9 FSM Intrm.523-525

KOSRAE STATE COURT

TRIAL DIVISION

Cite as Nena v. Heirs of Melander ,

9 FSM Intrm. 523 (Kosrae S. Ct. Tr. 2000)

[9 FSM Intrm. 523]

HANSON NENA,

Appellant,

vs.

HEIRS OF TEDRICK MELANDER,

Appellees.

CIVIL ACTION NO. 13-97

MEMORANDUM OF DECISION;

ORDER OF REMAND

Aliksa B. Aliksa

Associate Justice

Decided: July 24, 2000

APPEARANCES:

For the Appellant: Sasaki George, Esq.

Micronesian Legal Services Corporation

P.O. Box 38

Lelu, Kosrae FM 96944

For the Appellees: in pro per

* * * *

[9 FSM Intrm. 524]

HEADNOTES

Administrative Law ) Judicial Review; Property ) Land Commission

The court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 524-25 (Kos. S. Ct. Tr. 2000).

Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission

Property ) Land Commission

The registration team is required to serve actual notice of the hearing upon all parties shown by the preliminary inquiry to have an interest in the parcel either by personal service or registered air mail. It is also required to serve actual notice of a determination of ownership upon all persons shown to have an interest in the parcel. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 525 (Kos. S. Ct. Tr. 2000).

Constitutional Law ) Due Process ) Notice and Hearing

When a person, entitled to be served notice of the hearing, was not served notice of the hearing and was also not served a copy of the Determination of Ownership, there was no substantial compliance with the notice requirements specified by law, and the Determination of Ownership will be set aside as void and remanded to the Land Commission to hold formal hearings. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 525 (Kos. S. Ct. Tr. 2000).

* * * *

COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

This matter is an appeal from the Determinations of Ownership issued by the Land Commission for parcel 002-U-05. Appellant's brief was filed on May 1, 2000. Appellee did not file a brief nor request an extension of time to file his brief. The Court decides this appeal without a hearing.

I. Factual Background.

The Court has carefully reviewed the record for parcel 002-U-05. The Determination of Ownership for parcel 002-U-05 was awarded to Appellees' father, Tedrick Melander. The Determination of Ownership for the adjacent parcel 002-U-01, was awarded to Appellant Hanson Nena. There was a boundary dispute between parcels 05 and 01. The land registration team was informed of this boundary dispute at the Preliminary Inquiry for parcel 05 by counsel Morris Waguk for Appellant's father, Ezrah Nena. Even so being informed of the boundary dispute, Ezrah Nena was not informed of the formal hearing for parcel 002-U-05. Ezrah Nena did not appear at the formal hearing and was not served the Determination of Ownership for parcel 05.

II. Legal Analysis.

The Court, in reviewing the Land Commission's procedure and decision, should consider whether

[9 FSM Intrm. 525]

the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988). The Court here finds that Land Commission did not conduct a fair proceeding by issuing a Determination of Ownership without compliance with statutory notice requirements.

The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties. Failure to provide notice to an interested party is violation of due process. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Kosrae State Code, Title 11, Chapter 6, sets forth the procedure for determination and registration and interests in land. Kosrae State Code, Section 11.609 requires the registration team to give notice of a hearing on each parcel. The registration team is required to service actual notice of the hearing upon all parties shown by the preliminary inquiry to have an interest in the parcel either by personal service or registered air mail. The registration team is also required to serve actual notice of a determination of ownership upon all persons shown to have an interest in the parcel. At the preliminary inquiry for parcel 002-U-05, the land registration team was informed that Ezrah Nena was an interested party due to his boundary dispute with parcel 002-U-01. Nonetheless, the land registration team failed to serve Ezrah Nena actual notice of the formal hearing and the determination of ownership issued for parcel 002-U-05.

When a person, entitled to be served notice of the hearing, was not served notice of the hearing and was also not served a copy of the Determination of Ownership, there was no substantial compliance with the notice requirements specified by law. Sigrah, 9 FSM Intrm. at 93. Here, Appellant's father, Ezrah Nena, was not served notice of the hearings and notice of the Determination of Ownership for parcel 002-U-05. There was no substantial compliance with the notice requirements specified by law. Due to the violations of the statutory notice requirement, and in accordance with this Court's decisions in Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996) and Sigrah v. Kosrae State Land Commission, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999), the Determinations of Ownership for both adjoining parcels 002-U-01 and 002-U-05 are now set aside as void.

III. Order of Remand.

This matter is now remanded to the Kosrae State Land Commission to hold formal hearings for both parcels 002-U-01 and 002-U-05 on the boundary issue, and to issue determinations of ownership for both parcels. The Land Commission may refer to and consider all of the testimony and other evidence which was received at the prior inquiries and hearings held with respect to parcels 01 and 05. The Land Commission is ordered to complete its hearings and issue determinations of ownership for parcels 002-U-01 and 002-U-05 by September 30, 2000.


	KOSRAE STATE COURT TRIAL DIVISION Cite as Nena v. Heirs of Melander , 9 FSM Intrm. 523 (Kosrae S. Ct. Tr. 2000) [9 FSM Intrm. 523] HANSON NENA, Appellant, vs. HEIRS OF TEDRICK MELANDER, Appellees. CIVIL ACTION NO. 13-97 MEMORANDUM OF DECISION; ORDER OF REMAND Aliksa B. Aliksa Associate Justice Decided: July 24, 2000 APPEARANCES: For the Appellant: Sasaki George, Esq. Micronesian Legal Services Corporation P.O. Box 38 Lelu, Kosrae FM 96944 For the Appellees: in pro per * * * * [9 FSM Intrm. 524] HEADNOTES Administrative Law ) Judicial Review; Property ) Land Commission The court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 524-25 (Kos. S. Ct. Tr. 2000). Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties. Failure to provide notice to an interested party is violation of due process. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 525 (Kos. S. Ct. Tr. 2000). Property ) Land Commission The registration team is required to serve actual notice of the hearing upon all parties shown by the preliminary inquiry to have an interest in the parcel either by personal service or registered air mail. It is also required to serve actual notice of a determination of ownership upon all persons shown to have an interest in the parcel. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 525 (Kos. S. Ct. Tr. 2000). Constitutional Law ) Due Process ) Notice and Hearing When a person, entitled to be served notice of the hearing, was not served notice of the hearing and was also not served a copy of the Determination of Ownership, there was no substantial compliance with the notice requirements specified by law, and the Determination of Ownership will be set aside as void and remanded to the Land Commission to hold formal hearings. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 525 (Kos. S. Ct. Tr. 2000). * * * * COURT'S OPINION ALIKSA B. ALIKSA, Associate Justice: This matter is an appeal from the Determinations of Ownership issued by the Land Commission for parcel 002-U-05. Appellant's brief was filed on May 1, 2000. Appellee did not file a brief nor request an extension of time to file his brief. The Court decides this appeal without a hearing. I. Factual Background. The Court has carefully reviewed the record for parcel 002-U-05. The Determination of Ownership for parcel 002-U-05 was awarded to Appellees' father, Tedrick Melander. The Determination of Ownership for the adjacent parcel 002-U-01, was awarded to Appellant Hanson Nena. There was a boundary dispute between parcels 05 and 01. The land registration team was informed of this boundary dispute at the Preliminary Inquiry for parcel 05 by counsel Morris Waguk for Appellant's father, Ezrah Nena. Even so being informed of the boundary dispute, Ezrah Nena was not informed of the formal hearing for parcel 002-U-05. Ezrah Nena did not appear at the formal hearing and was not served the Determination of Ownership for parcel 05. II. Legal Analysis. The Court, in reviewing the Land Commission's procedure and decision, should consider whether [9 FSM Intrm. 525] the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988). The Court here finds that Land Commission did not conduct a fair proceeding by issuing a Determination of Ownership without compliance with statutory notice requirements. The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties. Failure to provide notice to an interested party is violation of due process. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Kosrae State Code, Title 11, Chapter 6, sets forth the procedure for determination and registration and interests in land. Kosrae State Code, Section 11.609 requires the registration team to give notice of a hearing on each parcel. The registration team is required to service actual notice of the hearing upon all parties shown by the preliminary inquiry to have an interest in the parcel either by personal service or registered air mail. The registration team is also required to serve actual notice of a determination of ownership upon all persons shown to have an interest in the parcel. At the preliminary inquiry for parcel 002-U-05, the land registration team was informed that Ezrah Nena was an interested party due to his boundary dispute with parcel 002-U-01. Nonetheless, the land registration team failed to serve Ezrah Nena actual notice of the formal hearing and the determination of ownership issued for parcel 002-U-05. When a person, entitled to be served notice of the hearing, was not served notice of the hearing and was also not served a copy of the Determination of Ownership, there was no substantial compliance with the notice requirements specified by law. Sigrah, 9 FSM Intrm. at 93. Here, Appellant's father, Ezrah Nena, was not served notice of the hearings and notice of the Determination of Ownership for parcel 002-U-05. There was no substantial compliance with the notice requirements specified by law. Due to the violations of the statutory notice requirement, and in accordance with this Court's decisions in Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996) and Sigrah v. Kosrae State Land Commission, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999), the Determinations of Ownership for both adjoining parcels 002-U-01 and 002-U-05 are now set aside as void. III. Order of Remand. This matter is now remanded to the Kosrae State Land Commission to hold formal hearings for both parcels 002-U-01 and 002-U-05 on the boundary issue, and to issue determinations of ownership for both parcels. The Land Commission may refer to and consider all of the testimony and other evidence which was received at the prior inquiries and hearings held with respect to parcels 01 and 05. The Land Commission is ordered to complete its hearings and issue determinations of ownership for parcels 002-U-01 and 002-U-05 by September 30, 2000.