FSM SUPREME COURT APPELLATE DIVISION

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

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

	ORDER DENYING PETITION FOR REHEARING

	Decided:  June 29, 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

APPEARANCE:

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

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	HEADNOTES

Appellate Review  Rehearing
A summary denial of a petition for rehearing is proper when the appellate court has carefully considered all of the appellant’s arguments and has neither overlooked nor misapprehended any points of law or fact, but when the court considers that clarification may be helpful, reasons may be given.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 312 (App. 2017).

Judgments  Relief from Judgment  Independent Actions
An independent action in equity to set aside a judgment must satisfy five elements:  1) a judgment which ought not, in equity and good conscience, 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 defendant’s part; and 5) the absence of an adequate remedy at law.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 312-13 (App. 2017).

Appellate Review  Briefs, Record, and Oral Argument
Appellants are responsible for presenting to the court, a record sufficient to permit the court to decide the issues raised on appeal and one which provides it with a fair and accurate account of what transpired in the trial court.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 313 (App. 2017).

Appellate Review  Decisions Reviewable; Appellate Review  Standard  Civil Cases
The law of the case doctrine posits ordinarily an issue of fact or law decided on appeal may not be reexamined either by the trial court on remand or by the appellate court on a subsequent appeal.  The three exceptions are: 1) the evidence at a subsequent trial is substantially different; 2) there has been an intervening change of law by a controlling authority; and 3) the earlier decision is clearly erroneous and would work a manifest injustice, but only in extraordinary circumstances may a court sustain a departure from the law of the case doctrine on the ground that a prior decision was clearly erroneous.  When none of these exceptions apply, the law of the case doctrine requires the later appellate court to rely on the prior appellate decision.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 313 (App. 2017).

Civil Procedure  Res Judicata; Judgments  Relief from Judgment  Independent Actions
When an independent action for relief from judgment fails, then res judicata applies.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 314 (App. 2017).

Appellate Review
Arguments that a later appellate panel must either consist of the exact three justices who sat on the prior appeal or, alternatively, of three justices who were not involved in the previous appeal, are devoid of merit.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 314 (App. 2017).

Courts  Recusal  Bias or Partiality
Merely because a justice presided over a different case, involving the same parties or related issues, does not, ipso facto, reflect an appearance of partiality, which would necessitate recusal.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 314 (App. 2017).

Courts  Recusal  Judge’s Duty
Absent a depiction of partiality or extrajudicial bias, a judge is obligated to hear the cases assigned to him or her.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 314 (App. 2017).

Appellate Review  Rehearing
When nothing new is offered, much less reflective of how the appellate court either overlooked or misunderstood any points of fact or law, and when the appellants simply take issue with the court’s determination to affirm the lower court’s decision, they fail to consider the standard of review to be employed.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 314 (App. 2017).

Evidence  Burden of Proof; Torts  Fraud
Even if substantial evidence were proffered to demonstrate the existence of fraud, that proffer was inadequate.  Ordinarily, a proponent’s burden to establish fraud is clear and convincing evidence, which is the highest burden of proof in civil cases.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 315 (App. 2017).

Evidence  Burden of Proof; Torts  Fraud
Since "substantial evidence" is "more than a scintilla, but less than a preponderance, substantial evidence would be insufficient to prove fraud, even if the usual, lower burden of proof  preponderance of the evidence  was applied.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 315 (App. 2017).

Appellate Review  Standard  Civil Cases
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 Trust Territory judgment, the trial court will be affirmed.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 315 (App. 2017).

Appellate Review  Rehearing
Merely rephrasing arguments that were previously addressed and found to be deficient, in support of the proposition that a rehearing is warranted, cannot prevail and will not convince the court that a rehearing is warranted.  Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 315 (App. 2017).

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	COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

Oral Argument was heard in this matter on July 14, 2016 and an Opinion issued January 6, 2017, which affirmed the lower Court’s decision. [Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 113 (App. 2017).]  On January 30, 2017, Appellants filed a Petition for Rehearing.  The underlying appeal stemmed from an Order of Dismissal of Action issued by the Kosrae State Court on April 17, 2015, which found the evidence adduced, with respect to the collateral attack lodged on an original Trust Territory High Court judgment, to be insufficient.

Appellants’ Petition for Rehearing takes issue with:  (1) this Court’s utilization of a prior FSM Supreme Court decision: Heirs of Henry v. Heirs of Akinaga, 19 FSM R. 296 (App. 2014) (which involved the same parties’ dispute over the identical property at issue here) to depict the procedural background and claim such use was improper; arguing the context of this previous Opinion was never made part of the Record; (2) submit the doctrine of res judicata has no application in this appeal; (3) question the composition of this Panel (claiming that all three jurists must have either sat on the previous panel which oversaw the aforementioned appeal involving these parties or this panel must be comprised of three entirely different Justices (i.e. not privy to the prior appeal); (4) argue that all the substantial evidence (which was available to this petitioner) was proffered to us, with regard to its allegations sounding in fraud (essentially a sufficiency of evidence argument); and (5) claim, once again, that the original Plaintiff (Henry Soarku) was never served with the underlying Trust Territory judgment (approximately fifty-six years ago), constituting a denial of procedural due process.

A summary denial of a petition for rehearing is proper when the appellate court has carefully considered all of the appellant’s arguments and has neither overlooked, nor misapprehended any points of law or fact.  Damarlane v. Pohnpei Legislature, 15 FSM R. 529, 529 (App. 2008).  Nevertheless, "when the court considers that clarification may be helpful, reasons may be given."  Jano v. FSM, 12 FSM R. 633, 634 (App. 2004).

	1.  Reference to a Prior FSM Court Decision to Denote the Procedural Context

At issue before the Kosrae State Court, was whether a collateral attack launched by Appellants successfully met the five-part test to overturn the Trust Territory Judgment.  As set forth in Arthur v. FSM Development Bank, 16 FSM R. 653, 659 (App. 2009):

An independent action in equity to set aside a judgment must satisfy five elements:  1) a judgment which ought not, in equity and good conscience, 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 an adequate remedy at law.

Appellants contend that reference by this Court to the precursor action:  Heirs of Henry v. Heirs of Akinaga, was improper, since it was never made part of the Record.  By virtue of this 2014 appellate decision, 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."  19 FSM R. at 305.  Implicit within such a directive, is that this Court would invariably need to examine the factual underpinning of this Trust Territory judgment in relation to the doctrine of res judicata.  In other words, analyze that judgment (and concomitant reasoning used in making such determination) against the backdrop of res judicata.  Accordingly, the use by this Court, of the factual/procedural synopsis set forth in the prior appeal, was not only acceptable, but the prudent course of action.

Petitioner neglected to reference the adverse decision set forth in the previous appeal and submits: "[t]he Court did not use the Background provided by Appellants.  The Court’s use of the Background in a separate appeal case, not within the confines of Appeal Cases K1-2015 and K4-2015, impairs the rights of Appellants to a fair review process."  Appellants’ Pet. for Reh’g, at 2. In lieu thereof, Appellants would have this Court operate in a vacuum and rely solely on its depiction of the "Background."  It is well established, that Appellants are responsible for presenting to the Court, a Record sufficient to permit it to decide the issues raised on appeal and one which provides the Court with a fair and accurate account of what transpired in the trial court proceedings.  Damarlane v. United States, 7 FSM R. 510, 513 (App. 1996).

The Kosrae State Court made reference to the 2014 Appellate Decision at issue on more than one occasion, finding the challenged Trust Territory judgment to be both valid and binding and in so doing, an inference was made to the underlying process undertaken in issuing same (acknowledging its value as precedent in this matter).  To suggest, that this Court refrain from referencing the prior Appellate authority, in terms of the procedure of the underlying matter (keeping in mind, Appellants were only "afforded the opportunity to mount a collateral attack on the Trust Territory High Court judgment, that otherwise must be given res judicata effect" 19 FSM R. at 305), is incorrect.  This is because "[t]he law of the case doctrine posits ordinarily ‘an issue of fact or law decided on appeal may not be reexamined either by the [trial] court on remand or by the appellate court on subsequent appeal.’"  United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)).  "The three exceptions are: ‘(1) [t]he evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice.’"  United States v. Hollis, 506 F.3d 415, 421 (5th Cir. 2007) (quoting Lee, 358 F.3d at 320 n.3).  And "[o]nly in extraordinary circumstances may [a] court sustain a departure from the ’law of the case’ doctrine on the ground that a prior decision was clearly erroneous."  City Public Serv. Bd. v. General Elec. Co., 935 F.2d 78, 82 (5th Cir. 1991).  Since none of these exceptions apply, the law of the case doctrine requires us to rely on the prior appellate decision in this case.

	2.  The Applicability of Res Judicata

Appellants maintain, that this Court’s reference to the factual and procedural background provided within the previous 2014 appeal was also inappropriate, in that res judicata, was not at issue in the present appellate matter.  In support of this argument, Petitioner cites only a fraction of the pertinent language from the Kosrae State Court’s Order of Dismissal of Action, to wit: "On page 2 of the Kosrae State Court [Dismissal Order], the Court recognizes Appellants’ assertion that "Res Judicata defense[,] in and of itself does[,] not apply here."  Appellants’ Pet. for Reh’g at 5. The complete language of the trial Court however, conveys a remarkably different perspective:

Appellants are only partially correct in their assertion that a Res Judicata defense[,] in and of itself[,] does not apply here.  The FSM Supreme Court specifically provided Appellants the opportunity to mount a Collateral Attack on the Trust Territory judgment, which if successful[,] would invalidate the previous ruling.  However, the FSM Supreme Court specifically noted that the prior judgment should be given res judicata effect under the grounds and rules of a Collateral Attack.

Accordingly, Appellants’ claim, that res judicata had no application to the instant matter and as such, utilization of the prior appellate decision for background purposes, is misguided.  In sum, Appellants’ attempt to parse only a portion of the Kosrae State Court’s underlying reasoning to buttress its argument, constitutes a disingenuous averment which is rejected.

	3.  Improperly Constituted Appellate Panel

Appellants additionally claim, that the panel overseeing this appeal should have been comprised of the exact three Justices who sat on the previous appeal involving these parties. In the alternative, Appellants submit this panel should have consisted of three Justices who were not involved in the prior appeal.  In short, this argument is also devoid of merit for the following reasons.

Such a contention on the appellants’ part, without any legal support, runs counter to both the statutory precepts and legal precedent governing recusal.  Merely because a justice presided over a different case, involving the same parties and/or related issues, does not ipso facto, reflect an appearance of partiality, which would necessitate recusal, under 4 F.S.M.C. 124(1).  Hartman v. Bank of Guam, 10 FSM R. 89, 97 & n.5 (App. 2001).  Thus, absent a depiction of partiality or extrajudicial bias (under F.S.M.C. 124(1)), a judge is obligated to hear the cases assigned to him or her.  Halbert v. Manmaw, 20 FSM R. 245, 250 (App. 2015).

	4.  Sufficiency of the Evidence and Purported Lack of Service

Appellants’ next contention is predicated upon its representation, that substantial evidence was proffered to demonstrate the existence of fraud involving the Trust Territory judgment at issue and that the original Plaintiff (Henry Soarku) was never served with this document.  At the expense of repetition, Appellants were only "afforded the opportunity to mount a collateral attack on the Trust Territory High Court judgment, that otherwise must be given res judicata effect." 19 FSM R. at 305.  Notwithstanding, Appellants’ "independent action" in the underlying matter, the same arguments, which were previously addressed and found to be wanting in Heirs of Henry v. Heirs of Akinaga, are simply repeated.  As aptly noted by the Kosrae State Court in the penultimate paragraph of its Dismissal Order: "Appellants continue to raise challenges and questions that have already been dismissed by the FSM Supreme Court decisions."

In an effort to garner yet another bite of the proverbial apple, Appellants’ self-serving affirmations, along the lines of this Court having overlooked or misapprehended a point of law or fact, are similarly repeated.  Appellants merely rehash prior arguments, with regard to the authenticity of the Trust Territory judgment, as well as questioning whether service of this document was effectuated on the Henry Soarku fifty-six years ago.  In other words, nothing new is offered, much less reflective of how this Court either overlooked or misunderstood any points of fact or law.  In sum, Appellants’ averments simply take issue with this Court’s determination to affirm the lower court’s decision and fail to take into consideration the standard of review to be employed.

Even if substantial evidence were proffered to demonstrate the existence of fraud, that proffer was inadequate.  Ordinarily, a proponent’s burden to establish fraud is clear and convincing evidence, e.g., McDonnell v. American Leduc Petroleum, Ltd., 456 F.2d 1170, 1176 (2d Cir. 1972); Excel Constr., Inc. v. HKM Eng’g, Inc., 228 P.3d 40, 49 (Wyo. 2010), which is the highest burden of proof in civil cases, In re Attorney Disciplinary Proceeding, 9 FSM R. 165, 173 (App. 1999).  Since "substantial evidence" is "more than a scintilla, but less than a preponderance," Heirs of Benjamin v. Heirs of Benjamin, 17 FSM R. 650, 655 (App. 2011), substantial evidence would be insufficient to prove fraud, even if the usual, lower burden of proof  preponderance of the evidence  was applied.

Furthermore, an appellate court cannot substitute its judgment of that of the trial court.  Simina v. Kimeuo, 16 FSM R 616, 620 (App. 2009).  Finally, 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 Trust Territory judgment, the trial court will be affirmed.  Bualuay v. Rano, 9 FSM R. 39, 40 (Chk. S. Ct. App. 1999).

In conclusion, Appellants have failed to demonstrate that we either overlooked or misapprehended the facts cited (and given the absence of legal support by the Petitioner, the same goes for any points of law).  Merely rephrasing arguments that were previously addressed (and found to be deficient), in support of the proposition that a rehearing is warranted, cannot prevail and does not convince us that a rehearing is warranted.

Accordingly, we hereby deny Appellants’ Petition for Rehearing.

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