KOSRAE STATE COURT
TRIAL DIVISION
Cite as Taubert v. Talley ,
9 FSM Intrm. 541 (Kosrae S. Ct. Tr. 2000)

[9 FSM Intrm. 541]

SRA TAUBERT,
Appellant,

vs.

SKINNER B. TALLEY,
Appellee.

CIVIL ACTION NO. 23-00

MEMORANDUM OF DECISION

Aliksa B. Aliksa
Associate Justice

Hearing:  August 31, 2000
Decided:  October 2, 2000

APPEARANCES:
For the Appellant:     Clanry Likiaksa, trial counselor
                                    P.O. Box 764
                                    Lelu, Kosrae FM 96944

For the Appellee:      Akiyusi Palsis, trial counselor
                                    P.O. Box 224
                                    Lelu, Kosrae FM 96944

*    *    *    *

HEADNOTES
Administrative Law ) Judicial Review
     The Kosrae State Court, in reviewing the Land Commission's procedure and decision, considers whether the Land Commission:  a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented.  Taubert v. Talley, 9 FSM Intrm. 541, 542 (Kos. S. Ct. Tr. 2000).
 
Administrative Law ) Judicial Review
     On appeal the court should not substitute its judgment for those well-founded findings of the Land Commission, but questions of law are reserved to the court and the court must consider whether the Land Commission has reasonably assessed the evidence presented.  Taubert v. Talley, 9 FSM Intrm. 541, 542 (Kos. S. Ct. Tr. 2000).

Administrative Law ) Judicial Review
     The Land Commission's finding of fact that the appellee obtained title to the land through a land exchange was based upon a reasonable assessment of the evidence and was not clearly erroneous when supported by testimony of a witness who was cross-examined on other points of his testimony,

[9 FSM Intrm. 542]

but was not cross-examined about the land exchange, because an inference of the failure to cross-examine about the land exchange testimony was the opponent's acceptance of those facts testified to by the witness.  The Land Commission's decision will thus be affirmed.  Taubert v. Talley, 9 FSM Intrm. 541, 543 (Kos. S. Ct. Tr. 2000).

*    *    *    *

COURT'S OPINION
ALIKSA B. ALIKSA, Associate Justice:
     This matter is an appeal of the Determination of Ownership issued on parcel 066-M-02, also called Mosral, to Skinner B. Talley on February 2, 2000.  Pursuant to this Court's Order entered August 22, 2000, Sra Taubert was substituted as the real party in interest and designated as the Appellant in this matter.  Appellant filed her brief on July 24, 2000.  Appellee's brief was filed on August 17, 2000. The hearing on the briefs was held on August 31, 2000.  Clanry Likiaksa appeared for the Appellant.  Appellee was represented by Akiyusi Palsis.  This Memorandum of Decision sets forth the Court's decision in this matter and its reasoning.

I.  Memorandum of Decision.
     This appeal is heard on the record, pursuant to Kosrae State Code, Section 11.614.  The Court, in reviewing the Land Commission's procedure and decision, considers whether the Land Commission:  a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented.  Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988).

     The Appellant in this matter argues that the Land Commission did not reasonably assess the evidence presented and did not properly resolve legal issues.  In particular, Appellant claims that the Land Commission's finding that parcel 066-M-02 was first given by Cornelius to his daughter Shrue Inpana Burdin was clearly erroneous.  Appellant also argues that the Land Commission's finding that Shrue Inpana Burdin, gave the parcel to her son, Appellee Skinner Talley, was also clearly erroneous.  Appellant argues that Cornelius gave the land to her through an "usru" gift of land, since she was adopted to Cornelius.

     The Court has carefully reviewed the record in this matter and has considered the findings of the Land Commission with respect to the evidence presented at the hearing.  On appeal the court should not substitute its judgment for those well-founded findings of the Land Commission, but questions of law are reserved to the court.  Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 35 (Kos. S. Ct. Tr. 1997).  However, the Court must consider whether the Land Commission has reasonably assessed the evidence presented.  Based on its careful review of the record, this Court concludes that the Land Commission did reasonably assess the evidence presented, and did properly resolve the legal issues.  Therefore, the Determination of Ownership issued by the Land Commission to Skinner Talley must be affirmed.

     The Land Commission found that Cornelius gave the parcel to his daughter Shrue Inpana Burdin. This finding was consistent with Land Commission's finding that Salik Cornelius directed Shrue Inpana to give parcel 066-M-02 to her son Skinner Talley in exchange for a parcel owned by Skinner Talley adjacent to the Malem Elementary School.  This land exchange was made between a parcel adjacent to Malem Elementary School which was owned by Skinner Talley and parcel 066-M-02.  The Appellee's ownership of parcel 066-M-02 by gift from his mother is consistent with Appellee's ownership of the

[9 FSM Intrm. 543]

parcel through the land exchange which occurred in 1985 or 1986.  Burdin testified about the land exchange at the hearing.  Salik Cornelius, who was present at the hearing on behalf of Sra Taubert, did not cross examine Burdin on his testimony regarding the land exchange.  Salik Cornelius did cross examine Burdin on other points of his testimony, but not the testimony regarding the land exchange.  The inference given by Salik Cornelius' failure to cross examine Burdin on his testimony relating to the land exchange shows Salik Cornelius' acceptance of these facts as testified to by Burdin.  As a result of this land exchange, Skinner Talley was given parcel 066-M-02 from his mother, at the direction of Salik Cornelius.

     The Land Commission's findings of fact, based upon the evidence presented at the hearing, and in particular, Burdin's testimony regarding the land exchange was based upon a reasonable assessment of the evidence and was not clearly erroneous.  Accordingly, the Land Commission's findings of facts, opinion and Determination of Ownership are affirmed.  The Land Commission is ordered to issue the Certificate of Title for parcel 066-M-02 to Skinner Talley.  The Certificate of Title shall be issued on November 1, 2000 or as soon as possible thereafter.
                                                                                                                                                                                                                                                                                                           
֋%"|uPh֋Rh.PQh| DžEuChPh5(F`Ӌ53`Pjj h֋=(3`PFD=(3`53`hօtttkP@ pIu-Vt.(F`PQ|}Pjj hօu|`P@ p%u||ut(F`PQjj ׃u |hօtKt5tt|ujj PhօtnRh-PQh|Rt7t"uu|jj hօh>tZ 0)F`BuKݶt<hPt h*t hh>h%>t1 0)F`u"uuhPhOh=t" 0)F`thPh#h=u