FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K1-2015
[Consolidated with K4-2015]

HEIRS OF MOSES HENRY and JOHN SIGRAH,	)				
)				
Appellants,				)
)
vs.						)
)
HEIRS OF ELISE AKINAGA,				)
)
Appellees.				)
_____________________________________________	)

	OPINION

	Argued:  July 14, 2016
	Decided:  January 6, 2017

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Mayceleen J.D. Anson, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, State Court of Yap, Colonia, Yap
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellants:	Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

For the Appellees:	Snyder H. Simon, Esq.
P.O. Box 1017
Tofol, Kosrae FM 96944

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	HEADNOTES

Appellate Review  Standard  Civil Cases  Factual Findings
A trial court’s findings are presumptively correct.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 118 (App. 2017).

Appellate Review  Standard  Civil Cases  Factual Findings
When the trial court findings are alleged to be clearly erroneous, an appellate court can find reversible error only if:  1) the trial court findings were not supported by substantial evidence in the record or 2) the trial court’s factual finding was the result of an erroneous conception of the applicable law or 3) after reviewing the entire body of evidence and construing it in a light most favorable to the appellee, the appellate court is left with a definite and firm conviction that a mistake has been made.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 118 (App. 2017).

Appellate Review  Standard  Civil Cases  Factual Findings
In order to be clearly erroneous, a decision must strike the appellate court as more than maybe or probably wrong; it must strike the court as wrong with the force of a five-week-old unrefrigerated dead fish.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 118 (App. 2017).

Appellate Review  Standard  Civil Cases  Factual Findings
Substantial evidence is evidence which a reasonable mind would accept as sufficient to support a conclusion and it consists of more than a scintilla of evidence, but less than a preponderance.  A court, reviewing a claim that substantial evidence is lacking, cannot substitute its judgment for that of the trial court.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 118-19 (App. 2017).

Appellate Review  Standard  Civil Cases  Factual Findings
When an appellate court finds nothing that contradicts a Trust Territory High Court judgment previously rendered on the issue of ownership of the land in question and the state court decision is based solely on the prior High Court decision, the trial court will be affirmed.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 119 (App. 2017).

Appellate Review  Standard  Civil Cases  De Novo
Issues of law are reviewed de novo on appeal.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 119 (App. 2017).

Civil Procedure; Judgments
A proposition that it is mandatory that separate sections specifically entitled "Findings of Fact" and "Conclusions of Law" appear within an order, is misguided.  Kosrae Civil Procedure Rule 52 plainly states that if an opinion or memorandum of decision is filed, it is sufficient if the findings of fact and conclusion of law appear therein.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 119 (App. 2017).

Civil Procedure; Judgments
A presiding judge is under no obligation to reduce his findings and conclusions to writing, so long as he has stated the findings and conclusions orally in open court.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 119 (App. 2017).

Civil Procedure; Judgments
Once the parties have finished presenting all their evidence, the trial court’s duty is to weigh the evidence and make its findings of fact and conclusions of law and to render judgment on whether the plaintiff has shown a right to relief.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 119 (App. 2017).

Appellate Review  Standard  Civil Cases  Factual Findings
The trial court need not say why it did not consider an issue or fact; it need only make a finding of such essential facts as provide a basis for its decision.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 120 (App. 2017).

Evidence  Burden of Proof; Property  Land Registration
The party challenging the authenticity or validity of a certificate of title, bears the burden of proving it is not authentic or valid because a certificate of title is prima facie evidence of ownership and courts must attach a presumption of correctness to it.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 120-21 (App. 2017).

Evidence  Authentication; Evidence  Hearsay
An ancient document is authenticated if evidence that the document, in any form, is in such condition, as to create no suspicion concerning its authenticity, was in a place where if authentic, would likely be, and has been in existence 20 years or more at the time it is offered.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 121 (App. 2017).

Appellate Review  Standard  Civil Cases  Factual Findings
A determination that substantial evidence supports the finding does not mean the evidence must be uncontroverted or undisputed, but if findings are adequately supported and the evidence reasonably assessed, the findings will not be disturbed on appeal.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 121 (App. 2017).

Constitutional Law  Due Process  Notice and Hearing; Judgments  Collateral Attack; Judgments  Relief from Judgment; Judgments  Void
It is well established, that when a judgment has been entered against a party without notice or an opportunity to be heard, it is void and subject to direct or collateral attack at any time.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 121 (App. 2017).

Judgments  Relief from Judgment  Independent Action
An independent action in equity to set aside a judgment must satisfy five essential elements:  1) a judgment which ought not, in equity and good conscience, to be enforced; 2) a good defense to the alleged cause of action on which the judgment is founded; 3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; 4) the absence of fault or negligence on the part of the defendant; and 5) the absence of any adequate remedy at law.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 121 (App. 2017).

Evidence  Relevant
Evidence must be in the nature of facts  not conclusions or unsupported allegations of counsel.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 122 (App. 2017).

Evidence  Burden of Proof
Parties have the responsibility to put forward the evidence to support their case.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 122 (App. 2017).

Evidence
An argument contained within a brief does not constitute evidence.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 122 (App. 2017).

Judgments  Collateral Attack; Judgments  Relief from Judgment  Independent Action
A collateral attack is not an opportunity to appeal or relitigate the matter.  Merely leveling a claim of fraud, without connecting up such an allegation in terms of propounding sufficient evidence, does not satisfy the requisite burden of proof for a collateral attack of a Trust Territory judgment and fails to satisfy the five-prong test required to pierce a judgment via a collateral attack.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113, 122 (App. 2017).

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	COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

This appeal stemmed from an Order of Dismissal issued by the Kosrae State Court on April 17, 2015.  The Kosrae State Court found the evidence adduced, with respect to the collateral attack lodged on an original Trust Territory High Court (TTHC) Judgment, to be insufficient.

	I.  Background

The evolution of the instant appeal can be gleaned from a factual recitation set forth in a prior appeal involving the present parties:  Heirs of Henry and John Sigrah v. Heirs of Elise Akinaga, 19 FSM R. 296 (App. 2014).

Before 1930, Henry Soarku inherited the [subject] land Innem from his adoptive father, King Awane Sru II.  While living on Pohnpei, Soarku ran up debts at the Nambo store and so he transferred Lot 450 to a Japanese national, Mr. Akinaga . . . [who] put the land in his Kosraean wife’s name [Elise Akinaga].  The 1932 Japanese land registration map showed Lot 450 as owned by Elise Akinaga.  In 1960, H. Sewarku was the plaintiff in Trust Territory High Court Civil Action No. 53, which was tried together with Civil Actions No. 50 and 54.  After trial, the Trust Territory High Court, on March 28, 1960, ruled that "[t]he part of the land ’Inem’" designated as Lot No. 450 on the 1932 Japanese land map was owned by Elise [Akinaga].

In 1972, Parcels No. 079-K-01 and 043-K-06 and other parts of Innem were designated a land registration area.  On June 28, 1985, Elise Akinaga received a determination of ownership for Parcel 043-K-06, and on January 22, 1993, she was issued a certificate of title for Parcel 043-K-06.  The Land Court hearing on Parcel 079-K-01 started on May 31, 2007, and ended on November 8, 2007.  On June 19, 2008, the Land Court concluded that ownership of Lot No. 079-K-01 was not determined by the Trust Territory High Court because, that decision, as was the 1985 determination of ownership, was for Parcel No. 043-K-06 and not No. 079-K-01 so therefore res judicata could not apply.  The Land Court dismissed the Heirs of Akinaga, who then appealed to the Kosrae State Court.

On March 30, 2010, the Kosrae State Court vacated the Land Court decision and remanded the case to the Land Court.  The Kosrae State Court ruled that the Heirs of Akinaga had not waived their res judicata defense.  Applying the res judicata doctrine to the case before it, the Kosrae State Court ruled that, since the Trust Territory High Court combined the three civil actions for trial and that since all the parties in those actions were claiming the same land, all the parties were privies to the Trust Territory High Court decision.  The Kosrae State Court concluded that the Trust Territory High Court decision had to be upheld and that Parcel No. 079-K-01 was part of Lot 450 as shown on the map as owned by Elise Akinaga. . . . The Kosrae State Court overturned the Land Court’s dismissal of the Heirs of Akinaga and remanded the matter for the Land Court to

issue written findings and a decision consistent with statutory and procedural requirements.  The Kosrae Land Court shall issue a decision on Parcel 079-K-01, to reflect the ownership and boundaries of the subject parcel consistent with the prior TTHC cases, and on the Japanese survey maps, sketches and boundary descriptions contained therein.

Memo. of Decision at 25 (Mar. 30, 2010).  On August 26, 2010, the Land Court held that the Heirs of Akinaga were the true owners of Parcel No. 079-K-01.

The Heirs of Moses Henry and John Sigrah (collectively "the appellants") appealed that decision to the Kosrae State Court.  On July 7, 2011, the Kosrae State Court ruled that res judicata and the Trust Territory High Court judgment barred the appellants’ claims to Parcel 079-K-01.

On July 19, 2011, the appellants filed a petition for rehearing in the Kosrae State Court.  And on July 26, 2011, they filed a notice of appeal to the FSM Supreme Court appellate division.  That appeal was dismissed without prejudice for lack of jurisdiction because the appeal was premature since the petition for rehearing in the Kosrae State Court remained undecided, but the court noted that once the Kosrae State Court has disposed of the rehearing petition, any party could file a new (and effective) notice of appeal, and the FSM Supreme Court appellate division proceedings would start again.  Heirs of Henry v. Heirs of Akinaga, 18 FSM Intrm. 542, 546 (App. 2013).  That occurred and the appellants timely appealed.

19 FSM R. at 299-300.

In the wake of the Kosrae State Court’s denial of the aforementioned Petition for Rehearing, a Notice of Appeal was filed anew and on March 19, 2014, the FSM Supreme Court vacated the Kosrae State Court’s July 7, 2011 Decision and remanded the case.  In so holding, the FSM Supreme Court found:

Generally, Trust Territory High Court judgments should be afforded res judicata status but, like any judgment, those judgments may be subject to collateral attack on due process grounds.  The appellants should be afforded the opportunity to mount a collateral attack on the Trust Territory High Court judgment that otherwise must be given res judicata effect.  We therefore remand the matter to the Kosrae State Court for it to determine whether the appellants may obtain relief from the Trust Territory judgment.  The July 7, 2011 decision is vacated so that the appellants may present their collateral attack and their grounds for it and so the Kosrae State Court may consider and rule on that attack’s merits before deciding whether to affirm the Land Court.

19 FSM R. at 305.

Following a trial, the Kosrae State Court issued the above-mentioned April 17, 2015 Order of Dismissal of Action, from which the present appeal arose.  The trial Court determined that Appellants had not proffered sufficient evidence to disturb the relevant Trust Territory High Court (TTHC) Judgment (against the backdrop of the elements necessary to set aside a Judgment when launching a collateral attack).  The Kosrae State Court additionally noted, that the Appellants’ challenge regarding the authenticity of the TTHC judgment was similarly deficient.  Finally, the allegations sounding in a deprivation of procedural due process (i.e. that Plaintiff Henry Soarku was never served and thereby, denied adequate notice, along with an opportunity to be heard) was found to be unsupported by the evidence, as he was the named Plaintiff in the TTHC decision.

	II.  Issues on Appeal

1.  Whether the Kosrae State Court’s Order of Dismissal of Action, entered on April 17, 2015, was erroneous and contrary to law?

2.  Whether the Kosrae State Court’s Order of Dismissal of Action, entered on April 17, 2015, was based on substantial evidence?

3.  Whether the Trust Territory High Court Judgment, entered on March 28, 1960, violated the Due Process Rights of Appellant Henry Soarku?

	III.  Standard of Review

"A trial court’s findings are presumptively correct."  George v. Albert, 17 FSM R. 25, 30 (App. 2010).  When the trial court findings are alleged to be clearly erroneous, an appellate court can find reversible error only:  1) if the trial court findings were not supported by substantial evidence in the record or 2) the trial court’s factual finding was the result of an erroneous conception of the applicable law or 3) after reviewing the entire body of evidence and construing it in a light most favorable to the appellee, the appellate court is left with a definite and firm conviction that a mistake has been made.  Id. at 30.  In order "[t]o be clearly erroneous, a decision must strike [the Appellate Court] as more than maybe or probably wrong; it must strike us as wrong with the force of a five-week-old unrefrigerated dead fish."  Smith v. Nimea, 19 FSM R. 163, 173 (App. 2013) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec. Inc., 866 F.2d 228, 233 (7th Cir. 1988).

The standard of review to be utilized by a reviewing Court, with respect to a claim that substantial evidence is lacking, was crystallized in Heirs of Benjamin v. Heirs of Benjamin, 17 FSM R. 650 (App. 2011).  "Substantial evidence is evidence which a reasonable mind would accept as sufficient to support a conclusion and it consists of more than a scintilla of evidence[,] but less than a preponderance."  Id. at 655.  An Appellate Court cannot substitute its judgment for that of the trial Court.  Simina v. Kimeuo, 16 FSM R. 616, 620 (App. 2009).

Furthermore, when an Appellate Court finds nothing that contradicts a Trust Territory High Court Judgment previously rendered on the issue of ownership of the land in question and the State Court decision is based solely on the prior TTHC Decision, the trial Court will be affirmed.  Bualuay v. Rano, 9 FSM R. 39, 40 (Chk. S. Ct. App. 1999).  Finally, issues of law are reviewed de novo on appeal.  Iriarte v. Individual Assurance Co., 18 FSM R. 340, 351 (App. 2012).

	IV.  Analysis

1.  Dismissal Order

Appellants’ initial assignment of error takes issue with the Kosrae State Court’s Order of Dismissal, since it neglected to "include any Findings of Fact and Conclusion of Law," as prescribed by Rule 52 of the Kosrae Rules of Civil Procedure.1  Appellants’ reliance on Rule 52, for the proposition, that separate sections specifically entitled "Findings of Fact" and "Conclusions of Law" within the subject Order are mandatory, is misguided.  The penultimate sentence of Rule 52 plainly states: "If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusion of law appear therein."

The Kosrae State Court’s Order of Dismissal of Action, appropriately encapsulates the sum and substance of these requirements, as the findings were set forth, along with the legal analysis employed in reaching its determination.  Although the Record before us is cold, in terms of whether the trial Judge articulated this same deductive thought process in open Court following the trial’s conclusion, Salik v. U Corp., 15 FSM R. 534 (Pon. 2008) found that a presiding Judge "was under no obligation to reduce his findings and conclusions to writing[,] so long as he stated the findings and conclusions orally in open court."  Id. at 538.

The next procedural defect on the part of the trial Court alleged by Appellants, is as follows:

Rule 41 of the Kosrae Rules of Procedure provides for dismissal of civil complaints . . . The state [C]ourt Order of Dismissal does not qualify as [an] involuntary dismissal under R. 41(a) and (b).  Therefore[,] the dismissal of HO Soarku’s Complaint in State Court is not proper under Rule 41[;] such dismissal is contrary to law."2

Such an argument loses sight of the fact that the underlying matter went to trial and the Kosrae State Court’s responsibility was to rule on the merits.  "Once the parties have finished presenting all their evidence, the trial court’s duty is to weigh the evidence and make its findings of fact and conclusions of law and to render judgment on whether the plaintiff has shown a right to relief."  Chuuk v. Actouka Executive Ins. Underwriters, 18 FSM R. 111, 117 (App. 2011).  Accordingly, the suggestion of Appellants that a dismissal can only be entered, pursuant to a Rule 41 motion, is similarly devoid of merit.

2.  Substantial Evidence

Appellants claim that "testimonial evidence from the Land Court Registrar was not considered in the Order of Dismissal."3  During the underlying trial, the Registrar of the Kosrae Land Court (i.e. Custodian of Records) was called as a witness and asked about the 1960 TTHC Judgment.  When shown a copy of that Decision, the witness replied: "This is my first time to see this thing here."4  The same witness was then asked whether the Trust Territory High Court Judgment was transferred to the Land Court and made part of its files.  The response to this query was: "As I stated, I do not have any knowledge of it, so I cannot comment on it."5

Notwithstanding this testimony from the witness, Appellants submit: "The testimonial given by the Land Court Custodian of Record show that the alleged TT Judgment was never made a part of the Land Commission or Land Court files.  The Registrar’s testimony shows evidentiary proof that the alleged TT Judgment is nonexistent in both the Land Commission or Land Court files."6  The aforementioned response by the Land Court Registrar/Custodian of Records is hardly consistent with Appellants’ characterization, as this witness merely expressed an unfamiliarity with the subject document.  Furthermore, this Court notes that the TTHC Judgment was fifty-six years old and therefore, it would be virtually impossible to locate a percipient witness who was capable of confirming whether it was eventually tendered to the Land Commission or Land Court.  Finally, "The trial court need not say why it did not consider an issue or fact; it need only make a finding of such essential facts as provide a basis for its decision."  Simina, 16 FSM R. at 622.

An additional assignment of error by Appellants focused on an affidavit from the Clerk of the Pohnpei Supreme Court.  Although Appellants’ Counsel attempted to introduce this particular affidavit into evidence, an objection was proffered by opposing Counsel (based on hearsay) and sustained by the trial Court.  Nevertheless, Appellants submit:  "The Order of Dismissal of Action did not consider the Affidavit showing further proof of the nonexisten[ce] of the claimed TT Judgment, along with TT files 50, 53 and 54."7  Although repeated reference to the disallowed affidavit appears throughout Appellants’ Brief, because the subject affidavit was not allowed into evidence, it was stricken from the Record.  Ponape Constr. Co. v. Pohnpei, 6 FSM R. 114, 122 (Pon. 1993).  As such, it was properly not considered by the Kosrae State Court.

Another averment by Appellants, challenging the propriety of the Kosrae State Court’s Decision, states:  "Appellees through their Counsel, failed to establish the authenticity of the alleged TT Judgment . . . "8  In contradistinction, it is the party challenging the authenticity/validity of a Certificate of Title who bears the burden of proving it is not authentic or valid.  Carlos Etscheit Soap Co. v. Gilmette, 11 FSM R. 94, 101 (Pon. 2002); Sigrah v. Kosrae State Land Comm’n, 9 FSM R. 89, 93 (Kos. S. Ct. Tr. 1999).  A Certificate of Title is tantamount to prima facie evidence of ownership and Courts must attach a presumption of correctness to it.  Anton v. Shrew, 12 FSM R. 274, 277 (App. 2003).  Furthermore, an ancient document is authenticated if evidence that the document, in any form, is in such condition, as to create no suspicion concerning its authenticity, was in a place where if authentic, would likely be and has been in existence 20 years or more at the time it is offered.  Elaija v. Edmond, 9 FSM R. 175, 182 (Kos. S. Ct. Tr. 1999).

In short, the Kosrae State Court’s Dismissal Order found, inter alia:  "Appellants have not provided sufficient evidence to overturn the Trust Territory Judgment under the five-part test [necessary to establish a collateral attack]."  A determination that substantial evidence supports the finding does not mean the evidence must be uncontroverted or undisputed, but if findings are adequately supported and the evidence reasonably assessed, the findings will not be disturbed on appeal.  Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM R. 368, 374 (Kos. S. Ct. Tr. 2009).

The Kosrae State Court further stated:  "Nothing presented by Appellants allows our Court to reach the conclusion that the [TTHC] Judgment was unenforceable or inequitable.  The questions and challenges presented by Appellants do not rise to the level of suggesting that the Trust Territory Judgment was fraudulent or unenforceable."  The Kosrae State Court has always accepted and enforced TT judgments as valid and binding, consistent with the Kosrae Constitutional provisions on transition of government.  Sigrah v. Kosrae Land Comm’n, 11 FSM R. 169, 173 (Kos. S. Ct. Tr. 2002).

3.  Due Process

It is well established, that "When a judgment has been entered against a party without notice or an opportunity to be heard, it is void and subject to direct or collateral attack at any time."  FSM Dev. Bank v. Arthur, 15 FSM R. 625, 633 (Pon. 2008).  As such, pursuant to a March 19, 2014 decision rendered in the precursor action, Heirs of Henry v. Heirs of Akinaga, 19 FSM R. 296 (App. 2014), Appellants were "afforded the opportunity to mount a collateral attack on the Trust Territory High Court judgment, that otherwise must be given res judicata effect."  Id. at 305.

An independent action in equity to set aside a judgment must satisfy five essential elements: 1) a judgment which ought not, in equity and good conscience, to be enforced; 2) a good defense to the alleged cause of action on which the judgment is founded; 3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; 4) the absence of fault or negligence on the part of the defendant; and 5) the absence of any adequate remedy at law.

Arthur v. FSM Dev. Bank, 16 FSM R. 653, 659 (App. 2009).

An argument made by Appellants was asserted that: "There is nothing in the Land Commission or Land Court records that shows that Henry Soarku knew of the existence of the TT Judgment, receive[d] notice of any hearings regarding the Innem land or participated in any proceedings under the three consolidated TT cases (CA Nos. 50, 53, 54)."9  Appellees response was framed as rhetorical query:  "If he [Henry Soarku] was the Plaintiff in that prior action, how could he not have participated?"10  As previously addressed by this Court in Heirs of Henry v. Heirs of Akinaga, 19 FSM R. 296 (App. 2014):

The appellants question whether all the landowners were present at a full evidentiary hearing in the Trust Territory High Court cases.  The judgment itself states that all three civil cases were "tried together."  That certainly sounds like a judgment on the merits came after an evidentiary proceeding with all parties represented.

Id. at 303.

Appellees maintain: "[t]he Appellants failed to prove at trial, that Henry Soarku’s due process rights were violated."11  The Kosrae State Court accurately concurred with this assessment, since "evidence must be in the nature of facts  not conclusions [or] unsupported allegations of counsel . . . ."  College of Micronesia – FSM v. Rosario, 10 FSM R. 175, 186 (Pon. 2001).

Appellants also submit that the TTHC Judgment "was obtained through fraud or mistake . . . ."12  In support of this contention, Appellants reference two purportedly separate versions of the subject Judgment that reflect divergent formats.  Notwithstanding this disparity between the two produced documents, Appellants failed to prove that this rose to the level of fraud.  In sum, "parties have the responsibility to put forward the evidence to support their client’s case."  George v. George, 15 FSM R. 270, 275 (Kos. S. Ct. Tr. 2007).  In addition, an argument contained within a brief does not constitute evidence.  In re Attorney Disciplinary Proceeding, 9 FSM R. 165, 172 (App. 1999).

The only issue brought to the fore within the underlying collateral attack, which the Kosrae State Court found to be marginally relevant, was Appellants’ claim that Elise Akinaga was not named as a party, with respect to the TT Judgment.  Nevertheless, this averment was discounted by the trial Court in its Dismissal Order:

The most compelling question raised by Appellants is why Elise [Mr. Akinaga’s Kosraen wife], who was not a named party in this matter, was given rights to land.  Appellants therefore argue, that as the Trust Territory Court could not award a Judgment to a non-party, the Judgment is void.  The original Judgment lists the Defendants as Trust Territory of the Pacific Islands and its Alien Property Custodian and Nena Mike.

Nena Mike is referred to as Elise’s "representative," which could be reasonably interpreted as meaning legal agent.  This would make Elise indirectly a party in the action.  In addition, "Alien Property Custodian" presumably referred to Elise Akinaga’s husband, Mr. Akinaga [a Japanese national].  There are difficulties in attempting to analyze definitively the language of a 55 year old Decision and Appellants’ question on this issue is understandable.  Nonetheless, Appellants present no evidence to prove Elise was not intended to be a party in this action and there is no evidence sufficient that this alleged defect makes the Trust Territory Decision inequitable or unenforceable.  As noted by the Kosrae State Court in its Order of Dismissal of Action:  "Appellants continue to raise challenges and questions that have already been dismissed by the FSM Supreme Court decisions.  A collateral attack is not an opportunity to appeal or relitigate the matter."

Appellants have similarly failed to satisfy the five-prong test required to pierce the relevant Judgment, via a collateral attack, as set forth in Arthur v. FSM Development Bank.  Merely leveling a claim of fraud, without connecting up such an allegation, in terms of propounding sufficient evidence, does not satisfy the requisite burden of proof for a collateral attack of the TT Judgment.

	V.  Conclusion

Appellants were afforded the opportunity to mount a collateral attack with regard to the TT Judgment, however their efforts in this regard fell short, as the evidence proffered at trial was not deemed persuasive and sufficient.  The arguments advanced by Appellants, which challenge the propriety of the Kosrae State Court’s Dismissal Order, from both a procedural and substantive perspective, are found to be without merit.  Finally, the claim of Appellants, predicated on having been denied due process, was previously decided in Heirs of Henry v. Heirs of Akinaga, 19 FSM R. 296, 303 (App. 2014) and as such, res judicata attaches.  Consequently, the Kosrae State Court’s Dismissal of the underlying action will not be disturbed.

Accordingly, the Order of Dismissal of Action, entered by the Kosrae State Court on April 17, 2015, is hereby affirmed.

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