16ASR2d

16ASR2d

Mahoney v. Mahoney


CAROLYN J. MAHONEY, Plaintiff

v.

JAMES M. MAHONEY, Defendant

High Court of American Samoa
Trial Division

DR No. 81-81

September 10, 1990

__________

Where a party to a divorce decree issued by the High Court which provided for custody and support of the parties' minor children and a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court declined to exercise jurisdiction on the issues of child support and custody, since the courts of domicile or residence could more effectively enforce terms ensuring the children's welfare and best interests and had a more substantial interest in doing so.

Where a party to a divorce decree issued by the High Court which provided for a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court asserted jurisdiction regarding the property issue since the property in question was still located in American Samoa.

Petition to modify the property settlement agreement in a divorce decree on the ground of mistake was denied where the language of the agreement unambiguously stated that one party would pay a fixed sum to another and did not condition such payment on the successful sale of the 'property in question.

Petition to modify the property settlement provision in a divorce decree on the ground of mistake was denied where the provision was part of a final divorce decree that had settled the property rights of the parties for at least ten years.

Court orders providing for property settlements, unlike orders for alimony, may not be modified by the court to reflect changes in the circumstances of the parties.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge. [16ASR2d110]

Counsel: For Plaintiff, Ellen A. Ryan

  For Defendant, John L. Ward II

On Motion to Modify Decree:

The plaintiff herein, now known as Carolyn Kirschman, (hereafter "Kirschrnan") was granted a decree of divorce from the defendant James J. Mahoney (hereafter "Mahoney") on April 22, 1981. The decree provides tor the custody and support of the parties' minor children and also incorporates a property settlement agreement. The property settlement agreement is dated April 22, 1981, and appears to have been signed by both parties and their respective counsel. Clause 4 of this agreement reads as follows: "Defendant shall pay Plaintiff the further cash sum of $6,100.00 within 30 days of the sale of the Sea Ray (boat), but no later than approximately six months from today."

The parties and their remaining minor child have long since removed from American Samoa---Kirschman is now domiciled in Missouri while Mahoney has been living in California. Notwithstanding, Mahoney has specifically returned to this jurisdiction to seek a modification of the decree with respect to his obligations under clause 4 of the property settlement agreement, and with respect to continuing child support. He asserts mistake and changed circumstances as grounds for relief. Mahoney has subsequently added a prayer to his petition seeking an amended custody order on the grounds that the minor now desires to live with him. Kirschman, on the other hand, has appeared through counsel opposing the petition on the grounds of forum non conveniens.

On the issue of custody and child support, we decline to exercise jurisdiction. Absent some showing of special need, it should appear fairly obvious that the best interests and welfare of the parties' 16 year old child demands more than an attempt at long distance evaluation. The courts of domicile or residence have a more substantial interest in the welfare of the child, and they would also be more effective at dealing with the child's best interests and welfare from the standpoint of enforcement. Accordingly, the petition is dismissed to the extent that it seeks to modify the provisions of the decree pertaining to custody and child support.

As to the property issue, we assert jurisdiction since the boat, the subject of clause 4, is still located in American Samoa. As we noted above, Mahoney asserts mistake as a ground for modification of clause [16ASR2d111] 4. He testified that the boat was in a damaged condition at the time of settlement, however, tor purposes of resolving the division of the marital asset, they agreed to assign the boat a resale value of$25,000.00. Since there was at the time an outstanding $12,000.00 mortgage interest against the boat, Mahoney asserted that the figure of $6,100.00 payable to Kirschman, represented an equal division of the sale proceeds less the mortgage interest (which he had agreed to discharge). According to him, the boat could not be readily be sold, as it had actually sustained more damage than they had suspected, and on-island repair services proved inadequate.

Mahoney stated that he was eventually relocated by his employer; however, prior to his leaving the territory, he managed to conclude a certain "Bill of Saleand Sales Agreement" with a Mr. Crispin and a Mr. Jamieson. Under this agreement, Mahoney transferred all his interest in the boat to Crispin and Jamieson. In return, the latter agreed: to pay Mahoney $10,000 within a year; to put the boat into seaworthy condition and sell the same on open market; and, after deducting the sum of $10,000 paid to Mahoney together with out of pocket expenses incurred by them, the sale proceeds would be divided equally among the three of them. Mahoney duly received the recited $10,000 from Crispin and Jamieson, which money he applied against the mortgaged debt --- now fully discharged. As to the boat, it has yet to be made seaworthy, although Kirschman is still seeking to collect the $6,100.00 payable to her under clause 4.

Mahoney seeks to be relieved of the requirements of clause 4, and in lieu thereof, he proposes to offer plaintiff the entire one-third share of the proceeds he would otherwise be entitled to under the agreement with Crispin and Jamieson. He has further suggested that the boat be sold under Court supervision.

We decline the invitation to be involved with supervising the sale of marital property, and for reasons set out below, we deny the petition to modify clause 4. In the first place, the claim to mistake rings hollow when viewed in the context of give and take, compromise and settlement. Had the facts turned out differently and the boat actually attracted a sizable profit beyond the parties' anticipation, could Kirschman have similarly asserted mistake and claimed more money than the agreed $6,100.00? We think not. Quite clearly, the language of clause 4 does not, as Mahoney's claim to mistake seems to presume, condition the payment of the $6,100.00 on a successful and profitable sale of the boat. Rather, Clause 4 of the property settlement agreement simply stipulates [16ASR2d112] that a further payment of $6,100.00 shall be made by Mahoney to Kirschman within a determinate period; that is, "within 30 days of the sale of the boat but no later than approximately six months from today." (Emphasis added.) If the parties had, indeed, intended some aleatory feature with the provision, they could have easily employed more exact expression. As things stand, there is no ambiguity with the wording of clause 4. Furthermore, this provision has been incorporated as part of a final decree that has, for many years now, settled property rights between two people.

Additionally, while alimony orders have been held to be modifiable (as the parties' circumstances change) and enforceable by contempt proceedings, property orders are not so regarded. Warren v. Warren, 361 P. 2d 525 (Wyo. 1961 ); Annotation, Alimony as affected by wife's remarriage in absence of controlling specific statute, 48 A.L.R.2d 270, 302 (1956). Clause 4, as incorporated and made a part of the decree, orders the payment of $6,100.00 by Mahoney to Kirschman as a means of carrying out a division of a marital asset---the boat---as distinct from ordering the payment of periodic alimony. As a provision, therefore, pertaining to the division of property, clause 4 may not thus be modified judicially. See also Pierson v. Pierson, 88 N.W.2d 500 (Mich. 1958); Nelson v. Nelson, 182 P.2d 416 (Or. 1947); Austad v. Austad, 269 P.2d 284 (Utah 1954).

The petition is, accordingly, denied. It is so Ordered.

*********

Opapo v. Puailoa,


OPAPO AFUALO, Plaintiff

v.

PUAILOA TAVETE and SIUFAGA FANENE, Defendants

T.M. PUAILOA, MOEA'I UILIATA, ALAI'A FILIFILI,
and PENIROSA FANENE, Plaintiffs/Objectors

v.

OPAPO AFUALO, Claimant/Defendant

High Court of American Samoa
Land and Titles Division

LT No. 7-88
LT No. 3-89

July 11, 1990

__________

A person who has been shown not to be the landowner may not register the land but, under the common law, may remain in possession until ousted by someone who can prove he is the true owner.

When a party in a title dispute has given a person permission to occupy the land, that person may remain on the land as a licensee until ousted by a person with better title than the licensor.

A jilted licensee cannot ordinarily attack his licensor's title because legal title is none of the licensee's concern; however, if a tract's ownership is truly a concern of the licensee, a party in a title dispute cannot disturb the peaceable possession of the other or of persons occupying by permission of the other until one side proves a better title than the other.

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

Counsel: For Afualo, Gata E. Gurr

  For Puailoa and Fanene, Charles v. Ala'ilima

  For Moea'i, Tau'ese P.F. Sunia [16ASR2d12]

On Motion for Reconsideration:

Opapo Afualo moves for reconsideration of our decision that he does not own the land included within his survey. He relies on the principle that "the person in possession of land is the owner of the land as against anybody except the legal owner." Mageo v. Government of American Samoa, 4 A.S.R. 874, 880 (1963).

It is true that Afualo has been in possession (although not for long enough to establish a claim by adverse possession) of at least part of the land he has offered for registration. It is also true that the Court did not decide which of the other parties is the true owner of the land. Rather, we found that the best evidence of historic occupation and cultivation was by the chiefs of Faleniu, of whom Moea'i and Alai'a were parties to the present case. We also found, however, that this occupation and cultivation mayor may not have been under a license from Puailoa, also a party to the case. We held that the present record was insufficient to decide whether the land is owned by Puailoa or by one or more chiefs of Faleniu.

On these facts, Afualo's claim that he should be allowed to register the land is without merit. To allow registration by someone who has been shown not to be the owner of the land would contravene the letter and purpose of the registration statutes. Nevertheless, the common law rule recognized in the Mageo case would appear to entitle Afualo to continue in his present possession of the land until ousted by someone who can prove he is the true owner.

Because it has been established that the land is owned either by Puailoa or by one or more of the Faleniu parties, these parties collectively might be entitled to evict Afualo if they were united in demanding eviction. At the hearing on the present motion, however, counsel for the Faleniu parties informed the Court that his clients are willing to let Afualo remain for the time being. In light of this information the Mageo rule, or a corollary of it, does appear applicable. If the Faleniu parties themselves were presently in possession, Puailoa would not be entitled to evict them without proving a better title. He has no greater rights against a possessor who has the permission of the Faleniu parties to remain on the land. Afualo can remain on the land as the licensee of the Faleniu parties until ousted by someone who can prove a better title than theirs. [16ASR2d13]

Counsel for Puailoa points out, however, that Afualo formerly occupied the land by permission of Puailoa. He argues that a licensee should not he heard to set up an imperfection in his licensor's title as a defense against eviction by the licensor. This argument would be most persuasive outside the special circumstances of this case. Afualo's parents came on the land not by permission of Puailoa but because of their connection with the Church that was the former occupant of an adjacent tract. Later, when this adjacent tract was held to be the property of Puailoa, Afualo made an accommodation with Puailoa. His right to reach a similar accommodation with the Faleniu parties---who have actively contested Puailoa's claim to the land in dispute, and whose claim, on the evidence now before us, would appear at least as strong as that of Puailoa---is not defeated by his former arrangement with Puailoa.

To put it another way, a jilted licensee cannot ordinarily attack his licensor's title because legal title is none of the licensee's business. In the present controversy, however, the ownership of the tract now occupied by Afualo is very much the business of the Faleniu parties, .just as it is of Puailoa. Until one side proves a better title than the other, neither can disturb the peaceable possession of the other or of persons occupying by permission of the other. That such an occupant once had permission of Puailoa does not vitiate the right of the Faleniu parties to grant a similar permission pending resolution of the question of ownership.

Finally, we note that if Puailoa is the true owner of this land he need not be inconvenienced for long by Afualo's presence. Another case now pending before the Court, LT No.8-87, presents the question of Puailoa's claim to the western slopes of the Malaeimi valley including almost all the land involved in the present case. Puailoa and Moea'i are parties to LT No. 8-87; for reasons discussed in our previous opinion, Alai'a and other chiefs of Faleniu may be entitled to intervene. Should Puailoa prevail over the Faleniu parties in LT No. 8-87, he will be free to evict them and their licensees, including Afualo.

Our judgment is modified as follows: Afualo's offer of registration is denied. Puailoa is enjoined from interference with Afualo's use of or access to the land within the Afualo survey. All parties are enjoined from planting crops in areas within the Afualo survey not currently occupied by their crops, and from building new structures on the land within the Afualo survey. This judgment is without prejudice to the rights of Puailoa and the Faleniu parties to press their claims to [16ASR2d14] ownership of the land in LT No. 8-87 or other subsequent litigation and to exercise all the rights of ownership over such land as they should be held to own in such subsequent litigation.

It is so ordered.

**********

Pioneer Pacific Financial Services, Inc.; Mauga v.


TASI MAUGA, Plaintiff

v.

PIONEER PACIFIC FINANCIAL SERVICES, INC.,
a corporation, Defendant

High Court of American Samoa
Trial Division

CA No. 110-89

July 19, 1990

__________

Plaintiff was held to have accepted the terms and conditions of a contract when he signed and returned it to the other party; his acceptance of payments according to the slated contractual terms also corroborated the fact that he agreed to such terms.

Fact that defendant had not signed the contract in issue was immaterial, since he accepted the terms and conditions of such contract by making payments according to its terms.

Where a contract stated that plaintiff would receive commissions on insurance premiums collected via payroll deduction, defendant was liable for such commissions on premiums collected under a subsequent payroll deduction plan until he gave timely written notice of cancellation to plaintiff as required by the contract.

Defendant could not unilaterally withhold a percentage of the commissions payable to plaintiff on his sales of insurance policies in order to recoup commissions defendant paid on lapsed or cancelled policies, where the contract did not so specify.

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

Counsel: For Plaintiff, Robert A. Dennison III

  For Defendant, John L. Ward II

Introduction

Plaintiff, Tasi Mauga, filed suit against defendant, Pioneer Pacific Financial Services, Inc., alleging the latter's breach of an agreement to pay him certain commissions on premiums for life insurance policies purchased through the defendant by employees of the American Samoa Government (hereafter "A.S.G."). Plaintiff claims that these commissions were promised him by defendant's principal, Mr. Tennyson K.W. Lum, in exchange for plaintiffs help in persuading [16ASR2d17] A.S.G. to collect insurance premiums from its employees through a payroll deduction plan.

Plaintiff initially met Mr. Lum at a time when the latter's company was in the application process for the requisite permits to sell insurance in the territory. The application seemed to be thoroughly bogged down in a morass of bureaucratic red tape. Plaintiff, who was then an A.S.G. department director, came to learn of the defendant's difficulties and offered his assistance to Mr. Lum. The latter candidly testified that he was not averse at the time to any sort of help available from a high government official in the light of his company's plight --- officialdom had somehow managed to lose the various application forms submitted by defendant, who was then required to resubmit new forms.

Discussion

In these circumstances, it is difficult to resist the conclusion that plaintiff held himself out as being in the position to trade in influence, while at the same time a somewhat desperate defendant presented itself as being in the market to buy. Furthermore, it appears quite clear that neither party cared to focus on the possible ethical implications of their newly formed liaison, and here lay the seeds of the controversy. Apart from a generalized expectation of service and payment, neither party was clear at the outset as to the details of the agreement, that is, the extent of performance expected of plaintiff and the compensation payable by defendant.(1) With the benefit of hindsight, however, both sides now have very definite ideas on what the resulting agreement ought to have been. Plaintiff feels that he has provided the defendant with real value since the success of the defendant's venture depended on A.S.G.'s cooperation with a payroll withholding scheme. On the other hand, defendant has lately concluded that it has maintained a payment schedule which defies any commercial sense. Among other things, Mr Lum has subsequently discovered that A.S.G. extended similar collection facilities to other institutions and he now wonders whether plaintiff had indeed anything of value to trade with at the time. We look to the facts.

We find on the evidence that plaintiff did, in July 1988, contact the A.S.G. Treasurer's office concerning the collection of insurance premiums through payroll deduction and that plaintiff was in turn advised [16ASR2d18] that such deductions for premiums could be accommodated if at least one hundred employees were involved in such an insurance plan. We are also satisfied that plaintiff assisted in signing up a certain number of A.S.G. employees towards meeting the required number of participants, and that at some time towards the end of September 1988, a payroll deduction for the premiums was implemented by A.S.G.

We also find that Mr. Lum mailed plaintiff an unsigned contract form purporting to set out defendant's commission agreement with plaintiff (hereafter the "contract form"). The contract form sets out a commencement date of 26 September 1988 and essentially envisages plaintiff as an independent "enroller" soliciting insurance clients and collecting premiums on defendant's behalf.(2) The contract form also contains a termination clause as well as a remuneration clause which sets out an "[e]nroller's fee" schedule which i~ tied to the dollar amount of premiums collected by plaintiff.(3)

I. Side Agreement Commissions

At the very end of the contract form, there is a clause which is introduced as a "side Agreement." It stipulates defendant's agreement "to pay two per cent (2%) of the payments made by way of the Payroll deduction oa [sic] the American Samoa Government Treasury Dept. for a period of five years (5) from the effective date of this agreement...." This side agreement further provides that "[a]ll fees are to be paid within 30 days in receipt of the payment from the Treasury Dept. This Agreement will terminate on 25 Sept. 1993 unless other provisions have been violated and termination is executed." Plaintiff signed this contract form in the space provided for his signature and then mailed the document to defendant's Honolulu office. He saw no more of the original thereafter; however, he made a copy for his own records. Subsequently, plaintiff was paid enrollment fees as contemplated by the mentioned remuneration clause; he also began receiving a two percent (2%) commission (in envelopes marked "confidential") on A.S.G. collected moneys as proposed by the mentioned "side Agreement" clause. The commission payments were haphazardly made, and in several [16ASR2d19] instances payments were delayed apparently without regard to the side agreement's 30 day time limitation for payment.

With fiscal year 1989, there came a change in administration. The incoming treasurer determined that A.S.G.'s continued involvement as a "collection agency for insurance firms," was an unnecessary administrative expense on government. Consequently, the treasurer issued a memo, dated May 22, 1990, giving notice to the insurance companies involved (then numbering four) that A.S.G. would no longer deduct life insurance premiums on its payroll. Following this announcement, the insurance companies sought to have the payroll deduction reinstated by tendering the idea of a reasonable service charge. Within the intervening pay period, negotiations with the treasurer were satisfactorily concluded and a payroll deduction scheme was revived. A service fee of fifty cents ($0.50) per transaction per pay period was agreed upon, with the service limited "to transactions for loan repayments, savings, deductions for A.S.G. employees' life insurance premiums, and deferred compensation plans only.” The defendant stopped paying the two percent (2% ) side agreement commission.

Without too much thought or even regard for consistency, Mr. Lum on the witness stand attempted a number of explanations for the cessation of these payments (obviously with the apparent hope that something would fly). These explanations varied in range: that his company invoked the contract form's termination clause; that as a businessman he had determined that it did not make any business sense to continue paying these commissions; that the payment of these commissions for a period of one year -was about fair; that the contract form ---which Lum said he had not signed and which sets out the side agreement for a five year period of 2% con1missions, as well as the termination clause which Mr. Lum also relies upon was merely something he had sent out to plaintiff as a talking paper rather than as a finalized agreement.

II. Sales Commissions

Plaintiff also was able to earn additional commissions as a salesman for defendant by soliciting policy applications for the various insurance companies represented by defendant. A written agreement to this effect was entered into by the parties. The agreement incorporated different commission schedules for the different principal companies represented. Plaintiffs complaint here is two-fold. The first complaint---that Mr. Lum was only paying his American Samoan agents, including [16ASR2d20] plaintiff, half of what he pays elsewhere and of what is traditionally payable in the industry---is without merit. Although interesting, and perhaps of relevance in another context, plaintiff is bemoaning exactly that which he bargained for in the written agreement he had signed. Plaintiffs second complaint relates to defendant's withholding of $2,743.02 of earned commissions for 1989. These monies reflect a withholding of twenty five percent (25%) of plaintiffs commissions set aside by defendant in an escrow account to offset the contingencies arising with lapsed and cancelled policies. (It goes without saying that insurance companies will expect reimbursement of commissions paid out in advance on a policy which is no longer generating the anticipated premium.) According to defendant, these commission balances are payable on the 13th month following the policy anniversary date less adjustments for charge-backs by the principal insurance company.

Plaintiffs primary contention is that the withholding practice was not provided for in their agreement and was something which Mr. Lum unilaterally insisted upon sometime after the written agreement.

Conclusions

I. Side Agreement Commissions

We conclude that an agreement existed between the parties as evidenced by the contract form. For certain services rendered, defendant sent plaintiff a document (the contract form) stipulating a two percent commission (as opposed to a five percent commission claimed by plaintiff as the original promise verbally made) and a five year period (as opposed to an original verbal offer of ten years as also claimed by plaintiff). The terms and conditions set out in the contract form were accepted by plaintiff when he added his signature and returned the contract form to defendant. His acceptance is also clearly corroborated by his acceptance of payments which the defendant made in accordance with the provisions of the contract form. On the other hand, defendant's subscription to the terms and conditions of the contract form is evidenced by its having performed thereunder by making commission payments to plaintiff. Whether defendant executed the contract form or not is immaterial; its performance unequivocally signified its consent.

The real dispute centers on termination. Defendant eventually sent plaintiff a delayed response for the nonpayment of commissions. By letter dated November 26, 1989, the defendant stated that the government's service fee was an expense not discussed at the time of [16ASR2d21] agreement. Furthermore, the defendant cited the contract form's termination clause(4) as "specifically stat[ing] that if any disruption was to occur with the payroll deduction the Agreement would be terminated automatically...." The letter also belatedly gave notice that commissions were no longer payable after July 1, 1989.

Plaintiff, on the other hand, argues that the payroll deduction plan which he had secured for defendant from A.S.G. was not discontinued within the meaning of the termination clause. Rather, he contends that the effect of the government's action was to merely "suspend" payroll deduction for one pay period.

This argument has no merit. The payroll deduction plan which plaintiff had something to do with was effectively discontinued by A.S.G. as contemplated in the termination clause. The treasurer's agreement to reinstate a payroll deduction service for the different insurance companies involved had all to do with money ---a service fee---and absolutely nothing to do with plaintiffs prior efforts. The previous payroll deduction service relative to plaintiffs efforts was, as of the pay period commencing May 22, 1989, clearly cancelled by the treasurer in no uncertain terms. Indeed, money had purchased for the defendant an expanded service beyond the mere collection of life insurance premiums; the service now offered by A.S.G., according to the treasurer's letter of June 5, 1989, included the collection of loan payments, savings, and deferred compensation deposits.

We conclude that the government's cancellation of the payroll deduction service as aforesaid provided the defendant grounds to invoke the termination clause. However, having said that, we also conclude that the agreement did not terminate as of June 30, 1989, but as of December 31, 1989. The termination provision also provides a specific procedure for terminating the contract. This clause provides that "[either party] may terminate this Agreement b), giving notice in writing to the other at least thirty days prior to such termination date." (Emphasis added). Since the defendant's written notice to plaintiff consistent with the requirements of the termination clause was not provided until sometime after November 26, 1989, the agreement did not, therefore, terminate until thirty (30) days after notice to plaintiff. We hold that commissions [16ASR2d22] are payable by the defendant to plaintiff on all life insurance premiums withheld by A.S.G. through payroll deduction up to the pay period ending January 6, 1990.

II. Sales Commissions

We agree with plaintiff that defendant's withholding practice is outside the ambit of the parties' agreement and may not be unilaterally insisted upon by defendant. (Although the fine print on Sunset Life's fee schedules state that "[a]ll commissions payable are subject to rules and practices as amended from time to time by Company," the meaning of this condition was not expanded upon in the evidence and the condition as it stands certainly does not strike us as having the meaning whereby defendant can do with the contract as it pleases.)

We hold that the earned commissions totaling $2,743.02 are now due and payable to plaintiff subject to any offsets for charge-backs which have now accrued. Although our decision necessarily means that defendant must chase down plaintiff for reimbursement of future charge-backs, that is more consistent with the written agreement than the unilateral invention of a withholding scheme simply because that makes business sense to the defendant.

On the foregoing, the defendant shall, within 20 days from date hereof, file with the Clerk a verifiable accounting of commissions consistent with our conclusions herein. Thereafter, judgment will be entered accordingly.

It is so Ordered.

*********

1. "Influence" is not exactly the sort of commodity which lends itself to ready expression in a written agreement.

2. Plaintiff described himself on the stand as having previously worked for defendant as a "life insurance salesman."

3. The parties are in agreement that an enroller's fee is a one time payment made for signing up life insurance clients. There is no dispute here with enroller's fees.

4. Among other things, this clause essentially provides that either party may terminate the agreement by giving the other 30 days notice, however, "[s]uch termination will not terminate fees paid as listed below except for the following reasons: ...3) The Government deduction setup thru [sic] the payroll is discontinued."

Rosendahl Corp.; Patau v.


FUIFATU SEFO PATAU, Plaintiff

v.

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

High Court of American Samoa
Trial Division

CA No. 29-89

August 29, 1990

__________

Motion to dismiss may be heard on the basis of affidavits alone or through a full evidentiary hearing on the merits. T.C.R.C.P. 12(b)(2).

To properly assert personal jurisdiction over a nonresident. the long arm statute of the proposed forum must permit the exercise of jurisdiction under the particular facts of the case and such exercise of jurisdiction must satisfy the demands of due process.

In order to subject a nonresident defendant to a judgment in personam, due process requires that he have certain minimum contacts with the forum such that maintaining the suit does not offend traditional notions of fair play and substantial justice.

Minimum contacts needed for due process require that a defendant must have performed some act by which he purposefully availed himself of the privilege of conducting activities within the forum, thus invoking the benefits and protection of its laws.

Minimum contacts required for due process insure that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts or because of the unilateral activity of another party or third person.

Jurisdiction is proper where the minimum contacts proximately result from actions of the defendant himself that are purposefully directed toward the forum and create a substantial connection with it.

Minimum contacts required by due process to assert personal jurisdiction were not satisfied where defendant neither designed nor manufactured the machinery alleged to have injured plaintiff in American Samoa, but merely installed piping for the machinery according to third party plans when such machinery was previously installed in another location. [16ASR2d97]

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

Counsel: For Plaintiff, William H. Reardon and Donald F. Hildre

  For Defendant University Industries, Roy J.D. Hall Jr.

  For Defendant Ralston Purina, Robert A. Dennison III

On Motion to Dismiss:

Defendant University Industries Inc. (hereafter "University") had earlier moved under T.C.R.C.P. 12(b)(2) to dismiss the complaint against it for of lack of in personam jurisdiction. Plaintiff, on the other hand, moved to continue the motion in order to allow him the opportunity for discovery to meet the factual issues raised by affidavits filed in support of University's motion. The continuance was granted. After the conclusion of certain depositions, University moved to reset its motion to dismiss, and the matter was duly put on calendar for hearing.(1)

University's first argument concerns the scope of the single tort provision in the territory's long arm statute(2) as a predicate for personal jurisdiction. Defendant argues that this provision applies only in cases where the tortious conduct was committed "within" American Samoa and that the acts relied upon by plaintiff as constituting actionable wrong--- namely, the defective design and manufacture of a piece of machinery--- had taken place in California. The contention here is that the statute predicates jurisdiction only upon the commission of a tortious act within [16ASR2d98] American Samoa, whereas it does not encompass a cause of action stemming solely from an on-island injury which resulted from an off-island wrong.(3)

Secondly, University argues that it nonetheless lacks the necessary "minimum contacts" with American Samoato support the exercise of in personam jurisdiction consistent with the requirements of due process.

Facts

At all relevant times, University, a Californiacorporation with home offices in San Diego, undertook business as mechanical contractors involved with the design, fabrication, and installation of heating, ventilating and air-conditioning systems, plumbing and piping systems in all types of structures. As such, University was subcontracted in 1984 to install, among other things, certain piping for a conveyor system which was being installed for a Ralston Purina fish canning plant located in San Diego, California. The conveyor system essentially comprised a huge rubber-like belt on rollers designed to carry cooked tuna between a line of workers involved with separating the cooked tuna meat from the bones. University had nothing to do with the design of the conveyor system nor its fabrication, save to the extent of installing the pertinent [16ASR2d99] piping. This work was done according to certain plans and specifications provided to University by or for Ralston Purina. The piping provided compressed air and hydraulic fluid to the conveyor as well as certain liquids used in the canning process. Except for some subsequent adjustments to the piping, University heard no more of the conveyor system until sometime in 1988 when it found itself involved with a claim filed inSan Diego alleging, among other things, someone's injury inAmerican Samoa as a result of the conveyor system's faulty design and manufacture. University was neither aware of, nor had anything to do with, the removal of the conveyor system to a cannery in American Samoan. At the same time, University has neither done nor sought business in the territory.

Discussion

The cases have said that in order to properly assert personal jurisdiction over a nonresident, two conditions must be met: the forum's long-arm statute must permit the exercise of jurisdiction under the particular facts of the case, and that the exercise of jurisdiction must be consistent with the demands of due process. See Wyatt v. Kaplan, 686 F .2d 276 (5th Cir. 1982); Greenspun v. Del E. Webb Corporation, 634 F.2d 1204 (9th Cir. 1980); Luckett v. Bethlehem Steel Corp., 818 F.2d 1373 (10th Cir. 1980); see also 2 J. Moore,Moore's Federal Practice, ¶ 4.41-1[3] at 4-443 et seq. (2d. ed. 1985). Even if we rejected University's first argument and concluded that the facts here brought the case within the ambit of the territory's long-arm statute, we think that the assertion of jurisdiction in the present matter would not be consistent with the demands of due process. For reasons indicated below we grant the motion.

In order to subject a nonresident defendant to a judgment in personam, due process requires that he have "certain minimum contacts [with the forum1 such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). In denying a Florida court's assertion of jurisdiction over a Delaware trust account, the Supreme Court in Hanson v. Denckla, 357 U.S. 235 (1958), stated that:

...it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum [16ASR2d100] State, thus invoking the benefits and protection of its laws.

Id. at 253. The Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), spoke of this "purposeful availment" as ensuring that a defendant will not be hauled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, or of the "unilateral activity of another party or a third person." Id. at 475. (citations omitted). The Court further explained that "[j]urisdiction is proper. ..where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum state." Id. (quoting McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957) (emphasis in original)). Most recently, in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), the Court further elaborated that the" substantial connection" required by Burger King and McGee, "between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State." Id. at 112. (emphasis in original).

Applying these guidelines to the relevant facts here, the contacts between the defendant and the territory are at best tenuous, if not outright imaginary, from a due process stance. We reject any suggestion to the effect that the installation of piping to a conveyor system for a cannery in San Diegoconstituted an act whereby University "purposefully avails itself of the privilege of conducting activities within... [American Samoa], thus invoking the benefits and protection of its laws." International Shoe Co., supra. As noted above, the conveyor system was neither designed nor manufactured by University. This defendant's sole involvement with the conveyor system was the installation of piping in accordance with plans produced by a third party specifying the particular needs of a cannery in San Diego. From University's point of view, the conveyor system's presence in American Samoa is tantamount to nothing more than that sort of "random," "fortuitous," or "attenuated" contact resulting from the "unilateral activity of a... third party," which due process disallows as being a sufficient basis to hale a defendant before a foreign jurisdiction. Burger King, supra. Furthermore, the conveyor system hardly qualities as a product of University, and its involvement with the installation of piping in accordance with some third parties' specifications is hardly "an action of the defendant purposefully directed towards... [American Samoa]." Asahi Metal Industry Co., supra. [16ASR2d101]

Conclusion

The complaint against University Industries, Inc., is dismissed for want of personal jurisdiction.

It is so Ordered.

*********

1. Although the Order to continue had anticipated an evidentiary hearing (thus pulling plaintiff to proving jurisdiction by a preponderance of the evidence) we opted to proceed with the motion on the basis of the written materials submitted since plaintiff had also filed a detailed written response to the factual matters raised by the motion. The court has the discretion to proceed on a T.C.R.C.P. 12(b)(2) motion either on the basis of affidavits alone or through a full evidentiary hearing on the merits. Marine Midland Bank N.A. v. Miller, 664 F.2d 899 (2d Cir. 1981).

2. A.S.C.A. § 3.0103(b)(2) provides:

Any person, firm or corporation, whether or not a citizen or resident of this territory, who, in person or through an agent, takes any of the following actions, thereby submits, and if a corporation, submits its personal representative, to the jurisdiction of the courts of this territory, as to any cause of action, suit or proceeding arising out of ...the commission of a tortious act within this territory.

3. This was the construction given by the courts of New York to a like tort provision in that State's long arm statute. See Longines-Wittnauer W. Company v. Barnes & Reinecke, Inc., 209 N.E.2d 68 (1965 N.Y.), cert. denied 382 U.S 905. "[T]he mere occurrence of injury in the State....cannot serve to transmute an out-of-state tortious act into one committed here within the sense of the statutory wording." Id. at 77. The literal reading has not gone without criticism, and it is to be noted that the rule in Longines-Wittnauer was repudiated the following year by an amendment to the New York Civil Practice Law and Rules, effective September 1, 1966. See Annotation, Products Liability - --Jurisdiction, 19 A.L.R.3d 13, § 8(b) (1968). Although the pre-1966 New York provision was taken verbatim from Illinois' influential long arm statute---Ill. Rev. Stat., c. 110, § 17 (1963)---see Longines-Wittnauer, supra, at 84 (Desmond C.J., concurring), the New York Court of Appeals nonetheless declined to adopt Illinois. construction of the provision. The Illinois Supreme Court had earlier held in Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761, (Ill. 1961) that a tortious act within the meaning of the statute was committed in Illinois even though the only contact the defendant manufacturer had with Illinois was the occurrence of the injury there. Rejecting the manufacturer's argument that the legislature, by employing the term "tortious act," rather than the term "tort," referred only to the act or conduct, separate and apart from any consequences thereof, the Court said that to be tortious, an act must cause injury and that the concept of injury was an inseparable part of that phrase; and that the legislative intent should be determined less from technicalities of definition than from considerations of general purpose and effect. Id. at 763.

Tifaimoana Partnership, Ltd.; Mataipule v.


LUAFATA MATAIPULE and PATIOLA MATAIPULE, Plaintiffs

v.

TIFAIMOANA PARTNERSHIPS, LTD. a partnership;
JOSEPH ROMALO; MICHELANGELO 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

August 7, 1990

__________

Under the Government Tort Liability Act, a party may not sue the government in tort until after he files an administrative claim with the Attorney General which is cither still pending or denied within three months of its filing. A.S.C.A. §§ 43.1201 et seq.

Requirement that an administrative claim first he filed is a jurisdictional prerequisite to suit under the Government Tort Liability Act. A.S.C.A. §§ 43.1201 et seq.

Government Tort Liability Act requires a tort claim against the government to be filed within two years after the claim accrues. A.S.C.A. § 43.1204.

"Claim" and "cause of action" are synonymous under the Government Tort Liability Act, though in other situations a "claim" may sometimes be defined as occurring at the time of injury. A.S.C.A. §§ 43.1201 et seq.

Claim under the Government Tort Liability Act accrues when an administrative claim is denied. A.S.C.A. § 43.1204.

Cause of action accrues under the Government Tort Liability Act when the administrative remedies under the Act arc exhausted, because plaintiff cannot seek judicial relief until then A.S.C.A. §§ 43.1201 et seq.

Where a cause of action does not accrue until plaintiff first performs a requisite act and the period for performing such act is indefinite or unspecified, the statute of limitations begins to run after a reasonable time for performance lapses; plaintiff cannot indefinitely suspend the running of the limitations period by delaying the require act. AS.C.A. §§ 43.1201 et seq.

When plaintiff is statutorily required to file an administrative claim with the attorney general before he may sue the government, the filing of such a claim begins an action and tolls the statute of limitations. A.S.C.A. § 43.1204. [16ASR2d49]

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

Counsel: For Plaintiffs, John L. Ward II

  For Defendant Tifaimoana, Robert A. Dennison III

  For DefendantAmerican Samoa Government, Richard D. Lerner

  For DefendantSamoa Packing, Lyle L. Richmond

  For Defendant Zec, William H. Reardon

 

On Motion to Reconsider:

Factual Background

To recapitulate, plaintiffs filed a tort action against a number of defendants, including the American Samoa Government (hereafter the "government"). A tort claim against the government is regulated by the Government Tort Liability Act, A.S.C.A. §§ 43.1201 et seq., (hereafter the "G.T.L.A."). Before the government can be sued in tort, an administrative claim must be first pursued with the Attorney General, and in accordance with regulations established by the Governor, the Attorney General is empowered to settle such claims. If, however, the Attorney General denies or fails to settle the claim within three months of its filing, suit may then ensue. A.S.C.A. § 43.1205. The administrative claim is a jurisdictional prerequisite to suit against the government. Faoato v. A.S.G., CA 036- 79 (1979); Gobrait v. Americana Hotels, Inc., CA 012-78 (1978). The G.T.L.A. also provides for a two year statute of limitations.(1)

In this matter, plaintiffs had tiled an administrative claim within the two year period immediately following the date of plaintiff Luafata's injury, but at a time when less than three months of that two year period remained. Although plaintiffs had urged for a prompt response to their administrative claim, the Attorney General did not deny their claim until the two year period following the injury had lapsed. However, prior to [16ASR2d50] that lapse in time, plaintiffs also filed a complaint with the court while awaiting the outcome of the administrative proceeding.

The government moved to dismiss the complaint. As far as the government is concerned, the G.T.L.A.'s limitation period began to run when plaintiff Luafata was injured, and thus plaintiffs have found themselves between the proverbial rock and a hard place because of the delayed filing of their administrative claim. The submission appears to be as follows: the government was free to take three months to consider the claim, by which time the limitations period would have expired; plaintiff could not file suit before denial of the claim as the court would be without jurisdiction; therefore, plaintiff's claim is time barred.

We denied the motion on the grounds: (a) that the limitations period did not begin to run until .the administrative remedies were exhausted; and (h) that plaintiffs' actions were sufficient to toll the statute of limitations and that any .jurisdictional defect which may have existed when the suit was filed had since been cured.

Discussion

The problem before us stems from an apparent conflict between A.S.C.A. § 43.1204, which sets forth a two year statute of limitations, and A.S.C.A. § 43.1205, which allows the Attorney General three months to consider the administrative claim which must be filed before suit may be instigated. The government's position effectively implies that the limitations period is not always two years but that in certain cases, it is one year and nine months. Less palatable is the suggestion that the government has, in such cases, the unfettered discretion to determine whether the limitations period is in fact two years or one year and nine months, and that, therefore, an aggrieved individual's statutorily created remedy may either be preserved or frustrated at the option of the Attorney General. This cannot be the G.T.L.A.'s net effect.

We look at our earlier analysis again by first examining when the claim accrued and the limitations period began running, and, secondly, whether the filing of the administrative claim was sufficient to toll the statute, assuming it began running on the date of injury.

I. Claim Accrual

The government contends that our earlier analysis was mistakenly based on the accrual of the "cause of action" when instead it [16ASR2d51] should have been premised on the accrual of the "claim."(2) Our use of the terms "cause of action" and "claim" was interchangeable; such usage is not unfamiliar. "Claim" has been defined as "cause of action" where a statute gave persons with claims against the state a right of action in court against the state. Riddoch v. State, 123 P. 450 (Wash. 1912); see also State v. Superior Court for King County, 46 P. 2d 1046 (Wash. 1935); State v. Peterson, 88 P.2d 842 (Wash. 1939); Systems Amusement, Inc. v. State, 500 P.2d 1253 (Wash. 1972). "Claim" was construed as "synonymous with 'cause of action'" in the context of statutes allowing amendments which do not substantially change the claim. Ellis v. Flaherty, 70 P. 586, 587 (Kan. 1902); see also Smock v. Carter, 50 P. 262 (Okla. 1897); Lorretto Literary & Benevolent Society v. Garcia, 136 P. 858 (N.M. 1913). Claim has also been construed to mean cause of action in the context of statutes requiring claim holders to make demands on an estate administrator before maintaining an action, F.T. Crowe & Co. v. Adkinson Construction Co., 121 P. 841 (Wash. 1912), and where claims upon estate administrators were required within one year of published notice to prevent the lapsing of the claim. Newbery v. Wilkinson, 190 F. 62 (E. D. Wash. 1911 ). See also Barlo v. Stewart, 59 P. 480 (Wash. 1899). Finally, Black's Law Dictionary lists "cause of action" as a definition of "claim." Black's Law Dictionary 224 (5th ed. 1979). While these cases do not address the exact situation before this court, they illustrate the broad definition of claim. This is not to say that claim accrual cannot be defined to occur at the time of injury.(3) We turn now to examine statutes similar to A.S.C.A. § [16ASR2d52] 43.1204, satisfied that our usage of "claim" is in conformity with at least one of its general meanings.

The statute textually most similar to A.S.C.A. § 43.1204 appears to be the pre-1966 version of28 U.S.C. § 2401(b),(4) which sets forth the statute of limitations for tort claims against the government under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (hereafter the "F.T.C.A."). This provision read "[a] tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues...." In comparison, A.S. C.A. § 43.1204 reads "[a] tort claim against the government shall be forever barred unless an action on it is begun within two years after the claim accrues.” The two provisions are substantially identical.(5) Considering this version of the F.T.C.A., the court in Tessier v. U.S., 269 F.2d 305 (1st Cir. 1959), noted that "it is too clear for argument that a claim accrues when it may be made the basis of a judicial action." Id. at 309.(6) The court in Beech v. U.S., 345 F.2d 872 (5th Cir. 1965), focused its discussion on when the "cause of action" accrued, although the statute speaks of claim accrual. These decisions support our construction of claim accrual as occurring when the administrative remedies are exhausted. Unlike our statute and the modern F.T.C.A., the pre-1966 scheme did not require the filing of an administrative claim as an absolute jurisdictional prerequisiste to suit. See Katzer v. U.S., 342 F. Supp 1088 (D.C. Wis. 1972); Powers v. U.S., 390 F.2d 602 (9th Cir. 1968).

In contrast, the current version of 28 U.S.C. § 2401(b) reads "[a] tort claim against the United States 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 notice of final denial...." The language of the statute itself clearly distinguishes between "claims" and "actions, " and assigns a different limitations period to each. A situation such as that before this court could not arise under 28 U.S.C. § 2401(b), which seems to have been carefully drafted to avoid just such a conundrum. Indeed, cases construing this provision have held the claim to accrue at the time of the [16ASR2d53] injury. See, e.g., Miller v. U.S., 418 F. Supp 373 (D.C. Minn. 1976). However, the cause of action accrues when the plaintiff can first seek relief in court-- that is, when the administrative remedies are exhausted. Bellamy v. U.S., 448 F. Supp. 790 (S.D. Tex. 1978). This dichotomy is logical in light of the clearly delineated distinction between claims and actions. In contrast, under theAmerican Samoa scheme, the term claim must do double duty, since administrative review is required but the statute does not distinguish between claims and actions.

We next consider 28 U.S.C. § 2401(a), which applies to civil actions and is structurally similar to the American Samoastatute. It reads, "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." Section 2401(a) is similar to our statute in that it sets a single limitations period. It has been held that this statute of limitation does not begin to run until the necessary administrative claims have been denied. See, e.g., Bethke v. Stetson, 521 F. Supp. 488 (N.D. Ga. 1979); Crown Coat Front v. U.S., 386 U.S. 503 (1967). This is a general rule where administrative claims are required. See 51 Am. Jur .2d Limitation of Actions § 115 at 686 (1970); Annotation, Limitations Period as Affected by Requirement of Notice of Presentation of Claim against Government Body, 3 A.L.R. 711, 716 (1949).

It is true that, in many cases holding that the § 2401(a) limitations period begins to run only when the claim has been administratively denied, other statutes independently limited the time available to pursue the claim, as § 2401(a) contains no such limit. See, e.g., Dougherty v. U.S. Navy Bd. For Correction of Naval Records, 784 F.2d 499 (5th Cir. 1985); Geyen v. Marsh, 775 F.2d 1303 (3d Cir. 1986); Bethke v. Stetson, supra. BecauseAmerican Samoa has no statute which would independently limit the time available for administrative review, the government contends that our decision in effect eliminates the statute of limitations and allows a plaintiff to dawdle indefinitely before seeking an administrative remedy. This is a legitimate concern, but it alone does not necessitate a finding that the claim accrued at the time of injury. In other situations where a prerequisite administrative demand has been required, courts have held that a plaintiff cannot indefinitely postpone the pursuit of the administrative remedy:

[W]hen the plaintiffs right of action depends upon some act which he has to perform preliminarily to commencing suit, and he is under no restraint or disability in the performance of such act, he cannot [16ASR2d54] suspend indefinitely the running of the statute of limitations by a delay in performing such preliminary act, and....if the time within which such act is to be performed is indefinite or not specified, a reasonable time will be allowed therefor, and the statute will begin to run after the lapse of such reasonable time.

Valvo v. University of Southern California, 136 Cal. Rptr. 865, 869 (App. 1977); see also Leahey v. Dept. of Water & Power, 173 P.2d 69 (Cal. App.1946); Scates v. State, 383 N.E.2d 491 (Ind. App. 1978); Hamrick v. Indianapolis Humane Society, Inc., 174 F. Supp. 403, 409 (S.D. Ind. 1959); see generally Annotation, Limitations Period as Affected by Requirement of Notice of Presentation of Claim against Government Body, 3 A.L.R.2d 711,721 (1949); 51 Am. Jur. 2d, supra at § 111. Other courts have referred to the doctrine of laches in this situation. Wade v. Jackson County, 547 S. W.2d 371 (Tex. App. 1977); Jackson v. Tom Green County, 208 S.W.2d 115 (Tex. App. 1948). These courts are all applying the same principle, although some of them do not use the word "laches."

Finally, we turn to the government's contention that even if claim has the meaning we have given it, it should accrue at the time of injury. The government contends that of the cases discussed in our previous opinion, only McMahon v. U.S., 342 U.S. 25 (1951), construed a statutory scheme similar to that before us. We have already explained the structural similarities between our statute and its federal counterpart. McMahon is distinguishable from the case at bar. In McMahon, the Supreme Court considered the impact of the Clarification Act, 50 U.S.C. Appx. § 1291(a), on the Suits in Admiralty Act (hereinafter the S.I.A.A.) limitations period contained in 46 U.S.C. § 745. The S.I.A.A. provides that suits thereunder "may be brought only within 2 years after the cause of action arises." 46 U.S.C. Appx. § 745 (1987). Twenty-three years after the passage of the S.I.A.A., the Clarification Act extended to seamen employed on United States (and certain foreign) vessels the same rights with respect to certain claims as those enjoyed by seamen on privately owned American vessels. The Clarification Act gave such seamen the right to sue under the S.I.A.A., but before any claim would be enforced under the S.I.A.A., it must first have been administratively disallowed.

The Clarification Act thus added to the S.I.A.A. a new body of claims which required administrative disapproval as a prerequisite to suit. At the same time, the Clarification Act was silent on the question of the [16ASR2d55] applicable limitations period. The Court therefore inferred Congressional intent to adhere to the previous rule that the cause of action accrues at the time of injury. Before the Clarification Act, all causes of action under the S.I.A.A. naturally arose at the time of injury since suit could immediately be brought. No prerequisite administrative proceedings were required. Congress' failure to add any new provision in regard to the; statute of limitation was the basis of the Court's holding that the cause of action accrued at the time of injury.

The McMahon holding thus clearly relied on a factual and historical context not present here, and merely extends a rule developed for dealing with situations free of administrative claims to situations where administrative claims are required, on the basis of Congress' failure to otherwise specify.

In sum, having considered the definition of claim. the two versions of 28 U.S.C. § 2401(b), and 28 U.S.C. § 2401(a), we hold that for the purposes of A.S.C.A. § 43.1204 a claim accrues when the administrative claim is denied. This imparts a certain duality to the term "claim"; an administrative "claim" is different from the "claim" which accrues to begin the running of the limitations period. But this is not outside the boundaries of the definition of "claim.” As drawn, the statutes are in conflict; there is more latitude for judicial interpretation of the term "claim" than there is for construction of the term "two years" to mean one year and nine months. Such a rule imposes no liability on the government; it merely allows the plaintiff to have his day in court. Also, through either laches or a judicially imposed prohibition on unreasonable delay in seeking administrative review, the infinite extension of the limitations period is easily avoided. While this approach may pose certain difficulties, it is nevertheless preferable to the mauling pf the statute proposed by the government.

The G. T .L.A. is apparently wanting and requires fixing, but that is a task constitutionally assigned to the Fono. Congress has clarified the enactments dealing with government tort liability at the federal level. The G.T.L.A. only partially reflects its federal counterpart in that the imposition of an administrative review requirement was not accompanied by a corresponding change in the limitations period. The territorial situation is thus unique and, therefore, the federal experience as explained by the federal courts is not directly apposite for purposes of interpreting the G.T.L.A. [16ASR2d56]

II. Tolling

We previously held that the filing of an administrative claim was sufficient to toll the statute of limitations.(7) A.S.C.A. § 43.1204 requires a tort action to begin within two years of the claim accrual. We declined to decide whether the filing of a complaint which failed to invoke the court's jurisdiction was sufficient to toll the statute. (8) The administrative claim was required by statute as part and parcel of the plaintiffs’ remedial course, which would culminate in a lawsuit upon an unfavorable administrative decision. We hold that filing the claim with the Attorney General constituted beginning an action within A.S.C.A. § 43.1204, as the administrative claim was not an independent action but was the first and mandatory step in the plaintiff's recourse to the courts.

We are not persuaded by the government's citation of Smith v. U.S., 873 F.2d 218 (9th Cir. 1989), which held that filing a claim does not toll the statute of limitation under the Suits in Admiralty Act. The S.I.A.A. states that" [s]uits as herein authorized may be brought only within two years after the cause of action arises...." 46 U.S.C. Appx. § 745 (1987) (emphasis added). In contrast, American Samoa's statute requires only that an "action begin." At least when it is a statutorily required precursor to a lawsuit, the filing of an administrative claim satisfies the American Samoa standard of "beginning an action," although it may not meet the S.I.A.A. requirement of "bringing a suit." In any case, the S.I.A.A. is not controlling on this question. Statutes of limitation have been viewed as being tolled while administrative review was sought. Valvo v. University of Southern California, supra; see also Walley v. U.S., 366 F. Supp. 286 (E.D. Pa.) (statute allowed tolling).

The motion to reconsider is denied.

It is so Ordered.

*********

1. A.S.C.A. § 43.1204 provides: "[a] tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues."

2. The government correctly points out that the GTLA was "misquoted" by the court. A.S.C.A. § 43.1204 reads "[a] tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues." (emphasis added), whereas our rendition or it began "[a] tort action against the government...." Our substitution here of "action" for "claim" is unfortunate as it has obviously distracted attention from our examination of the statute.

3. The government cites two American Samoa cases for this proposition. In Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88 (1988), the court apparently considered the claim to have accrued at the time or the filing of the administrative claim with the Attorney General, although the court may have been extending every possible benefit of the doubt to the plaintiff, since his cause of action was barred anyway. This case lends little support to the government's position on the time of claim accrual; neither does it confront the specific issues before us here. The other case cited, Vai Ah Mai v. A.S.G., 11 A.S.R.2d 133 (1989), discusses the accrual of a claim in a malpractice context, where a plaintiff may not even be aware of an injury for some time after it occurred. Neither case is particularly helpful in this situation involving tension between the statute of limitations and the mandatory administrative review provisions.

4. A.S.C.A. § 43.1204 was enacted in 1967.

5. The federal statute contained additional language not quoted here which granted, in certain cases, the option of filing an administrative claim.

6. In this case, the claim was held to accrue at the time of injury; there was no requirement that an administrative claim be filed before bringing suit.

7. This portion of the discussion assumes that the statute of limitations began running at the time of injury.

8. In this case, the plaintiff filed the complaint before the limitations period expired (and before the administrative denial) in an attempt to toll the statute of limitations.

Thompson v. National Pacific Ins.,


ERNEST THOMPSON, Plaintiff

v.

NATIONAL PACIFIC INSURANCE, Defendant

High Court of American Samoa
Trial Division

CA No. 47-90

September 19, 1990

__________

Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated by a person under the influence of intoxicating liquor or any drug, but continued coverage provided on behalf of "any other person or party" who proves he did not consent to the vehicle being driven by the intoxicated driver, "any other person or party" refers to third party beneficiaries rather than the insured.

Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated by a person under the influence, hut continued coverage provided on behalf of third party beneficiaries who did not consent to the vehicle being driven by the intoxicated driver, defendant insurance company was granted summary judgment against plaintiff insured who had not consented to his intoxicated brother driving the vehicle, since the exception to the exclusionary clause did not apply where the indemnity and/or insurance was provided on behalf of the insured.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Justice, and VAIVAO, Associate Judge. [16ASR2d115]

Counsel: For Plaintiff, Ellen A. Ryan

  For Defendant, John L. Ward II

On Motion for Summary Judgment

Plaintiff Ernest Thompson is the owner of a pick up truck which was damaged in a single vehicle collision. At all relevant times, the truck was insured by defendant National Pacific Insurance and driven by plaintiffs brother Bert, who was then visiting the island and had taken the vehicle without specifically notifying or asking plaintiff. As a result of the collision, Bert was cited and convicted of the following traffic violations: operating a vehicle without a valid driver's license and operating a vehicle while under the influence of alcohol.

When plaintiff made a claim on his motor vehicle policy for damage to the pickup truck as a result of the collision, defendant denied the claim. The basis for the denial is an exclusionary clause in the policy which, the defendant contends, does not extend coverage to damages occasioned to the truck while it is being operated by a person under the influence of intoxicating liquor, or by a person who is not validly licensed to drive in the territory. In its motion for summary judgment, the defendant cites clause 4 (a) and (e) in the policy, which in pertinent part reads as follows:

THIS POLICY DOES NOT COVER --- 4. Loss damage liability and/or compensation for damage... caused whilst the Motor Vehicle--- (a) is being driven by... any person under the influence of intoxicating liquor or of any drug provided that this exclusion shall not apply to
indemnity and/or insurance provided on behalf of any other person or party if such other person or party proves that he did not consent to the
Motor Vehicle being driven by or being in charge of the person when such person was under the influence of intoxicating liquor or of any drug.
..... [16ASR2d116] (e) is being driven by... any person with the consent of the Insured if the driver was not duly authorised under all relevant Laws By-Laws and Regulations to be driving such vehicle for the purpose for which it is being used.

Discussion

The parties agree that the case is an appropriate one for summary judgment; however, they have differing views on the correct construction of the exclusionary clause. The defendant contends that the policy does not cover damages to the pickup truck arising while the vehicle was being driven by a person under the influence of intoxicating liquor. Plaintiff, on the other hand, reads the proviso attached to clause 4(a) as having the effect of maintaining coverage in circumstances where an insured can prove that he did not consent to the use of the vehicle by the driver.

On this point, we have to agree with the defendant. The proviso clearly refers only to "indemnity and/or insurance provided on behalf of any other person or party" (emphasis added), whereas in contradistinction, plaintiff is referred throughout the insurance contract as the "insured." The proviso's reference to "any other party" is plainly a reference to third party beneficiaries, not the insured, and thus in the circumstances before us the question of consent or absence of consent has no bearing at all on whether the exclusionary clause 4(a) applies or does not apply.

We conclude that the damages here claimed are excluded from coverage under the terms of policy. Defendant's motion for summary judgment is granted.

It is so Ordered.

*********

Utu v. Paolo


UTU SINAGEGE and UTU FAMILY, Plaintiffs

v.

PAOLO SIVIA, MOENOA IOPU,

and PAOLO FAMILY, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 45-90

September 12, 1990

__________

Preliminary injunction was granted where plaintiff showed he was likely to prevail on the merits at trial and would suffer great injury before then if defendant was not enjoined from continuing construction of a house on land whose ownership was disputed. A.S.C.A. § 43.1301(j).

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

Counsel: For Plaintiffs, Utu Sinagege R.M.

  For Defendants, Togiola T.A. Tulafono

On Motion for Preliminary Injunction:

This matter came on regularly for hearing the 11th day of September, 1990, upon plaintiff’s motion for a preliminary injunction to enjoin the defendants from constructing a FEMA hurricane relief home on a site adjacent to the graveyard situated towards the rear of the respective existing guest houses of the Utu family and Paolo family, in the village of Amouli.

The Court finds sufficient grounds for the issuance of a preliminary injunction. The evidence preponderates in favor of plaintiffs in terms of the likelihood of prevailing on the merits at trial, and after weighing the equities between the parties, it appears likely that great injury will result to the applicant before a full and final trial can he had on the merits. A.S.C.A. § 43.1301(j). [16ASR2d114]

Accordingly, and pending the final disposition of this matter or further order of this Court,

The defendants and each of them, and those in concert with the defendants, are hereby enjoined from continuing the construction of a FEMA home on that site adjacent to the graveyard situated towards the rear of the respective existing guest houses of the Utu family and Paolo family, in the village of Amouli.

It is so Ordered.

*********

Uli v. Talaeai,


ANA ULI, Plaintiff

v.

PA'U TALAEAI, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 31-90

July 18, 1990

__________

Plaintiff established sufficient grounds and was granted a preliminary injunction enjoining defendant from interfering with attempts to repair damage to plaintiff's home, where plaintiff's claim to reside on family lands was based on the fact that the matai and family had permitted her to use and occupy the homesite for ten years, while defendant's claim was based on the more tenuous ground that her immediate family exclusively owned the communal land in issue. A.S.C.A. § 43.1301(g), (j).

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

Counsel: For Plaintiff, Tau'ese P.F. Sunia

  For Defendant, Togiola T .A, Tulafono

On Motion for Preliminary Injunction:

For more than 10 years, plaintiff has had a home located on a certain portion of Uli family lands in the village of Aua. The home was originally built with the permission of the late Uli Solomona, whom plaintiff claims was her natural father. As a result of hurricane Ofa, [16ASR2d15] plaintiffs home was partially destroyed and she is attempting to repair the damage. Plaintiffs efforts, however, at attempting any sort of repairs have been consistently frustrated by her neighbor, the defendant Pa'u Talaeai. (Among the interim assistance afforded victims of hurricane Ofa were F.E.M.A. supplied tarpaulin covers for homes with damaged roofing. Pa'u turned away an Army crew who attempted to render plaintiff such provisional shelter relief.) Defendant Talaeai claims that she is the granddaughter Ofa Uli Fa'ate'a and that the true owner of the Uli lands is Uli Fa'ate'a (and therefore his heirs) to the exclusion of Uli Solomona and his heirs. Defendant not only claims that the former Uli Solomona was not blood heir of the Uli title but that Uli Solomona was not plaintiff's father. Plaintiff seeks a preliminary injunction to enjoin the defendant from further interference with her repair efforts.

We grant the preliminary injunction satisfied on the evidence that "sufficient grounds" -- pursuant to the requirements of A.S.C.A. § 43.1301(g) and A.S.C.A § 43.1301(j) -- have been established. The plaintiffs claim of entitlement to family lands is supported by matai permission and ten years of family acquiescence in her use and occupation of her homesite, while defendant's claim to superior entitlement rests on the troublesome notion of exclusive ownership of communal land by her immediate family. As a result, defendant's various attempts at interfering with plaintiffs repair work have approached being misguided attempts at usurping "pule."

It is ORDERED that defendant, Pa'u Talaeai, together with her agents, servants, and those in active concert with her, is hereby enjoined, until further order of court, from any interference whatsoever with the plaintiff, Ana Uli's, attempts to repair the hurricane damage to her home located in the village of Aua on Uli family lands.

**********

Lualemana v. Atualevau,


LUALEMANA E. FAOA, Plaintiff

v.

ATUALEVAO SOSENE ASIFOA and LEFOTU TUlLESU
Defendants

LUALEMANA E. FAOA for LUALEMANA FAMILY and 
VILLAGE OF A'ASU, and TUITELE K.A. LE'OSO for 
VILLAGE OF LEONE, Plaintiffs/Objectors

v.

A'OLOAU VILLAGE COUNCIL, Defendant/Claimant

A.U. FUIMAONO and the VILLAGE OF A'OLOAU, Plaintiffs

v.

TOLUAO FETALAIGA, Defendants

TUANAITAU TUIA, AVA VILI, TOLUAO FETALAIGA for 
themselves and the VILLAGE OF PAVA'IA'I, Intervenors

LEPUAPUA STANLEY MASSEY UTU, for himself and 
on behalf of the UTU FAMILY, Intervenor

TUILEFANO VAELAA, TUIAGAMOA, TUIOLEMOTU, and 
TUITASI for "AlGA AITULAGI," Intervenors

High Court of American Samoa 
Land and Titles Division

LT No. 29-86 
LT No. 41-86 
LT No. 12-87

August 6, 1990

__________

If there has been no occupancy or possession but only an occasional visit to the bush, such use was insufficient to defeat the land claim of people who came later to clear the area, make plantations, and occupy it continuously. [16ASR2d35]

Land can only be registered by its owner and not a village, because the concept of village ownership of land is ordinarily contrary to Samoan custom and tradition. A.S.C.A. §§ 37.0101 et seq.

A valid registration effected in accordance with statutory procedures establishes a title good against the world. A.S.C.A. §§ 37.0101 et seq.

A registration which appears on the face of its own record not to have been conducted in accordance with the statutory procedures, such as the failure to post notices and announce the survey in the village where the land is actually located, conveys no title.

Even if it would not exceed the Court's power, declaring a prior judicial decision null and void, when witnesses have died and memories have faded in the intervening thirty years, would be imprudent and unjust because the Court at that time was in a much better position to determine the issues material as to whether land should be registered.

Acquiring land under an adverse possession statute requires open, notorious, continuous, and exclusive possession.

Actual occupation with a claim of ownership-- not the exercise of power over the actual occupants at some time in the distant past, nor even present political authority over a village, county, or district-- is the best evidence of land ownership in American Samoa.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and VA'A, Associate Judge.

Counsel: For Plaintiffs LualemanaTuitele, and the Villages of A'asu and Leone, Afoa L.S. Lutu

  For Plaintiffs Fuimaono and the Village of A'oloauGata E. Gurr

  For Defendants Atualevao and Lefotu, Charles V. Ala'ilima

  For Intervenors TuanaitauAvaToluao, and the Village of Pava'ia'iTau'ese P. Sunia

  For Intervenors Utu family, Togiola T .A. Tulafono

  For Intervenors Aiga AitulagiTuiasosopo Mariota II

These consolidated actions concern the ownership of over 400 acres of land on and around Mount Olotele, comprising the village of A'oloau Fou and its environs.

In 1986 an injunctive action (LT No. 29-86) was brought against Atualevao Sosene Asifoa and Lefotu Tuilesu, two chiefs of A'oloau, by Lualemana, the principal chief of the neighboring village of A'asuLualemanaclaimed that Atualevao and Lefotu had begun cultivating portions of A'asu lands called Tuaolo and FaleselauFuimaono and the [16ASR2d36] Village Council of A'oloau intervened, asserting that the disputed land was part of A'oloau and not A'asu.

Shortly thereafter Fuimaono and the Village Council offered for registration as "a communal land of the Village of A'oloau" two parcels comprising about 420 acres. Objections were filed by Lualemana on behalf of his family and the village of A'asu and by Tuitele on behalf of the village of Leone. The registration case was referred to the High Court and designated LT No. 41-86.

In November of 1986 several chiefs of Pava'ia'i, another neighboring village, moved to intervene "for themselves and the village of Pava'ia'i" in the injunctive action, LT No. 29-86. If any party had contested this motion it would probably have been denied, since it is now clear that the Pava'ia'i chiefs had no interest in the area that was being disputed in LT No. 29-86. Rather, their objection was to certain parts of the A'oloau survey offered for registration in the other case, LT No. 41-86. These areas were at the opposite end of the 420-acre survey from the area being disputed with Lualemana in the injunctive action. The Pava'ia'i chiefs had, however, missed the statutory 60-day deadline for filing objections to the survey, perhaps because it was posted only in A'oloau and not in Pava'ia'i. Rather than state this lack of notice as a ground for allowing an otherwise untimely objection in the registration action, they sought admission through the side door represented by the Lualemana injunctive action. Hearing no objection, and thus far unaware that the intervenors planned to assert no interest in the subject matter of the action in which they sought to intervene, the Court granted the motion.

The third and last of the cases now before us, LT No. 12-87, was filed early in 1987. In this case Fuimaono and the A'oloau Village Council sought an injunction against Toluao Fetalaiga of the village of Pava'ia'i. They alleged that he had recently begun occupying and cultivating part of the land recently offered for registration by the village of A'oloau and had thereby destroyed crops belonging to various A'oloau families.

The cases were consolidated for trial. After consolidation yet another set of parties, the"Aiga Aitulagi," moved to intervene. The motion was granted without objection. The Utu family of A'oloau also intervened. After several postponements, the consolidated cases were tried on May 16-18, 1990. The record was held open for certain post-[16ASR2d37]trial submissions, and the case was then taken under advisement. We address herein the claims asserted by each of the parties.

I. The A'oloau Survey

The evidence establishes that the two parcels included within the A'oloau survey represent, with certain limited exceptions discussed below, lands that have been occupied and cultivated from virgin bush at various times since 1943 by various families of A'oloau and that are the property of those families. In 1946, when the village completed its move up the mountain from its former location on the North Shore, a boundary was settled withA'asu which by then had begun a similar migration. See Lualemana v. Brown3 A.S.R. 348, 350 (1958). The survey now offered for registration generally respects that boundary and the pattern of settlement of the two villages over the ensuing 44 years. In one place, however, it transgresses the traditional boundary and also encroaches on a tract of land already registered as the property of the Lualemana Family of the village of A'asu. This encroachment is reflected on the composite map designated Exhibit 13, in the overlap between "Parcel B- Two" of "A'oloaufou" and the 85.66 acre registered survey of "Tuaolo & Faleselau." Not only has the latter survey been registered in accordance with law for over 20 years, it also more nearly reflects the pattern of settlement than does the A'oloau survey, The boundary line drawn by the Lualemana/A'asu survey heads northward from the main road at a point corresponding to the intersection with an old road to A'asu Tuai. Witnesses for all parties acknowledge this intersection to be a turning point in the boundary between the two villages. The A'oloau survey, in contrast, turns northward from the main road at an apparently random point and includes houses along the main road belonging to A'asu people whose right to live there has not previously been disputed. Indeed, the principal A'oloau witness seemed surprised to find that his village's survey included these houses.

A small portion along the southern boundary of the A'oloau survey is also contested by Tuitele on behalf of the village of Leone. The evidence reflects that a settlement of this boundary was reached between Fuimaono andTuitele in or around 1988, in which Fuimaono on behalf of the Village Council conceded the disputed portions (reflected in Tuitele Exhibit 2, Drawing RPS2-5-30-88) to the Leone claimants. Although, for reasons we shall discuss, it is not clear that this agreement is binding on any particular A'oloau family that may claim to own the land, it is sufficient to support the only relief requested by Tuitele in the [16ASR2d38] present action, i.e., the denial of the offer of registration of the disputed portions as property of the Village Council of A'oloau.

The Pava'ia'i intervenors object to a somewhat larger area in the southern and eastern portions of the A'oloau survey. They have introduced their own surveyor the area they call "Lago," said to belong to the "Ali'i and Families of Pava'ia'i." Their witnesses testified that this survey reflects the traditional boundary between the county (a term now used to describe a traditional grouping of villages) to which Pava'ia'i belongs and that to whichA'oloau and A'asu belong. One Pava'ia'i witness also testified that his father had once cultivated a plantation somewhere in Lago.

We are not convinced that Pava'ia'i people ever cultivated or occupied Lago. If they ever did, they seem to have abandoned it long before the A'oloau people arrived. The Pava'ia'i witnesses' objection to this part of theA'oloau survey appears to be grounded primarily in their conviction that the survey transgresses an ancient political boundary. The principal A'oloau witness, on the other hand, places the traditional boundary at the bottom of the mountain near what is now the center of Pava'ia'i. Perhaps both are right: the ancient history of this part of Tutuila seems to be one of domination first by one powerful chief and then by another, and it is only natural that the successors of each should cherish the memory of an age in which the men were stronger and the boundaries further. See Lualemana v. Chiefs of Aitulagi4 A.S.R. 383 (1963). The evidence establishes, however, that most of the cultivations in the Lago area are those of A'oloau people who came there at some time after 1946 but well before the 1980s when Pava'ia'i began to assert or reassert its claim. Nor is there any evidence that the A'oloau people displaced people from Pava'ia'i or anywhere else when they came to Lago; its traditional use by Pava'ia'i, if any, was as a place to gather and prepare for frontier skirmishes, presumably before the coming of the present government in 1900.

In assessing a similar claim by Pava'ia'i to traditional ownership of land even further up the mountain toward the center of A'oloau and A'asu Fou, the Court observed that "[i]f prior to the war a Pava'ia'i chief and his family had cleared from the bush the land. ..and put in plantations on it... it would have been that family's communal property, but such was not the case. There was no occupancy or possession by the Pava'ia'i people but only an occasional visit to the bush there...." Lualemana v. Brownsupra, at 352-53. Such use was insufficient to defeat the claim of people who came later to clear the [16ASR2d39] area, make plantations, and occupy it continuously. Id. We reach the same conclusion with respect to almost all the land within the A'oloau survey that is also within the Pava'ia'i survey.

An exception is a small strip along the eastern boundary of the A'oloau survey, appearing on the topographical map designated Atualevao Exhibit 12 as the eastern slope of an 1183-foot peak. This land does not appear to be cultivated by anyone, and it is just uphill from a cinder pit long used by Tuana'itau and Toluao of Pava'ia'i and held in Leomiti v. Toluao, 11 A.S.R.2d 49 (1989), to be the communal property of those two families. This area is also quite close to a tract held in the same case to be the property of the Leomiti family of Pava'ia'i and to another tract which, although outside the A'oloau survey, has long been occupied and cultivated by Lefotuof A'oloau and was held to be that family's communal property in Leomiti, supra. We have not been presented with composite survey maps enabling us to determine the overlap, if any, between the surveys by the Villages of A'oloau and Pava'ia'i and the various tracts already registered as the land of ToluaoTuanaitauLeomitiLefotu, or other families of the two villages.

As our discussion of this area on the eastern border indicates, the evidence in the present case is insufficient to enable the Court to draw a precise boundary between these two villages. Nor is it necessary or even appropriate for the Court to draw such village boundaries in the context of a land registration case. For, as the Court held in Olo v. Fuimaono, AP No.27-81 (April 18, 1982), land can only be registered by its owner, and its owner is almost always a family rather than a village. In Olo v. Fuimaono the Appellate Division reversed a Land and Titles Division decision to the effect that certain land belonged jointly to the villages of Leone and A'oloau. The Appellate Division observed that "[r]arely has there been a situation where a village itself owned property in its own name." Id., slip opinion at 4. With one limited exception, not applicable to that case or the present one, "the concept of' village ownership of land proposed in this case is contrary to Samoan custom and tradition." Id.

It is clear that at least some families of A'oloau regard their lands within the A'oloau survey as their own property, not the property of the village, and no evidence has been offered to rebut the presumption that the land is held in accordance with the usual Samoan customs governing land ownership. Accordingly, the village survey cannot be registered. If particular families of A'oloau wish to offer their lands within the survey for registration, they are of course free to do so. [16ASR2d40]

We do not mean to imply that the drawing of village boundaries is of no use whatever. Indeed, the settlement of such a boundary between A'oloau and Pava'ia'i, along the lines of actual cultivation and occupation by families of the two villages during the last forty years or so, might help to avert future controversies. But the law requires registration of any tracts on either side of such boundaries to be by the owners, not the villages.A.S.C.A. §§ 37.0101 et seq.Olo v. Fuimaonosupra.

II. The Lualemana Injunctive Action

In the action that precipitated these cases, Lualemana sought an injunction against the plantations of two A'oloau families within the Lualemana family's registered survey. It is worth noting that this survey comprises most if not all of A'asu Fou. Such a registration was possible only because of the unusual fact that every family in A'asu stipulated that it was part of the Lualemana family and that its lands in A'asu Fou were held in its capacity as part of that family. Asu Village Chiefs v. Village of Asu, CA No. 40-1961 (August 10, 1961).

A valid registration effected in accordance with statutory procedures establishes a title good against the world. See A.S.C.A. §§ 37.0101 et seq.Ifopo v. Siatu'u, 10 A.S.R.2d 66 (1989). As counsel for Atualevao andLefotu points out, however, a registration which appears on the face of its own record not to have been conducted in accordance with the statutory procedures conveys no title. Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). One such facial defect is failure to post notices and announce the survey in the village where the land is actually located. Afualo v. Fanene, 15 A.S.R.2d 48 (1990).

In the present case the witnesses for Atualevao and Lefotu say they never saw any notices of the 1961 Lualemana survey posted in A'oloau, nor did they hear any announcements. The Court file contains a certificate of public oral notice in A'asu but not in any other village. However, the tile also contains a letter from the Clerk of the High Court to the pulenu'us of A'asuPava'ia'iFaleniu, and A'oloau requesting that notices be posted in each of these villages. This letter is unusual if not unique, and indicates that the Court or an officer thereof foresaw exactly the problem now raised by these defendants.

From the record we cannot tell whether the Clerk's request was honored in other villages than A'asu. It does appear, however, that at least some notice was given in A'oloau: the posting place for A'asu is a [16ASR2d41]telephone pole on the main road that separates that village from A'oloau, and a notice visible in one village would be equally visible in the other. Moreover, the transcript of the 1961 Court hearing indicates that Fuimaono, the principal matai of A'oloau, was actually present at the hearing. Indeed, he seems to have acted as a mediator between Lualemana and the objectors to the survey.

In any event, in order to prove the registration invalid the defendants would have to establish that the land in question is part of A'oloau rather than A'asu. This they have not done. The land in dispute between them andLualemana is located along a road between A'asu Fou and A'asu Tuai, at some distance from the point where that road diverges with the old road to A'oloau Tuai. Although one of the defendants testified that a Lualemanamade a boundary settlement favorable to the defendant at some time during the 1970s, this sheds little or no light on where the boundary was in 1961. The presence of Fuimaono at the hearing and his failure to object suggests a consensus that this land was part of A'asu rather than A'oloau. Notice in A'asu would therefore have been sufficient.

Finally, however, there is a world of difference between a Court's noting the facial invalidity of documents filed in the office of the Territorial Registrar, as we did in Faleafine, and declaring that a prior judicial decision is null and void, as counsel for these defendants would have us do here. The Court in 1961 had the whole record before it, including the certificate of notice and the letter from the Clerk of Court to the four pulenu'us---and perhaps also including other documents that have since gone missing as so many Court documents unfortunately do. The Court then was in a far better position than we are to determine to which village the land was generally regarded as belonging, the circumstances under which constructive and/or actual notice was given, and the other issues material to determining whether the land should be registered. The Court concluded, after some deliberation, that the land was the property of the Lualemana family and should be registered as such. To ignore or nullify such a decision thirty years later, when witnesses have died and memories have faded, even if it would not exceed our power, would be imprudent and unjust.

Atualevao and Lefotu also claim that they occupied the land for twenty years after 1961, thereby obtaining ownership under the adverse possession statute then in force. The evidence fails to establish, however, that defendants' occupation of land within the Lualemana survey was open, notorious, continuous, or exclusive for the full twenty [16ASR2d42] years. Indeed, it is not at all clear when defendants extended their plantations into the Lualemana survey; and the record affirmatively suggests some discontinuity in the maintenance of defendants' plantations.

We are also unpersuaded by the testimony of (me of the defendants to the effect that a former Lualemana re-settled the village boundary along the old road now claimed by the defendants as their boundary. It is undisputed that Lualemana only pointed to this road as the boundary at the place where it intersects the government road. This is more or less consistent with the boundary reflected in the Lualemana survey. Defendants would have us infer that Lualemana also meant to designate the old road as the boundary all the way to where uetenuants' plantations are, although by that point it digresses from the boundary of the registered Lualemana survey and although there is no evidence that Lualemana said anything one way or the other about how far the road extended as a boundary. We decline to draw such an inference.

Accordingly, the Lualemana family is entitled to an order enjoining defendants from further occupation or cultivation within its registered survey.

III. The Injunctive Action Against Toluao

Although the A'oloau Village Council did not prove its right to register its survey, it did prove that the lands in the "Lago" area, with the exception discussed in Part I of this opinion, have been occupied and cultivated by families of A'oloau. In this action, although not in the registration action, the interests of the Village Council were identical to those of the various A'oloau families whose plantations were displaced when Toluao began occupying this area in the mid-1980s, and no party has objected to the Village Council's standing to act as an agent for these families. Accordingly, an order will issue enjoining Toluao from further occupation or cultivation of land within the A'oloau survey, with the exception of the area along the eastern boundary described in part I of this opinion.

The A'oloau parties also request damages for crops destroyed by Toluao, but did not prove the amount of any such damages. Such relief will therefore be denied.

IV. The Utu Intervention [16ASR2d43]

The Utu family of A'oloau intervened to protect its rights to a small parcel in the Lago area that is within both the A'oloau and the Pava'ia'i surveys, and which Toluao had begun to occupy and cultivate. All parties have stipulated that this parcel is the communal land of the Utu family, with the exception of Lelotu who claims that the Utu survey encroaches on his registered survey of land called Lagomau (an altogether different land than the one involved in the dispute between Lefotu and Lualemana). Counsel for Lefotu and Utu requested that the Court not adjudicate this conflict. As we have determined that the A'oloau Village Council survey cannot be registered, and that Toluao should be enjoined from further occupation of Lago, there would be nothing left for us to adjudicate even in the absence of the stipulations. (There was never any question of registration of thePava'ia'i survey, which was offered only as an exhibit; and the Utu family's request for crop damages from Toluao has presumably been waived by the stipulation between counselor these two parties, which does not mention such damages.)

V. The "Aiga Aitulagi" Intervention

The ancestors of the Aiga Aitulagi appear once to have exercised political authority and military power over a large area of western Tutuila including much or all of the area now in dispute. See Lualemana v. Chiefs ofAitulagi4 A.S.R. 383 (1963). In the present case, however, the Aiga Aitulagi presented no evidence of occupation or cultivation. Actual occupation with a claim of ownership ---not the exercise of power over the actual occupants at some time in the distant past, nor even present political authority over a village, county, or district ---is the best evidence of land ownership under the laws of American Samoa. See Id. at 402; Seva'aetasi v.Fanene, 9 A.S.R.2d 118 (1988).

The claim of the Aiga Aitulagi to ownership of A'oloau Fou is barred in any event by collateral estoppel. The identical claim was raised and rejected in Tuilefano v. Government of American Samoa, 4 A.S.R. 594 (1964). Although that case concerned the ownership only of a small parcel deeded by the chiefs of A'oloau to the government for a school building, the issues and contentions in the case were identical to those now raised herein by Aiga Aitulagi. The Court's resolution of those issues and contentions is therefore binding on the parties to the case, including Fuimaono, the Village Council of A'oloau, and the Aiga Aitulagi.

VI. Conclusion and Order [16ASR2d44]

Judgment shall issue accordingly, denying registration of the A'oloau survey; enjoining Atualevao and Lefotu, their aigas, assigns, and those acting in concert with them, from further activities within the Lualemana survey; enjoining Toluao from further activities within the A'oloau survey, with the exception of those parts described in Part I of this opinion; declaring the land within the Utu survey (Drawing No. 32-15-89) to be the communal property of the Utu family, with the exception of such areas as may encroach on any registered survey, and with the understanding that this declaratory judgment is binding only on the parties to these consolidated actions; and denying all other relief requested by any party.

It is so Ordered.

*********

Loia; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

NAPOLEONE LOIA, Defendant

High Court of American Samoa 
Trial Division

CR No. 10-90

July 2, 1990

__________

Under the "plain-view" doctrine, property may be seized without a warrant when: (1) the police officer's initial intrusion or presence in an area is lawful; (2) his discovery of incriminating evidence is inadvertent; and (3) the incriminating nature of the property seized is immediately apparent.

The use of artificial means to illuminate a darkened area is not a search and thus triggers no Fourth Amendment protection.

There is no legitimate expectation of privacy shielding the portion of the interior of an automobile that may be viewed from outside the vehicle.

Incriminating nature of property seized is immediately apparent when an officer has probable cause to believe that the property found in plain view is incriminating; certain knowledge of its incriminating nature is not required.

Rolled butt's twisted ends are significant in assessing probable cause that the butts contained marijuana, since ends are usually twisted to preserve the contents for future use, a precaution more likely used with illegal and difficult to obtain substances like marijuana than with readily accessible substances like tobacco.

Fact that currency as well as rolled butts with twisted ends were visible in auto ashtray indicated that the ashtray was used to store items, not dispose of them, a use more probable for scarce substances like marijuana than common substances like tobacco.

Court may consider the training, experience, and collective knowledge of the police officers seizing property in plain view when assessing whether probable cause existed to believe that such property was incriminating.

Warrantless seizure of marijuana "roaches" from auto ashtray was justified under the "plain view" doctrine, where officers first followed auto because it was speeding without tail lights, looked inside it with a flashlight to find the key in order to move it for reasons of safety, and while looking for the key saw currency and rolled and twisted cigarette butts in the auto ashtray.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge. [16ASR2d2]

Counsel: For Plaintiff, John W. CassellAssistant Attorney General

  For Defendant, Barry I. Rose, Assistant Public Defender

On Motion to Suppress:

Background

While on patrol on the evening of March 6, 1990, police officers Maifea and Letuli encountered an oncoming vehicle which appeared to be speeding at a curve in Fatumafuti. Officer Maifea noticed through his rear view mirror that the passing vehicle had no tail lights and, after seeking a suitable area in the highway permitting a U-turn, gave chase. The officers eventually found the vehicle they were pursuing in Faga'alu at the L.B.J. TropicalMedical Center, parked and unoccupied next to the emergency clinic entrance. Officer Maifea went immediately into the emergency clinic to look for the driver, while at the same time calling out to his partner, OfficerLetuli, to check whether the keys were still in the vehicle. Officer Maifea testified that his concern for the keys was the need to remove the vehicle from the emergency clinic's entrance. Officer Letuli, with the aid of a flashlight, saw that the keys were left in the vehicle. However, he also noticed, in the vehicle's ashtray, paper currency on top of which lay the remains of two hand rolled cigarette butts. The ends of the butts were twisted and they looked like marijuana joints to the officer. He waited at the vehicle until officer Maifea returned and told him about the butts. The latter ---who in the meantime had found the defendant, Napoleone Loia, who admitted driving the vehicle ---also viewed the butts and a decision was made to call for a narcotics agent. Officer Maiava subsequently responded from the narcotics division. He testified that he also viewed the butts, or "roaches," as they were found in the vehicle's astray, removed them, and performed a certain chemical field test. The butts tested positive as marijuana and were seized as incriminating evidence.

The defendant contests the" validity of this warrantless seizure as being in violation of his rights against unreasonable search and seizure under article 1, section 5 of the Revised Constitution of American Samoa, and the Fourth and Fourteenth Amendment to the United States[16ASR2d3] Constitution.(1) The government, on the other hand, relies on the "plain- view" doctrine under Coolidge v. New Hampshire, 403 U.S.443 (1971), as justifying the warrantless seizure of the butts.

Discussion

Under Coolidge, "plain-view" provides grounds for the warrantless seizure of private property when three requirements have been satisfied:

First, the police officer must lawfully make an "initial intrusion" or otherwise properly be in a position from which he can view a particular area. Id. at 465-468. Second, the officer must discover incriminating evidence "inadvertently," which is to say, he may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretext. Id. at 470. Finally, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id. at 466.

Texas v. Brown, 460 U.S. 730, 737 (1983) (plurality opinion).

Applying these requirements to the facts, we conclude the following: there can be no argument that officers Letuli and Maifea (and for that matter officer Maiava as well) were legitimately in a position from which they viewed the butts. The butts were within plain-view notwithstanding the fact that officers Letuli and Maifea had used flashlights to illuminate the vehicle's interior. As stated by the Supreme Court in Texas v. Brown, "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." Id. at 740. Further, the Court stated [16ASR2d4] that in relation to automobiles "[t]here is no legitimate expectation of privacy, shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passerby or diligent police officers." Id. (citations omitted). Thus, and we so hold accordingly, the viewing of the butts by officers Letuli and Maifea was not a search within the meaning of the Fourth Amendment and, hence, our counterpart Rev'dConst. Am. Samoa art.1, § 5.

On the evidence, we are further satisfied that officers Letuli and Maifea had come across the butts inadvertently. There was nothing in the evidence to suggest that the officers knew in advance that they would find marijuana butts, or roaches, which they intended to seize without a warrant; neither was there anything to suggest that they were using the traffic laws to stop the defendant's vehicle while relying on the "plain-view" doctrine as a pretext for a drug search.

The third of the Coolidge requirements is whether it was "immediately apparent" to the officers that the butts may be marijuana roaches. The Supreme Court also clarified in Texas v. Brown, that despite the unhappy choice of words in the phrase "immediately apparent, " the Coolidge court did not mean that a police officer must "know" the incriminating nature of the evidence. To permit a warrantless seizure, the Fourth Amendment only requires that the officer must have "probable cause" to believe that the item found in plain view is incriminating. Id. at 741. In reviewing probable cause, the Court cautioned that

[t]he process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact finders are permitted to do the same ---and so are law enforcement officers. Finally, the evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id. at 741 (quoting United States v. Cortez, 449 U.S. 41 1,418 (1981).

In the present matter, defendant argues that two butts in a vehicle's ashtray, which is designed to store cigarette butts, are insufficient circumstances to permit a conclusion of probable cause that the butts are other than tobacco. The defense further argues that a ruling [16ASR2d5] in favor of the government would encourage the police to stop anyone who is seen in public with a butt. To demonstrate his point. the defendant produced a number of tobacco butts which the officers acknowledged on the stand as looking something like the butts they saw on the evening of March 6, 1990.

The defense's demonstration misses the mark altogether. It clinically demonstrates possibilities rather than "practical, nontechnical" probabilities, spoken of in Brinegar v. United States, 338 U.S. 160, 176 (1949). For instance, the concerns raised about harassment of the smoking public is more fancied than real. In terms of probabilities, those people who smoke in public are more likely to be tobacco users rather than marijuana users. Why? Because there is a law against the possession of marijuana which discourages its public use; not so in the case of tobacco. Further, the defense's in court demonstration simply fails to account for the requirement that an assessment of probable cause must be based upon "all the circumstances." United States v. Cortez, supra at 418. The significance, therefore, of a rolled butt's twisted ends, which according to officer Maiava is a relevant identification factor, is a consideration in assessing probable cause. Twisted ends generally means preservation for further use and, in our opinion, when viewed in light of the fact that marijuana is not as readily available as tobacco --- there is a law against the possession of marijuana ---the officers were certainly presented grounds to conclude that it was more probable than not that the butts, twisted at the ends, were marijuana rather than tobacco. Further, and in the light of the fact that tobacco is more readily available than marijuana, tobacco butts in a vehicle's ashtray would be more consistent with circumstances of disposal rather than of preservation ---people do not preserve tobacco butts. However, what the officers actually viewed in the ashtray can hardly be said to be consistent with disposal. Besides the butts, there was currency, hardly the sort of thing one would expect to find in a vessel which is used to extinguish and discard burning tobacco butts as well as cigarette ash. Notwithstanding the purpose for which an ashtray is designed (a feature heavily relied upon by the defense as discounting probable cause), the ashtray in question appeared at all relevant times to be used for storage; a use not inconsistent with the preservation of such things as marijuana roaches. Finally, a reviewing court must not be unmindful of the officers' police training and experience which allows them to draw and make from all sorts of available data, such "inferences and deductions that might well elude an untrained person." United States v. Cortez, supra, at 418. Their collective knowledge as well is a factor for regard in the equation. [16ASR2d6] U.S. v. Wiley, 673 F.Supp. 1405, 1409 (E.D. Va. 1987).(1) Here the effect of officer Letuli's testimony was that he was not new to marijuana cigarettes. He had seen many such cigarettes as a policeman and during his college days. At the same time, officer Maifea testified that when he had encountered the defendant, he was very evasive and generally acted as if he something to hide, while officer Maiava informed the Court that his office has had the defendant under surveillance for some months. The latter at least had the "generalized expectation" spoken of in Texas v. Brown, supra at 744, and albeit factor hardly significant in and of itself, it is nonetheless a building block in the total picture. Additionally, officer Maiava was very much influenced by the appearance of the butts, the manner in which they were rolled, the twisted ends, and the way they were set aside.

We conclude on the experience of the officers, together with the appearance and location of the butts, that probable cause existed for warrantless seizure of incriminating evidence. The motion is denied.

It is so Ordered.

**********

1. Our reference to the Fourth and Fourteenth Amendment of the United States Constitution is merely to reiterate defendant's argument. We intimate no views on the Fourteenth Amendment's application, if any, to theterritory of American SamoaCf. Ngiraingas v. Sanchez, 495 U.S. 182, 109 L.Ed 2d 163 (1990). In the context of 42 USC § 1983 ---originally enacted as § I of the Civil Rights Act of 1871 to enforce the provisions of the Fourteenth Amendment ---"Territories are not 'States' within the meaning of the Fourteenth Amendment." 109 L.Ed 2d at 172 (quoting District of Columbia v. Carter, 409 U.S. 418, 424 (1973). See also Banks v. American Samoa Government, 4 A.S.R.2d 113, 128 n.7 (1987); Ferstle v. American Samoa Government, 4 A.S.R.2d 160 (1987).

2. The facts of this case are very similar to the matter at bar.

Li`a; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

MISIPATI LI'A, Defendant

High Court of American Samoa 
Trial Division

CR No. 67-89

July 23, 1990

__________

In light of the Court's concern about defendant's proximity to the victim, evidence supporting a request for work release should include the testimony or affidavit of the proposed employer setting forth the terms of employment; the testimony or affidavit of the Warden of the Correctional Facility indicating whether the defendant is, in his judgment, a good candidate for work release; and testimony of the Child Protection officials who have been counseling the victim and her family.

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

Counsel: For Plaintiff, John W. Cassell

  For Defendant, Charles V. Ala'ilima

On Motion to Modify Probation:

The defendant entered a guilty plea to the charge of Sexual Abuse in the First. Degree, a class D felony. He was sentenced to five years of imprisonment. Execution of the five-year sentence was suspended on several conditions, including the condition that defendant serve twenty months of incarceration in the Correctional Facility with no release except for medical emergencies.

At the time sentence was pronounced, the Court announced that it would entertain a motion to modify the incarceration provision at any time after the defendant had served six months in the Correctional Facility. The Court announced that among its principal concerns about any such modification was to guarantee some distance between the defendant and his young victim. [16ASR2d24]

Defendant now moves for modification of the sentence so as to terminate incarceration immediately. According to his moving papers, he intends to live in the same household as the victim. In his oral argument in support of this motion, defendant's counsel suggested that defendant would live not with the victim's family but in a nearby village. Neither of these arrangements would meet the Court's concerns about proximity to the victim. Even in the absence of these concerns, there appear to be no compelling reasons for defendant's early release from incarceration.

In the alternative, defendant requests that the conditions of his probationary detention be modified so that he can be allowed "work release." He proposes to work at a radio repair shop in Pago Pago. At present we have insufficient evidence for such a modification. Such evidence, should the defendant wish to renew his request for work release, should include the testimony or affidavit of the proposed employer setting forth the terms of employment; the testimony or affidavit of the Warden of the Correctional Facility indicating whether the defendant is, in his judgment, a good candidate for work release; and testimony of the Child Protection officials who have been counseling the victim and her family.

Accordingly, the motion is denied.

*********

KMST Wholesale, Inc.; Shantilal Brothers, Ltd. v.


SHANTILAL BROTHERS, Ltd., Plaintiff

v.

KMST WHOLESALE, Inc., Defendant

NELSON & ROBERTSON PTY., Ltd., AMERICAN SAMOA
GOVERNMENT, DIOCESE OF PAGO PAGO,
and AFOA L.S. LUTU, Intervenors

High Court of American Samoa
Trial Division

CA No. 87-88

September 7, 1990

__________

American Samoa's chattel mortgage statute requires not just that the mortgage contain some language sufficient to put third parties on inquiry, but that it contain a "description" of the "specific" article or articles mortgaged. A.S.C.A. § 27.1510.

The general rule appears to be that notice of an unrecorded mortgage, given to a creditor who has already "fastened his lien upon the property by judgment," comes too late regardless of whether a writ of execution has issued.

The general rule against mortgages of after-acquired real property contains an important exception for cases in which the property to be acquired is described in the mortgage document. A.S.C.A. § 37.1003.

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

Counsel: For Plaintiff, Gata E, Gurr

  For Intervenor Nelson & Robertson, John L. Ward II

  For Intervenor Afoa L.S, Lutu, Charles V. Ala'ilima

On Motion for Reconsideration:

Intervenor Nelson & Robertson Pty., Ltd. moves for reconsideration of our holding that plaintiff Shantilal Brothers, Ltd., is entitled to the proceeds of a judicial sale of certain property belonging to the defendant, This holding was based on our finding that intervenor's chattel mortgage did not contain "a description of the specific article; [or] [16ASR2d104] articles... mortgaged" within the meaning of A.S.C.A. § 27.1510(c). Plaintiff, a judgment creditor without actual notice of the chattel mortgage, was therefore entitled to execute its judgment by seizing and selling the property to which the mortgage ostensibly applied. Opinion and Order issued June 5, 1990, at p. 6; see A.S.C.A. § 27.1510.

Intervenor has cited authorities for the proposition that most United States jurisdictions, prior to the enactment of the Uniform Commercial Code, enforced " general" mortgages even against third parties without actual notice thereof. The rationale was that a mortgage applying to all of a person's property, or to all property within a certain class, necessarily provided (constructive) notice with respect to every particular item owned by that person. Such a description, notwithstanding the absence of specificity or detail, was therefore held sufficient to identify the item in question. See, e.g., Bennett v. Green, 119 S.E. 620 (Ga. 1923) ("[a]ll of the machinery, some property within a given class ("one bay mare, two mare mules, one horse mule") would be insufficient, since the mortgagor might or might not own other property within the class. See Id. at 622. See also Murphy Hotels Corp. v. Central National Bank Savings and Trust Co., 18 F.2d 719 (6th Cir. 1927) ("all the furniture and equipment"); In Re Oliver C. Putney Granite Corp., 14 F.Supp 31 (D. Md. 1936) ("all the tools, machinery...."); First National Bank of Panama City v. First National Bank of Chipley, 106 So. 422 (Fla. 1925); Emick v. Swafford, 191 P. 490 (Kans. 1920) ("[a]ll my personal property of every kind and nature") Childress v. First State Bank of Barnhart, 264 S.W. 350 (Tex. App. 1924) ("[a]lso all other cattle, sheep....").

Other cases, however, held that a general reference to all of a person's property or to all property of a certain class did not constitute a "description" of any particular item. See, e.g., U.S. v. United Aircraft Corp., 80 F. Supp 52 (D. Conn 1948) ("all parts, engines, equipment and accessories" held insufficient); Simonson v. McHenry, 92 P. 906 (Colo. 1907) ("all bedding, dishes, cooking utensils, together with all things, both useful and ornamental" too general to give third parties adequate notice of the subject property); Farmer's & Merchant's Bank v. Stockdale, 96 N.W .732 (Iowa 1903) ("all other personal property I now own, or in the future may acquire"); First State Bank v. First State Bank, 32 S.W.2d 378 (Tex. App 1930) (holding insufficient the description "all other cattle" as incapable of giving notice to subsequent creditors). [16ASR2d105]

The task before us, moreover, is not to determine what was the majority rule at common law with respect to general mortgages, or what the best judge-made rule would be. Rather, it is to enforce a particular statute. Our statute, unlike some of those construed by cases from other jurisdictions, requires not just that the mortgage contain some language sufficient to put third parties on inquiry, but that it contain a "description" of the "specific" article or articles mortgaged. The language in intervenor's mortgage apparently intended to apply to items such as those sold by plaintiff was as follows: "All of Mortgagor's furniture, machinery, apparatus, appliances, tools, supplies, materials, trade and other fixtures and equipment, including automotive equipment, now owned or hereafter acquired...." While this language is arguably a "description" of sorts, it certainly does not contain a description of any "specific" article or articles, as our statute requires. Indeed, a reference to "all" of a general class of things would appear to be the very opposite of a "description" of a "specific" thing.

Intervenor appeals for a liberal construction of the statute on the ground that plaintiff, like the intervenor itself, is a business entity who lent money to defendant rather than an individual who purchased some mortgaged item. Aside from the difficulty we would have in fashioning a rule that would make general mortgages specific enough to bind creditors but too general to bind purchasers, this hardly appears to be a case in which law is at odds with equity. The record reflects that intervenor made massive extensions of credit to the defendant at a time when it was already deeply in debt to the plaintiff. A few months later--at a time when there is no evidence that plaintiff had actual knowledge of intervenor's dealings with the defendant--plaintiff brought its claim to judgment. Our mortgage recordation statute creates a narrow exception to the rule that a debtor's property is the pledge of his general creditors. If intervenor had complied with the statute in every particular, its claim would have trumped that of plaintiff even though plaintiff's claim was first in time and was first brought to judgment. Not having complied with the statute, intervenor must take its place in line.

Finally, intervenor argues that even if a general mortgage is insufficient to bind third parties without notice, it is binding on plaintiff because "the Court records in this case clearly reveal [that] Plaintiff had received notice of the Chattel Mortgage when it filed for its second Writ of Execution on December 1, 1989." On the contrary, the earliest record evidence we can find of plaintiff's actual knowledge of intervenor's mortgage is a facsimile message from intervenor's counsel to a collection agent for plaintiff, dated about seven weeks after the writ of execution. [16ASR2d106] It refers to a previous discussion but does not say when this occurred. In any event, the general rule appears to be that notice of an unrecorded mortgage, given to a creditor who has already "fastened his lien upon the property by judgment," comes too late regardless of whether a writ of execution has issued. See G. Osborne, Handbook on the Law of Mortgages § 211 at 376 & n.63 (2d ed. 1970), and authorities cited therein.

Intervenor does make one telling criticism of our opinion. Contrary to w hat we may have implied, the general rule against mortgages of after-acquired real property embodied in A.S.C.A. § 37.1003 contains an important exception for cases in which the property to be acquired is described in the mortgage document. The problems posted by general mortgages on the one hand, and mortgages of after-acquired property on the other, are related but distinct. Having held that the present mortgage does not contain a description of any of the specific articles that were seized and sold pursuant to plaintiff's writ of execution, we need not decide whether the rule of A.S.C.A. § 37.1003 should be applied by analogy to personal property, and whether, if so, that rule presents a second ground for the invalidity of the mortgage.

The motion to reconsider is denied.

*********

King v. Ala'ilima,


JAKE P. KING, Plaintiff

v.

CHARLES V. ALA'ILIMA and MONICA MILLER, Defendants

High Court of American Samoa 
Trial Division

CA No. 38-90

July 2, 1990

__________

Defamatory statement must be one of fact and not of opinion.

Whether a statement is one of opinion or rhetorical hyperbole or of fact is a question of law. [16ASR2d7]

Whether a statement is one of opinion or rhetorical hyperbole or of fact is determined from the perspective of an ordinary reader.

Court must examine both the allegedly defamatory language and its context in determining whether it is a statement of fact or a statement of opinion, since language which taken alone might seem to be a statement of fact may be a statement of opinion when viewed in context.

Attorney's published letter was held to be a statement of opinion not actionable in a suit for defamation, where the letter arose from a public controversy regarding a labor dispute, was in the form of an attorney's demand letter, and used language indicating the statements contained within were opinions rather than facts.

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

Counsel: For Plaintiff, Togiola T.A. Tulafono

  For Defendants, Ellen A. Ryan

On Motion to Dismiss:

Introduction

Plaintiff Jake P. King claims to have been defamed by a letter written by defendant attorney Charles Ala'ilima on behalf of his client Monica Miller. This letter was written on August 17, 1989, in response to an article published in the Samoa Journal. At the time, King was the President of the American Samoa Development Corporation (hereinafter A.S.D.C.). The letter, addressed to the Chairman of the Board of Directors of the A.S.D.C., Aumoeualogo Soli, complained that the Samoa Journal article contained false statements about his client's participation in a strike by the employees of the A.S.D.C.'s Rainmaker Hotel. King alleges to have been defamed by the letter's following passage:

This blatant attempts [sic] at intimidation and Mr. King's public and untruthful comments regarding the strike and the coverage remind me of a very similar event that recently occurred in China. Students and workers there exercised free speech and were suppressed. That communist government is now trying to say that nothing happened and that only a few radicals aided by biased media coverage caused all the trouble. Your President and Manager is engaged in the [16ASR2d8] exact same process only here the individuals have rights to pursue this matter in court.

The plaintiff expansively views this as a charge of suppressing a public demonstration by running over and killing demonstrators with armored vehicles. Defendants here move to dismiss on various grounds.

Discussion

Defamation is defined in A.S.C.A. § 43.5201.(1) To be defamatory, a statement must be one of fact and not of opinion. Gertz v. Welch, 418 U.S. 323 (1974); Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219, 223 (2d Cir. 1985); Church of Scientology of California v. Cazares, 638 F.2d 1272, 1286 (5th Cir. 1981). This distinction is founded on the notion that under "the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Welch, 418 U.S. 323, 339-40 (1974).(2)

The first question, then, is whether the statement is one of opinion or rhetorical hyperbole as opposed to one of fact. This is a question of law for the court. Mr. Chow of New Yorksupra, at 223; Information Control Corporation v. Genesis One Computer Corporation, 611 F.2d 781, 783 (9th Cir. 1980). This inquiry must be from the perspective of an ordinary reader. Mr. Chow of New Yorksupra, at 224. To analyze the difference between statements of fact and opinion, a court must examine both the language itself and the context surrounding the allegedly defamatory language. Id. at 223; Information Control Corporationsupra, at 783. "Even apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate [or] heated labor dispute.” Id. at 784. [16ASR2d9] Language which taken alone might appear to be a statement of fact may well be a statement of opinion when viewed in context.

Ala'ilima's letter is clearly a statement of opinion. The letter arose out of a tumultuous public controversy centered around the hotel's labor dispute. The only statement even arguably of fact is the sentence reading "[y]our President and Manager is engaged in the exact same process...." However, when read in context, this statement must be read as opinion. Ala'ilima states that the events "remind" him of the actions in China; this indicates that he is voicing his opinion that the two incidents bear certain similarities. No "ordinary reader" of the offending letter could believe that King was trampling protesters with tanks, or even that Ala'ilima was seriously alleging this.(3)

In sum, Ala'ilima's criticism of King's actions consisted of his opinion; as such it is constitutionally protected and hence not actionable. The defendants' motion to dismiss is granted.

It is so Ordered.

**********

1. This section reads in pertinent part:

Defamation is effected by (1) libel which is a false and unprivileged publication by writing, printing, picture, effigy, or any other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.

2. Freedom of speech is also constitutionally entrenched in art. I, § 1, Rev'd. Const. Am. Samoa.

3. It might well be said that the nature of the allegedly defamatory statements as opinion is further evidenced by the character of the letter itself as an attorney's demand letter. Strong language and biased viewpoints are typically the stuff of demand letters, hardly fountains of pure fact and hard truth.

In re Matai Title “Mulitauaopele”,


LEAANA L. FUATA, CLAIMANT

v.

I.S. MULITAUAOPELE and FOFOGAOTUMUA
KONELIO MULITAUAOPELE, Objectors

[In the Matter of the Matai Title
"MULITAUAOPELE" of the Village of Lauli'i]

High Court of American Samoa
Land and Titles Division

MT No. 5-89

August 8, 1990

__________

Having two or more persons serve as joint holders of the same matai title is consistent with the law and custom of American Samoa.

When two branches of a family are not related to each other by blood, it would be contrary to Samoan custom for them to meet together as one family to choose a single title holder with pule over both families' lands and internal affairs.

A blood right to a matai title is based on direct descent from the title he claims; no decisions of this Court support a blood right to a matai title solely based on "blood descent" from the titleholder's sister, nor is such consistent with any of the Court's formulae employed to determine "hereditary right." A.S.C.A. § 1.0409(c)(1).

Before REES, Associate Justice, TAVANU'U, Chief Associate Judge, AFUOLA, Associate Judge, MATA'UTIA, Associate Judge, and TAIMANU, Associate Judge.

Counsel: For Claimant, Tau'ese P.F. Sunia

  For Konelio, Gata E. Gurr I.S. Mulitauaopele pro se

This case was tried on July 30, 1990. Claimant Leaana and objector Konelio each claim the right to hold the Mulitauaopele title as successor to the late Mulitauaopele Tamotu. (The Mulitauaopele title is frequently shortened to "Pele", and the two names are used interchangeably in this opinion.) Objector I.S. Mulitauaopele (hereinafter "Pele Ivi ") claims that neither Leaana nor Konelio has the right to hold [16ASR2d64] the title. Pele Ivi contends that since he himself already holds the Mulitauaopele title, neither Samoan custom nor the law of the Territory allows the choosing of another title holder.

Leaana and Konelio agree that Pele Ivi is a lawful holder of the Pele title, but claim that they are descended from a distinct line of Pele title holders with which Pele Ivi has nothing to do.

I. The History of the Mulitauaopele Family or Families

It is undisputed that the late Pele Tamotu lawfully held the Mulitauaopele title for almost fifty years, and that during most of this time the title was also lawfully held by either Pele Ivi or his father, the late Pele Suiava. It is also undisputed that the family of Pele Tamotu family and that of Pele Suiava and Ivi are unrelated by blood, except insofar as some people happen to be descended from marriages between members of the two families. Pele Ivi claims, however, that Pele Tamotu was an "adopted" rather than a "blood" Mulitauaopele title holder; and that he, Pele Ivi, and his relatives have the legal and customary right to prevent the choosing of a successor to Pele Tamotu.

Pele Ivi's contention rests partly on an interpretation of the law regarding disputed claims to matai titles, A.S.C.A. § 1.0409, and partly on his version of the history of the Mulitauaopele family.

Each of the three parties has a somewhat different version of the history of the Mulitauaopele title. All agree, however, that the title originated with Mulitauaopele Leatisua, who was so designated after participating in a successful war against I'amafana of Upolu. Leatisua was succeeded by his only son, Manusega, who was succeeded in turn by his own only son, Manuleavi. Manuleavi had no natural children.

All parties agree that the line of Mulitauaopele title holders directly descended from Leatisua, the first title holder, ended with Manuleavi. All parties also agree that the title was then held successively by two brothers, Ta'ita'i and Fa'atoaga, who were not blood descendants of any previous Mulitauopele title holder but were related by marriage to Manuleavi.

A. The Pele Ivi Version of Family History

At this point the three versions of family history diverge. Pele Ivi claims that in 1872, after Pele Fa'atoaga had been dead for about five [16ASR2d65] years, "the family bestowed the title upon Tala, a blood member of the family." Pele Ivi does not claim, however, that Tala was a blood descendant of Leatisua or of any other Mulitauaopele title holder. Rather, Tala was descended from Tialavea, a son of Leatisua's sister. Pele Ivi contends that Tala, although not a direct descendant of the first title holder, should be regarded as a blood member of the family because of the Samoan custom of paying respect to one's sisters and to their descendants.

The next holder, according to Pele Ivi, was another descendant of Tialavea called Pele Fia, whose reign he says lasted from 1880 to 1909. Fia was succeeded by Tinoifili, Suiava, and Pele Ivi himself, all characterized as "blood members of the family" by virtue of their descent from a sister of the original title holder.

Pele Ivi acknowledges, however, that in about 1885 another person, Taliloa or Timaio, was selected to hold the Pele title and that "the family tolerated the affair." Taliloa was an adopted son of Manuleavi, the last Pele in the direct line of descent from the original holder Leatisua. He held the title along with Pele Fia until his death in 1908. Pele Ivi contends that the family reached an agreement in 1888 that Pele Taliloa would have no successors, and that there was in fact no successor until 1927 when Taliloa's son, Pele Pataua, was selected by the "adopted side" to hold the title. Pataua was succeeded in 1938 by his own son, Pele Tamotu, who served until his death in 1986.

Pele Ivi contends that his own relatives {the Mulitauaopele family of the Tata/Fia/Suiava line descended from Tialavea) had the right to bar Pataua and Tamotu from holding the title but chose not to do so because they were connected by marriage to the "true" (Tialavea) line. He maintains that he and his relatives now wish to put an end to the "adopted" line of Mulitauaopeles, and are entitled to do so by law and custom.

B. The Leaana Version

Leaana offers a version of family history that agrees with that of Pele Ivi in many respects, including the identity and order of the first six titleholders {Leatisua, Manusega, Manuleavi, Ta'ita'i, and Fa'atoaga) but differs thereafter in several important respects. According to his version, Fa'atoaga was immediately succeeded by Pele Esera, an adopted son of Manuleavi ---the last direct blood descendant of the original holder Leatisua ---and a natural son of Pele Ta'ita'i who was also known [16ASR2d66] as Liutoa. Pele Esera later moved to Alofau to hold the Fepulea'i title, leaving the Mulitauaopele title to be taken over by his brother Taliloa.

This Pele Taliloa (aka Timaio) was the same Taliloa acknowledged by Pele Ivi to have been chosen in about 1885 as a sort of alternate Pele. In the Leaana version, however, he was not only the adopted son of one former Pele title holder, but also the natural son of another Pele and the brother of yet another, and he succeeded directly in an unbroken line of succession trom Ta'ita'i and Fa'atoaga rather than being chosen by a rump caucus as an alternative to a sitting Pele. In the Leaana version it is not Taliloa but Fia who was the spoiler, chosen by the descendants of Tialavea to be "their" Pele despite the prior existence of the line descended from Ta'ita'i.

Leaana also denies that there was any gap in his family's line of Peles after the death of Taliloa. Rather, he claims that Taliloa was succeeded by his brother Esera, the same Esera who had been his predecessor; he in turn was succeeded by Pele Veu, who was followed by Pataua and then Tamotu.

Leaana acknowledges, as he must, that the Leaana line (Ta'ita'i/Fa'atoaga/Esera/Taliloa/Pataua/Tamotu) did not descend from the original Pele title holder. He maintains, however, that Manuleavi (the last direct descendant) had lived in the Leaana family and bestowed the title on Ta'ita'i, a member of that family to whom he was related by marriage, as an igagato (a reward for services rendered) or a matu'upalapala (an irrevocable "commission" made in contemplation of the dying out of the natural line).

Pele Ivi acknowledges that there was some sort of appointment of Ta'ita'i, but maintains that it was revocable by the "blood members" of the family (by which he means not the descendants of the first three Peles but those of Tialavea). Such a revocable appointment is called a tofiga. (Pele Ivi also denies that Ta'ita'i was a member of the Leaana family or related in any way to Taliloa and his descendants.)

C. The Konelio Version

Konelio's version of family history appears to be a hybrid of the Pele Ivi version and the Leaana version. (Significantly, Konelio is descended from both Pele families; his father was Pele Pataua of the Leaana or Taliloa line, and his mother was a memher of the Fia/Suiava/lvi or Tialavea line.) Konelio generally agrees with Leaana, [16ASR2d67] but acknowledges Esera only as the immediate successor to Taliloa and not also as his predecessor. He also agrees with Pele Ivi that Ta'ita'i was not the father of Esera and Taliloa, and therefore that the "adopted" line began with Taliloa. He does not, however, acknowledge the existence of a Pele Tata as successor to Fa'atoaga; in his version as in that of Leaana, it was the Tialavea line (Pele Ivi's line) that arose as a rival to the pre-existing Leaana line (Pele Tamotu's line) rather than vice versa.

II. Law and Custom

Pele Ivi relies on the case In re High Chief Title Mauga, 4 A.S.R. 132 (1974), for the proposition that there can be only one Pele family and one Pele title holder. Relying primarily on grounds of policy (e.g., the tendency of split titles to promote disharmony), the trial court in Mauga announced that it was overruling two prior cases upholding the lawfulness of "split titles.” We need not decide in the present case how much of the broad language in the Mauga opinion should be regarded as dictum rather than holding, or whether the decision should be reversed as inconsistent with Samoan custom as it has actually evolved. It is enough to observe that the facts of the present case are sharply distinguishable from those on which the Mauga court relied, and that the practical result reached therein is quite different from the result Pele Ivi would have us reach in this case.

According to the Court in Mauga, it is consistent with law and custom for two or more persons to serve as .joint holders of the same title. Such persons

are tenants-in-common to a single traditional guesthouse site or tulaga-maota...In food distribution in council. meetings, jointholders of a title are entitled to one share or tufaaga, customarily given to the holder or holders of the said title by tradition. Likewise in passing out food trays in official council lunches or taumafa-taga, their entitlement is one tray which is usually given to the oldest of the jointholders. With very few exceptions, jointholders are tenants-in- common also to all communal properties and lands belonging to the title.

Id. at 138. [16ASR2d68]

The two Pele title holders are not "tenants-in-common" to a single guesthouse site; they have had separate guest houses since the memory of man runneth not to the contrary. It is undisputed that Pele Tamotu and Pele Ivi were given different food trays and that each was given his own traditional share of food in council meetings and other traditional events. Most important, the two families have different lands and, as far as the evidence reflects, always have had.

Moreover, the method endorsed by the Mauga Court for dealing with jointly held titles ---that whichever holder lives longest should have the right to succeed the others as sole title holder, and that when the last one dies every member of the various branches of the family shall have a say in choosing a successor ---is clearly inapplicable to the present case. The two Pele families are not related to each other by blood, and it would be contrary to Samoan custom for them to meet together as one family to choose a single title holder with pule over both families' lands and internal affairs.

Indeed, Pele Ivi is quite frank in admitting that the happy ending envisioned in Mauga is not at all what he has in mind for the Mulitauaopele family. Under the rule of Mauga, Pele Ivi should not have registered the Pele title upon the death of his father Pele Suiava; rather, Pele Tamotu should have been allowed to reign alone, and upon his death the relatives of Ivi, Leaana, and Konelio would have attempted to choose a single Pele. On the contrary, however, Pele Ivi maintains that the Pele Tamotu people are not members of the family at all. His side therefore had a right to choose a titleholder while Tamotu was still living, but Tamotu's side has no right to choose a successor while Ivi is living ---and will have no right to participate in the selection of the next Pele or any Pele ever again. This is clearly not the "jointholders" situation described by the Mauga Court. The decision is therefore not applicable.

If we believed that we were bound by law or custom to abolish one line of Peles or the other, we would not know which to abolish. Neither is directly descended from the original title holder. (On Pele Ivi's and Konelio's view of the facts, neither line is descended from any of the first six title holders.) The original descendants of the title died out over a hundred years ago with Manuleavi, and two distinct groups claimed the right to succeed the original Peles. One group (the Leaana or Tamotu group) was related to the title by marriage, adoption, and perhaps also by igagato or matu'upalapala. The other was related by collateral descent. (While the Court acknowledges that the traditional [16ASR2d69] respect for sisters has many consequences for family relations in Samoa, none of the Samoan judges is aware of any previous instance in which this respect has been advanced as the basis for a blood right to a matai title in one who is not directly descended from the title he claims. Certainly the decisions of this Court support no such right. No Samoan would confuse a "blood descendant of Malietoa" and a "blood descendant of the sister of Malietoa,” nor is such confusion consistent with any of the formulae ever employed by the Court to determine "hereditary right" under A.S.C.A. § 1.0409(c)(1).) That neither the Tialavea nor the Leaana group has an indisputable right to the title is undoubtedly the reason for the "live and let live" situation that arose in the late 1800s and has endured until now.

Pele Ivi cautions that by allowing the family of Pele Tamotu to choose a successor we will be creating a dangerous precedent, perhaps giving rise to a whole new kind of matai system radically inconsistent with Samoan custom.(1) We are not, however, creating anything at all; we are merely declining to destroy something that has existed for at least a hundred years and that has been thoroughly integrated into the traditional institutions of the village, the Eastern District, and throughoutSamoa.

III. The Qualifications of Leaana and Konelio

We proceed to examine the qualifications of each candidate to hold the title Mulitauaopele according to the four criteria set forth in A.S.C.A. § 1.0409(c).

Konelio has a better hereditary right than Leaana. Konelio's father was Pele Pataua, so according to the formula usually employed he has a 1/2 blood relation to the title. Leaana claims descent from the title through his great-grandfather, Pele Esera, and therefore has only a 1/8 right to the title. (Employing the alternate method of descent from a common ancestor, and accepting Leaana's position that Pele Ta'ita'i was [16ASR2d70] the father of Taliloa and Esera, Konelio would still prevail by a margin of 1/8 to 1/16.)

We calculate that the candidates are tied in clan support. The three customary clans of the family are Esera, Timaio, and Veu. (Konelio admits that the two clans listed in his questionnaire, Pataua and Kuka, are subdivisions of the Timaio grouping and at least in recent years have not been treated as customary clans within the family.) Leaana appears to have more support within the Esera clan and Konelio within the Timaio clan. The Veu clan seems to be a tiny one in which each candidate has a handful of supporters. Neither candidate has a majority or plurality of the clans.

On the third criterion, forcefulness, character, personality, and knowledge of Samoan custom, both candidates are strong. Leaana is if anything a bit too forceful, but has a fine record of service to the American Samoan and United States governments and, since his return to Samoa, to the family; Konelio's character is attested by his obvious sincerity and good humor as well as by two Purple Hearts, a Silver Star, and a Medal of Honor from the Republic of Viet Nam. Leaana has perhaps a more detailed knowledge of village salutations and a more coherent version of the family history, but the Associate Judges award Konelio a close decision on this criterion.

The fourth criterion is value to the village, family, and country. The judges choose Konelio on this criterion primarily because he seems more likely than Leaana to keep harmony within the family. This decision is not without its risks: as successor to Mulitauaopele Tamotu, Konelio must keep in mind that his function with respect to the communal lands and internal affairs of the family is to look after the interests of the members of the Pele (Tamotu) family he has been selected to lead. These interests may sometimes conflict with those of the other Pele (Ivi) family of which Konelio happens to be a blood member on his mother's side. Perhaps because he knows what war is like, Konelio appears to be a gent It person who prefers to avoid conflict. Nevertheless, he has testified that the two Pele families are different families, and he will presumably recognize his obligation to achieve and maintain harmony within the family of which he will be the sa'o, to protect its lands, and to maintain its honor. [16ASR2d71]

IV. Conclusion

For the reasons we have discussed, we deny the motion of Pele Ivi to dismiss the claim of Leaana and the objection of Konelio. We hold that Konelio Mulitauaopele has the right to hold the matai title Mulitauaopele.

*********

1. In order to make this argument, Pele Ivi found it necessary to allude to "Tutuila custom" distinct from customs elsewhere in Samoa. Counsel for the other parties, however, have cited several examples on Tutuila of situations similar to that of the Mulitauaopele title. We do not suggest that the splitting of titles within a single family, such as has become prevalent in Western Samoa primarily on account of the limitation of the electoral franchise to registered matai, would be legal under the statutory scheme governing matai titles in American Samoa, A.S.C.A. § 1.0401 et seq.

Galea'i v. Atofau,


ANDY GALEA'I, Plaintiff

v.

FIA VIVINI ATOFAU, Defendant

High Court of American Samoa 
Trial Division

CA No. 72-89

August 20, 1990

__________

Even under the mutuality doctrine, which has largely been abandoned, the government could sue a convicted criminal for civil damages, and the defendant would be estopped to deny the facts entailed by his conviction.

Collateral estoppel applies whether defendant's conviction resulted from a trial or from a guilty plea, even if induced by a plea bargain.

With the abandonment of the mutuality requirement, individual victims of crime can now benefit from collateral estoppel in the same ways and to the same extent that the government has always done.

Majority rule gives judgments based on guilty pleas the same collateral effect as other criminal convictions and, as such, are conclusive of all issues that would have been resolved by a conviction following a trial.

The traditional requirement is that a party should be estopped only with respect to those matters that were genuinely at issue and genuinely decided in the earlier case.

At least when a defendant's admission to a crime was made upon the advice of competent counsel, collateral estoppel applies with respect to issues which were distinctly and directly put at issue by the pleadings, which were central rather than peripheral to the proceeding, and which were essential to the outcome .

No criminal information can be filed in the High Court without a prior judicial determination that probable cause exists to believe the defendant committed the crime with which he is charged.T.C.R.Cr.P. 5.1.

If a defendant wishes to limit the scope of his civil liability without unreservedly admitting his guilt, he can seek to enter a plea of nolo contendere, although the government or the Court might reject such a plea bargain, or the Court might accept the plea and impose the maximum legal sentence.

Neither a guilty plea nor a verdict after trial estops the defendant with respect to any issue not squarely resolved by the judgment; with respect to these elements a plaintiff must [16ASR2d77] present evidence other than the guilty plea, and a defendant is free to controvert any such evidence.

Because third-degree assault can be committed "recklessly" or even "with criminal negligence, " a guilty plea does not establish what injuries, if any, were inflicted upon plaintiff, nor does it establish that defendant acted intentionally, an essential element of the tort of battery. A.S.C.A. §§ 46.3522(a)(1) & (4).

A finding of self-defense is a complete defense to a criminal charge of third-degree assault. A.S.C.A. §§ 46.3305 & 46.3522(8).

American Samoa's criminal law does not, except in a few extraordinary circumstances, allow consent as a justification for the infliction of serious injuries. A.S.C.A. § 46.3523.

Although plaintiff's consent to a fist fight will ordinarily bar his recovery for injuries suffered in the fight, the majority rule is that when mutual combat is conducted with weapons calculated to cause death or serious physical injury, consent is no defense to civil liability.

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

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, Steven H. Watson

This is an action for damages arising out of a battery.

Although plaintiff and defendant told vividly contrasting stories, a few facts are undisputed. On October 12, 1987, defendant beat plaintiff with the stock end of a rifle or shotgun. Plaintiff suffered a compound fracture of his left arm, a fracture in the right wrist, and a dislocated left elbow. He was hospitalized for several days and underwent surgery .Plaintiff now has a metal plate and pins in his left arm, some scarring, and residual difficulty with the use of the left arm which could probably be improved by another operation.

Defendant was charged with Assault in the First Degree. He was bound over to the High Court on this charge after a preliminary examination to determine probable cause. Defendant eventually pled guilty to Assault in the Third Degree. The Court questioned the defendant to ascertain that there was a factual basis for the guilty plea, entered a judgment of conviction, and imposed a six month prison term. Defendant now maintains, however, that his actions were justified as reasonably necessary to defend himself and his property. [16ASR2d78]

Plaintiff’s testimony is that on October 12 he was driving with his three young children along a mountain road toward the village of Leone from some land he believes to be owned by his family. The engine on his vehicle died. After coasting downhill for a while he came to a flat place in the road and the car came to a stop. As plaintiff was getting out to inspect the engine, another car came along. This car contained the defendant and some young men or teenaged boys. The defendant ---with whom plaintiff had recently had some unpleasant words ---shouted something offensive. Then defendant's car stopped a few feet ahead of plaintiff’s car.

Defendant and the other occupants got out, and defendant walked toward plaintiff carrying a rifle or shotgun. Plaintiff was afraid he would be shot, but instead the defendant used the gun as a club. Plaintiff put up his arm to try to protect his face; defendant hit this arm with the gun until plaintiff could no longer hold it up; then he put up the other arm and defendant hit that one too. The blows were severe enough not only to fracture plaintiff’s arms but also to break the rifle stock. Plaintiff was also hit by a rock thrown by one of the boys who was with defendant. Eventually he fell to the ground and defendant walked away.

Defendant's version is that when his car and that of plaintiff passed each other, they almost collided. He shouted to plaintiff to watch the road, plaintiff shouted out a curse or insult, and he shouted back at plaintiff in a similar vein. Then he saw plaintiff’s car coming to a stop. Defendant took this as an invitation to fight and decided it was time to have it out. Seeing that plaintiff was carrying a knife, defendant took his gun with him. He walked up to the plaintiff, who swung the knife at him and missed. Defendant then began hitting plaintiff with the gun. His objective was to take the knife away, but in order to do this it was necessary first to knock down plaintiffs left arm. When plaintiff finally lowered his left arm, defendant hit plaintiff’s right arm once with the gun. The knife fell to the ground. Defendant retrieved it and left the scene.

Defendant presented into evidence a knife he claims to be the one he took from plaintiff. It is a "cane knife," shorter and somewhat broader than the "bush knife" or machete more commonly carried in Samoa, with a curved or hooked blade. (Although defendant's counsel lays great stress on the unusual shape of the "cane knife," the one introduced into evidence does not impress the Court as being any more dangerous or frightening than an ordinary bush knife.) Plaintiff testified that he did once have a knife something like this, which has since been [16ASR2d79] lost, but that the one introduced into evidence is not it. He denies having had a knife or a weapon of any kind when he was beaten by defendant.

I. Collateral Estoppel

Plaintiff contends that defendant is estopped by his guilty plea and by the ensuing criminal conviction from asserting in the present action that he acted in self-defense.

The effect of a guilty plea in a criminal case upon a subsequent action for damages appears to be a question of first impression in American Samoa. We therefore requested counsel to research the law of other jurisdictions and submit post-trial memoranda. Plaintiff has cited a number of authorities in support of the proposition that a guilty plea does estop the defendant in a subsequent civil action. Defendant has submitted a quotation from American Jurisprudence 2d, to the effect that a guilty plea does not estop the defendant from presenting the defense of justification in the subsequent civil case, "because of want of mutuality"; and a citation for Corpus JurisSecundum to the same effect.

The doctrine that estoppel requires "mutuality," however, is no longer generally regarded as part of the law. Seee.g.Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U .S. 313 (1972); Restatement (Second) of Judgments §§ 29, 85(2) (1980); cf. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54, 76 (1989) ("The doctrine of collateralestoppel sometimes bars relitigation of issues even where the facts or the parties are somewhat different in the new case than in the old.")

The doctrine of mutuality was unrelated to defendant's contention in the present case, which is that a guilty plea entered as a result of a plea bargain should not necessarily he regarded as a true statement. Rather, the mutuality requirement was "[b]ased on the premise that it is somehow unfair to allow a party to use a prior judgment when he himself would not he so bound." Parklane, 439 U.S. at 327. Thus, even in the heyday of the mutuality doctrine, the government could sue a convicted criminal for civil damages and the defendant would be estopped to deny the facts entailed by his conviction. Seee.g., Local 167, International Brotherhood of Teamsters v. United States, 291 U.S. 293 (1934). Indeed, should the defendant so much as file a pleading inconsistent with his prior criminal conviction, the civil court would strike the pleading as "false and sham," because the [16ASR2d80] defendant "could not require proof of what had been duly adjudged between the parties." Id. at 298-99. The estoppel applied whether defendant's conviction had resulted from a trial or from a guilty plea. Fontneau v. United States, 654 F.2d 8 (1st Cir. 1981); Plunkett v. Commissioner of Internal Revenue, 465 F.2d 299 (7th Cir. 1972). A defendant was estopped even though his guilty plea was induced by a plea bargain, and even though the bargain might have been a most attractive one. Plunkett465 F.2d at 305-06.

It follows from the abandonment of the mutuality requirement that individual victims of crime can now benefit from collateral estoppel in the same ways and to the same extent that the government has always done. Most recent cases support this logical result. Seee.g.In re Railford, 695 F.2d 521 (11th Cir. 1983); Wolfson v. Baker, 623 F.2d 1074 (5th Cir. 1980); Nathan v. Tenna Corp., 560 F.2d 761 (7th Cir. 1977); Ideal Mutual Ins. Co. v. Winker, 319 N.W.2d 289 (Iowa 1982); S.T. Grand, Inc. v. City of New York, 298 N.E.2d 105 (N.Y. 1973).

As was formerly the practice in civil suits by the government, most courts now "give a judgment based on a guilty plea the same collateral effect as any other criminal conviction, conclusive of all issues that would have been resolved by a conviction following a contested trial." In re Railford, 695 F.2d at 523. Indeed, it has recently been asserted that

[t]here is now such pervasive acceptance of ['the doctrine precluding the adoption of inconsistent positions in judicial proceedings'] that we can confidently say that the common law as generally understood in the United States gives preclusive effect to a guilty plea

Bower v. O'Hara, 759 F.2d 1117, 1129 (3d Cir. 1975) (Sloviter, J., dissenting). At least one case, however, has denied collateral estoppel effect to a guilty plea: the majority opinion in Bower denied such effect not on the traditional ground of mutuality, but because the two judges voting in the majority deemed issues resolved by plea rather than by trial not to have been "fully litigated. " Id. at 1124-26 (majority opinion). See also Restatement (Second) of Judgments § 27 (issue preclusion Occurs only when an issue is "actually litigated and determined by a valid and final judgment"). [16ASR2d81]

We find the reasoning of Judge Sloviter's dissent in Bower (and of the other recent federal and state cases) more compelling than that of his colleagues. The "actually litigated" prong of the second Restatement formula is rooted in the traditional requirement that a party should be estopped only with respect to those matters that were genuinely at issue and genuinely decided in the earlier case. Obviously, a party ought not to be estoppedfrom denying assertions he has not previously had a genuine opportunity to deny, or even those he might inadvertently have tailed to deny because they were not particularly important in the context of the prior case. This cannot be said of the essential elements of a serious crime, however, at least not where the defendant’s admission to the crime was made upon the advice of competent counsel.

"[A] matter can be 'directly and distinctly put in issue' ...by actual litigation. Another way is through pleadings." Hazard, Revisiting the Second Restatement of Judgments: Issue Preclusion and Related Problems 66 CornellL.Rev. 564, 577-78 (1981), quoted in Bower, 759 F.2d at 1130 (Sloviter, J., dissenting). Pleading is an important element in the process of litigation. With respect to issues which were distinctly and directly put at issue by the pleadings, which were central rather than peripheral to the proceeding, and which were essential to the outcome, it hardly makes sense to attach less weight to those parts of a judgment that the losing party did not even try to resist than to those on which he merely did not prevail.

The notion that an information followed by a guilty plea does not constitute "full and fair litigation" also gives too little credit to the process by which courts decide whether to accept guilty pleas in serious criminal cases.

An important characteristic which distinguishes the criminal action terminated by a guilty plea from....the ordinary default case in civil proceedings...is the requirement that the trial court ascertain a factual basis exists for the plea....[T]he question of criminal liability is fully explored by the parties and the court and a judicial determination is made with respect to the essential elements of the crime.

Winker319 N.W.2d at 295-96. The practice in the High Court of American Samoa, at least in recent years, is that judges have been more willing to err on the side of recalcitrance than to serve as rubber stamps for arrangements that are acceptable to the parties but not grounded in [16ASR2d82] truth. Both Justices have frequently reminded prosecutors and defense counsel that it is not one of the purposes of plea bargaining to make innocent people plead guilty; and both have rejected plea bargains when it appeared that the accused sincerely believed himself innocent.

Moreover, no criminal information can even be tiled in the High Court of American Samoa without a prior .judicial determination that there is probable cause to believe the defendant committed the crime with which he is charged. See Trial Court Rules of Criminal Procedure, Rule 5.1. In the present case this determination was made by the District Judge after a preliminary examination in which the alleged victim (the present plaintiff) was cross-examined at length by defendant's counsel. It is clear from the transcript of that cross-examination, introduced into evidence in the present case by defendant himself, that the issue of self-defense was a central contention in dispute between the government and the defendant. Defendant litigated the issue and lost in the District Court; he had the opportunity to contest it further in the High Court but chose instead to enter a plea in the High Court, which necessarily admitted the government's contention. After questioning the defendant to ensure that he understood his legal rights and that there was a factual basis for his plea, the Court accepted the plea and entered a judgment of conviction. That judgment resolved all essential issues, including self-defense, as deliberately and finally as a verdict after trial would have done.

Defendant's principal argument is that his guilty plea was entered to avoid trial and possible conviction on even more serious charges. He therefore urges that "[t]he weight that plea carries. .. ought to be minimal. " Thisargument appears to have been frequently raised and uniformly rejected. Seee.g.PlunkettsupraRaifordsupraGraybill v. United States Postal Service, 782 F.2d 1567, 1573 n.l (Fed. Cir. 1986). If defendant had wished to limit the scope of his civil liability without unreservedly admitting his guilt, he could have sought to enter a plea of nolo contendere. Such an attempt might have been unsuccessful; the government might not have agreed to such a plea bargain, or the Court might have exercised its discretion to reject the plea. Then again, recognizing a nolo contendere plea as deficient in the elements of candor, remorse, and willingness to accept consequences that are among the justifications for judicial leniency in plea-bargain cases, the Court might well have accepted the plea and imposed the maximum legal sentence. See Fontneau, 654 F.2d at 9 n.1. In any case, by pleading nolo contendere the defendant would have put the Court, the prosecution, and the putative victim (with whom the prosecution often [16ASR2d83] consults before agreeing to plea bargains, and with whom the Court almost always consults in conducting presentence investigations) on advance notice of his intentions with respect to civil liability .He would not now be in the awkward position of asking the Court to accept gracefully its status as a forum for the occasional strategic untruth.(1) [16ASR2d84]

Neither a guilty plea nor a verdict after trial estops the defendant with respect to any issue not squarely resolved by the judgment. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558 (1951); United States v.Guzzone, 273 F.2d 121 (2d Cir. 1959). With respect to several issues raised by the present action, defendant's criminal conviction works no estoppel. For instance, the plea does not establish what injuries, if any, were inflicted upon plaintiff. Nor does the plea establish that defendant acted intentionally ---an essential element of the tort of battery ---since Assault in the Third Degree can be committed "recklessly" or even "with criminal negligence." A.S.C.A. § 46.3522(a)(1), (a)(4). With respect to these elements plaintiff was bound to present evidence other than the guilty plea, and defendant would have been tree to controvert any such evidence.

Instead, however, defendant has chosen to concede the intentional beating and the consequent injuries but to raise a defense that is squarely negated by his guilty plea and the conviction thereon. If, as defendant contends in his answer, he was not the original aggressor in his encounter with plaintiff, and if he used only such force as he reasonably believed necessary to defend himself against an imminent attack by a man with a knife or another deadly weapon, then he was not even arguably guilty of Assault in the Third Degree. See A.S.C.A. § 46.3305 ("Use of force in defense of persons"). To the exact extent that such a reasonable belief would constitute a defense to the tort of battery, it was a complete defense to a criminal charge under any of the three applicable subsections of the Assault in the Third Degree statute: "attempts to cause or recklessly causes physical injury to another person" (A.S.C.A. § 46.3522(a)(1)); "with criminal negligence. ..causes physical injury to another person by means of a deadly weapon" (A.S.C.A. § 46.3522(a)(2)); or "recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person" (A.S.C.A. § 46.3522(a)(4)).(2) [16ASR2d85]

Defendant, after a deliberative process suffused with substantive rights and procedural safeguards even more extensive than those available to a defendant in civil litigation, has been affirmatively adjudicated to have perpetrated a criminal assault upon another person. Plaintiff has been affirmatively adjudicated to have been the victim of this assault. Although the victim of a crime is not formally a party to the prosecution, his or her participation is usually essential and often entails personal hardship and even risk. As we have observed, a successful criminal prosecution does not automatically entitle the victim to an award of damages. To relitigate the basic question of who was the perpetrator and who was the victim, however, where this question was necessarily decided by the criminal conviction, would be at best a waste of judicial resources and at worst fundamentally unfair.(3)

II. Self Defense and Other Justifications

Even if he were not estopped by his guilty plea and criminal conviction, defendant would not have established a justification of self- defense. Neither version of the incident was consistent with such a justification. In plaintiff’s version, the attack on him by defendant was unprovoked. Even according to defendant's own version, there was no imminent danger of an attack on him by the plaintiff; rather, plaintiff [16ASR2d86] shouted some nasty things and pulled over to the side of the road, apparently wanting to engage in a tight with knives and guns, and defendant obliged. There was no evidence---even if we believe all of defendant's testimony and disbelieve that of the plaintiff---that defendant could reasonably have believed force, much less the infliction of serious injuries, necessary to avoid imminent harm to himself. This was not even one of those difficult situations in which a person about to be attacked must decide quickly whether to stand his ground or make a safe retreat. No attack was imminent. Defendant could have kept on driving.

The justification for which defendant did present evidence, and for which his attorney made a closing argument, was not self-defense but consent. "Consent ordinarily bars recovery for intentional interferences with person or property.... It is a fundamental principle of the common law that volenti non fit injuria-- to one who is willing, no wrong is done." Prosser & Keeton on Torts § 18 at 112 (5th ed. 1984). Although inconsistent with his pleading, defendant's testimony at trial was directed almost exclusively to proving that plaintiffs injuries were the result of a mutual combat freely entered into by both parties.

The justification of consent, unlike that of self-defense, appears to be outside the scope of the estoppel worked by defendant's guilty plea. This is because our criminal law does not, except in a few extraordinary circumstances, allow consent as a justification for the infliction of serious injuries. See A.S.C.A. § 46.3523. Defendant's guilty plea neither affirmed nor denied the infliction of serious injuries. Assuming that defendant regarded the injuries as serious---as the present evidence shows beyond doubt they were---he could truthfully have pled guilty to Assault in the Third Degree although believing himself guilty only of a mutual combat and not of an unprovoked attack. He is therefore not estopped to assert this in the present case.

For the same reasons that consent does not work as a justification for the infliction of serious injuries in the criminal context, however, it is also a dubious defense to the present action. A plaintiff’s consent to a fist tight will ordinarily bar his recovery for injuries suffered in the fight. Where mutual combat is conducted with weapons calculated to cause death or serious physical injury, however, "the considerable majority of the courts have [held] ...that the consent given will. .. not protect the defendant against a civil action for the damages inflicted." Prosser & Keeton, supra, § 18 at 122. Each combatant "is civilly liable to the other... and the fact that the parties voluntarily engaged in combat is no defense to an action by either of them to recover damages [16ASR2d87] for personal injuries inflicted upon him by the other." Condict v. Hewitt, 369 P.2d 278, 279 (Wyo.1962).

This rule leads to the odd result that each of two combatants could recover damages against the other, each having to pay in proportion to the success of his efforts. The rule has been criticized, and among courts "[a] minority, with the support of the Restatement, have held that the consent will defeat the civil action." Prosser & Keeton, supra, § 18 at 122; see Restatement (Second) of Torts § 60. It is arguable, however, that "no one should have the capacity to consent to ...an invasion likely to result in his death." Prosser & Keeton, supra, § 18 at 123. Moreover, "the tort action may often be helpful in reducing the incidence of damaging events...." Id.at 124.

The present case, in which consent was not pled and counsel have not briefed or argued the question, does not seem an appropriate one in which to choose between the majority rule and the Restatement rule with respect to consent as a justification for the use of deadly force. Nor is it necessary to decide this question, for the preponderance of the evidence does not support defendant's contention that plaintiff consented to a tight with deadly weapons.

Each of the two parties told a story that was neither incoherent nor internally inconsistent. It might have happened either way. In his closing argument, counsel for defendant suggested that a basis for choosing between the two stories was afforded by the pattern of plaintiff's injuries: that plaintiff, who is right-handed, held up his left hand to shield himself from defendant's blows must mean he was holding a knife in his right hand. This inference seems tenuous. The use of the left hand as a shield could be explained just as well by its having been the hand closer to the blunt object that was about to come down on the plaintiff; by a conscious or instinctive desire to have the right hand free for hitting or grappling; or by plaintiffs being a person who does not function well under pressure. Indeed, the pattern of injuries could just as easily call the defendant's story into question. If, as he testified, his goal was merely to disarm the plaintiff, then perhaps he should have directed more of his blows at the alleged knife hand and fewer at the limb being used to shield plaintiffs head and body.

Left to assess the inherent likelihood or unlikelihood of each story, we find it most difficult to believe that a man with a knife freely consented to mutual combat---indeed, according to defendant, actively initiated such combat---with a man holding a gun. Even assuming that [16ASR2d88] plaintiff was willing to tight before the gun was introduced into the picture, we cannot conclude (as we must in order to find consent as a legal justification) that such consent continued as defendant walked toward plaintiff carrying the gun, with no indication that he intended to use the gun as a bludgeon rather than in the ordinary way. We would find it still more difficult to believe that plaintiff began the actual combat by swinging a knife at an adversary who was then holding a rifle or shotgun. Although defendant presented evidence designed to show that plaintiff had many undesirable character traits, he was not proved to be crazy.

Moreover, defendant's alternative plea of "defense of property," although frivolous insofar as it purports to present a justification for the use of deadly force,(4) does suggest the most plausible explanation for the attack. According to defendant's answer, plaintiff had "come onto the land of [defendant] and destroyed vegetation thereon and had attempted to lay claim to ownership thereof." Some weeks before the incident that concerns us here, plaintiff had attempted to conduct a survey of this land, presumably in order to offer it for registration in accordance with A.S.C.A. §§ 37.0101 et seq. Defendant's father, generally recognized as the highest chief in Leone and vicinity, appeared and announced that he did not intend to let plaintiff conduct the survey. Plaintiff became quite excited and spoke disrespectfully to defendant's father. Defendant then displayed his gun and told plaintiff to leave. Plaintiff did so, with a parting statement to the effect that he would fight the defendant at some future time. According to plaintiff, this was an invitation to fight with fists, not deadly weapons.

Defendant's version of this earlier encounter is that he went for his gun after plaintiff had "assaulted" him by "waving the knife around." It is undisputed that plaintiff had a bush knife (probably of the "cane knife" variety) at the survey; such a knife is an essential thing to have at a survey of bush or agricultural land. Neither plaintiff nor the other witness who was present at the survey -- defendant's witness and relative Ioane Atofau -- said anything about plaintiff waving a knife. Nothing [16ASR2d89] happened at this encounter to justify the future use of deadly force upon plaintiff, or to suggest that plaintiff was willing to engage in any sort of combat beyond fisticuffs. (Indeed, plaintiff's prompt compliance with defendant's order to leave was almost certainly motivated by a healthy respect for firearms.) What did happen, as is clear from defendant's own pleading and testimony, was that the incident left defendant with a strong sense of righteous indignation and a belief that plaintiff would keep on causing trouble until he was taught a lesson. At the time he was attacked, plaintiff was apparently returning from yet another visit (in defendant's view, a trespass) to the land claimed by defendant.

The evidence is certainly consistent with the view that plaintiff is capable of being a most exasperating person. He should not have insulted defendant's father. Nor, if the disputed land did belong to defendant, should plaintiff have gone upon it or claimed it as his own. People who do things like these may be shunned, sued, vilified, and in appropriate cases arrested. But they may not have their arms broken.

We conclude that plaintiff's injuries resulted from an unjustified battery committed by the defendant.

III. Damages

Plaintiff asserted but did not prove that his injuries resulted in a substantial loss of income. The tree trimming business which was his sole source of income at the time appears to have done better in the months after the attack than it had ever done before.

Plaintiff did prove that he has endured, and continues to endure, considerable pain and suffering. He has been subjected to a severe beating, to bruises, broken bones, and a dislocated elbow joint, to the physical intrusion, and emotional distress occasioned by surgery, and to several days of hospitalization and an extended period of convalescence during which at least one arm was in a cast. He now has a large scar on the outside of his left arm and a metal plate inside it, both of which will remain permanently. There is a substantial partial disability in the left arm. Plaintiff faces a further choice between undergoing a major surgical procedure which will probably, although by no means certainly, restore much or all of the lost function in the arm, or putting up with the partial disability for the rest of his life. Either of these choices will involve further pain and suffering. [16ASR2d90]

We assess plaintiff’s damages at $20,000. This assessment will be reduced by the $1,000 which, according to the record in the criminal case, defendant has already paid plaintiff as restitution in lieu of a fine.

We make no award of punitive or exemplary damages. In the circumstances of this case, the deterrent function of such awards will be served by the assessment of $20,000 in actual damages, and the prison sentence is adequate punishment.

IV. Order

Judgment will enter for plaintiff and against defendant in the amount of $19,000.

It is so ordered.

*********

1. See Hazardsupra, at 577-78, quoted in Bower, 759 F.2d at 1130 (Sloviter, J., dissenting):

[I]f a proposition is clearly asserted, and if a party is called upon solemnly to admit or deny the proposition, and if the stakes are high enough to assure that he party is serious in dealing with the issue, and if the party then admits or fails to deny the proposition, then he ought to be estopped from controverting it on some other occasion, particularly if that other occasion involves essentially the same transaction. The clearest case for such an estoppel is where a defendant pleads guilty to a substantial criminal charge and then seeks in civil litigation concerning the same transaction to assert that he did not commit the criminal act.

It has been suggested that the "truth-telling" concern raised by Professor Hazard has nothing to do with the "issue preclusion" effect of a judgment, but should instead be characterized as an argument for an altogether different phenomenon called an "evidentiary estoppel." See Bower, supra, at 1129 (Sloviter, J., dissenting); Restatement (Second) of Judgments § 85 comment b (1982). This analysis holds that "issue preclusion" has to do with avoiding the inefficient allocation of judicial and party resources and should therefore apply only to issues that have actually been tried, but that a solemn judicial admission may nevertheless have an estoppel effect for policy reasons unrelated to the allocation of resources. Perhaps because issue preclusion and evidentiary estoppel would be virtually indistinguishable in practical application, courts have not made the distinction. See Winker319 N.W.2d at 294.

We believe, however, that the denial of a prior judicial admission presents both the problem of resource allocation raised by relitigation of any question already fairly decided and the credibility and forum tainting concerns posed by judicial tolerance of solemn inconsistent admissions.

When a party seeks to controvert an issue decided against him in a contested proceeding, he is saying to the Court, "The other judge was wrong. Please hear me out." When he seeks to controvert an issue he could have contested but chose to admit, he says, "I misled the Court, but there were good reasons for it. This time my interests coincide with telling the truth, and I propose to do so."

It is not immediately apparent that judicial resources will be more efficiently spent in relitigation of the second class of cases described above than of the first. If anything, the class of questions actively contested would seem likely to include more close questions ---and therefore more questions wrongly decided and on which relitigation might change the result ---than the class of questions decided by admission. (This assumes only that questions in the latter class were sufficiently central and important not to have been admitted casually or inadvertently.) To the extent that allowing a party to rebut his own deliberate admission also offends the sense of justice, this should be regarded as an independent and additional ground on which to give preclusive effect to judgments based on such admissions.

2. The plea bargain did not specify under which subsection defendant was pleading guilty, but did specify that he was pleading guilty to a Class A Misdemeanor. The three subsections quoted in the text are those under which Assault in the Third Degree constitutes a Class A Misdemeanor. See A.S.C.A. § 46.3522(b). The record of the criminal proceeding---the information, the transcript of the preliminary examination, and the defendant's answer to the question posed to him by the Court prior to accepting the guilty plea---is consistent with a finding of assault under any of the three subsections.

A reading of A.S.C.A. § 46.3522 together with A.S.C.A. § 46.3305, the self-defense statute, yields no possible set of facts consistent with the guilty plea and also with defendant's present contention that his actions were reasonably necessary to prevent an imminent attack by the knife-wielding plaintiff'. This is to be expected, for our criminal self-defense statute substantially restates the common law defense to battery and other intentional torts. Compare A.S.C.A. § 46.3305 with Prosser & Keeton on Torts § 19 at 125-28 (5th ed. 1984). Thus, for instance, tort law would excuse the defendant for using "deadly" force if and only if he reasonably believed "that he is in similar serious danger, and that there is no other safe means of defense." Prosser & Keeton, supra, at 127. To the exact extent defendant could establish such a justification in the present action, however, he would not have been guilty of assault or any other crime even if he did use deadly force. See A.S.C.A. § 46.3305(b).

3. Our holding with respect to the collateral estoppel effect of a guilty plea is limited to cases in which the plea was to a charge serious enough to ensure that the plea represented a conscious and deliberate decision to admit rather than to contest the essential elements of the crime. We express no opinion with respect to the effect of a plea to a traffic infraction, or even to a petty misdemeanor punishable by a term of imprisonment of less than six months. (Although the crime to which the present defendant pled guilty was one day short of being a felony, it was well within the class of offenses traditionally characterized as "serious crimes" rather than "petty offenses." See Codispoti v. Pennsylvania, 418 U.S. 506 (1974); 18 U.S.C. § 1.)

Nor do we express an opinion on whether estoppel may sometimes be unfair in the circumstances of particular cases, other than to hold that such unfairness cannot be established by showing that a guilty plea was made in the context of a favorable plea bargain. See generally Parklane Hosiery Co. v. Shore, 439 U.S. at 329-32.

4. "The use of force is not privileged when it is apparent that no immediate interference with the property is threatened, or that all danger is past." Prosser & Keeton, supra, § 21 at 132. Plaintiff was some distance from the land in question, and heading away from it, when the encounter with defendant occurred. Even more important, "since the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land...." Id .

In re a Minor Child (Juv. No. 25-90),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 25-90

September 10, 1990

__________

Petition by middle aged, able-bodied natural parents to relinquish their parental rights was denied since they failed to show relinquishment was in the best interest of the minor where petitioners, their minor child, and the grandmother wishing to adopt him all lived together, the child was aware of his natural parents, and the parents were gainfully employed while the grandmother received only social security benefits and rental income.

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

Counsel: For Petitioner, Isa-Lei F. Iuli

This is a petition for relinquishment of parental rights in anticipation of adoption of the parties' 6 year old minor child by his paternal grandmother. The primary ground for the petition is that the child has been reared by grandmother who is now 66 years of age, a recent widow, and whose source of income is social security benefits and certain rentals. The natural parents are in their mid-thirties and have both been gainfully employed. We are informed by the home study concluded by the Child Protective Services, Department of Human Resources, that all parties concerned are living together and that the child is aware of her natural parents. The natural father candidly admitted that he and his wife would naturally take over the child's care should grandmother become incapacitated.

The termination of parental rights also means the termination of a parent's legal obligations of support towards the child. The vital concern, therefore, in these matters is whether the child's best interests will be served by granting the petition. We are unable to conclude herein that termination of the parents' legal rights and duties would be in the child's best interests. The child's remaining period of minority is significant; he should be able to look to his relatively younger and able parents to provide for his future. The petition is denied. [16ASR2d109]

It is so Ordered.

*********

In re a Minor Child (Juv. No. 04-90),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 4-90

September 10, 1990

__________

Petition by middle aged, able-bodied natural parents to relinquish their parental rights was denied since they failed to show relinquishment was in the best interest of their minor child where her father was gainfully employed and required to pay child support to her under a divorce decree, while her grandmother who wished to adopt her received social security benefits. [16ASR2d107]

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

Counsel: For Petitioner, Isa-Lei F. Iuli

The natural parents petition for the relinquishment of their parental rights. The child is eight years of age and has been living with her maternal grandmother who seeks the adoption. Grandmother is 58 years of age, recently a widow, and currently a recipient of social security benefits. The natural parents, on the other hand, are able-bodied and in their early forties, although they have been divorced since February 27, 1986. The father has been gainfully employed for many years as a technician with the government's television station and earns an annual salary of $10,000.00. He is required to make certain child support payments under the decree of divorce. The natural parents have other grown children; however, the minor is their only remaining dependent.

We have no reason to doubt grandmother's devotion towards her grandchild and her fitness to take care of her. The child may continue to live with the her grandmother as long as the parents agree. However, we are unable to conclude in the circumstances that the child's best interests would be served by granting the petition and thereby terminating the child's right to look to her able-bodied parents for support. Her pending dependency is for many years yet to come.

The petition is therefore denied.

It is so Ordered.

*********

In re a Minor Child (Juv. No. 122-90),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 122-90

July 3, 1990

__________

Petition of capable, healthy, and young natural parents to relinquish their rights to their minor child was denied where the grandparents wishing to adopt the child relied upon sources of income (social security, military retirement, and disability benefits) that would be reduced or curtailed upon their deaths. [16ASR2d10]

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

Counsel: For Petitioner, Ellen A. Ryan

On Petition for Relinquishment:

The natural parents petition to relinquish their natural rights to their minor child in anticipation of adoption by the child's maternal grandparents. The principal reason given for the petition is that grandparents have primarily taken care of the child since birth.

We are required, among other things, to consider the best interests and welfare of the child. However, after evaluating the evidence, we are left with much uncertainty regarding the child's future. The difference in age between the grandparents and the minor looms large as a factor of uncertainty. See, e.g., In re a Minor Child, 4 A.S.R.2d 181 (1987); In re a Minor Child, 6 A.S.R.2d 123 (1987); In re a Minor Child, 7 A.S.R.2d 115 (1988). At the same time, the breadwinner in the grandparents' household is a 68 year old grandfather whose source of income is social security, military retirement, and disability benefits. Certain of this present income will no longer be available upon grandfather's death---disability benefits will terminate and retirement benefits will translate to survivor's benefits. On the other hand, the minor has perfectly capable and healthy young parents to whom he can look to secure his minority after his grandparents' time. We are unable to grant the petition.

It is so Ordered.

**********

In re a Matai Title Niuatoa,


FA'AMAONI VAITA aka JOHN UTU, Claimant

v.

FALEULU A. PULETASI, UTAGA M. NIUATOA,
and LUSI P. TIVAO, Objectors

[In the Matter of the Matai Title
"NIUATOA" of the village of Olosega]

High Court of American Samoa
Land and Titles Division

MT No. 4-87

August 2, 1990

__________

No one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim or objection. A.S.C.A. § 1.0404.

Residency is one of the criteria that determine the right to vote in American Samoa, not vice versa; hence, the fact that a person is registered to vote here does not prove that he is a resident of the territory.

Matai who for the last ten years has lived, worked, and owned a home in the United States, but occasionally visited American Samoa and was registered to vote there, was not an American Samoan resident and could not claim succession to a matai title.

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

Counsel: For Claimant, Asaua Fuimaono

  For Objector Faleulu, Gata E. Gurr

  For Objector Utaga, Charles V. Ala'ilima

When this matter came on for trial, after delayed trial setting and a previous continuance, objector/counter-claimants Faleulu Puletasi and Utaga Niuatoa were the only parties present and ready for trial. Trial therefore proceeded without the claimant, Fa'amaoni Vaita, who is reportedly living in Guam, and without objector Lusi P. Tivao, who seems to have lost interest in the matter, having failed to comply with the [16ASR2d26] Clerk's notice to file answers to the questionnaires made and provided for in these cases.

At the conclusion of the evidence, Faleulu moved to disqualify Utaga on the basis that Utaga did not meet the residency requirement of A.S.C.A. § 1.0404. This enactment states in pertinent part: "[N]o one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year in1ll1ediately preceding the date of the claim or objection.” The evidence clearly shows Utaga to be ineligible. He actually resides with his family in San Francisco where he concedes he has owned a home for the last ten years and where he has been in the employment of private industry since his retirement in 1980 from the United States Air Force. He occasionally visits the territory. In his defense, Utaga claims to be an American Samoan resident because he is a matai' and a registered voter. This argument begs the question. The right to vote in American Samoa also entails, not surprisingly, a residency criterion. See Rev. Const. Am. Samoa art. II, § 7. It is residency, among other things, that determines the right to vote and not vice versa.(1) We accordingly hold that Utaga M. Niuatoa is currently ineligible to claim succession to the title Niuatoa.

On the other hand, the evidence also shows that candidate Faleulu does meet the basic qualifications and is eligible to claim succession to the title Niuatoa. Accordingly, Faleulu Aneterea Puletasi shall be registered as the successor to the matai title Niuatoa attached to the village of Olosega. Certification to the Territorial Registrar pursuant to A.S.C.A. § 1.0409 shall be made accordingly.

It is so Ordered.

*********

1. Cf. A.S.C.A. § 1.0412(a): "Any matai absent from American Samoa for more than one year may be removed from his title upon petition filed in the High Court by any member of the family of the absent matai."

American Samoa Gov’t v. Loia,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

NAPOLEONE LOIA, Defendant

High Court of American Samoa
Trial Division

CR No. 10-90

July 2, 1990

__________

Under the "plain-view" doctrine, property may be seized without a warrant when: (1) the police officer's initial intrusion or presence in an area is lawful; (2) his discovery of incriminating evidence is inadvertent; and (3) the incriminating nature of the property seized is immediately apparent.

The use of artificial means to illuminate a darkened area is not a search and thus triggers no Fourth Amendment protection.

There is no legitimate expectation of privacy shielding the portion of the interior of an automobile that may be viewed from outside the vehicle.

Incriminating nature of property seized is immediately apparent when an officer has probable cause to believe that the property found in plain view is incriminating; certain knowledge of its incriminating nature is not required.

Rolled butt's twisted ends are significant in assessing probable cause that the butts contained marijuana, since ends are usually twisted to preserve the contents for future use, a precaution more likely used with illegal and difficult to obtain substances like marijuana than with readily accessible substances like tobacco.

Fact that currency as well as rolled butts with twisted ends were visible in auto ashtray indicated that the ashtray was used to store items, not dispose of them, a use more probable for scarce substances like marijuana than common substances like tobacco.

Court may consider the training, experience, and collective knowledge of the police officers seizing property in plain view when assessing whether probable cause existed to believe that such property was incriminating.

Warrantless seizure of marijuana "roaches" from auto ashtray was justified under the "plain view" doctrine, where officers first followed auto because it was speeding without tail lights, looked inside it with a flashlight to find the key in order to move it for reasons of safety, and while looking for the key saw currency and rolled and twisted cigarette butts in the auto ashtray.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge. [16ASR2d2]

Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General

  For Defendant, Barry I. Rose, Assistant Public Defender

On Motion to Suppress:

Background

While on patrol on the evening of March 6, 1990, police officers Maifea and Letuli encountered an oncoming vehicle which appeared to be speeding at a curve in Fatumafuti. Officer Maifea noticed through his rear view mirror that the passing vehicle had no tail lights and, after seeking a suitable area in the highway permitting a U-turn, gave chase. The officers eventually found the vehicle they were pursuing in Faga'alu at the L.B.J. Tropical Medical Center, parked and unoccupied next to the emergency clinic entrance. Officer Maifea went immediately into the emergency clinic to look for the driver, while at the same time calling out to his partner, Officer Letuli, to check whether the keys were still in the vehicle. Officer Maifea testified that his concern for the keys was the need to remove the vehicle from the emergency clinic's entrance. Officer Letuli, with the aid of a flashlight, saw that the keys were left in the vehicle. However, he also noticed, in the vehicle's ashtray, paper currency on top of which lay the remains of two hand rolled cigarette butts. The ends of the butts were twisted and they looked like marijuana joints to the officer. He waited at the vehicle until officer Maifea returned and told him about the butts. The latter ---who in the meantime had found the defendant, Napoleone Loia, who admitted driving the vehicle ---also viewed the butts and a decision was made to call for a narcotics agent. Officer Maiava subsequently responded from the narcotics division. He testified that he also viewed the butts, or "roaches," as they were found in the vehicle's astray, removed them, and performed a certain chemical field test. The butts tested positive as marijuana and were seized as incriminating evidence.

The defendant contests the" validity of this warrantless seizure as being in violation of his rights against unreasonable search and seizure under article 1, section 5 of the Revised Constitution of American Samoa, and the Fourth and Fourteenth Amendment to the United States[16ASR2d3] Constitution.(1) The government, on the other hand, relies on the "plain- view" doctrine under Coolidge v. New Hampshire, 403 U.S.443 (1971), as justifying the warrantless seizure of the butts.

Discussion

Under Coolidge, "plain-view" provides grounds for the warrantless seizure of private property when three requirements have been satisfied:

First, the police officer must lawfully make an "initial intrusion" or otherwise properly be in a position from which he can view a particular area. Id.at 465-468. Second, the officer must discover incriminating evidence "inadvertently," which is to say, he may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretext. Id. at 470. Finally, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id. at 466.

Texas v. Brown, 460 U.S. 730, 737 (1983) (plurality opinion).

Applying these requirements to the facts, we conclude the following: there can be no argument that officers Letuli and Maifea (and for that matter officer Maiava as well) were legitimately in a position from which they viewed the butts. The butts were within plain-view notwithstanding the fact that officers Letuli and Maifea had used flashlights to illuminate the vehicle's interior. As stated by the Supreme Court in Texas v. Brown, "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." Id. at 740. Further, the Court stated [16ASR2d4] that in relation to automobiles "[t]here is no legitimate expectation of privacy, shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passerby or diligent police officers." Id. (citations omitted). Thus, and we so hold accordingly, the viewing of the butts by officers Letuli and Maifea was not a search within the meaning of the Fourth Amendment and, hence, our counterpart Rev'd. Const. Am. Samoa art. 1, § 5.

On the evidence, we are further satisfied that officers Letuli and Maifea had come across the butts inadvertently. There was nothing in the evidence to suggest that the officers knew in advance that they would find marijuana butts, or roaches, which they intended to seize without a warrant; neither was there anything to suggest that they were using the traffic laws to stop the defendant's vehicle while relying on the "plain-view" doctrine as a pretext for a drug search.

The third of the Coolidge requirements is whether it was "immediately apparent" to the officers that the butts may be marijuana roaches. The Supreme Court also clarified in Texas v. Brown, that despite the unhappy choice of words in the phrase "immediately apparent, " the Coolidge court did not mean that a police officer must "know" the incriminating nature of the evidence. To permit a warrantless seizure, the Fourth Amendment only requires that the officer must have "probable cause" to believe that the item found in plain view is incriminating. Id. at 741. In reviewing probable cause, the Court cautioned that

[t]he process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact finders are permitted to do the same ---and so are law enforcement officers. Finally, the evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id. at 741 (quoting United States v. Cortez, 449U.S. 41 1,418 (1981).

In the present matter, defendant argues that two butts in a vehicle's ashtray, which is designed to store cigarette butts, are insufficient circumstances to permit a conclusion of probable cause that the butts are other than tobacco. The defense further argues that a ruling [16ASR2d5] in favor of the government would encourage the police to stop anyone who is seen in public with a butt. To demonstrate his point. the defendant produced a number of tobacco butts which the officers acknowledged on the stand as looking something like the butts they saw on the evening of March 6, 1990.

The defense's demonstration misses the mark altogether. It clinically demonstrates possibilities rather than "practical, nontechnical" probabilities, spoken of in Brinegar v. United States, 338 U.S. 160, 176 (1949). For instance, the concerns raised about harassment of the smoking public is more fancied than real. In terms of probabilities, those people who smoke in public are more likely to be tobacco users rather than marijuana users. Why? Because there is a law against the possession of marijuana which discourages its public use; not so in the case of tobacco. Further, the defense's in court demonstration simply fails to account for the requirement that an assessment of probable cause must be based upon "all the circumstances." United States v. Cortez, supra at 418. The significance, therefore, of a rolled butt's twisted ends, which according to officer Maiava is a relevant identification factor, is a consideration in assessing probable cause. Twisted ends generally means preservation for further use and, in our opinion, when viewed in light of the fact that marijuana is not as readily available as tobacco --- there is a law against the possession of marijuana ---the officers were certainly presented grounds to conclude that it was more probable than not that the butts, twisted at the ends, were marijuana rather than tobacco. Further, and in the light of the fact that tobacco is more readily available than marijuana, tobacco butts in a vehicle's ashtray would be more consistent with circumstances of disposal rather than of preservation ---people do not preserve tobacco butts. However, what the officers actually viewed in the ashtray can hardly be said to be consistent with disposal. Besides the butts, there was currency, hardly the sort of thing one would expect to find in a vessel which is used to extinguish and discard burning tobacco butts as well as cigarette ash. Notwithstanding the purpose for which an ashtray is designed (a feature heavily relied upon by the defense as discounting probable cause), the ashtray in question appeared at all relevant times to be used for storage; a use not inconsistent with the preservation of such things as marijuana roaches. Finally, a reviewing court must not be unmindful of the officers' police training and experience which allows them to draw and make from all sorts of available data, such "inferences and deductions that might well elude an untrained person." United States v. Cortez, supra, at 418. Their collective knowledge as well is a factor for regard in the equation. [16ASR2d6] U.S. v. Wiley, 673 F.Supp. 1405, 1409 (E.D. Va. 1987).(1) Here the effect of officer Letuli's testimony was that he was not new to marijuana cigarettes. He had seen many such cigarettes as a policeman and during his college days. At the same time, officer Maifea testified that when he had encountered the defendant, he was very evasive and generally acted as if he something to hide, while officer Maiava informed the Court that his office has had the defendant under surveillance for some months. The latter at least had the "generalized expectation" spoken of in Texas v. Brown, supra at 744, and albeit factor hardly significant in and of itself, it is nonetheless a building block in the total picture. Additionally, officer Maiava was very much influenced by the appearance of the butts, the manner in which they were rolled, the twisted ends, and the way they were set aside.

We conclude on the experience of the officers, together with the appearance and location of the butts, that probable cause existed for warrantless seizure of incriminating evidence. The motion is denied.

It is so Ordered.

**********

1. Our reference to the Fourth and Fourteenth Amendment of the United States Constitution is merely to reiterate defendant's argument. We intimate no views on the Fourteenth Amendment's application, if any, to the territory of American Samoa. Cf. Ngiraingas v. Sanchez, 495 U.S. 182, 109 L.Ed 2d 163 (1990). In the context of 42 USC § 1983 ---originally enacted as § I of the Civil Rights Act of 1871 to enforce the provisions of the Fourteenth Amendment ---"Territories are not 'States' within the meaning of the Fourteenth Amendment." 109 L.Ed 2d at 172 (quoting District of Columbia v. Carter, 409 U.S. 418, 424 (1973). See also Banks v. American Samoa Government, 4 A.S.R.2d 113, 128 n.7 (1987); Ferstle v. American Samoa Government, 4 A.S.R.2d 160 (1987).

2. The facts of this case are very similar to the matter at bar.

Atualevau; Lualemana v.


LUALEMANA E. FAOA, Plaintiff

v.

ATUALEVAO SOSENE ASIFOA and LEFOTU TUlLESU,
Defendants

LUALEMANA E. FAOA for LUALEMANA FAMILY and
VILLAGE OF A'ASU, and TUITELE K.A. LE'OSO for
VILLAGE OF LEONE, Plaintiffs/Objectors

v.

A'OLOAU VILLAGE COUNCIL, Defendant/Claimant

A.U. FUIMAONO and the VILLAGE OF A'OLOAU, Plaintiffs

v.

TOLUAO FETALAIGA, Defendants

TUANAITAU TUIA, AVA VILI, TOLUAO FETALAIGA for
themselves and the VILLAGE OF PAVA'IA'I, Intervenors

LEPUAPUA STANLEY MASSEY UTU, for himself and
on behalf of the UTU FAMILY, Intervenor

TUILEFANO VAELAA, TUIAGAMOA, TUIOLEMOTU, and
TUITASI for "AlGA AITULAGI," Intervenors

High Court of American Samoa
Land and Titles Division

LT No. 29-86
LT No. 41-86
LT No. 12-87

August 6, 1990

__________

If there has been no occupancy or possession but only an occasional visit to the bush, such use was insufficient to defeat the land claim of people who came later to clear the area, make plantations, and occupy it continuously. [16ASR2d35]

Land can only be registered by its owner and not a village, because the concept of village ownership of land is ordinarily contrary to Samoan custom and tradition. A.S.C.A. §§ 37.0101 et seq.

A valid registration effected in accordance with statutory procedures establishes a title good against the world. A.S.C.A. §§ 37.0101 et seq.

A registration which appears on the face of its own record not to have been conducted in accordance with the statutory procedures, such as the failure to post notices and announce the survey in the village where the land is actually located, conveys no title.

Even if it would not exceed the Court's power, declaring a prior judicial decision null and void, when witnesses have died and memories have faded in the intervening thirty years, would be imprudent and unjust because the Court at that time was in a much better position to determine the issues material as to whether land should be registered.

Acquiring land under an adverse possession statute requires open, notorious, continuous, and exclusive possession.

Actual occupation with a claim of ownership-- not the exercise of power over the actual occupants at some time in the distant past, nor even present political authority over a village, county, or district-- is the best evidence of land ownership in American Samoa.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and VA'A, Associate Judge.

Counsel: For Plaintiffs Lualemana, Tuitele, and the Villages of A'asu and Leone, Afoa L.S. Lutu

  For Plaintiffs Fuimaono and the Village of A'oloau, Gata E. Gurr

  For Defendants Atualevao and Lefotu, Charles V. Ala'ilima

  For Intervenors Tuanaitau, Ava, Toluao, and the Village of Pava'ia'i, Tau'ese P. Sunia

  For Intervenors Utu family, Togiola T .A. Tulafono

  For Intervenors Aiga Aitulagi, Tuiasosopo Mariota II

These consolidated actions concern the ownership of over 400 acres of land on and around MountOlotele, comprising the village of A'oloau Fou and its environs.

In 1986 an injunctive action (LT No. 29-86) was brought against Atualevao Sosene Asifoa and Lefotu Tuilesu, two chiefs of A'oloau, by Lualemana, the principal chief of the neighboring village of A'asu. Lualemana claimed that Atualevao and Lefotu had begun cultivating portions of A'asu lands called Tuaolo and Faleselau. Fuimaono and the [16ASR2d36] Village Council of A'oloau intervened, asserting that the disputed land was part of A'oloau and not A'asu.

Shortly thereafter Fuimaono and the Village Council offered for registration as "a communal land of the Village of A'oloau" two parcels comprising about 420 acres. Objections were filed by Lualemana on behalf of his family and the village of A'asu and by Tuitele on behalf of thevillage ofLeone. The registration case was referred to the High Court and designated LT No. 41-86.

In November of 1986 several chiefs of Pava'ia'i, another neighboring village, moved to intervene "for themselves and the village of Pava'ia'i" in the injunctive action, LT No. 29-86. If any party had contested this motion it would probably have been denied, since it is now clear that the Pava'ia'i chiefs had no interest in the area that was being disputed in LT No. 29-86. Rather, their objection was to certain parts of the A'oloau survey offered for registration in the other case, LT No. 41-86. These areas were at the opposite end of the 420-acre survey from the area being disputed with Lualemana in the injunctive action. The Pava'ia'i chiefs had, however, missed the statutory 60-day deadline for filing objections to the survey, perhaps because it was posted only in A'oloau and not in Pava'ia'i. Rather than state this lack of notice as a ground for allowing an otherwise untimely objection in the registration action, they sought admission through the side door represented by the Lualemana injunctive action. Hearing no objection, and thus far unaware that the intervenors planned to assert no interest in the subject matter of the action in which they sought to intervene, the Court granted the motion.

The third and last of the cases now before us, LT No. 12-87, was filed early in 1987. In this case Fuimaono and the A'oloau Village Council sought an injunction against Toluao Fetalaiga of the village of Pava'ia'i. They alleged that he had recently begun occupying and cultivating part of the land recently offered for registration by the village of A'oloau and had thereby destroyed crops belonging to various A'oloau families.

The cases were consolidated for trial. After consolidation yet another set of parties, the"Aiga Aitulagi," moved to intervene. The motion was granted without objection. The Utu family of A'oloau also intervened. After several postponements, the consolidated cases were tried on May 16-18, 1990. The record was held open for certain post-[16ASR2d37]trial submissions, and the case was then taken under advisement. We address herein the claims asserted by each of the parties.

I. The A'oloau Survey

The evidence establishes that the two parcels included within the A'oloau survey represent, with certain limited exceptions discussed below, lands that have been occupied and cultivated from virgin bush at various times since 1943 by various families of A'oloau and that are the property of those families. In 1946, when the village completed its move up the mountain from its former location on the North Shore, a boundary was settled with A'asu which by then had begun a similar migration. See Lualemana v. Brown, 3 A.S.R. 348, 350 (1958). The survey now offered for registration generally respects that boundary and the pattern of settlement of the two villages over the ensuing 44 years. In one place, however, it transgresses the traditional boundary and also encroaches on a tract of land already registered as the property of the Lualemana Family of the village of A'asu. This encroachment is reflected on the composite map designated Exhibit 13, in the overlap between "Parcel B- Two" of "A'oloaufou" and the 85.66 acre registered survey of "Tuaolo & Faleselau." Not only has the latter survey been registered in accordance with law for over 20 years, it also more nearly reflects the pattern of settlement than does the A'oloau survey, The boundary line drawn by the Lualemana/A'asu survey heads northward from the main road at a point corresponding to the intersection with an old road to A'asu Tuai. Witnesses for all parties acknowledge this intersection to be a turning point in the boundary between the two villages. The A'oloau survey, in contrast, turns northward from the main road at an apparently random point and includes houses along the main road belonging to A'asu people whose right to live there has not previously been disputed. Indeed, the principal A'oloau witness seemed surprised to find that his village's survey included these houses.

A small portion along the southern boundary of the A'oloau survey is also contested by Tuitele on behalf of the village of Leone. The evidence reflects that a settlement of this boundary was reached between Fuimaono and Tuitele in or around 1988, in which Fuimaono on behalf of the Village Council conceded the disputed portions (reflected in Tuitele Exhibit 2, Drawing RPS2-5-30-88) to the Leone claimants. Although, for reasons we shall discuss, it is not clear that this agreement is binding on any particular A'oloau family that may claim to own the land, it is sufficient to support the only relief requested by Tuitele in the [16ASR2d38] present action, i.e., the denial of the offer of registration of the disputed portions as property of the Village Council of A'oloau.

The Pava'ia'i intervenors object to a somewhat larger area in the southern and eastern portions of the A'oloau survey. They have introduced their own surveyor the area they call "Lago," said to belong to the "Ali'i and Families of Pava'ia'i." Their witnesses testified that this survey reflects the traditional boundary between the county (a term now used to describe a traditional grouping of villages) to which Pava'ia'i belongs and that to which A'oloau and A'asu belong. One Pava'ia'i witness also testified that his father had once cultivated a plantation somewhere in Lago.

We are not convinced that Pava'ia'i people ever cultivated or occupied Lago. If they ever did, they seem to have abandoned it long before the A'oloau people arrived. The Pava'ia'i witnesses' objection to this part of the A'oloau survey appears to be grounded primarily in their conviction that the survey transgresses an ancient political boundary. The principal A'oloau witness, on the other hand, places the traditional boundary at the bottom of the mountain near what is now the center of Pava'ia'i. Perhaps both are right: the ancient history of this part of Tutuila seems to be one of domination first by one powerful chief and then by another, and it is only natural that the successors of each should cherish the memory of an age in which the men were stronger and the boundaries further. See Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (1963). The evidence establishes, however, that most of the cultivations in the Lago area are those of A'oloau people who came there at some time after 1946 but well before the 1980s when Pava'ia'i began to assert or reassert its claim. Nor is there any evidence that the A'oloau people displaced people from Pava'ia'i or anywhere else when they came to Lago; its traditional use by Pava'ia'i, if any, was as a place to gather and prepare for frontier skirmishes, presumably before the coming of the present government in 1900.

In assessing a similar claim by Pava'ia'i to traditional ownership of land even further up the mountain toward the center of A'oloau and A'asu Fou, the Court observed that "[i]f prior to the war a Pava'ia'i chief and his family had cleared from the bush the land. ..and put in plantations on it... it would have been that family's communal property, but such was not the case. There was no occupancy or possession by the Pava'ia'i people but only an occasional visit to the bush there...." Lualemana v. Brown, supra, at 352-53. Such use was insufficient to defeat the claim of people who came later to clear the [16ASR2d39] area, make plantations, and occupy it continuously. Id. We reach the same conclusion with respect to almost all the land within the A'oloau survey that is also within the Pava'ia'i survey.

An exception is a small strip along the eastern boundary of the A'oloau survey, appearing on the topographical map designated Atualevao Exhibit 12 as the eastern slope of an 1183-foot peak. This land does not appear to be cultivated by anyone, and it is just uphill from a cinder pit long used by Tuana'itau and Toluao of Pava'ia'i and held in Leomiti v. Toluao, 11 A.S.R.2d 49 (1989), to be the communal property of those two families. This area is also quite close to a tract held in the same case to be the property of the Leomiti family of Pava'ia'i and to another tract which, although outside the A'oloau survey, has long been occupied and cultivated by Lefotu of A'oloau and was held to be that family's communal property in Leomiti, supra. We have not been presented with composite survey maps enabling us to determine the overlap, if any, between the surveys by the Villages of A'oloau and Pava'ia'i and the various tracts already registered as the land of Toluao, Tuanaitau, Leomiti, Lefotu, or other families of the two villages.

As our discussion of this area on the eastern border indicates, the evidence in the present case is insufficient to enable the Court to draw a precise boundary between these two villages. Nor is it necessary or even appropriate for the Court to draw such village boundaries in the context of a land registration case. For, as the Court held in Olo v. Fuimaono, AP No.27-81 (April 18, 1982), land can only be registered by its owner, and its owner is almost always a family rather than a village. In Olo v. Fuimaono the Appellate Division reversed a Land and Titles Division decision to the effect that certain land belonged jointly to the villages of Leone and A'oloau. The Appellate Division observed that "[r]arely has there been a situation where a village itself owned property in its own name." Id., slip opinion at 4. With one limited exception, not applicable to that case or the present one, "the concept of' village ownership of land proposed in this case is contrary to Samoan custom and tradition." Id.

It is clear that at least some families of A'oloau regard their lands within the A'oloau survey as their own property, not the property of the village, and no evidence has been offered to rebut the presumption that the land is held in accordance with the usual Samoan customs governing land ownership. Accordingly, the village survey cannot be registered. If particular families of A'oloau wish to offer their lands within the survey for registration, they are of course free to do so. [16ASR2d40]

We do not mean to imply that the drawing of village boundaries is of no use whatever. Indeed, the settlement of such a boundary between A'oloau and Pava'ia'i, along the lines of actual cultivation and occupation by families of the two villages during the last forty years or so, might help to avert future controversies. But the law requires registration of any tracts on either side of such boundaries to be by the owners, not the villages. A.S.C.A. §§ 37.0101 et seq.; Olo v. Fuimaono, supra.

II. The Lualemana Injunctive Action

In the action that precipitated these cases, Lualemana sought an injunction against the plantations of two A'oloau families within the Lualemana family's registered survey. It is worth noting that this survey comprises most if not all of A'asu Fou. Such a registration was possible only because of the unusual fact that every family in A'asu stipulated that it was part of the Lualemana family and that its lands in A'asu Fou were held in its capacity as part of that family. Asu Village Chiefs v. Village of Asu, CA No. 40-1961 (August 10, 1961).

A valid registration effected in accordance with statutory procedures establishes a title good against the world. See A.S.C.A. §§ 37.0101 et seq.; Ifopo v. Siatu'u, 10 A.S.R.2d 66 (1989). As counsel for Atualevao and Lefotu points out, however, a registration which appears on the face of its own record not to have been conducted in accordance with the statutory procedures conveys no title. Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). One such facial defect is failure to post notices and announce the survey in the village where the land is actually located. Afualo v. Fanene, 15 A.S.R.2d 48 (1990).

In the present case the witnesses for Atualevao and Lefotu say they never saw any notices of the 1961 Lualemana survey posted in A'oloau, nor did they hear any announcements. The Court file contains a certificate of public oral notice in A'asu but not in any other village. However, the tile also contains a letter from the Clerk of the High Court to the pulenu'us of A'asu, Pava'ia'i, Faleniu, and A'oloau requesting that notices be posted in each of these villages. This letter is unusual if not unique, and indicates that the Court or an officer thereof foresaw exactly the problem now raised by these defendants.

From the record we cannot tell whether the Clerk's request was honored in other villages than A'asu. It does appear, however, that at least some notice was given in A'oloau: the posting place for A'asu is a [16ASR2d41] telephone pole on the main road that separates that village from A'oloau, and a notice visible in one village would be equally visible in the other. Moreover, the transcript of the 1961 Court hearing indicates that Fuimaono, the principal matai of A'oloau, was actually present at the hearing. Indeed, he seems to have acted as a mediator between Lualemana and the objectors to the survey.

In any event, in order to prove the registration invalid the defendants would have to establish that the land in question is part of A'oloau rather than A'asu. This they have not done. The land in dispute between them and Lualemana is located along a road between A'asu Fou and A'asu Tuai, at some distance from the point where that road diverges with the old road to A'oloau Tuai. Although one of the defendants testified that a Lualemana made a boundary settlement favorable to the defendant at some time during the 1970s, this sheds little or no light on where the boundary was in 1961. The presence of Fuimaono at the hearing and his failure to object suggests a consensus that this land was part of A'asu rather than A'oloau. Notice in A'asu would therefore have been sufficient.

Finally, however, there is a world of difference between a Court's noting the facial invalidity of documents filed in the office of the Territorial Registrar, as we did in Faleafine, and declaring that a prior judicial decision is null and void, as counsel for these defendants would have us do here. The Court in 1961 had the whole record before it, including the certificate of notice and the letter from the Clerk of Court to the four pulenu'us---and perhaps also including other documents that have since gone missing as so many Court documents unfortunately do. The Court then was in a far better position than we are to determine to which village the land was generally regarded as belonging, the circumstances under which constructive and/or actual notice was given, and the other issues material to determining whether the land should be registered. The Court concluded, after some deliberation, that the land was the property of the Lualemana family and should be registered as such. To ignore or nullify such a decision thirty years later, when witnesses have died and memories have faded, even if it would not exceed our power, would be imprudent and unjust.

Atualevao and Lefotu also claim that they occupied the land for twenty years after 1961, thereby obtaining ownership under the adverse possession statute then in force. The evidence fails to establish, however, that defendants' occupation of land within the Lualemana survey was open, notorious, continuous, or exclusive for the full twenty [16ASR2d42] years. Indeed, it is not at all clear when defendants extended their plantations into the Lualemana survey; and the record affirmatively suggests some discontinuity in the maintenance of defendants' plantations.

We are also unpersuaded by the testimony of (me of the defendants to the effect that a former Lualemana re-settled the village boundary along the old road now claimed by the defendants as their boundary. It is undisputed that Lualemana only pointed to this road as the boundary at the place where it intersects the government road. This is more or less consistent with the boundary reflected in the Lualemana survey. Defendants would have us infer that Lualemana also meant to designate the old road as the boundary all the way to where uetenuants' plantations are, although by that point it digresses from the boundary of the registered Lualemana survey and although there is no evidence that Lualemana said anything one way or the other about how far the road extended as a boundary. We decline to draw such an inference.

Accordingly, the Lualemana family is entitled to an order enjoining defendants from further occupation or cultivation within its registered survey.

III. The Injunctive Action Against Toluao

Although the A'oloau Village Council did not prove its right to register its survey, it did prove that the lands in the "Lago" area, with the exception discussed in Part I of this opinion, have been occupied and cultivated by families of A'oloau. In this action, although not in the registration action, the interests of the Village Council were identical to those of the various A'oloau families whose plantations were displaced when Toluao began occupying this area in the mid-1980s, and no party has objected to the Village Council's standing to act as an agent for these families. Accordingly, an order will issue enjoining Toluao from further occupation or cultivation of land within the A'oloau survey, with the exception of the area along the eastern boundary described in part I of this opinion.

The A'oloau parties also request damages for crops destroyed by Toluao, but did not prove the amount of any such damages. Such relief will therefore be denied.

IV. The Utu Intervention [16ASR2d43]

The Utu family of A'oloau intervened to protect its rights to a small parcel in the Lago area that is within both the A'oloau and the Pava'ia'i surveys, and which Toluao had begun to occupy and cultivate. All parties have stipulated that this parcel is the communal land of the Utu family, with the exception of Lelotu who claims that the Utu survey encroaches on his registered survey of land called Lagomau (an altogether different land than the one involved in the dispute between Lefotu and Lualemana). Counsel for Lefotu and Utu requested that the Court not adjudicate this conflict. As we have determined that the A'oloau Village Council survey cannot be registered, and that Toluao should be enjoined from further occupation of Lago, there would be nothing left for us to adjudicate even in the absence of the stipulations. (There was never any question of registration of the Pava'ia'i survey, which was offered only as an exhibit; and the Utu family's request for crop damages from Toluao has presumably been waived by the stipulation between counselor these two parties, which does not mention such damages.)

V. The "Aiga Aitulagi" Intervention

The ancestors of the Aiga Aitulagi appear once to have exercised political authority and military power over a large area of western Tutuila including much or all of the area now in dispute. See Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (1963). In the present case, however, the Aiga Aitulagi presented no evidence of occupation or cultivation. Actual occupation with a claim of ownership ---not the exercise of power over the actual occupants at some time in the distant past, nor even present political authority over a village, county, or district ---is the best evidence of land ownership under the laws of American Samoa. See Id. at 402; Seva'aetasi v. Fanene, 9 A.S.R.2d 118 (1988).

The claim of the Aiga Aitulagi to ownership of A'oloau Fou is barred in any event by collateral estoppel. The identical claim was raised and rejected in Tuilefano v. Government of American Samoa, 4 A.S.R. 594 (1964). Although that case concerned the ownership only of a small parcel deeded by the chiefs of A'oloau to the government for a school building, the issues and contentions in the case were identical to those now raised herein by Aiga Aitulagi. The Court's resolution of those issues and contentions is therefore binding on the parties to the case, including Fuimaono, the Village Council of A'oloau, and the Aiga Aitulagi.

VI. Conclusion and Order [16ASR2d44]

Judgment shall issue accordingly, denying registration of the A'oloau survey; enjoining Atualevao and Lefotu, their aigas, assigns, and those acting in concert with them, from further activities within the Lualemana survey; enjoining Toluao from further activities within the A'oloau survey, with the exception of those parts described in Part I of this opinion; declaring the land within the Utu survey (Drawing No. 32-15-89) to be the communal property of the Utu family, with the exception of such areas as may encroach on any registered survey, and with the understanding that this declaratory judgment is binding only on the parties to these consolidated actions; and denying all other relief requested by any party.

It is so Ordered.

*********

Atofau; Galea'i v.


ANDY GALEA'I, Plaintiff

v.

FIA VIVINI ATOFAU, Defendant

High Court of American Samoa
Trial Division

CA No. 72-89

August 20, 1990

__________

Even under the mutuality doctrine, which has largely been abandoned, the government could sue a convicted criminal for civil damages, and the defendant would be estopped to deny the facts entailed by his conviction.

Collateral estoppel applies whether defendant's conviction resulted from a trial or from a guilty plea, even if induced by a plea bargain.

With the abandonment of the mutuality requirement, individual victims of crime can now benefit from collateral estoppel in the same ways and to the same extent that the government has always done.

Majority rule gives judgments based on guilty pleas the same collateral effect as other criminal convictions and, as such, are conclusive of all issues that would have been resolved by a conviction following a trial.

The traditional requirement is that a party should be estopped only with respect to those matters that were genuinely at issue and genuinely decided in the earlier case.

At least when a defendant's admission to a crime was made upon the advice of competent counsel, collateral estoppel applies with respect to issues which were distinctly and directly put at issue by the pleadings, which were central rather than peripheral to the proceeding, and which were essential to the outcome .

No criminal information can be filed in the High Court without a prior judicial determination that probable cause exists to believe the defendant committed the crime with which he is charged. T.C.R.Cr.P. 5.1.

If a defendant wishes to limit the scope of his civil liability without unreservedly admitting his guilt, he can seek to enter a plea of nolo contendere, although the government or the Court might reject such a plea bargain, or the Court might accept the plea and impose the maximum legal sentence.

Neither a guilty plea nor a verdict after trial estops the defendant with respect to any issue not squarely resolved by the judgment; with respect to these elements a plaintiff must [16ASR2d77] present evidence other than the guilty plea, and a defendant is free to controvert any such evidence.

Because third-degree assault can be committed "recklessly" or even "with criminal negligence, " a guilty plea does not establish what injuries, if any, were inflicted upon plaintiff, nor does it establish that defendant acted intentionally, an essential element of the tort of battery. A.S.C.A. §§ 46.3522(a)(1) & (4).

A finding of self-defense is a complete defense to a criminal charge of third-degree assault. A.S.C.A. §§ 46.3305 & 46.3522(8).

American Samoa's criminal law does not, except in a few extraordinary circumstances, allow consent as a justification for the infliction of serious injuries. A.S.C.A. § 46.3523.

Although plaintiff's consent to a fist fight will ordinarily bar his recovery for injuries suffered in the fight, the majority rule is that when mutual combat is conducted with weapons calculated to cause death or serious physical injury, consent is no defense to civil liability.

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

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, Steven H. Watson

This is an action for damages arising out of a battery.

Although plaintiff and defendant told vividly contrasting stories, a few facts are undisputed. On October 12, 1987, defendant beat plaintiff with the stock end of a rifle or shotgun. Plaintiff suffered a compound fracture of his left arm, a fracture in the right wrist, and a dislocated left elbow. He was hospitalized for several days and underwent surgery .Plaintiff now has a metal plate and pins in his left arm, some scarring, and residual difficulty with the use of the left arm which could probably be improved by another operation.

Defendant was charged with Assault in the First Degree. He was bound over to the High Court on this charge after a preliminary examination to determine probable cause. Defendant eventually pled guilty to Assault in the Third Degree. The Court questioned the defendant to ascertain that there was a factual basis for the guilty plea, entered a judgment of conviction, and imposed a six month prison term. Defendant now maintains, however, that his actions were justified as reasonably necessary to defend himself and his property. [16ASR2d78]

Plaintiff’s testimony is that on October 12 he was driving with his three young children along a mountain road toward the villageof Leonefrom some land he believes to be owned by his family. The engine on his vehicle died. After coasting downhill for a while he came to a flat place in the road and the car came to a stop. As plaintiff was getting out to inspect the engine, another car came along. This car contained the defendant and some young men or teenaged boys. The defendant ---with whom plaintiff had recently had some unpleasant words ---shouted something offensive. Then defendant's car stopped a few feet ahead of plaintiff’s car.

Defendant and the other occupants got out, and defendant walked toward plaintiff carrying a rifle or shotgun. Plaintiff was afraid he would be shot, but instead the defendant used the gun as a club. Plaintiff put up his arm to try to protect his face; defendant hit this arm with the gun until plaintiff could no longer hold it up; then he put up the other arm and defendant hit that one too. The blows were severe enough not only to fracture plaintiff’s arms but also to break the rifle stock. Plaintiff was also hit by a rock thrown by one of the boys who was with defendant. Eventually he fell to the ground and defendant walked away.

Defendant's version is that when his car and that of plaintiff passed each other, they almost collided. He shouted to plaintiff to watch the road, plaintiff shouted out a curse or insult, and he shouted back at plaintiff in a similar vein. Then he saw plaintiff’s car coming to a stop. Defendant took this as an invitation to fight and decided it was time to have it out. Seeing that plaintiff was carrying a knife, defendant took his gun with him. He walked up to the plaintiff, who swung the knife at him and missed. Defendant then began hitting plaintiff with the gun. His objective was to take the knife away, but in order to do this it was necessary first to knock down plaintiffs left arm. When plaintiff finally lowered his left arm, defendant hit plaintiff’s right arm once with the gun. The knife fell to the ground. Defendant retrieved it and left the scene.

Defendant presented into evidence a knife he claims to be the one he took from plaintiff. It is a "cane knife," shorter and somewhat broader than the "bush knife" or machete more commonly carried in Samoa, with a curved or hooked blade. (Although defendant's counsel lays great stress on the unusual shape of the "cane knife," the one introduced into evidence does not impress the Court as being any more dangerous or frightening than an ordinary bush knife.) Plaintiff testified that he did once have a knife something like this, which has since been [16ASR2d79] lost, but that the one introduced into evidence is not it. He denies having had a knife or a weapon of any kind when he was beaten by defendant.

I. Collateral Estoppel

Plaintiff contends that defendant is estopped by his guilty plea and by the ensuing criminal conviction from asserting in the present action that he acted in self-defense.

The effect of a guilty plea in a criminal case upon a subsequent action for damages appears to be a question of first impression in American Samoa. We therefore requested counsel to research the law of other jurisdictions and submit post-trial memoranda. Plaintiff has cited a number of authorities in support of the proposition that a guilty plea does estop the defendant in a subsequent civil action. Defendant has submitted a quotation from American Jurisprudence 2d, to the effect that a guilty plea does not estop the defendant from presenting the defense of justification in the subsequent civil case, "because of want of mutuality"; and a citation for Corpus Juris Secundum to the same effect.

The doctrine that estoppel requires "mutuality," however, is no longer generally regarded as part of the law. See, e.g., Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U .S. 313 (1972); Restatement (Second) of Judgments §§ 29, 85(2) (1980); cf. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54, 76 (1989) ("The doctrine of collateral estoppel sometimes bars relitigation of issues even where the facts or the parties are somewhat different in the new case than in the old.")

The doctrine of mutuality was unrelated to defendant's contention in the present case, which is that a guilty plea entered as a result of a plea bargain should not necessarily he regarded as a true statement. Rather, the mutuality requirement was "[b]ased on the premise that it is somehow unfair to allow a party to use a prior judgment when he himself would not he so bound." Parklane, 439 U.S. at 327. Thus, even in the heyday of the mutuality doctrine, the government could sue a convicted criminal for civil damages and the defendant would be estopped to deny the facts entailed by his conviction. See, e.g., Local 167, International Brotherhood of Teamsters v. United States, 291 U.S. 293 (1934). Indeed, should the defendant so much as file a pleading inconsistent with his prior criminal conviction, the civil court would strike the pleading as "false and sham," because the [16ASR2d80] defendant "could not require proof of what had been duly adjudged between the parties." Id. at 298-99. The estoppel applied whether defendant's conviction had resulted from a trial or from a guilty plea. Fontneau v. United States, 654 F.2d 8 (1st Cir. 1981); Plunkett v. Commissioner of Internal Revenue, 465 F.2d 299 (7th Cir. 1972). A defendant was estopped even though his guilty plea was induced by a plea bargain, and even though the bargain might have been a most attractive one. Plunkett, 465 F.2d at 305-06.

It follows from the abandonment of the mutuality requirement that individual victims of crime can now benefit from collateral estoppel in the same ways and to the same extent that the government has always done. Most recent cases support this logical result. See, e.g., In re Railford, 695 F.2d 521 (11th Cir. 1983); Wolfson v. Baker, 623 F.2d 1074 (5th Cir. 1980); Nathan v. Tenna Corp., 560 F.2d 761 (7th Cir. 1977); Ideal Mutual Ins. Co. v. Winker, 319 N.W.2d 289 (Iowa 1982); S.T. Grand, Inc. v. City of New York, 298 N.E.2d 105 (N.Y. 1973).

As was formerly the practice in civil suits by the government, most courts now "give a judgment based on a guilty plea the same collateral effect as any other criminal conviction, conclusive of all issues that would have been resolved by a conviction following a contested trial." In re Railford, 695 F.2d at 523. Indeed, it has recently been asserted that

[t]here is now such pervasive acceptance of ['the doctrine precluding the adoption of inconsistent positions in judicial proceedings'] that we can confidently say that the common law as generally understood in theUnited Statesgives preclusive effect to a guilty plea

Bower v. O'Hara, 759 F.2d 1117, 1129 (3d Cir. 1975) (Sloviter, J., dissenting). At least one case, however, has denied collateral estoppel effect to a guilty plea: the majority opinion in Bower denied such effect not on the traditional ground of mutuality, but because the two judges voting in the majority deemed issues resolved by plea rather than by trial not to have been "fully litigated. " Id. at 1124-26 (majority opinion). See also Restatement (Second) of Judgments § 27 (issue preclusion Occurs only when an issue is "actually litigated and determined by a valid and final judgment"). [16ASR2d81]

We find the reasoning of Judge Sloviter's dissent in Bower (and of the other recent federal and state cases) more compelling than that of his colleagues. The "actually litigated" prong of the second Restatement formula is rooted in the traditional requirement that a party should be estopped only with respect to those matters that were genuinely at issue and genuinely decided in the earlier case. Obviously, a party ought not to be estopped from denying assertions he has not previously had a genuine opportunity to deny, or even those he might inadvertently have tailed to deny because they were not particularly important in the context of the prior case. This cannot be said of the essential elements of a serious crime, however, at least not where the defendant’s admission to the crime was made upon the advice of competent counsel.

"[A] matter can be 'directly and distinctly put in issue' ...by actual litigation. Another way is through pleadings." Hazard, Revisiting the Second Restatement of Judgments: Issue Preclusion and Related Problems 66 Cornell L.Rev. 564, 577-78 (1981), quoted in Bower, 759 F.2d at 1130 (Sloviter, J., dissenting). Pleading is an important element in the process of litigation. With respect to issues which were distinctly and directly put at issue by the pleadings, which were central rather than peripheral to the proceeding, and which were essential to the outcome, it hardly makes sense to attach less weight to those parts of a judgment that the losing party did not even try to resist than to those on which he merely did not prevail.

The notion that an information followed by a guilty plea does not constitute "full and fair litigation" also gives too little credit to the process by which courts decide whether to accept guilty pleas in serious criminal cases.

An important characteristic which distinguishes the criminal action terminated by a guilty plea from....the ordinary default case in civil proceedings...is the requirement that the trial court ascertain a factual basis exists for the plea....[T]he question of criminal liability is fully explored by the parties and the court and a judicial determination is made with respect to the essential elements of the crime.

Winker, 319 N.W.2d at 295-96. The practice in the High Court of American Samoa, at least in recent years, is that judges have been more willing to err on the side of recalcitrance than to serve as rubber stamps for arrangements that are acceptable to the parties but not grounded in [16ASR2d82] truth. Both Justices have frequently reminded prosecutors and defense counsel that it is not one of the purposes of plea bargaining to make innocent people plead guilty; and both have rejected plea bargains when it appeared that the accused sincerely believed himself innocent.

Moreover, no criminal information can even be tiled in the High Court of American Samoa without a prior .judicial determination that there is probable cause to believe the defendant committed the crime with which he is charged. See Trial Court Rules of Criminal Procedure, Rule 5.1. In the present case this determination was made by the District Judge after a preliminary examination in which the alleged victim (the present plaintiff) was cross-examined at length by defendant's counsel. It is clear from the transcript of that cross-examination, introduced into evidence in the present case by defendant himself, that the issue of self-defense was a central contention in dispute between the government and the defendant. Defendant litigated the issue and lost in the District Court; he had the opportunity to contest it further in the High Court but chose instead to enter a plea in the High Court, which necessarily admitted the government's contention. After questioning the defendant to ensure that he understood his legal rights and that there was a factual basis for his plea, the Court accepted the plea and entered a judgment of conviction. That judgment resolved all essential issues, including self-defense, as deliberately and finally as a verdict after trial would have done.

Defendant's principal argument is that his guilty plea was entered to avoid trial and possible conviction on even more serious charges. He therefore urges that "[t]he weight that plea carries. .. ought to be minimal. " This argument appears to have been frequently raised and uniformly rejected. See, e.g., Plunkett, supra; Raiford, supra; Graybill v. United States Postal Service, 782 F.2d 1567, 1573 n.l (Fed. Cir. 1986). If defendant had wished to limit the scope of his civil liability without unreservedly admitting his guilt, he could have sought to enter a plea of nolo contendere. Such an attempt might have been unsuccessful; the government might not have agreed to such a plea bargain, or the Court might have exercised its discretion to reject the plea. Then again, recognizing a nolo contendere plea as deficient in the elements of candor, remorse, and willingness to accept consequences that are among the justifications for judicial leniency in plea-bargain cases, the Court might well have accepted the plea and imposed the maximum legal sentence. See Fontneau, 654 F.2d at 9 n.1. In any case, by pleading nolo contendere the defendant would have put the Court, the prosecution, and the putative victim (with whom the prosecution often [16ASR2d83] consults before agreeing to plea bargains, and with whom the Court almost always consults in conducting presentence investigations) on advance notice of his intentions with respect to civil liability .He would not now be in the awkward position of asking the Court to accept gracefully its status as a forum for the occasional strategic untruth.(1) [16ASR2d84]

Neither a guilty plea nor a verdict after trial estops the defendant with respect to any issue not squarely resolved by the judgment. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558 (1951); United States v. Guzzone, 273 F.2d 121 (2d Cir. 1959). With respect to several issues raised by the present action, defendant's criminal conviction works no estoppel. For instance, the plea does not establish what injuries, if any, were inflicted upon plaintiff. Nor does the plea establish that defendant acted intentionally ---an essential element of the tort of battery ---since Assault in the Third Degree can be committed "recklessly" or even "with criminal negligence." A.S.C.A. § 46.3522(a)(1), (a)(4). With respect to these elements plaintiff was bound to present evidence other than the guilty plea, and defendant would have been tree to controvert any such evidence.

Instead, however, defendant has chosen to concede the intentional beating and the consequent injuries but to raise a defense that is squarely negated by his guilty plea and the conviction thereon. If, as defendant contends in his answer, he was not the original aggressor in his encounter with plaintiff, and if he used only such force as he reasonably believed necessary to defend himself against an imminent attack by a man with a knife or another deadly weapon, then he was not even arguably guilty of Assault in the Third Degree. See A.S.C.A. § 46.3305 ("Use of force in defense of persons"). To the exact extent that such a reasonable belief would constitute a defense to the tort of battery, it was a complete defense to a criminal charge under any of the three applicable subsections of the Assault in the Third Degree statute: "attempts to cause or recklessly causes physical injury to another person" (A.S.C.A. § 46.3522(a)(1)); "with criminal negligence. ..causes physical injury to another person by means of a deadly weapon" (A.S.C.A. § 46.3522(a)(2)); or "recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person" (A.S.C.A. § 46.3522(a)(4)).(2) [16ASR2d85]

Defendant, after a deliberative process suffused with substantive rights and procedural safeguards even more extensive than those available to a defendant in civil litigation, has been affirmatively adjudicated to have perpetrated a criminal assault upon another person. Plaintiff has been affirmatively adjudicated to have been the victim of this assault. Although the victim of a crime is not formally a party to the prosecution, his or her participation is usually essential and often entails personal hardship and even risk. As we have observed, a successful criminal prosecution does not automatically entitle the victim to an award of damages. To relitigate the basic question of who was the perpetrator and who was the victim, however, where this question was necessarily decided by the criminal conviction, would be at best a waste of judicial resources and at worst fundamentally unfair.(3)

II. Self Defense and Other Justifications

Even if he were not estopped by his guilty plea and criminal conviction, defendant would not have established a justification of self- defense. Neither version of the incident was consistent with such a justification. In plaintiff’s version, the attack on him by defendant was unprovoked. Even according to defendant's own version, there was no imminent danger of an attack on him by the plaintiff; rather, plaintiff [16ASR2d86] shouted some nasty things and pulled over to the side of the road, apparently wanting to engage in a tight with knives and guns, and defendant obliged. There was no evidence---even if we believe all of defendant's testimony and disbelieve that of the plaintiff---that defendant could reasonably have believed force, much less the infliction of serious injuries, necessary to avoid imminent harm to himself. This was not even one of those difficult situations in which a person about to be attacked must decide quickly whether to stand his ground or make a safe retreat. No attack was imminent. Defendant could have kept on driving.

The justification for which defendant did present evidence, and for which his attorney made a closing argument, was not self-defense but consent. "Consent ordinarily bars recovery for intentional interferences with person or property.... It is a fundamental principle of the common law that volenti non fit injuria-- to one who is willing, no wrong is done." Prosser & Keeton on Torts § 18 at 112 (5th ed. 1984). Although inconsistent with his pleading, defendant's testimony at trial was directed almost exclusively to proving that plaintiffs injuries were the result of a mutual combat freely entered into by both parties.

The justification of consent, unlike that of self-defense, appears to be outside the scope of the estoppel worked by defendant's guilty plea. This is because our criminal law does not, except in a few extraordinary circumstances, allow consent as a justification for the infliction of serious injuries. See A.S.C.A. § 46.3523. Defendant's guilty plea neither affirmed nor denied the infliction of serious injuries. Assuming that defendant regarded the injuries as serious---as the present evidence shows beyond doubt they were---he could truthfully have pled guilty to Assault in the Third Degree although believing himself guilty only of a mutual combat and not of an unprovoked attack. He is therefore not estopped to assert this in the present case.

For the same reasons that consent does not work as a justification for the infliction of serious injuries in the criminal context, however, it is also a dubious defense to the present action. A plaintiff’s consent to a fist tight will ordinarily bar his recovery for injuries suffered in the fight. Where mutual combat is conducted with weapons calculated to cause death or serious physical injury, however, "the considerable majority of the courts have [held] ...that the consent given will. .. not protect the defendant against a civil action for the damages inflicted." Prosser & Keeton, supra, § 18 at 122. Each combatant "is civilly liable to the other... and the fact that the parties voluntarily engaged in combat is no defense to an action by either of them to recover damages [16ASR2d87] for personal injuries inflicted upon him by the other." Condict v. Hewitt, 369 P.2d 278, 279 (Wyo. 1962).

This rule leads to the odd result that each of two combatants could recover damages against the other, each having to pay in proportion to the success of his efforts. The rule has been criticized, and among courts "[a] minority, with the support of the Restatement, have held that the consent will defeat the civil action." Prosser & Keeton, supra, § 18 at 122; see Restatement (Second) of Torts § 60. It is arguable, however, that "no one should have the capacity to consent to ...an invasion likely to result in his death." Prosser & Keeton, supra, § 18 at 123. Moreover, "the tort action may often be helpful in reducing the incidence of damaging events...." Id. at 124.

The present case, in which consent was not pled and counsel have not briefed or argued the question, does not seem an appropriate one in which to choose between the majority rule and the Restatement rule with respect to consent as a justification for the use of deadly force. Nor is it necessary to decide this question, for the preponderance of the evidence does not support defendant's contention that plaintiff consented to a tight with deadly weapons.

Each of the two parties told a story that was neither incoherent nor internally inconsistent. It might have happened either way. In his closing argument, counsel for defendant suggested that a basis for choosing between the two stories was afforded by the pattern of plaintiff's injuries: that plaintiff, who is right-handed, held up his left hand to shield himself from defendant's blows must mean he was holding a knife in his right hand. This inference seems tenuous. The use of the left hand as a shield could be explained just as well by its having been the hand closer to the blunt object that was about to come down on the plaintiff; by a conscious or instinctive desire to have the right hand free for hitting or grappling; or by plaintiffs being a person who does not function well under pressure. Indeed, the pattern of injuries could just as easily call the defendant's story into question. If, as he testified, his goal was merely to disarm the plaintiff, then perhaps he should have directed more of his blows at the alleged knife hand and fewer at the limb being used to shield plaintiffs head and body.

Left to assess the inherent likelihood or unlikelihood of each story, we find it most difficult to believe that a man with a knife freely consented to mutual combat---indeed, according to defendant, actively initiated such combat---with a man holding a gun. Even assuming that [16ASR2d88] plaintiff was willing to tight before the gun was introduced into the picture, we cannot conclude (as we must in order to find consent as a legal justification) that such consent continued as defendant walked toward plaintiff carrying the gun, with no indication that he intended to use the gun as a bludgeon rather than in the ordinary way. We would find it still more difficult to believe that plaintiff began the actual combat by swinging a knife at an adversary who was then holding a rifle or shotgun. Although defendant presented evidence designed to show that plaintiff had many undesirable character traits, he was not proved to be crazy.

Moreover, defendant's alternative plea of "defense of property," although frivolous insofar as it purports to present a justification for the use of deadly force,(4) does suggest the most plausible explanation for the attack. According to defendant's answer, plaintiff had "come onto the land of [defendant] and destroyed vegetation thereon and had attempted to lay claim to ownership thereof." Some weeks before the incident that concerns us here, plaintiff had attempted to conduct a survey of this land, presumably in order to offer it for registration in accordance with A.S.C.A. §§ 37.0101 et seq. Defendant's father, generally recognized as the highest chief in Leone and vicinity, appeared and announced that he did not intend to let plaintiff conduct the survey. Plaintiff became quite excited and spoke disrespectfully to defendant's father. Defendant then displayed his gun and told plaintiff to leave. Plaintiff did so, with a parting statement to the effect that he would fight the defendant at some future time. According to plaintiff, this was an invitation to fight with fists, not deadly weapons.

Defendant's version of this earlier encounter is that he went for his gun after plaintiff had "assaulted" him by "waving the knife around." It is undisputed that plaintiff had a bush knife (probably of the "cane knife" variety) at the survey; such a knife is an essential thing to have at a survey of bush or agricultural land. Neither plaintiff nor the other witness who was present at the survey -- defendant's witness and relative Ioane Atofau -- said anything about plaintiff waving a knife. Nothing [16ASR2d89] happened at this encounter to justify the future use of deadly force upon plaintiff, or to suggest that plaintiff was willing to engage in any sort of combat beyond fisticuffs. (Indeed, plaintiff's prompt compliance with defendant's order to leave was almost certainly motivated by a healthy respect for firearms.) What did happen, as is clear from defendant's own pleading and testimony, was that the incident left defendant with a strong sense of righteous indignation and a belief that plaintiff would keep on causing trouble until he was taught a lesson. At the time he was attacked, plaintiff was apparently returning from yet another visit (in defendant's view, a trespass) to the land claimed by defendant.

The evidence is certainly consistent with the view that plaintiff is capable of being a most exasperating person. He should not have insulted defendant's father. Nor, if the disputed land did belong to defendant, should plaintiff have gone upon it or claimed it as his own. People who do things like these may be shunned, sued, vilified, and in appropriate cases arrested. But they may not have their arms broken.

We conclude that plaintiff's injuries resulted from an unjustified battery committed by the defendant.

III. Damages

Plaintiff asserted but did not prove that his injuries resulted in a substantial loss of income. The tree trimming business which was his sole source of income at the time appears to have done better in the months after the attack than it had ever done before.

Plaintiff did prove that he has endured, and continues to endure, considerable pain and suffering. He has been subjected to a severe beating, to bruises, broken bones, and a dislocated elbow joint, to the physical intrusion, and emotional distress occasioned by surgery, and to several days of hospitalization and an extended period of convalescence during which at least one arm was in a cast. He now has a large scar on the outside of his left arm and a metal plate inside it, both of which will remain permanently. There is a substantial partial disability in the left arm. Plaintiff faces a further choice between undergoing a major surgical procedure which will probably, although by no means certainly, restore much or all of the lost function in the arm, or putting up with the partial disability for the rest of his life. Either of these choices will involve further pain and suffering. [16ASR2d90]

We assess plaintiff’s damages at $20,000. This assessment will be reduced by the $1,000 which, according to the record in the criminal case, defendant has already paid plaintiff as restitution in lieu of a fine.

We make no award of punitive or exemplary damages. In the circumstances of this case, the deterrent function of such awards will be served by the assessment of $20,000 in actual damages, and the prison sentence is adequate punishment.

IV. Order

Judgment will enter for plaintiff and against defendant in the amount of $19,000.

It is so ordered.

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1. See Hazard, supra, at 577-78, quoted in Bower, 759 F.2d at 1130 (Sloviter, J., dissenting):

[I]f a proposition is clearly asserted, and if a party is called upon solemnly to admit or deny the proposition, and if the stakes are high enough to assure that he party is serious in dealing with the issue, and if the party then admits or fails to deny the proposition, then he ought to be estopped from controverting it on some other occasion, particularly if that other occasion involves essentially the same transaction. The clearest case for such an estoppel is where a defendant pleads guilty to a substantial criminal charge and then seeks in civil litigation concerning the same transaction to assert that he did not commit the criminal act.

It has been suggested that the "truth-telling" concern raised by Professor Hazard has nothing to do with the "issue preclusion" effect of a judgment, but should instead be characterized as an argument for an altogether different phenomenon called an "evidentiary estoppel." See Bower, supra, at 1129 (Sloviter, J., dissenting); Restatement (Second) of Judgments § 85 comment b (1982). This analysis holds that "issue preclusion" has to do with avoiding the inefficient allocation of judicial and party resources and should therefore apply only to issues that have actually been tried, but that a solemn judicial admission may nevertheless have an estoppel effect for policy reasons unrelated to the allocation of resources. Perhaps because issue preclusion and evidentiary estoppel would be virtually indistinguishable in practical application, courts have not made the distinction. See Winker, 319 N.W.2d at 294.

We believe, however, that the denial of a prior judicial admission presents both the problem of resource allocation raised by relitigation of any question already fairly decided and the credibility and forum tainting concerns posed by judicial tolerance of solemn inconsistent admissions.

When a party seeks to controvert an issue decided against him in a contested proceeding, he is saying to the Court, "The other judge was wrong. Please hear me out." When he seeks to controvert an issue he could have contested but chose to admit, he says, "I misled the Court, but there were good reasons for it. This time my interests coincide with telling the truth, and I propose to do so."

It is not immediately apparent that judicial resources will be more efficiently spent in relitigation of the second class of cases described above than of the first. If anything, the class of questions actively contested would seem likely to include more close questions ---and therefore more questions wrongly decided and on which relitigation might change the result ---than the class of questions decided by admission. (This assumes only that questions in the latter class were sufficiently central and important not to have been admitted casually or inadvertently.) To the extent that allowing a party to rebut his own deliberate admission also offends the sense of justice, this should be regarded as an independent and additional ground on which to give preclusive effect to judgments based on such admissions.

2. The plea bargain did not specify under which subsection defendant was pleading guilty, but did specify that he was pleading guilty to a Class A Misdemeanor. The three subsections quoted in the text are those under which Assault in the Third Degree constitutes a Class A Misdemeanor. See A.S.C.A. § 46.3522(b). The record of the criminal proceeding---the information, the transcript of the preliminary examination, and the defendant's answer to the question posed to him by the Court prior to accepting the guilty plea---is consistent with a finding of assault under any of the three subsections.

A reading of A.S.C.A. § 46.3522 together with A.S.C.A. § 46.3305, the self-defense statute, yields no possible set of facts consistent with the guilty plea and also with defendant's present contention that his actions were reasonably necessary to prevent an imminent attack by the knife-wielding plaintiff'. This is to be expected, for our criminal self-defense statute substantially restates the common law defense to battery and other intentional torts. Compare A.S.C.A. § 46.3305 with Prosser & Keeton on Torts § 19 at 125-28 (5th ed. 1984). Thus, for instance, tort law would excuse the defendant for using "deadly" force if and only if he reasonably believed "that he is in similar serious danger, and that there is no other safe means of defense." Prosser & Keeton, supra, at 127. To the exact extent defendant could establish such a justification in the present action, however, he would not have been guilty of assault or any other crime even if he did use deadly force. See A.S.C.A. § 46.3305(b).

3. Our holding with respect to the collateral estoppel effect of a guilty plea is limited to cases in which the plea was to a charge serious enough to ensure that the plea represented a conscious and deliberate decision to admit rather than to contest the essential elements of the crime. We express no opinion with respect to the effect of a plea to a traffic infraction, or even to a petty misdemeanor punishable by a term of imprisonment of less than six months. (Although the crime to which the present defendant pled guilty was one day short of being a felony, it was well within the class of offenses traditionally characterized as "serious crimes" rather than "petty offenses." See Codispoti v. Pennsylvania, 418 U.S. 506 (1974); 18 U.S.C. § 1.)

Nor do we express an opinion on whether estoppel may sometimes be unfair in the circumstances of particular cases, other than to hold that such unfairness cannot be established by showing that a guilty plea was made in the context of a favorable plea bargain. See generally Parklane Hosiery Co. v. Shore, 439 U.S. at 329-32.

4. "The use of force is not privileged when it is apparent that no immediate interference with the property is threatened, or that all danger is past." Prosser & Keeton, supra, § 21 at 132. Plaintiff was some distance from the land in question, and heading away from it, when the encounter with defendant occurred. Even more important, "since the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land...." Id .

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


PACIFIC RELIANT INDUSTRIES, INC.,
an Oregon corporation, Plaintiff

v.

AMERlKA SAMOA BANK, a banking corporation,
MALUA HUNKIN as 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

August 8, 1990

__________

Since the Fono has declined to adopt the Uniform Commercial Code (UCC), the court should not attempt to do so by judicial fiat.

In a situation where the Uniform Customs and Practice for Documentary Credits (UCP) controls but is silent or ambiguous concerning a particular issue, analogous UCC provisions that are consistent with the UCP may apply.

While the UCC docs not of its own force apply in American Samoa, some rules embodied in widely adopted uniform codes which restate generally accepted principles of law may apply,

Letter of credit exists independently of the obligations of the underlying contract and must be paid when the required documents are presented, regardless of the transactions between the buyer and seller .

Letter of credit transactions contain three separate contracts: 1) between the bank who agrees to issue the letter and its customer; 2) between the customer and the beneficiary who agree to use a letter; and 3) between the issuing bank that promises to pay conforming drafts against the letter and the beneficiary.

Independence of a letter of credit from its underlying transactions preserves its usefulness as a commercial device and reflects a policy decision that disputes regarding the underlying facts should be resolved after the letter is paid.

UCC provision reducing damages for wrongful dishonor of a letter of credit by any amount realized by resale or other use or disposition of the subject matter of the transaction docs not apply to situations such as guaranty letters of credit. UCC § 5-115.

UCC provision reducing damages for wrongful dishonor of a letter of credit by the amount realized by resale or other use or disposition of the subject matter of the transaction did not apply to a letter governed by the Uniform Customs and Practice for Documentary Credits (UCP) where: 1) the UCP was unambiguous (though not explicit) regarding damages since [16ASR2d58] it clearly implied that the dishonoring party was liable for the face amount of the letter; 2) the UCC provision was not an apparent rule of general law since no cases construed it to reduce damages below the face amount of the letter; and 3) reducing damages below the face amount would reduce the commercial utility of such letters since disputes concerning the fact and amount of resale could obscure the exact amount owed and hinder prompt payment.

UCC provision reducing damages for wrongful dishonor of a letter of credit by the amount realized by resale or other use or disposition of the subject matter of the transaction would not apply to a letter governed by the UCP which may not have identified the goods in enough detail to enable the court to trace their resale without referring to the underlying contracts. UCC § 5-115.

Letter of credit requiring only a beneficiary's signed statement and a notice of default of invoice rather than an attached copy of the invoice for the goods for which it guaranteed payment might not be governed by UCC provision reducing damages for wrongful dishonor of a letter of credit by the amount realized by resale of the subject matter or the transaction, since the letter might not identity the goods sufficiently to enable the court to trace their resale without referring to the underlying contracts. UCC § 5-115.

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

Counsel: For Plaintiff, Roy J.D. Hall Jr.

  For Defendant Amerika Samoa Bank, William H. Reardon

  For Defendant Hunkin dba Paradise Development, Gata E. Gurr

On Motion for Reconsideration:

Introduction

We granted summary judgment holding defendant Amerika Samoa Bank ("ASB") liable on its $300,000 irrevocable standby letter of credit issued to plaintiff Pacific Reliant Industries, Inc. ("PACREL"). ASB moved for reconsideration contending, among other things, that damages was an issue of fact properly before the Court which precluded the grant of summary judgment. After the hearing on the motion, we allowed further argument and briefing on the question of damages only, and otherwise rejected ASB's remaining contentions the argument on damages.

ASB's argument centers on the provisions of § 5-115(1) of the Uniform Commercial Code (UCC). This provision reads: [16ASR2d59]

When an issuer wrongfully dishonors a draft or demand for payment presented under a credit the person entitled to honor has with respect to any documents the rights of a person in the position of a seller (Section 2-707) and may recover from the issuer the face amount of the draft or demand together with incidental damages under Section 2-710 on seller's incidental damages and interest but less any amount realized by resale or other use or disposition of the subject matter of the transaction. In the event no resale or other utilization is made the documents, goods or other subject matter involved in the transaction must be turned over to the issuer on payment of judgment.

UCC § 5-115(1) (emphasis added).

Discussion

I. Applicability of the UCC

An assumption fundamental to ASH's position is that the UCC applies in American Samoa. The immediate difficultly with this position, however, is that the Fono has failed to adopt the UCC, and obviously it is not for the Court to attempt by judicial fiat that which the legislature has declined to do. ASH's assertion that this Court has held the UCC applicable in this case is not correct. We merely noted the rule of other jurisdictions dealing with a situation where the Uniform Customs and Practice for Documentary Credits (UCP) was silent or ambiguous; that is, analogous UCC provisions may he utilized if consistent with the UCP. See Bank of Cochin Ltd v. Manufacturers Hanover Trust, 612 F.Supp. 1533, 1542 (D.C.N.Y. 1985). As this Court recently noted in Security Pacific National Bank v. M.V. Conquest, 4 A.S.R.2d 59, 71 (1987),

[t]here is abundant precedent for the judicial practice of adopting as judge-made law the substance of statutes that are not binding on the court. For instance, the Uniform Commercial Code does not apply to contracts for the sale of real estate, but some state courts have adopted provisions of the UCC by analogy as rules of property law. Similarly, many state legislatures have adopted comparative negligence statutes; in some other jurisdictions the courts, regarding this new development [16ASR2d60] as a desirable one, have modified the old judge-made law to incorporate comparative negligence.

While the UCC does not of its own force apply in American Samoa, that is not to say that certain rules embodied in widely adopted uniform codes, such as the UCC, may not otherwise be applicable in the territory when they evince or restate generally accepted principles of law.(1) Thus, we were indeed able to look to analogous provisions of the UCC for guidance on the question of what was "reasonable time." Here, however, we are not faced with a similar gap in the UCP which requires filling in through analogous reasoning. Although the UCP is not explicit on damages as remedial relief for wrongful dishonor, a letter of credit by its very nature and purpose clearly implies that liability will be for the face amount of the letter of credit. In contrast, there is no obvious number of days that constitutes" a "reasonable time," and hence our earlier recourse to the UCC, given available precedent. On the other hand, resort to the UCC is not, in our view, equally compelling here. The resale portion of UCC § 5-115 is hardly an apparent rule of general law. No cases applying this rule (or, for that matter, rejecting it) were cited to the Court by counsel, nor were any such cases found by the Court's own research. The cases construing UCC § 5-115 tend to increase the damages awarded above the letter of credit amount as a result of the inclusion of "incidental damages." See, e.g., cases collected in Annotation, Damages Recoverable for Wrongful Dishonor of Letter of Credit Under UCC § 5-115, 2 A.L.R. 4th 665 (1980).(2)

Additionally, the logic of the resale provision in a letter of credit context is not perhaps free of question. While increasing a damage award above the letter of credit's face amount preserves the sanctity of this important commercial device and does not increase the risk of wrongful refusals to pay, adopting a rule that would call into question the exact amount available on a given letter of credit is far more repugnant to the purpose and utility of the letter of credit, and would make possible [16ASR2d61] spurious claims of resale in order to thwart legitimate collection efforts. In a similar vein, the district court in Toyota Industrial Trucks v. Citizens National Bank, 611 F.2d 465 (3d Cir. 1979), refused to impose a duty to mitigate on a letter of credit beneficiary under § 5-115(1) because this "would negate the essential purpose of the UCC concept of the letter of (credit by relieving the issuer of its primary and sole responsibility on the letter." Id. at 470. The resale provision in effect applies a rule of common law contracts to letters of credit.(3)

It is well established that the letter of credit exists independently of the obligations of the underlying contracts;(4) the letter of credit must be paid when the documents required by the letter of credit are presented, regardless of the events transpiring between the buyer and seller. This avoids litigation of the underlying facts and assures prompt payment in most letter of credit situations. The portion of UCC § 5-115 reducing the award on a letter of credit by the amount garnered by the resale of the items in question mitigates the utility of the letter of credit device by contaminating the proceeding with extraneous facts whose proof may be difficult and contested. The independence of the letter of credit from the underlying transactions reflects the policy decision that such disputes should not be resolved prior to the payment of the letter of credit but afterward, when the fall-out of the underlying contracts is being litigated. This preserves the utility of the letter of credit.

We are not convinced that UCC § 5-115 reflects a generally applied rule of law, and in view of the reservations we have expressed [16ASR2d62] concerning this provision's application to the letter of credit situation, we are disposed to reject ASB's contention.

II. Requirements of UCC § 5-1 15(1)

Even if applicable, the current facts do not come within the UCC § 5-115 framework. The rule of § 5-115 applies to sale of goods situations, but not to "pure" credit situations such as guaranty letters of credit. See, e.g., East Girard Savings Association v. Citizens National Bank and Trust Company of Baytown, 593 F.2d 598, 603 (5th Cir. 1979); Housing Security, Inc. v. Maine National Bank, 391 A.2d 311 (Maine. 1978). While the situation here seems closer to a sale of goods situation than to a pure credit situation, it still may not qualify for the application of § 5-115. As the court in East Girard Savings Association explained, the independence of the letter credit from the underlying contracts is in no way inconsistent with the UCC § 5-115 resale provisions, because the letter of credit itself will identify the exact goods which are resold, and so the court need not look to the underlying contracts to identify the goods. The letter of credit here in question may not have sufficiently identified the goods in question to enable the court to follow their resale(5) without resorting to the actual underlying contracts; it required only a "Beneficiary's signed statement" and a "Notice of default of invoice...." While a notice of default on an invoice might well have a copy of the invoice attached, the letter of credit itself does not require this, and so the exact goods might not be identified in the letter of credit, especially in this case where the $300,000 letter of credit was used to guarantee payment for several sequential shipments of materials ---with a total value of roughly $1 million ---and not one specific single shipment.

For reasons given the motion is denied.

It is so Ordered.

*********

1. A.S.C.A. § 1.0201(4) declares so much of the common law of England as is suitable to conditions in American Samoa to be effective law in American Samoa. In Tung v. Ah Sam, 4 A.S.R. 764 (1971), the common law of England was clarified to mean "that body of jurisprudence as applied and modified by the courts of the United States at the time the statute was adopted and as since construed." Id. at 768.

2. This is somewhat surprising in the light of the number of jurisdictions which have adopted a version of UCC § 5-115. See 3 R. Anderson, Uniform Commercial Code § 5-115:2 (2d ed. 1971).

3. In Breathless Associates v. First Savings & Loan Association of Burkburnett, 654 F. Supp 832 (N.D. Tex. 1986), a court considering the same UCP provisions considered in our decision granting summary judgment, held that the UCC permitted other sources of law where the UCC itself is silent as to the remedy, and therefore applied the common law of contracts to hold that the beneficiary could recover only the actual damages caused by the bank's breach. Id. at 838. In Breathless Associates, the UCC opened the door to the common law; in American Samoa, the inapplicability of the UCC in general leaves that avenue doubtful. Furthermore, it has been held in letter of credit situations that the "measure of damages used in ordinary contract cases is inapplicable because a letter of credit simply is not an ordinary contract." East Girard Savings Association v. Citizens National Bank and Trust Company of Baytown, 593 F.2d 598, 603 (5th Cir. 1979).

4. Three separate contracts exist in letter of credit transactions: one between the issuing bank and its customer (agreeing to issue the letter of credit), another between the bank's customer and the beneficiary (agreeing to use a letter of credit), and a third between the issuing bank and the beneficiary (evincing the bank's promise to pay conforming drafts against the letter of credit). Venizelos S.A. v. Chase Manhattan Bank, 425 F .2d 461, 464-65 (2d Cir. 1970).

5. The exact fate of the goods remains mysterious, and may well become another dark tale of the South Pacific.

American Samoa Gov’t v. Taylor,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

HARRY TAYLOR, Defendant

High Court of American Samoa
Trial Division

CR No. 8-90

August 7, 1990

__________

The Court may order a mentally incompetent defendant to be confined for a maximum of 120 days; within 120 days a hearing shall be held to determine whether the defendant has become competent to stand trial and, if not, whether there is a substantial probability that he will attain competency within one year or the maximum term of imprisonment for the crime charged. A.S.C.A. § 46.1305

The Court may order a mental examination of a defendant. A.S.C.A. § 46.1303.

Before REES, Associate Justice. [16ASR2d45]

Counsel: For Plaintiff, John W. Cassell and Jeffrey Buckner, Assistant Attorneys General

  For Defendant, Barry I. Rose, Assistant Public Defender

On July 23, 1990, the Court held a hearing pursuant to A.S.C.A. § 46.1301 et seq. to determine whether the defendant is mentally competent to stand trial.

Counsel for the defendant presented the testimony of a psychiatrist who had examined the defendant on several occasions. His testimony was to the effect that defendant is almost certainly aff1icted by a mental disorder called "dementia," probably caused by one or more mild strokes and/or a chronic deficiency of the blood supply to the brain, and characterized by symptoms including serious gaps in memory and cognitive functions.

The testimony of this witness was that defendant's mental problems were related to and aggravated by serious physical illnesses. He testified that defendant had a long history of heart disease, had probably suffered at least one mild stroke, had recently experienced convulsions which were probably associated with epileptic seizures, and that during a recent medical examination the defendant had undergone a "cardiac crisis" in which his blood pressure rose to an extraordinary level which presented not only an imminent threat to defendant's life but also a severe obstruction to the exercise of cognitive and other mental functions. The psychiatrist testified that defendant generally had a good memory of the events surrounding the incident in which he is charged, but was unable to understand the pending criminal proceedings or to effectively assist in his own defense.

The defense also presented the testimony of the Assistant Public Defender and of an interpreter employed by the Public Defender's off-ice concerning the difficulties they had experienced in communicating with the defendant. They testified that these difficulties were unique in their experience and were not adequately explained by intercultural problems or deficiencies in education or intelligence. All witnesses testified that they were convinced the defendant was not malingering; on the contrary, they all testified to their conviction that he earnestly wishes to assist in his own defense but suffers from mental disorders that make it impossible for him to do so. [16ASR2d46]

The Government presented a report from a psychologist who had examined the defendant. Through no fault of counsel for the Government, the psychologist did not appear at the hearing. The psychologist's written report concludes that defendant is competent to stand trial. The basis for this conclusion is said to be interviews conducted with the defendant and with others who know the defendant, and also certain psychological tests specially designed to measure the various components of mental competence to stand trial. Unfortunately, the psychologist's report tells us nothing whatever about defendant's performance on these tests. The report's conclusions appear to be related exclusively to the psychologist's observation that defendant remembers and understands the events surrounding the incident with which he is charged, and also has an understanding of such things as the functions of judge, jury, and prosecutor. These observations concern matters that were never seriously in doubt and do not address the questions raised by the defense evidence.  It also appears that defendant failed to answer a single question on at least one of the tests, although the psychologist's report gives no hint of this. Moreover, one of the persons said to have been interviewed by the psychologist testified that he has no recollection of such an interview.

Despite the serious deficiencies in the psychologist's report, the question of mental competence is not free from doubt. Defendant does seem to be a reasonably intelligent individual; among the actions, opinions, fears, and fixations cited by the psychiatrist as evidence of dementia were several that do not strike the Court as unusual or even particularly unreasonable. Even if defendant's current physical and mental state is such that he could not presently assist in his own defense, it is not at all clear that this condition is a permanent one.

The preponderance of the evidence presented at the hearing, however, is to the effect that defendant is presently incompetent. A.S.C.A. § 46.1305 requires that a mentally incompetent defendant shall be ordered confined in the Correctional Facility or such other place as the Court shall designate, for a period not to exceed 120 days. Within 120 days a further hearing shall be held to determine whether the defendant has become competent to stand trial and, if not, whether there is a substantial probability that he will attain competency within one year or the maximum term of imprisonment that may be imposed for the crime charged.

The Court therefore orders that the defendant be confined in the Tafuna Correctional Facility pending a further hearing on his [16ASR2d47] competency, which is hereby scheduled for Wednesday, December 5, 1990. At this hearing the Court anticipates that the Government shall present the testimony of at least one expert witness who has examined the defendant. The Court may also order its own examination as provided by A.S.C.A. § 46.1303.

During his confinement the defendant is to receive regular medical treatment for his heart condition; he should also undergo diagnosis and treatment, where indicated, for any other physical or mental disorders. The Government may provide this treatment in the Tafuna Correctional Facility or, if warranted in the best judgment of the appropriate officials of the Department of Public Safety and the LBJ Tropical Medical Center, may transport the defendant between the Correctional Facility and the Medical Center for medical diagnosis and treatment on an outpatient basis, or confine him in a secure area within the Medical Center for inpatient diagnosis and treatment.

If the defendant is adjudged competent at the December 5 hearing, or at any subsequent time within the period prescribed by A.S.C.A. § 46.1305, he will stand trial for the serious crime with which he has been charged. If he remains incompetent, and if the Government believes that his mental disorder renders him a danger to himself or to others, resort may be had to civil commitment procedures.

It is so Ordered.

*********

American Samoa Gov’t v. Star-Kist Samoa, Inc.,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

STARKIST SAMOA, Inc., Defendant

AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

VCS SAMOA PACKING CO., Defendant

High Court of American Samoa
Trial Division

CA No. 65-90
CA No. 66-90

August 3, 1990

__________

Consent decrees (pertaining to the American Samoa Environmental Quality Act, A.S.C.A. §§ 24.0101 et seq., and the Water Quality Standards, A.S.A.C. §§ 24.0201 et seq.) are binding only on the parties thereto and do not define or restrict the rights of the United States or of any private party, either with respect to the right to bring any action or to the merits of such action.

Not being vested with prosecutorial discretion, courts can approve a consent-decree provision limiting the defendants' liability to ASG for past violations, but it is inappropriate for a court to enter an order prohibiting the prosecution of future violations of law.

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

Counsel: For Plaintiff, Virginia L. Gibbons, Assistant Attorney General

  For Defendant Star-Kist, John L. Ward II

  For Defendant VCSSamoa Packing, Lyle L. Richmond

Plaintiff American Samoa Government (hereinafter "ASG") brought these actions for injunctive relief and assessment of penalties against defendants for violations of the American Samoa Environmental Quality Act, A.S.C.A. §§ 24.0101 et seq. (hereinafter "the Act"), and the Water Quality Standards promulgated pursuant to the Act, A.S.A.C. §§ 24.0201 et seq. [16ASR2d28]

Two days after the complaints were filed, ASG and each of the two defendants submitted consent decrees for Court approval. Under the proposed consent decrees, the defendants would neither admit nor deny past violations of the Act or the Water Quality Standards. Each defendant would, however, agree to pay civil penalties (amounting to $100,000 for defendant Samoa Packing and $150,000 for defendant Star-Kist) in settlement of ASG's claim for past violations. The consent decrees also stipulate a schedule for eventual compliance with the Water Quality Standards and specify penalties for failure to meet the schedule.

The Court requested a hearing in an effort to resolve certain questions raised by the decrees. Specifically, the references in the proposed compliance schedules to quantities of nitrogen and phosphorous were stated in terms of "pounds per day"; it is not possible to tell from the face of the decrees whether the specified quantities exceed the permissible "micrograms per liter" set forth in the Water Quality Standards, and/or the standards set forth in the defendants' National pollutant Discharge Elimination System (NPDES) permits and incorporated by reference in the proposed decrees. It was also not clear to the Court whether the consent decrees, insofar as they should prove to be more permissive than the Water Quality Standards or the NPDES permits, would amount to judicial authorization of future violations of the laws of the Territory and/or theUnited States.

Counsel for ASG and both defendants appeared at the hearing and presented arguments and documentary evidence (including the current NPDES permits, which had originally not been submitted) which have helped the Court to reach an understanding of the meaning and probable effects of the proposed consent decrees. We have reached the conclusion that the decrees should be approved, subject to certain understandings and modifications:

I. Understandings

a) The Court understands that the consent decrees apply only to such violations of the Act and the Water Quality Standards as consist of excess discharge of phosphorous and nitrogen into the waters of Pago Pago Harbor. They do not affect the rights of the parties with respect to the discharge, if any, of suspended solids, oil and grease, or other effluent that may violate the NPDES permits or otherwise cause water quality to fall below the standards prescribed in A.S.A.C. § 24.0206(a). (This provision, set forth in the Appendix to the present opinion and order, provides in pertinent part that territorial waters shall be [16ASR2d29] substantially free from materials that will produce color, odor, or taste; from grease, oil, scum, foam, or other visible floating material; from materials that will produce visible turbidity or settle to form deposits; and from substances and conditions that may be toxic to humans, other animals, plants, and aquatic life.)

b) The decrees are binding only on the parties thereto. They do not define or restrict the rights of theUnited Statesor of any private party, either with respect to the right to bring any action arising out of the alleged excess discharges or to the merits of such action, and the Court expresses no opinion on whether any such rights or causes of action exist.

c) The principal effect of the decrees, with respect to future enforcement of the Act and the Water Quality Standards, is that ASG agrees not to seek penalties for any failure to comply with the nitrogen and phosphorous limitations set forth in the defendants' current NPDES permits which should occur between March 8, 1991, and March 6, 1992. Rather, enforcement during this period would be limited to violations of a set of interim standards, similar (although not identical) to those set forth in the NPDES permits for the period March 8, 1988, through March 7, 1991. In effect, the defendants would have an extra year in which to bring their operations into compliance with permanent Water Quality Standards before ASG would seek penalties for non-compliance.

d) It is not altogether clear, however, exactly what permanent standards the defendants would have to comply with by March 1992. ("Interim" standards, in the consent decrees and also in the current permits, are stated in terms of the number of pounds per day of the regulated substance which each defendant may discharge into the water during a specified period. "Permanent" standards, as we use the term in this opinion, are stated in terms of micrograms of the regulated substance per liter of water.)

The consent decrees clearly require "compliance with American Samoa Water Quality Standards" by March 6, 1992. The decrees further provide, however, that "compliance with American Samoa Water Quality Standards" shall be defined as "compliance with the nitrogen and phosphorus limitations contained within defendant's [NPDES] permit." The defendants' NPDES permits, in turn, will expire on March 7, 1992, which is exactly one day after the consent decree would require defendants to comply with them. Arguably, there would then be nothing [16ASR2d30] left to comply with until and unless a new standard should be set in a subsequent federal permit proceeding.

Because the parties apparently intend the present agreement to be more specific than one for compliance with an unspecified standard to be set in the future ---the provisions of the consent decrees requiring engineering feasibility studies with respect to alternatives for compliance with the Water Quality Standards, for instance, appear to assume a defined rather than an undefined set of standards ---and because they clearly intend compliance after March 6, 1992, to last for longer than one day, the Court construes the provisions discussed above to mean that defendants agree to achieve compliance no later than March 6, 1992, with the permanent (micrograms-per-liter) standards with which, according to their current NPDES permits, they are required to comply no later than March 8, 1991. (These standards are set forth on page 4 of each of the current NPDES permits.) Compliance with these standards should then continue indefinitely, subject only to the provisions of the consent decree for modification or termination.

e) There is yet another important unresolved question. The Court understands that the parties are in serious disagreement over the locations in which measurements should be taken to determine compliance with permanent (micrograms-per-liter) water quality standards. This question is frequently defined in terms of the size of the "zone of mixing." A zone of mixing is a relatively small area in which regulated substances may exceed more general water quality standards without posing an unreasonable risk of harm to water quality outside the zone. At least one study conducted by environmental experts on behalf of ASG apparently takes the position that the zone of mixing for nitrogen and phosphorous in Pago Pago Harbor should be practically nonexistent, requiring effluent to comply with water quality standards immediately upon entering the waters of the harbor. Counsel for defendants, on the other hand, argue for a much larger zone of mixing, perhaps consisting of the entire Inner Harbor .

We note that the defendants' NPDES permits, with which they agree to comply no later than March 6, 1992, appear to leave the definition of the zone of mixing in the sole discretion of ASG. We note further Finally, we note that the ASG's discretion in defining the zone of mixing should be informed by the detailed provisions of A.S.A.C. § 24.0205, which provides procedures and standards for such definition, and should be designed to ensure that water quality in the harbor generally complies [16ASR2d31] with the substantive criteria set forth in A.S.A.C. § 24.0206, subsections (a) and (d).

II. Modifications

We also find it necessary to condition our approval of the consent decree on three modifications:

a) The Court neither approves nor disapproves of Section III, paragraph D of the consent agreement. In this paragraph ASG agrees not to seek any penalties for violations of "any permit," except insofar as such violations should happen also to violate the compliance schedule set forth in the decree. Read in conjunction with the provisions that set a different compliance schedule from that set forth in the defendants' NPDES permits, this paragraph effectively immunizes defendants from prosecution by ASG for certain future violations of existing law. While we recognize that there are often good reasons for the executive branch of government to exercise its discretion not to prosecute violations of the law -- and possibly even, in certain circumstances, to agree in advance to exercise such discretion -- courts are not vested with prosecutorial discretion. Although we can and do approve the provision limiting the defendants’ liability to ASG for past violations of the stipulated amounts, we believe it inappropriate for a Court to enter an order prohibiting the prosecution of future violations of law.

Our reluctance to enter an order including this part of the agreement between the parties should not vitiate the agreements. The decrees, even in the absence of ASG's undertaking not to prosecute future violations of existing law, contain important undertakings by both sides. Paragraph D, moreover, presumably retains whatever force it might have as part of a private agreement; its omission from our order merely deprives it of whatever additional force it would obtain from a judge's signature. [16ASR2d32]

b) Paragraph F of Section III of the decrees would appear to limit defendants' liability for violations of the Water Quality Standards after March 6, 1992, to $500 per day, no matter how long the defendants remained in violation of the standards. This would appear to deprive ASG of the option of seeking criminal fines according to the provision of A.S.C.A. § 46.2103(6), in amounts up to twice the gain derived from the offense. This option is an extremely important one in environmental cases, since in its absence it might be more profitable for a polluter to pay $500 per day forever than to bring its operations into compliance with the law.

In making this observation we hasten to add that we have no evidence that defendants are acting otherwise than in good faith. On the contrary, counsel for the defendants ---who, like counsel for ASG, have been honest and forthcoming in their conduct of this difficult and complex matter ---are most emphatic in assuring the Court that their clients are determined to bring their operations into compliance with the law. Our hesitancy with respect to the $500 penalty cap has to do with its apparently open-ended duration. Accordingly, we approve this paragraph on condition that its duration be limited to the period March 7 through April 7, 1992. After that time ASG would have the option of proceeding under any applicable provision of law. (This modification is limited to Section V, paragraph F, and is not intended to affect the rights of any parties under any other provision of the consent decrees.)

c) In order to make possible the intelligent exercise of the continuing judicial supervision provided by Section XIII, the decrees should also be modified to provide for periodic reports to the Court on the status of compliance. Such reports should be made by counsel for ASG on or before October 31, 1990, and on or before the last day of every third month thereafter for the duration of the decrees, and at such other times as counsel deems appropriate. Counsel for defendants should file their responses, if any, to such reports within 15 days.

Subject to the understandings and modifications set forth herein, the consent decrees are approved and shall be entered as judgments of the Court.

It is so ordered. [16ASR2d33]

APPENDIX

American SamoaAdministrative Code (A.S.A.C.) § 24.0206:

Standards of Water Quality

(a) Waters Generally. The following standards apply to all fresh surface waters, embayments, open coastal waters, and oceanic waters of the territory; paragraphs (3), (4), and (7) through (13) of this subsection apply as a minimum within the zone of mixing:

(1) They shall he substantially tree from materials attributable to sewage, industrial wastes, or other activities of man that will produce color, odor, or taste, either of itself or in combinations, or in the biota.

(2) They should he substantially free from visible floating materials, grease, oil, scum, foam, and other floating material attributable to sewage, industrial wastes, or other activities of man.

(3) They shall be substantially free from materials attributable to sewage, industrial wastes, or other activities of man that will produce visible turbidity or settle to form deposits.

(4) They shall be free from substances and conditions or combinations thereof attributable to sewage, industrial wastes, or other activities of man which may he toxic to humans, other animals, plants, and aquatic life.

.....

**********

Fai’ivae; Willis v.


TONY WILLIS, on behalf of himself and
the HEIRS OF AMELIA VA, et al., Plaintiffs

v.

FAI'IVAE GALEA'I et al., Defendants

High Court of American Samoa
Land and Titles Division

LT No. 45-81

August 29, 1990

__________

At its discretion and within certain prescribed limits, the Court, sitting as a trial court. may grant an ex parte motion for an extension of lime if the motion is made before the expiration of the period originally prescribed; this is in contrast to the Appellate Division, which may not grant ex parte motions for extensions. T.C.R.C.P. 6(b); A.C.R. 25 & 26.

Before REES, Associate Justice.

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Fai'ivae family, Fai'ivae A. Galea'i

  For Avegalio, Aigamaua, Lealaialoa, Olo, and Suafo'a families, Aitofele T. Sunia

  For heirs of Sekio Avegalio, Asaua Fuimaono

  For Diocese of Pago Pago, Samoa, Charles V. Ala'ilima

  For Leoso Arthur Ripley, Pio Sagote, and Se'e Sagote, Arthur Ripley Jr.

  For Taeleifi family, Taeleifi Mane

  For Iuli and Uo families, Gata E. Gurr [16ASR2d102]

  For Puletu Oscar Meredith, Isa-Lei F. Iuli

Late in the afternoon of August 23, 1990, counsel for some of the parties to these consolidated cases made an ex parte request for a one-week extension of the August 24 deadline for the filing of those parties' closing memoranda. This request was denied, primarily because an extension would have had the unavoidable effect of allowing the moving parties to review the other parties' memoranda before submitting their own. The Court was also concerned about the ex parte nature of the request.

Rule 6(b) of the Trial Court Rules of Civil Procedure provides that the Court may, in its discretion and within certain prescribed limits, grant an ex parte motion for an extension of time provided that the motion is made before the expiration of the period originally prescribed. (This is in contrast to the Appellate Court Rules, which do not include requests for extensions among the motions that may be filed ex parte. See Appellate Court Rules 25 & 26.)

In the absence of extraordinary circumstances, the Court is most reluctant to grant any order that might affect the interests of any party unless that party has had prior notice and opportunity to be heard. Requests for extensions should therefore ordinarily be served on all parties. The Court observes that the memoranda received in the present cases (including, miraculously, the one filed late Friday by the party whose ex parte request for an extension had been denied a few hours earlier) appear more than adequate. In light of the length and complexity of the present proceeding, however, the Court does not wish to leave any party with the impression that its arguments have not been fully heard and considered. Therefore, any party who wishes to file a supplemental memorandum may do so no later than 4:00 p.m. Friday, September 7, 1990.

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 HOLT, and KILISI PAULI, Defendants

High Court of American Samoa
Trial Division

CA No. 3-88

August 20, 1990

__________

An application for designation as the proper parties in a wrongful death action has been the practice in the High Court, and such designation also appears to be statutorily required, at least in the absence of a prior designation of a personal representative (administrator or executor) of an estate. A.S.C.A. § 43.5001(b).

Relief from final judgments may be granted under certain extraordinary circumstances. T.C.R.C.P. 60(b).

A final decision in a case in which the Court had jurisdiction over the subject matter and the parties, and in which the parties had a fair opportunity to address the issues, has the force of law and binds the parties even though it may be an erroneous decision; such a decision is not rendered "void" even if it conflicts with precedent or a non-jurisdictional statute. T.C.R.C.P. 60(b)(4).

Finding citations of legal authority that could have been discovered by due diligence before judgment does not constitute "excusable neglect." T.C.R.C.P. 60(b)(1).

High Court opinions between 1978 and 1986 were reported only if they established or altered a rule of law, criticized existing law, or, in the Justices' opinion, "involve[d] a legal issue of continuing public interest." [16ASR2d72]

The personal representative in a wrongful-death action shall be the named plaintiff, but the action shall be brought on behalf of the surviving spouse, parents, children or other next of kin, as the court may direct. A.S.C.A. § 43.5001(b).

Siblings are ordinarily entitled to recover for wrongful death even though a parent may be living, provided that they can show the requisite injury.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima

  ForAmerican Samoa Government, Arthur Ripley Jr., Assistant Attorney General

  For Defendants Continental Insurance, Fata Holt, and Kilisi Pauli, Roy J.D. Hall Jr.

On Motion for Relief From Judgment:

Plaintiffs sought compensation from defendants for "emotional distress" in connection with the death of their child. We construed their pleading as a complaint for damages under A.S.C.A. §43.5001, the wrongful death statute. We found defendants partly liable for the wrongful death and awarded damages.

We noted, however, that plaintiffs had failed to request designation as the proper parties to bring the wrongful death action. An application for designation as the proper parties plaintiff has been the practice in wrongful death actions in the High Court. Such designation also appears to be required by A.S.C.A. § 43.5001(b), at least in the absence of a prior designation of a personal representative (administrator or executor) of the estate of the deceased. See generally In re Estate of Ah Mai, 14 A.S.R.2d 32 (1990). We also noted that by proceeding in their own names without asking for leave of court, plaintiffs might have prejudiced the rights of Ballerina's brothers and sisters, who might otherwise have been entitled to recover along with the plaintiffs. We directed plaintiffs to make the appropriate application, and delayed formal entry of judgment pending action on such application. Saufo'i v. American Samoa Government, 14 A.S.R.2d 15 (1990).

Plaintiffs then moved to amend their pleading to join their children (the decedent's brothers and sisters) as next of kin entitle-d to share in the benefits of the wrongful death recovery. The motion was [16ASR2d73] granted, and the court allocated the damages among the persons entitled thereto, as required by A.S.C.A. § 43.5001(c). We considered at some length the considerations that should enter into such an allocation, and allocated $18,037.50 for the parents and $3000 for each of four children. Saufo'i v. American Samoa Government, 14 A.S.R.2d 51 (1990). Judgment was then formally entered awarding these damages in favor of plaintiffs, including the four children, and against defendants.

The original plaintiffs (the parents) now move for an order setting aside that part of the judgment that ordered their children joined as plaintiffs. The motion is brought under Rule 60(b) of the Trial Court Rules of Civil Procedure, which allows relief from final judgments under certain extraordinary circumstances.

The specific ground on which plaintiffs seek relief is that our judgment is said to be "void." This, according to plaintiffs, is because our holding that "parties bringing an action under [the wrongful death] statute must ask leave of court to determine who the proper parties should be ...and that minor siblings of the decedent must be joined" is said to conflict with an unreported decision of the Appellate Division, Continental Insurance Co. v. Te'o, AP No.16-84 (1985).

Plaintiffs apparently fail to appreciate the difference between a "void" judgment and a "wrong" judgment. A final decision in a case in which the Court had jurisdiction over the subject matter and the parties, and in which the parties had a fair opportunity to address the issues, has the force of law and binds the parties even though it may be an erroneous decision. Such a decision is not rendered "void" because of a conflict with precedent, or even with a non-jurisdictional statute.

Plaintiffs come closer to making out a case for relief from the judgment based on "excusable neglect,” another ground afforded by Rule 60(b). If they had known about the language on which they now rely in the Te'o opinion, they would no doubt have cited it to us before we rendered our judgment. Having noticed it recently, they wish us to take account of it as a ground for revising our judgment.

As the Appellate Division recently held in Satele v. Uiagalelei, 12 A.S.R.2d 103 (1989), the discovery after judgment of citations of legal authority that could have been discovered by due diligence before judgment does not constitute a ground for relief under Rule 60(b). The ground for relief urged in Satele was "newly discovered evidence," but the analysis applies with equal force to "excusable neglect." [16ASR2d74]

One difference between the newly discovered authorities in Satele and the one involved in the present case is that the former were reported opinions of the High Court, whereas the latter is an unreported opinion. Between 1978 and 1986 many opinions of the High Court were unreported. Those chosen for reporting were those which established or altered a rule of law, criticized existing law, or, in the opinion of the Justices, "involve[d] a legal issue of continuing public interest." Preface, American Samoa Reporter, Volume One (per Gardner, C.J.).

In other words, although it would have taken more diligence to find the Te'o opinion than to find a reported opinion, this was because its author had designated it as an opinion that did not involve a legal issue of continuing public interest. Te'o would appear to have been so designated because it did not, contrary to plaintiffs' interpretation, purport to establish a legal principle to the effect that a party can sue for wrongful death without making application to the Court (Te'o did make such application) or that siblings cannot recover for wrongful death if the deceased has a parent living.

Rather, Te'o simply declined to reverse a trial court judgment which had quite properly allowed the father of the deceased to "be the sole plaintiff, both for the surviving kin and as [the decedent's] legal representative." This essentially tracks the statutory language, which contemplates that the personal representative shall be the named plaintiff but that the action shall be brought "on behalf of" the "surviving spouse, parents, children or other next of kin...as the court may direct." A.S.C.A. § 43.5001(b); see Estate of Ah Mai, supra at 35.

The Te'o decision goes on to hold that the trial court's failure to "allocate the damages to the persons entitled" was not reversible error, because "there is only one plaintiff besides the estate." This holding would be difficult to square with the statutory language if it were shown that the decedent in Te'o had left other "next of kin," and that the appellate court knew about these people and was deliberately excluding them from any share in the recovery. This has not been shown, nor is it evident from our perusal of the voluminous record in Te'o.

It does appear that the decedent in that case left a mother as well as a father, and the trial court did subsequently allocate part of the wrongful death recovery to her. In so doing, we noted the "sole plaintiff" language in the appellate opinion and attributed it to the fact that the mother's interest had been buried in the pleadings and apparently not called to the attention of the Court. See Te'o v. Continental [16ASR2d75] Insurance Co., 13 A.S.R.2d 42, 42-43 (1989). We can find nothing in the record to show whether the decedent in Te'o left any brothers or sisters, or that the Appellate Division thought it was ruling on the question of siblings' right to recover for wrongful death.

Finally, plaintiffs misstate our original holding. We never ruled that brothers and sisters must always be joined in wrongful death cases, but merely called the problem to the attention of the parties. Plaintiffs subsequently did move to join their children, and we observed that "this course seems the wisest of those now open." Saufo'i v. American Samoa Government, 14 A.S.R.2d at 53. They now move for relief from a judgment granting their own motion.

We have addressed the question of priorities among wrongful death claimants at length in Estate of Ah Mai, supra. For the reasons stated in that opinion and in the various cases from other jurisdictions cited therein, we believe that siblings are ordinarily entitled to recover for wrongful death even though a parent may be living, provided that they can show the requisite injury. The construction of the statutory language advanced by plaintiff in support of the present motion ---to the effect that the statute sets up a series of exclusive priorities and that "other next of kin" can therefore not recover when the deceased left a "surviving spouse, parents, or children" ---is semantically plausible but would lead to absurd and unjust consequences. If applied across the board, this construction would mean that a decedent's children could not recover if he had a parent living, since "parents" are listed before "children.” The reasons for rejecting this construction have to do with its obvious absurdity and injustice, not with semantic implausibility. For similar reasons, we rejected the nearly identical argument advanced in Estate of Ah Mai for the exclusion of brothers and sisters, and we now reject it again.

In conclusion, plaintiffs have not proved any of the grounds for relief for judgment under Rule 60(b). We believe, in any event, that our original order was not in conflict with Continental Insurance Co. v. Te'o and was otherwise correct on the merits. The motion must therefore be denied.

It is so Ordered.

*********

American Samoa Gov’t v. Li'a,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

MISIPATI LI'A, Defendant

High Court of American Samoa
Trial Division

CR No. 67-89

July 23, 1990

__________

In light of the Court's concern about defendant's proximity to the victim, evidence supporting a request for work release should include the testimony or affidavit of the proposed employer setting forth the terms of employment; the testimony or affidavit of the Warden of the Correctional Facility indicating whether the defendant is, in his judgment, a good candidate for work release; and testimony of the Child Protection officials who have been counseling the victim and her family.

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

Counsel: For Plaintiff, John W. Cassell

  For Defendant, Charles V. Ala'ilima

On Motion to Modify Probation:

The defendant entered a guilty plea to the charge of Sexual Abuse in the First. Degree, a class D felony. He was sentenced to five years of imprisonment. Execution of the five-year sentence was suspended on several conditions, including the condition that defendant serve twenty months of incarceration in the Correctional Facility with no release except for medical emergencies.

At the time sentence was pronounced, the Court announced that it would entertain a motion to modify the incarceration provision at any time after the defendant had served six months in the Correctional Facility. The Court announced that among its principal concerns about any such modification was to guarantee some distance between the defendant and his young victim. [16ASR2d24]

Defendant now moves for modification of the sentence so as to terminate incarceration immediately. According to his moving papers, he intends to live in the same household as the victim. In his oral argument in support of this motion, defendant's counsel suggested that defendant would live not with the victim's family but in a nearby village. Neither of these arrangements would meet the Court's concerns about proximity to the victim. Even in the absence of these concerns, there appear to be no compelling reasons for defendant's early release from incarceration.

In the alternative, defendant requests that the conditions of his probationary detention be modified so that he can be allowed "work release." He proposes to work at a radio repair shop in Pago Pago. At present we have insufficient evidence for such a modification. Such evidence, should the defendant wish to renew his request for work release, should include the testimony or affidavit of the proposed employer setting forth the terms of employment; the testimony or affidavit of the Warden of the Correctional Facility indicating whether the defendant is, in his judgment, a good candidate for work release; and testimony of the Child Protection officials who have been counseling the victim and her family.

Accordingly, the motion is denied.

*********

Alaimalo v. Sivia,


ALAIMALO PEPINE HENRY PORTER, Appellant

v.

SIVIA SIVIA JR., BEN FALEAFAGA, PEPA FUATA, and
UTU SINAGEGE R.M. for himself and the UTU FAMILY,
Appellees

High Court of American Samoa
Appellate Division

AP No. 2-90

September 24, 1990

__________

A request for enlargement of the time provided for any of the actions required 10 perfect an appeal should be made in the form of a motion, with copies served on adverse parties. A.C.R. 25(b), 26(b).

An appellant must place a written order for a partial transcript, as well as having a copy of the order filed with the clerk of court and served on the appellee, within 10 days after receiving the reporter's or clerk's estimate. A.C.R. 10(b)(1).

At the time of ordering transcripts, a party must deposit cash equal to the estimated cost, and counsel must file a copy of the reporter's receipt with the clerk of court. A.C.R. 10(b)(4).

If an appellant fails to follow the rules and therefore has not perfected his appeal, it is subject to dismissal at the Appellate Division's discretion. A.C.R. 10(b)(5).

Before REES, Associate Justice.

Counsel: Appellant porter pro se

The Court has received a letter from the daughter of the named appellant (who appears to have passed away several months ago) requesting "adequate time to seek new counsel wherein the transcripts can be corrected and certified." The letter was addressed to the Chief Justice, who served as trial judge in the case. Since the requested extension has to do with the pending appeal, the letter has been referred by the Chief Justice to the Appellate Division. [16ASR2d118]

A request for enlargement of the time provided for any of the actions required to perfect an appeal should be made in the form of a motion, with copies served on adverse parties. See Appellate Court Rules 25(b), 26(b). This has not been done in the present case.

There is, moreover, a far more important problem with the request now before us. Appellate Court Rule 10(b)(1) requires in pertinent part that

[w]ithin 10 days after receiving the reporter's or clerk's estimate the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary. The order shall be in writing and within the same period a copy shall be filed with the clerk of court and served on the appellee.

Rule 10(b)(4) further requires that "at the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporters" and that "[c]ounsel must file a copy of the reporter's receipt with the clerk of court."

The reporter's certificate of the estimated transcript cost in the present case was filed on January 16, 1990. Appellant's order for transcript, deposit, and filing for the record of a copy of the reporter's receipt were therefore due by January 26. Neither the named appellant nor the present petitioner-- whom the trial court found to have replaced her father as the real party in interest by the time of trial, and who therefore should have been named as appellant-- filed the required order, deposit, or copy of receipt by January 26. Nor, indeed, has any of these acts been done up to the present time. Aside from a recent request from her counsel to withdraw from further representation, the letter we have just received is the first official or quasi-official communication the Court has received from the appellant since notice of appeal was tiled over eight months ago.

If appellant had followed the rules, the transcript would have been filed by February 25, and appellant's brief would have been due in mid-April. The appeal would therefore have been ready to be heard at the next regular session of the Appellate Division, now tentatively scheduled for the week of October 29, 1990. [16ASR2d119]

Since appellant did not follow the rules and therefore has not perfected her appeal, the appeal is subject to dismissal at the discretion of the Appellate Division. See Appellate Court Rule 10(b)(5). The usual practice in the High Court has been to dismiss overdue unperfected appeals at the next regular session of the Appellate Division.

The situation is complicated, however, by the fact that appellant appears recently to have made her own private, off-the-record arrangement with a court reporter for the production of a transcript. According to information provided to the Court by the court reporter in question, this request was made about a month ago, which is about seven months after the expiration of the deadline. No motion for an extension of the January 26 deadline was made to the Court, either before or after its expiration, as would have been necessary in order to allow the production of a transcript as part of the official record on appeal. See Appellate Court Rules 10(b)(1), 11(a), 26(b). Nor was any written request for a transcript made to the court reporter, as required by Rule 10(b)(1). The verbal request was made directly to the court reporter by appellant herself, although appellant was then represented by counsel. The reporter, without consulting the court rules and without thinking to consult a judge or the Clerk of the High Court, agreed to produce the requested transcript. It was finished last Thursday, September 20. It is this unofficial transcript which appellant now alleges to contain many errors.

Although it might be within the Court's power to construe the present letter as a retroactive motion for extension of the time in which to request a transcript and to grant such an extension, it is not at all clear that this would serve the interests of justice. If appellant had requested an extension on or around the January 26 deadline, she might well have been given an extension of a month or two, but an extension of eight months or longer would almost certainly have been deemed unfair to the other parties. This is especially true since the effect of such an extension would he to delay the hearing of the appeal until the 1991 session of the Appellate Division, which will probably be held almost two years after the trial. Although appellant appeals to the Court by reference to family tragedies and attendant financial difficulties, we are not told why her counsel did not request an extension on these grounds in January.

The entire file in the present appeal, including the appellant's recent letter, will be referred to the full Appellate Division at its upcoming session. The Appellate Division can then consider whether to dismiss the appeal, to grant the appellant an extension, or to make such [16ASR2d120] other order as it may deem appropriate. Counsel for each of the appellees is directed to file any response with the Court (and to serve copies on all other parties) no later than October 15, 1990. Appellant or her new counsel, if any, may also file any further pleadings with reference to this matter (and serve copies on all other parties) no later than October 15.

It is so ordered.

**********

Ala'ilima; King v.


JAKE P. KING, Plaintiff

v.

CHARLES V. ALA'ILIMA and MONICA MILLER, Defendants

High Court of American Samoa
Trial Division

CA No. 38-90

July 2, 1990

__________

Defamatory statement must be one of fact and not of opinion.

Whether a statement is one of opinion or rhetorical hyperbole or of fact is a question of law. [16ASR2d7]

Whether a statement is one of opinion or rhetorical hyperbole or of fact is determined from the perspective of an ordinary reader.

Court must examine both the allegedly defamatory language and its context in determining whether it is a statement of fact or a statement of opinion, since language which taken alone might seem to be a statement of fact may be a statement of opinion when viewed in context.

Attorney's published letter was held to be a statement of opinion not actionable in a suit for defamation, where the letter arose from a public controversy regarding a labor dispute, was in the form of an attorney's demand letter, and used language indicating the statements contained within were opinions rather than facts.

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

Counsel: For Plaintiff, Togiola T.A. Tulafono

  For Defendants, Ellen A. Ryan

On Motion to Dismiss:

Introduction

Plaintiff Jake P. King claims to have been defamed by a letter written by defendant attorney Charles Ala'ilima on behalf of his client Monica Miller. This letter was written on August 17, 1989, in response to an article published in the Samoa Journal. At the time, King was the President of the American Samoa Development Corporation (hereinafter A.S.D.C.). The letter, addressed to the Chairman of the Board of Directors of the A.S.D.C., Aumoeualogo Soli, complained that the Samoa Journal article contained false statements about his client's participation in a strike by the employees of the A.S.D.C.'s Rainmaker Hotel. King alleges to have been defamed by the letter's following passage:

This blatant attempts [sic] at intimidation and Mr. King's public and untruthful comments regarding the strike and the coverage remind me of a very similar event that recently occurred in China. Students and workers there exercised free speech and were suppressed. That communist government is now trying to say that nothing happened and that only a few radicals aided by biased media coverage caused all the trouble. Your President and Manager is engaged in the [16ASR2d8] exact same process only here the individuals have rights to pursue this matter in court.

The plaintiff expansively views this as a charge of suppressing a public demonstration by running over and killing demonstrators with armored vehicles. Defendants here move to dismiss on various grounds.

Discussion

Defamation is defined in A.S.C.A. § 43.5201.(1) To be defamatory, a statement must be one of fact and not of opinion. Gertz v. Welch, 418 U.S. 323 (1974); Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219, 223 (2d Cir. 1985); Church of Scientology of California v. Cazares, 638 F.2d 1272, 1286 (5th Cir. 1981). This distinction is founded on the notion that under "the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Welch, 418 U.S. 323, 339-40 (1974).(2)

The first question, then, is whether the statement is one of opinion or rhetorical hyperbole as opposed to one of fact. This is a question of law for the court. Mr. Chow of New York, supra, at 223; Information Control Corporation v. Genesis One Computer Corporation, 611 F.2d 781, 783 (9th Cir. 1980). This inquiry must be from the perspective of an ordinary reader. Mr. Chow of New York, supra, at 224. To analyze the difference between statements of fact and opinion, a court must examine both the language itself and the context surrounding the allegedly defamatory language. Id. at 223; Information Control Corporation, supra, at 783. "Even apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate [or] heated labor dispute.” Id. at 784. [16ASR2d9] Language which taken alone might appear to be a statement of fact may well be a statement of opinion when viewed in context.

Ala'ilima's letter is clearly a statement of opinion. The letter arose out of a tumultuous public controversy centered around the hotel's labor dispute. The only statement even arguably of fact is the sentence reading "[y]our President and Manager is engaged in the exact same process...." However, when read in context, this statement must be read as opinion. Ala'ilima states that the events "remind" him of the actions in China; this indicates that he is voicing his opinion that the two incidents bear certain similarities. No "ordinary reader" of the offending letter could believe that King was trampling protesters with tanks, or even that Ala'ilima was seriously alleging this.(3)

In sum, Ala'ilima's criticism of King's actions consisted of his opinion; as such it is constitutionally protected and hence not actionable. The defendants' motion to dismiss is granted.

It is so Ordered.

**********

1. This section reads in pertinent part:

Defamation is effected by (1) libel which is a false and unprivileged publication by writing, printing, picture, effigy, or any other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.

2. Freedom of speech is also constitutionally entrenched in art. I, § 1, Rev'd. Const. Am. Samoa.

3. It might well be said that the nature of the allegedly defamatory statements as opinion is further evidenced by the character of the letter itself as an attorney's demand letter. Strong language and biased viewpoints are typically the stuff of demand letters, hardly fountains of pure fact and hard truth.

Afoa; Tuiasosopo v.


SIVA TUIASOSOPO, MAEVA MA'AE, LIUMANU SEUMAALA
for
MA'AE FAMILY, ASI KOKI, PUPI LAM YUEN for TULIFUA
FAMILY, MELEISEA SAMUELU for MELEISEA FAMILY,
SI'I NOAESE TEATAFA, Plaintiffs/Objectors

v.

AFOA SANERlVE A. for AFOA FAMILY, Defendant/Claimant

High Court of American Samoa
Land and Titles Division

LT No. 5-90

August 20, 1990

__________

The Court will make no finding as to the traditional name of a parcel of land; any party who is held to own part of the tract in dispute is free to call it whatever he likes.

A pattern of settlement provides evidence of land ownership. [16ASR2d91]

Before REES, Associate Justice, VAIVAO, Associate Judge, and TAIMANU, Acting Associate Judge.

Counsel: For Plaintiffs Ma'ae and Tulifua families and Si'i, Tau'ese P.f . Sunia F.

  For Plaintiff Meleisea family, Utu Sinagege R.M.

  For Plaintiff Asi, Togiola T.A. Tulafono

  For Defendant Afoa, Asaua fuimaono

Afoa submitted for registration a survey of 3.43 acres more or less, comprising land he calls Paepaetele in the village of Taputimu. Representatives of the Asi, Meleisea, Si'i, and Tulifua families objected on the ground that parts of this tract belong to their respective families.

Another objection appears to have been motivated entirely by the objector's dissatisfaction with the name given to the land. Although no evidence was given by this objector, several witnesses for the other objectors said that Afoa should not have called the land "Paepaetele" (this being the name of some other land belonging to another family) but should have called it "Pagota." Afoa acknowledges that he has land called Pagota but says this land is not part of it. We make no finding with respect to the traditional name of the land; any party who is held to own part of the tract in dispute is free to call it whatever he likes.

I. The Asi Objection

The most substantial objection in terms of acreage was that of Asi, who claimed about 1.572 of the 3.43 acres claimed by Afoa. Asi submitted a composite map (Exhibit 3) showing the overlap between his claim and that of Afoa. We have used this exhibit as a basis for our own . composite map, attached hereto as Appendix A, to illustrate the boundaries to which we refer in our written opinion. There are two principal areas of overlap between the Asi and Afoa claims.

The first area of overlap is a strip about 300 feet long and varying in width between 50 and 100 feet, on the south and west sides of the Taputimu Loop Road and just to the south of a house belonging to an Asi family member. Part of this strip appears to be a small back yard appurtenant to the Asi house; the rest consists of heavy growth not apparently used or cultivated by anyone. Resolving this dispute amounts to an exercise in boundary drawing between the area occupied by Asi to the north and that occupied by Afoa to the south. Asi has drawn the [16ASR2d92] boundary along a line of trees in the middle of the underbrush between the two occupied areas. Afoa, on the other hand, has drawn a line that encompasses the whole intervening bush and comes within a few feet of the Asi house. Neither side presented a particularly compelling case, but the preponderance with respect to this disputed strip favors Asi.

The other area in dispute between these two parties is on the opposite (north and east) side of the Taputimu Loop Road. It comprises about an acre and surrounds an abandoned chicken coop operated by Afoa some years ago. Asi's story is that he gave Afoa permission to build the chicken coop on his land; that Atoa originally wanted to build it on some other piece of Asi land; Asi denied permission to build it there, but instead gave Afoa permission to build it in the area now disputed.

Afoa's story is similar in some respects. He says he tried to build the chicken coop on another site, but Asi objected, saying the proposed site was on Asi land. Asi told Afoa to go build his chicken coop on his own land, and the two men agreed on an alternate location which Asi acknowledged to be on Afoa land. Afoa built the coop at the alternate location, which is the area now in dispute.

With respect to this portion of the disputed area, Afoa prevails. Although stranger things have happened, it does not impress us as very likely that Asi would have allowed another matai with plenty of his own land to build a chicken coop on Asi land, particularly since it is clear that Asi had already begun to regard Afoa as something of a troublemaker in land matters and had recently denied permission with respect to another site. The Afoa version of this story rings truer. Afoa also presented the testimony of a witness who testified credibly that he had a plantation in this area for some years, after the demise of the chicken coop and under the authority of Afoa, with no objection from Asi people.

II. The Meleisea Objection

The objection of Meleisea principally concerns a portion of the Afoa survey on the far side (west or Leone direction) of the Taputimu- Vailoa paved road. There is evidence of both recent and traditional Meleisea habitation and cultivation in this area, and Meleisea prevails with respect to it.

Meleisea also claims that Afoa's western boundary does not even extend as far as the paved road, but that the traditional boundary between [16ASR2d93] adjoining landowners in this area was an old road a few feet to the east of the present road. This claim is seconded by witnesses for Asi and Si'i, and is buttressed by a document showing that a right-of-way for the road was granted in 1973 by a number of chiefs including Asi and Si'i but not Afoa. (The Meleisea and Si'i families are closely connected, and the present Meleisea was then holding the Si'i title.)

Neither Meleisea nor Si'i has submitted a survey, however, from which we might determine exactly where they would draw the line between the Meleisea or Si'i land to the west and that of Afoa to the east. It also appears that Afoa has been occupying the land up to the edge of the road in the portion of his survey not disputed with Asi (i.e., the area in front of his present house and of a tulaga fale that was formerly the site of another Afoa house) and no evidence was presented of any conflicting occupation during the memory of man. Afoa therefore prevails with respect to this area, as far northwest as the southeastern edge of the government right-of-way and as far north as the southern boundary of the land held to belong to Asi. The land to the west and northwest of this area appears to belong to Meleisea and/or Si'i.

III. The Si'i Objection

Si'i objects to the western boundary claimed by Afoa, and also to the western part of the southern boundary. He has presented no survey, but makes three principal arguments: (1) any land possessed by Afoa in this area is because of a connection to Si'i and Meleisea and by permission of these families; (2) the boundaries drawn by Afoa encompass a communal graveyard of the three families (Si'i, Meleisea, and Afoa) which includes the grave of the deceased mother of Si'i, who was also the mother of Meleisea; (3) the southern boundary drawn by Afoa comes quite close to a Si'i residence, and actually includes part of the paepae, a small area of gravel immediately surrounding the house.

The evidence does not support either of the first two contentions. Whatever relationship the Afoa title (a very high one) has to Meleisea and Si'i, it is not one of vassalage. After trial the Court viewed the land, principally in order to examine the claim of Si'i that his mother's grave is within the Afoa survey. It is not. The grave of the mother of Si'i and Meleisea (pointed out by them and also by Afoa) is in a small graveyard separate and distinct from the one inside the Afoa survey, and not even adjoining it. The only specific evidence we have concerning the older graveyard within the Afoa survey is that the last three Afoas are buried there. [16ASR2d94]

We also attempted to determine whether the southern boundary drawn by Afoa crosses the paepae of the Si'i house. Although we cannot be certain, it does appear to encompass a small corner of the Si'i paepae. This does not, of course, conclusively establish that this small area is not Afoa land; but the best evidence we have of ownership in this area is the pattern of settlement, and the evidence is to the effect that this Si'i house was built some years ago without objection from Afoa.

The southern Atoa boundary, although quite close to the Si'i house, is also quite close to the present and former Afoa houses. The Si'i objection is therefore unpersuasive except insofar as the Afoa boundary may include part of the paepae of the Si'i house or otherwise come so close as to encroach on what the parties must have reasonably regarded over the years as the curtilage of this house. As it will be necessary for Afoa to revise his survey in several respects before registering it, we direct that he include a further revision, if necessary, so that his southern boundary will not come any closer than fifteen feet to the Si'i house. (This revision, to the extent it may be necessary, is illustrated by the dotted line in Appendix A. Neither this dotted line nor the other boundaries drawn by the Court in Appendix A is intended to be precisely to scale.)

IV. The Tulifua Objection

Pupi Lam Yuen testified that the southern boundary drawn by Afoa encompasses a few feet of an area traditionally regarded by the Tulifua family as part of their land. This witness, although evidently honest and sincere, testified from family history recounted to him by others and from a vague memory of a Samoan house that once belonged to an uncle of his. The boundary, according to what this witness said he was told by older members of his family, should be along a line of kapok trees. He testified that there had once been several such trees but that now only one is left standing, the second-to-last haying fallen during the recent hurricane. A line drawn between these two trees, however, would put part of Afoa's house on Tulifua land. This house has been there for some time, without any evident objection from the Tulifua family. The witness admitted, moreover, that there have been no Tulifua houses or cultivations within this tiny disputed area for some time. Afoa prevails with respect to this objection. [16ASR2d95]

V. Conclusion and Order

Accordingly, we hold that Afoa may register a tract described by the following boundaries, and illustrated in Exhibit A: (1) beginning at the southwestern comer of the Afoa survey (Drawing # 53-15-89), northward along the western boundary of this survey to the southern boundary of the government right-of-way for the paved Taputimu-Vailoa road (i.e., to a point 15 feet south/southeast of the center line of this road); (2) thence northeastward along a line 15 feet from the center line of the paved road (i.e., the southeastern boundary of the government right-of-way) to the intersection of the Taputimu Loop Road; (3) thence northeastward along the southern edge of the Taputimu Loop Road to a point due west of the westernmost point of the Asi claim as depicted in Exhihit 3; (4) thence due east to the westernmost point of the Asi claim as depicted in Exhibit 3; (5) thence south/southeast along the various courses comprising the southwestern and southern boundaries of the Asi claim as depicted in Exhibit 3, to the intersection with the Taputimu Loop Road; (6) thence northwest along the center line of the Taputimu Loop Road to the intersection with the northern boundary of the Asi claim as depicted in Exhibit 3; (7) thence east, southeast, and west along the exterior (northern, eastern, and southern) boundaries of the Asi claim as depicted in Exhibit 3, to another intersection with the Taputimu Loop Road, which is also an intersection with the undisputed portion of the Afoa survey; (8) thence west and northwest along the southern and southwestern boundaries of the Afoa survey, to the aforementioned southwestern comer, with such adjustments as may be necessary to come no closer than fifteen feet to the existing Si'i house.

Asi may register the portion of his claim, as depicted in Exhibit 3, that is to the west of the Taputimu Loop Road. This area is also illustrated in Appendix A.

Although Meleisea and/or Si'i prevailed with respect to part of the land descrihed in their objections, they did not submit surveys. We are also unsure whether the area in the vicinity of the Taputimu-Vailoa road, other than that held to belong to Afoa, belongs to Meleisea or Si'i. Meleisea brought the objection in this area, but it was the Si'i family, in the person of its then senior matai who is the present Meleisea, that authorized the government right-of-way. If either of these families wishes to register its land, therefore, a survey and offer of registration in accordance with A.S.C.A. § 37.0101 will be necessary.

It is so Ordered.

*********

16ASR2d


=SHANTILAL BROTHERS, Ltd., Plaintiff

v.

KMST WHOLESALE, Inc., Defendant

NELSON & ROBERTSON PTV ., Ltd., AMERICAN SAMOA GOVERNMENT, DIOCESE OF PAGO PAGO, and AFOA L.S. LUTU, Intervenors

High Court of American Samoa
Trial Division

CA No. 87-88

September 7, 1990

__________

American Samoa's chattel mortgage statute requires not just that the mortgage contain some language sufficient to put third parties on inquiry, but that it contain a "description" of the "specific" article or articles mortgaged. A.S.C.A. § 27.1510.

The general rule appears to be that notice of an unrecorded mortgage, given to a creditor who has already "fastened his lien upon the property by judgment," comes too late regardless of whether a writ of execution has issued.

The general rule against mortgages of after-acquired real property contains an important exception for cases in which the property to be acquired is described in the mortgage document. A.S.C.A. § 37.1003.

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

Counsel: For Plaintiff, Gata E, Gurr
For Intervenor Nelson & Robertson, John L. Ward II
For Intervenor Afoa L.S, Lutu, Charles V. Ala'ilima

On Motion for Reconsideration:

Intervenor Nelson & Robertson Pty, , Ltd. moves for reconsideration of our holding that plaintiff Shantilal Brothers, Ltd. , is entitled to the proceeds of a judicial sale of certain property belonging to the defendant, This holding was based on our finding that intervenor's chattel mortgage did not contain "a description of the specific article; [or] [16ASR2d104] articles... mortgaged" within the meaning of A.S.C.A. § 27. 1510(c). Plaintiff, a judgment creditor without actual notice of the chattel mortgage, was therefore entitled to execute its .judgment by seizing ;"f'd selling the property to which the mortgage ostensibly applied. Opinion and Order issued June 5, 1990, at p. 6; see A.S.C.A. § 27.1510.

Intervenor has cited authorities for the proposition that most United States .jurisdictions, prior to the enactment of the Uniform Commercial Code, enforced " general" mortgages even against third parties without actual notice thereof. The rationale was that a mortgage applying to all of a person's property, or to all property within a certain class, necessarily provided (constructive) notice with respect to every particular item owned by that person. Such a description, notwithstanding the absence of specificity or detail, was therefore held sufficient to identify the item in question. See, e.g. , Beflflett ~'. Green, 119 S.E. 620 (Ga. 1923) ("[a]11 of the machinery, esome property within a given class ("one bay mare, two mare mules, one horse mule") would be insufficient, since the mortgagor might or might not own other property within the class. See id. at 622. See also Mulphy Hotels Corp. ~'. Central National Bank Savings and Trust Co., 18 F.2d 719 (6th Cir. 1927) ("all the furniture and equipment"); /11 Re Oli~'er C.PU11ley Graflite COIP. , 14 F .Supp 31 (D. Mu. 1936) ("all the tools, machinery. ..."); First National Bank of Panama City ~'. First National Bank (if Chiple)', 106 So. 422 (Fla. 1925); Emick v. S~~'a.tJord, 191 P. 490 (Kans. 1920) ("[a]11 my personal property of every kind and nature") Childre.I'.1' v. Fir.\.' State Bank of Barllhart, 264 S. W. 350 (Ttx. App. 1924) ("[a]lso all other cattle, sheep ").

Other cases, however, held that a general reference to all of a person's property or to all property of a certain class did not constitute a "description" of any particular item. See, e.g. , U.S. v. United Aircraft CoIJ), 80 F. Supp 52 (D. Conn 1948) ("all parts, engines, equipment and accessories" held insufficient); Simofl5ofI v. McHemy, 92 P. 906 (Colo. 1907) ("all bedding, dishes, cooking utensils, together with all things, both useful and ornamental" too general to give third parties adequate notice of the subject property); Farlller's & Merchant '.\. Bank ~'.Stock££lale, 96 N .W .732 (Iowa 1903) ("all other personal property I now own, or in the future may acquire");Fir.\l State Bank ~'. Fir.\.' State Emlk, 32 S. W .2d 378 (Tex. App 1930) (holding insufficient the description "all other cattle" as incapable of giving notice to subse [16ASR2d105]

The task before us, moreover, is not to determine what was the majority rule at common law with respect to general mortgages, or what the best judge-made rule would be. Rather, it is to enforce a particular statute. Our statute, unlike some of those construed by cases from other jurisdictions, requires not just that the mortgage contain some language sufficient to put third parties on inquiry, but that it contain a "description" of the "specific" article or articles mortgaged. The language in intervenor's mortgage apparently intended to apply to items such as those sold by plaintiff was as follows: " All of Mortgagor's furniture, machinery, apparatus, appliances, tools, supplies, materials, trade and other fixtures and equipment, including automotive equipment, now owned or hereafter acquired " While this language is arguably a" description" of sorts, it certainly does not contain a description of any "specific" article or articles, as our statute requires. Indeed, a reference to "all" of a general class of things would appear to be the very opposite of a "description" of a "specific" thing.

Intervenor appeals for a liberal construction of the statute on the ground that plaintiff, like the intervenor itself, is a business entity who lent money to defendant rather than an individual who purchased some mortgaged item. Aside from the difficulty we would have in fashioning a rule that would make general mortgages specific enough to bind creditors but too general to bind purchasers, this hardly appears to be a case in which law is at odds with equity. The record reflects that intervenor made massive extensions of credit to the defendant at a time when it was already deeply in debt to the plaintiff. A few months later--- at a time when there is no evidence that plaintiff had actual knowledge of intervenor's dealings with the defendant---plaintiff brought its claim to judgment. Our mortgage recordation statute creates a narrow exception to the rule that a debtor's property is the pledge of his general creditors. If intervenor had complied with the statute in every particular , its claim would have trumped that of plaintiff even though plaintiff's claim was first in time and was first brought to judgment. Not having complied with the statute, intervenor must take its place in line.

Finally, intervenor argues that even if a general mortgage is insufficient to bind third parties without notice, it is binding on plaintiff because "the Court records in this case clearly reveal [that] Plaintiff had received notice of the Chattel Mortgage when it filed for its second Writ of Execution on December 1, 1989 ." On the contrary, the earliest record evidence we can find of plaintiff's actual knowledge of intervenor's mortgage is a facsimile message from intervenor's counsel to a collec1ion agent for plaintiff, dated about seven weeks after the writ of execution. [16ASR2d106]

It refers to a previous discussion but does not say when this occurred. In any event, the general rule appears to be that notice of an unrecorded mortgage, given to a creditor who has already "fastened his lien upon tl. , property by judgment, " comes too late regardless of whether a writ of execution has issued. See G. Osborlle, Handbook on the Law of Mortgages § 211 at 376 & n.63 (2d ed. 1970), and authorities cited therein.

Intervenor does make one telling criticism of our opinion. Contrary to \V hat we may have implied, the general rule against mortgages of after-acquired real property ~mhoditd in A.S.C.A. § 37. 1003 contains an important exception for cases in which the property to be acquired is described in the mortgage document. The problems posted hy general mortgages on the one hand, and mortgages of after- acquired property on the other, are related but distinct. Having held that the present mortgage does not contain a description of any of the specific articles that \vert seized and sold pursuant to plaintiff's writ of execution, we need not decide whether the rule of A.S.C.A. § 37.1003 should be applied by analogy to personal property, and whether, if so, that rule presents a second ground for the invalidity of the mortgage.

The motion to reconsider is denied.

*********

In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No.4-90

September 10, 1990

__________

Petition by middle aged, able-bodied natural parents to relinquish their parental rights was denied since they failed to show relinquishment was in the best interest of their minor child where her father was gainfully employed and required to pay child support to her under a divorce decree. while her grandmother who wished to adopt her received social security benefits, [16ASR2d107]

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

Counsel: For Petitioner, Isa-Lei F. Iuli

The natural parents petition for the relinquishment of their parental rights. The child is eight years of age and has been living with her maternal grandmother who seeks the adoption. Grandmother is 58 years of age, recently a widow, and currently a recipient of social security benefits. The natural parents, on the other hand, are able-bodied and in their early forties, although they have been divorced since February 27, 1986. The father has been gainfully employed for many years as a technician with the government's television station and e.1ms an annual salary of $00,000.00. He is required to make certain child support payments under the decree of divorce. The natural parents have other grown children; however, the minor is their only remaining dependent.

We have no reason to doubt grandmother's devotion towards her grandchild and her fitness to take care of her. The child may continue to live with the her grandmother as long as the parents agree. However , we are unable to conclude in the circumstances that the child's best interests would be served by granting the petition and thereby terminating the child's right to look to her able-bodied parents for support. Her pending dependency is for many years yet to come.

The petition is therefore denied.

It is so Ordered.

*********

[16ASR2d108]

In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No.25-90

September 10, 1990

__________

Petition by middle aged, able-bodied natural parents to relinquish their parental rights was denied since they failed to show relinquishment was in the best interest of the minor where petitioners, their minor child, and the grandmother wishing to adopt him all lived together, the child was aware of his natural parents, and the parents were gainfully employed while the grandmother received only social security benefits and rental income.

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

Counsel: For Petitioner, Isa-Lei F. Iuli

This is a petition for relinquishment of parental rights in anticipation of adoption of the parties' 6 year old minor child by his paternal grandmother. The primary ground for the petition is that the child has been reared by grandmother who is now 66 years of age, a recent widow, and whose source of income is social security benefits and certain rentals. The natural parents are in their mid-thirties and have both been gainfully employed. We are informed by the home study concluded by the Child Protective Services, Department of Human Resources, that all parties concerned are living together and that the child is aware of her natural parents. The natural father candidly admitted that he and his wife would naturally take over the child's care should grandmother become incapacitated.

The termination of parental rights also means the termination of a parent's legal obligations of support towards the child. The vital concern, therefore, in these matters is whether the child's best interests will be served by granting the petition. We are unable to conclude herein that termination of the parents' legal rights and duties would be in the child's best interests. The child's remaining period of minority is significant; he should be able to look to his relatively younger al1d able parents to provide for his future. The petition is denied.

[16ASR2d109]

It is so ordered.

*********

CAROLYN J. MAHONEY, Plaintiff

v.

JAMES M. MAHONEY, Defendant

High Court of American Samoa
Trial Division

DR No.81-81

September 10,1990

__________

Where a party to a divorce decree issued by the High Court which provided for custody and support of the parties' minor children and a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court declined to exercise jurisdiction on the issues of child support and custody, since the courts of domicile or residence could more effectively enforce terms ensuring the children's welfare and best interests and had a more substantial interest in doing so.

Where a party to a divorce decree issued by the High Court which provided for a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court asserted jurisdiction regarding the property issue since the property in question was still located in American Samoa.

Petition to modify the property settlement agreement in a divorce decree on the ground of mistake was denied where the language of the agreement unambiguously stated that one party would pay a fixed sum to another and did not condition such payment on the successful sale of the 'property in question.

Petition to modify the property settlement provision in a divorce decree on the ground of mistake was denied where the provision was part of a final divorce decree that had settled the property rights of the parties for at least ten years.

Court orders providing for property settlements, unlike orders for alimony, may not be modified by the court to reflect changes in the circumstances of the parties.

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

[16ASR2d110]

Counsel: For Plaintiff, Ellen A. Ryan
For Defendant, John L. Ward II

On Motion to Modify Decree:

The plaintiff herein, now known as Carolyn Kirschman, (hereafter "Kirschrnan") was granted a decree of divorce from the defendant James J. Mahoney (hereafter "Mahoney") on April 22, 1981. The decree provides tor the custody and support of the parties' minor children and also incorporates a property settlement agreement. The property settlement agreement is dated April 22, 1981, and appears to have been signed by both parties and their respective counsel. Clause 4 of this agreement reads as follows: "Defendant shall pay Plaintiff the further cash sum of $6,100.00 within 30 days of the sale of the Sea Ray (boat), but no later than approximately six months from today. "

The parties and their remaining minor child have long since removed from American Samoa ---Kirschman is now domiciled in Missouri while Mahoney has been living in California. Notwithstanding, Mahoney has specifically returned to this jurisdiction to seek a modification of the decree with respect to his obligations under clause 4 of the property settlement agreement, and with respect to continuing child support. He asserts mistake and changed circumstances as grounds for relief. Mahoney has subsequently added a prayer to his petition seeking an amended custody order on the grounds that the minor now desires to live with him. Kirschman, on the other hand, has appeared through counsel opposing the petition on the grounds of forum non conveniens.

On the issue of custody and child support, we decline to exercise jurisdiction. Absent some showing of special need, it should appear fairly obvious that the best interests and welfare of the parties' 16 year old child demands more than an attempt at long distance evaluation. The courts of domicile or residence have a more substantial interest in the welfare of the child, and they would also be more effective at dealing with the child's best interests and welfare from the standpoint of enforcement. Accordingly, the petition is dismissed to the extent that it seeks to modify the provisions of the decree pertaining to custody and child support.

As to the property issue, we assert jurisdiction since the boat, the subject of clause 4, is still located in American Samoa. As we noted above, Mahoney asserts mistake as a ground for modification of clause[16ASR2d111]

4. He testified that the boat was in a damaged condition at the time of settlement, however, tor purposes of resolving the division of the marital asset, they agreed to assign the boat a resale value of$25,000.00. I1ce there was at the time an outstanding $12,000.00 mortgage interest against the boat, Mahoney asserted that the figure of $6,100.00 payable to Kirschman, represented an equal division of the sale proceeds less the mortgage interest (which he had agreed to discharge). According to him, the boat could not be readily be sold, as it had actually sustained more damage than they had suspected, and on-island repair services proved inadequate.

Mahoney stated that he was eventually relocated by his employer; however, prior to his leaving the territory, he managed to conclude a certain "Bill of Sale and Sales Agreement" with a Mr. Crispin and a Mr. Jamieson. Under this agreement, Mahoney transferred all his interest in the boat to Crispin and Jamieson. In return, the latter agreed: to pay Mahoney $10,000 within a year; to put the boat into seaworthy condition and sell the same on open market; and, after deducting the sum of $10,000 paid to Mahoney together with out of pocket expenses incurred by them, the sale proceeds would be divided equally among the three of them. Mahoney duly received the recited $10,000 from Crispin and Jamieson, which money he applied against the mortgaged debt --- now fully discharged. As to the boat, it has yet to be made seaworthy, although Kirschman is still seeking to collect the $6,100.00 payable to her under clause 4.

Mahoney seeks to be relieved of the requirements of clause 4, and in lieu thereof, he proposes to offer plaintiff the entire one-third share of the proceeds he would otherwise be entitle-d to under the agreement with Crispin and Jamieson. He has further suggested that the boat be sold under Court supervision. .

We decline the invitation to be involved with supervising the sale of marital property, and tor reasons set out below, we deny the petition to modify clause 4. In the first place, the claim to mistake rings hollow when viewed in the context of give and take, compromise and settlement. Had the facts turned out differently and the boat actually attracted a sizable profit beyond the parties' anticipation, could Kirschman have similarly asserted mistake and claimed more money than the agreed $6,100.00'? We think not. Quite clearly, the language of clause 4 does not, as Mahoney's claim to mistake seems to presume, condition the payment of the $6,100.00 on a successful and profitable sale of the boat. Rather, Clause 4 of the property settlement agreement simply stipulates [16ASR2d112] that a further payment of $6,100.00 shall be made by Mahoney to Kirschman within a determinate period; that is, "within 30 days of the sale of the boat but no later than approximately six months from today. " (Emphasis added.) If the parties had. indeed, intended some aleatory feature with the provision, they could have easily employed more exact expression. As things stand, there is no ambiguity with the wording of clause 4. Furthermore, this provision has been incorporated as part of a final decree that has, for many years now, settled property rights between two people.

Additionally, while alimony orders have been held to be modifiable (as the parties' circumstances change) and enforceable by contempt proceedings, property orders are not so regarded. Warren v. Wanen. 361 P. 2d 525 (Wyo. 1961 ); Annotation, Alimony as affected by wife's remarriage in absence of controlling specific statute, 48 A. L.R.2d 270, 302 (1956). Clause 4, as incorporated and made a part of the decree, orders the payment of $6,100.00 by Mahoney to Kirschman as a means of carrying out a division of a marital asset---the boat---as distinct from ordering the payment of periodic alimony. As a provision, therefore, pertaining to the division of property, clause 4 may not thus be modified judicially. See also Pierson v. Pierson, 88 N.W.2d 500 (Mich. 1958); Nelson v. Nelson, 182 P.2d 416 (Or. 1947); Austad v. Austad, 269 P.2d 284 (Utah 1954).

The petition is, accordingly, denied. It is so Ordered.

*********

[16ASR2d113]

UTU SINAGEGE and UTU FAMILY, Plaintiffs

v.

PAOLO SIVIA, MOENOA IOPU, and PAOLO FAMILY, Defendants

High Court of American Samoa
Land and Titles Division

LT No.45-90

September 12,1990

__________

Preliminary injunction was granted where plaintiff showed he was likely to prevail on the merits at trial and would suffer great injury before then if defendant was not enjoined from continuing construction of a house on land whose ownership was disputed. A.S.C.A. § 43.1301(j).

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

Counsel: For Plaintiffs, Utu Sinagege R.M.
For Defendants, Togiola T.A. Tulafono

On Motion for Preliminary Injunction:

This matter came on regularly for hearing the II th day of September, 1990, upon plaintiff.'s motion for a preliminary injunction to enjoin the defendants from constructing a FEMA hurricane relief home on a site adjacent to the graveyard situated towards the rear of the respective existing guest houses of the Utu family and Paolo family, in the village of Amouli.

The Court finds sufficient grounds for the issuance of a preliminary injunction. The evidence preponderates in favor of plaintiffs in terms of the likelihood of prevailing on the merits at trial, and after weighing the equities between the parties, it appears likely that great injury will result to the applicant before a full and final trial can he had on the merits. A.S.C.A. § 43.1301(j).

[16ASR2d114]

Accordingly, and pending the final disposition of this matter or further order of this Court,

The defendants and each of them, and those in concert with the defendants, are hereby enjoined from continuing the construction of a FEMA home on that site adjacent to the graveyard situated towards the rear of the respective existing guest houses of the Utu family and Paolo family, in the village of Amouli.

It is so Ordered.

*********

ERNEST THOMPSON, Plaintiff

v.

NATIONAL PACIFIC INSURANCE, Defendant

High Court of American Samoa
Trial Division

CA No.47-90

September 19,1990

__________

Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated by a person under the influence of intoxicating liquor or any drug, but continued coverage provided on behalf of "any other person or party" who proves he did not consent to the vehicle being driven hy the intoxicated driver, "any other person or party" refers to third party beneficiaries rather than the insured.

Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated hy a person under the int1uence, hut continued coverage provided on behalf of third party beneficiaries who did not consent to the vehicle being driven hy the intoxicated driver, defendant insurance company was granted summary judgment against plaintiff insured who had not consented to his intoxicated brother driving the vehicle, since the exception to the exclusionary clause did not apply where the indemnity and/or insurance was provided on behalf of the insured.

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

[16ASR2d115]

Counsel: For Plaintiff, Ellen A. Ryan
For Defendant, John L. Ward II

On Motion for Summary Judgment

Plaintiff Ernest Thompson is the owner of a pick up truck which was damaged in a single vehicle collision. At all relevant times, the truck was insured by defendant National Pacific Insurance and driven hy plaintiffs brother Bert, who was then visiting the island and had taken the vehicle without specifically notifying or asking plaintiff. As a result of the collision, Bert was cited and convicted of the following traffic violations: operating a vehicle without a valid driver's license and operating a vehicle while under the influence of alcohol.

When plaintiff made a claim on his motor vehicle policy for damage to the pickup truck as a result of the collision, defendant denied the claim. The basis for the denial is an exclusionary clause in the policy which, the defendant contends, does not extend coverage to damages occasioned to the truck while it is being operated by a person under the influence of intoxicating liquor, or by a person who is not validly licensed to drive in the territory. In its motion for summary judgment, the defendant cites clause 4 (a) and (e) in the policy, which in pertinent part reads as follows:

THIS POLICY DOES NOT COVER --- 4. Loss damage liability and/or compensation for damage. ..caused whilst the Motor Vehicle--- (a) is being driven by. ..any person under the influence of intoxicating liquor or of any drug provided that this exclusion shall not apply to indemnity and/or insurance provided on behalf of any other person or party if such other person or party proves that he did not consent to the Motor Vehicle being driven by or being in charge of the person when such person was under the influence of intoxicating liquor or of any drug.

[16ASR2d116] is being driven by. ..any person with the consent of the Insured if the driver was not duly authorised under all relevant Laws By-Laws and Regulations to be driving such vehicle for the purpose for which it is being used.

(e)

Discussion

The parties agree that the case is an appropriate one for summary judgment; however, they have differing views on the correct construction of the exclusionary clause. The defendant contends that the policy does not cover damages to the pickup truck arising while the vehicle was being driven by a person under the influence of intoxicating liquor. Plaintiff, on the other hand, reads the proviso attached to clause 4 (a) as having the effect of maintaining coverage in circumstances where an insured can prove that he did not consent to the use of the vehicle by the driver .

On this point, we have to agree with the defendant. The proviso clearly refers only to "indemnity and/or insurance provided on behalf of any other person or party" (emphasis added), whereas in contradistinction, plaintiff is referred throughout the insurance contract as the "insured." The proviso's reference to "any other party" is plainly a reference to third party beneficiaries, not the insured, and thus in the circumstances before us the question of consent or absence of consent has no bearing at all on whether the exclusionary clause 4 (a) applies or does not apply.

We conclude that the damages here claimed are excluded from coverage under the terms of policy. Defendant's motion for summary judgment is granted.

It is so Ordered.

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[16ASR2d117]