AMERICAN SAMOA GOVERNMENT v.NTV ELECTRONICS,PROGRESSIVE INSURANCE COMPANY

 

AMERICAN SAMOA GOVERNMENT and BRENNAN ISAAKO
for AASU AND AOLOAU CATHOLIC CHOIR, Plaintiffs,
v.
NTV ELECTRONICS, MANAGER NING TAN,
KENNY AND HELEN YOUNG, and
PROGRESSIVE INSURANCE COMPANY, Defendants.
______________________________
NTV ELECTRONICS and MANAGER NING TAN,
Cross-Claimants/Cross-Defendants,
v.
OXFORD/PROGRESSIVE GROUP, et al.,
Cross-Defendants/Cross-Claimants.
High Court of American Samoa
Trial Division
CA No. 74-00
June 13, 2002

 

[1] The court has discretion to stay execution or other process to enforce
a judgment pending disposition of a motion for new trial upon
appropriate conditions to secure the interests of the prevailing party at
trial.

[2] The court has discretion to grant a stay pending appeal upon the
filing of a supersedeas bond approved by the court.
[3] Factors to consider in deciding whether a stay should be granted
include: (1) the likelihood of the movant would prevail on the motion or
appeal; (2) irreparable harm to the movant if a stay is not granted; (3)
irreparable harm to the other party if a stay is granted; and (4) a stay’s
effect on the public interest.
[4] Where court is considering a stay of a money judgment, the
judgment-debtor’s ability to pay, the availability of funds to him or her,
and other difficulties in the collection process are relevant to the court’s
deliberations.
[5] Stay of both judgment and order of garnishment was proper where
insurance company judgment-debtor raised serious questions of the
sufficiency of evidence in motion for new trial, where garnishment
would impede insurance company judgment-debtor’s normal business
operations and ability to meet its insurer obligations, and where
insurance company was willing to post bond in the amount of the
judgment.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs, Fiti Sunia, Attorney General, and Tala
Uiagalelei, Assistant Attorney General
For Defendants/Cross-Claimants/Cross-Defendants NTV
Electronics and Manager Ning Tan, and Defendants Kenny
and Helen Young, Paul F. Miller
For Defendant/Cross-Defendant/Cross-Claimant Progressive
Insurance Company (Pago Pago), Ltd., Roy J.D. Hall, Jr.
ORDER GRANTING MOTIONS TO STAY EXECUTION OF
JUDGMENT PENDING DECISION ON MOTION

FOR NEW TRIAL AND APPEAL
The decision of the Court on the cross-claim of cross-claimant NTV
Electronics (“NTV”) and Manager Ning Tan (“Tan”) against crossdefendant
Progressive Insurance Company (Pago Pago), Ltd.
(‘Progressive”) was entered on March 18, 2002. The Court has under
advisement the motion of Progressive for reconsideration or new trial
regarding the Court’s decision.
Meanwhile, NTV and Tan served a writ of garnishment to reach

Progressive’s funds deposited with the Bank of Hawaii and Amerika
Samoa Bank to enforce their judgment against Progressive. In response,
Progressive moved to stay execution of the judgment pending the
Court’s ruling on the reconsideration or new trial motion and, if
necessary, pending appeal. On June 12, 2002, we heard the stay motion
and, having considered counsel’s arguments, will grant the motion.
[1-2] The court has discretion to stay execution or other process to
enforce a judgment pending disposition of a motion for new trial upon
appropriate conditions to secure the interests of the prevailing party at
trial. T.C.R.C.P. 62(b). Similarly, the court has discretion to grant a stay
pending appeal upon the filing of a supersedeas bond approved by the
court. T.C.R.C.P. 62(d); see also A.S.C.A. § 43.0803. Progressive is
prepared to post a bond in the principal amount of the judgment,
$54,506.80.
[3-4] Factors to consider in deciding whether a stay should be granted
include: (1) the likelihood of the movant would prevail on the motion or
appeal; (2) irreparable harm to the movant if a stay is not granted; (3)
irreparable harm to the other party if a stay is granted; and (4) a stay’s
effect on the public interest. See Asifoa v. Lualemana, 17 A.S.R.2d 100,
102 (App. Div. 1990). Ability and availability of funds to pay the
judgment, and other difficulty in the collection process are particularly
relevant to money judgments. See Euta v. Etimani, 25 A.S.R.2d 54, 55
(Trial Div. 1993).
[5] The motion for reconsideration or new trial raises serious questions
concerning the sufficiency of the evidence and other legal matters that
we must resolve in deciding the motion, or that the appellate court must
resolve if we deny the motion and Progressive appeals. The judgment is
for money. If the stay is granted, NTV and Tan will lose the immediate
financial benefit of the judgment, but post-judgment interest will provide
adequate compensation for the delay. The bank garnishments impede
Progressive’s normal business operations. Moreover, should Progressive
ultimately prevail, it may not be readily able to recover funds already
paid on the judgment. On balance, the harm to Progressive outweighs
the harm to NTV and Tan by a significant margin. The public interest in
Progressive’s ability to readily meet its insurer obligations is also
apparent. Related to the public interest, the amount of the proposed
bond adequately protects NTV and Tan should they ultimately prevail.
We will, therefore, grant Progressive’s motion for a stay of execution of
judgment pending decision on the motion for new trial, subject to
Progressive filing a bond in the amount of $54,506.80.
Strictly speaking, Progressive’s motion for a stay of execution of

judgment pending appeal is premature. However, if eventually the
motion for reconsideration or new trial is denied and Progressive
appeals, it would be appropriate in this case to keep the bond
continuously in effect and replace the stay of execution of judgment
pending decision on the motion for new trial with a stay of execution of
judgment pending appeal. See Wolfgang v. Mid-American Motorsports,
Inc., 914 F. Supp. 434, 440-441 (D.C. Kan. 1996).
Order
1. We grant Progressive’s motion for a stay of execution of judgment.
2. Execution of the judgment is stayed pending the court’s decision on
the motion for reconsideration or new trial. The stay shall apply to the
ongoing garnishment proceedings and any future garnishment or other
execution proceedings when the stay becomes effective. The stay shall
become effective upon the court’s approval of a bond in the amount of
$54,506.80 to be filed by Progressive in this action.
3. The foregoing stay applies to the ongoing garnishment proceedings.
When the stay become effective, the writ of garnishment issued on April
26, 2002, is quashed, and Progressive’s funds held by the Bank of
Hawaii and Amerika Samoa Bank are released from garnishment.
4. Should we deny Progressive’s motion for reconsideration or new trial
and Progressive appeals, execution of the judgment is stayed pending
appeal, replacing the execution of the judgment pending decision on the
motion for new trial, and the bond posted in the amount of $54,506.80
shall automatically remain in effect as security for the stay pending
appeal. Any party may, however, then move for termination or
appropriate modification of the stay pending appeal.
It is so ordered.