996).  That order, noting that the Commission has all the powers a special master may exercise pursuant to Rule 53 of the Kosrae Rules of Civil Procedure, ordered the Commission to conduct a hearing to determine the location of the boundary in question. According to the trial court's order, the hearing was not intended to be the type of hearing anticipated by Kosrae State Code 11.611 and the Land Commission was not authorized to determine title to the parcels of land in question.  Id.

     On August 6, 1996, the Commission issued its second report as well as an accompanying

[8 FSM Intrm. 520]

opinion.  Thomson v. George, Civ. No. 25-93, Rep. & Op. (Aug. 6, 1996).  In its opinion, the Commission described the boundary as follows: "the corner at the ridge of the mountain to the corner at the bundle of the lakatan and down to the corner of the xylocarpus granatum."  Thomson v. George, Civ. No. 25-93, slip op. at 1 (Aug. 6, 1996).  A review of the opinion and the record shows that both parties apparently agreed that the boundary started at the corner at the ridge of the mountain.

     The opinion and record differ, however, with respect to whether the parties were in agreement as to the remainder of the boundary.  According to the Commission's opinion, the parties apparently offered different versions of where the boundary should be drawn from the ridge of the mountain.  By comparison, the Commission's Report states that the parties did not dispute that the boundary ran between the base of the mountain and the bundle of lakatan.  In this appeal, however, neither party disputes that the boundary separating the two parcels of land runs from the base of the mountain to the bundle of lakatan.

     With regard to the remainder of the boundary, the Commission's opinion and its record clearly shows that the parties disagreed as to where the boundary should be drawn from the bundle of lakatan.  As for this portion of the boundary, the Commission stated it was adopting Webster George's proposed boundary. The Commission's opinion explained that it was rejecting Mr. Thomson's proposed boundary because "he d[id] not substantially prove his claim." Thomson v. George, Civ. No. 25-93, slip op. at 1 (Aug. 6, 1996).  It further stated that it was adopting Mr. George's claim "[b]ased on the new sketch made for the disputes." Id.

     On August 19, 1996, Mr. Thomson filed a motion to alter the Special Master's Report.  Thomson v. George, Civ. 25-93, Mot. (Aug. 19, 1996).  In that motion, Mr. Thomson stated that although he concurred with that portion of the Commission's Report concerning the boundary from the ridge of the mountain to the bundle of lakatan, he did not believe that the boundary then ran from the bundle of lakatan to the xylocarpus granatum tree.  According to Mr. Thomson, this portion of the Commission's finding was clearly erroneous.  In support of his argument, Mr. Thomson explained that the Commission failed to include the location of its preliminary and final survey markers in its report, as required by the court's order. According to Mr. Thomson, the Commission failed to survey the common boundary line and instead arbitrarily designated the xylocarpus granatum tree as a monument for establishing the boundary.

     On December 27, 1996, the trial court rejected Mr. Thomson's motion to amend the Special Master's Report and instead adopted the Commission's Report as its finding on the location of the boundary that was at issue in the litigation.  Thomson v. George, Civ. No. 25-93, unpublished order (Dec. 27, 1996).  The trial court, noting that Rule 53(e)(2) of the Kosrae Rules of Civil Procedure states that a finding of fact by a special master shall not be set aside unless clearly erroneous, held that the Commission's use of a tree as a marker was not arbitrary because "the Land Commission frequently uses trees as markers."  Id.  In addition, the trial court's order notes that the sketches both before and after the report indicate the preliminary and final markers, as required by the trial court's order.

II.  Issues on Appeal
     According to the appellant, his appeal concerns the adequacy of the report issued by the Commission which was, in turn, adopted by the trial court.  The appellant challenges the determination of the location of the boundary at issue here on two grounds.  First, the appellant argues that the determination of the location of the boundary was made without taking a survey.  Second, the appellant argues that determination of the location of the boundary was made based upon evidence which was not entered into the record.

[8 FSM Intrm. 521]

II. A.  The Commission's Failure to Survey the Boundary
     Citing Opet v. Mobil Oil Micronesia, Inc., 3 FSM Intrm. 159, 165 (App. 1987); Ray v. Electric Contracting Corp., 2 FSM Intrm. 21, 24 (App. 1985) and Kinere v. Kosrae, 6 FSM Intrm. 307, 309 (App. 1993), the appellant maintains that this was clearly erroneous.  According to the appellant, not only did the trial court order the Commission to conduct a survey in connection with its determination, but the failure to do so following the hearing on the matter resulted in an inaccurate determination.  Specifically, the appellant maintains that without a survey, the Commission could not determine "whether the tui [xylocarpus granatum] tree is in fact situated on a `straight line' from the mountain ridge marker through the `lakatan' at the base of the mountain" (emphasis added).

     According to the appellee, the Commission was not required to conduct a survey following its hearing on the location of the boundary.  Instead, according to the appellee, the Commission was only required to "`report on the location of its preliminary and final survey markers.'"  The appellee further states that the Commission included these final survey markers in its report, which the trial court then adopted.  Appellee maintains that under these circumstances, the decision as to the location of the boundary separating the two parcels of land is not clearly erroneous.

II. B.  The Commission's Reliance upon Evidence
Not Entered into the Record
     According to the appellant, the evidence that the Commission relied upon does not even exist.  Specifically, the appellant maintains that the trial court clearly erred when it adopted the Commission's report on the basis that the "sketches made before and after the report indicate the preliminary and final markers."  According to the appellant, in fact, there were no "new" sketches made in connection with the Commission's decision making.  The appellant, citing Etpison v. Perman, 1 FSM Intrm. 405 (Pon. 1984) and Noda v. Peter, Kosrae State Court CA No. 7-85, unpublished decision (August 22, 1991), argues that as such, the Commission's determination of the location of the boundary in question, as adopted by the trial court, is clearly erroneous.

     The appellee argues that there were sketched made of the boundary during the Commission's hearing.  He also maintains that Mr. Thomson did not object to the use of these sketches during the hearing and as such, he cannot now object to the use of that sketch on appeal.

     Citing Emilios v. Setile, 6 FSM Intrm. 558, 561 (Chk. S. Ct. App. 1994); Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 59 (App. 1992); Kinere, 6 FSM Intrm. at 309; FSM v. Moroni, 6 FSM Intrm. 575, 579 (App. 1994) and Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994), appellee maintains that if the appellate court is not left with a definite and firm conviction that a mistake has been made, the appellate court can only affirm.

III.  Discussion
     Under the Kosrae State Constitution, any decision of the Kosrae State Court may be appealed to the appellate division of the Supreme Court of the Federated States of Micronesia.  Kos. Const. art. VI, 6.  Under the Kosrae Code, "[t]he appellate court does not set aside the Court's findings of fact unless clearly erroneous."  Kos. C. 6.403(2).  Accordingly, the standard of review in the matter at hand is whether the trial court's adoption of the Commission's findings was clearly erroneous.  Under the Kosrae Rules of Civil Procedure, findings of fact by a court shall not be set aside unless clearly erroneous.  Kos. Civ. R. 52.  This same standard of review applies to a special master's report.  See 5A James W. Moore et al., Moore's Federal Practice 53.11-53.12 (1990).  Thus, if a special master's report is clearly erroneous, then it, like a trial court opinion, may be set aside.

[8 FSM Intrm. 522]

     In determining whether a factual finding is clearly erroneous, an appellate court cannot substitute its judgment for that of the fact finder.  Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1996); Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 59 (App. 1993).  As a starting point, the trial court's factual findings are presumed correct.  Emilios v. Setile, 6 FSM Intrm. 558, 560 (Chk. S. Ct. App. 1994).  In determining whether a factual finding is clearly erroneous, an appellate court must view the evidence in a light most favorable to the appellee.  Hadley, 7 FSM Intrm. at 452; Kinere v. Kosrae, 6 FSM Intrm. 307, 309 (App. 1993).  A factual finding is clearly erroneous when the appellate court, after reviewing the entire body of the evidence and construing the evidence in the light most favorable to the appellee, is left with the definite and firm conviction that a mistake has been committed.  Damarlane v. United States, 8 FSM Intrm. 45, 53 (App. 1997); Hadley, 7 FSM Intrm. at 452.

     In reviewing the trial court's opinion in the matter at hand we can find no error in the Commission's failure to conduct a survey following its hearing on the location of the boundary in question.  Our review of the trial court record shows that the Commission was called upon "to survey Loal, Tafunsak, and submit a report to the Court regarding the common boundary . . . between the land claimed by . . . Masaki Thomson, and the land claimed by . . . Webster George."  In reporting to the trial court, the Commission was instructed to "report on the location of its preliminary and final survey markers."

     The appellant stated during the oral argument that the Commission, after hearing testimony on the location of the boundary, should have then conducted an actual survey on the property in question, using a survey team to make the proper linear and angular measurements needed to identify the parameter of each parcel of land.  According to the appellant, doing so would have confirmed the location of the boundary, as established from the testimony adduced at the hearing.  We disagree.

     The Commission could have properly completed its task of surveying the land and reporting on the location of the boundary, including the location of the preliminary and final survey markers, without conducting the type of survey that the appellant believes should have been undertaken.  In our view, the Commission's efforts in determining the location of the boundary resulted in a survey of the land in question, as it was instructed to do by the trial court.

     Moreover, even if the Commission had undertaken the specific survey efforts suggested by the appellant, there is no guarantee that the Commission would have confirmed the appellant's theory that "the tui [xylocarpus granatum] tree is in fact situated on a `straight line' from the mountain ridge marker through the `lakatan' at the base of the mountain (emphasis added).  Indeed, the very issue before the Commission was identifying the location of the boundary based upon the competing claims of the parties.  Had the Commission been required to conduct a survey based solely upon the appellant's assertions as to where the boundary was located, the Commission's entire decision making process would have been rendered meaningless.

     Instead, the Commission, in surveying the land in question, held a hearing and, based upon the evidence presented to it, determined the location of the boundary separating Messrs. Thomson's and George's adjoining parcels of land.  That the Commission did so without conducting a subsequent survey as suggested by the appellant does not result in reversible error.

     In the appellant's second argument concerning the Commission's reliance upon evidence not entered into the record we do find reversible error.  As an initial matter, we feel compelled to note that the appellant's reliance upon Noda v. Peter is not only inaccurate, but unconvincing.  According to the appellant, the Court in Noda held that a Kosrae Land Commission determination based upon considering a 1932 Japanese map not entered into evidence constituted reversible error.  In fact, the Commission's consideration of the map in question after the hearing was closed was in error, "but not the type to

[8 FSM Intrm. 523]

cause the entire proceedings . . . to become fundamentally unfair."  In other words, the court in Noda did not find reversible error, as the appellant stated in his brief.

     Nonetheless, in the matter at hand, our review of the trial court record shows that the Land Commission apparently considered some sketches during its hearing.  The transcripts of the Land Commission's hearing shows several instances in which witnesses were examined and cross-examined about a sketch. It is unclear to us, however, whether the testimony was offered with respect to an "old" sketch or a "new" sketch.  In addition, the Land Commission's report to the trial court did not include any sketches of the property in question, either "new" sketches or "old" sketches.  As such, it is unclear whether there were any sketches that the Commission considered which were properly entered in the record so that each party could have fairly commented on all of the evidence before the Commission without suffering prejudice.

     This court has previously held that it is a violation of a litigant's constitutional right to due process for a trial court to rely on evidence, not a part of the record, without prior notice to the parties and an opportunity for the parties to comment on it.  Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 669 (App. 1996).  Similarly, in Waguk v. Kosrae Island Credit Union, 6 FSM Intrm. 14, 18 (App. 1998), this court ruled that it was error for a trial court to rely on exhibits never identified, described, or marked at trial.  In Waguk, however, the court ruled that the trial court did not commit reversible error, in part, because there was extensive testimony and cross examination of witnesses concerning the exhibits in question.

     In contrast to Waguk, a review of the Land Commission proceedings in the case at hand does not show extensive examination and cross examination of the sketches before the Commission.  Based upon our review of the record, it is unclear how many sketches may have come before the Commission.  It is also unclear which of the parties submitted a particular sketch.  More troubling is the fact that the identity of the sketches that the witnesses may have been called upon to testify about is open to speculation.  Under these circumstances, we find that the Land Commission's efforts resulted in reversible error.  Accordingly, we remand this case to the trial court with instructions to conduct a new hearing that conforms to the due process requirements of the Constitutions of the State of Kosrae and the Federated States of Micronesia.  See Alik v. Kosrae Hotel Corp., 5 FSM Intrm. 294, 297 (Kos. 1992) (because wording of due process clauses in Kosrae and FSM Constitutions are identical, they are treated identical in meaning and in scope).

IV.  Conclusion
     For the reasons set forth above, the trial court's decision is vacated.  This matter is hereby remanded to the trial court with instructions that the location of the boundary separating Messrs. Thomson's and George's adjoining parcels of land be determined in a manner that is consistent with the due process clauses of the FSM Constitution and the Kosrae State Constitution.
 
*    *    *    *
 
Footnote:
 
1.In his complaint, Mr. Thomson included four causes of action.  First, he sought to quiet title to the property he believed he owned.  Second, he alleged that his due process rights under the FSM and Kosrae State Constitutions were violated based upon the taking of his property with notice or an opportunity to be heard. Third, he alleged that his civil rights under "11 F.S.M.C. 710 [sic]" were violated. Lastly, he sought to have the order in Kosrae State Court No. 61-91 vacated on the basis that he was an indispensable party who should have been joined in Kosrae State Court No. 61-91.  Thomson v. George, Civ. No. 25-93, Compl. (May 5, 1993).
 
                                                                                                                                                                                                                                                                                                           
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