14ASR2d

14ASR2d

Rosendahl Corp.; Patau v.


FUIFATU SEFO PATAU, Plaintiff

v.

ROSENDAHL CORPORATION, a corporation;
PTE CORPORATION, a corporation; UNIVERSITY
INDUSTRIES INC., a corporation; and RALSTON
PURINA COMPANY, a corporation, Defendants

High Court of American Samoa
Trial Division

CA No. 29-89

March 14, 1990

__________

Relief from an order of dismissal may be granted where a prior judgment upon which the order is based has been amended rather than reversed or vacated if the amendment completely removes the premise on which the order was based. T.C.R.C.P. 60(b)(5).

Trial Court Rule providing that a court may relieve a party from an order for any reason justifying relief from the operation of the judgment applies where the prior judgment upon which the order is based is amended to completely remove the premise on which the order was based, when to do so would cause defendant no genuine hardship but to do otherwise would deny plaintiff any access to the courts. T.C.R.C.P.60(b)(6).

Since res judicata requires an existing final judgment rendered upon the merits, the dismissal of a prior action with prejudice for failure to prosecute is not res judicata where the court amended its order to clarify that it was not a judgment on the merits.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, William H. Reardon and Donald F. Hildre
For Defendant Ralston Purina, Robert A. Dennison III and Bruce J. Barron

Factual Background

Plaintiff was injured on March 21, 1987. On March 21, 1988, he filed an action in the San Diego Federal District Court. On March 22, 1989, he filed an identical action in the High Court of American [14ASR2d80] Samoa. In August 1989, the complaint in San Diego against the defendant Ralston Purina was dismissed with prejudice for failure to prosecute. Ralston Purina, then relying on the San Diego dismissal as res judicata to bar the plaintiffs suit in Samoa, successfully moved this Court on October 19, 1989, to dismiss plaintiffs complaint. On January 10, 1990, the Federal District Court amended its order of dismissal, adding the following final sentence: "This Order dismissing this action with prejudice is not meant to be a determination on the substantive merits of this action but, rather, merely an order barring any further amendment of this action in federal court."

Discussion

The Federal District Court relied on F.R.C.P. Rule 60(a), which allows the correction of errors and omissions in court orders. That court apparently modified its order after becoming aware that under F.R.C.P. Rule 41(b) a dismissal with prejudice for failure to prosecute is an adjudication on the merits unless the court "otherwise specifies". Because the court neglected to "otherwise specify," its earlier dismissal appeared facially to be an adjudication on the merits. The court remedied its oversight in its January 10, 1990, amendment. In the order pronouncing the amendment, the District Court Judge noted that when issuing the dismissal with prejudice, he "did not intend the dismissal to be a determination on the merits or to affect in any way a concurrent action that was proceeding in the state court of Samoa." The intent of the dismissal with prejudice was "to simply bar the plaintiff from any further amendment in federal court while not affecting the concurrent action in the Samoan court." The District Court thus made quite clear that the earlier order was not intended to be an adjudication on the merits and in the future could not be so construed.

In light of this amendment, plaintiff moves for relief from the order of dismissal in American Samoa. T.C.R.C.P. Rule 60 governs relief from orders. Subsection (b ) provides a list of circumstances in which a court may relieve a party from an order, including in subparagraph 5 "a prior judgment upon which [the order] is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Although T.C.R.C.P. Rule 60(b)(5) is arguably not applicable to this situation, which involves an amendment and not a reversal or vacation, the effect of the San Diego Court's amended order has been the complete removal of the very premise on which this Court's order was based. In light of the modified [14ASR2d81] order, it hardly seems equitable or rational to give the original San Diego order prospective application; its amendment brings it within the spirit if not the letter of (b)(5). "If the judgment in the first case is reversed and the basis for the judgment in the second case is thus removed, then the appellate court should also reverse the second judgment." 7 Moore's Federal Practice , 60.26[3] (2d ed. 1985). The Supreme Court followed this rule in Butler v. Eaton, 141 U.S. 240 (1891). In that case, the Massachusetts Supreme Court decided in favor of the defendant. The federal court based a subsequent decision on the Massachusetts judgment. The United States Supreme Court overruled the Massachusetts judgment and then overruled the later federal judgment as well since its legs had been cut out from under it. While this case did not address the exact factual situation at bar , the principle is the same.

As additional grounds justifying relief from a judgment, T.C.R.C.P .Rule 60(b)(6) contains the catch-all provision specifying "any other reason justifying relief from the operation of the judgment. " The very unusual circumstances before us seem to meet this test.

The defendant contends that 60(b) is applicable only in exceptional or even extraordinary circumstances. Without addressing the applicability of this standard to T.C.R.C.P. Rule 60(b), we note that the facts of this case rise to this standard. Plaintiff thus qualifies for relief under either T.C.R.C.P. Rules 60(b)(5) or 60(b)(6). Even if relief is not appropriate under (b)(5), it certainly comes within the ambit of (b)(6), the catch-all provision, simply because it would be patently unfair to deny the plaintiff an opportunity to litigate his claim solely because the San Diego Court neglected to include one sentence in its August 1989 order of dismissal, which it then later rectified. To deny plaintiff the relief he seeks here would create extreme hardship, as it would be tantamount to summarily denying him any access at all to the courts. On the other hand, we see no genuine hardship to Ralston Purina by allowing plaintiff to proceed on his claim. This defendant's allusions to being put to defend an unmeritorious law suit begs the very question requiring judicial determination.

Additionally, it is of note that the original San Diego dismissal no longer qualifies as res judicata. Res judicata requires "an existing final judgment rendered upon the merits. 46 Am. Jur. 2d Judgments § 394 at 558 (1969). Since the dismissal in San Diego has now been explained as not being a dismissal going to the merits, there is no basis for our order previously grounded on the doctrine of res judicata. To [14ASR2d82] deny the plaintiff his day in court because the action in American Samoa happened to be dismissed before the District Court Judge noticed and modified his error would not only be unjust but offensive to common sense. Our order of dismissal heretofore entered October 19, 1989, is vacated.

It is so Ordered.

**********

Tifaimoana Partnership, Ltd.; Mataipule v.


LUAFATU MATAIPULE and PATIOLA MATAIPULE, Plaintiffs

v.

TIFAIMOANA PARTNERSHIP, LTD., a partnership;
JOSEPH ROMALHO; MICHAELANGELO FISHING
COMPANY, INC., a corporation; AMERICAN SAMOA
GOVERNMENT; SAMOA PACKING COMPANY, INC., a
corporation; CINDY ANN JOINT VENTURE; PHILIP HALL;
MARIO ZEC; and DOES 1-40, Defendants

High Court of American Samoa
Trial Division

CA No. 34-89

March 21, 1990

_________

For a trial court to have subject matter jurisdiction over actions arising under the Government Tort Liability Act, an administrative claim must first be made and either denied or ignored for three months. A.S.C.A. § 43.1205(a).

Where a statute or rule of common requires an administrative claim to be presented and prohibits suit until the claim has been rejected or a period for official action has expired, the cause of action does not accrue and the limitation period does not begin to run until the claim is rejected or the stated period expires.

Limitations period generally begins to run when the right to file suit accrues.

Doctrine of laches provides that where plaintiff's cause of action can be perfected by an act he must perform and he is not restrained or disabled from performing it, he cannot indefinitely suspend the statute of limitations by delaying such performance.

An action under the Government Tort Liability Act filed within the statutory limitation period but before the court's subject matter jurisdiction is invoked by exhausting administrative remedies may be incapable of tolling the statute of limitations.

Filing of the administrative claim required as a prerequisite to suit under the Government Tort Liability Act may toll the Act's statute of limitations.

Where a suit filed under the Government Tort Liability Act has a jurisdictional defect which is cured while the suit is pending, the court will not dismiss the suit and require plaintiff to refile since to do 80 would be a needless and wasteful exercise.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.[14ASR2d101]

Counsel: For Plaintiffs, John L. Ward II
For Defendant American Samoa Government, Richard D. Lerner, Assistant Attorney General
For Defendant Samoa Packing Company, Lyle Richmond
For Defendant Manufacturer's Hanover Trust, Robert A. Dennison III For Defendant Mario Zec, William H. Reardon

On Motion to Dismiss:

Introduction

Plaintiff Luafatu Mataipule was injured on April 1, 1987. He seeks damages against a number of defendants including the American Samoa Government (hereinafter "A.S.G"). For tort actions against A.S.G., the Government Tort Liability Act provides for a two year statute of limitations. See A.S.C.A. § 43.1204. Almost two years after he was injured, plaintiff filed an administrative claim with the Attorney General on March 14, 1989, and then filed this action on March 31, 1989, obviously with the intention of initiating his claim before the applicable limitations period expired. The Attorney General did not deny the claim until May 2, 1989.

A.S.G. moves to dismiss contending that this Court lacks jurisdiction. As a prerequisite to jurisdiction, the American Samoan statutory scheme requires that a prerequisite administrative claim be made and either denied or ignored for three months, at which time it is deemed denied. A.S.C.A. § 43. 1205(a), Faoato v. American Samoa Government, unreported, CA NO.036-79 (1979); Gobrait v. Americana Hotels, Inc. , unreported, CA No. 012-78 (1978). The federal courts have likewise held under the similar Federal Tort Claims Act. Goulding v. U.S., 488 F. Supp. 755 (D. Ariz. 1980); Industrial Indemnity Go. v. U.S., 504 F. Supp. 394 (E.D. Ca. 1980).

Thus, unless plaintiffs claim has either been denied or three months have elapsed since it was submitted, this Court is without jurisdiction to consider the matter. As this seems to be the case here, it would appear at first blush that the A.S.G.'s motion to dismiss should be granted. [14ASR2d102]

Discussion

However, this poses rather than answers the real question here: whether plaintiff may refile or whether he is barred by the applicable statute of limitations, A.S.C.A. § 43.1204. A.S.G. seeks to force plaintiff onto the horns of an impossible dilemma because of his having waited to file his administrative claim within three months before the statute of limitations lapsed. A.S.G.'s argument is as follows: because plaintiff was required, as a prerequisite to the Court's jurisdiction, to file an administrative claim which must either be denied or not disposed of within three months, therefore subject matter jurisdiction would have been conferred on the Court if and only if A.S.G. chose to deny the claim before the statute of limitations expired. Otherwise, if the plaintiff filed his complaint before the statute of limitations expired (and without having had his claim denied), the Court would be without jurisdiction because the administrative remedies had not been exhausted. On the other hand, if the plaintiff waited until three months had passed since filing his administrative claim, the statute of limitations and his claim would have lapsed. As counsel for plaintiff points out, this effectively reduces the two year statute of limitations by three months. Because of this seemingly odd effect on the statute of limitations, further review is merited.

An analysis of the statute of limitations' role in the current matter entails the examination of two questions. First, when did the statute begin to run? Second, if the statute of limitations began to run at the date of injury , did the plaintiff act in a manner sufficient to toll the statute?

A. Accrual of the Cause of Action

A.S.C.A. § 43.1204 reads "[a] tort action against the government shall be forever barred unless an action on it is begun within two years after the claim accrues." The question, then, is when did the cause of action accrue? The rule has been generally stated:

[w]here a statute or rule of common law requires the
presentation of a claim and prohibits the suit until a
stated time after presentation, or until the claim has
been rejected, it would logically follow that there is no
cause of action and that the limitation period does not
begin to run until the claim has been rejected or the
period allowed for official action has expired. [14ASR2d103]

51 Am. Jur. 2d Limitation of Actions §§115 (1970). See also Annotation, Limitation Period as Affected by Requirement of Notice of Presentation of Claim Against Government Body, 3 A.L.R. 2d 711, 716 (1949). (1)

Courts have applied this rule. For example, in City of Taylor v. Hodges, 186 S. W.2d 61, 63-64 (Tex. 1945), the city sued a county to recover certain fees which were paid over a two year period beginning July 1, 1941. Suit was filed in October 1943, and so at least part of the claim was arguably barred by the two year statute of limitations. The Supreme Court of Texas rejected this view and noted that under a pertinent statute suit could not be brought until the claim made to the county had been rejected. This claim was not rejected until 1943, a short time before the suit was filed. Id. at 63-64. "At that time the right of the City to sue accrued and limitation began to run from that date." Id. at 64. In this case no question of laches in the filing of the claim was presented. Similarly, in Bethke v. Stetson, 521 F. Supp. 488 (N.D. Ga. 1979), a former Air Force man who was discharged in 1964 brought five successive and unsuccessful actions seeking reinstatement and back pay. Each was denied, and this suit finally resulted. The second application was made and denied in 1967. (2) The third application, which sought reconsideration of the second, was made and denied in 1969. The statute of limitations for this suit against the United States was six years. Id. at 489. Suit was filed in 1978. The defendant argued that the statute of limitation ran from the date of discharge. The plaintiff contended, and the Court agreed, that the statute of limitations began to run only after the plaintiff had exhausted his administrative remedies, as required. Id. at 490. The Court then found that the administrative remedies had been exhausted, and so the cause of action had accrued in either December [14ASR2d104] 1967 or February 1968. Because this was over six years prior to the filing of the suit, the action was barred. The Court's selection of the date of accrual was influenced by when the plaintiff could have brought his action in court. The Court did not address and did not seem troubled by the fact that at least three years passed after the discharge before the statute of limitations even began to run.

In Crown Coat Front v. United States, 386 U.S. 503 (1967), a dispute arose out of a government contract which contained a disputes clause requiring certain procedures in this event. The government tested and rejected certain materials that the contractor was using, and the contract price was subsequently re-negotiated. Some three years later , the contractor was informed of the nature of the government's tests, which effectively changed the contract specifications, and began pursuing the available administrative remedies. The first claim was filed within the six year statute of limitations provided by 28 U.S.C. § 2401(a). (3) After denial of the claim, and more than six years after the contract performance, the contractor brought suit. At issue was when the right of action accrued. The Court held that the" right of action" of which §§ 2401(a) speaks is not the right to administrative action, but the right to file a civil action in court. Id. at 511. The Court noted that no recourse to the courts was available until the administrative procedures had been exhausted. Id. at 511-12. The Court held that the cause of action accrued when the administrative claim was denied and that the suit had been timely filed, although it had been filed more than six years after the performance of the contract.

The court in Wade v. Jackson County, 547 S. W .2d 371 (Tex. Civ. App. 1977), also followed this rule, noting that "under the general rule, limitations begins to run when the cause of action accrues, and by "cause of action" is meant the right to institute suit. The right to institute suit. ..does not accrue until the claim has been rejected " Id. at 373-74 (citations omitted).

Two Supreme Court decisions reaching contrary results are distinguishable. McMahon v. United States, 342 U.S. 25 (1951), involved an action by an injured seaman against the United States for negligence and unseaworthiness. It was brought under the Suits In Admiralty Act, which required the action to be brought within two years [14ASR2d105] after "the cause of action arises. " In deciding whether this meant the date of injury or the date of the disallowance of the claim, the Court held that it here meant the date of injury .The Court reli--.,d on the language of the Suits In Admiralty Act, which was enacted before suits on disallowed claims such as the one in issue were authorized, and on the fact that when the right to sue was broadened to include this type of claim, there was no indication of any change in the older Act's limitation period. The Court also noted that statutes waiving immunity of the sovereign are strictly construed. The Court here~ retained its earlier interpretation of this language and did not freshly construe it in light of the new type of suits which could now be brought before it. There is no such previous interpretation here in American Samoa. In Soriano v. United States, 352 U.S. 270 (1957), the plaintiff was seeking just compensation for the requisitioning of certain material by Philippine guerilla forces during World War II. Plaintiff's claim would have been barred by the six year statute of limitations unless it began to run after the exhaustion of administrative remedies. The Court held the claim to be barred. The Court also held that the exhaustion of administrative remedies was not a prerequisite to jurisdiction and noted that at the time of this decision the Court of Claims had abandoned the rule that this type of claim should first be asserted against the appropriate administrative agency. Id. at 310 n.6. This case is thus very different from the one at bar , in which the exhaustion of administrative remedies is a jurisdictional prerequisite.

An obvious concern with the general rule above is that it may sidestep the purpose of the statute of limitations and allow the prospective plaintiff to wait as long as he wishes before beginning to pursue his administrative claims. This concern must be answered by the doctrine of laches. As a general proposition, "[i]f the only act necessary to perfect the plaintiffs cause of action is one to be performed by the plaintiff, and he is under no restraint or disability in the performance of such act, he cannot indefinitely suspend the statute of limitations by delaying performance of that act." 51 Am. Jur. 2d Limitation of Actions § 111 (1970). The court in Wade v. Jackson County, 547 S.W.2d 371 (Tex. Civ. App. 1977), noted that in applying the doctrine of laches the limitation period is often applied by analogy. Id. at 375. In this case, because the claim was made within the two year limitation period, laches would not seem to bar the plaintiffs action. [14ASR2d106]

B. Tolling of the Statute

This portion of the discussion assumes that the limitations period began running on the date of injury .The statute of limitations requires that a "tort action against the A.S.G. shall be forever barred unless an action on it is begun within two years after the claim accrues." A.S.C.A. § 43.1204 (emphasis added). Either of two events might have "begun" the action.. and so tolled the statute. While the filing of the complaint within the two year period would ordinarily be enough to commence the action and toll the statute of limitations under T.C.R.C.P. Rule 3, in this case that filing did not invoke the Court's jurisdiction and thus may have been incapable of tolling the statute. Alternatively, the claim to the Attorney General may have done this, as in Walley v. United States, 366 F. Supp. 268 (E.D. Pa. 1973), where the plaintiff was involved in a collision with a post office vehicle. The court noted that under the Federal Tort Claims Act, the plaintiff could not sue in court until a claim had been presented to the appropriate federal agency and either denied or not disposed of within six months. The accident in this case occurred on June 30, 1971. Plaintiff filed a claim on February 6, 1973. Although no response from the post office had been obtained and the six months had not yet elapsed, the suit was filed on June 21, 1973, in order to prevent the claim from being barred by the statute of limitations. The two year statute of limitation specified in 28 U.S.C. §§ 2401(b) (4) was applicable in this case. The court dismissed this case for lack of subject matter jurisdiction, noting that without a specific rejection of his claim, the plaintiff could not properly bring suit until August 6, 1973. The court avoided a potentially harsh result by holding that plaintiff's claim to the post office on February 6, 1973, was a claim sufficient to toll the statute of limitations, and so the plaintiff was free to refile his action. The court noted that the Tort Claims Act provided that a claim against the United States would be barred unless a claim was filed with the appropriate federal agency within two years of the tort. Thus the wording of the statute allowed the court to reach this result, since it specifically provided that filing with the appropriate agency would toll the statute. [14ASR2d107]

Conclusion

Granting A.S.G.'s motion to dismiss would place form above function. If the dismissal were granted, the plaintiff would be free to refile as soon as he could get the necessary papers to the clerk's counter, because the court's jurisdiction was perfected with the May 2, 1989, denial of the claim. While requiring a dismissal and refiling might be the technically correct response, it would be a needless and wasteful exercise. In McConnick v. Cooley, 458 F. Supp. 776 (1978), the United States made the same motion the A.S.G. makes here, because the requisite time period had not elapsed at the time the complaint was filed. However, at the time the court was considering this motion, the six months required by the statute had elapsed, and no final disposition of the claim had been made. The court ruled that although a jurisdictional defect had been present, that defect had been cured and there was no need for the plaintiffs to refile. See also Campbell v. United States, 534 F. Supp. 762 (D. Haw. 1982).

While a jurisdictional defect was present when this suit was originally filed, that defect was cured by the denial of the claim. As noted above, the limitations period did not begin to run until the date of this denial. Therefore the defendant A.S.G.'s motion to dismiss will be denied.

It is so Ordered.

*********

1. As a general role the statute of limitations does not begin to run until the
claimant has a cause of action, and a claimant has no cause of action until
he is free to bring suit on his claim. If, therefore, the law prevents one from
bringing suit, the general role is that his cause of action has not accrued,
and that it will not accrue, and that the statute of limitations will not begin
to run, until he can bring suit.
3 A.L.R.2d at 716.

2. The first is referred to as having been made on "January 22, 1975"; this is apparently a typographical error. The correct date must of course be pre-1967, and is probably 1965. This error is irrelevant to the court's holding, which was based on the dates of the subsequent applications.

3. 28 U.S.C. § 2401(a) reads "every civil action...shall be barred unless the complaint is filed within six years after the right of action first accrues."

4. 28 U.S.C. §§ 2401(b) reads "a tort claim...shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing...of notice of final denial of the claim."

Lutali; Hardco, Inc. v.


HARDCO Inc. dba HARDY CONSTRUCTION, Plaintiff

v.

A.P. LUTALl and SUSANA LUTALl, Defendants

CA No. 111-88

High Court of American Samoa 
Trial Division

January 16, 1990

__________

Contractor who agreed to use materials "of the highest quality," and who subsequently allowed buyers to choose from a variety of materials without any suggestion that the materials they chose would result in an increase in the contract price, either knew or should have known that the buyers would understand "highest quality" materials to include the particular materials they were being shown; the contract was therefore enforceable in accordance with the buyers' understanding that the contract price included the materials they selected. Restatement of Contracts (Second) § 20(2).

Where contractor agreed to make improvements on a house for "approximately" $75,000, and the amount actually billed and paid was slightly I~ss than ten per cent over this amount, this amount was in accordance with the contract price and buyers were not entitled to a refund of the amount paid in excess of $75,000.

Where invoices received and paid by buyers suggested that the contractor's actual bill would be well over the original contract price, but buyers already had a massive investment in the project and were in no position to call it off, neither their payment of invoices which did not bring their total payment above the contract price nor their silence in the face of subsequent invoices which did far exceed the contract price could fairly be regarded as consent to a dramatic and one-sided modification of the contract.

In the absence of changed circumstances or other special equitable considerations, there was no consideration for a modification in the contract price where contractor proposed to do nothing for the higher price that he was not already obliged to do for the original contract price. Restatement of Contracts (Second) §§ 73.

Where parties agreed that contractor would undertake work not included in the original contract, but did not discuss any modification in the contract price, it was unreasonable for the buyer to assume that there would be no extra charge, and just as unreasonable for the contractor to assume that the buyers would pay whatever he asked.

Where parties did not even attempt to reach an agreement on the price of modifications to a building under construction, but instead each party chose to proceed in deliberate disregard of the materially different interpretation which he surely knew the other party would eventually place on the arrangement, there was no contract and no contractual basis for resolving a subsequent dispute over the price to be paid for the modifications; rather; the court must apply the doctrine of quantum meruit to award the contractor the value of the benefit conferred on the buyer. Restatement of Contracts (Second) §§ 20(1).

Where it was not clear that extra expense to a contractor had increased the value of the benefit conferred upon the buyer, and the contractor's equitable claim to compensation was substantially weakened by his failure to apprise the buyers of the extent of such extra expense, contractor's recovery under the doctrine of quantum meruit would be limited to the value of the benefit conferred. [14ASR2d2]

Measure of damages for defective performance, where cost of repairing the defect is so high that a reasonable person would prefer to make cosmetic changes and live with the result, is not the cost of repairing the defect but the difference in value between the benefit conferred by the defective performance and the benefit that would have been conferred by the promised performance.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima 
For Defendants, Togiola T .A. Tulafono

Plaintiff (hereinafter sometimes referred to as "Hardy") built an extension or addition to a home belonging to defendants A.P. and Susana Lutali. The Lutalis made payments in a total amount of $82,458 but declined to pay several subsequent invoices sent by plaintiff in a total amount of $47,986. Hardy brought this action to recover the unpaid balance.

The Lutalis contend that Hardy agreed to do the entire job for $65,000; that the work was substandard in various ways; and that Hardy fraudulently billed them for labor and materials not actually employed in the building of the addition. By way of counterclaim they demand $97 ,000 in compensation for the damage they claim to have suffered on account of these alleged breaches of the contract, as well as for punitive damages and attorney fees.

I. Facts

We find the facts to be as follows:

1) In late 1985 or early 1986, Mr. and Mrs. Lutali met with Don Hardy, the managing officer and co-owner of the plaintiff corporation, to discuss the possibility of his building an extension to their home in Ili'ili. A.P. Lutali and Don Hardy had been friends for several years.

2) The Lutalis initially wished only to extend by a few feet the length of the existing bedrooms on their one-story house, At the meeting with Mr. Hardy, however, the discussion eventually focussed on the possibility of a discrete two-story addition containing several new rooms. [14ASR2d3]

3) At this meeting or shortly thereafter, Mr. Hardy may have given a verbal estimate of $65,000 for the two-story addition.

4) On May 27, 1986, Mr. Hardy delivered to Lutali's office a letter estimating that the addition would "take three months to complete and would cost approximately $75,000. " The letter also stated that the addition "would be constructed on the same design as the present house" and that "[a]s all materials would be ordered from the U.S.A., the quality would be of the highest."

5) In June or July of 1986, Mr. Hardy arranged for plans to be drawn up depicting the proposed addition. Although it is not clear whether the Lutalis actually reviewed these plans, the preponderance of the evidence is to the effect that they at least had the opportunity to do so.

6) Don Hardy testified that the initial plan for the addition (on which he says his $75,000 estimate was based) called for a structure 48 feet long, and that at some point the Lutalis ordered the length extended to 53 feet so that it would be the same as the length of their existing house. While a 48 foot extension may have been discussed at some early stage of the negotiations, the evidence does not support a fmding that a change in the size of the proposed structure was made between May V when Mr. Hardy gave the $75,000 estimate and July when the plans were drawn up. The voluminous documentary evidence with which we have been presented includes no plans for a 48-foot structure and no other documentary evidence reflecting a change in the parties , understanding. Neither defendant A.P. Lutali nor witness Epenefa Te'o, the person retained by Hardy to draw the plans, recalls a revision during this period. We therefore find that the structure for which Mr. Hardy ordered plans to be drawn in June or July of 1986 was the same structure he had offered on May 27 to build for approximately $75,000.

7) In July or early August Mr. and Mrs. Lutali met with Don Hardy and his wife, the other co-owner of the plaintiff corporation, to discuss flooring materials, bathroom fixtures, and so forth. The Lutalis selected materials of relatively high quality, such as parquet hardwood floors and ceramic tiles. Neither A.P. Lutali nor Don Hardy recalls any discussion of the price of these materials. Hardy testified that he assumed the Lutalis understood that their selection of such materials would increase the price of the structure; Lutali testified that he believed he was entitled to high quality materials for the price that had already been agreed upon. [14ASR2d4]

8) During this period the parties discussed having Hardy renovate the existing portion of the Lutali home. The proposed renovations included a master bathroom, a "ladies' lounge," and improvements to the kitchen.

9) On August 7, 1986, Don Hardy wrote a letter to Susana Lutali enclosing a list of the materials he had ordered for the addition. The total cost to the Lutalis was to be $50,905.17. Hardy noted that it was "very possible" that some material might be "leftover" and therefore available for use on the renovations to the existing structure, and also that he "might have missed something which we can get on the next shipment when we order for your master bath, Ladies lounge, and the kitchen. "

10) At some time between August 7 and October 7, the Lutalis paid the $50,905 invoice for materials and an additional $9,000 for freight.

11) Construction on the addition began in late August or early September.

12) On September 15 Hardy sent the Lutalis an additional invoice in the amount of $13,276 ($6,516 for additional materials and $6, 760 for labor).

13) On October 4 Hardy sent yet another invoice for $9,277 ($677 for materials and $8,600 for labor).

14) On October 7 Hardy furnished the Lutalis with a written estimate of the entire amount that would be necessary to finish both the two-story addition and the renovations to the existing structure. This estimate was for $148,825, not including the $59,905 the Lutalis had already paid. It breaks down as follows:

Material, Labor, and Freight already billed for the addition (including the $59,905 already paid): $ 82,458
Material and freight for remodeling the existing structure (apparently for materials already ordered or about to be ordered by Hardy from his supplier in the United States): 81,272
"Estimated Material & Labor to complete job": 45,000
Total: $208,730
Minus amount already paid: -59.905
Total cost to complete both projects: $148,825

[14ASR2d5]

15) It was not made clear on this invoice how much of the $45,000 "to complete job" was for completing the two-story addition and how much was for the proposed renovations to the older part of the house. Taking account of the evidence that some progress had been made on the addition whereas the renovations were barely begun, we estimate that no less than $10,000 and no more than $20,000 of the remaining $45,000 was to complete the addition. Thus Hardy's revised estimate of the total cost of the addition, as of October 7, was between $92,458 and $102,458.

16) Shortly after receipt of the October 7 estimate, the Lutalis told Hardy they could not afford the proposed renovations to the pre- existing structure. They directed him to proceed with the addition but not with the renovations. (We have insufficient evidence to determine whether the parties ever had a contract with regard to the proposed renovations to the pre-existing structure. It appears that Hardy had begun work on them prior to October 7, yet it also appears that the Lutalis made it clear they did not want the renovations as soon as they were given a firm estimate of the cost. Since neither party seeks relief for the breach of any agreement involving renovations to the pre-existing structure, we need not conclude whether there was such an agreement.)

17) During October the Hardys paid the September 15 and October 4 invoices described in paragraphs 12 and 13 above. This brought the total amount they had paid to $82,458.

18) Also in or around October , the Lutalis inspected the addition and decided that the bedrooms in it were too small. They therefore ordered Hardy to extend the width of the addition by four feet. (The new dimensions were to be 30' x 53' rather than 26' x 53'.) Hardy testified that this change increased the total cost of the project by a large (although unspecified) amount, since the structure was already substantially built; it was necessary not only to knock out walls and build new ones, but also to move the pillars that supported the second floor . Hardy also testified, however, that he did not discuss the additional cost with the Lutalis but simply assumed they would pay whatever the cost turned out to be. Lutali, on the other hand, testified that he assumed the [14ASR2d6] changes would be included in the original price since they were necessary to make the addition conform to its original purpose, which was to have larger bedrooms.

19) Hardy continued working on the addition until February of 1987.

20) Hardy submitted additional invoices on October 31, 1986; December 2, 1986; January 6, 1987; January 19, 1987; February 1, 1987; and February 28, 1987. The total amount of these invoices was $47,986. Of this amount $14,266 was for material (including freight) and $33,720 was for labor. None of these additional invoices were paid by the Lutalis.

21) Further communication between the parties consisted of several inquiries by Don Hardy about the unpaid invoices and at least three letters from Lutali (May 11, June 18, and August 10, 1987) about defects in the construction. On one occasion, according to Hardy, he attempted to visit Lutali at his office and was shown the door. This lawsuit followed.

22) The Lutalis contend that Hardy billed them for materials which he used on other projects. Aside from one instance in which Hardy concedes having billed the Lutalis for $200 to $300 in freight charges that should have been billed to another customer, the evidence does not support this contention. The charge appears to have been inspired by this Court's opinion in Hardy v. Anderson, 9 A.S.R.2d 79 (1988), in which we found that Mr. or Mrs. Hardy had altered an invoice in order to make it appear that certain lumber had been used on one project rather than another. As it happens, the evidence in the present case reveals that the phantom lumber in Hardy v. Anderson was the very lumber that had already been billed to the Lutalis. While it is always gratifying to be treated to a surprise visit to old stomping grounds ---and doubly gratifying to be presented with new evidence to support old conclusions ---the Court is unable to find this evidence particularly helpful to the present defendants. Rather, it supports Hardy's present position that the lumber billed to the Lutalis, or at least the great majority of it, was the same lumber actually used on the addition to their house.

23) Specifically, Hardy submitted invoices to the Lutalis for materials and freight in the total amount of $81,364. Hardy testified that he charges his customers a "retail" figure equal to about 133% of the cost of materials to him. The invoices to and from Hardy reveal that he [14ASR2d7] charged the Lutalis amounts varying from 116% to 192% of the cost of particular items to him. Assuming that all the items billed to the Lutalis were actually used on the project, it would appear that the materials for the addition cost Hardy between $50,000 and $60,000 including freight charges. With regard to fixtures and other items that are particular and identifiable, our examination of the invoices reveals that these items do correspond to the number apparently used in the addition.

24) The evidence does, however, support the Lutalis' contention that at various times during the course of the project Mr. Hardy and his employees carried off quantities of lumber and other building materials from the job site. Mr. Hardy himself testified that he took only about one truckload of lumber and that this was old lumber tom from the Lutalis' house in order to make doorways to the extension. The testimony of witness Mausa, the Lutalis' housekeeper who appeared to be an honest and relatively disinterested witness, was that the quantity was greater and included other materials. The preponderance of the evidence is to the effect that there were, as Mr. Hardy had originally estimated there might be, some lumber and other materials left over from the original shipment.

25) The evidence also supports the Lutalis' contention that Hardy billed substantially more for labor costs than the amount actually incurred. Company records show that the total amount paid to construction workers on the project was $11,194.05. The addition of a 12% surcharge (the figure Hardy used to estimate employer Social Security payments and other costs associated with the employment of these workers) brings the total labor cost to $12,537.34. In contrast, the amount billed to the Lutalis was $49,080. The $37,000 difference appears to have been allocated to payment of Mr. and Mrs. Hardy and members of their immediate family for supervisory and administrative services. (Mr. Hardy did supervise the project, although the best evidence is that he visited the site for only an hour or two each working day; the evidence of services performed by Mrs. Hardy in connection with the project are that she participated in one meeting with the Lutalis and performed general bookkeeping services for the company.)

26) The Lutalis' contention that the work was defective is supported by the evidence to the following extent: 
a) Electrical problems that cost about $200 to repair. 
b) Plumbing problems that cost $262 to repair. 
c) A leaking septic tank. The repair bills for this item were commingled with bills for other projects, including the renovations to the [14ASR2d8] pre-existing portion of the house and the construction of a master bathroom adjacent to the addition, which the Lutalis apparently decided to have done by contractors other than Hardy. From the evidence be~ore us we can conclude only that the septic tank probably cost between $300 and $1,000 to repair. 
d) Persistent leakage through the first-floor ceiling, caused by settlement of water on a deck adjacent to the second floor. The evidence is that this problem was caused by Hardy's failure to build the roof so as to overhang the deck, as provided by the plans for the project; by Hardy's failure to build the deck so as to slope slightly away from the adjoining wall; by Hardy's failure to provide protective "flashing" at the intersection of the deck and the exterior wall; and perhaps also by the addition of an extra layer of boards under the deck. (This last feature was requested by the Lutalis for cosmetic reasons; Hardy incorporated it without warning the Lutalis of any problems that might result.) This problem has resulted in water damage, principally to the acoustical tiles on the first-floor ceiling. Replacing the damaged tiles has cost the Lutalis about $196 for materials and several hundred dollars for labor . From the evidence of other construction costs submitted by both parties, we estimate that building a four-foot overhang along the 53-foot length of the roof and installing the flashing will almost certainly cost over two thousand dollars and almost as certainly less than five thousand; this range of figures is unfortunately the most precise estimate we can make on the present record. 
e) A large crevice in the floor caused by the uneven laying of the foundation. Again, the evidence does not support a precise estimate of the cost to repair this problem. The lowest possible estimate ---based on what appeared to be the wildly optimistic testimony of an expert witness for Hardy to the effect that a plastic solution could be poured over the foundation so as to level it ---would probably run into thousands of dollars, taking into account not only the acquisition and pouring of such material but also the removal and replacement of 1,000 square feet of parquet tiles. This technique was unknown, however, to the Lutalis' expert witness; if it should prove impossible to repair the foundation without tearing it up and starting over, the cost could amount to many thousands of dollars.

27) Another problem, having to do with water welling up from under the foundation, has not been shown to have been caused by any defect in Hardy's design or workmanship. The problem did not appear until about two years after construction was completed, and the Lutalis, own expert witness conceded that it might be the result of causes unrelated to Hardy's work. [14ASR2d9]

From this evidence we conclude that Hardy originally contracted to build the Lutalis a 53' x 26' structure composed of the "highest quality materials" for "approximately $75,000," and should be held to this contract; that Hardy is nevertheless entitled to some compensation in addition to the contract price for the extra four feet of width added to the structure at the insistence of the Lutalis; and that the Lutalis are entitled to a reduction corresponding to the diminution in the value of the structure attributable to its several defects.

II. The Contract

The contract between the parties came into being when the Lutalis, having received Hardy's $75,000 written estimate, told Hardy to begin construction. This event occurred at the very latest in July or early August when the Lutalis and the Hardys met for the purpose of choosing the specific materials that would be used in the house.

Contrary to Hardy's contention that the Lutalis' choice of materials amounted to an implicit agreement to pay more than the contract price, it was perfectly consistent with the term of Hardy's offer providing that all materials would be "of the highest quality." Hardy testified that his $75,000 estimate was based on far less expensive materials, such as vinyl tile rather than wooden floors in the living areas. A reasonable consumer, however, can hardly be assumed to understand the term "highest quality materials" as including vinyl tile but not wood. In the Court's experience Mr. Hardy is the very first person who has ever suggested that a "highest quality" bedroom or living room floor might be made of vinyl; indeed, although there may be some flooring material that is generally regarded as of lower quality than vinyl tile, the Court is unable to name such a substance.

Mr. Hardy points out, however, that the phrase "the quality would be of the highest" must be construed in light of the modifying language, " As all material would be ordered from the U. S .A. " On balance, however, this does more harm than good to Hardy's case. While it is not syntactically impossible to read the language in question as making a distinction between high-quality "Made in the U .S.A. " vinyl living room floors and inferior Oriental ones, to a prospective buyer in American Samoa the invocation of the United States in connection with "highest quality" materials is far more likely to reinforce the impression that everything will be first-rate, not third-or-fourth-rate. [14ASR2d10]

In the present case, moreover, the Hardys showed the Lutalis catalogues containing materials that were of genuinely high quality. Having assured their customers that $75,000 would pay for a strucl:ure in which all materials would be of the highest quality, the Hardys knew or should have known that the customers might understand this assurance to include the particular materials they were being shown. Yet the Hardys made no suggestion to the contrary .The contract was therefore enforceable in accordance with the Lutalis' understanding that the $75,000 price included the materials they selected. See Restatement (Second) of Contracts §§ 20(2) (1981).

The Lutalis argue that they are accordingly entitled to a refund of the amount they paid Hardy in excess of the contract price. It is important to notice, however, that the estimate was for "approximately" $75,000. The Lutalis paid Hardy $82,458, slightly less than 10% over the estimate. If both parties had otherwise performed in accordance with the original contract ---if there had been no changes and no defects --- we would hold the $82,458 that was billed and paid to be in accordance with the contract price of "approximately" $75,000.

Hardy contends, on the other hand, that by receiving and paying invoices suggesting that the actual cost of completing construction would be well over the $75,000 estimate, the Lutalis implicitly agreed to pay whatever the cost might eventually turn out to be. This contention is at odds with the facts and also with the law. The initial invoice received by the Lutalis on August 7 was for $50,905 plus an unspecified freight charge. This invoice appeared to be for substantially all the materials that would be necessary. It was not unreasonable to assume that the labor plus freight and any remaining materials would cost no more than $30,000 or so. (Construction was supposed to take only three months; Hardy's actual labor costs over a somewhat longer period amounted to about $12,000.) By late September or early October, when the Lutalis had reason to believe that Hardy's bills might substantially exceed $75,000, they already had a massive investment in the project and were in no position to call it off. Under these circumstances neither their payment of two invoices which did not bring their total payments beyond the original estimate of "approximately $75,000, " nor their silence in the face of invoices which did far exceed the contract price, can fairly be regarded as consent to a dramatic and one-sided modification of the contract.

There was, moreover, no consideration for such a modification in the absence of changed circumstances or other special equitable [14ASR2d11] considerations. By paying $82,458 the Lutalis had already fully performed their side of the bargain whereas Hardy proposed to do nothing for $100,000 that he was not already obliged to do for approximately $75,000. "Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration...." Restatement (Second) of Contracts, supra, at § 73; see Lingenfelder v. Wainwright Brewery Co., 15 S. W. 844 (Mo. 1891).

III. Quantum Meruit

Somewhat later in October, however, the Lutalis ordered Hardy to undertake additional work that was not included in the original agreement. The structure being erected was 53 feet long by 26 feet wide, in accordance with the plans; the Lutalis directed that it be extended so as to be 30 feet wide.

Defendant A.P. Lutali testified that this change was necessary in order to provide large bedrooms as originally contemplated, and that he therefore assumed Hardy would make the change without increasing the price. Asked whether he had seen the plans which had been drawn up in July, and which clearly indicate the room dimensions to which he later objected, the witness said he did not recall but that he does not really understand plans. Lutali, however, is a highly intelligent man and a licensed legal practitioner who conducted for many years an extensive practice in the area of real property law. At the time of the events involved in this lawsuit he was serving as Governor of the Territory. Even if he did have difficulty reading the plans, he knew or should have known that the construction he was about to order would attempt to replicate them and that it was therefore important to take such steps as were necessary to know what was in them. He surely understood that the two-story addition was different in many important ways from the extension he had initially discussed with Hardy, and it was unreasonable simply to assume that any particular feature of the original concept was incorporated into the final plans.

It was perhaps even more unreasonable for the Lutalis to assume in October ---after the October 7 invoice had given them reason to know of Hardy's desire to do business on a "cost-plus" basis rather than in accordance with the original estimate ---that Hardy would tear out the exterior walls he had already built, add 424 square feet of floor space, and rebuild the walls, all at no extra charge. [14ASR2d12]

It was just as unreasonable, however, for Hardy to assume that the Lutalis, who had recently cited financial reasons for cancelling their plans to renovate the older portion of the house, had agreed to a new contract by which he would add four feet to the new addition and i:hey would pay whatever he asked.

With regard to the work involved in this four-foot extension, the parties did not even attempt to reach an agreement on the price; instead each party chose to proceed in deliberate disregard of the materially different interpretation which he surely knew the other party would eventually place on the arrangement, each apparently believing that it would be strategically preferable to resolve this difference after the work was done. The result was that the parties never made a contract with respect to this portion of the work. See Restatement (Second) of Contracts, supra, at §§ 20(1).

Accordingly, the revision ordered by Lutali affords no contractual basis for Hardy's claim that Lutali owes $47 ,986 over and above the $82,458 he has already paid. (This is especially true in light of the October 7 invoice, which reveals that Hardy was already well over the original budget before Lutali ordered the revision; a substantial portion of the $47 ,986 now demanded, therefore, has nothing to do with the revision and cannot possibly be justified by reference to it.) It does not follow, however, that the Lutalis get the extra 424 square feet for free. Rather, the court must apply the doctrine of quantum meruit to award Hardy the value of the benefit conferred on the Lutalis by the work done beyond that required by the original contract. Cf Hardy v. Anderson, supra at 83.

The only evidence we have of the benefit conferred by the additional work is the value the parties agreed to place on the work originally scheduled. If a 53' x 26' two-story addition is worth approximately $75,000, then an identical structure approximately one- sixth larger (53' x 30') should be worth about $12,500 more. Hardy might also be entitled to greater compensation for revising a structure that was already substantially built than if he had simply built the extra square footage from the ground up, since the cost of construction ---and therefore, arguably, the value of the services rendered ---was greater. See Evans v. Mason, 308 P.2d 245 (Ariz. 1957). It is not clear, however, that the extra expense to Hardy increased the value of the benefit conferred upon Lutali, which is the traditional measure of damages under quantum meruit. See Hill v. Wax berg, 237 F.2d 936, 939 (9th CiJ;. 1956) ("[R]estitution is properly limited to the value of the [14ASR2d13] ben,efit which was acquired.") In any case, Hardy's equitable claim to compensation beyond the value of the benefit acquired by the Lutalis is substantially weakened by his failure to apprise the Lutalis of the extent of the work that would be entailed by the revision they had requested. While it might go without saying that the walls would have to be torn out and rebuilt, there was no reason to assume that the Lutalis would understand that the structural supports for the whole second floor would need to be moved.

IV. Offsetting Damages

Depending on the resolution of these questions, the revision would appear to entitle Hardy to at least $12,500 and perhaps as much as $20,000. Against such entitlement, however, it is necessary to offset the damages suffered by the Lutalis on account of defects in the construction. While the evidence of the amount owed by Hardy on account of such damages is at least as imprecise as the evidence of the amount owing to Hardy for the revisions, the two figures are of the same order of magnitude.

On the present record we cannot conclude that Hardy is entitled to quantum meruit recovery beyond the $82,458 already received, since we have insufficient evidence on which to fmd that the value of the extra services he performed exceeds the amount of the damages suffered by the Lutalis on account of Hardy's defective performance. Nor can we conclude, however, that the Lutalis have proved damages in excess of the benefit conferred on them by the additional construction.

Preservation of the status quo, aside from being practically compelled by the rule that each party bears the burden of proving his own damages, also seems a just result from the standpoint of all parties. The Lutalis have already spent between $1,000 and $2,000 to repair defects in Hardy's performance. (This estimate excludes amounts spent for such items as the new master bathroom and the "ladies' lounge," which were not part of the addition or of this case.) By spending another $2,000 to $6,000 they can probably repair all the defects except the crevice in the floor. They will then have paid from $85,000 to $90,000 for a building that is one-sixth larger than the one they originally agreed to purchase for "approximately" $75,000, but which has an uneven floor. If it turns out that the floor can be fixed for an additional two or three thousand dollars, they can have a flawless building one-and-one-sixth times as large as the one they originally agreed to purchase, for approximately one-and-one-sixth times the amount they agreed to pay. [14ASR2d14]

If the cost of repairing the defect in the floor should prove so high that a reasonable person would prefer simply to make whatever cosmetic repairs are possible and live with the result, then the Lutalis will be left with an imperfect but habitable structure for a somewhat lower price. In such a case the measure of damages for defective performance is not the cost of repairing the defect but the difference in value between the benefit conferred by the defective performance and the benefit that would have been conferred by the promised performance. See Jacob & Youngs v. Kent, 129 N.E. 889, 891 (N. y .1921) (Cardozo, I.):

The owner is entitled to the money which will permit him to complete, unless the cost 
of completion is grossly and unfairly out of proportion to the good to be attained. When 
that is true, the measure is the difference in value.

Nor is a denial of further payment particularly harsh toward Hardy. The record reflects that Hardy's total expenses, excluding payment to the Hardys themselves, were between $62,000 and $72,000 for all work including the additional 424 feet. Their compensation for their own efforts in connection with the Lutali project, therefore, is between $10,000 and $20,000. They also appear to have recovered an indeterminable quantity of unidentified excess building materials. While perhaps not handsome by the standards of the construction industry, this measure of compensation is hardly unfair in light of the serious problems that developed with the Lutali project.

V. Order

Accordingly, both the complaint and the counterclaim are dismissed.

It is so ordered.

*********

Lauoletolo v. Setenaisilao,


PINEAURO LAUOLETOLO, Plaintiff

v.

ILIMALEOTA SETENAISILAO and CONTINENTAL
INSURANCE, Defendants

High Court of American Samoa
Trial Division

CA No. 27-89

January 31, 1990

__________

Driver encountering children or entering an area where they are expected to be present is under a special duty of care to drive in a manner anticipating possible unexpected, imprudent childish behavior.

Fact that a child was struck by an auto does not necessarily mean that the driver was negligent.

Driver is not under a special duty of care to drive in a manner anticipating small unsupervised children where the accident occurred on a rainy evening near a shopping area with heavy holiday traffic.

Fact that a child crossed from the opposite side of a straight stretch of road before being struck by an auto did not prove that the driver breached his general duty of care to keep a proper lookout where the accident occurred on a rainy evening near a shopping area with glare from artificial lighting and heavy holiday traffic.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendant Setenaisilao, Togiola T .A. Tulafono
For Defendant Continental, Roy J.D. Hall Jr.

Plaintiff, Pineauro Lauoletelo, is the mother of a young child who was killed in an automobile accident which occurred on December 24, 1987. She sues for wrongful death alleging the proximate cause of her son's death as being the negligence of defendant Ilimaleota Setenaisilao, the driver of the vehicle involved. Defendant Continental Insurance is joined as the insurer of the vehicle. [14ASR2d38]

Facts

Young Mose Puapuaga was tragically struck by a passing vehicle on Christmas Eve 1987 while he attempted to cross the main east-west highway in Pava'ia'i village. Mose was only three years old at the time and he died a few days after the collision.

On the evidence presented we find that Mose's grandmother had taken him with her earlier in that tragic evening to choir practice at the Pava'ia'i Methodist Church. The adults apparently attended choir practice while a number of children, including Mose, were given gifts and then left to play outside in the churchyard. For reasons unknown, Mose wandered outside the churchyard. He walked next door to the parking lot of Haleck's supermarket and then crossed the highway in front of the supermarket. At or around 7:00 p.m. he was seen by another child, Tulelei Efeso, who had been with him earlier at the church yard. Tulelei, who was 10 years old at the time, had just exited the supermarket with an ice-cream cone when she noticed Mose on the opposite side of the road. Mose called to her about her ice-cream cone and he asked Tulelei if he too could have one. She, in turn, called to Mose to wait first for the cars on the road to pass; however, Mose ran across the road without heeding her and was hit by a passing vehicle. After she saw him being taken away by the occupants of the vehicle involved, Tulelei then went and told Mose's grandmother who was in front of the church building.

Setenaisilao was, at the time, driving his pickup truck towards Faleniu village. He testified that as he approached the vicinity of Haleck's supermarket he heard something strike the side of his truck. He then stopped as he thought that someone had thrown a rock at his vehicle. However, after inquiring of his son who was sitting in the back of the truck, he was told that there was a child lying on the road who was struck by the vehicle. They then immediately drove the child to the hospital. Setenaisilao testified that he never saw the child at all.

That portion of the highway immediately in front of Haleck's supermarket is a relatively straight and level stretch of road. At the time of the collision, darkness had already set in and road conditions were wet with rain showers. The supermarket and its car park area adjacent to the highway were busy with people making last minute Christmas purchases. [14ASR2d39]

I. Discussion

The defense submits that the accident was unavoidable ---the case of the child who suddenly darts out onto the roadway~ into oncoming' traffic. Inviting our attention to Matalolo v. Penitusi, 4 A.S.R.2d 46 (1987), the defense argues that negligence must be proven and that the mere fact that a child is struck by a vehicle does not thereby of itself establish negligence. The defense further contends that there was simply neither time nor opportunity for the driver to take any evasive action given- the circumstances of the child's "sudden and unexpected" entry onto the road.

On the other hand, plaintiff's counsel urges that the "darting out" cases relied on by the defense are concerned only with those circumstances where the child is "hidden" from the motorist's line of sight until immediately before impact. Here, plaintiff submits that Setenaisilao was negligent in his operation of the vehicle because he had failed to keep a proper lookout: the accident occurred on a straight stretch of highway and the child was crossing from the side of the roadway on the driver's left; the defendant admitted that he never saw the child; however, had he kept a proper lookout he would have seen young Mose either at the edge of the highway or about to cross the highway. Therefore, plaintiff contends that the reason why the defendant never saw the child was that he did not pay proper attention to the roadway in front of him.

The law imposes an extra special duty of care upon a motorist who either encounters children or who drives into any area where children are expected to be present. Because young children do not have the same sensibilities for safety, the motorist in these circumstances is expected to operate his vehicle in a manner which anticipates the possibility of unexpected and imprudent childish behavior. This, however, does not equate to strict liability. The law is equally clear that motorists are not insurers of children's safety and the mere fact of injury does not necessarily mean negligence.

In the present matter we cannot conclude, given the surrounding circumstances, that the place of the accident was an area where the prudent motorist would have been expected to be especially vigilant and on the lookout for small and unsupervised young children. It was in the evening and it was raining and the accident occurred in the vicinity of a supermarket and some small shops which collectively produced an extraordinary amount of traffic because of last minute Christmas [14ASR2d40] shopping. These are hardly the circumstances where one should be reasonably expected to anticipate the presence of children of tender age wandering unattended around and about the highway.

The next question is necessarily whether Setenaisilao breached his general duty of care by not keeping a proper lookout at the crucial time. On the extent of our record, we are unable to conclude on the balance of probabilities that there was such a breach of duty. If we ignored the surrounding circumstances and simply drew the inference that Setenaisilao did not see the child because he did not keep a proper lookout, then we would almost certainly be exacting a standard of strict liability and the notion of res ipsa loquitur should thus be appropriate in all cases involving children. The only factor arguably in plaintiffs favor was the fact that the child had to run from across the westbound lane before colliding with Setenaisilao's eastbound vehicle. (1) Counsel argues that given the straight stretch of roadway, the little boy crossing from the opposing side of the highway should have been visible to a driver who kept a proper look out. This factor, however, is far from conclusive when weighed against other additionally relevant and countervailing factors which also constitute the surrounding circumstances and which would have also competed for any driver's attention that particular night: a dark rainy highway at night with artificial lighting resulting in a very bad glare that significantly impairs vision, and the traffic generated by the supermarket including vehicular movement both on the highway and within and without the supermarket area. The last thing one should be expected to contend with at that time and place would be a 3 year old boy on a busy part of the highway, unattended by an adult, who suddenly runs excitedly across that highway anticipating the delights of an ice cream cone. We cannot on the proofs before us find the defendant Setenaisilao to have been in breach of his duty to keep a proper lookout. Judgement is accordingly to be entered for the defendants.

It is so Ordered.

*********

1. There was nothing in the way of physical evidence presented except for the investigating police officer's testimony to the effect that he had examined the defendant's pickup truck the following day and that all he could find consistent with the impact was a large indentation appearing on the driver's side towards the rear of the vehicle.

”Iuli”; In re Matai Title


TAUMAFAI B.F., Claimant

v.

TELA PANINI, Objector 
FA'ASEFULU TOGIA'I, Objector

[In the Matter ot the Registration of the Matai 
Title "IULI" of the village of Tula]

High Court of American Samoa 
Land and Titles Division

MT No. 5-88

March 29, 1990

__________

[14ASR2d117]

Candidate for a maw title who best satisfied the statutory criterion of hereditary right to the title did so by showing the shortest route of descent from a past title holder, even though such descent was via an adopted side of the family. A.S.C.A. § 1.0409(c).

No candidate for a matai title best satisfied the statutory criterion of the support of the clans where the candidates disagreed on the identities of the original and subsequent titleholders and family meetings considering the candidates ended inconclusively. A.S.C.A. § 1.0409(c).

Candidate for a matai title who best satisfied the statutory criterion of forcefulness, character, personality, and knowledge of Samoan custom did so based on his longterm experience as a comparably ranked titleholder and administrator, which familiarized him with Samoan custom and enhanced his administrative and leadership skills and his ability to fulfill the responsibilities and duties of the title. A.S.C.A. § 1.0409(c).

Candidate for a matai title who best satisfied the statutory criterion of value to family, village, and country did so based on his familiarity with the demands of office gained by long tenure as a comparably ranked titleholder; his rapport and standing with fellow matai; his credibility; his seniority; his singular commitment to the educational needs of the community as evinced by his long career in education and government; and his ability to settle familial dissension. A.S.C.A. § 1.0409(c).

Where no candidate for a matai title had best satisfied one of the four statutory criteria for choosing a matai, the title was registered in the name of the candidate best satisfying two of the remaining three criteria.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, VAIVAO, Associate Judge, AFUOLA, Associate Judge, and APE, Acting Associate Judge.

Counsel: For Claimant, Tau'ese P.F. Sunia 
For Objector Panini, S.E. Sala 
For Objector Fa'asefulu, Lutu T. Fuimaono

The Court makes the following fmdings with regard to the criteria set forth in A.S.C.A. §§ 1.0409(c).

I. Hereditary Rights

The Court is satisfied that all of the candidates have hereditary rights to the title Iuli. There was no disagreement among the parties to this extent. If measured according to the method which the Court has traditionally used to calculate degrees of relationship to the title, Taumafai would prevail as he can show the shortest descent route to a past title holder. The objectors, however, have also submitted their [14ASR2d118] measure of entitlement by tracing descent to the original titleholder as was done in the case In Re Matai Title Sotoa, MT No.5-82. In this manner, Tela has argued that he is better entitled because Taumafai comes from an adopted side of the family descended from a Iuli Isaia. Whether adopted or not, it was clearly established in In Re Matai Title Iuli, MT No.20-1956, that candidate Taumafai's branch of the family is entitled, and indeed, candidate Taumafai's maternal uncle Togi prevailed in that case.

II. Support of the Clans

There was simply no consensus among the parties on the question of the clans as customary in the Iuli family. Taumafai and Tela at least agreed on a working definition of clans, and that is, the grouping of family members in accordance with descent lines running from the issue of the original title holder. They were totally at odds, however, not only on the identity of the original titleholder but on the identities of the succeeding generation. Fa'asefulu, on the other hand, was noticeably confused as to the basis of his claim for clans. In any event, the evidence sadly showed that the family simply refused to seriously attempt the selection of a matai. The family meetings, which considered the nominations of both Taumafai and Tela, concluded with the acknowledgement that the direction to the Courthouse was well known. Fa'asefulu candidly admitted that he took this to mean a clear invitation from the family to let "the law" decide, even though he had also indicated at one of the family meetings that he favored Taumafai's candidacy. We conclude that no one secured the wish of the majority or plurality of the clans.

III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom

On the third criterion, we rank Tela as the leading candidate. Tela is 63 years of age and for some 25 years he has held the comparably ranking title of "Tela" from the village of Afono. As such he has proven himself worthy and capable in his duties as the "matua" of Mata'utia in Afono. His long tenure as matai has made him familiar with the requirements of Samoan custom. Taumafai, who is 36 years of age, and Fa'asefulu, who is 49 years of age, have yet to serve as matai. Taumafai admitted in open Court that he has been holding himself out as [14ASR2d119] a matai using the unregistered name "Siupapa" in violation of the law. (1) However, he seeks the Court's forgiveness for this "small error" on his part. In terms of ability to undertake the duties and responsibilities of the very important Iuli title (the Iuli is the matua of Salanoa in the village of Tula), Tela clearly has the superior proven experience. This experience was quite evident on the stand with Tela proving to be better at ease. In terms of formal education, Tela and Taumafai prevail. While they have each achieved similar levels of training as educators, Tela has had over 30 years of service as principal of various government elementary schools. Tela has superior administrative and leadership skills as a result of his more extensive experience. Fa'asefulu, nonetheless, has proven to be an enterprising and industrious person, being one of the territory's leading businessmen; however, his character is not without blemish. He candidly admitted to misappropriating government property while in the employ of the government. He was 22 years old at the time and he puts this down to youthful indiscretion. On balance we find that Tela exhibits the personal qualities better suited to leading the family.

IV. Value to Family, Village, and Country

We are satisfied on the evidence that all of the candidates have in various ways rendered valuable service to the past matai and that they have faithfully participated in family affairs. They all live in the village, occupying and working family lands, and serving the family, church, and village. In terms of service, no one can be singled out as more deserving.

We have already concluded that Tela has shown the stronger personal characteristics, as well as the better track record and experience for leadership. It goes without saying that the dignity of the title will be best enhanced by the candidate who is intimately familiar with the demands of office. Tela's longstanding tenure as a matai has certainly given him that familiarity. He not only has standing with his fellow matai but rapport as well, and he has credibility and seniority that comes with tenure and age. He continues in his long but dedicated career with the government and in this connection he has remained singularly committed to the educational needs of the community. We cannot deny [14ASR2d120] that the other candidates are not without value to the government but what they lack in relation to Tela is experience and the opportunity to prove oneself.

From the evidence, it is clear that there is much dissension and ill feeling in the family. Among the family's immediate needs is a peacemaker. Again, Tela best fits this bill with his experience as a matai and in this regard, Taumafai, and Fa'asefulu to a lesser degree, concede age and experience to Tela. In addition, Fa'asefulu himself is the object of a certain amount of ill will arising within the family. In 1987, certain family members saw him as having used his superior wealth to obtain favored land assignment from the past matai and thus petitioned the court accordingly in Tagoa'i v. Togia 'i, LT No.29-87 .We conclude that Tela prevails with this criterion.

From the foregoing, we hold that Tela is qualified to hold the title Iuli. He prevails over the other two candidates on the third and fourth criteria. Since no one had the majority or plurality of the clans it is not necessary for us to confront the anomaly apparent with the issue of hereditary rights. Even if this criterion is given to Taumafai, he is still behind Tela on the other two important ones.

The Territorial Registrar is directed to register the title Iuli in candidate Tela upon his vacation of the title Tela consistent with the requirements of A.S.C.A. § 1.0402.

It is so Ordered.

*********

1. A person who uses a matai name before the same has been registered according to law commits a Class B misdemeanor punishable by a term of imprisonment not to exceed 6 months. A.S.C.A. § 1.0414.

In re Matai Title “Tauala”,


LUAVASA TAUALA, Claimant

v.

TA'AVASA F. FALESIGAGO TAUALA, Objector

[In the Matter of the Matai Title "TAUALA"
of the Village of Ta'u]

High Court of American Samoa
Land and Titles Division

MT No. 6-88

March 20, 1990

__________

Although designation by a living matai of his successor has its place in the customs of Samoa, it has always been understood that the whole family has the right to decide whether to accept the designee or to choose someone else. [14ASR2d84]

Difficulty of assessing family or clan support for candidates for a matai title is compounded by the fact that Samoan families traditionally make decisions not by pure majoritarian democracy but by consensus. A.S.C.A. §1.0409.

Where one of the competing candidates has illegally undergone traditional ceremonies which made him the matai in the eyes of many family members, some of these members might regard themselves as bound to support him whether or not they believe he is or will be a good matai; it is thus practically impossible 10 make a fair and accurate comparison of his support with that of a candidate who has not illegally seized such a strategic advantage. A.S.C.A. §1.0409.

Candidate for matai title who lied under oath about his convictions by military tribunals, and who had deliberately violated numerous court orders, would not prevail on the statutory criterion of forcefulness, character, personality, and knowledge of Samoan custom. A.S.C.A. § 1.0409.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, V AIV AO, Associate Judge, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Claimant, Charles V. Ala'ilima
For Objector, Togiola T.A. Tulafono

This controversy began in 1976 when the then-holder of the Tauala title, Tauala Tulaga, announced that he was relinquishing the title in favor of his son Luavasa, who was then about 35 years old. Although such designation by a living matai of his successor (known as fa'aui le ula) has its place in the customs of Samoa, it has always been understood that the whole family has the right to decide whether to accept the designee or to choose someone else.

At least some family members believed that Luavasa was not the right choice and that the family had not been given a fair chance to decide. Prominent among these was Laeli Tauala, who believed he himself ought to be the next titleholder. He filed a petition in the High Court alleging that some of the customary formalities incident to accession to a matai title had already been done and that the crucial last step in the process, the fale'ula, would take place shortly.

With the holding of the fale'ula, as the petition pointed out, Luavasa would "become the holder of the above mentioned title in the eyes of the family, the village and the whole Samoa," whether or not he had really been selected by consensus of the family. Laeli therefore requested a temporary restraining order enjoining Luavasa and those in [14ASR2d85] concert with him from holding the fale'ula until the title had been duly registered and any objections resolved.

The High Court granted the restraining order, but the fale'ula was held anyway. Then-Chief Justice Jochimsen held a hearing and concluded that "[d]efendant Luavasa Tauala did disobey the order of this court. "The Court therefore ordered Luavasa to refrain from holding himself out as Tauala"or to take any advantages that may flow from being the title holder, nor suggest to anyone, for any reason that the defendant is the title holder pending final disposition of this case..." The order added that if Luavasa disobeyed he would be in contempt of Court. It was signed by the Chief Justice on December 30, 1976.

The case was subsequently referred to the Office of Samoan Affairs for arbitration. Apparently any such efforts were unsuccessful, for about two years later, on March 9, 1979, Laeli offered the Tauala title for registration. There were three objectors: Luavasa Tauala, Ta'avasa Falesigago Tauala, and Logona Tigilau. Meanwhile, however, it appears that Luavasa was using the title and exercising all the functions of Tauala within the family and village.

On or about September 7, 1983, the then-Deputy Secretary of Samoan Affairs wrote a letter to the Territorial Registrar stating that the Tauala case "has been resolved among the parties themselves" and that "[t]he family has agreed that 'LUAVASA TAUALA' shall hold the title of 'TAUALA.'" He added that "all parties affected are advised to. .. finalize their withdrawals." None of the objectors actually filed a withdrawal at that time, however, and Ta'avasa strenuously denies that any such agreement ever took place. Luavasa testified that the alleged resolution occurred not as a result of arbitration at the Office of Samoan Affairs, but at a family funeral. He says that after the funeral the family discussed the title dispute, and that everyone was in favor of him (Luavasa) except Ta'avasa, who finally said that he would do whatever the family wanted. It appears that Luavasa interpreted this as a withdrawal of Ta'avasa's claim and that he or someone else told Samoan Affairs that the case had been resolved. Luavasa must have known there was no final resolution, however, for although he went on using the title he made no attempt to get it registered in his own name.

On October 8, 1984, Laeli did write a letter to the Territorial Registrar withdrawing his claim and stating that it was the will of the family that Luavasa should have the title. (Although the original of this[14ASR2d86] letter does not appear in the file sent to us by the Registrar, counsel for Luavasa has submitted a copy which appears to be genuine.)

Nothing further happened in the case until December 20, 1988, when the file was unearthed by the Deputy Territorial Registrar. This official noted that according to her "research, " two of the objections had not been withdrawn and that the case should have been forwarded to the Court for resolution. (Counsel for Luavasa suggested that the case might have been resuscitated at the behest of someone who was unhappy with Luavasa for opposing the re-selection of Lefiti Fa'afetai, a family member who is one of the principal chiefs on the island of Ta'u, to his position as a Senator from Manu'a. This does appear to be a plausible explanation for the Deputy Registrar's sudden decision to conduct " research" into the case. Whatever her motivation, however, it is clear that Ta'avasa had not withdrawn his objection and that either party has the right to have the case heard by the Court. ) On December 23 the Registrar sent the file to the Court.

On the same day, December 23, 1988, Lefiti Fa'afetai brought an action "for himself and on behalf of members of the TAUALA family," seeking an injunction to prohibit Luavasa from holding himself out as Tauala. Lefiti's petition attached a copy of the 1976 injunction.

On January 6, 1989, a hearing was held on Lefiti's petition. Chief Justice Kruse and three Associate Judges found that "the matai title Tauala is vacant, and defendant is holding himself out as the title holder and using the said title." Luavasa was therefore enjoined from using the title Tauala, holding himself out as Tauala, or asserting any authority or doing anything which Tauala would do within and outside of the village of Ta'u, pending final resolution of the title case.

In June 1989 objector Ta'avasa moved to set the Tauala case for trial. The trial was set for December 4, 1989.

In September Ta'avasa moved that Luavasa be held in contempt of Court for continuing to hold himself out as Tauala in violation of the preliminary injunction. On October 17, 1989, a hearing was held on this motion. The Court did find that Luavasa had wilfully violated the injunction. He was sentenced to serve five weekends in the Correctional Facility.

The trial of the matai title case was postponed twice (both times at the request of Luavasa) and was finally held on March 15, 1988. [14ASR2d87] Witnesses for Luavasa were Lieutenant Governor Galea'i Poumele, Tigilau Logona (who has now withdrawn his candidacy in favor of Luavasa), Lautua'a Fulipopo, and Luavasa himself. Witnesses for Ta'avasa were Lefiti Fa'afetai, Vivao Taliese, Fa'agau Lefiti, and Ta'avasa. Ta'avasa also offered into evidence the transcript of a deposition given by Laeli, who was absent from the island on the rescheduled trial date.

The law governing matai titles specifies four criteria on which the Court must make findings in every action for the registration of a matai title. These are (1) the best hereditary right to the title; (2) the "wish of the majority or plurality of those clans of the family as customary in that family"; (3) forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country. A.S.C.A. § 1.0409. (1)

I. Best Hereditary Right

With respect to the first criterion we find both candidates equally qualified. Each is the son of a former Tauala title holder.

II. Family Support

With respect to the second criterion the Associate Judges are divided. There appear to be three clans in the family, and each candidate appears to enjoy some support from members of each. Two judges would hold that no candidate enjoys the support of the majority or plurality of the clans, since no clan is united in favor of a single candidate. The other two judges would interpret the "majority or plurality of the clans" provision, in light of the Samoan traditions upon which it is based, to mean that a clan should be counted in support of a [14ASR2d88] candidate if that candidate clearly has more support within a clan than any other candidate.

Even on the assumption that the latter interpretation is correct, however, the evidence of clan support is mixed. At two family meetings, one held in April 1989 and the other about two weeks before the trial in March 1990, the clear majority of the speeches were in favor of Luavasa. His supporters included prominent representatives of all clans. On the other hand, Ta'avasa contends that the meetings were called by supporters of Luavasa and that many of his supporters were not invited. At trial Ta'avasa presented prominent members of all three clans as witnesses on his behalf; so did Luavasa.

Similarly, each candidate has submitted lists of what purport to be the signatures of family members supporting him for the title. Luavasa's petitions contain about 500 names, Ta'avasa's only about 100. Most of Luavasa's signatures, however, do not appear to be genuine. Some people signed more than once, and almost every page contains groups of five or ten names written in the same handwriting. Ta'avasa's petition also contains some instances in which one person appears to have written several "signatures," but a far higher percentage of his signatures appear to be genuine. (Luavasa examined the Ta'avasa petition and admitted that the signatures appeared to be those of blood members of the family, but complained that some of the names were also on his own petitions.) Nor does the evidence show to which of the clans the various signatories belong or how the numbers of signatures compare to the total number of members in any clan.

The difficulty of assessing family or clan support is compounded by the fact that Samoan families traditionally make decisions not by pure majoritarian democracy but by consensus. We cannot merely count names or speeches, but must attempt to gauge the breadth and depth of support for each candidate within the family and its clans.

In this case there is an added complication. Within any Samoan family's decision making process it is traditional to show great deference to the opinions of ranking family members, and particularly to the senior matai. It is therefore not clear how many of those who expressed support for Luavasa did so not because they believe he is or will be a good Tauala but because, having undergone a saofa'i and a fale'ula, he is the Tauala "in the eyes of the family, the village and the whole Samoa," and they therefore regard themselves as bound to support him. Since Luavasa seized this tremendous strategic advantage in defiance of [14ASR2d89] numerous statutes and court orders ---by holding a fale'ula and exercising the functions of Tauala while other candidates' claims were still pending ---it is practically impossible to make a fair and accurate comparison of his support with that of Ta'avasa.

In this connection it is noteworthy that Laeli, who at some time after 1979 assumed the title Tunupopo, now supports Ta'avasa rather than Luavasa. Tunupopo is the matua or elder statesman of the family, who would ordinarily have much of the responsibility for looking after family affairs in the absence of a senior matai. (Unfortunately, Tunupopo Laeli now spends most of his time in California. He says this is for medical reasons and is temporary. In any case, Laeli is recognized as Tunupopo by all factions within the family and has not been asked to vacate the title since he went to California.) Laeli says that not only he but also "many people in the family. ..supports and would like for Foutu'ua [Ta'avasa] to succeed and to take over the title in the family." We cannot ignore this assessment by the matua of the family.

On the other hand, a finding that Ta'avasa enjoys majority or plurality support would be at odds with the evidence that a large number of family members from all clans do regard Luavasa as the Tauala and support him as such. It also appears that at least some family members, including members of high rank such as Lieutenant Governor Galea'i, strongly support Luavasa on his own merits and not just because cf his formal investiture with the title. Other prominent members of the family, including not only Laeli but also former Senator Lefiti, are equally strong in opposition to Luavasa.

On balance we conclude that neither candidate has proven a better right than the other on the issue of clan support.

III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom

With regard to forcefulness, character, personality, and knowledge of Samoan custom, the picture is also quite hazy .Luavasa is clearly the more forceful and dynamic of the two candidates. He might also have demonstrated the superior knowledge of Samoan custom had he not been cursory and evasive in many of his answers to questions (both in his testimony and on his candidate questionnaire) about custom within the family and village. On the record as it stands, both candidates demonstrated an adequate knowledge of Samoan custom. Luavasa's personality is characterized by charm, intelligence, sophistication, and [14ASR2d90]oratorical skill in both Samoan and English. Ta'avasa is a quiet and humble man.

Unfortunately, however, the evidence casts serious doubt on Luavasa' s character. Certain matters raised by opposing counsel on cross-examination raise questions about this candidate's respect for the law, about his willingness to tolerate people who disagree with him, and about his honesty. These matters include at least two and probably three convictions by military courts martial. There is also Luavasa's role as a principal participant in the illegal installation in 1986 of a person other than the lawful holder of the Sotoa title as Sotoa within the village of Ta'u. Luavasa's testimony on these incidents was deeply troubling not only because of the substance of the incidents themselves but also because of the way Luavasa reacted when asked about them.

Perhaps most disturbing was Luavasa's testimony with regard to the convictions by military tribunals:

Q. BY MR. TOGIOLA: You mentioned in your direct testimony
that you spent eight years in the mainland and spent some time
in the United States. One of the criteria here, sir, is your value
your character. When you were in the United States, were you
ever convicted of any crime?

A. [BY LUA V ASA TAUALA:] I had traffic ticket citations.

Q. I only asked of any crimes. How about the time when you were
in the service? Were you ever convicted by a special court martial
or some other judicial authority in the military?

A. No.

Q. Do you remember on April 24, 1968, while you were in the
military service stationed in San Diego whether or not you were
convicted by a special court martial for violation of the Uniform
Code of Military Justice Article 86?

A. There was but it was a summary court martial. [14ASR2d91]

Q. Wasn't that --wasn't that October 24 of 1967 that you were
found guilty by a summary court martial?

A. I do not know the exact date, but it was 1968.

Q. Well, do you deny that you were convicted by summary court
martial on October 24, 1967?

A. I do not recall. I do not remember except the summary court
martial in 1968.

Q. Do you remember the offense you were charged with in that
summary court martial?

A. I guess it was lateness to work without leave.

Q. You don't remember being convicted in 1967 of making a ---
filing a false report, false statement with intent to deceive in
violation of Uniform Code of Military Justice Article 7?

A. I do not remember.

Q. Do you remember being in court martial in 1972 just before you
left service on February 18?

A. Yes. I remember maybe it was '71 or '72.

Q. So your answer to my first question then that you were never
convicted of any offenses in the military is wrong?

A. I do not remember.

Asked later by his own counsel to explain the two convictions to which he had admitted, Luavasa said only (1) that it all happened because he had to stay home with his children because they were sick and (2) that a doctor and a minister had testified for him. It is most unlikely that this is the whole explanation for even one of the courts martial, much less for the two to which he eventually admitted or the third which he does not deny but" does not remember." Despite repeated questioning the court never even found out for sure what the charges were. Luavasa seemed determined not to admit anything that the Court or opposing [14ASR2d92] counsel did not already know. Indeed, it is hard to explain his initial denials that he had ever been convicted as anything but outright lies under oath.

With respect to the Sotoa incident, Luavasa testified that under Samoan custom he had no choice but to recognize the person who had been installed according to the traditional formalities. (The Sotoa case was almost identical to the illegal Tauala installation in 1976, with the added dimension that the saofa'i and fale'ula in that case were on behalf of a candidate who had already sought the title in Court and lost to someone else.) The Court pointed out to Luavasa that during the court hearings resulting from the Sotoa incident, the illegal Sotoa claimant had testified that these fonnalities would never have been held but for an ultimatum from the village council. (The testimony was that the village council had given the family three weeks to come up with a new Sotoa or have the title excluded from the village.) Luavasa's response to this question ---as to other questions about his role in the exclusion of various chiefs from the village council and other conflicts within the village ---was that there are many members of the village council. Why do people always assume, he asked, that Luavasa is the ringleader?

In the Sotoa trial his testimony was quite different. There, in support of the illegal claimant's position that he had violated a Court order only because the village council had ordered him to do so, Luavasa testified that "I, myself was the spokesperson" who had proposed the ultimatum to the Sotoa family. Transcript of Proceedings held 8/19/86, Sotoa v. Sotoa, AP No.20-86, pp. 68-69.

These were not the only false or devious answers given by Luavasa. Indeed, some of these falsehoods or evasions were totally pointless, since a truthful answer would have done Luavasa little or no harm. On his candidate questionnaire, asked to list all the holders of the Tauala title, he listed only his own father. At trial he testified concerning numerous other title holders. Asked to explain the inconsistency, he said his father was the only Tauala he had ever seen and he had not wanted to testify about things he did not see. C(ln fact it appears that he did not much care what he wrote down on his questionnaire. His original answer to two of the most important questions was that he would answer when he got to Court. The whole point to the questionnaire, of course, is to let the parties and judges know each party's answers well before they get to Court.) His testimony at the contempt hearing in October was characterized by similarly far-fetched and self-serving rationalizations. [14ASR2d93]

For all this, we do not believe that Luavasa is an altogether bad person or that he could never serve well as a matai. He is not only highly intelligent but also competent and industrious. At most times during his testimony he displayed a most pleasing disposition.

Nevertheless, the incidents we have discussed and his explanations of them reflect a deeply disturbing pattern: repeated disobedience to lawfully constituted authority; subsequent attempts to evade the consequences of his actions, often by saying he was only a humble servant doing the will of others; a certain arrogance and ruthlessness when challenged. And it seems the truth is just not in him.

Ta'avasa, while not as dynamic as Luavasa, is not without talents and accomplishments. He served for many years as a schoolteacher and in various government positions, including a term in the Fono. He has long been active in family affairs, and was also active in village affairs before being expelled from the village council after a dispute with Luavasa. He is, in the words of Laeli, "peaceful and he speaks honestly."

The one negative piece of evidence about Ta'avasa is that for sixteen years or so he has been using an unregistered matai title, Foutu'ua. As a former legislator he should be aware of A.S.C.A. § 1.0414, which makes it a crime for anyone to use a matai title without first having registered it according to law. There is no evidence, however, that his failure to offer the title for registration was part of a scheme to defeat the rights of other claimants or for any other reason than carelessness.

On the criterion of forcefulness, character, personality, and knowledge of Samoan custom, therefore, we find that Ta'avasa prevails.

IV. Value to the Family, Village, and Country

As always, our analysis of the criterion of value to family, village, and country is informed by many of the factors that have gone into our findings on the first three criteria. The relative value of the two present candidates to the family, village, and country would depend heavily on circumstances. If the family, village, or country needed someone to lead them in battle, it would almost certainly want Luavasa; if the need were for a trustworthy administrator and a neighbor with whom to live in harmony, Ta'avasa would be better. [14ASR2d94]

The need at present is for a man of peace. The evidence establishes that the family and village are deeply divided and that Luavasa has been part of the problem. The likely result if Luavasa were selected would be more settling of old scores and the further alienation of potentially useful members of the family and village, all in the name of the finagalo or general will.

There is also a risk posed by a selection of Ta'avasa: the risk of a protracted conflict such as has characterized the Sotoa controversy, in which the matai lawfully selected in accordance with A.S.C.A. § 1.0409 is a different person than the one who has undergone the saofa'i and fale'ula. Since, however, this risk was occasioned by the acts of Luavasa, and since Luavasa and his supporters have it entirely within their power to avert such a conflict, it would be unjust to count it against Ta'avasa.

Finally, we note that Ta'avasa is ten years older than Luavasa, a factor traditionally taken into account in assessing a candidate's value to the family, village, and country.

Accordingly, we find for Ta'avasa on this criterion.

V. Conclusion

For the reasons stated, we find that neither candidate prevails on the first or second criterion and that Ta'avasa prevails on the third and fourth criteria. Ta'avasa F. Falesigago Tauala has therefore shown a superior right to hold the title Tauala.

This is not to say that Luavasa has nothing to offer to his family and to Samoa. At the trial he promised to accept Ta'avasa as Tauala if the Court should so decide. By giving such acceptance generously and without reservation and thereby helping to effect a reconciliation within the family, Luavasa would provide powerful evidence that he has learned well from past mistakes. If he should also reconcile with his past adversaries within the village and get through a year or two without violating any court orders, it seems extremely likely that a man of Luavasa's intelligence and diligence will be given other important opportunities to serve.

Judgment will issue ordering the registration of the name "Tauala" in the name of Ta'avasa Falesigago F. Tauala. [14ASR2d95]

It is so ordered.

*********

1. This case also involves the application of A.S.C.A. § 3.0241(b). That section provides that in the event of a difference of opinion among the Associate Judges in a matai case, the presiding justice shall abstain and the opinion of a majority of the Associate Judges shall prevail. Only in the event of a tie among the Associate Judges does the presiding Justice cast a vote.
In the present case the four Associate Judges, after extensive deliberations, were evenly divided with two votes for Luavasa and two for Ta'avasa. The presiding Justice then proposed to send the matter back to the family for further deliberations. This proposal was defeated by a vote of 1 to 4, with all four Associate Judges voting in the negative. The presiding Justice then cast his vote as required by A.S.C.A. § 3.0241(b).

In re Matai Title “Muagututi'a”,


TUPUSEMANUIA M. TAUOA, Claimant

v.

MALELE A. MUAGUTUTI'A, Objector

[In the Matter of the Registration of the Matai
Title "MUAGUTUTI'A" of the Village of Faga'itua]

High Court of American Samoa
Land and Titles Division

MT No. 2-86

March 7, 1990

__________

Candidate for matai title who had been using the title illegally for several years while objections to his candidacy were pending, would ordinarily not prevail on statutory criterion of value to family, village, and country. A.S.C.A. §§ 1.0409, 1.0414.

Where one candidate for matai title proved his fitness to hold the title under three of the four statutory criteria, and the only other candidate knew of the trial date but failed to appear, the candidate who did appear would be held best qualified to hold the title. A.S.C.A. § 1.0409.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, VAIVAO, Associate Judge, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Claimant, Utu Sinagege R.M.
For Objector, Tau'ese P.F. Sunia [14ASR2d68]

This case came regularly for trial on March 6, 1990. Claimant Tupusemanuia was present and represented by counsel. Objector Malele was neither present nor represented.

Counsel for Tupusemanuia, as well as Tupusemanuia himself, told the Court that Malele had agreed to withdraw his objection and let Tupusemanuia hold the title. The objection had not, however, been formally withdrawn as of the time scheduled for trial. The Court therefore proceeded to hear the testimony of Tupusemanuia with respect to his own qualifications to hold the Muagututi'a title.

The law governing matai titles specifies four criteria on which the Court must make findings in every action for the registration of a matai title. These are (1) the best hereditary right to the title; (2) the "wish of the majority or plurality of those clans of the family as customary in that family"; (3) forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country. A.S.C.A. §§ 1.0409.

The Court finds that Tupusemanuia is related to the Muagututi'a title in that his mother's mother's father held the title. According to the method the Court has traditionally used to calculate degrees of relation to titles, this is a 1/8 blood relationship. This was the best hereditary right to the title demonstrated by any contestant, since Malele neither appeared in Court nor provided evidence of his genealogy in the questionnaire he submitted.

Tupusemanuia also testified that all clans within the family support him for the title. Since this was the only evidence presented to the Court, it was necessarily the best evidence. We therefore find for Tupusemanuia with respect to this criterion.

Tupusemanuia further demonstrated that he has at least some knowledge of Samoan custom, so that we find for him on the third criterion.

With respect to the fourth criterion, the value of the holder of the title to the family, village, and country , we are deeply troubled. The testimony of Tupusemanuia with respect to various services he has rendered to the family, to his church, to the village, and to the Territory would ordinarily be enough to satisfy this criterion, at least in an uncontested case. It was also clear from the testimony of Tupusemanuia, however, that for several years he has been using the Muagututi'a title [14ASR2d69] even though the objection of Malele was still pending. This is specifically forbidden by law. A.S.C.A. § 1.0414 provides that "[a] person who uses any matai title. ..before the same has been registered ...shall be sentenced as for a class B misdemeanor." (A class B misdemeanor is punishable by up to six months in jail and a $500 fine.) Since no title can be registered until any objections have either been withdrawn or resolved in Court, it is clear that Tupusemanuia has been violating this law for some time.

Nor did Tupusemanuia show any remorse when questioned by the judges. His excuses ---that he only held himself out as Muagututi'a because the family wished him to do so, and that his rival Malele had behaved in bad faith ---are the same excuses always given by people who have violated the law by using an unregistered matai title. See, e.g., In re Matai Title "Sotoa ", 6 A.S.R.2d 91 (1987); In re Matai Title "Tauala", 13 A.S.R.2d 19 (1989). Respect for the law, even for law with which a person disagrees or with which compliance is inconvenient, is an essential ingredient of value to the family, village, and community. With respect to fitness to hold a matai title, obedience to the laws enacted by the Fono to govern matai titles is particularly important.

If another candidate had presented himself to the Court, and if that candidate had not violated the law by holding himself out as Muagututi'a before the case was resolved, we would find for that candidate on the criterion of value to the family, village, and country . In the present case we find only that Tupusemanuia has failed to prove his case on this criterion.

Tupusemanuia has, however, proved his fitness to hold the Muagututi'a title with respect to three of the four statutory criteria. No other candidate has proved his fitness with respect to any of the four criteria. We therefore find that Tupusemanuia is the candidate best qualified to hold the Muagututi'a title, and judgment will issue accordingly.

Finally, we note that it is most unusual to proceed to judgment in a matai case when one of the parties is not present. In this case the record reflected that Malele knew about the trial date, since he was present in Court when the date was set. The Court was also informed by Tupusemanuia and by his counsel that Malele had agreed to withdraw his objection and that this was probably the reason he was not present in Court. We proceeded with the trial on the basis of these facts. [14ASR2d70]

If Malele should wish to present evidence to the Court that his absence at trial was not for the reason stated by Tupusemanuia but for some other compelling reason, or if he should have any other objection to our decision, he has ten days to file a motion for reconsideration and/or new trial with the Clerk of the High Court. If no such motion is filed by 4:00 p. m. on Monday, March 19, 1990, Tupusemanuia will have the right to register the Muagututi'a title.

It is so ordered.

*********

In re Matai Title “Iuli”,


TAUMAFAI B.F., Claimant

v.

TELA PANINI, Objector
FA'ASEFULU TOGIA'I, Objector

[In the Matter ot the Registration of the Matai
Title "IULI" of the village of Tula]

High Court of American Samoa
Land and Titles Division

MT No. 5-88

March 29, 1990

__________

[14ASR2d117]

Candidate for a maw title who best satisfied the statutory criterion of hereditary right to the title did so by showing the shortest route of descent from a past title holder, even though such descent was via an adopted side of the family. A.S.C.A. § 1.0409(c).

No candidate for a matai title best satisfied the statutory criterion of the support of the clans where the candidates disagreed on the identities of the original and subsequent titleholders and family meetings considering the candidates ended inconclusively. A.S.C.A. § 1.0409(c).

Candidate for a matai title who best satisfied the statutory criterion of forcefulness, character, personality, and knowledge of Samoan custom did so based on his longterm experience as a comparably ranked titleholder and administrator, which familiarized him with Samoan custom and enhanced his administrative and leadership skills and his ability to fulfill the responsibilities and duties of the title. A.S.C.A. § 1.0409(c).

Candidate for a matai title who best satisfied the statutory criterion of value to family, village, and country did so based on his familiarity with the demands of office gained by long tenure as a comparably ranked titleholder; his rapport and standing with fellow matai; his credibility; his seniority; his singular commitment to the educational needs of the community as evinced by his long career in education and government; and his ability to settle familial dissension. A.S.C.A. § 1.0409(c).

Where no candidate for a matai title had best satisfied one of the four statutory criteria for choosing a matai, the title was registered in the name of the candidate best satisfying two of the remaining three criteria.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, VAIVAO, Associate Judge, AFUOLA, Associate Judge, and APE, Acting Associate Judge.

Counsel: For Claimant, Tau'ese P.F. Sunia
For Objector Panini, S.E. Sala
For Objector Fa'asefulu, Lutu T. Fuimaono

The Court makes the following fmdings with regard to the criteria set forth in A.S.C.A. §§ 1.0409(c).

I. Hereditary Rights

The Court is satisfied that all of the candidates have hereditary rights to the title Iuli. There was no disagreement among the parties to this extent. If measured according to the method which the Court has traditionally used to calculate degrees of relationship to the title, Taumafai would prevail as he can show the shortest descent route to a past title holder. The objectors, however, have also submitted their [14ASR2d118] measure of entitlement by tracing descent to the original titleholder as was done in the case In Re Matai Title Sotoa, MT No.5-82. In this manner, Tela has argued that he is better entitled because Taumafai comes from an adopted side of the family descended from a Iuli Isaia. Whether adopted or not, it was clearly established in In Re Matai Title Iuli, MT No.20-1956, that candidate Taumafai's branch of the family is entitled, and indeed, candidate Taumafai's maternal uncle Togi prevailed in that case.

II. Support of the Clans

There was simply no consensus among the parties on the question of the clans as customary in the Iuli family. Taumafai and Tela at least agreed on a working definition of clans, and that is, the grouping of family members in accordance with descent lines running from the issue of the original title holder. They were totally at odds, however, not only on the identity of the original titleholder but on the identities of the succeeding generation. Fa'asefulu, on the other hand, was noticeably confused as to the basis of his claim for clans. In any event, the evidence sadly showed that the family simply refused to seriously attempt the selection of a matai. The family meetings, which considered the nominations of both Taumafai and Tela, concluded with the acknowledgement that the direction to the Courthouse was well known. Fa'asefulu candidly admitted that he took this to mean a clear invitation from the family to let "the law" decide, even though he had also indicated at one of the family meetings that he favored Taumafai's candidacy. We conclude that no one secured the wish of the majority or plurality of the clans.

III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom

On the third criterion, we rank Tela as the leading candidate. Tela is 63 years of age and for some 25 years he has held the comparably ranking title of "Tela" from the village of Afono. As such he has proven himself worthy and capable in his duties as the "matua" of Mata'utia in Afono. His long tenure as matai has made him familiar with the requirements of Samoan custom. Taumafai, who is 36 years of age, and Fa'asefulu, who is 49 years of age, have yet to serve as matai. Taumafai admitted in open Court that he has been holding himself out as [14ASR2d119] a matai using the unregistered name "Siupapa" in violation of the law. (1) However, he seeks the Court's forgiveness for this "small error" on his part. In terms of ability to undertake the duties and responsibilities of the very important Iuli title (the Iuli is the matua of Salanoa in the village of Tula), Tela clearly has the superior proven experience. This experience was quite evident on the stand with Tela proving to be better at ease. In terms of formal education, Tela and Taumafai prevail. While they have each achieved similar levels of training as educators, Tela has had over 30 years of service as principal of various government elementary schools. Tela has superior administrative and leadership skills as a result of his more extensive experience. Fa'asefulu, nonetheless, has proven to be an enterprising and industrious person, being one of the territory's leading businessmen; however, his character is not without blemish. He candidly admitted to misappropriating government property while in the employ of the government. He was 22 years old at the time and he puts this down to youthful indiscretion. On balance we find that Tela exhibits the personal qualities better suited to leading the family.

IV. Value to Family, Village, and Country

We are satisfied on the evidence that all of the candidates have in various ways rendered valuable service to the past matai and that they have faithfully participated in family affairs. They all live in the village, occupying and working family lands, and serving the family, church, and village. In terms of service, no one can be singled out as more deserving.

We have already concluded that Tela has shown the stronger personal characteristics, as well as the better track record and experience for leadership. It goes without saying that the dignity of the title will be best enhanced by the candidate who is intimately familiar with the demands of office. Tela's longstanding tenure as a matai has certainly given him that familiarity. He not only has standing with his fellow matai but rapport as well, and he has credibility and seniority that comes with tenure and age. He continues in his long but dedicated career with the government and in this connection he has remained singularly committed to the educational needs of the community. We cannot deny [14ASR2d120] that the other candidates are not without value to the government but what they lack in relation to Tela is experience and the opportunity to prove oneself.

From the evidence, it is clear that there is much dissension and ill feeling in the family. Among the family's immediate needs is a peacemaker. Again, Tela best fits this bill with his experience as a matai and in this regard, Taumafai, and Fa'asefulu to a lesser degree, concede age and experience to Tela. In addition, Fa'asefulu himself is the object of a certain amount of ill will arising within the family. In 1987, certain family members saw him as having used his superior wealth to obtain favored land assignment from the past matai and thus petitioned the court accordingly in Tagoa'i v. Togia 'i, LT No.29-87 .We conclude that Tela prevails with this criterion.

From the foregoing, we hold that Tela is qualified to hold the title Iuli. He prevails over the other two candidates on the third and fourth criteria. Since no one had the majority or plurality of the clans it is not necessary for us to confront the anomaly apparent with the issue of hereditary rights. Even if this criterion is given to Taumafai, he is still behind Tela on the other two important ones.

The Territorial Registrar is directed to register the title Iuli in candidate Tela upon his vacation of the title Tela consistent with the requirements of A.S.C.A. § 1.0402.

It is so Ordered.

*********

1. A person who uses a matai name before the same has been registered according to law commits a Class B misdemeanor punishable by a term of imprisonment not to exceed 6 months. A.S.C.A. § 1.0414.

In re Guardianship of the Estate of Togamau


In the Matter of the Guardianship of
SO'ONALOLE TOGAMAU, An Incompetent Person

DEVELOPMENT BANK OF AMERICAN SAMOA,
Guardian of the Estate

High Court of American Samoa
Trial Division

PR No. 1-81

March 5, 1990

__________

Insurance proceeds held in trust for person who had suffered mild brain damage in an accident, but who was able to work, who did in fact work on his family's plantation, and who could expect to live for many years, should not be exhausted through disbursements to his father to be used for general family purposes, but should be reserved for future emergencies related to the continuing medical condition.

Before REES, Associate Justice. [14ASR2d66]

Counsel: For Guardian Development Bank, Steve H. Watson
For Custodian Finau Togamau, Gata E. Gurr

On Motion to Approve Annual Accounting and for Payment of Fees:

So'onalole Togamau is an adult who suffered mild brain damage in an automobile accident in 1978. The partial proceeds of an insurance settlement in the amount of $6,487 were placed in a trust account for the benefit of So'onalole. The Court ordered that $50 per month be distributed to So'onalole's father, Finau Togamau, for the support of So'onalole. Finau Togamau has withdrawn this money in a lump sum of $600 each year since 1981, and has also requested and received certain other sums over the years.

Unfortunately, the amounts disbursed have been substantially greater than the interest accruing on the insurance proceeds. The guardianship account currently contains only $1,733. If disbursals should continue at the rate of $600 per year, So'onalole will run out of money in about three years. Not only would his father then stop receiving regular sums for his support, but So'onalole would also be without resources to deal with any future emergencies related to his medical condition. Since So'onalole is currently in his thirties and can expect to live for many years, such early exhaustion of the trust fund would defeat the purpose of the guardianship.

A recent medical examination reveals that So'onalole appears to be in good physical and mental health except that he has double vision in one eye ("but is able to play billiards with this disability") and that he "is still slow in adding and subtracting numbers [and] takes time to recollect events. " From this report it would appear that he is capable of living and working as an active and useful member of a Samoan family. Indeed, the Court has made inquiries through counsel and has learned that So'onalole does in fact work on his family's plantation in Western Samoa.

These facts strongly suggest that of the two possible uses to which the remaining funds in the estate can be put ---either to supplement the family income for three more years, or to be preserved and to accumulate interest against the possibility of a future relapse or other medical emergency ---the latter is wiser by far. Indeed, it is not at all clear that the prior annual disbursements to Finau Togamau were [14ASR2d67] justified once So'onalole recovered sufficiently to become a full contributing member of the family.

The request for an additional $600 disbursement is therefore denied.

*********

In re Estate of Ah Mai ,


In the Matter of the Estate of HEINRICH AH MAI,
Deceased

IVA AH MAI, Administratrix

High Court of American Samoa
Trial Division

PR No. 25-89

February 28, 1990

___________

Court could not approve proposed final accounting and order of distribution of decedent's estate where the sole asset listed in the accounting was an amount received in settlement of a wrongful death claim, and the administrator of the estate had not requested judicial approval of the settlement as required by statute; in the absence of judicial approval of the settlement, it affirmatively appeared on the record that the estate had no assets. A.S.C.A. §43.5001. [14ASR2d56]

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Petitioner, Charles V. Ala'ilima

Petitioner, the administratrix of her deceased child's estate, has submitted a fmal accounting for approval by the Court. The sole asset listed is a $ 15,000 tort settlement. We requested further information about this settlement from counsel for petitioner and for (he American Samoa Government, the other party to the settlement. It now appears that the$ 15,000 was intended by the parties as full settlement of a claim for wrongful death of the decedent and also of a related claim for the decedent's pain and suffering prior to his death

The American Samoa wrongful death statute provides that "[t]he personal representative of the wronged decedent, if he was appointed in the Territory of American Samoa, with the consent of the court making such appointment, may, at any time before or after the commencement of the suit, settle with the defendant the amount to be paid." A.S.C.A. § 43.5001(d) (emphasis added). The companion statute governing the survival of actions belonging to a deceased person, A.S.C.A. § 43.5002, contains no provision requiring judicial approval for a settlement. If the $ 15,000 listed as the sole asset of the estate had resulted from settlement of the survival claim only, we could approve the accounting. Insofar as it is also in settlement of the wrongful death claim, however, A.S.C.A. § 43.5001 clearly requires the personal representative of the deceased (in this case the petitioner/administratrix) to secure approval of the Court for any settlement, even a settlement reached "before. .. commencement of the suit."

We have received no request for approval of the proposed settlement. It therefore affirmatively appears on the record before us that the estate has no assets. The final accounting must therefore be disapproved.

As was noted in our request for information about (he settlement, the requirement that administrators obtain judicial approval for the settlement of wrongful death claims would appear to be motivated by concern for the rights of absent parties. The present decedent was survived not only by his parents, the present petitioner and her husband, but also by several minor siblings. If petitioner should seek judicial approval for a wrongful death settlement that excludes the brothers and [14ASR2d57] sisters, she should provide the Court with an explanation for such exclusion. (If petitioner takes the position that the decedent's brothers and sisters are not included within the class of eligible beneficiaries in a wrongful death action under A.S.C.A. § 43.5001(b), she should address the authorities cited in our earlier opinion.)

It is so ordered.

*********

In re Estate of Ah Mai,


In the Matter of the Estate of HEINRICH AH MAl, Deceased

IVA AH MAI, Administratrix

High Court of American Samoa
Trial Division

PR No.25-89

January 26, 1990

__________

Process of defining the term "next of kin" within the meaning of inheritance statute can be restated as an inquiry into whether the legislature intended to adopt the "civil law role" according to which kinship is determined by a series of steps up and down the genealogical ladder and a person is one step away from his parent a and two steps away from his siblings, or the competing "common law role" according to which a person is related to both his siblings and his parents in the first degree. A.S.C.A. § 40.0201.

Under territorial statutes governing wrongful death and the survival of actions, decedent's estate is entitled to recover only the reasonable expenses of the decedent's last illness and burial and compensation for injuries suffered by the decedent prior to his death. A.S.C.A. §§ 43.5001(b), 43.5002.

Under territorial wrongful death statute, damages for loss of society, companionship, comfort, protection, and related damages, as well as any pecuniary loss suffered on account of the decedent's death, are recoverable not by decedent's estate but by the surviving spouse, parents, children, or other next of kin, if any, as the court may direct. A.S.C.A. § 43.5001(b).

"Next of kin" in wrongful death statute does not designate only those persons who are first in line to inherit the decedent's real or personal property; whether or not a person's brothers and sisters are as closely related to him as his parents for inheritance purposes, [14ASR2d33] they have frequently been allowed to recover along with parents in wrongful death actions. A.S.C.A. § 43.5001(b).

Before REES, Associate Justice.

Counsel: For Petitioner, Charles V. Ala'ilima

On First and Final Accounting and Request for Approval of Distribution:

Heinrich Ah Mai was a fifteen-month old child who appears to have died in an accident. His mother, Iva Ah Mai, petitioned for appointment as the administratrix of his estate and the petition was granted. She now requests Court approval for distribution of the proceeds of the estate to herself and the decedent's father.

The accounting and request for distribution lists the only asset belonging to the estate as "$15,000 ---Settlement with American Samoa Government Tort Claim. " The accounting designates the decedent's parents as "next of kin." In response to the Court's inquiry, counsel for the administratrix indicates that the decedent also left brothers and sisters. These brothers and sisters are all minor children of the administratrix and her husband.

The request for distribution calls for an interpretation of A.S.C.A. § 40.0201, which provides that in the absence of children, other lineal descendants, or a surviving spouse, personal property "shall be distributed among the next of kin of the intestate." The statute does not specify whether, in the event a person is survived by one or more siblings as well as one or more parents, his "next of kin" are his parents, his siblings, or both.

This question appears never to have been directly addressed by the High Court. Nor have we been able to find guidance in the legislative history of A.S.C.A. § 43.0201 or in the statutory scheme surrounding it, with the possible exception of the parallel provision of A.S.C.A. § 40.0202 to the effect that brothers and sisters take priority over parents in the devolution of real property. This, however, can be taken either way: as an indication that the legislature believed that brothers and sisters were nearer kin than parents for inheritance [14ASR2d34] purposes, or as evidence of a positive intention that real property should devolve upon someone other than the "next of kin." (1)



Counsel for the administratrix refers us to a California case holding that "next of kin" means aunts before cousins ---and therefore, presumably, parents before brothers and sisters. Estate of Way, 85 P.2d 563 (Cal. App. 1938). This is an application of the "civil law rule," according to which kinship is determined by a series of steps up and down the genealogical ladder. According to this rule a person is one step away-from his parents and two steps from his siblings. See T. Atkinson, Handbook on the Law of Wills § 18 at 69 (2d ed, 1953). According to the competing "common law rule," however, a person is related to both his siblings and his parents in the first degree. See id. § 7 at 45-46. The process of defining the term "next of kin" within the meaning of our inheritance statute can be restated as an inquiry into which of these rules the Fono intended to adopt, or into which rule the Court should apply in the absence of any discernible legislative intention.

The present ex parte motion, although hardly the ideal context in which to decide an important legal question of first impression, appears on its face to require such a decision. Upon closer examination, however, the motion presents a prior question whose resolution may render the inheritance question immaterial. Briefly, it is not at all clear that the estate is the true owner of the $ 15,000 tort settlement which is its only stated asset.[14ASR2d35]

We infer from the record that the tort settlement arose out of the death of the decedent himself. If so, the estate was entitled to recover only the reasonable expenses of the decedent's last illness and burial and compensation for any damages suffered by the decedent prior to. his death. A.S.C.A. §§§§ 43.5001(b), 43.5002. Damages for loss of society, companionship, comfort, protection, and related damages, as well as any pecuniary loss suffered on account of the decedent's death, were recoverable not by the estate but by "the surviving spouse, parents, children or other next of kin, if any, of the decedent as the court may direct." A.S.C.A. §§ 43.5001(b).

The class of beneficiaries encompassed within the term "next of kin " for wrongful death purposes does not appear to designate only those persons who are first in line to inherit the decedent's real or personal property; if it did, the phrase "as the court may direct" would be superfluous and possibly mischievous. Whether or not a decedent's brothers and sisters are as closely related to him as his parents for inheritance purposes, they have frequently been allowed to recover along with parents in wrongful death actions. See, e.g. , Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989); Continental Insurance Co. v. Ching-Sam, CA 53-89 (1990). This practice is in accord with.that of at least some other jurisdictions whose wrongful death statutes limit recovery to the "next of kin." See, e.g., Fountain v. Chicago, R.I. & P. Ry. Co., 422 S.W.2d 878 (Ark. 1968); Crystal v. Hubbard, 324 N.W.2d 869 (Mich. 1982); Karr v. Sixt, 67 N.E.2d 331 (Ohio 1946). See generally Annotation, Brothers and Sisters of Deceased as Beneficiaries Within State Wrongful Death Statute, 31 A.L.R.3d 379, 390-95 (1970).

Although our wrongful death statute requires that suit be brought " on behalf of" the next of kin as designated by the Court, it also provides that the "personal representative" of the decedent (presumably the executor or administrator of his estate) may "with the consent of the court ..., at any time before or after the commencement of the suit, settle with the defendant the amount to be paid." A.S.C.A. § 43.5001(d). The requirement of judicial consent would appear to be necessary in light of the personal representative's competing fiduciary responsibilities to the estate and to the designated next of kin ---or, in settlement negotiations prior to the filing of suit, to those whom the court would designate in the event suit should be filed ---who mayor may not be distributees of the estate. In the present case the record reflects neither the filing of a lawsuit nor a request for judicial designation of the "next of kin " or for judicial approval of a wrongful death settlement. [14ASR2d36]

The facts may, however, be different from those we have inferred. Perhaps judicial approval has been sought and received in some proceeding to which reference has not been made in this probate action, or perhaps the settlement proceeds have to do with some tort entirely unrelated to the death of Heinrich Ah Mai. Accordingly, the present motion will be set for a hearing on Thursday, February 15, 1990.

Counsel for the administratrix and for the American Samoa Government, whose interests may also be affected by our decision on the present motion, should appear at the hearing prepared to answer the following questions:

1) Did the tort settlement listed as an asset of the estate arise out of the death of Heinrich Ah Mai?

2) If so, did the claim asserted against the Government include any elements other than medical expenses, funeral expenses, and damages for which Heinrich had a right to recover prior to his death?

3) Did Heinrich's brothers and sisters have a right of action for his wrongful death under A.S.C.A. § 43.5001, or could they have acquired such a right by designation of the Court?

4) Was it the understanding of the parties to the settlement that it would foreclose any future wrongful death action not only by the parents and the estate, but also by Heinrich's brothers and sisters?

5) Should judicial approval have been sought for the settlement?

6) In light of the answers to the above questions, does the tort settlement belong to the estate or to some other person or persons?

It is so ordered.

*********

1. The common law of England and its medieval antecedents treated the ownership of real and personal property as two radically different kinds of interest which therefore devolved differently upon death. See T. Atkinson, Handbook of the Law of Wills § 3 at 11-21 (2d ed. 1953). This attitude has contributed substantially more to the structure than to the substance of the statutes governing inheritance in modern England and the United States. See id. §§ 13, 14.
At one time the common law had it that ancestors, including parents, were absolutely prohibited from inheriting land. See id. § 6. This prohibition derived from feudal principles and is apparently not now in force anywhere, although the subordination of parents to siblings in A.S.C.A. § 40.0202 may be a vestige of it. That this absolute prohibition was limited to real property should not be taken to suggest any particular enthusiasm for the lineal ascension of chattels; under a statute which remained in force until at least 1833, an intestate's father inherited personal property to the exclusion of the mother and siblings, but a surviving mother received only a share equal to that of each brother and sister. See id. § 7 at 46-47.
The presence of two different sections for real and personal property in the American Samoan statutory scheme appears attributable to this general tradition. It affords no evidence of any specific legislative plan having to do either with differences between the two kinds of property or with their similarities.

In re a Minor Child (Juv. No. 62-89),


In the matter of A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 62-89

March 19, 1990

__________

Legal termination of natural parents' rights and obligations is appropriate only when it would serve the best interests of the child.

In the absence of extraordinary circumstances a child's best interests are not served by terminating the obligations of young able-bodied parents to support him.

Where young and able-bodied natural parents had sent their child to live with an elderly couple because the older couple did not have anyone to do chores, court would deny legal termination of the natural parents' rights and obligations even though the elderly couple appeared to be fine people and appeared to have developed a genuine affection for the child.

Before REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Petitioner, Togiola T.A. Tulafono

This petition for relinquishment of parental rights is brought in anticipation of an adoption by a couple who are 75 and 60 years old respectively. The natural parents are 36 years old, married to each other, and able-bodied. The natural father is gainfully employed. The child lived with his natural parents until about two years ago, when the [14ASR2d83] prospective adopting father asked the natural father to "give him a child because he doesn't have anyone to do the chores." For the last two years the child has lived in the prospective adopting parents' household, in which the natural father also stays most of the time so as to be near his place of employment.

The prospective adopting parents appear to be fine people, and they appear to have developed genuine affection for the child. He can go on living with them as long as it is his wish and that of his natural parents.

A legal termination of the natural parents' rights and obligations, however, is appropriate only when it would serve the best interests of the child. In the absence of extraordinary circumstances the child's best interests are not served by terminating the legal obligations of young able-bodied parents to support him. No such circumstances are present here.

The petition is therefore denied.

*********

In re a Minor Child (Juv. No. 68-89),


In re A MINOR

High Court of American Samoa
Trial Division

JUV No. 68-89

February 26, 1990

__________

Petition of the natural parents to relinquish their parental rights in favor of the grandparents was denied as not in the best interests of the child where grandparents were both 75 years old and parents would eventually have to resume the care of the child when grandparents could no longer do so.

Before KRUSE, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Petitioners, Ellen A. Ryan

The natural parents petition to relinquish their natural rights to their youngest child in favor of the child's maternal grandparents. The grandparents, who are social security beneficiaries, have cared for the child since birth, however, this arrangement also appears to have largely [14ASR2d55] arisen as a matter of the natural parents' convenience. The parents are young and industrious and are both tied up with a promising business. They candidly admit that their business currently demands a large part of their time and hence they are unable to properly care for their child.

The child care arrangement can only be temporary in any event. The grandparents' circumstances are that they are both 75 years of age, and the parents naturally expect to take over from them when they are no longer able to look after the child. These are not circumstances which requires changing the child's legal status.

The Court is required by A.S.C.A. § 45.0402(e) to look to the best interests of all concerned. In the circumstances, we are unable to conclude that granting the petition would be in the best interests of all parties concerned, especially those of the child.

Petition denied. It is so Ordered.

*********

I'aulualo v. Siofaga,


MA'AVE I'AULUALO and I'AULUALO FATU, Plaintiffs

v.

FALESEU SIOFAGA, Defendant

High Court of American Samoa
Trial Division

LT No. 27-89

January 25, 1990

__________

Although the power of a matai over Samoan family land is substantial, it is not absolute.

Matai may not evict family member without cause from a house on family land which the family member himself has built or substantially improved with permission of the matai or his predecessor in title. [14ASR2d27]

In those rare case a when some important family pul1'ose has been held to justify eviction of a family member who has done no wrong from family lands he has been occupying, it is essential that the family member be compensated by the assignment of equivalent lands.

General assurance by matai that family member would be free to build another house on family land was insufficient compensation for proposed eviction of the family member from a finished Western-style house in which he had long resided.

Before REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant, S.E. Sala

On Motion for Reconsideration and New Trial:

Plaintiffs and defendant are all members of the I'aulualo family. Plaintiff I'aulualo Fatu is the registered holder of the I'aulualo title; for a number of years the family and village council recognized defendant Siofaga as an unregistered co-holder of the same title, in violation of A.S.C.A. §§ 1.0413-14. When the relationship between the two co-claimants turned sour, I'aulualo Fatu successfully sued to enjoin Siofaga from holding himself out as an I'aulualo. See I'aulua1o v. Siofaga, 10 A.S.R.2d 26 (1989). Plaintiffs then brought the present action to evict defendant Siofaga from the home he has long occupied on I'aulualo family land.

The Court held that plaintiffs had not proved that they were entitled to evict Siofaga. Although the power of a matai over family land is substantial, it is not absolute. See Talili v. Satele, 4 A.S.R.2d 23 (1987), and cases cited therein at 27-28. In particular, a matai may not evict a family member without cause from a house which the family member himself has built or substantially improved with permission of the matai or his predecessor in title, even though the house be on family land. Tali v. Tupeona, 4 A.S.R. 199 (1961). In the present case Siofaga substantially improved the dwelling and plaintiffs did not object until several years later .

Moreover, in those rare cases when some important family purpose has been held to justify the eviction of a family member who has done no wrong from family lands he has been occupying, it has always been held essential that the family member be compensated by the [14ASR2d28] assignment of equivalent lands. See Tal!li, supra at 27, and cases cited therein. In the present case the only compensation offered for the proposed eviction of defendant from the finished Western-style house in which he has long resided is a general assurance that he is free to build another house on other family lands.

Finally, the only cause asserted by plaintiffs for the proposed eviction is their allegation that the house in which Siofaga resides was originally built by the immediate family of plaintiff Ma'ave and was intended for the sole use of that immediate family. The Court found the facts to be more complicated.

Before it was enlarged and improved by Siofaga, the house consisted of two separate houses. The front house was built by various members of the extended I'a family, not just by members of the immediate family of Ma'ave, and was used for some years by the late I'a titleholder who was Ma'ave's father. It was then used, apparently without objection, by the late chief Laupola. Laupola later gave Siofaga permission to move in, also apparently without objection from other family members. Plaintiffs' contention that Laupola gave Siofaga permission to reside in the house only temporarily is inconsistent with the weight of the evidence, which shows that Siofaga lived in the house for many years without objection from anyone. (We also note defendant's position that Laupola, as an ali 'i, holds pule within the family superior to that of tulafale I'a, and that the family is properly known as the "aiga sa Laupola ma I'aulualo." We state no opinion on this issue.)

The back part of the house was originally a separate structure built by a brother of Ma'ave named Feti'i. Siofaga began occupying this structure with the permission or at least the acquiescence of Feti'i,who does not now join in the petition to evict him.

The motion for reconsideration or new trial is based partly on a general assertion of the power of the matai and partly on plaintiffs' claim that "[t]he building plans [for the back building] show the names of two brothers Ma'ave and Feti'i. " Plaintiffs urge that "[t]he court appears to be under the misconception that the house in the back belonged to Feti'i alone and such misconception appears to be the result of its impression that the building plans reflected only one name."

The building plans, however, do contain only one name: "Mr. Maave Fetii of Afono. " In context this appears to be a reference to the person to whom the present parties refer simply as "Feti'i." It is [14ASR2d29] undisputed that he arranged for the plans to be drawn and took out a loan to finance the construction, and witnesses other than the plaintiffs generally referred to the structure as "Feti'i's house." Despite the concession by counsel for defendants that Feti'i was never, as far as counsel is aware, known by the name Ma'ave Feti'i, the judges have discussed the matter and are unanimous in their opinion that (1) "Mr. Ma'ave Feti'i" was a reference to only one person and (2) that person was far more likely to have been Feti'i than plaintiff Ma'ave.

In Samoa it is not uncommon for a person to be known by a variety of names, the use of formal surnames being of recent vintage. While it is undisputed that both "Ma'ave" and "Feti'i" are calling names rather than matai or family names, we note the common practice of referring to people by their calling names together with the calling name of a father or other family member: e.g., "Ioane Iosefo" or "Iosefo Samuelu." If Feti'i had a prominent relative (either the present plaintiff or a forebear) whose calling name was Ma'ave, or if the draftsman thought he did, or if there was for some other reason a group within the I'a family associated with the name Ma'ave, then the draftsman might well have referred to the young man as "Mr. Ma'ave Feti'i." Any of these hypotheses would make more sense-than plaintiffs' suggestion that "Mr. Ma'ave Feti'i of Afono" should be construed as a reference to two separate people.

In any case, the preponderance of the evidence aside from the building plans indicates that Feti 'i built and paid for the house in question.

For the foregoing reasons, the motion for reconsideration is denied.

*********

Hunkin v. Paaka,


MAIAVATELE P. HUNKIN, Plaintiff

v.

MAAE PAAKA and MULIMULI L. FASIMOLI, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 23-89

January 25, 1990

__________

Plaintiff's suit to evict defendant from land on which he recently built a home was denied where neither party showed a better title to land or a superior right to possess it, since the senior matai of neither family testified, the evidence given was contradictory, and neither party showed an earlier attempt to register title or convincing evidence of prior use and occupation. [14ASR2d24]

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Gata E. Gurr
For Defendants, Tau'ese P.F. Suriia

Plaintiff is the senior matai of the Maiavatele family of Vailoatai village. He has filed suit seeking, among other things, the eviction of defendant Mulimuli L. Fasimoli from a certain piece of land on which the latter recently built a home. Plaintiff claims that the site on which Mulimuli has built his home is a part of the Maiavatele family's communal holding known as "Vaigafi."

While Maae Paaka is the senior matai of the Maae family from the adjacent village of Taputimu and a named defendant herein, he has actually had very little to do with anything regarding these proceedings. Rather, his brother, Ai'i Maae, appears to have assumed the role of the senior matai as it was Ai'i who encouraged Fasimoli and his wife to continue building their home, notwithstanding the objections from Maiavatele; Ai'i also signed the relevant building permit application, as well as the separation agreement. These are ordinarily executed by the senior matai as owner of the building site on behalf of the family.

Findings

The site in question (some two and one half acres) was once in the exclusive use of the various pastors of the Christian Congregational Church who had been assigned over time to minister the Church in Taputimu. Accordingly, for many, many years, the land was left to the undisturbed possession of the incumbent pastor for his agricultural use.

However, with the emergence of a dispute over the land, the pastors gave up the land assignment, wanting no part in the controversy. Consequently, a number of people in the vicinity soon jockeyed to assert in one manner or another their respective family's ownership claim to the land. For example, members of both the Maiavatele and Maae families who live adjacent to the disputed land now argue that they have harvested the different crops growing thereon. At another time, in 1978, one Aiulu Manu, a member of the Maiavatele family, attempted to build a home on the area now disputed. He was stopped by his family matai because of the urging of Afoa, the senior matai of another family in the area. For reasons unknown, a confrontation over title Was then avoided. [14ASR2d25]

Indeed, a peculiar feature of this case has been the conspicuous absence of any direct and serious attempts on the part of the relevant senior matai to address and confront the question of ownership and pule. The matter has become a lingering uncertainty among those in .the vicinity. Despite various vague claims to the land, nobody has bothered to attempt title registration proceedings as might be normally expected. The evidence at best pointed to simulated or feigned motions on the part of the matai.

This reluctance to confront the issue of ownership was also very evident at the trial itself with the noticeable absence of the senior matai. Although Maiavatele filed this suit, he was not at trial to testify and present the basis of his family's claim ---he left this primary duty to lesser matai. Nor was Maae, who seemed content throughout to simply sit back and await the outcome of the proceedings. Maae did not attend any of the meetings called by the Office of Samoan Affairs, although his older brother Ai'i attended and spoke on behalf of the Maae family. (Ai'i unabashedly admitted that he had encouraged the disputed construction on the land in order to bring the dispute to a head before the courts. ) We also noted, with equal puzzlement, that the senior matai of the neighboring Te'o family, although not a party to the case but whose land, according to Maiavatele, was also included in Maae's survey, did attend the beginning of the trial but then did not choose to wait around and testify accordingly. Instead he suffered an untitled member of his family to do so rather poorly.

The resulting evidence, given by those who took the stand, was thoroughly contradictory .The testimony essentially amounted to one side asserting ownership and pule, which in turn was met by the other's equally earnest counter-assertion of ownership. If anything is clear from the testimony, neither side has had much of anything to do with the land within recent memory .(There is one grave on the land which, depending on who you listen to, is the final resting place of a deceased member of either the Maiavatele family or the Maae family.)

We find neither side to be convincing with their respective claims to use and occupation of the land prior to its assignment to the pastors. Indeed, in those few instances where the testimony was not contradictory, it tended to show that neither side, apart from Fasimoli's construction, had ever built before on the disputed land. Both sides have, however, had family members who erected structures and lived immediately adjacent to the disputed area, and it is this particular factor which seems to have been heavily relied upon a& a basis for each's claim. [14ASR2d26]

Conclusions

On the foregoing, we necessarily conclude that neither party has been able to show better title to the disputed land area nor a superior right to possession. In these circumstances, plaintiffs must be denied the relief sought herewith.

We unfortunately note that the uncertainty over the land's ownership will continue. It is equally unfortunate that this matter was not first addressed by the senior matai of the relevant families as opposed to its being hastily forced to a head by individual family members and then rather badly presented before the Court. We sincerely hope that the senior matai will take the opportunity to address their respective differences, if any, with regard to entitlement to the land, and if a resolution cannot be arrived at then the land should be offered for title registration pursuant to A.S.C.A. §§ 37.0101 et seq., whence the matter may be dealt with in rem.

Judgment accordingly. It is so Ordered.

**********

Hardco, Inc. v. Lutali,


HARDCO Inc. dba HARDY CONSTRUCTION, Plaintiff

v.

A.P. LUTALl and SUSANA LUTALl, Defendants

CA No. 111-88

High Court of American Samoa
Trial Division

January 16, 1990

__________

Contractor who agreed to use materials "of the highest quality," and who subsequently allowed buyers to choose from a variety of materials without any suggestion that the materials they chose would result in an increase in the contract price, either knew or should have known that the buyers would understand "highest quality" materials to include the particular materials they were being shown; the contract was therefore enforceable in accordance with the buyers' understanding that the contract price included the materials they selected. Restatement of Contracts (Second) § 20(2).

Where contractor agreed to make improvements on a house for "approximately" $75,000, and the amount actually billed and paid was slightly I~ss than ten per cent over this amount, this amount was in accordance with the contract price and buyers were not entitled to a refund of the amount paid in excess of $75,000.

Where invoices received and paid by buyers suggested that the contractor's actual bill would be well over the original contract price, but buyers already had a massive investment in the project and were in no position to call it off, neither their payment of invoices which did not bring their total payment above the contract price nor their silence in the face of subsequent invoices which did far exceed the contract price could fairly be regarded as consent to a dramatic and one-sided modification of the contract.

In the absence of changed circumstances or other special equitable considerations, there was no consideration for a modification in the contract price where contractor proposed to do nothing for the higher price that he was not already obliged to do for the original contract price. Restatement of Contracts (Second) §§ 73.

Where parties agreed that contractor would undertake work not included in the original contract, but did not discuss any modification in the contract price, it was unreasonable for the buyer to assume that there would be no extra charge, and just as unreasonable for the contractor to assume that the buyers would pay whatever he asked.

Where parties did not even attempt to reach an agreement on the price of modifications to a building under construction, but instead each party chose to proceed in deliberate disregard of the materially different interpretation which he surely knew the other party would eventually place on the arrangement, there was no contract and no contractual basis for resolving a subsequent dispute over the price to be paid for the modifications; rather; the court must apply the doctrine of quantum meruit to award the contractor the value of the benefit conferred on the buyer. Restatement of Contracts (Second) §§ 20(1).

Where it was not clear that extra expense to a contractor had increased the value of the benefit conferred upon the buyer, and the contractor's equitable claim to compensation was substantially weakened by his failure to apprise the buyers of the extent of such extra expense, contractor's recovery under the doctrine of quantum meruit would be limited to the value of the benefit conferred. [14ASR2d2]

Measure of damages for defective performance, where cost of repairing the defect is so high that a reasonable person would prefer to make cosmetic changes and live with the result, is not the cost of repairing the defect but the difference in value between the benefit conferred by the defective performance and the benefit that would have been conferred by the promised performance.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendants, Togiola T .A. Tulafono

Plaintiff (hereinafter sometimes referred to as "Hardy") built an extension or addition to a home belonging to defendants A.P. and Susana Lutali. The Lutalis made payments in a total amount of $82,458 but declined to pay several subsequent invoices sent by plaintiff in a total amount of $47,986. Hardy brought this action to recover the unpaid balance.

The Lutalis contend that Hardy agreed to do the entire job for $65,000; that the work was substandard in various ways; and that Hardy fraudulently billed them for labor and materials not actually employed in the building of the addition. By way of counterclaim they demand $97 ,000 in compensation for the damage they claim to have suffered on account of these alleged breaches of the contract, as well as for punitive damages and attorney fees.

I. Facts

We find the facts to be as follows:

1) In late 1985 or early 1986, Mr. and Mrs. Lutali met with Don Hardy, the managing officer and co-owner of the plaintiff corporation, to discuss the possibility of his building an extension to their home in Ili'ili. A.P. Lutali and Don Hardy had been friends for several years.

2) The Lutalis initially wished only to extend by a few feet the length of the existing bedrooms on their one-story house, At the meeting with Mr. Hardy, however, the discussion eventually focussed on the possibility of a discrete two-story addition containing several new rooms. [14ASR2d3]

3) At this meeting or shortly thereafter, Mr. Hardy may have given a verbal estimate of $65,000 for the two-story addition.

4) On May 27, 1986, Mr. Hardy delivered to Lutali's office a letter estimating that the addition would "take three months to complete and would cost approximately $75,000. " The letter also stated that the addition "would be constructed on the same design as the present house" and that "[a]s all materials would be ordered from the U.S.A., the quality would be of the highest."

5) In June or July of 1986, Mr. Hardy arranged for plans to be drawn up depicting the proposed addition. Although it is not clear whether the Lutalis actually reviewed these plans, the preponderance of the evidence is to the effect that they at least had the opportunity to do so.

6) Don Hardy testified that the initial plan for the addition (on which he says his $75,000 estimate was based) called for a structure 48 feet long, and that at some point the Lutalis ordered the length extended to 53 feet so that it would be the same as the length of their existing house. While a 48 foot extension may have been discussed at some early stage of the negotiations, the evidence does not support a fmding that a change in the size of the proposed structure was made between May V when Mr. Hardy gave the $75,000 estimate and July when the plans were drawn up. The voluminous documentary evidence with which we have been presented includes no plans for a 48-foot structure and no other documentary evidence reflecting a change in the parties , understanding. Neither defendant A.P. Lutali nor witness Epenefa Te'o, the person retained by Hardy to draw the plans, recalls a revision during this period. We therefore find that the structure for which Mr. Hardy ordered plans to be drawn in June or July of 1986 was the same structure he had offered on May 27 to build for approximately $75,000.

7) In July or early August Mr. and Mrs. Lutali met with Don Hardy and his wife, the other co-owner of the plaintiff corporation, to discuss flooring materials, bathroom fixtures, and so forth. The Lutalis selected materials of relatively high quality, such as parquet hardwood floors and ceramic tiles. Neither A.P. Lutali nor Don Hardy recalls any discussion of the price of these materials. Hardy testified that he assumed the Lutalis understood that their selection of such materials would increase the price of the structure; Lutali testified that he believed he was entitled to high quality materials for the price that had already been agreed upon. [14ASR2d4]

8) During this period the parties discussed having Hardy renovate the existing portion of the Lutali home. The proposed renovations included a master bathroom, a "ladies' lounge," and improvements to the kitchen.

9) On August 7, 1986, Don Hardy wrote a letter to Susana Lutali enclosing a list of the materials he had ordered for the addition. The total cost to the Lutalis was to be $50,905.17. Hardy noted that it was "very possible" that some material might be "leftover" and therefore available for use on the renovations to the existing structure, and also that he "might have missed something which we can get on the next shipment when we order for your master bath, Ladies lounge, and the kitchen. "

10) At some time between August 7 and October 7, the Lutalis paid the $50,905 invoice for materials and an additional $9,000 for freight.

11) Construction on the addition began in late August or early September.

12) On September 15 Hardy sent the Lutalis an additional invoice in the amount of $13,276 ($6,516 for additional materials and $6, 760 for labor).

13) On October 4 Hardy sent yet another invoice for $9,277 ($677 for materials and $8,600 for labor).

14) On October 7 Hardy furnished the Lutalis with a written estimate of the entire amount that would be necessary to finish both the two-story addition and the renovations to the existing structure. This estimate was for $148,825, not including the $59,905 the Lutalis had already paid. It breaks down as follows:

Material, Labor, and Freight already billed for the addition (including the $59,905 already paid): $ 82,458
Material and freight for remodeling the existing structure (apparently for materials already ordered or about to be ordered by Hardy from his supplier in the United States): 81,272
"Estimated Material & Labor to complete job": 45,000
Total: $208,730
Minus amount already paid: -59.905
Total cost to complete both projects: $148,825

[14ASR2d5]

15) It was not made clear on this invoice how much of the $45,000 "to complete job" was for completing the two-story addition and how much was for the proposed renovations to the older part of the house. Taking account of the evidence that some progress had been made on the addition whereas the renovations were barely begun, we estimate that no less than $10,000 and no more than $20,000 of the remaining $45,000 was to complete the addition. Thus Hardy's revised estimate of the total cost of the addition, as of October 7, was between $92,458 and $102,458.

16) Shortly after receipt of the October 7 estimate, the Lutalis told Hardy they could not afford the proposed renovations to the pre- existing structure. They directed him to proceed with the addition but not with the renovations. (We have insufficient evidence to determine whether the parties ever had a contract with regard to the proposed renovations to the pre-existing structure. It appears that Hardy had begun work on them prior to October 7, yet it also appears that the Lutalis made it clear they did not want the renovations as soon as they were given a firm estimate of the cost. Since neither party seeks relief for the breach of any agreement involving renovations to the pre-existing structure, we need not conclude whether there was such an agreement.)

17) During October the Hardys paid the September 15 and October 4 invoices described in paragraphs 12 and 13 above. This brought the total amount they had paid to $82,458.

18) Also in or around October , the Lutalis inspected the addition and decided that the bedrooms in it were too small. They therefore ordered Hardy to extend the width of the addition by four feet. (The new dimensions were to be 30' x 53' rather than 26' x 53'.) Hardy testified that this change increased the total cost of the project by a large (although unspecified) amount, since the structure was already substantially built; it was necessary not only to knock out walls and build new ones, but also to move the pillars that supported the second floor . Hardy also testified, however, that he did not discuss the additional cost with the Lutalis but simply assumed they would pay whatever the cost turned out to be. Lutali, on the other hand, testified that he assumed the [14ASR2d6] changes would be included in the original price since they were necessary to make the addition conform to its original purpose, which was to have larger bedrooms.

19) Hardy continued working on the addition until February of 1987.

20) Hardy submitted additional invoices on October 31, 1986; December 2, 1986; January 6, 1987; January 19, 1987; February 1, 1987; and February 28, 1987. The total amount of these invoices was $47,986. Of this amount $14,266 was for material (including freight) and $33,720 was for labor. None of these additional invoices were paid by the Lutalis.

21) Further communication between the parties consisted of several inquiries by Don Hardy about the unpaid invoices and at least three letters from Lutali (May 11, June 18, and August 10, 1987) about defects in the construction. On one occasion, according to Hardy, he attempted to visit Lutali at his office and was shown the door. This lawsuit followed.

22) The Lutalis contend that Hardy billed them for materials which he used on other projects. Aside from one instance in which Hardy concedes having billed the Lutalis for $200 to $300 in freight charges that should have been billed to another customer, the evidence does not support this contention. The charge appears to have been inspired by this Court's opinion in Hardy v. Anderson, 9 A.S.R.2d 79 (1988), in which we found that Mr. or Mrs. Hardy had altered an invoice in order to make it appear that certain lumber had been used on one project rather than another. As it happens, the evidence in the present case reveals that the phantom lumber in Hardy v. Anderson was the very lumber that had already been billed to the Lutalis. While it is always gratifying to be treated to a surprise visit to old stomping grounds ---and doubly gratifying to be presented with new evidence to support old conclusions ---the Court is unable to find this evidence particularly helpful to the present defendants. Rather, it supports Hardy's present position that the lumber billed to the Lutalis, or at least the great majority of it, was the same lumber actually used on the addition to their house.

23) Specifically, Hardy submitted invoices to the Lutalis for materials and freight in the total amount of $81,364. Hardy testified that he charges his customers a "retail" figure equal to about 133% of the cost of materials to him. The invoices to and from Hardy reveal that he [14ASR2d7] charged the Lutalis amounts varying from 116% to 192% of the cost of particular items to him. Assuming that all the items billed to the Lutalis were actually used on the project, it would appear that the materials for the addition cost Hardy between $50,000 and $60,000 including freight charges. With regard to fixtures and other items that are particular and identifiable, our examination of the invoices reveals that these items do correspond to the number apparently used in the addition.

24) The evidence does, however, support the Lutalis' contention that at various times during the course of the project Mr. Hardy and his employees carried off quantities of lumber and other building materials from the job site. Mr. Hardy himself testified that he took only about one truckload of lumber and that this was old lumber tom from the Lutalis' house in order to make doorways to the extension. The testimony of witness Mausa, the Lutalis' housekeeper who appeared to be an honest and relatively disinterested witness, was that the quantity was greater and included other materials. The preponderance of the evidence is to the effect that there were, as Mr. Hardy had originally estimated there might be, some lumber and other materials left over from the original shipment.

25) The evidence also supports the Lutalis' contention that Hardy billed substantially more for labor costs than the amount actually incurred. Company records show that the total amount paid to construction workers on the project was $11,194.05. The addition of a 12% surcharge (the figure Hardy used to estimate employer Social Security payments and other costs associated with the employment of these workers) brings the total labor cost to $12,537.34. In contrast, the amount billed to the Lutalis was $49,080. The $37,000 difference appears to have been allocated to payment of Mr. and Mrs. Hardy and members of their immediate family for supervisory and administrative services. (Mr. Hardy did supervise the project, although the best evidence is that he visited the site for only an hour or two each working day; the evidence of services performed by Mrs. Hardy in connection with the project are that she participated in one meeting with the Lutalis and performed general bookkeeping services for the company.)

26) The Lutalis' contention that the work was defective is supported by the evidence to the following extent:
a) Electrical problems that cost about $200 to repair.
b) Plumbing problems that cost $262 to repair.
c) A leaking septic tank. The repair bills for this item were commingled with bills for other projects, including the renovations to the [14ASR2d8] pre-existing portion of the house and the construction of a master bathroom adjacent to the addition, which the Lutalis apparently decided to have done by contractors other than Hardy. From the evidence be~ore us we can conclude only that the septic tank probably cost between $300 and $1,000 to repair.
d) Persistent leakage through the first-floor ceiling, caused by settlement of water on a deck adjacent to the second floor. The evidence is that this problem was caused by Hardy's failure to build the roof so as to overhang the deck, as provided by the plans for the project; by Hardy's failure to build the deck so as to slope slightly away from the adjoining wall; by Hardy's failure to provide protective "flashing" at the intersection of the deck and the exterior wall; and perhaps also by the addition of an extra layer of boards under the deck. (This last feature was requested by the Lutalis for cosmetic reasons; Hardy incorporated it without warning the Lutalis of any problems that might result.) This problem has resulted in water damage, principally to the acoustical tiles on the first-floor ceiling. Replacing the damaged tiles has cost the Lutalis about $196 for materials and several hundred dollars for labor . From the evidence of other construction costs submitted by both parties, we estimate that building a four-foot overhang along the 53-foot length of the roof and installing the flashing will almost certainly cost over two thousand dollars and almost as certainly less than five thousand; this range of figures is unfortunately the most precise estimate we can make on the present record.
e) A large crevice in the floor caused by the uneven laying of the foundation. Again, the evidence does not support a precise estimate of the cost to repair this problem. The lowest possible estimate ---based on what appeared to be the wildly optimistic testimony of an expert witness for Hardy to the effect that a plastic solution could be poured over the foundation so as to level it ---would probably run into thousands of dollars, taking into account not only the acquisition and pouring of such material but also the removal and replacement of 1,000 square feet of parquet tiles. This technique was unknown, however, to the Lutalis' expert witness; if it should prove impossible to repair the foundation without tearing it up and starting over, the cost could amount to many thousands of dollars.

27) Another problem, having to do with water welling up from under the foundation, has not been shown to have been caused by any defect in Hardy's design or workmanship. The problem did not appear until about two years after construction was completed, and the Lutalis, own expert witness conceded that it might be the result of causes unrelated to Hardy's work. [14ASR2d9]

From this evidence we conclude that Hardy originally contracted to build the Lutalis a 53' x 26' structure composed of the "highest quality materials" for "approximately $75,000," and should be held to this contract; that Hardy is nevertheless entitled to some compensation in addition to the contract price for the extra four feet of width added to the structure at the insistence of the Lutalis; and that the Lutalis are entitled to a reduction corresponding to the diminution in the value of the structure attributable to its several defects.

II. The Contract

The contract between the parties came into being when the Lutalis, having received Hardy's $75,000 written estimate, told Hardy to begin construction. This event occurred at the very latest in July or early August when the Lutalis and the Hardys met for the purpose of choosing the specific materials that would be used in the house.

Contrary to Hardy's contention that the Lutalis' choice of materials amounted to an implicit agreement to pay more than the contract price, it was perfectly consistent with the term of Hardy's offer providing that all materials would be "of the highest quality." Hardy testified that his $75,000 estimate was based on far less expensive materials, such as vinyl tile rather than wooden floors in the living areas. A reasonable consumer, however, can hardly be assumed to understand the term "highest quality materials" as including vinyl tile but not wood. In the Court's experience Mr. Hardy is the very first person who has ever suggested that a "highest quality" bedroom or living room floor might be made of vinyl; indeed, although there may be some flooring material that is generally regarded as of lower quality than vinyl tile, the Court is unable to name such a substance.

Mr. Hardy points out, however, that the phrase "the quality would be of the highest" must be construed in light of the modifying language, " As all material would be ordered from the U. S .A. " On balance, however, this does more harm than good to Hardy's case. While it is not syntactically impossible to read the language in question as making a distinction between high-quality "Made in the U .S.A. " vinyl living room floors and inferior Oriental ones, to a prospective buyer in American Samoa the invocation of the United States in connection with "highest quality" materials is far more likely to reinforce the impression that everything will be first-rate, not third-or-fourth-rate. [14ASR2d10]

In the present case, moreover, the Hardys showed the Lutalis catalogues containing materials that were of genuinely high quality. Having assured their customers that $75,000 would pay for a strucl:ure in which all materials would be of the highest quality, the Hardys knew or should have known that the customers might understand this assurance to include the particular materials they were being shown. Yet the Hardys made no suggestion to the contrary .The contract was therefore enforceable in accordance with the Lutalis' understanding that the $75,000 price included the materials they selected. See Restatement (Second) of Contracts §§ 20(2) (1981).

The Lutalis argue that they are accordingly entitled to a refund of the amount they paid Hardy in excess of the contract price. It is important to notice, however, that the estimate was for "approximately" $75,000. The Lutalis paid Hardy $82,458, slightly less than 10% over the estimate. If both parties had otherwise performed in accordance with the original contract ---if there had been no changes and no defects --- we would hold the $82,458 that was billed and paid to be in accordance with the contract price of "approximately" $75,000.

Hardy contends, on the other hand, that by receiving and paying invoices suggesting that the actual cost of completing construction would be well over the $75,000 estimate, the Lutalis implicitly agreed to pay whatever the cost might eventually turn out to be. This contention is at odds with the facts and also with the law. The initial invoice received by the Lutalis on August 7 was for $50,905 plus an unspecified freight charge. This invoice appeared to be for substantially all the materials that would be necessary. It was not unreasonable to assume that the labor plus freight and any remaining materials would cost no more than $30,000 or so. (Construction was supposed to take only three months; Hardy's actual labor costs over a somewhat longer period amounted to about $12,000.) By late September or early October, when the Lutalis had reason to believe that Hardy's bills might substantially exceed $75,000, they already had a massive investment in the project and were in no position to call it off. Under these circumstances neither their payment of two invoices which did not bring their total payments beyond the original estimate of "approximately $75,000, " nor their silence in the face of invoices which did far exceed the contract price, can fairly be regarded as consent to a dramatic and one-sided modification of the contract.

There was, moreover, no consideration for such a modification in the absence of changed circumstances or other special equitable [14ASR2d11] considerations. By paying $82,458 the Lutalis had already fully performed their side of the bargain whereas Hardy proposed to do nothing for $100,000 that he was not already obliged to do for approximately $75,000. "Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration...." Restatement (Second) of Contracts, supra, at § 73; see Lingenfelder v. Wainwright Brewery Co., 15 S. W. 844 (Mo. 1891).

III. Quantum Meruit

Somewhat later in October, however, the Lutalis ordered Hardy to undertake additional work that was not included in the original agreement. The structure being erected was 53 feet long by 26 feet wide, in accordance with the plans; the Lutalis directed that it be extended so as to be 30 feet wide.

Defendant A.P. Lutali testified that this change was necessary in order to provide large bedrooms as originally contemplated, and that he therefore assumed Hardy would make the change without increasing the price. Asked whether he had seen the plans which had been drawn up in July, and which clearly indicate the room dimensions to which he later objected, the witness said he did not recall but that he does not really understand plans. Lutali, however, is a highly intelligent man and a licensed legal practitioner who conducted for many years an extensive practice in the area of real property law. At the time of the events involved in this lawsuit he was serving as Governor of the Territory. Even if he did have difficulty reading the plans, he knew or should have known that the construction he was about to order would attempt to replicate them and that it was therefore important to take such steps as were necessary to know what was in them. He surely understood that the two-story addition was different in many important ways from the extension he had initially discussed with Hardy, and it was unreasonable simply to assume that any particular feature of the original concept was incorporated into the final plans.

It was perhaps even more unreasonable for the Lutalis to assume in October ---after the October 7 invoice had given them reason to know of Hardy's desire to do business on a "cost-plus" basis rather than in accordance with the original estimate ---that Hardy would tear out the exterior walls he had already built, add 424 square feet of floor space, and rebuild the walls, all at no extra charge. [14ASR2d12]

It was just as unreasonable, however, for Hardy to assume that the Lutalis, who had recently cited financial reasons for cancelling their plans to renovate the older portion of the house, had agreed to a new contract by which he would add four feet to the new addition and i:hey would pay whatever he asked.

With regard to the work involved in this four-foot extension, the parties did not even attempt to reach an agreement on the price; instead each party chose to proceed in deliberate disregard of the materially different interpretation which he surely knew the other party would eventually place on the arrangement, each apparently believing that it would be strategically preferable to resolve this difference after the work was done. The result was that the parties never made a contract with respect to this portion of the work. See Restatement (Second) of Contracts, supra, at §§ 20(1).

Accordingly, the revision ordered by Lutali affords no contractual basis for Hardy's claim that Lutali owes $47 ,986 over and above the $82,458 he has already paid. (This is especially true in light of the October 7 invoice, which reveals that Hardy was already well over the original budget before Lutali ordered the revision; a substantial portion of the $47 ,986 now demanded, therefore, has nothing to do with the revision and cannot possibly be justified by reference to it.) It does not follow, however, that the Lutalis get the extra 424 square feet for free. Rather, the court must apply the doctrine of quantum meruit to award Hardy the value of the benefit conferred on the Lutalis by the work done beyond that required by the original contract. Cf Hardy v. Anderson, supra at 83.

The only evidence we have of the benefit conferred by the additional work is the value the parties agreed to place on the work originally scheduled. If a 53' x 26' two-story addition is worth approximately $75,000, then an identical structure approximately one- sixth larger (53' x 30') should be worth about $12,500 more. Hardy might also be entitled to greater compensation for revising a structure that was already substantially built than if he had simply built the extra square footage from the ground up, since the cost of construction ---and therefore, arguably, the value of the services rendered ---was greater. See Evans v. Mason, 308 P.2d 245 (Ariz. 1957). It is not clear, however, that the extra expense to Hardy increased the value of the benefit conferred upon Lutali, which is the traditional measure of damages under quantum meruit. See Hill v. Wax berg, 237 F.2d 936, 939 (9th CiJ;. 1956) ("[R]estitution is properly limited to the value of the [14ASR2d13] ben,efit which was acquired.") In any case, Hardy's equitable claim to compensation beyond the value of the benefit acquired by the Lutalis is substantially weakened by his failure to apprise the Lutalis of the extent of the work that would be entailed by the revision they had requested. While it might go without saying that the walls would have to be torn out and rebuilt, there was no reason to assume that the Lutalis would understand that the structural supports for the whole second floor would need to be moved.

IV. Offsetting Damages

Depending on the resolution of these questions, the revision would appear to entitle Hardy to at least $12,500 and perhaps as much as $20,000. Against such entitlement, however, it is necessary to offset the damages suffered by the Lutalis on account of defects in the construction. While the evidence of the amount owed by Hardy on account of such damages is at least as imprecise as the evidence of the amount owing to Hardy for the revisions, the two figures are of the same order of magnitude.

On the present record we cannot conclude that Hardy is entitled to quantum meruit recovery beyond the $82,458 already received, since we have insufficient evidence on which to fmd that the value of the extra services he performed exceeds the amount of the damages suffered by the Lutalis on account of Hardy's defective performance. Nor can we conclude, however, that the Lutalis have proved damages in excess of the benefit conferred on them by the additional construction.

Preservation of the status quo, aside from being practically compelled by the rule that each party bears the burden of proving his own damages, also seems a just result from the standpoint of all parties. The Lutalis have already spent between $1,000 and $2,000 to repair defects in Hardy's performance. (This estimate excludes amounts spent for such items as the new master bathroom and the "ladies' lounge," which were not part of the addition or of this case.) By spending another $2,000 to $6,000 they can probably repair all the defects except the crevice in the floor. They will then have paid from $85,000 to $90,000 for a building that is one-sixth larger than the one they originally agreed to purchase for "approximately" $75,000, but which has an uneven floor. If it turns out that the floor can be fixed for an additional two or three thousand dollars, they can have a flawless building one-and-one-sixth times as large as the one they originally agreed to purchase, for approximately one-and-one-sixth times the amount they agreed to pay. [14ASR2d14]

If the cost of repairing the defect in the floor should prove so high that a reasonable person would prefer simply to make whatever cosmetic repairs are possible and live with the result, then the Lutalis will be left with an imperfect but habitable structure for a somewhat lower price. In such a case the measure of damages for defective performance is not the cost of repairing the defect but the difference in value between the benefit conferred by the defective performance and the benefit that would have been conferred by the promised performance. See Jacob & Youngs v. Kent, 129 N.E. 889, 891 (N. y .1921) (Cardozo, I.):

The owner is entitled to the money which will permit him to complete, unless the cost
of completion is grossly and unfairly out of proportion to the good to be attained. When
that is true, the measure is the difference in value.

Nor is a denial of further payment particularly harsh toward Hardy. The record reflects that Hardy's total expenses, excluding payment to the Hardys themselves, were between $62,000 and $72,000 for all work including the additional 424 feet. Their compensation for their own efforts in connection with the Lutali project, therefore, is between $10,000 and $20,000. They also appear to have recovered an indeterminable quantity of unidentified excess building materials. While perhaps not handsome by the standards of the construction industry, this measure of compensation is hardly unfair in light of the serious problems that developed with the Lutali project.

V. Order

Accordingly, both the complaint and the counterclaim are dismissed.

It is so ordered.

*********

Amerika Samoa Bank; Pacific Reliant Industries, Inc. v.


PACIFIC RELIANT INDUSTRIES, INC., Plaintiff

v.

AMERIKA SAMOA BANK, A Banking Corporation,
MALUA HUNKIN an individual and dba PARADISE
DEVELOPMENT COMPANY, AMERICAN SAMOA
GOVERNMENT, and DOES I-V, Defendants

High Court of American Samoa
Trial Division

CA No. 128-88

February 1, 1990

__________

Under the Uniform Customs and Practice for Documentary Credit a ("UCP"), a bank asked to pay a letter of credit has a reasonable time to examine the documents, but if it decides not to pay, must promptly notify the presenter or beneficiary of the discrepancies on which refusal is based and whether it is holding documents for the presenter or returning them. UCP arts. 16(c), 16(d).

UCP provisions requiring a bank which refuses to pay a letter of credit to promptly notify the presenter of the grounds for refusal promote the cure of documentary deficiencies before the letter of credit expires.

Issuing bank which has not promptly notified a party presenting a letter of credit of deficiencies in the documents and whether it is holding them for presenter or returning them may not use such deficiencies as a basis for refusing to pay the letter of credit.

"Reasonable time" to examine documents under the UCP is three banking days.

Notice to a presenter stating that a letter of credit was being refused but not specifying discrepancies in the documents or what was being done with the documents is inadequate notice under UCP.

UCP provisions are designed to deter banks issuing letters of credit from failing to timely assert any deficiencies in the related documents. UCP arts. 16(c), 16(d), and 16(e).

UCP provisions are meant to ensure that stalling and warning of banks issuing letters of credit does not blunt the effectiveness of such important tools of international commerce. UCP arts. 16(c), 16(d), and 16(e).

UCP art. 16(d) requires a bank which refuses to pay a letter of credit to notify the party which actually submitted the documents of its refusal; it does not divest the party in whose favor the letter was issued of its rights under the UCP. UCP art. 16(d).

Customer for whose benefit a bank issued a letter of credit can waive any nonconformities in the related documents. [14ASR2d42]

UCP art. 12(e) does not provide a basis for awarding attorney's fees.

Before KRUSE, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Roy J.D. Hall Jr.
For Defendant Amerika Samoa Bank, William H. Reardon
For Defendant Hunkin, Gata E. Gurr

On Motion for Summary Judgment:

Introduction

Plaintiff, PACIFIC RELIANT INDUSTRIES INC. (hereinafter PACREL), has filed a motion for summary judgment against defendant AMERIKA SAMOA BANK (hereinafter A.S.B.). The parties are not in disagreement on the essential facts; they disagree on what legal result should follow. A.S.B. established on behalf of its customer PARADISE DEVELOPMENT COMPANY (hereinafter P.D.C.), its "irrevocable standby letter of credit" in favor of PACREL "for the account of Paradise Development Company, Inc., to the extent of Three Hundred Thousand and No cents ($300,000.00 U.S.)." As is standard in such situations, the letter of credit enabled P .D.C. to purchase construction materials from PACREL in Oregon by relying on the bank's credit. The "standby" feature of the letter of credit means that the bank is not called upon to honor a draft until and unless, for some reason, the customer has failed to pay what it owes.

Two virtually identical letters of credit were issued, the first on August 12, 1987, and the second on October 19, 1987. The second was apparently issued because the first letter of credit expired in December of 1987 and P.D.C. anticipated requiring the use of the credit facility for a longer period. Accordingly, the second, or renewed, letter of credit contained the extended expiry date of March 15, 1988. Both instruments, which were drafted and signed by the A.S.B., contained the following provision: "This credit is subject to the uniform customs and practice for documentary credits (1983 Revision) International Chamber of Commerce Documents No. 400." Plaintiffs Exhibits A and B. The Uniform Customs and Practice for Documentary Credits, customarily referred to as the UCP or Uniform Customs, embodies an effort by international bankers at consensual regulation. Prepared under the [14ASR2d43] auspices of the International Chamber of Commerce, the UCP reduces to codified foml the customs and practices of the mercantile world relating to letter of credit transactions.

The business arrangement broke down early in 1988 when PACREL apparently did not receive payment for certain invoices. PACREL then attempted to fall back on the letter of credit and on February 23, 1988, notified A.S.B. of the default on the invoices. It is unclear when exactly the first fom1al demand for payment was made to A.S.B. Exhibit El, a telex to A.S.B. from the Hong Kong and Shanghai Banking Corporation of Portland, Oregon (PACREL 's bank, hereinafter the "Hongkongbank"), dated March 8, 1988, indicates that A.S.B. had received the documents by February 29, 1988. A.S.B.'s opposition to the motion for summary judgment claims that they were received on March I, 1988. On March 9, 1988, the Hongkongbank telexed A.S.B. directing the latter's attention to the requirements of the UCP ---quoting in part from Article 16 (c), (d), and (e) ---regarding the issuing bank's duty to timely notify refusal and reasons of refusal or otherwise be estopped thereafter from claiming any deficiencies with the documents. A.S.B. did not respond until March 10, 1988, when it telexed the Hongkongbank that it would not honoi the letter of credit because PACREL had not complied with the terms of the letter of credit. The nature, however, of the noncompliance was not specified. On the following day, March II, 1988, the Hongkongbank informed A.S.B. by telex that it had received a letter by fax from P .D.C. (A.S.B.'s customer) accepting any and all discrepancies in the documents. On March 16, 1988, the day after the letter of credit expired, A.S.B. 's attorney wrote to Hongkongbank in the "hope of clarifying the situation [presumably of dishonor] for your bank." The Court has reviewed the contents of this letter against the terms of the letter of credit, and we are none the wiser as to the exact nature of the nonconformities giving rise to dishonor . However, in opposition to the motion for summary judgment A.S.B. has raised the claim that the documents presented by P ACREL did not comply with the terms of the letter of credit in that a "copy" of the bill of lading was submitted when the "original" was required by the terms of the letter of credit. A.S.B. accordingly argues that a question of fact remains for trial. (If in fact the documents presented to A.S.B. conformed to the letter of credit requirements, then A.S.B. of course has no defense.)

PACREL, on the other hand, submits that it must nonetheless prevail even assuming for the sake of argument that the documents were at variance with the terms and conditions of the letter of credit. It [14ASR2d44] contends that under the terms of the UCP, which were expressly incorporated into the letter of credit by A.S.B. 's own draftsman, A.S.B. was precluded from claiming that the documents were not in accordance with the terms and conditions of the letter of credit because of its failure to assert noncompliance in the timely manner required by the UCP. Such failure, it is further argued, constitutes A.S.B.'s acceptance of any deficiencies.

Alternatively, PACREL also claims to prevail because A.S.B. 's customer P.D.C. accepted any deficiencies in its March 11, 1988, letter to Hongkongbank.

To these claims A.S.B. raises two defenses: 1) PACREL does not have standing to make a claim based on the UCP; and 2) P.D.C could not waive the deficiencies for the bank.

Discussion

The first inquiry is whether any claim exists under the UCP , and, if so, whether A.S.B. acted in conformity with the requirements of the UCP, specifically with Articles 16(c) (1) and 16(d). (2) Articles 16(c) and 16(d) give the A.S.B. a reasonable time to examine the documents; however, once the bank has decided to refuse a request for payment on [14ASR2d45] the letter of credit, the bank must give notice of this without delay. The notice must state the discrepancies and state whether the bank is holding the documents for the presentor or returning them. This provision promotes the cure of documentary deficiencies before the letter of credit expires. Bank of Cochin Ltd. v. Manufacturers Hanover Trust, 612 F. Supp1533, 1542 (D.C.N. Y. 1985), aff'd, 808 F.2d 209 (2nd Cir. 1986); Marino Industries v. Chase Manhattan Bank. N.A., 686 F.2d 112, 118 (2nd Cir. 1982). If the bank does not comply with 16(c) and 16(d), then the succeeding 16(e) provides that any deficiencies may not be asserted. (3)

A.S.B. first runs afoul of Article 16(c)'s restriction of the period for consideration of documents to a "reasonable time". The UCP does not define a "reasonable time," but "[w]hen the UCP is silent or ambiguous, analogous UCC provisions may be utilized if consistent with the UCP." Bank ofCochinLtd v. Manufacturers Hanover Trust, 612 F. Supp at 1542. The Uniform Commercial Code (UCC) provides for a period of three banking days for an issuer to honor or reject a documentary draft for payment. UCC §§ 5-112 (1985). Here, A.S.B. received the demand for payment at the latest on March 1 and it telexed its rejection on March 10 to Hongkongbank. (4) This six-day delay .clearly exceeded a reasonable time. The reasonable time expired on March 4; therefore, even if A.S.B. had rejected the demand on March 7, the reasonable time would have already expired. This strict measure makes perfect sense in light of the fact that the clock is ticking on all letters of credit, and that it is impossible for a beneficiary to attempt a cure unless he receives notice of any rejection in a timely manner. It has been held in a similar situation, without relying on the UCP, that a failure to raise any objection within the three days waives all objections. Crocker [14ASR2d46] Commercial Services v. Countryside Bank, 538 F. Supp. 1360, 1363 (N,D. 111. 1981),

It is clear that A,S.B. also violated Article 16(d), which requires the rejection notice to state 1) the discrepancies and 2) whether the documents were being returned to the presentor or were being held at the presentor's disposal. Although the Hongkongbank received a notice of the rejection on March 10, 1988, that notice was not adequate under the UCP as it neither specifically listed the discrepancies nor informed A.S.B. whether the documents were being returned or being held. Furthermore, the March 16 communication to the Hongkongbank did not state what was being done with the documents. A.S.B. did not comply with Article 16(d).

As with Articles 16(c) and 16(d), A.S.B. does not contest noncompliance with the provisions of Article 16(e). Article 16(e) imposes the same penalty ---namely, preclusion from claiming noncompliance ---for violation of Articles 16(c) and 16(d). A.S.B. 's violation of 16(e), which provides an independent basis for summary judgment for PACREL, occurred when A.S,B. did not state whether it would return or hold the relevant documents as 16(e) also requires.

Although these provisions may seem technical, their obvious design is the deterrence of issuing banks from failing to timely assert noncompliance of documents. Indeed, these provisions incorporate a penalty for these very purposes. Bank of Cochin v. Manufacturers Hanover Trust, Co., 808 F.2d at 212.

If the documents in any respect do not conform to the terms of the credit,
the obligor bank must forthwith determine whether it will stand upon its
rights to reject the documents or whether it will waive the defect. It will not
do for bank or buyer to wait and ride the market. If it does so, it will have
waived its objection to nonconformity of the documents. Article 8 (now
Article 16 after the 1983 Revision) records the dual obligation of the obligor
who believes that documents do not conform to the terms of the credit.
Protest must be prompt; rejection must be unequivocal; and upon rejection
the documents must either be forthwith returned or the obligor must forthwith
represent that it holds them at the disposal of the presenter. [14ASR2d47]

Id. (quoting H. Hartfield, Bank Credits & Acceptances 232 (5th ed. 1974»». These strict rules are intended to ensure that letters of credit, which are important tools of international commerce, retain their effectiveness. If issuing banks were free to stall and waffle in their responsibilities, or lose track of crucial and possibly unique documents, the effectiveness of the letter of credit system in aid of international commerce would be seriously blunted.

We next turn to the question whether PACREL has standing to bring-this claim. A.S.B.'s argument that PACREL lacks standing to assert a claim under the UCP is not persuasive. The argument relies on Article 16(d), which states that if the issuing bank decides to refuse the documents, it must give notice without delay "to the bank from which it received the documents (the remitting bank), or to the beneficiary, if it received the documents directly from him." This language refers to giving notice; it does not, as A.S.B. contends, limit the issuing bank's obligation to only that party which actually presents the documents. Article 16 does not divest PACREL of its rights under the UCP merely because its bank, the Hongkongbank, presented the documents to A.S.B. A more reasonable construction of this language is that it requires A.S.B. to give "notice" of its refusal to that party which actually submits the documents. Were it otherwise, the applicability of the UCP would turn on the happenstance of whether a beneficiary or the beneficiary's bank or attorney actually presented the documents. By having its bank present the documents rather than doing so itself, PACREL did not surrender its rights under the UCP. (5)

Finally, we are of the opinion that P.D.C. could waive any nonconformities. It has been noted that "[w]aiver of non-conforming documents can also be found from statements by officials of the issuing bank or from customer authorization. " Bank of Cochin Ltd v. Manufacturers Hanover Trust, 508 F. Supp. at 1541 (emphasis added) (citations omitted). See also International Leather Distributors, Inc. v. Chase Manhattan Bank, 464F. Supp. 1197 (S.D.N.Y. 1979). Allowing a customer to authorize waiver of nonconforming documents should not [14ASR2d48] expose the issuing bank to any increased liability, since presumably the bank would have protected itself with some type of security before issuing the letter. Such customer authorization could also pre8e;rve business relationships in the face of unjustified refusal by the bank to honor legitimate claims on the letter of credit. In any event, UCP Article 16 provides a more than ample basis for this decision, and therefore additional discussion is not necessary for our purposes here.

Conclusion

Our conclusion that A.S.B. is precluded from asserting any discrepancies with the documents by virtue of its total failure to comply with the requirements of UCP Article 16 is necessarily dispositive of A.S.B. 's claim to factual issues concerning discrepancies with the documents. PACREL is entitled to judgment against A.S.B.as a matter of law. PACREL 's motion for summary judgment is granted; however, this opinion does not rule on PACREL's prayer for attorney's fees as no basis for that relief has been shown. (6)

It is so Ordered.

*********

1. UCP Article 16(c) reads: "The issuing bank shall have a reasonable time in which to examine the documents and to determine as above whether to take up or refuse the documents."

2. UCP Article 16(d) reads:
If the issuing bank decides to refuse the documents, it must give
notice to that effect without delay by telecommunication or, if
that is not possible, by other expeditious means, to the bank from
which it received the documents (the remitting bank), or to the
beneficiary , if it received the documents directly from him. Such
notice must state the discrepancies in respect of which the issuing
bank refuses the documents and must also state whether it is holding
the documents at the disposal of, or is returning them to, the presentor
(remitting bank or the beneficiary, as the case may be). The issuing
bank shall then be entitled to claim from the remitting bank refund
of any reimbursement which may have been made to that bank.

3. UCP Article 16(e) states:
If the issuing bank fails to act in accordance with the provisions of
paragraphs (c) and (d) of this article and/or fails to hold the documents
at the disposal of, or to return them to, the presentor, the issuing
bank shall be precluded from claiming that the documents are not
in accordance with the terms and conditions of the credit.

4. This portion of the discussion assumes that A.S.B.'s rejection was substantively sufficient- in accordance with UCP Article 16(d) -to constitute a rejection, in order to explore its timeliness.

5. Even if we did construe this provision of the UCP as the A.S.B. urges, PACREL would still have standing because it is clear that the Hongkongbank was acting on behalf of PACREL. Thus, as PACREL's agent, the Hongkongbank's actions may be imputed to PACREL. Curtis Go. v. United States, 262 U.S. 215, 222-23 {1923). Alternatively, the Hongkongbank could be viewed as PACREL's alter ego. See generally 3 Am. Jur. 2d Agency § 3 {1986) (citation omitted). In either case, PACREL has standing.

6. Counsel's reference to the provisions of UCP Article 12(e) ("Banks shall be responsible for any consequences arising from their failure to follow the procedures set out in the preceding paragraphs") as furnishing a claim for attorney's fees is at best desperate. UCP Article 12 is specifically concerned with "teletransmissions."

American Samoa Gov’t v. Tofiga,


AMERICAN SAMOA GOVERNMENT , Petitioner

v.

PETAIA TOFIGA aka AFOA SALANOA, Respondent

High Court of American Samoa
Trial Division

CA No. 9-90

January 26, 1999

__________

Territorial government, having taken a person into custody and sought his commitment on the ground that he was a danger to himself and others, had an obligation to provide adequate treatment for his condition.

Where territorial government had confined and sought judicial commitment of a person whose psychiatric condition could not be adequately treated within the territory , but had refused to refer him for treatment outside the territory because of the relatively short duration of his presence in the territory , court would order immediate referral for treatment; the respondent had a right to treatment not because; of his residential status but because of the government's decision to take him into its custody and to confine him pending recovery or remission.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Petitioner, John Wilks, Assistant Attorney General
For Respondent, Barry I. Rose, Assistant Public Defender

This is a petition by the Government for involuntary commitment of the respondent under A.S.C.A. § 13.1501 et seq. on the ground that he constitutes a danger to himself and others.

The Court heard testimony by the psychiatrist who has been treating the respondent. At the conclusion of this testimony the Court recessed so that respondent's appointed counsel could confer with his client. At the end of the recess counsel for respondent informed the Court that his client desires to accede to the petition for commitment, and that counsel agrees that such commitment would be in respondent's best interest provided that respondent is immediately provided with appropriate treatment. [14ASR2d31]

The treating psychiatrist testified that there is no inpatient facility in American Samoa wherein the respondent would not constitute a threat to himself and others. The Government therefore advises that it is necessary to confine respondent in the Tafuna Correctional Facility for an indefinite period of time if he is to remain in American Samoa. The treating psychiatrist also testified, however, that it is presently safe for the respondent to travel to Hawaii, where more extensive treatment facilities are available, provided that he is accompanied by a medical escort and also by an appropriate police escort. (The Court has been informed that Police Officer Suamataia Loi, who is related to the respondent and has a good rapport with him, would be an appropriate police escort.)

Accordingly, we conclude that the petition for commitment should be granted.

We further conclude that the Government, having taken the respondent into its custody and sought his commitment, has an obligation to provide adequate treatment for his condition, and that facilities for such treatment are not presently available in American Samoa.

It is therefore essential that respondent be immediately referred for off-island treatment in accordance with the Government's usual procedure for such referrals. The Government's tentative refusal to refer respondent for treatment, based on the relatively short duration of his most recent presence on island, must therefore be reversed. In the present case respondent has a right to treatment not because of his residential status but because of the Government's decision to take him into its custody and to confine him pending recovery or remission.

We therefore order that the respondent be referred immediately for off-island medical treatment. Assuming that such treatment will be in Hawaii, he should be transported there on the next available flight, provided that a medical escort and Officer Loi are available to accompany him and provided further that it can be arranged for respondent to be met at the Honolulu airport and cared for in a manner which in the opinion of the treating psychiatrist is appropriate to his condition.

This order is without prejudice to the right of the Government to seek compensation from, or to transfer respondent into the care of, the Veterans Administration or other agencies which may have a pre-existing obligation to care for the respondent. Efforts to seek such compensation [14ASR2d32] or transfer shall not, however, be allowed to delay the respondent's admission into an appropriate treatment facility, and the American Samoa Government shall take such responsibility for the expenses of respondent's treatment as is necessary to secure such admission. .

The Government is further directed to arrange for the immediate diagnosis and treatment of respondent's non-psychiatric medical condition.

It is so ordered.

*********

Fuimaono; Uiagalelei v.


UIAGALELEI IONA, Plaintiff

v.

A.U. FUIMAONO and ULUFALE SAFUE, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 24-85

February 21, 1990

__________

For a chief of one Samoan family to be buried on land of another family, while not unheard of, is hardly in the main stream of tradition; rather, the general and long standing custom is to place family graves on family land, to tend them carefully, and to rely on them as evidence of land ownership .

Evidence of a family tradition to the effect that the present possessors of land are beneficiaries of an ancient but revocable license from the family to whom the tradition belongs is insufficient, at least when the tradition is vigorously disputed and thinly corroborated, to overcome the presumption of ownership that comes with many years of possession.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Togiola T .A. Tulafono
For Defendants, Gata E. Gurr

Plaintiff objects to certain improvements made by defendants on a grave in which the defendants' parents are buried. Plaintiff claims that the grave is on Uiagalelei land and was put there by permission of a previous Uiagalelei titleholder who had been a friend of defendants' father. Defendants say the grave is on Ulufale land.

Each side relied principally on its own family's history or tradition with regard to the ownership of the land. The plaintiff and the two defendants also gave their own conflicting recollections of the events [14ASR2d50] surrounding the erection of the grave, the burial some years later of defendants' mother, and the maintenance of the surrounding area.

The grave is located on the malae in Futiga. The Uiagalelei family and the Ulufale family own adjoining tracts of land on the malae. The whole dispute between the parties amounts to whether the boundary is located a few feet to the east of the grave site, as Uiagalelei contends, or a few feet to the west, as the Ulufale side claims.

The grave itself is the only object on this part of the malae. Each side recollects former monuments tending to support its own claim. Uiagalelei testified that the grave was once in the middle of his family's traditional burial ground but that a few years ago the family began burying its people in another place and stopped tending the old graves, of which no evidence remains. Ulufale and Fuimaono have no recollection of any such Uiagalelei graves but remember a low stone wall that used to separate the grave site from Uiagalelei land. They say this boundary was destroyed or removed by Uiagalelei people. Uiagalelei, in turn, points to a former natural boundary consisting of trees, some of which he suggests were deliberately destroyed in the recent construction of a new Ulufale guest house.

On balance we cannot conclude that plaintiff has carried his burden of proof. For a chief of one family to be buried on land of another family, while not unheard of, is hardly in the main stream of tradition. Rather, the general and long standing custom is to place family graves on family land, to tend them carefully, and to rely on them as evidence of land ownership. That the Uiagalelei family would have permitted the burial of someone from outside the family in its own burial ground is perhaps plausible; that it would then abandon its own adjacent graves, allow all evidence of them to disappear, and yet expect to be regarded as the owner of land on which the only existing monument was the grave of an Ulufale chief, is most implausible. Similarly, we can understand plaintiff s contention that defendants might have sought a burial site in this general area for their late father, who had been holding the Fuimaono title of Aoloau, rather than attempt to bury him on the remote North Shore of Tutuila where the village of Aoloau was then located. We cannot understand, however, why defendants would have wanted to bury their father at this precise spot, assuming it to have been on plaintiffs land, when there was an equally serviceable area indisputably belonging to the Ulufale family just a few feet away. (The decedent was not only a Fuimaono but also a member of the Ulufale family and a former Ulufale titleholder.) [14ASR2d51]

In sum, the most persuasive evidence in the record before us is the grave itself an4 its erection by the Ulufale and Fuimaono families almost fifty years ago. Family tradition to the effect that the present possessors of land are the beneficiaries of an ancient but revocable license, flowing from the goodness of the heart of the progenitor of the family to whom the tradition belongs, is perhaps the single most common argument in land cases before the High Court. At least where such tradition is vigorously disputed and thinly corroborated, it is insufficient to overcome the presumption of ownership that comes with many years of possession. Tupuola v. Moaali'itele, 1 A.S.R.2d 80 (1983). The preponderance of the evidence is to the effect that the boundary between the Ulufale and Uiagalelei tracts is to the west of the grave site, which is therefore on Ulufale land. The requested relief must accordingly be denied and the action dismissed.

It is so ordered.

*********

Fealofa'i v. Reid,


CAROLINE GRISARD FEALOFA'I and MARCEL GRISARD,
Trustee, Plaintiffs

v.

EUGENE REM and TUPU REM, Defendants

High Court of American Samoa
Trial Division

CA No. 114-89

March 5, 1990

__________

Lease drafted by lessees' attorney, and agreed to by lessor who was unrepresented by counsel, which failed to specify most terms generally included in a contract of lease and which allowed the lessee to deduct credits from the rent in an amount which was neither agreed upon nor determinable by reference to the agreement, may have been too indefinite to constitute a legally binding contract.

If purported lease did not amount to a binding agreement, each party would nevertheless be entitled to quantum meruit recovery for any benefits conferred upon the other party; the lessor would be entitled to possession of the house and to its fair rental value for the time during which it had been occupied by the lessees, but only after compensating the lessees for any improvements they made which would be of benefit to the lessor.

By claiming many more thousands of dollars' worth of expenses as credits against rental payments than they were even arguably entitled to under a lease drafted by their attorney, and by refusing to pay rent until such time as these expenses should all have been exhausted, lessees put themselves in breach of the lease.

Where lessees' refusal to pay rent for several years was not based on a reasonable interpretation of the lease agreement, lessor was entitled to eviction. [14ASR2d58]

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiffs, Roy J.D. Hall Jr.
For Defendants, Afoafouvale L. Su'esu'e Lutu

This is an action for eviction. On March 20, 1985, plaintiff Caroline Fealofa'i and her late mother agreed to lease the defendants a parcel of land, along with the house that had been built upon it, for a term of ten to twenty years. (Although the lease speaks of Caroline Fealofa'i as the "lessor" and her mother Ruby Pritchard as the "landowner," the land actually belonged to a trust of which plaintiff Fealofa'i and her mother were the sole beneficiaries. Plaintiffs do not urge this as a ground for invalidity of the lease.)

At the time the lease agreement was made the construction of the house was not complete. The structure itself had been erected, but various important items including the windows, doors, floor covering, and interior ceiling remained to be installed. The lease agreement permitted defendants" to finish building. the house and then credit the costs to the rent of the house and premises at an amount of $300.00 a month until the full amount is credited. " The rental for the first ten years is $300 per month; defendants are given an option to renew for another ten years at $650 per month. Lessors further agreed to pay $1,000 "as an advance on rents."

Defendants began finishing the house almost immediately and completed the work in about three months. The improvements made by defendant were not limited, however, to items that can fairly be described as "building the house. " Much of the work done was designed to facilitate the conversion of the house into a laundromat. In early July of 1985 the defendants opened Luisa's Laundromat on the leased premises.

Also in July of 1985, the lease was amended to give defendants an option to renew for an additional twenty years at the rate of $1,000 per month. This amendment was insisted upon by defendant in exchange for making a further advance on future rentals (apparently another $1,000) to plaintiff Fealofa'i.

Beginning in late 1985 or early 1986, plaintiff and her mother began asking defendant Eugene Reid when they would begin receiving[14ASR2d59] regular rental payments. Reid responded that the amounts to be credited -~- cash advances plus the cost of improvements ---had not yet run out. On at least one occasion plaintiff and her mother demanded ,an accounting; defendant had his secretary give them a stack of receipts, which plaintiff says added up to $30,000 or $40,000. Defendant occasionally did give plaintiff Fealofa'i an additional "advance" on the rent; four "advances" ---at least some of which, on plaintiffs' view of the facts, should actually be regarded as partial payments of past due rent ---were made during 1986 and 1987 in a total amount of about $1,500.

Plaintiff Fealofa'i and her mother eventually consulted a lawyer. In June of 1988 he called defendant Eugene Reid and was referred to Mr. Reid's attorney. The record does not reflect what discussions, if any, the attorneys had, but on September 27, 1989, plaintiffs' attorney wrote to defendants demanding that they vacate the premises. On October 31, 1989, defendants' attorney responded that "[t]he amount of expenses in building the laundramat [sic] and cash advances comes out to a little over $21,000" and that defendants (who by then had been occupying the premises for about tour years without paying rent) still had $8,000 in credits left to deduct before any rent would be due.

This lawsuit followed. Shortly before trial, defendants submitted an accounting in which they claim that their credits amount to $17,050.80, including about $14,000 in building expenses and about $3,000 advanced to plaintiff Fealofa'i. At trial defendants conceded that $944.72 of the claimed building expenses were necessary only to fit the house as a laundromat, not to finish building it, and were therefore not creditable against the rent. If, however, defendants' estimate of $16,106.08 in credits is correct, then no rent was due until January 1990, the fifty-fourth month after construction was completed.

Plaintiffs contend, however, that most of the claimed building expenses were not to "finish building the house" but to establish and operate a laundromat. They claim that only about $4,000 (including about $2,500 in advances) should be credited, and therefore that the rent is nearly four years overdue.

This lawsuit could probably have been avoided if the lease agreement were not so very uninformative. The one-page document (actually only about fourteen lines) fails to specify most of the terms generally included in a contract of lease. In particular, it purports to specify a rental amount but does not really do so. As the present controversy reveals, the figure of $300 per month minus credits is [14ASR2d60]illusory unless the amount of the credits is agreed upon or at least determinable by reference to the agreement. The document neither specifies what amount the Reids were to spend to "finish building the house" nor provides information from which a reasonable range might be determined. This omission, together with the vast disparity in the parties' statements of their respective understandings of this essential term, suggests strongly that the lease was too indefinite to constitute a legally binding contract.

If there were never a binding contract between the parties, each party would nevertheless be entitled to quantum meruit recovery for any benefits he or she conferred upon the other party in the belief that there was a contract. Mrs. Fealofa'i would be entitled to possession of her house and to its fair rental value for the time during which it has been occupied by the Reids, but only after compensating the Reids for improvements they made that are or will be of benefit to her.

Even on the assumption that there was a valid contract, however, the defendants' broad interpretation of their right to "finish building the house" at plaintiffs' expense exceeded even the ample limits within which reasonable people might disagree about the meaning of that vague term. (1) By claiming many more thousands of dollars' worth of expenses than they were even arguably entitled to under the lease, and refusing to pay the rent until such time as these expenses should all have been credited, they put themselves in breach of the contract by mid-1988 at the very latest.

In the first place, defendants' accounting includes $3,101.50 for improvement not of the house but of the surrounding land. Perhaps the only thing that emerges clearly from an examination of the lease agreement is a distinction between the "house" and the "house and premises." Defendants are to lease the whole "house and premises" but may deduct only such expenses as are necessary to "finish building the house." Even so, a reasonable person might construe "finish building the house" to include such improvements to the surrounding premises as were necessary to prevent the house from being inaccessible or otherwise uninhabitable. It is undisputed, however, that the house was accessible from the road before these improvements were made. They appear to have consisted primarily of a parking lot for the laundromat.[14ASR2d61]

Similarly, certain other claimed expenses {beyond the $944.08 conceded by defendants at trial) appear to have been necessary not to finish building the house but to install a laundromat therein. For instance, defendants divide their expenses for plumbing materials as follows: $472.36 for such materials as were necessary to make the house suitable for general residential or business purposes, and only $25.97 for the specialized materials necessary to fit the house as a laundromat. Expenses for electrical materials are allocated $1,069.77 for general materials, $129.25 for laundromat materials. The Court's visual inspection of the house, however, revealed about thirty washing machines in all conceivable locations, all surrounded by pipes, wires, and fixtures that would be of no use anywhere but a laundromat, including at least one large pipe running above the floor through the center of the house. That pipe alone must have more than $25.97.

Moreover, the small amount allocated to establishment of the laundromat in defendants' accounting consists entirely of materials acquired at least two months after the laundromat had been open for business. The conclusion is inescapable that a substantial portion of the money spent on plumbing and electrical materials between April and early July of 1985, and also some of the lumber and miscellaneous hardware allocated to other categories in defendants' accounting, were expenses of the laundromat business and not fairly creditable against the rent. The total cost of materials now claimed by defendants (excluding materials for improving the land rather than the house) is $7,792.73. The most precise estimate we can make from the record before us and from visual inspection of the house/laundromat, giving the defendants the benefit of every conceivable doubt, is that the cost of laundromat-specific materials amounted to at least 10 per cent of the cost of all materials, or $779.27.

Even more disturbing are credits claimed by defendant for materials that appear not to have been used on the house at all. For instance, the 55 bags of cement purchased and credited in May and June of 1985 would appear to have been more than enough to do the cement work (a bathroom floor, steps at the three entrances to the house, and a top for a septic tank) which defendants' construction superintendent recalls. Defendants' accounting, however, includes an additional $757.35 for 150 bags of cement. Defendant Eugene Reid testified that the large expenditure on cement was justified because the house had a dirt floor when he acquired it and it was necessary to lay a concrete slab for the whole house. This was contrary to the testimony of plaintiff Fealofa'i and of defendants' own superintendent, who said that only the small [14ASR2d62] bathroom area needed a slab. The documentary evidence is also strongly against defendants' contention: although defendants' accounting dates the purchase of the 150 bags of cement on July 11, 1985, the invoice itself is dated July 11, 1986. This was over a year after the 1aundromat had opened for business and well after the completion of all cement work of which defendants produced any evidence.

Several other items purchased in 1986 or in late 1985 are included in defendants' accounting, all incorrectly listed as having been acquired in June or July of 1985: $522.48 for a large quantity of hack saw blades and rebars (allocated to a wooden partition that does not seem to have any hack saw blades or rebars in it); $13.45 for lumber; $47.92 for lumber and nails; $1.20 for indecipherable items; $69.75 for more indecipherable items.

Nor is it clear that all the materials acquired between April and June of 1985 were used on the house. Various invoices include a total of 25 gallons of paint costing about $250; the disputed house measures about 35' x 50' and consists almost entirely of one room; 25 gallons is a lot of paint; yet an invoice for $938.45 (incorrectly listed on defendant's accounting as $1,105.59) from a professional house painting company indicates that "we applied paint both interiorly and exteriorly" and includes $557.59 for "materials. " At the rate defendants are seeking to credit paint against rent, that would be another fifty gallons. The house painters having supplied their own paint, we cannot conclude that another large quantity of paint was also used on the house from the bare fact that this other paint was acquired by defendants (who own other businesses besides the laundromat) at about the same time.

Finally, defendants' claimed labor costs of $1,873.40 are documented only by reference to the names of the persons who were paid and the dates on which they were paid. Since labor as well as materials were expended on fitting the house as a laundromat, improving the surrounding land, and other purposes extrinsic to "finish[ing] building the house," the claimed credit for labor must be reduced in the same proportion as the claimed credit for materials.

In conclusion, we find that the defendants are entitled to the following credits against rent:

Materials      
Total amount claimed, April-July 1985 ("Phase I" and "Phase II"):

$10,894.23

  [14ASR2d63]
Minus amount spent on land rather than house: -3,101.50    
Minus estimated amount spent between April and July 1985 to install laundromat rather than to finish building house:

-779.27

   
Minus other amounts that do not appear to have been spent to finish building the house: -1.662.00    
       
Credit for Materials:   $5,350.66  
       
Labor      
Claimed credit for labor:

$1,873.40

   
Credit for materials allowed/claimed: x (5350.66/10.894.23)    
       
Credit for labor:   $920.11  
       
Amounts Paid to Plaintiffs      
Total Amount Claimed:

$3,338.45

   
Minus 2/26/85 payment apparently related to separate land transaction: -100.00    
Minus amount claimed but not documented or admitted:

-700.00

   
Plus amount not claimed or documented but admitted by plaintiff: + 1,000.00    
       
Credit for amounts paid:   $3.538.45  
       
Total Credits:     $9.809.22

This credit is equal to the $300 monthly rental for 32 months (July 1985 through February 1988) plus $209.22 toward the rental for the next month (March 1988). Defendant owes $90.78 for March 1988 and $300 for each additional month, for a total of $7,290.78 through March 31, 1990.

If it appeared that defendants' refusal to pay the rent during the last two years was based in a reasonable interpretation of the lease[14ASR2d64] agreement and that defendants had stood ready at all times to make a full accounting to plaintiffs and to pay whatever rent should appear to be due, then equity would militate strongly against enforcement of the plaintiffs' legal right to repossess the premises upon defendants' breach. On the contrary , however, defendants attempted to charge plaintiffs for all sorts of expenses far removed in time, place, and purpose from the limited enterprise of "finish[ing]" to "build the house." Even if the defendants believed in good faith that the lease agreement allowed them to do this, such belief was not reasonable. (2) Indeed, the position taken by defendants in response to plaintiffs' early demands for rent would appear to have been even more difficult to sustain than the scaled-down accounting they submitted at trial. As late as October of 1989 defendants' then-attomey was insisting that the credits against rent amounted to over $21,000, a figure which was not itemized but which apparently included not only the cost of setting up the laundromat but also some of the ongoing expenses of running it. (3)Accordingly, [14ASR2d65] judgment will be entered in favor of plaintiffs putting them in immediate possession of the house and premises. Judgment will further be entered in favor of plaintiffs in the amount of $7,290.78 for rent arrearages. This judgment will be stayed until March 31, 1990, or until the decision on any timely motion for reconsideration or new trial, whichever is later.

It is so ordered.

*********

1. This is particularly true in light of the rule that vague or ambiguous language should ordinarily be construed against the party who drafted it. The lease was drafted by defendants' then-attorney. Plaintiffs were unrepresented by counsel during the negotiations.

2. We need not and do not find that defendants deliberately engaged in culpable behavior, but only that they breached the agreement (assuming it was definite enough to be susceptible of breach) and that the breach was not in reliance on a reasonable interpretation of the agreement. There may even be an innocent explanation for defendants' submission to the Court of invoices for items that appear not to have been used on the house; time has passed and memories may have faded. Reliance on such invoices as a justification for not paying the rent, however, must be regarded as unreasonable even if it was sincere.

3. Defendants' position that they were entitled to credit for all improvements including those directly related to operation of the laundromat ---a position from which they had receded somewhat by the time of trial, but which appears to have been at the heart of their refusal to pay any rent between 1985 and 1990 -was inconsistent not only with the most straightforward reading of the term "finish building the house" but also with the surrounding circumstances. This was not a short-term lease under which the landlord might expect to derive some eventual benefit from improvements made by the tenant for his own purposes. At the end of the forty years during which defendants were given the right to occupy the building, the value of most of the improvements --even those that were designed for general use rather than the tenant's own limited use --would have been negligible. Since the rental payments were the only benefit the landlord could expect to derive from the agreement, she had no reason to agree to an open-ended arrangement by which the defendants could avoid paying rent indefinitely simply by building themselves a better and better laundromat. Nor is $300 per month the sort of rent from which one would expect a landlord to allow extraordinary abatements. These circumstances, together with the fact that defendants' attorney drafted the language over which the parties now disagree, would even support plaintiffs' position that defendants had the right only to credit a few really essential items such as doors and windows. Even such items as floor covering and the interior ceiling, which would presumably need replacement within forty years and would therefore be of no use to anyone but defendants, might plausibly be regarded as aspects of "interior decoration" rather than of "building the house."
We have, however, given credit for all items shown to have been used in the house and not exclusively related to operation of the laundromat. The credits allowed include not only those for improvement of the interior, plumbing, wiring, and so forth -- or rather, for reasons discussed in the text, 90 per cent of the amounts claimed in these categories -but also such items as the construction of a snack bar and the purchase of light bulbs for the fluorescent light fixtures. Whether or not such credits would have been appropriate if defendants had retained the building for forty years, they do seem appropriate insofar as plaintiffs are now in a position to derive some benefit from the items in question.

Fania v. Sipili,


PEFU FANIA, Plaintiff

v.

SIPILI ATUALEVAO and ATOA SIPILI, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 40-89

March 13, 1990

__________

Claimant to an individual title to virgin bush must show he initially cleared and settled such land for himself.

Individual title to land is registered in claimant's name if the claim is publicly posted for sixty days, no adverse claim is lodged within that period, and all other statutory requirements are met. A.S.C.A. § 37.0103.

Where a claim to register individual title to land is disputed, the successful claimant must prove to the Land and Titles Division that he originally cleared and maintained the area for personal use.

Where the registered owners of land acquired it from plaintiff by fraud, a constructive trust in favor of plaintiff was properly imposed against both the land and proceeds from its sale.

Where plaintiff withdrew his objection to registering title to land in his brother's name believing that the disputed land was being split three ways, the misrepresentations of his brother and his nephew upon which plaintiff relied constituted fraud.

Defendants misrepresented to plaintiff that disputed land would be split three ways and fraudulently induced him to withdraw his objection to their registration of it by assuring [14ASR2d71] him that the split was in process, allowing him continued unrestricted access to the land, and signing the building permit that allowed him to build a home on the land.

Where the registered title to land was procured by fraud, the records of the Territorial Registrar may be amended to show the correct owners even though such registration proceedings usually have in rem effect and certificates of title obtained thereby are ordinarily conclusive. A.S.C.A. § 37.0101.

Before KRUSE, Chief Justice, T AUANU'U , Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Charles v. Ala'ilima
For Defendants, Togiola T.A. Tulafono

This is a sad case. We have before us two aged brothers who are arguing over a piece of land which the next generation has already begun to sell off to third parties. Each claims to have arduously hewed the land from virgin bush.

Introduction

The land involved is an area of 8.67 acres which the parties refer to as "Moso'oi." It is in fact a portion of the greater Tafuna plain which had become the subject of a somewhat disorderly land rush beginning in the mid 1950s. The race for land in the area picked up momentum with the creation of a road capable of vehicle traffic between the village of Ili'ili to the west and the Tafuna Airport to the east. The outcome was inevitable; a once luxuriant and relatively accessible tropical forest was quickly decimated in favor of a seemingly endless succession of land disputes before the Land and Titles Division.

It was early realized that "individual" (as opposed to "communal ") title claims to virgin bush land could be asserted by anyone who could successfully claim to have cleared and settled such land for himself. (1) At the same time, a claimant generally found that his quest for title registration (in accordance with the procedure set out in A.S.C.A. § 37.0101 et seq.) was in fact not a very complicated exercise if no one [14ASR2d72] objected to his claim. (2) Where, however, an objection was encountered, the matter was referred to the Land and Titles Division for resolution (3) and the claimant was put to proving that, indeed, it was he that originally cleared and maintained the area for personal use. (4) Additionally, the Fono had also earlier acknowledged, at least ostensibly, the free conveyance and inheritance of individually owned lands between American Samoans. See Pub. L. No.7-19 (1962), Rev'd Code of American Samoa §§ 9.0103 (1961 Edition as Amended). (5)

The Tafuna plain thus held out, especially in the eyes of an emerging chain saw generation, opportunities and possibilities beyond one's mere subsistence agricultural needs. The area opened up overnight to the world of real estate speculation, albeit, in such a muddled fashion that it is now perhaps timely to consider appropriate land development criteria. See Sese v. Leota, 9 A.S.R.2d 25, 26-27 (1988), aff'd, 12 A.S.R.2d 18 (1989).

Against this background, we look to the facts.

Facts

We accept the disinterested testimony of neighboring land developers corroborating plaintiff's version of the facts as being more persuasive. (6) We fmd on the evidence that Pefu had commenced clearing the land "Moso'oi" at least as early as the year 1956. Chief A.P. Lutali [14ASR2d73] testified that he first worked in the vicinity in 1956 at a time when he was first elected to the position of Speaker of the House of Representatives. He also named those who were felling open bush at the time and stated that while he was clearing to the seaward side of the road, plaintiff and his wife were clearing and planting on the inland side. Another developer, Folole Falefia, testified that in 1959 she and her late husband began clearing adjacent to "Moso'oi. " At that time she was only aware of Pefu working next to them. Both Lutali and Folole acknowledge, however, that the defendant Sipili Atualevao and his son Atoa Sipili subsequently worked in the vicinity although much later in time. Chief Lutali ventured the year 1963 and made the observation that at some time thereafter Pefu was noticeably absent from the locality. Folole, on the other hand, added that when Sipili and Atoa came into the area they actually started working Pefu's clearing inland.

We are satisfied on the evidence that Pefu permitted his brother Sipili to go on and cultivate the disputed land and that Pefu departed Tutuila in 1968 for an extended absence to take up a missionary assignment on Swains Island. In the meantime his brother Sipili and his nephew Atoa extended the clearing inland and continued to cultivate and maintain the land.

When Pefu returned to Tutuila in 1973, however, some tension over the land began to develop among the parties. A succession of individual attempts to claim the land were followed by a temporary reconciliation which lasted until the events which eventually gave rise to this action. It all started shortly after Pefu's return when he surveyed 7.567 acres of Moso'oi in 1975. We are not clear on the purpose of the survey; however, Pefu testified that he did not register the land on account of his brother Sipili and because of the insistence of their family matai. (7)

Sipili next surveyed a 2.05 acre tract of Moso'oi and posted his singular claim to the same on August 27, 1979. On September 9, 1979, Atoa filed with the Territorial Registrar's office a written objection to his father's claim on the ground that "[t]he said portion of land Moso'oi, is a communal land of Pefu F. Atualevao, Sipili F. Atualevao & Atoa S. Sipili." The matter was referred to the Office of Samoan Affairs for mediation and by memorandum dated November 20, 1979, the Deputy [14ASR2d74]

Secretary of Samoan Affairs certified to the Territorial Registrar that "[t]he claimant withdraw [sic] his survey of the portion of land involved in this case, but they [sic ] re-register the original survey of the whole land under Pefu, Sipili and Atoa names. When registration is settled, then divide the land equally among the three of them."

This division never came about, but 18 months later Atoa took a lunge at registering the land in his name. In order, however, to comply with provisions of A.S.C.A. § 37.0102(a) requiring an accompanying survey, Atoa submitted his uncle Pefu's earlier mentioned 1975 survey which delimited 7.567 acres more or less. This attempt was met by his father Sipili's written objection in which he not only complained of a disobedient son but also alleged that he, Sipili, first cleared the land. The Territorial Registrar again referred the matter to the Office of Samoan Affairs for mediation, and ultimately the Office of Samoan Affairs reported yet another successful family settlement. This application to register was also withdrawn by the Registrar. (8)

Less than a year later, Sipili commissioned yet a further survey of "Moso'oi" which now reflected some 8.67 acres. On March 4, 1983, he offered the land as now surveyed for registration as his individually owned property. This time Pefu was the objector and in his adverse claim, filed on March 31, 1983, Pefu alleged his many years of labor on the land. However, by letter to the Territorial Registrar dated April 4, 1983, Pefu withdrew his objection stating that "[t]his matter has been settled by the two of us, Pefu Fania and Sipili Atualevao." This reconciliation, however, differed from those of previous occasions. This time, Sipili's registration application was not withdrawn, but the registration process was left to go to its logical conclusion. Thereafter, the Territorial Registrar registered title solely in the name of "Sipili Atualevao." Next, Sipili executed a document on February 15, 1985, which purported to authorize the Territorial Registrar to amend the registry to reflect that title to the land "Moso'oi" was held in common [14ASR2d75] with his son Atoa. (9) Pefu, on the other hand, was out in the cold. He has had, until lately, unrestricted access to the land, and, indeed, he recently built on the land a home for which Sipili signed for the building permit. Pefu did not actually discover the completed registration until he recently learned that Atoa had sold a piece of the land. He was under the impression that nothing had been finalized with the land and that the land was in the process of being divided three ways between himself, his brother, and his nephew. His explanation for the withdrawal of his objection was that Atoa had come to him with the reassurance that the land would be divided three ways. He has since awaited Atoa's attendance to the division and was startled when he discovered that his nephew was selling off parts of the land without his knowledge or say. Following a verbal exchange with Atoa and being told that he had no interest in the land, Pefu retained counsel and suit resulted. Plaintiff complains of trickery on the part of his brother and nephew and prays for: an injunction against the further selling of Moso'oi; the imposition of a constructive trust on the defendants for his undivided one third interest together with an appropriate accounting of the sale proceeds; and an appropriate order dividing the land and providing for the registration of his interest accordingly.

Discussion

It is clear from the evidence that the parties had a consensus or understanding of co-entitlement to the land. This understanding is amply verified by the Territorial Registrar's records pertaining to the reconciliation exercise before the Office of Samoan Affairs which culminated in that referenced memorandum of November 20, 1979 ---to the effect that a survey would be redrawn to reflect a division of the land between Pefu, Sipili, and Atoa. Furthermore, Pefu's claim to entitlement was not without a convincing factual basis as attested to by the independent recollection of the neighboring developers. The need for Pefu's cooperation with Sipili's registration exercise was critical at the time, given the prospect of having to go to Court to counter third party corroboration of Pefu's claim that he had originally cleared the land from [14ASR2d76] virgin bush. Initial clearing of bush land and first occupancy is a necessary requirement for a claim of individual ownership. (10)

With regard to the withdrawal of Pefu's objection to his brother's sole claim to the land, the most believable conclusion in the circumstances is that he was relying, as he had testified, on Atoa's assurance that their understanding or consensus on a three way split would be pursued. As it turned out, Pefu's cooperation was induced by a ruse confected to permit the conclusion of the registration exercise (11) and therefore to preclude him from further laying claims to the land. For a while thereafter, this elderly man (Pefu is 77 years of age and Sipili 75 years of age) was not only kept in the dark but was also led to believe that the status quo was being maintained. His continuing access to Moso'oi was left undisturbed (until he started to get in the way of certain designs which Atoa, with his father's acquiescence, had for the land).

As opposed to the three way split which Pefu had anticipated and actually relied on when withdrawing his objection, the now registered titleholder, his brother Sipili, next undertook a two way split by persuading the Territorial Registrar to amend the Land Titles Register as if Atoa had been jointly involved with the registration process ab initio.

Conclusion

In our judgment, the facts disclose a classic case of fraud ---that is, a situation where there has been a misrepresentation communicated to another person who is injured in relying upon it. See D. Dobbs, Remedies §§ 9.1 (1973). Actionable misrepresentation may be communicated verbally or non-verbally, and, in certain circumstances, even silence can constitute a communication. Id. In the case at bar, we have a family relationship and a common understanding of co-entitlement to the land which the defendants even acknowledged on public record. Pefu's meritorious claim to land plus his understanding of a three way split was clearly known to both defendants. His objection to his brother's registration effort was withdrawn because of his nephew's [14ASR2d77] misrepresentation that the status quo would be maintained. The defendants fostered that misrepresentation by allowing Pefu to continue with access or belief of entitlement to the land, even to the point of letting him build a home thereon while attempting a mere two way division of the land. Now, however, they want him out since the land is being sold. Plaintiff, on the other hand, has relied to his detriment on what has proven to be a charade on the part of his family. Undeniably, these are circumstances which attract equitable relief and the imposition of a constructive trust to prevent unjust enrichment which in equity and good conscience the defendants ought not to retain. A constructive trust is an equitable remedy, imposed to prevent unjust enrichment when property is acquired by fraud or breach of fiduciary duty. McMerty v. Herzog, 710 F.2d 429 (8th Cir. 1983). See generally 76 Am. Jur. 2d Trusts § 221 et seq. (1975); see also Bozeman v. Sheriff, 355 N.E.2d 624 (III. App. 1976); Eiseman v. Lerner, 380 N.E.2d 1033 (III. App. 1978). The fraud in this case is clear , as is the unjust enrichment. Pefu could have stopped the registration, but withdrew his objection in reliance not only on the representation but on the holding out that an equal division would be made. That reliance was real. An understanding among the parties of equal entitlement to the land was longstanding. A constructive trust in favor of Pefu and against the registered owners of the land is therefore imposed on both the land and the proceeds from its sale. An injunction is also hereby issued prohibiting the further sale of Moso'oi without the consent of plaintiff Pefu Fania.

Furthermore, we conclude that the Territorial Registrar's records pertaining to the land "Moso'oi" may be amended, consistent with the Court's decision herein, to reflect title in the names of all the parties, Pefu Fania, Sipili Atualevao, and Atoa Sipili, as tenants in common. Ordinarily, title to land registered pursuant to A.S.C.A. §§ 37.0101 et seq. may not subsequently be questioned and these statutory proceedings have been held to have in rem effect. See Molitui v. Pisa, 2 A.S.R. 268 (1947). However, where it has been clearly proved that title registration was procured by fraud, the registration may be disregarded. (12) Ifopo v. Siatu 'u, 10 A.S.R.2d 66 (1989), aff'd, 12 A.S.R.2d 24 (1989). Here, the fraud against plaintiff was plain and distinct on the evidence. The [14ASR2d78] defendants took advantage of a family situation against an old trusting man to trick him out of his claim to land which the defendants have both acknowledged in the past. To permit the defendants to flaunt the registration enactments at plaintiff after inducing him to give up the pursuit of his rights thereunder is against equity and good conscience.

Judgment accordingly. It is so Ordered.

*********

1. An interesting historical inquiry into the origins of "individually" owned land is found in Leuma v. Willis, 1 A.S.R.2d 48, 50 (1980).

2. A.S.C.A. § 37.0103 requires the public posting of any land claim for a period of 60 days. This enactment also directs that if no adverse claim is lodged within that 60 day period, and provided that all other requirements of the statute have been otherwise satisfied, the Territorial Registrar shall register title to that land in the name of the applicant.

3. A.S.C.A. § 37.0104.

4. Leuma v. Willis, supra.

5. For a more detailed discussion of this enactment and its dubious validity (there were doubts raised about whether it had passed two successive legislatures as required by art. I § 3, and art. II § 9, Rev. Const. Am. Samoa, (1960)) see Leuma v. Willis, supra, at

54-55.

6. The extent of defendants' case consisted of their own contradictory and uncorroborated testimony coupled with strained attempts to controvert and explain away unfavorable documentary evidence.

7. Our subpoena duces tecum to the Territorial Registrar for his records on the various attempts to register the land "Moso'oi" did not reveal a registration attempt at that particular time frame.

8. Pefu may not have been aware of these two instances of land registration attempts as evidenced by the respective "Surveyor and Pulenu'u Certificates" accompanying both applications. These certificates are mandated by A.S.C.A § 47.0102(c) to verify that the enactment's requirements of actual notice of the intended time and date of survey be given in the village by the pulenu'u "in order that other interested land owners might have an opportunity to be present thereat." Neither of these forms have been properly executed, nor do they reflect. compliance with the statutory intendment of "actual" notice.

9. Apparently the Registrar acceded to this amendment request and then proceeded to issue a "Certificate of Registration" which contained factually inaccurate recitals to the effect that Atoa was an original co-applicant for registration.

10. See Govemment v. Leluli, LT No.016-63 (1963), Haleck v. Tuia, LT No. 1386-74 (1974), and Fanene v. Talio, LT No. 64-77 (1964) discussed in Leuma v. Willis, supra at 53-54.

11. The only objector was Pefu who, as we have seen, had a plausible claim in derogation of defendants'.

12. The effect of our registration statute, A.S.C.A. §§ 37.0101 et seq., is not unlike the effect of the Torrens system of land title registration. Those jurisdictions which have adopted the Torrens system guarantee indefeasible title by the issuance of certificates of title upon an applicant's compliance with certain registration proceedings. Yet the courts have held that those certificates of title are not conclusive if registration itself was procured by fraud. See, e.g., Henry v. White, 143 N.W. 324 (Minn. 1913).

Devera v. Tong Sheng Co., Ltd.,


ROLANDO DEVERA, RAUL BIAGT AN, HENRY CUISON,
BERNARD BOTON, RODRIGO CUARESMA, NELSON RAPINAN,
and NOLI FERNANDEZ, Plaintiffs

v.

TONG SHENG CO., LTD.
Defendant

High Court of American Samoa
Trial Division

CA No. 8-90

March 21, 1990

__________

Action had "sufficient minimum contacts" with territory, and territorial court was a convenient forum for litigation, where plaintiff seamen, who were foreign nationals employed by a foreign corporation, alleged that defendant had flown them to the territory to begin their employment and that the voyages on which alleged wrongful acta had taken place had begun and ended in the territory.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant, John L. Ward II

On Motion to Dismiss:

Plaintiffs are Philippine nationals who were hired in the Philippines to work on a fishing boat operating out of American Samoa. They allege that the person who hired them was an agent of the defendant company, and that another representative of the defendant company assigned them to a particular vessel. They further allege that they were subjected to various forms of abuse including being "routinely beaten."

Defendant moves to dismiss on the ground that the action lacks "sufficient minimum contacts" with American Samoa to give the High Court jurisdiction, or in the alternative that American Samoa is not a convenient forum for the litigation. We disagree. Plaintiffs were flown [14ASR2d99] to American Samoa, allegedly by the defendant, to begin their employment. The voyages on which the alleged atrocities took place both began and ended in American Samoa. Pago Pago is alleged to be the home port of the vessel in question. Contrary to a suggestion by defendants, it is by no means clear that systematic and intentional wrongdoing of the sort alleged in the complaint would not "involve the peace or dignity of the country, or the tranquility of the port" (1) used by the wrongdoers as a base of operations.

Defendant also claims that it is the agent of plaintiffs' employers rather than vice versa. This is a disputed question of fact that cannot form a basis for dismissal at this stage of the proceeding. Plaintiffs cannot be expected to know the precise relationships among the person with whom plaintiffs signed their contracts in the Philippines, the defendant company, and the owner(s) of the vessel until they have completed their discovery. (Plaintiffs' motion for leave to amend their complaint when they do learn such details is premature and will presumably be renewed when and as necessary.)

The motion to dismiss is denied.

*********

1. Lauritzen v. Larsen, 345 U.S. 571,578 (1952) (quoting R. v. Jameson, [1896] 2 QB 425, 430). In Lauritzen, which concerned negligence rather than intentional misconduct, the Court did not dismiss the action but merely applied Danish rather than American law.

Craddick; Vaivao v.


VAIVAO FRUEAN, FUGA T. TELESO,and TAITO AFA, Plaintiffs

v.

DOUGLAS O. CRADDICK, Defendant

MARTIN ANDERSON, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT , Defendant

High Court of American Samoa
Land and Titles Division

LT No. 40-85
LT No. 02-87

March 21, 1990

__________

Freehold land is all those lands included in court grants prior to 1900. A.S.C.A. § 31.0201(b).

Actual, open, notorious, hostile, exclusive and continuous occupancy of real estate for 30 years confers a title thereto by adverse possession which is sufficient against all. A.S.C.A. § 37.0120(a).

Plaintiff's claim to disputed land was Superior to that of defendant, who attempted to locate the boundaries noted in the original land grant based on scarce data and various assumptions which were plausibly rebutted by plaintiffs.

Plaintiffs' claim to disputed land was superior to that of defendant, where evidence indicated land was exclusively used and occupied by plaintiff families within living memory and family through whom defendant claimed ownership had never exercised proprietary rights or interfered with plaintiffs' possession or exercise of such rights.

Claim for unspecified damages to land was denied absent proof of damages.

Injunctive relief was denied absent surveys delineating the exact interests of plaintiffs which required such relief. [14ASR2d109]

Petition for quiet title was denied absent a survey and proof of compliance with the title registration statute. A.S.C.A. § 37.0101 et seq.

Where a statute states that the government appropriated a uniform fifteen feet inland from shore for public uses, since such a taking is not over broad because public uses include utility poles and seawalls as well as roads, the statute should not be narrowly construed to entitle government only to land underlying road since to do so would interfere with government's power of eminent domain as well as ignore the clear language of the statute.

Action to recover littoral right a taken by the government ninety years ago is barred by the doctrine of laches and by a statute which bars causes of action to recover real property if not brought within twenty years after they accrue. A.S.C.A. § 43.0120(6).

Before KRUSE, ChiefJustice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiffs Vaivao, Teleso, and Taito, Tau'ese P.F. Sonia
For Defendant Craddick, William H. Reardon
For Plaintiff Anderson, William H. Reardon
For Defendant American Samoa Government, Arthur Ripley Jr., Assistant Attorney General

LT No.40-85

The plaintiffs are the senior matai of the respective Vaivao, Fuga, and Taito families of Pago Pago. They sue to enjoin the defendant, Douglas Craddick, from encroaching on a certain land area which they claim is a part of that communal land of their families known as "Fusi." They further petition to quiet title, and in addition they seek compensation for unspecified damage to the land.

Craddick, on the other hand, claims that the disputed area is freehold land, (1) being a portion of the old Foster estate "Logopesega." (2) The Territorial Registrar's records reflect that in the late 1890s, title to the land Logopesega was vested by the Supreme Court of Samoa in one Jane Sophia Foster by Court Grant 852. The land is said to contain 2 acres and 5 perches and Court Grant 852 is recorded with the Territorial [14ASR2d110] Registrar in Volume 1, Court Grants at pages 169-70. (3) In 1981, Craddick purchased the Logopesega estate from the heirs of Jane Foster. See Craddick v. Manuma, LT Nos. 04-84 & 30-84 consolidated (1984). Martin Anderson has been permitted to intervene as Craddick's assignee or successor in interest and accordingly when referencing Craddick herein we are also referring to Anderson.

Facts

This case concerns an area of land located in the village of Pago Pago immediately on the mauga side of the main government east-west highway opposite to what is now known as the Pago Pago Plaza ---a shopping and office complex recently built by Craddick. The dispute before us today is the product of a number of factors with the most significant one being the passage of time. On the one hand, certain public records assure Craddick that the Foster estate contained some 2 acres of freehold land. However, just exactly where that 2 acres is situated has become unclear for a number of reasons. The original survey contained in Court Grant 852 references the monuments as being pins, at certain points on a stone wall long since forgotten, on a creek bank which could have changed over time, and at certain high water marks on an undoubtedly shifting shoreline. In addition, the Fosters have not recently shown a presence in the area consistent with ownership and the exercise of proprietary rights over an area of land of 2 acres and 5 perches. The gist, therefore, of Craddick's case is that, given the probable location of the high water mark (at the time of the court grant), an estate with an area as described in Court Grant 852 must necessarily include land on the mauga side of the main east-west highway. While the argument appears appealing at first blush, there are additional complicating factors which cannot be ignored. The evidence was clear . The disputed area has been, at least within living memory , in the exclusive use and occupation of the plaintiff families. According to the matai, their families have ocCupied this land from as far as they could individually remember, and the Fosters in that time have never bothered them nor have they bothered the Fosters. High Talking Chief Tuaolo Lemoe's testimony was in accord. He is 73 years of age and has lived all his life in the village of Pago Pago. He testified that the only people he has known to be in possession of the area in dispute have been members of the plaintiff families. The Fosters, he said, always kept to [14ASR2d111] the sami side of the main road. Tuaolo further testified that the area was commonly known to the village as "Fusi, " owing to its constantly water logged condition conducive to the growing of certain taro.

Discussion

The Court is faced with the task of somehow reconciling these factual inconsistencies although there was no attempt on the evidence to explain these apparent contradictions. For reasons given, we find for the plaintiffs.

Firstly, we cannot accept the surveyor's reconstruction exercise as being persuasive given the paucity of data he had to work with and the number of assumptions he was accordingly required to make. In the end, the exercise clearly took on the appearance of a dire search for premises to sustain a foregone conclusion. For example, in the way of physical evidence, some stress was placed on the fact that a row of plaintiffs , homes on one side of the stream was situated in a manner which happened to be consistent with one of the boundary lines as reconstructed. In the surveyor's judgment, a row of homes which appeared to be carefully situated was, in accordance with sound survey practice, a very good indication that the owners had no claims beyond the line as retraced. This assumption holds little water when viewed against the fact that the survey also shows boundary lines running on the opposing side of the stream to include other existing structures belonging to plaintiffs. In any event, it appeared more credible on the actual testimony that the resulting alignment of the houses had a lot more to do with their being deliberately situated on dry ground (which in some places was the result of a built up embankment) to avoid the recurrent flooding in the area, rather than having anything to do with a considered deference to a boundary line with the Foster family. Also from the reconstruction of the Logopesega survey, the disputed land is now bisected by a stream. The estate's original description and survey, however, showed the stream as actually being Logopesega 's northernmost boundary line. The surveyor simply takes the position that the stream's banks have since changed. (4) [14ASR2d112]

The Court was also told that a small part of the "stone wall " mentioned in Court Grant 852 was located and that this represented a significant clue to the reconstruction. When the Court viewed the disputed area, its attention was directed to a small digging which revealed what appeared to be an otherwise hidden or covered arrangement of large river rocks. The plaintiffs denied that the find was anything in the way of an ancient wall and claim that they in fact had actually pointed out the rocks to the surveyor who was asking for the remnants of a stone wall. They gave the more plausible explanation for the hidden rock formation, which they said was erected by family members to elevate those homesites confronting the bend in the stream since they were prone to flooding from overflow during heavy rains. Flooding in the area was said to be quite common.

Quite apart from the difficulties with hard data, the resultant reconstruction survey must also have been influenced by those settlement efforts between Craddick and the American Samoa Government concerning the seaward side of Logopesega. Since these settlement efforts entailed an exercise of give and take on the part of both parties, they do not necessarily reflect the estate's original boundary lines. See Agreement for Negotiated Settlement, Craddick v. American Samoa Government, LT No.20-85 (1986).

A telling factor against the reconstructed boundaries lines is simply that they could not be reconciled with the stark reality that a number of Pago Pago's established families seemed well and truly settled in and about the disputed area, to the exclusion of the Fosters. Our examination of the evidence as a whole convinces us that the plaintiff families have had possession of the disputed area for a great number of years while exercising proprietary rights thereon. The evidenl".e also clearly suggests that such possession has been had without any interruption whatsoever from the Fosters. Even if we assumed for the sake of argument that.CourtGrant 852 included this area occupied by the plaintiffs, the recent interruption by Craddick (successor to the Fosters) has come a little too late to prevent the operation of A.S.C.A. §§ 37.0120(a). This enactment provides that "[a]ctual, open, notorious, hostile, exclusive and continuous occupancy of real estate for 30 years confers a title thereto by adverse possession which is sufficient against all." Plaintiffs' possession of the disputed land area certainly qualifies to confer title on them.

Finally, an explanation for the Foster family's absence from the mauga side of road is to be found in Foster v. Olotoa, 3 A.S.R. 76 [14ASR2d113] (1952). This case points out that a part of Logopesega .known as Heman Foster's share of the estate had been lost through the adverse possession of one Teutusi. (5) The significance of Heman Foster's share of the estate is that it is said to comprise that part of Logopesega which is "inland" of the main road. The case spoke of Jane Sophia Foster's will, wherein the testator devised a part of Logopesega to her grandson Heman in the following language,"I give, devise and bequeath to my grandson Heman that piece of my land on the inland side of the main road in Pago Pago extending from Wolbert's leasehold to the little creek." Id. at 77-78 (emphasis added). The estate, however, to the seaward side of the road was bequeathed to the testator's son Wesley. With regard to the property on the inland side of the main road, the Court found that:

Some years after Jane Sophia Foster's death, Heman's
father, Fanene, apparently considering the land which
had been devised to his son as his own, conveyed it to
one Teutusi, who went into possession thereof and
continued in such possession for more than 20 years,
claiming the land conveyed as his individually owned
property. In the case of Gaoteote Foster et al. v.
George Fiaalii, No.11-1952, the High Court held that
this land devised to Heman became the property of
Teutusi through adverse possession. T eutusi' s heirs let
George Fiaalii (who is Olotoa and the defendant in this
case) into possession of the part of Lotopesega which
was devised to Heman.

Foster v. Olotoa, 3 A.S.R. at 78. It is trite observation that Craddick can only get from the Fosters that which they had to give. The foregoing case naturally raises the question as to what exactly Craddick purchased " on the inland side of the main road" if indeed the inland part of Logopesega had been lost by adverse possession to one Teutusi.

In view of the foregoing, we conclude that the plaintiffs' claim to the disputed area on the mauga side of the main road is superior to that of defendant Craddick's. Plaintiffs' undisturbed and longstanding possession of the area speaks rather forcefully in favor of the plaintiff families. Craddick's claim, on the other hand, is less tenable. For many, many years now the Fosters have not acted in a manner consistent [14ASR2d114] with the ownership of land on the mauga side of the road, whereas plaintiffs undeniably have. Just what remains of the Foster estate and where it is exactly located are questions for which answers have become more obscure with the passage of time. Given present day realities, the dispute as to better entitlement must be resolved in favor of plaintiffs in possession.

However, the specific relief sought by plaintiffs will not be granted. There was absolutely no proof offered on the damages alleged, and with regard to the injunctive relief sought, none of the plaintiffs bothered to provide surveys delineating their exact interests requiring injunctive relief. Finally, the prayer for quiet title is meaningless without a survey and without first complying with those statutory requirements relating to the registration of title. A.S.C.A. § 37.0101 et seq.

LT No.02-87

Court Grant 852 was originally bounded by the high water mark and this case involves the land on the sami side of the main road. Specifically, the dispute arose with plaintiff Anderson's assignor, Craddick, laying claims as upland or "littoral" landowner entitled to a certain area of abutting filled land. (6) This filled land was the result of an extensive reclamation project undertaken by the government in the Pago Pago harbor. At issue is whether the owner of Court Grant 852 or the government owns the reclaimed land. (7) The immediate difficulty with plaintiff's claim is that it is based on the contention that he is the upland or littoral landowner .This contention, however, is entirely at odds with the holding in Lago v. Mageo, 4 A.S.R. 287 (1962), aff'd, 4 A.S.R. 874 [14ASR2d115] (1963). This case was concerned with littoral claims to the property on the other side of the Vaipito stream and immediately next door, so to speak, to the area in dispute. The Lago court upheld the territorial government' s rights as the upland or littoral owner within the harbor area between Blunt's Point and Breaker's Point by virtue of certain condenmation proceedings pursuant to Ordinance No.15 and Regulation No.16 of the United States Naval Station, Tutuila, enacted September 3, 1900. Ordinance No.15 and Regulation No.16 were later codified by the Legislative Branch of the Government of American Samoa as § 1291 of the Code of American Samoa, 1949, and now appear on our statute book as A.S.C.A. § 37.2050. (8)

This statute clearly gives the government a uniform fifteen feet of land in from the shoreline. Anderson argues that only a road is needed, and not any shore, and that the statute should be narrowly construed to protect private property rights. The statute refers to the land as appropriated for "public uses, " which would include a road and also power poles, telephone poles, and any necessary seawalls to check erosion. It would be rather difficult to otherwise construe this statute --- "15 feet distant inland from the shore" is 15 feet whether broadly or narrowly construed. The case cited by plaintiff, Wilson v. State, 400 So.2d 740 (La. App. 1981), examines the limits on Louisiana's general power of eminent domain. (9) In that case, there was no statute as there is in the current situation. To sustain the contention advanced by plaintiff that the government merely acquired "legitimate title to the land where the road runs, " while ignoring the clear language of the statute in the name of statutory construction, would surely be to interfere with the government's exercise of its eminent domain power. In any event, a taking of 15 feet inland from the shoreline is hardly overbroad given the various public uses for which the condemned property may be pat and, [14ASR2d116] indeed, the very requirements of roading itself. With the increasing demands of modern day automobile traffic within the territory, there is logically no alternative available to the government for road improvements in the Pago Pago bay area but the possibility of going sami side. The taking of the shoreline is thus totally consistent with public roading purposes in the area.

Finally, the government's defense of laches is worth noting. The taking (of littoral rights) which plaintiff is now protesting occurred 90 years ago. On the other hand, an action for the recovery of real property is barred if not brought within 20 years after such cause accrues. A.S.C.A. § 43.0120(6). The argument advanced by plaintiff that "the Fosters never had reason to believe that their property had been taken" is simply without merit. An ordinance or published law announced the taking of fifteen feet of shoreline from Blunt's Point to Breaker's Point. The language of the ordinance admits no exception.

We conclude that the reclaimed or filled land in question is the property of the American Samoa Government. Judgment accordingly.

It is so Ordered.

*********

1. Freehold land is statutorily defined as "all those lands included in court grants prior to 1900." A.S.C.A. § 37.0201(b).

2. Also spelt elsewhere as "Lotopesega." See Foster v. Olotoa, 3 A.S.R. 76 (1953).

3. For a more detailed background to Court Grant 852, see Foster v. Olotoa, 3 A.S.R. 76 (1953), Craddick v. Manuma, LT Nos. 04-84 & 30-84 consolidated (1984).

4. We note that the surveyor makes no allowance for the significant accretion thus resulting in favor of plaintiffs as a result of that change; however, he does take a position in the companion case with regard to adjusting rights to shore-front reclamation as coming within standard surveying practice.

5. Cf. Craddickv. Olotoa, LT Nos. 04-98 & 30-84 consolidated (1984). This case arrived at a totally conflicting conclusion.

6. This area presently serves as the parking lot for the Pago Plaza. In order to facilitate the building permit for the Pago Plaza structure, which required adequate parking facilities, among other things, a document dated 13th September, 1985, styled "Lease of Property and Agreement For Installation of Parking Lot" was entered into between Craddick and the government to allow the parking lot to be built pending final disposition of the parties' dispute. Adequate parking was apparently a condition to the granting of a building permit for the Pago Plaza.

7. The survey submitted of plaintiff's claim again took on the unfortunate appearance of setting out a foregone conclusion, namely, the approximate layout of the existing car park. The surveyor alluded to a number of possibilities for extending lines to newly gotten land, and his conclusion was ultimately based on what he judged as being most fair to both parties given the present existing physical layout. Presuming that plaintiff's legal position prevails, the immediate problem with the surveyor's conclusion of fairness is that it does not necessarily take into account the problems to be encountered with adjusting the rights of other remaining littoral owners.

8. A.S.C.A. § 37.2050 reads:

The public highway declared and proclaimed by Regulations No.15 and No.16,
1900, enacted 3 September 1900 by B.F. Tilley, U.S.N., Commandant, and
amended by W. Evans, Captain, U.S.N., on 10 May 1921, extending from
Blunt's Point on the southern side of Pago Pago Harbor, toward Observatory
Point and around the harbor to Breaker's Point on the northern side of the
harbor, along the shore at high water mark, of a uniform width of 15 feet distant
inland from the shore, the land included in the description being condemned and
appropriated for public uses, is recognized as a public highway, and the rights
of the government and public thereto is asserted.

9. Cf. Atualevao v. American Samoa Government, 2 A.S.R.2d 66 (1985).

American Samoa Gov’ t; Saufo'i v.


LUMANA'I SAUFO'I and TAUSISI'I SAUFO'I, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, CONTINENTAL
INSURANCE, FATA HOLT, and KILISI PAULI, Defendants

High Court of American Samoa
Trial Division

CA No. 3-88

February 21, 1990

__________

Where court noticed after trial in wrongful death action that plaintiffs had never petitioned the Court for designation as "next of kin" as required by wrongful death statute, and where plaintiffs were not the only near relatives of the decedent, the court would withhold entry of judgment pending receipt of the required petition. A.S.C.A. §43.5001. [14ASR2d52]
Practice under wrongful death statute has been to include brothers and sisters along with parents as plaintiffs in actions where the decedent has left no surviving spouse or descendants. A.S.C.A. § 43.5001.

Where plaintiffs in wrongful death action had omitted other potential plaintiffs from iheir pleadjngs, amendment of the pleadings after trial to include additional plaintiffs would be permitted only insofar as ,it wo~ld work no prejudice on the defendants.

Where damages had been assessed against defendants in wrongful death action, but plaintiffs had omitted other potential beneficiaries from their pleadings and sought to cure the omission by amendment after trial, plaintiffs would be required to share their damage award with their new co-plaintiffs.

Experience and precedent suggest that a person is likely to be more deeply affected by the death of his child than ofhis sibling, and that minor children are far more likely to provide future financial support to their parents than to their brothers and sisters; court has therefore approved wrongful death settlements by which the parents of a deceased child receive substantially more than the brothers and sisters, even though the parents were negotiating for all aggrieved parties.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant American Samoa Government, Arthur Ripley Jr., Assistant Attorney General
For Defendants Continental Insurance, Fata Holt, and Kilisi Pauli, Roy J.D. Hall Jr.

On Motion to Amend Pleading:

Upon trial of this case we held the defendants partly liable for damages arising from the wrongful death of plaintiffs' daughter, Ballerina Saufo'i. We did not, however, enter judgment because plaintiffs had never petitioned the Court for designation as "next of kin" in accordance with A.S.C.A. § 43.5001, the territorial wrongful death statute.

Practice in the High Court has been to include brothers and sisters along with parents as plaintiffs in wrongful death actions where the decedent has left no surviving spouse or descendants. Ballerina, who was four years old at the time of her death, left four siblings, all of whom were minor children of plaintiffs. On the record before us it was not clear whether a judgment in plaintiffs' action was intended to foreclose the rights of these minor children to recover for any damages [14ASR2d53] they might have suffered, or to leave the defendants open to further litigation by the brothers and sisters. Either of these results would raise problems of procedure and of substance, although either might be preferable to leaving the question unresolved until the potential claimants should reach the age of majority in ten years or so. We therefore withheld entry of judgment pending a petition by plaintiffs for designation of "next of kin" under A.S.C.A. § 43.5001, either of themselves alone or of themselves along with Ballerina's brothers and sisters.

Plaintiffs have chosen to request amendment of their pleadings to include the brothers and sisters. Although this course seems the wisest of those now open, an amendment of this sort after trial can only be permitted insofar as it does not prejudice any of the defendants. In effect, this means plaintiffs must share their award of $ 30,037.50 with their new co-plaintiffs, who might have been able to prove and recover additional damages had they been joined before trial. (Plaintiffs have assured the Court through counsel that they understand this consequence of the present motion. )

It is commonplace to remark the difficulty of placing a value on pain and suffering, particularly of the emotional rather than physical variety. It is perhaps even more difficult to compare the emotional effects upon different people of a single tragic event. This is particularly true when the Court has no particular evidence on which to base such a comparison. Both human experience and judicial precedent suggest, however, that a person is likely to be more deeply affected by the death of his child than of his sibling. It is also true that minor children are far more likely to provide future financial support to their parents than to their brothers and sisters. The High Court has therefore approved wrongful death settlements by which the parents of a deceased child receive substantially more than the brothers and sisters, even though the parents were doing the negotiating for all the aggrieved parties: See, e.g., Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989) ($17,000 total for two parents, $5,000 total for two children). In the present circumstances ---which include the fact that the parents themselves have been held partly responsible for the events leading up to Ballerina's death, and that the children would presumably have been able to recover with no reduction for comparative negligence had they been named as plaintiffs at the outset --an award of $3,000 for each child seems reasonable. This leaves $18,037.50 for the parents. [14ASR2d54]

Accordingly, the motion to amend the pleadings is granted. Plaintiffs Lumana'i and Tausisi'i Saufo'i are designated guardians ad litem for Joseph, Faimasasa, Iupeli, and Ilalio Satifo'i, who are also joined as plaintiffs. Judgment will enter against defendants Pauli, Holt, and Continental Insurance Company in the amount of $20,025, and against defendant American Samoa Government in the amount of $10,012.50. A total of $12,000 of this amount ($8,000 from the first three defendants and $4,000 from ASG) should be deposited in the registry of the Court to be placed in trust for the minor plaintiffs. The remaining $18,037.50 of the judgment will be entered in favor of plaintiffs Lumana'i and Tausisi'i Saufo'i.

It is so ordered.

*********

American Samoa Gov’t; Saufo'i v.


LUMANA'I SAUFO'I and TAUSISI'I SAUFO'I, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, CONTINENTAL
INSURANCE, FATA BOLT, and KILISI PAULI, Defendants

High Court of American Samoa
Trial Division

CA No. 3-88

January 24, 1990

__________

Although the law does not automatically hold the driver at fault in every automobile/pedestrian collision, this does not imply that judicial inquiry into every such collision must begin and end with surviving driver's testimony that deceased pedestrian was at fault, especially where this testimony is at variance with the physical evidence.

Government was not negligent in placing early childhood education classes in a private home in a high traffic area without posting the area as a school zone, where government was forced to choose between having such classes in private homes or not having them at all, and adopted a variety of safeguards which were at least as effective as the designation and posting of a school zone.

Where employee charged with supervision of children specifically violated her employer's instructions in pursuance of a private arrangement with a child's parents, she did not thereby automatically remove herself from the course and scope of her duty, where at the time of her negligent acts she was still at her place of work performing her duties as an employee and the negligence was clearly related to these duties.

Where employee's negligence was clearly related to her performance of her duties but was also clearly related to her agreement with the child's parents, who had reason to know her strengths and weaknesses and the dangers of their entrustment to her of their child's safety, the employer would be vicariously liable for the employee's negligent performance ocher duties and the parents would be liable for such negligence as was attributable to the private agreement.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendant American Samoa Government, Arthur Ripley Jr., Assistant Attorney General
For Defendants Continental Insurance, Fata Holt, and Kilisi Pauli, Roy J.D. Hall Jr.[14ASR2d16]

On April 10, 1987, plaintiffs' four-year-old daughter was struck by a bus and killed. This action is against the driver, the owner, and the insurer of the bus and also against the American Samoa Government (hereinafter" ASG") in its capacity as proprietor of the pre-school program the child was attending on the day of the accident.

The child, Ballerina Saufo'i, was enrolled in an ASG pre-school program called Early Childhood Education (ECE). The classes in which Ballerina was enrolled were held in a home uphill from Evalani's Cabaret Lounge in the village of Pago Pago. Access to this home is by way of a steep path and stairway beginning on the main road beside Evalani's.

In an effort to assure the safety of children attending ECE classes, ASG had given all teachers instructions that no student was to be allowed into a class unless accompanied to the door by a parent or other adult. Teachers were specifically prohibited from agreeing with parents that they themselves would undertake the responsibility of seeing children to and from school. These instructions had been communicated to Salilo Scanlan, who was Ballerina's ECE teacher.

Despite these instructions, Ms. Scanlan made an arrangement with plaintiffs, to whom she is related, according to which she took Ballerina to and from most ECE classes.

On April 10, 1987, the day of the accident, Ms. Scanlan had taken Ballerina to school. She had also dismissed her ECE class early that day so that she could take her own child to a medical appointment. The early dismissal, which was undertaken on Ms. Scanlan's own authority in contravention of general ECE policy, had been announced to parents that morning as they brought their children to class. At the time of the accident all but four of the children had been picked up. The four who remained were Ballerina; plaintiffs' other daughter; Ms. Scanlan's own child; and another child whose parents had not yet come for him. Ms. Scanlan was cleaning up and putting away ECE materials as ECE rules required her to do. In the course of this activity she went into another room. Upon her return she found Ballerina gone.

Defendant Kilisi Pauli, according to his testimony, was driving his bus on the main road at a speed of about fifteen miles per hour. His testimony is to the effect that he did not see Ballerina before the moment of impact. He testified that the point of impact was somewhere on the right side of the bus, and that she was thrown forward and to the side. [14ASR2d17] The only other eyewitness, Sefo Etuale, apparently did not have a very good view of the accident. He testified that he saw someone get hit by a vehicle about ten cars ahead of him and that the person was thrown to the side. He could provide no further details, not even the type of vehicle that was involved in the accident.

Ballerina was taken to the hospital where she was pronounced dead upon arrival.

Police officers arrived upon the scene a few minutes later. The officers found a large bloodstained area on the road near the stairs that lead to the ECE center. The bloodstained area is quite close to the center line of the road, about nine feet from the mauga or right-hand shoulder and about fourteen feet from the sami or left-hand shoulder. The eyewitness testimony of the reporting officer and police photographs taken shortly after the accident reveal no evidence of any other significant bloodstains on the road. The bloodstained area, therefore, almost certainly marks either the point of impact or (more likely) the point at which Ballerina's body came to rest and lay until it was carried away. In either case the point of impact was at or near the middle of the road.

The police officer also observed that the accident had occurred at about 10 a.m. and that it was daylight, the weather was clear, and the road was dry.

Counsel for defendant Pauli argues that this case is governed by our decision in Matalolo v. Penitusi, 4 A.S.R.2d 46 (1987) in which we observed that "the mere fact that a vehicle strikes a pedestrian does not give rise to strict liability without fault, or even to a responsibility on the part of the defendant to prove that he was not negligent. " Id. at 47.

In Matalolo the plaintiff, whose child had been injured when hit by a car , testified that her child stepped out from behind a bus and was hit by the car. We found that "[t]he point of collision with defendant's vehicle was at the extreme right end of the front of the vehicle, indicating that the child stepped into the road at the last possible moment before impact." Id. at 46. Under these circumstances, and in the absence of any other evidence that the driver had been negligent, we held that there was no showing of negligence.

This case, however, is not Matalolo. In that opinion we pointed out that the law does not automatically hold the driver at fault in every automobile/pedestrian collision. We did not mean to imply that judicial [14ASR2d18] inquiry into every such collision ---or into every collision that results in the death of one of the two people in the best position to observe what happened ---should begin and end with the survivor's recollection that the decedent just suddenly ran into the side of the car. Indeed, we began our analysis in Matalolo with the observation that "[t]he defense of 'he darted into the road at the last minute' is often asserted but seldom proved.'" 4 A.S.R.2d at 47.

In the present case this assertion is at odds with the physical evidence, which is the most reliable evidence we have. If, as the driver testified, he was driving in the right lane, and if Ballerina had run into the side of the bus and had been thrown toward the right side of the road, then blood or other evidence of the presence of a fatally injured person should have been located near the far right edge of the roadway. That this evidence was found instead near the center line ---that is, in the leftmost portion of the lane in which the bus was being driven --- leads to two important distinctions between the facts of this case and those of Matalolo:

(1) It becomes difficult to believe the driver's testimony that the point of impact was on the right side of the vehicle, much less counsel's conclusion that "young Ballerina was killed as the result of an unavoidable accident when she ran, unexpectedly and with out warning, into the public highway thereby colliding with the side of the defendant's bus. " Rather, the location of the bloodstain and the driver's testimony that he was driving entirely in the right lane would indicate that the child was hit squarely by the front of the bus, most likely the left front portion. (1)

(2) Even more important, and regardless of what part of the vehicle hit the child, the fact remains that she made it to the middle of the street without being seen by the driver. The police photographs taken on the day of the accident reveal that a person approaching the roadway [14ASR2d19] from the steps to the ECE center would first have to cross a small footbridge over a ditch by the roadside. The bridge and the shoulder together appear to be three or four feet wide; a person standing on the bridge or the shoulder, even a child, would be clearly visible" to approaching motorists. In Matalolo the child was hidden by a bus until the very moment he stepped out from behind the bus into the path of an oncoming car. In the present case the child was clearly visible to oncoming motorists for at least the time it takes a four-year-old child to negotiate the bridge, the shoulder, and nine feet of roadway. (2) It is hardly strict liability to find that a driver who fails to observe a child as she crosses a footbridge as well as the shoulder and almost the entire right lane of a public highway, all in broad daylight, is probably not looking carefully enough.

This is not to say, of course, that defendant Pauli was solely responsible for the accident. The evidence does not suggest that he was guilty of such gross negligence that the accident might not have been avoided by the exercise of due care on the part of some other person or persons. It does suggest that he was not looking carefully at the road ahead of him and that this contributed to the accident.

Accordingly, we hold that the evidence preponderates in favor of plaintiffs' claim that defendant Pauli was negligent in failing to keep a proper lookout. Defendant Fata Holt, who has admitted being the owner of the commercial vehicle driven by Pauli and the holder of the commercial vehicle license and has not denied plaintiffs' allegation that she employed him to operate the vehicle, is therefore vicariously and secondarily liable for the negligence of defendant Pauli. Defendant Continental Insurance Company, which admits being the insurer of the vehicle at the time of the accident, is liable in such capacity for the negligence of the driver.

Plaintiffs also claim that defendant ASG is responsible for the death of their daughter. They argue that ASG was negligent in placing the ECE center in a high traffic area without taking special precautions such as the installation of traffic safety devices, and that ASG is also [14ASR2d20] liable for the negligence of its employee, Salilo Scanlan, in allowing Ballerina to wander away from the ECE program.

The evidence does not support plaintiffs' contention that ASG was negligent in its placement of the ECE center. Forced to choose between having early childhood education classes in private homes or not having them at all, ASG adopted a variety of safeguards ---very small class sizes, limitation of enrollment to children living in the immediate neighborhood, and especially the rule that parents must drop off and pick up their children from each class ---to minimize traffic safety problems. These measures, although tragically unavailing in the present case, would appear in general to be at least as effective as the designation of each ECE center as a school and posting of the surrounding area as a school zone. (In the present case, moreover, it is not at all clear that the absence of a school zone sign or similar warning device was a cause in fact of the accident. Defendant Pauli testified that he knew there were sometimes young children in this area and that he was driving only fifteen miles an hour, somewhat slower than the usual limit in school zones.)

ASG is, however, liable for any negligence of Salilo Scanlan provided that such negligence occurred in the course and scope of her duty as an ASG employee.

Perhaps because Ms. Scanlan herself was not made a party to this case, no party has seriously disputed plaintiffs' contention that she was negligent. We are satisfied that she was indeed negligent in leaving children unattended a few steps from a busy roadway. ASG contends, however, that it cannot be held liable for Ms. Scanlan's conduct because she was not acting in her capacity as an ASG employee. Rather, she specifically violated her employer's instructions in pursuance of a private arrangement with her relatives, the plaintiffs themselves, which arrangement ASG regards as the sole means by which she contributed to Ballerina's death.

The position that an employee's defiance of her employer's instructions takes her outside the course and scope of her employment is not without attractions both equitable and metaphysical. It is, however , contrary to settled law:

The fact that the servant's act is expressly forbidden by the master, or is
done in a manner which he has prohibited, is to be considered in determining
[14ASR2d21] what the servant has been hired to do, but it is usually not
conclusive, and does not in itself prevent the act from being within the scope
of employment.... Thus, instructions to a sales clerk never to load a gun while
exhibiting it will not prevent liability when the clerk does so, in an effort to sell
the gun. If the other factors involved indicate that the forbidden conduct is merely
the servant's way of accomplishing an authorized purpose, the master cannot
escape responsibility no matter how specific, detailed and emphatic his orders
may have been to the contrary .

W. Prosser & P. Keeton, The Law of Torts §§ 70 at 502-03 (5th ed. 1984) (footnotes omitted).

In the present case Ms. Scanlan had been hired to conduct a class whose students included Ballerina Saufo'i. Although the negligence with which Ms. Scanlan is now charged occurred a few minutes after she had dismissed the class, it occurred at her place of work during her usual working hours. Although she was planning what was arguably a detour and frolic of her own, and had dismissed class early in anticipation of this personal errand, at the time of the accident she was still at her place of work performing at least two of her duties as an ASG employee: cleaning up after class and waiting for the parents of one of her students to come for him.

Although Ms. Scanlan's contribution to the accident was clearly related to her agreement with Ballerina's parents, it was also clearly related to her performance of the duties required of her by ASG. When Ms. Scanlan left the room just before the accident she did so in pursuance of her duty to clean up after class. That her particular way of doing this (leaving children unattended) was contrary to her employer's wishes, or that she violated her employer's specific instructions by mixing her dual roles as ECE employee and private agent for Ballerina's parents, cannot avoid the fact that her negligence occurred when she was acting at least partly in her role as an ECE employee.

Nor, however, can Ms. Scanlan's connection with ASG relieve the plaintiffs of their own responsibility for the arrangement that contributed to the accident. It appears that they knew this arrangement was against the rules. Moreover, the plaintiffs knew as well as defendant ASG that the ECE center was located just uphill from the main road at a place where there was heavy traffic, and they had even more reason [14ASR2d22] than ASG to be familiar with the strengths and weaknesses of their relative, Ms. Scanlan. Their entrustment to her of their child's safety during the period after classes were over, when they knew or had reason to know she would be attempting to combine this grave responsibility with her responsibilities to her employer, was a f~tor that contributed substantially to the accident.

Apportioning the negligence of the various parties in accordance with A.S.C.A. § 43.5101, we find the accident to have been caused by two equally culpable courses of conduct. One of these was the failure of defendant Kilisi Pauli to keep a proper lookout. The other course of conduct consisted of two elements: the agreement by which Ms. Scanlan was to care for Ballerina after class, and her leaving the children unattended just before the accident. The first of these elements represents negligence attributable to the plaintiffs; ASG is vicariously liable for the second element. We therefore assess liability at 50% for Pauli, his employer, and his insurer; 25% for ASG; and 25% for the plaintiffs.

Plaintiffs describe their damages as consisting almost entirely of "emotional distress." Construing the pleadings liberally in order to do justice, we assume plaintiffs mean to assert their rights under A.S.C.A. §§ 43.5001 to recover for the wrongful death of their child. The statutory elements of such a claim include "pecuniary injury and loss of love and affection, including. ..loss of society, companionship, comfort, consortium, or protection; [and] loss of filial care and attention." Id. §§ 43.5001(c). We assess plaintiffs' damages, including the loss of love, affection, society, companionship, comfort, and possible future protection, support, care, and attention, at $40,000.

Plaintiffs also claim to have incurred medical expenses of $50 and funeral expenses of $3,945. The claim for medical expenses is allowed. Plaintiffs submitted no credible evidence either of the amount of funeral expenses or that such expenses were actually paid by the plaintiffs. The only evidence submitted was the testimony of plaintiff Lumana'i Saufo'i, who was clearly not telling the truth. Accordingly, no special damages are awarded for funeral expenses.

Damages are therefore assessed against defendants Kilisi Pauli, Fata Bolt, and Continental Insurance Company in the amount of $20,025. Damages are assessed against defendant ASG in the amount of $10,012.50. [14ASR2d23]

We note, however, that plaintiffs have not applied to the Court for recognition as the proper parties to bring this action. The wrongful death statute requires that an action "must" be brought on behalf of the surviving spouse, parents, children or other next of kin. if any, of the decedent "as the court may direct." A.S.C.A. § 43.5001(b). We have not thus far been asked to give the requisite directions. By allowing the case to be brought to trial and submitted for judgment, the various defendants would appear to have waived any objections to this defect in the pleadings. We are concerned. however. that by proceeding in their own names without asking for leave of court, plaintiffs may have prejudiced the rights of Ballerina's brothers and sisters. Plaintiffs are therefore directed to make the appropriate application immediately.

Formal entry of judgment will be delayed pending action on such application. The time period during which parties may move for reconsideration of the judgment will commence with formal entry of judgment.

It is so ordered.

*********

1. The driver testified that he was driving somewhat further toward the center of the road than might otherwise have been the case, since road workers had placed cones near the rightmost edge of the roadway, but that he stayed in the right lane. The police photographs confirm the existence of the cones but show them extending only about two feet into the roadway. If the bus was in the right lane and if the bloodstain was anywhere near the point of impact, then Ballerina was struck by the left front portion of the bus.
The police officers observed no damage to the bus from which the point of impact could be precisely determined. (Nor, contrary to the suggestion of defendants' counsel, was there any evidence that Ballerina ran rather than walked into the roadway.)

2. It also appears from the photographs that an oncoming driver, at least one with the relatively high vantage point of a bus driver, would have been able to see over some intervening foliage so as to observe the child even earlier, as she came down the stairs leading to the roadway.

American Samoa Gov’t v. Satele,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

VILIAMU SATELE, Defendant

High Court of American Samoa
Trial Division

CR No. 8-81

March 21, 1990

__________

Where defendant had been found not guilty by reason of insanity of two murder charges, trial judge's conclusions that a controlled environment was necessary to minimize the risk that the defendant's dangerous condition would recur was supported in the record, and new evidence purporting to show that defendant was no longer dangerous was based primarily on defendant's physical weakness and lack of co-ordination, court could not conclude that defendant would no longer be dangerous if released into the general population.

Before REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Jeffrey Buckner, Assistant Attorney General
For Defendant, Togiola T.A. Tulafono

On Motion for Modification:

In 1981 the defendant was found not guilty by reason of insanity on two murder charges. The verdict was based on the testimony of two psychiatrists that the defendant had suffered brain damage which made him unable to appreciate the wrongfulness of his conduct or incapable of conforming his conduct to the law. One of the psychiatrists testified that the defendant was highly dangerous and belonged in a hospital. The Court found defendant to be a danger to himself and others and ordered [14ASR2d96] him confined in the Closed Intensive Security Unit of the Hawaii State Hospital.

In 1982 defendant's counsel moved for his release from the hospital, on the ground that doctors there had determined he was not dangerous and might not have had any brain damage at all. The court denied the motion, relying primarily on the trial testimony with regard to defendant's brain damage and dangerousness.

Defendant's counsel then moved for a conditional release. This time the Court granted release on condition that the defendant "reside with his wife in Los Angeles, California, unless granted permission of the Court to reside elsewhere, " that he refrain from the use of alcohol, and that he consult a physician periodically concerning his mental impairment.

The condition that he reside with his wife in Los Angeles was based on the Court's finding that the fatal impairment of defendant's judgment had been partly due to the strains of living on a small island and partly to pressures imposed by the matai system. These findings, in turn, had been based on the psychiatric evidence offered by the defendant himself at trial.

In 1988 defendant wrote a letter to the then-Chief Justice asking for removal of the condition of living in Los Angeles. The request was denied. American Samoa Government v. Satele, 7 A.S.R.2d 154 (1988). In 1989 there was a new Chief Justice to whom the defendant wrote a similar letter. The request was again denied. Defendant now moves through counsel for the removal of the condition.

Defendant urges first that he was entitled to unconditional release in 1982 and that the condition was therefore wrongfully imposed. We reject this contention for the reasons stated in Satele, supra. The trial judge's conclusions that a controlled environment was necessary to minimize the risk that the defendant's dangerous condition would recur, that his home in Los Angeles was such an environment, and that the island of Tutuila was not, were well supported in the record.

Defendant also presents evidence to show that his condition has now changed sufficiently to allow him to return safely to American Samoa. This evidence consists primarily of a report by a psychiatrist who examined the defendant in December of 1989. [14ASR2d97]

The psychiatric examination was not part of a systematic program of treatment such as had been required by the 1982 order, but was requested by "[t]he attorney and family" for the specific purpose of justifying a return to Samoa.

Far from serving its desired purpose, however, the report confirms that defendant does suffer organic brain damage and that it probably contributed to his violent conduct. (The report also reveals that defendant was involved in yet another killing as a young man, which the psychiatrist believes was also probably caused in part by defendant's organic brain disease.)

The psychiatrist concludes that the brain disease that contributed to the killings has gotten worse rather than better since 1981. Although he then makes a further conclusion that defendant is not presently dangerous to himself or others, this conclusion appears to be based primarily on the defendant's physical weakness and lack of co-ordination. On this evidence we cannot conclude that defendant, two of whose previous killings required no more physical strength than it took to squeeze a trigger, is no longer dangerous.

The only other evidence ---aside from two interviews by a California private investigator with friends of the defendant, one of whom says the defendant was a thoroughly nonviolent person even before the 1981 killings ---is the testimony of defendant's daughter. This testimony has to do primarily with the difficulties the family is having in taking care of the defendant and his wife, who is now very ill. This testimony was very moving, and it does suggest that the defendant might be better off in a hospital than in his present environment. The Court would consider such a modification to its previous orders.

The evidence before us does not, however, support a conclusion that defendant's mental condition has changed in such a way as to warrant modification of the Court's 1982 finding that he would be dangerous if released into the general population in American Samoa.

*********