IN THE SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION

CIVIL APPEAL NO. 10-009
(LC/B No. 08-0077)

TELUNGALEK RA ITABERANG AND ERELLANG,
Appellant,

v.

MARCIANA MIDAR RUBASCH,
Appellee.

Decided: 1 February, 2011

Counsel for Appellant: J. Uduch Sengebau Senior
Counsel for Appellee: Raynold B. Oilouch

BEFORE: ARTHUR NGIRAKLSONG, Chief Justice; LOURDES F. MATERNE, Associate Justice; ALEXANDRA F. FOSTER, Associate Justice

Appeal from the Land Court, the Honorable SALVADOR INGEREKLII, Associate Judge, presiding.

OPINION

PER CURIAM:

1. Telungalek ra Itaberang and Erellang appeals the Land Courts determination of ownership awarding certain lands in Ngerchemai Hamlet, Koror State, to Marciana Midar Rubasch. For the reasons stated below, we AFFIRM. 

BACKGROUND

2. The property at issue is identified as Tochi Daicho Lot No. 370, now shown as Worksheet Lot No. 181-127A on BLS Worksheet No. 2005 B 06, in Ngerchemai Hamlet, Koror State. The Koror Tochi Daicho lists the property as individually owned by Rubasch. Rubasch died intestate in March 1981. Claimants to the property are Telungalek ra Itaberang and Erellang (also referred to as the lineage), represented by Rosita Ngiraului; Marciana Midar Rubasch; and David Sokok Rubasch (for ease of reference, we refer to the claimants by their first names). Telungalek ra Itaberang and Erellang claims ownership of Lot 370 through Okelang Clan. It contends that because Lot 370 is the property of Okelang, it belongs to the lineage of Rubaschs siblings including Itaberang. Rosita claims the land for herself and her birth mother Kerngel Odaol, who is the child of Itaberang. Marciana and David claim ownership of Lot 370 through Rubasch. Rubasch was the grandfather of David and Marciana, though at the Land Court hearing, Marciana repeatedly referred to Rubasch as her father. Marciana is the daughter of Ilong, who is the only adopted child of Rubasch. 

3. David testified that he filed a claim for the property on September 27, 1995, as a representative of Rubasch. At the hearing, he stated that at the time he filed his claim, he did not realize that the land was a taro patch. Because it is a taro patch, David concluded that it should be in the name of his sister, Marciana. Therefore, David did not pursue a separate claim and is not a party to this appeal.

4. Marciana testified that Lot 370 was the personal property of Rubasch, and that it was given to her as payment for a debt. According to Marciana, Rubaschs second wife, Otong, had a customary obligation to contribute to her brothers ocheraol. Rubasch approached his sisters, Itaberang and Erellang, to assist in the obligation based on custom and, at least in part, because of food they had eaten at another event. The sisters, however, had nothing to give. Rubasch then took Marcianas childrens Palauan money, and informed his sisters that they had to replace that money. If they did not replace the money, then the land would go to Marciana. Marciana confirmed that the land Rubasch spoke of was Lot 370, and she asserted that Itaberang and Erellang failed to repay the money before they died. 

5. In contrast, Rosita testified adamantly that Lot 370 was never Rubaschs individual property and that he had no right to give Lot 370 away. She contended that the Tochi Daicho listing is wrong, and that Rubasch was named the administrator of Lot 370 because he held the title Obechad of Okelang Clan. She further testified that Ilong, Marcianas birth mother, was taken care of with land after Rubaschs wife Iterir died, which ended any property issues concerning Ilong and Marciana. According to Rosita, Rubasch had previously attempted to give away land that he did not individually own, which resulted in arguments with his sisters. Further, no one mentioned to Rosita that any land was given out to Marciana as repayment of her childrens money. Rosita stated that her sister has lived on Lot 370 since 1990 and that no one has interfered with her occupation. 

6. After hearing testimony, the Land Court issued its findings of fact and conclusions of law. It found that Rubasch individually owned Lot 370. At the time of his death on March 21, 1981, Rubasch did not have a will, no cheldecheduch was held, and no discussion regarding the disposition of Lot 370 took place. The court rejected Telungalek ra Itaberang and Erellangs claim, finding Rositas testimony conflicting and incredible. It noted that Rosita failed to overcome the presumption that the Tochi Daicho listing was correct, and that she otherwise failed to articulate the lineages ownership interest even assuming Lot 370 was Okelang Clans property. It further discounted her testimony that Rubasch and Itaberang fought over Rubaschs alleged transfers of certain Okelang properties because Lot 370 is not Okelang property and nothing shows that these disputes concerned Lot 370. On the other hand, it found Marcianas testimony credible, and accepted that Rubasch took Marcianas childrens Palauan money to fulfill the customary obligations of his wife, and that he informed his sisters that if the money was not repaid, Lot 370 would be given to Marciana. The court then noted that 25 PNC ' 301 was the law of inheritance at the time of Rubaschs death, and concluded that other than Telungalek ra Itaberang and Erellang, which failed to prove its claim, no paternal or maternal lineage submitted a claim for Lot 370. Because Marciana was the only claimant to substantiate her claim, the Land Court awarded her ownership of Lot 370.

STANDARD OF REVIEW

7. We review the Land Courts findings of fact for clear error. See Ngerungel Clan v. Eriich, 15 ROP 96, 98 (2008). Under this high standard, we will deem the Land Courts findings clearly erroneous only if such findings are so lacking in evidentiary support that no reasonable trier of fact could have reached the same conclusion. See Palau Pub. Lands Auth. v. Tab Lineage, 11 ROP 161, 165 (2004); see also Sungino v. Blaluk, 13 ROP 134, 137 (2006) ([I]t is not the duty of the appellate court to test the credibility of the witnesses, but rather to defer to a lower courts credibility determination. (quoting Tab Lineage, 11 ROP at 165)). The Land Courts determinations of law are reviewed de novo. See Sechedui Lineage v. Estate of Johnny Reklai, 14 ROP 169, 170 (2007).

DISCUSSION

8. On appeal, Telungalek ra Iraberang and Erellang contends that the Land Court committed multiple errors in awarding Lot 370 to Marciana. First, it argues that the Land Court erred in applying 25 PNC ' 301(b) to this case. Second, the lineage argues that the Land Court erred in awarding Lot 370 to Marciana because there was no clear and convincing evidence of Palauan custom showing that Iraberang and Erellang were required to replace Marcianas childrens money. 

9. Unfortunately, in focusing solely on the Land Courts analysis of Marcianas claim, the lineage overlooks a threshold matterit failed to prove its claim of ownership. As noted, the Land Court concluded that Telungalek ra Iraberang and Erellang failed to establish that the Tochi Daicho listing of Lot 370 as Rubaschs individual property is wrong. Upsetting this finding is critical to the lineages ownership claim, which rests entirely on the contention that Rubasch could not assign Lot 370 because it is the property of Okelang and (somehow) belongs to the lineage. Once the Land Court determined Lot 370 to be Rubaschs property (as listed in the Tochi Daicho), the lineages sole theory of ownership was negated. Further, the Land Court found Marcianas testimony regarding the conveyance of Lot 370 credible. With this background, the Land Court was obligated to award Lot 370 to the only party (Marciana) presenting a colorable claim to the property. See Basilius v. Basilius, 12 ROP 106, 111 (2005) (affirming the Land Courts determination of ownership, noting that it is clear that, after finding that Romana had failed to prove her one and only claim by a preponderance of the evidence, . . . the Land Court awarded the property to the only other claimant with a colorable claim); see also Renguul v. Elidechedong, 11 ROP 11, 14-15 (2003) (finding that because appellants sole claim to ownership rested on the inaccuracy of the Tochi Daicho listing, the Land Court was correct to deny her claim once it determined that she had not overcome the Tochi Daicho presumption); Rengiil v. Otong Clan, 9 ROP 61, 62 (2002) (Simply put, once the Land Court concluded that Kuabesngas was not clan land as claimed by Reksid, but rather the individual property of Rengiil, it was bound to award the land to Appellant, as the only party claiming to be the successor of Rengiils property in this proceeding.); see generally Eterochel v. Children of Rdechor, 15 ROP 133, 136 (2008) ([T]he Land Court can, and must, choose among the claimants who appear before it and cannot choose someone who did not, even though his or her claim might be theoretically more sound.) (citing Ngirumerang v. Tmakeung, 8 ROP Intrm. 230, 231 (2000)); Rusiang Lineage v. Techemang, 12 ROP 7, 9 (2004) (same). 

10. Because the Land Courts factual findings that Rubasch individually owned Lot 370 and he gave the property to Marciana are supported by evidence, they will not be disturbed. See Tab Lineage, 11 ROP at 165. To the extent that the lineage now contends that Rubaschs individual ownership of Lot 370 may have somehow passed to Rosita and her mother, that argument is waived because it was never presented to the Land Court. See Rechucher v. Lomisang, 13 ROP 143, 149 (2006) (Having failed to raise[] these issues before the Land Court, however, he is barred from raising them here. This Court has consistently refused to consider issues raised for the first time on appeal. (citing Kotaro v. Ngirchechol, 11 ROP 235, 237 (2004)). With this background, Telungalek ra Iraberang and Erellangs arguments on appeal fall short. 

11. The lineages first argument, that the Land Court erred in relying on 25 PNC ' 301(b), would potentially have merit if the Land Court indeed relied on ' 301(b) in awarding Lot 370 to Marciana. In its decision, the Land Court referred to 25 PNC ' 301(b) as the applicable law for determining the proper heir of a deceased person where the decedent dies without a will, without issue, and was not a bona fide purchaser of the individually-owned land at issue. (Land Ct. Order of Feb. 1, 2010 at 7.) If these criteria are met, the authority to dispose of the land lies with the lineage that actively provided for the decedent prior to death. The court found that Rubasch died without a will and that he was not a bona fide purchaser of the land. It further found that Rubasch died without issue, noting that while Marciana referred to Rubasch as her father, he is actually her grandfather, and that Rubaschs only adopted child was Ilong. The court concluded, however, that ' 301(b) is not controlling because, aside from Telungalek ra Itaberang and Erellang, represented by Rosita, which failed to prove its claim, no paternal or maternal lineage of Rubasch submitted a claim, thereby forfeiting any right to Lot 370 under ' 301(b). 

12. Telungalek ra Iraberang and Erellang contends that the Land Court erroneously applied ' 301(b) because Rubasch died with issue (Ilong), and that the application of ' 301(b) led the court to reject its claim. However, even assuming Rubasch died with issue, the Land Courts reference to ' 301(b) does not constitute reversible error. Importantly, ' 301(b) (and its predecessors) applies only when, among other things, the land at issue was owned in fee simple by the decedent and was not otherwise distributed at the time of death. Telungalek ra Itaberang and Erellangs theory of ownership, as discussed by the Land Court, hinges on a finding that Okelang, not Rubasch, was the owner of Lot 370. The Land Court considered and rejected the lineages argument on this point. Only after this analysis did the Land Court refer to ' 301(b) and conclude that no lineage presented a claim that would make ' 301(b) a deciding factorin essence, the Land Courts reference to ' 301(b) is to acknowledge its inapplicability under the circumstances. The court then awarded the property to the only claimant to have established a claim to the land. See Rusiang Lineage, 12 ROP at 9. To read the Land Courts decision as rejecting Telungalek ra Itaberang and Erellangs claim solely under ' 301(b) ignores the courts analysis of the arguments presented.13. Moving on, we reject the lineages argument that the Land Court erred in awarding the property to Marciana because there was no clear and convincing evidence establishing that under Palauan custom, Marciana would be entitled to Lot 370 if Itaberang and Erellang failed to replace her childrens Palauan money. In presenting this argument, appellant seizes on one sentence in the Land Courts decision describing Marcianas testimony:

When they [Rubaschs sisters] could not provide what Otong needed[,] Rubasch took Marcianas childrens Palauan money to fulfill his wifes customary obligations and told his sisters that they, in accordance with established Palauan customs, should be the ones to replace the money[;] if not this land would be given to Marciana in place of the monetary payment.

(Land Ct. Order of Feb. 1, 2010 at 7.) However, despite the lineages contentions, the Land Court did not follow Palauan custom in rejecting its claim and awarding Lot 370 to Marciana. The award was based on evidence (deemed credible by the Land Court) that Rubasch, as owner of the property, gave Lot 370 to Marciana if Itaberang and Erellang failed to replace Marcianas childrens Palauan money. It is undisputed that Itaberang and Erellang failed to repay Marciana. Further, Marcianas testimony reveals that Rubasch told Itaberang and Erellang to replace the money at least in part because they had eaten food at another event. As noted, the lineage failed to prove its claim, and without more, it cannot show reversible error on this point. 

14. As a final note, Telungalek ra Itaberang and Erellang contends that Marcianas claim is barred by the statute of frauds. This argument was never presented to the Land Court and is thereforewaived. See Estate of Remeskang v. Eberdong, 14 ROP 106, 109 (2007) (finding that appellant failed to raise the statute of frauds argument before the Land Court, thereby waiving the defense. (citing Hanpa Indus. Corp. v. Black Micro Corp., 12 ROP 29, 33 (2004)). Appellate courts generally decline to entertain issues raised for the first time on appeal, and we see no reason to vary from this principle under the circumstances. See id. 

CONCLUSION

15. For the reasons stated, the Land Courts determination of ownership is AFFIRMED.

So ordered, this 1st day of February, 2011. 

ARTHUR NGIRAKLSONG
Chief Justice

LOURDES F. MATERNE
Associate Justice

ALEXANDRA F. FOSTER
Associate Justice