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Wesley v Carl [2005] FMKSC 34; 13 FSM Intrm. 429 (Kos. S. Ct. Tr. 2005) (20 September 2005)

KOSRAE STATE COURT TRIAL DIVISION

Cite as Wesley v Carl, 13 FSM Intrm. 429 (Kos. S. Ct. Tr. 2005)

PALIKKUN WESLEY,
Appellant,

vs.

LISA PRESLEY CARL
Appellee.

CIVIL ACTION NO. 166-04

MEMORANDUM OF DECISION; JUDGMENT

Yosiwo P. George
Chief Justice

Hearing: September 15, 2005
Decided: September 20, 2005

APPEARANCES:

For the Appellant:
Robinson Timothy
P.O. Box 261
Tofol, Kosrae FM 96944

For the Appellee:
Sasaki L. George, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review - Standard of Review - Civil Cases
The Kosrae State Court must review a Kosrae Land Court decision on the record, transcripts and exhibits received at the Land Court hearing and the court’s review must determine whether the Land Court’s decision was based upon substantial evidence and whether the decision was contrary to law. If the court finds that the Land Court decision was based upon substantial evidence and was not contrary to law, the Land Court decision must be affirmed. Wesley v. Carl, 13 FSM Intrm. 429, 430 (Kos. S. Ct. Tr. 2005).

Appellate Review - Standard of Review - Civil Cases
The Kosrae Land Court’s factual findings and decision can be overturned only if they are not supported by substantial evidence. In considering whether the Land Court’s findings and decision were based upon substantial evidence, the Kosrae State Court recognizes that it is primarily the Land Court’s task to assess the witnesses’ credibility, the admissibility of evidence and to resolve factual disputes. On appeal, the Kosrae State Court should not substitute its judgment for the well-founded findings of the lower court. Wesley v. Carl, 13 FSM Intrm. 429, 431 (Kos. S. Ct. Tr. 2005).

Evidence - Burden of Proof
It is the claimant’s burden to present his or her evidence to the Land Court and it is the claimant’s burden to request admission of evidence which had been previously presented to the Land Commission in prior proceedings. Wesley v. Carl, 13 FSM Intrm. 429, 431 (Kos. S. Ct. Tr. 2005).

Evidence - Hearsay
It is the Land Court’s duty to assess the witnesses’ credibility, the admissibility of evidence, and to resolve factual disputes and it retains discretion to accord weight to evidence presented at hearing, including appropriate weight to hearsay evidence made by a person, now deceased, and therefore not subject to cross-examination. Wesley v. Carl, 13 FSM Intrm. 429, 432 (Kos. S. Ct. Tr. 2005).

Appellate Review - Standard of Review - Civil Cases
When, after careful review of the record, the Kosrae State Court concludes that the factual disputes before the Land Court were properly resolved and the Land Court’s finding that the conditions pertaining to continued ownership of land had been fulfilled was supported by substantial evidence, it will not substitute its judgment for the Land Court’s well-founded findings, and when the Land Court’s findings and conclusions in awarding the appellee ownership were supported by substantial evidence and are not contrary to law, the Land Court decision must be affirmed. Wesley v. Carl, 13 FSM Intrm. 429, 432 (Kos. S. Ct. Tr. 2005).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

This matter is an appeal from the decision of the Kosrae Land Court, entered on October 28, 2004, which awarded ownership of parcel 079T01, known as Wiyu, to Appellee. Appellant filed his brief on March 31, 2005. Appellee filed her brief on August 23, 2005. The hearing on briefs was held on September 15, 2005. Robinson Timothy appeared for the Appellant. Appellee was represented by Sasaki George, MLSC. After hearing from the parties, I took the matter under advisement. This Memorandum of Decision sets forth my decision and reasoning.

I. Analysis.

This Court must review the Kosrae Land Court decision on the record, transcripts and exhibits received at the Land Court hearing. This Court’s review must determine whether the Land Court’s decision was based upon substantial evidence or whether the decision was contrary to law. Kos. S.C. § 11.614(5)(d). If this Court finds that the Land Court’s decision was based upon substantial evidence and was not contrary to law, the decision of the Land Court must be affirmed.

Appellant raised evidentiary issues on this appeal. Appellant claims that the Land Court did not properly assess the evidence presented at the hearing. Specifically, Appellant claims that a cassette tape, which contained a statement made by the Appellant’s father, was not considered by the Land Court. Appellant claims that the cassette tape was in the custody of the former Land Commission. Appellant argues that the cassette tape spelled out conditions applicable to the gift of parcel 079T01 from Wesley to Nena. Although the cassette tape itself was not introduced into evidence at the Land Court hearing, the Appellant himself had testified at the Land Court hearing and had summarized the contents of the cassette tape in his testimony.

The parties do not dispute that the subject parcel was first possessed and used by Wesley, father of the Appellant. Wesley then gave the parcel to his brother Nena as a gift. Nena is the father of the Appellee. The Land Court found that Nena was owner of the parcel pursuant to the gift from Wesley, and that the Appellee had inherited the subject parcel from her father Nena, after his death, pursuant to his will.