Tilfas v Heirs of Lonno [2017] FMSC 25; 21 FSM R. 281 (App. 2017) (8 June 2017)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K3-2014
(Kosrae Civil Action No. 84-11)

KERSIN TILFAS, )
)
Appellant, )
)
vs. )
)
HEIRS OF KILAFWAKUN LONNO, )
)
Appellees. )
___________________________________ )

ORDER DENYING PETITION FOR REHEARING

Decided: June 8, 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 Appellant: Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

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HEADNOTE

Appellate Review Rehearing
A petition for rehearing will be denied when the court has neither overlooked, nor misapprehended any points of law or fact because its opinion, which affirmed the Kosrae State Court’s decision, was consistent in rejecting a claim to a parcel’s uppermost portion that protruded onto the property owned by others and because implicit therein was a recognition that the claimant was entitled to the remainder of the parcel and thus, in accordance with the reconfigured boundaries, the respective landowners were, as the Land Court decided, to be issued certificates of title. Tilfas v. Heirs of Lonno, 21 FSM R. 281, 282-83 (App. 2017).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

Oral argument was heard in this matter on July 15, 2016 and an Opinion issued December 29, 2016. [Tilfas v. Kosrae, 21 FSM R. 81 (App. 2016).] The Appellant filed a Petition for Rehearing, pursuant to Rule 40(a) of the FSM Appellate Rules of Procedure, filed by Appellant on January 20, 2017, and refiled on February 14, 2017. At our request, Appellees filed a Response thereto on May 12, 2017.

The impetus for bringing the instant appeal was to address misgivings harbored by Appellant (Tilfas) with respect to "some of the language" contained within the January 30, 2014 Decision rendered by the Kosrae State Court which "poses dual or more meaning, contrary to the [December 7, 2011] Land Court’s Memorandum of Decision (MOD) . . . ." Appe’s Opening Brng Br. at 5. Tilfas’s overarching concern is predicated on a perception that Parcel No. 079T26 was awain pellees (Heirs of Lonno), despite the underlying matter only involving ving a boua boundaryndary dispute with ownership per se not at issue. Accordingly, the petition for rehearing claims our December 28th Opinion, which affirmed the Kosrae State Court’s Decision, similarly overlooked and/or misconstrued this crucial distinction.

The Land Court held that "[p]arties to the case do not have any issues regarding their ownership rights to Wiya . . .s thet of Kers Kersin Tilf Tilfas to claim Wiya land, although his claim [079T26] should be on land within the claim of [the Grantor] Esther Iuver, which is lanow thim of the Heirs of Kilafwakun Lonno [079T28]." L." Land Cand Court Mem. of Decision at 2-3 (Dec. 7, 2011). In concluding its analysis, the Land Court reiterated: "[t]here should be a claim Of Kersin Tilfas on the Wiya land, although his claim should be within Esther Iuver’s land." In so holding, the Land Registrar was ordered to issue certificates of title for these land claims after a final mapping was certified to reflect the aforementioned. Id. at 5.

In affirming the Land Court’s Decision, the Kosrae State Court, similarly determined that: "[t]his Court failed to find any evidence that Esther Iuver had legal authority to give Kersin Tilfas a portion beyond her boundary . . . ."rae SCate Mert Mem. of D of Decision at 2-3 (Jan. 30, 2014). Utilization of the word "portion"implies the remainder of Parcel No. 079T26, which had been conveo Tilto bed. In other words, with the exception tion of thof the rece reconfigured boundary, which excluded the uppermost "portion" of Parcel No. 079T26 that encroached upon the lower section of Parcel No. 079T28 (owned by Heirs of Lonno), Tilfas was entitled to Parcel No. 079T26.

Our Opinion, which affirmed the Kosrae State Court’s Decision, was consistent, in terms of rejecting Tilfas’s claim to the uppermost "portion" of Parcel No. 079T26, since it protruded onto the property owned by Heirs of Lonno (Parcel No. 079T28). Implicit therein, was a recognition that Tilfas was entitled to the remaining portion of Parcel No. 079T26. As such, we affirmed the Kosrae State Court judgment, which had, in turn, affirmed the Land Court, to wit: that in accordance with the reconfigured boundaries, the respective landowners were to be issued certificates of title.

Accordingly, since we neither overlooked, nor misapprehended any points of law or fact, we hereby DENY Appellant’s Petition for Rehearing. FSM App. R. 40(a).

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