Heirs of Tulekun v Heirs of Seymour [2007] FMKSC 20; 15 FSM Intrm. 342 (Kos. S. Ct. Tr. 2007) (4 October 2007)

KOSRAE STATE COURT TRIAL DIVISION
CIVIL ACTION NO. 88-06

HEIRS OF EDMOND TULENKUN,
Appellants,

vs.

HEIRS OF TULENSRU SEYMOUR and
HEIRS OF EDMOND NED,
Appellees.
__________________________________________

MEMORANDUM OF DECISION; JUDGMENT

Aliksa B. Aliksa
Chief Justice

Argued: July 19, 2007
Decided: October 4, 2007

APPEARANCES:

For the Appellants: Chang B. William
Kosrae State Legislature
P.O. Box 187
Tofol, Kosrae FM 96944

For the Appellees: Harry Seymour, Esq. (Heirs of Seymour)
P.O. Box 389
Tofol, Kosrae FM 96944

For the Appellees: Gerson Jackson (Heirs of Ned)
P.O. Box 174
Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review  Standard of Review  Civil Cases

In determining whether a trial court's findings are clearly erroneous, an appellate court must construe the evidence in the light most favorable to an appellee. A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Civil Procedure  Res Judicata and Collateral Estoppel

Although Trust Territory court decisions routinely relied on hand drawn maps since there was limited access to precisely drawn maps and accurate surveys, this does not mean that these earlier decisions are to be disregarded. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Appellate Review  Standard of Review  Civil Cases

An issue raised for the first time on appeal is waived. The reason for this rule is that the lower court was not given an opportunity to consider the issue. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).

Appellate Review  Standard of Review  Civil Cases

When the evidence cited by the appellants to support their new argument is that the hand drawn map from the earlier case does not look enough like the maps in the current case, their conjecture that they may not be the same does not leave the court with a definite and firm conviction that a mistake has been made. When construing the evidence in a light favorable to the appellees; this conjecture is not enough to demonstrate a clear error. Heirs of Tulenkun v. Heirs of Seymour, 15 FSM Intrm. 342, 346 (Kos. S. Ct. Tr. 2007).