FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. K5-2006

HEIRS OF TULENSRU JERRY,
Appellants,

vs.

HEIRS OF JUSTUS ABRAHAM,
Appellees.
__________________________________________

OPINION

Argued: March 26, 2008
Decided: April 14, 2008

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Appellants: 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; Constitutional Law  Due Process

Due process issues are questions of law, and questions of law are reviewed de novo. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 571 (App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Property  Registered Land

The statute requires that a notice of a land registration hearing be given to all interested parties and claimants, and to the public. "Interested parties" is not defined. Claimants are presumably those persons who are known to have filed a claim to register the land. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 571 (App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Property  Registered Land

In a Torrens land registration system, it is in the land owner's interest for notice to be given as broadly as possible since the certificate of title the landowner gets at the end of the process is conclusive upon any person who had notice of the proceedings and all those claiming under that person, but only prima facie evidence of ownership against all others. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 571 (App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Property  Land Court; Property  Registered Land

Adjoining landowners, even if not claimants, would, because of their common boundaries, be interested parties, along with anyone else who holds some interest in the land, such as a mortgagee, an easement holder, or a holder of a covenant running with the land. But even if the adjoining landowners were not interested parties, Land Court notice to them is not contrary to law. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 571 (App. 2008).

Property  Land Court; Property  Registered Land

Because of the conclusive nature of a certificate of title, the Land Court should give the adjoining landowners notice of the formal hearing so that the resulting boundaries will be conclusive against them. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 571 (App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Property  Land Court; Property  Registered Land

Notice of land registration hearings must be given to the public in general. The hearings are public, and anyone may attend. Land Court proceedings are not ones which only the known claimants may attend. One purpose of public notice at various stages of the registration process is to reach as many persons as possible so that, at the end, the certificate of title will be conclusive against as many persons as possible, which is to the certificate holder's considerable benefit. The statute requiring that actual notice be given to claimants, is a minimum requirement, not the maximum permissible. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 572 (App. 2008).

Property  Land Court

The Kosrae Land Assessor must prepare one or more preliminary sketches clearly marking the land and the boundaries claimed by each claimant, and a qualified surveyor must make a survey based on the preliminary sketch, do the survey, and prepare a preliminary map, which the Land Assessor is required to post the preliminary map so that it will be visible to the presiding judge and any witness on the witness stand. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 572 (App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Property  Land Court

Once a new claim arose, the other claimants were entitled to notice of it and to have a preliminary map showing the claims in dispute posted during a formal hearing. Due process requires that the new claim be surveyed, a new preliminary map prepared showing the overlapping claims, and a new, or second, formal hearing held with the new preliminary map posted. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 572 (App. 2008).

Constitutional Law  Due Process  Notice and Hearing

It is a due process violation and constitutional error for a court to base its decision, in whole or in part, on evidence of which a party has not had both notice and the opportunity to be heard. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 573 (App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Property  Land Court

The process due to land claimants under the Kosrae Land Court Rules requires that a preliminary map showing all claims be posted at a formal hearing so that the presiding judge and the witnesses can view it and the claimants have an opportunity to be heard on any disputes. When the Land Court based its decision on a map prepared long after the formal hearing and on which the appellants had no opportunity to comment and no map showing the overlapping claims was available at the hearing, a second formal hearing should have been held once the new (second) preliminary map was prepared showing both sides' claims. The matter will therefore be remanded to the Land Court for that court to hold another formal hearing at which a map showing all the claimed boundaries must be posted and at which the parties will have the opportunity to be heard on the matter of the overlapping claims and the two preliminary maps and for which the Land Court will give actual notice to all claimants and to all interested parties. Interested parties shall be interpreted to include the adjoining landowners. Heirs of Jerry v. Heirs of Abraham, 15 FSM Intrm. 567, 573 (App. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This appeal is from the Kosrae State Court's affirmance of a Land Court decision about the boundary between Parcels No. 079-T-11 and 079-T-10 in an area known as Wiyu. We vacate that affirmance and remand the matter to the Kosrae State Court with instructions for it to remand the matter to the Kosrae Land Court for further proceedings in compliance with this opinion. Our reasons follow.

I. Procedural History and Background

Wiyu was designated a land registration area in 1989. Preliminary inquiries were held on March 14, 1990, at which Tulensru Jerry appeared and made his claim to Parcel No. 079-T-11 and filed an application for registration of 079-T-11 and Justus Abraham appeared and made his claim to Parcel No. 079-T-10 and filed an application for registration of 079-T-10. Their claims were recorded. The land registration team held formal hearings for the parcels in July 1990. Nothing happened for the next ten years.

Then, in letters dated January 3, 2001, the land registration team notified the Heirs of Tulensru Jerry and the Heirs of Justus Abraham (both Jerry and Abraham having died in the intervening years) that there had not been decisions on their claims and that a re-survey was needed. A preliminary survey was done and a cadastral plan (preliminary map) of Wiyu prepared showing Parcel No. 079-T-11 containing 20,801 square meters and the adjoining Parcel No. 079-T-10 containing 69,241 square meters. It did not show any disputes or overlapping claims. Before the Land Commission took any further action, the Land Court replaced it as the body for land registration and title determinations and all Land Commission cases were transferred to the Land Court.

In November 2003, the Land Court served notice on both the Heirs of Jerry and the Heirs of Abraham that there would be a formal hearing for Parcel No. 079-T-011 on February 11, 2004. At the hearing, the Heirs of Abraham claimed an area within the borders of Parcel No. 079-T-11 shown on the preliminary map. On December 27, 2004, the Land Court judge ordered that a further survey be made to "pick up" the claims made at the February 11, 2004 formal hearing (erroneously dated as held on June 10, 2004). A new map was made of Parcels No. 079-T-011 and 079-T-10 with different boundaries between the two and with Parcel No. 079-T-11 now containing only 10,661 square meters (about a 50% reduction in size and with a quite different shape) and the adjoining Parcel No. 079-T-10 containing 61,503 square meters. Based on this new map, the Land Court issued a judgment on March 14, 2005.

Beaker T. Kun, representing the Heirs of Tulensru Jerry then appealed to the Kosrae State Court. He urged that court to reverse on the grounds that since Justus Abraham had not been a claimant to Parcel No. 079-T-11, his heirs should not have been invited to the formal hearing for that parcel; that the Land Court violated its statute by taking too long for it to decide the case; and that the Land Court should not have ordered a new map when no one had objected to the preliminary one. The State Court rejected these arguments, Kun v. Heirs of Abraham, 13 FSM Intrm. 558, 561-62 (Kos. S. Ct. Tr. 2005), holding that too much notice is not error and that exceeding the statutory time to render a decision is not reversible error but only a ground for disciplining the presiding judge. It affirmed the Land Court. Kun then moved to amend the judgment. The State Court denied this on March 16, 2006.

Kun then petitioned for a rehearing pursuant to Kosrae Appellate Procedure Rule 19, contending that when the Land Court provided notice to the Heirs of Abraham it created a dispute where none had previously existed; that the State Court erred by finding or assuming that Heirs of Abraham would have been at the hearing anyway; that the State Court erred by assuming or finding that the Heirs of Abraham were claimants to Parcel No. 079-T-11, although they had not claimed it previously; that the preliminary map had not shown any overlapping claims or disputed boundaries and that the Land Court should have given notice that it intended to reject the preliminary map and order a new one; that without notice of the overlapping claim, the Heirs of Jerry had not had a fair formal hearing and were thus prejudiced; that the Land Court had exceeded its statutory time limit to decide the case; and that for all these reasons the due process rights of Heirs of Jerry were violated, and further asserted that the Heirs of Abraham must have influenced someone at the Land Court. The State Court rejected these contentions holding that it had not overlooked or misapprehended any point of law or fact in its earlier decision and dismissed Kun's assertion of misconduct as purely speculative and without credibility because no details or identification had been provided. Kun v. Heirs of Abraham, Civ. No. 60-05, Order Denying Petition for Rehearing at 1-2 (Kos. S. Ct. Tr. Apr. 20, 2006). Kun then appealed to the FSM Supreme Court appellate division.

II. Issues Presented and Standard of Review

The appellants present the following issues for appellate review. They contend the Kosrae State Court's December 20, 2005 affirmance of a Kosrae Land Court ruling was in error because, in their view, the Land Court erred when, contrary to due process and the Kosrae Land Act of 2000, 1) it invited a person to a hearing for a land parcel when that person did not have a recorded claim to that parcel; 2) a preliminary map showing the claimed area of the parties was not posted at the Land Court during the hearing; and 3) it did not give the original claimant to the land parcel an opportunity to be heard on new evidence not shown at the Land Court hearing before the Land Court made a determination based on that new evidence.

The due process issues are questions of law. Questions of law we review de novo. Sigrah v. Kosrae, 12 FSM Intrm. 320, 324 (App. 2004); Kosrae v. Skilling, 11 FSM Intrm. 311, 315 (App. 2003).

III. Analysis

A. Invitation of Persons to a Hearing for a Land Parcel

The appellants note that there were no overlapping or disputed boundaries shown on the required preliminary cadastral map nor had they been made aware of any before the February 11, 2004 formal hearing was held. The appellants contend that the Land Court's invitation of the Heirs of Abraham to the formal hearing for Parcel No. 079-T-11 violated their due process rights because it created a dispute since there were no known overlapping boundary claims before then and Heirs of Abraham had not made any claims to Parcel No. 079-T-11 before then and thus were not an interested party. The appellants contend that such an invitation was contrary to law and therefore a ground upon which to reverse the Land Court decision. They further contend that the State Court erred by finding that even if the Heirs of Abraham had not been given notice by the Land Court they still would have received notice through the public announcements and appeared to make their claim.

The statute requires that a notice of hearing be given "to all interested parties and claimants," Kos. S.C. § 11.613(1), and to the public, Kos. S.C. § 11.613(1), (2), (3). "Interested parties" is not defined. Claimants are presumably those persons who are known to have filed a claim to register the land.

Initially, this assignment of error appears frivolous. This is a Torrens land registration system. It is in the land owner's interest for notice to be given as broadly as possible since the certificate of title the landowner gets at the end of the process "is conclusive upon any person who had notice of the proceedings and all those claiming under that person," but only "prima facie evidence of ownership against all others." Kos. S.C. § 11.615(3).

Adjoining landowners, even if not claimants, would, because of their common boundaries, be interested parties, along with anyone else who holds some interest in the land, such as a mortgagee, an easement holder, or a holder of a covenant running with the land. But even if the adjoining landowners were not interested parties, Land Court notice to them is not contrary to law.

The appellants do pose one good question here  why not give notice to all the adjoining landowners? It would have been good practice for the Land Court to have given such notice. Because of the conclusive nature of a certificate of title, the Land Court should give the adjoining landowners notice of the formal hearing so that the resulting boundaries will be conclusive against them. But since the appellants do not have disputed borders with other adjoining landowners, this is not an issue they can raise as reversible error in this case.

Whether the Heirs of Abraham would have appeared and made a claim if the Land Court had not given them notice and they had relied on the notice given to the public is thus irrelevant. Notice must be given to the public in general. The hearings are public, and anyone may attend. Land Court proceedings are not ones which only the known claimants may attend. One purpose of public notice at various stages of the registration process is to reach as many persons as possible so that, at the end, the certificate of title will be conclusive against as many persons as possible, which is, of course, to the certificate holder's considerable benefit.

The statute requiring that actual notice be given to claimants, is a minimum requirement, not the maximum permissible, as urged by the appellants. Notice to the Heirs of Abraham is not reversible error. The only real concern here is that the Heirs of Jerry ended up with being presented with a claim that they had not expected to have to defend against. That point is discussed below.

We accordingly affirm the Kosrae State Court's holding that the Land Court's notice to the Heirs of Abraham of the formal hearing for Parcel 079-T-011 was not reversible error.

B. Preliminary Map Not Posted

The appellants also contend that their due process rights were violated because the preliminary map had not been posted at the February 11, 2004 Land Court hearing. The Land Court rules require that the Land Assessor prepare one or more preliminary sketches clearly marking the land and the boundaries claimed by each claimant, Kos. Land Ct. R. 6(C), and that a qualified surveyor make a survey based on the preliminary sketch, do the survey, and prepare a preliminary map, Kos. Land Ct. R. 6(D). Additionally, at the formal hearing, the rules require the Land Assessor to post the preliminary map so that it will be visible to the presiding judge and any witness on the witness stand. Kos. Land Ct. R. 8(E)(2).

A preliminary map was prepared showing Parcel No. 079-T-11 containing 20,801 square meters and the adjoining Parcel No. 079-T-10 containing 69,241 square meters. It did not show any overlapping claims or a boundary dispute. That preliminary map was posted at the February 11, 2004 hearing. No preliminary map showing the claims of Heirs of Abraham was posted.

The appellants are correct that a preliminary map must be posted and that, if one had been posted showing the Abraham claims, then they would have been apprised of the claims against what they thought was an undisputed Parcel No. 079-T-11. Because the claims of the Heirs of Abraham to half of Parcel No. 079-T-11 as shown on the available preliminary map was, evidently, a new claim that had not been made earlier (or overlooked if it had been), we cannot say that the Land Assessor was required to have shown that claim on a preliminary map posted at the February 11, 2004 formal hearing.

But once that claim arose the Heirs of Jerry were entitled to notice of it and to have a preliminary map showing the claims in dispute posted during a formal hearing. It was not. Due process requires that the new claim be surveyed, a new preliminary map prepared showing the overlapping claims, and a new, or second, formal hearing held with the new preliminary map posted. That is discussed below.

C. Opportunity to Be Heard on New Evidence

The appellants further assert that the Land Court based its finding on evidence not received at the February 11, 2004 formal hearing and that this violated their due process rights. They contend that it was contrary to law for the Land Court to make its decision based on a new map (that the Land Court ordered made in December 2004) without first giving them notice and an opportunity to be heard about that.

This is the appellants' strongest argument. It is a due process violation and constitutional error for a court to base its decision, in whole or in part, on evidence of which a party has not had both notice and the opportunity to be heard. In Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 669 (App. 1996), we held that it was constitutional error for the trial court to rely on a special master's report, not a part of the record, without prior notice to the parties and an opportunity for the parties to comment on it. The Kosrae State Court has also held that due process requires that the parties be given the opportunity to comment upon evidence since notice and an opportunity to be heard are the essence of due process of law and the opportunity to be heard is a fundamental requisite of due process. Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446, 448 (Kos. S. Ct. Tr. 2001); Langu v. Kosrae, 8 FSM Intrm. 455, 458 (Kos. S. Ct. Tr. 1998). And in Panuelo v. Amayo, 12 FSM Intrm. 365, 375 (App. 2004), we ordered a new trial since the trial court had based its determination of liability upon evidence that a defendant had not had an opportunity to oppose because of the trial court's error in failing to provide the defendant with notice of the trial date and time.

In this case, the Land Court based its decision on a map prepared long after the February 11, 2004 formal hearing and on which the appellants had no opportunity to comment. The process due to land claimants under the Kosrae Land Court Rules requires that a preliminary map showing all claims be posted at a formal hearing so that the presiding judge and the witnesses can view it and the claimants have an opportunity to be heard on any disputes. This procedure was not followed because no map showing the overlapping claims was available at the February 11, 2004 hearing. Thus, a second formal hearing should have been held once the new (second) preliminary map was prepared showing both sides' claims. It was not.

Accordingly, we reverse the Kosrae State Court's affirmance of the Land Court and remand the mater so that the Heirs of Jerry can be afforded the due process that they were not given in the Land Court.

D. On Remand

We therefore remand this matter to the Kosrae State Court with instructions that the State Court vacate the Land Court decision and then remand the matter to the Land Court for that court to hold another formal hearing at which a map showing the boundaries as claimed by the Heirs of Abraham and as claimed by the Heirs of Jerry must be posted and at which the parties will have the opportunity to be heard on the matter of the overlapping claims and the two preliminary maps. The State Court shall instruct the Land Court to give actual notice to all claimants and to all interested parties. Interested parties shall be interpreted to include the adjoining landowners.

IV. Conclusion

Accordingly, the Kosrae State Court holding that notice to the Heirs of Abraham was not a due process violation is affirmed and the remainder of the State Court's affirmance of the Kosrae Land Court's March 14, 2005 judgment is reversed. The matter is remanded to the State Court for it to remand the matter to the Land Court with instructions for the Land Court to hold a formal hearing for Parcel No. 079-T-011 at which a preliminary map showing the claims of both the Heirs of Jerry and the Heirs of Abraham must be posted and for which notice must be given to the Heirs of Jerry, the Heirs of Abraham, and all landowners adjoining Parcel No. 079-T-011.

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