2 MILR 6

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. Ct. CIVIL NO. 93-01
(High Ct. Civil No. 1989-022)

MERIA ABIJA,
Plaintiff-Appellee,

-v-

EMLE BWIJMARON,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

AUGUST 11, 1994

ASHFORD, C.J.
KING, A.J. pro tem,1 and WALSH, A.J. pro tem2

SUMMARY:

This was a dispute over the alap and senior dri jerbal rights in Elelwe weto. Appellant claimed she had such rights because of an alleged division of lands during Japanese times. Appellee denied that there was any such division. Following a joint trial with the High Court and Traditional Rights Court during which the Traditional Rights Court determined that there was no division of lands, Appellant asked the High Court to rule that the division issue had already been decided in a Trust Territory Case, and therefore the doctrines of res judicata and collateral estoppel precluded relitigation of that issue in the present case. The High Court held that res judicata and collateral estoppel did not apply and entered judgment in favor of Appellee. The Supreme Court affirmed the High Court's judgment on the grounds that Appellant had waived the right to assert the defenses of res judicata and collateral estoppel.

DIGEST:

1. APPEAL AND ERROR - Questions Reviewable - Cross Appeal: An appellee need not cross-appeal from a judgment in order to assert an argument which supports the judgment as entered, even where the argument being raised has been explicitly rejected by the lower court.

2. APPEAL AND ERROR - Review - Questions of Law: A question concerning waiver of affirmative defenses, and specifically res judicata and collateral estoppel, involves the interpretation of Rule 8(c) of the Marshall Islands Rules of Civil Procedure and thus it is a question of law reviewed de novo.

3. CIVIL PROCEDURE - Pleadings - Affirmative Defense or Avoidance: The general rule regarding res judicata and collateral estoppel is that they must be pleaded in the answer or other responsive pleading or they are waived. Marshall Islands Rules of Civil Procedure, Rules 8(c), 12(b).

4. APPEAL AND ERROR - Review - Questions of Law: The High Court's interpretation of the Marshall Islands Constitution is a question of law which is reviewed de novo.

5. CONSTITUTIONAL LAW - Construction - Article VI: Article VI, section 4(5) mandates that when a question has been certified to the Traditional Rights Court for its determination, its resolution of the question shall be given substantial weight in the certifying court's disposition of the legal controversy before it, which means that the certifying court is to review and adopt the decision of the Traditional Rights Court unless that decision is clearly erroneous or contrary to law.

6. COURTS - High Court: A High Court judge who was not present at a hearing before the Traditional Rights Court may nevertheless render a final judgment based on the findings of the Traditional Rights Court.

OPINION OF THE COURT BY KING, A.J.

This action was instituted by Plaintiff-Appellee Meria Abija3 ("Appellee") against Defendant-Appellant Emle Bwijmaron ("Appellant") following a dispute between the parties over the alap and senior dri jerbal rights to Elelwe weto. The High Court entered judgment in favor of Appellee following a joint trial with the Traditional Rights Court. Appellant argues on appeal that the High Court erred when it rejected Appellant's res judicata and collateral estoppel defenses. In addition, Appellant claims that Justice Fields, who took over the case after Chief Justice Bird resigned with the joint trial already completed, should not have rendered a decision in this case. We affirm the Judgment, but on different grounds.

I.

Both Appellee and Appellant are descendants of a woman named Lanwor ("first Lanwor") who was the founder of a bwij. The parties agree that at one point the first Lanwor bwij held the alap and dri jerbal rights to four wetos, Drennar and Lokonmok wetos on Rita, and Elelwe and Okok wetos on Laura. First Lanwor had two daughters, one of which was also named Lanwor ("second Lanwor") and the other named Melerik. Appellee descends from the second Lanwor side while Appellant descends from the Melerik side.

Appellee claims to hold the alap and senior dri jerbal rights to Elelwe weto through normal devolution of title according to Marshallese custom. Appellant claims to hold the same rights to the exclusion of Appellee because of an alleged division of the bwij lands made during Japanese rule, whereby Elelwe and Okok wetos became the wetos of the Melerik side of the bwij and Drennar and Lokonmok wetos became the wetos of the second Lanwor's side. In effect, the division created two new bwijs, each with two wetos. Appellee disputes that any such division occurred.

The parties agreed to submit the issue of division, as well as other issues, to the Traditional Rights Court ("TRC") following a joint trial with the High Court.4 The parties also agreed to abide by certain statements of Marshallese custom.5 The parties stipulated that if the TRC determined there was no division, it must also find Appellee to be the alap of Elelwe.

The joint trial before the TRC and High Court took place from August 20 to 24, 1990, with Chief Justice Bird presiding and ruling on evidentiary issues. Following the trial, the agreed-upon questions were certified to the TRC for its determination. On September 10, 1990, the TRC rendered its unanimous decision, concluding that no division of the bwij lands had occurred during Japanese times, and that Appellee held both the alap and senior dri jerbal titles on Elelwe weto.

On October 10, 1990, Appellant filed an Opposition to Adoption of Decision from the TRC. In that pleading, Appellant raised for the first time the issues of res judicata and collateral estoppel. Appellant argued that the issue of division, which was submitted to the TRC by stipulation of the parties, was already decided in Case No. 226, Trust Territory High Court, Marshall Islands Division, August 31, 1968. In Case No. 226, apparent predecessors-in-interest to Appellee and Appellant, Liwaika and Terkaki, were both parties-plaintiff. Liwaika and Terkaki sued Bilimon, another relative of Appellant and Appellee, over the senior dri jerbal rights to Drennar weto. The Trust Territory Court found that:

The bwij descended from [second] Lanwor held its alap and dri jerbal rights in lands on Djarrit Island [Rita], including that in question in this action [Drennar], separate from the bwij descended from Melerik, which held such rights in lands on Majuro Island [Laura] separate from [second] Lanwor's bwij, at least from about the middle of Japanese time; this separate ownership was publicly acknowledged and was recognized by all concerned, including the Japanese authorities, during the latter half of the Japanese period of administration.

Appellant urged that because Case No. 226 had supposedly already decided the division issue, Appellant and Appellee should be bound by that decision. Appellee argued that Appellant waived her right to assert res judicata and collateral estoppel because they are affirmative defenses which were not timely pleaded in her answer prior to trial.

The High Court, Justice Fields presiding, ruled on the waiver issue in its Judgment. The court noted first that Appellant did not raise res judicata or collateral estoppel as affirmative defenses in her answer to the amended complaint. Nor did she expressly assert the defenses at any time prior to trial, and in fact acknowledged at a pre-trial conference that the division issue was to be decided at trial.

The court then noted that Appellant apparently was arguing that she had raised the res judicata and collateral estoppel issues by implication when she offered the "Judgment Order" in Case No. 226 into evidence at the commencement of the trial. At that time, Appellant's counsel stated to the court, "given the evidence that will be presented to you in the next couple of days, Ernie Bwijmar-on is confident that you will make the same decision as the court did in 1966 [Case No. 226]."6

On the other hand, Appellee introduced a significant amount of evidence on the issue of division without objection by Appellant as to its relevance. Likewise, Appellee failed to object to the introduction of the "Judgment Order" in Case No. 226.

Based on these facts, and despite the language of Rules 8(c) and 12(b) of the Marshall Islands Rules of Civil Procedure, ("MIRCivP")7 the High Court ruled that the affirmative defenses of res judicata and collateral estoppel were not waived. According to the High Court: [B]ecause the Plaintiff contributed to the confused situation in this matter through the use of transcripts from the case file in Case No. 226, and through the failure to object to the introduction of the "Judgment Order" into evidence, it would not appear to serve the interests of justice to conclude that Defendant waived the defenses.

Nevertheless, the High Court went on to hold that the defenses of res judicata and collateral estoppel were not available to Appellant. First of all, there was no identity of subject matter between Case No. 226 and this case. Case No. 226 dealt specifically with senior dri jerbal rights on Drennar weto while the instant case involves alap and senior dri jerbal rights on Elelwe weto.8 The High Court further concluded that "the better rule" is that a judgment operates as res judicata only with respect to parties (or those in privity with them) that were adversaries in the proceeding in which the prior judgment was entered. The court analyzed the genealogy and determined that the predecessors-in-interest of the parties in the instant matter were co-plaintiffs in Case No. 226, and not adversaries. Thus, res judicata was not available to Appellant. The court held that collateral estoppel was not available to Appellant for similar reasons.

The court then ruled on the merits of the case, holding that there was no division of the wetos as alleged by Appellant, and thus Meria Abija, and now her successor in interest Elizabeth Eliu, is the right and proper alap on Elelwe weto. In arriving at its decision, the court gave substantial weight to the findings of the TRC. However, the court also engaged in its own independent evaluation of the evidence presented at trial.

Appellant timely appealed.

II.

[1] Appellee asks this Court to affirm the High Court's Judgment on grounds rejected by the High Court - waiver of the res judicata and collateral estoppel issues - even though Appellee did not cross-appeal from the High Court's Judgment. Appellant does not challenge Appellee's right to raise this argument, and in fact argues that the High Court correctly decided the waiver issue. We note, nevertheless, that an argument on appeal which supports the judgment as entered can be made without a cross-appeal. Wright, Miller & Cooper, 15A Federal Practice & Procedure: Jurisdiction 2d § 3904, at 195-96 (1992). "A cross-appeal is unnecessary even where the argument being raised has been explicitly rejected by the [lower] court." Engleson v. Burlington Northern Railroad Co., 972 F.2d 1038, 1041 (9th Cir. 1992). We also note that the record before us is sufficient to permit a ruling on the issue of waiver. Thus, we will address that issue first.

[2] A question concerning waiver of affirmative defenses, and specifically res judicata and collateral estoppel, involves the interpretation of Rule 8(c) of the MIRCivP and thus it is a question of law reviewed de novo. Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 735 (9th Cir. 1988); Harbeson v. Parke Davis, Inc., 746 F.2d 517, 520 (9th Cir. 1984).

[3] The general rule regarding res judicata and collateral estoppel is that they must be pleaded in the answer (or other responsive pleading), or they are waived. Kern Oil, 840 F. 2d at 735. Courts have allowed parties to amend pleadings to set forth forgotten affirmative defenses when done before trial. Id. Even after trial an affirmative defense may be asserted by a Rule 15(b) motion to conform to the evidence at trial when the defense was tried with the express or implied consent of the parties. This case presents none of those scenarios.

Appellant failed to plead res judicata and collateral estoppel in her answer. She also failed to amend her answer before trial. This is hardly surprising since the primary issue to be decided by the TRC, as stipulated to by the parties, was the issue of division of the wetos. Appellant gave no indication at trial that she was invoking res judicata and collateral estoppel. In fact, in her opening statement, counsel for Appellant indicated just the opposite. "Ernie Bwijmaron is confident that you will make the same decision as the court did in 1966,"9 is a statement which implies that counsel intended the TRC to engage in an independent evaluation of the evidence presented on the division issue. Thus, Appellee was not given notice, express or implied, that Appellant was relying on those affirmative defenses.

There was no confusion surrounding the introduction of the "Judgment Order" in Case No. 226 into evidence. The Opening Statement of Appellant's counsel indicates it was intended merely to be one piece of evidence of division, not a conclusive piece. If it were to be conclusive, there would be no point in submitting the issue to the TRC along with evidence for and against division. Moreover, use of evidence from Case No. 226 did not cause confusion regarding whether Appellant raised the issue of res judicata and collateral estoppel as defenses. Appellant offers no reason why she failed to raise the defenses before trial. She agreed to submit the division issue to the TRC. Based on the foregoing reasons, we conclude that Appellant waived the affirmative defenses of res judicata and collateral estoppel.10

III.

Appellant next argues that it was error for Justice Fields, as a successor to Chief Justice Bird, to decide this case when he did not preside over the joint trial, and therefore did not witness the presentation of the evidence. Though Appellant admits that a High Court judge need not be present at the trial to give a decision of the TRC binding effect, she contends that when a High Court judge is present, only that judge can decide whether or not to accept the TRC's findings. Otherwise, the parties are deprived of the observing judge's discretion to disregard the TRC's decision. "Judge Bird could have disreguarded [sic] the opinion of the Traditional Rights Court based on some demeanor he observed on the stand." We reject Appellant's contention.

[4] The question presented involves the High Court's interpretation of the Marshall Islands Constitution. This is a question of law which we review de novo.

[5] Under the Constitution of the Republic of the Marshall Islands,

When a question has been certified to the Traditional Rights Court for its determination ... its resolution of the question shall be given substantial weight in the certifying court's disposition of the legal controversy before it; but shall not be deemed binding unless the certifying court concludes that justice so requires.

Article VI, Section 4(5). We interpret this provision to impose limits upon the ability of the certifying court to reject the TRC's disposition. The High Court's duty is to review the decision of the TRC, and to adopt that decision unless it is clearly erroneous or contrary to law. The limited role of the High Court places credibility determinations within the TRC's jurisdiction.11 Thus, we reject Appellant's contention that Chief Justice Bird, had he decided this case, could have rejected the TRC's decision based on some demeanor he observed on the stand. For this reason, it is not critical that the judge who was present at the joint trial actually render the decision. It was sufficient that Justice Fields, who thoroughly reviewed the case file, transcripts of the trial, and tape recordings of the trial proceedings, found no clear error on the part of the TRC, but rather agreed with the TRC's determinations.

Our interpretation of Article VI, Section 4(5) is bolstered by the Rules for Traditional Rights Court ("RTRC"). Those rules specifically provide different procedures for trials before the TRC alone, RTRC Rule 12, and for joint trials before the TRC and the certifying court, RTRC Rule 13. Either way, the TRC renders an independent opinion on matters certified to it. The RTRC, in accordance with the Marshall Islands Constitution, also requires the certifying court to give the opinion of the TRC substantial weight when ultimately disposing of the case. RTRC Rule 14.

[6] Finally, we note that it was the parties themselves who stipulated to the TRC determining the division issue. Though we agree with Appellant that this did not make the TRC's decision binding on the parties, it did put the primary responsibility for determining credibility issues with the TRC, leaving the High Court with a limited role. Thus, we hold that it was not error for a High Court judge who was not present at the TRC hearing to reach a final judgment in this case based on the findings of the TRC.

IV.

Lastly, Appellant argues that she did not receive notice of the assignment of this case to Justice Fields, and that this flaw constitutes reversible error. Appellant cites no authority for the proposition that she was entitled to some type of notice other than becoming aware that Chief Justice Bird had resigned, and that the case was eventually reassigned to Justice Fields.

Appellant had opportunity below to raise this issue but failed to do so. Appellant has also failed to show how she has been prejudiced by this alleged lack of notice. Thus, we reject this argument.

In sum, we affirm the Judgment below on the grounds that Appellant waived her right to assert the defenses of res judicata and collateral estoppel, and there was no error in Justice Fields being assigned to and deciding this case.

AFFIRMED.

_____________

1Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, by appointment of the Cabinet.

2Honorable Allison A. M. Walsh, Deputy Judge of the Federal Court of Canada, by appointment of the Cabinet.

3Meria Abija passed away during the pendency of this suit. Her daughter, Elizabeth Eliu, has been substituted as Plaintiff.

4The agreed-upon instructions given to the Traditional Rights Court included the following:

1. You must decide whether there was a division of the four wetos, Elelwe, Okok, Drennar, and Lokonmok, during Japanese times in which the alap and dri jerbal rights to the two wetos in Rita, Lokonmok and Drennar, were given to the descendants of the second Lanwor to the exclusion of the descendants of Melerik, and in which the alap and dri jerbal rights to the two wetos in Laura, Okok and Elelwe, were given to the descendants of Melerik to the exclusion of the descendants of the second Lanwor. Defendant carries the burden of proof on this issue.

2. You must also decide whether such a division was made with the approval of the Iroijlaplap or Iroij Erik and with the approval of the members of the first Lanwors bwij and that such a division was consistent with custom. Defendant carries the burden of proof on this issue.

3. If you find that there was no division made, in accordance with the stipulation of the parties you must find that Meria Abija is the alap of Elelwe weto.

4. If you find that there was a division, you must first determine if Jorbit is a child of Lowaer. Plaintiff has the burden of proof on this issue.

5. If you find that there was a division and you find that Jorbit is a child of Lowaer, in accordance with the stipulation of the parties you must find that Jorbit is the alap of Elelwe.

6. You must determine if Ernie is the blood child of David. Defendant has the burden of proof on this issue.

7. If you find that there was a division, and you find that Jorbit is not the child of Lowaer, and you find that Emle is the blood child of David, in accordance with the stipulation of the parties you must find that Ernie is the alap of Elelwe weto.

8. You must determine who is the Senior Dri Jerbal of Elelwe weto and why.

5The parties agreed that:

The alap right to land descends matrilineally, from generation to generation. The right descending, in turn, from the eldest to the youngest child of the eldest to youngest female of the preceding generation.

If the female line becomes extinct, that is, if there are no surviving children of a female alap, the eldest surviving child of the eldest male member of the bwij inherits the alap right to land.

An alap may designate a change in succession rights to land, with the concurrence of the iroij and the bwij.

The senior dri jerbal is the eldest surviving child of the eldest male alap.

6Case No. 226 was actually decided in 1968. The transcript of proceedings makes it clear, however, that Appellant's counsel was referring to Case No. 226 in her opening statement, though she apparently inadvertently stated that it was decided in 1966.

This Court also notes that in her opening statement at trial, Appellant's counsel stated that "The major issue this court will have to resolve is simply whether or not there has been a division of land that had originally belonged to the first Lanwor."

7Rule 8(c) provides:

A party shall set forth affirmatively... estoppel, res judicata, ... and any other matter constituting an avoidance or affirmative defense....

Rule 12(b) provides:

Every defense, on law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted on the responsive pleading thereto if one is required....

8According to the High Court, the issue in Case No. 226 was as follows. Plaintiffs Liwaika and Terkaki sought injunctive relief to prevent the Defendant, Bilimon, from interfering with their building of a house on Drennar weto. Bilimon answered by alleging that:

Prior to his death... [Lajitok, son of Limkej,] made an oral will before Liwaika, one of the plaintiffs [sic], the group of 20-20 and myself, the will was that I was to succeed and exercise ... [Lajitok's rights on ... [Drennar] Weto, whereas Liwaika was to do the same on the other weto Lokonmak" (or Lokonmok).

However, when framed by the judge presiding in Case No. 226 and memorialized in his pretrial order of December 6, 1965, the issue was stated as follows:

a. Was there an arrangement in Japanese times between Lajitok and Tarkaki by which Lajitok was put off of or gave up his rights in Okok Weto and Tarkaki became alap of that weto and gave up his rights in Drenar [Drennar] and thereafter failed to bring food to Lajitok?

In his Findings of Fact the judge in that case answered the question as follows:

1. The bwij descended from [the second] Lanwor held its alap and dri jerbal rights in lands on Djarrit Island [Rita], including that in question in this action [Drennar], separate from the bwij descended from Melerik, which held such rights in lands on Majuro Island [Laura] separate from [the second] Lanwor's bwij, at least from about the middle of Japanese time; this separate ownership was publicly acknowledged and was recognized by all concerned, including the Japanese authorities, during the latter half of the Japanese period of administration.

The High Court found that the lands at issue in Case No. 226 were, at best, those in Drennar and Okok. Elelwe was not expressly mentioned. Thus, there was nothing to demonstrate that the traditional land rights in Elelwe weto were ever considered by the Court in Case No. 226 when it decided the issue of division.

9See supra note 4.

10The Court notes that even if Appellant had not waived the defenses, the High Court correctly determined that res judicata and collateral estoppel do not apply in this case because Case No. 226 did not involve a division concerning Elelwe weto. Thus, there is no identity of subject matter and issue in the present case and Case No. 226. Zaion, et al. v. Peter and Nenam, 1 MILR (Rev.) 228, 234-5 (Jan 24, 1991).

11Indeed, the parties themselves agreed upon instructions which directed the TRC to determine credibility issues.