18ASR2d

18ASR2d

Papali'i v. Pen,


PAPALI'I E. TAIMALELAGI and FUIMAONO TUPUTALA,
Plaintiffs

v.

IOELU PEN and JOHN'S GENERAL CONSTRUCTION,
Defendants

High Court of American Samoa
Trial Division

CA No. 50-89

March 5, 1991

__________

The court will not enforce claimed partnership gains derived while the parties were in violation of the American Samoa licensing Act. A.S.C.A. §§ 27.0201 et seq.

An agreement to violate or inhibit licensing laws is clearly illegal and contrary to public policy. A.S.C.A. §§ 27.0201 et seq.

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

Counsel: For Plaintiffs, Asaua Fuimaono

  For Defendants, Togiola T.A. Tulatono [18ASR2d83]

Plaintiffs claim that they had agreed with the defendant Ioelu Pen to the formation of a three-way partnership in connection with a certain contract with the Christian Congregational Church in American Samoa (CCCAS) for the construction of certain buildings, and that as a partnership they had also secured another contract with the Government of American Samoa to build certain classrooms for the LupeleleElementary School. Notwithstanding a regular, weekly wage which each had received during the construction period, plaintiffs are claiming, in addition, an equal entitlement to share in any partnership profits for the construction ventures.

Defendant Pen, on the other hand, denies the formation of a partnership; he claims that plaintiffs were at all relevant times under the employ of his family's business, d.b.a. John's General Construction, and licensed under the name of his wife, Mrs. Emma F. C. Pen. In actuality, the parties had worked together over the course of a year on the two different projects under the banner of John's General Construction while also utilizing the pertinent trade licenses that were issued defendant Pen. Finally, Pen also counters that the plaintiffs were adequately compensated for their respective services.

Discussion

I. A Partnership

The partnership claim, even if factually correct, is unenforceable. It was candidly conceded in the testimony for plaintiffs that pending the completion of all the partnership formalities---which included, among other things, the completion of a written partnership agreement and the finalization of a license to do business pursuant to the licensing laws, A.S.C.A. §§ 27.0201 et seq. (hereinafter the "licensing Act")---the parties had agreed to commence the CCCAS contract under Mrs. Pen's business license because of the time delay involved with setting up a duly-licensed business partnership.

But this sort of an agreement would, in effect, be an agreement to disobey the very clear requirements of the licensing Act. Specifically, A.S.C.A. § 27.0219 provides that:

(a) No person may engage in business in American Samoawithout a [business] license. ... [18ASR2d84]

(b) Any person who is required * * * to obtain a license * * * and refuses or fails to obtain the license * * * shall be guilty of a class B misdemeanor.

In addition A.S.C.A. § 27.0212 states that:

Every license [to do business inAmerican Samoa] issued under [the licensing Act] is personal * * * and may not in any circumstances be transferred to any other person....

(emphasis added). Clearly, an agreement between the parties, as a partnership, to start to work under the guise of Mrs. Pen's business license would clearly be a breach of the licensing Act, which not only criminally prohibits anyone from engaging in business without a license but also deems a license to be personal and non-assignable.

Here, the Court is asked to enforce claimed partnership gains derived while in violation of the licensing Act. Such demands are, however, unenforceable, since an agreement to violate or inhibit licensing laws is clearly illegal and contrary to public policy. See 6A Corbin on Contracts § 1510. Fortunately, we need not here confront the "unruly horse"(1) criticism of "public policy," as no clearer statement of territorial public policy can be found regarding the licensing Act than that contained in A.S.C.A. § 27.0201. This enactment reads:

The purpose of this chapter is to provide for the licensing of businesses in theTerritoryofAmerican Samoain order that all the necessary and reasonable control and regulation thereof may be practiced by the government for the protection of the health, welfare, safety and morals of the people ofAmerican Samoa.

(emphasis added). Furthermore, in the context of licensing statutes, the Restatement of Contracts (Second) § 181 provides that: [18ASR2d85]

If a party is prohibited from doing an act because of his failure to comply with a licensing * * * requirement, a promise in consideration of his doing that act or of his promise to do it is unenforceable on the grounds of public policy if

(a) the requirement has a regulatory purpose, and

(b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement.

(emphasis added). The licensing Act's legislative scheme is unmistakably regulatory. As may be noted above from A.S.C.A. § 27.0201, the licensing Act has an overall regulatory purpose relating to the general "health, welfare, safety and morals of the people of American Samoa." This regulatory purpose is also clearly evident in A.S.C.A. § 27.0208, which sets out certain standards relevant to the issuance of business licenses in general, while A.S.C.A. § 27.0207 sets out more specific guidelines relevant in terms of regulating the influx of foreign business ventures. Thus, to enforce the sort of claims asserted by plaintiffs is not only to undermine the licensing Act itself but also those very clear public purposes behind the Act. The crucial significance of these purposes are not difficult to imagine when viewed in the context of a small island territory's social and economic development needs.  See A.S.C.A. § 27.0208(3). At the same time, the licensing Act demands vigilance against allowing business needs to overwhelm the territory's ability to maintain comparable infrastructure.  See A.S.C.A. § 27.0207.

Thus, an agreement by the parties which induces a breach of the licensing Act is unenforceable under either criterion supplied by the Restatement. The licensing Act is not only regulatory in design, but also its underlying public purpose is clearly pervasive and of significant social impact.

We conclude on the foregoing that in a situation of partnership among the parties, any related claims to gain would be unenforceable since the parties were content to undertake business in violation of the licensing Act and the very clear public policy embodied thereunder.

II. An Employment

We also conclude on balance that the evidence preponderates in favor of defendant Pen's version of the facts; that is, his relationship to plaintiffs was that of employer. The evidence had it that Mr. Papali'i's [18ASR2d86] principal duties in relation to the contract jobs was the arranging of immigration clearances for a certain number of labors from Western Samoa as seasonal workers under the sponsorship of John's General Construction. At the same time, plaintiff also claimed that he attended to the transport needs of these particular laborers, to and from the site on a daily basis, with his own personal vehicle.(2)  In turn, Mr. Papali'i was paid a weekly wage of $320.00 or $8.00 per hour until his services were terminated by Mrs. Pen in a letter datedApril 13, 1987.

The evidence also preponderates in favor of defendant Pen's claim that Papa1i'i was paid all that was due to him. As an hourly wage earner, Papali'i was regularly paid 40 hours a week. Such work hours, however, would only accumulate after Mr. Papali'i's regular work day with the American Samoa Government, who was then his full-time employer.

With regard to plaintiff Fuimaono, it was more clear than not on the evidence that Mr. Fuimaono was paid less than what he was entitled to be paid under the laws of American Samoa. The evidence showed, first of all, that Mr. Fuimaono was a master carpenter of noted repute throughout Samoa. Indeed, it was also suggested on the evidence that Mr. Fuimaono' s reported affiliation with John's General Construction had a lot to do with the latter's success in getting the CCCAS contract award. For his labors, however, Mr. Fuimaono was paid the weekly wage of $400.00, representing an hourly rate of $10.00.

Contrary to Mr. Pen 's testimony, Mr. Fuimaono testified that he regularly worked hours in excess of 8 hours a day, but he was never compensated for overtime.(3) We accept Mr. Fuimaono's version of the facts. While defendant Pen presented certain work schedules which purported to consistently show regular 8 hour days, the Court was also confronted with testimony regarding a delay in the timely completion of [18ASR2d87] the CCCAS project in accordance with contract requirements. Indeed, there was period of time where the parties had to accelerate work effort after the CCCAS had reluctantly agreed to grant an extension of time for completion, rather than insisting on liquidated damages. Moreover, after the Lupelele project had started, the parties were in fact involved with undertaking two jobs simultaneously. Fuimaono, as the master carpenter, directed and supervised the work on both projects, and this necessitated his literally having to do shift work. The two projects were concurrently worked on for a period of about five months.

We are satisfied that Fuimaono had worked a number of hours in excess of ordinary or regular working hours. Although Fuimaono estimated uncompensated time to be about 1000 hours, we find those excess hours (compensable pursuant to A.S.C.A. § 32.0323 at the rate of one and a halftimes the regular rate) to be more closer to a total of 800 hours. Accordingly, $12,000.00 is payable to Fuimaono for uncompensated overtime hours; however, $5,850.00 shall be allowed as offset for the monies advanced to Fuimaono over and above the weekly check he had regularly received.

Judgment will accordingly enter in favor of plaintiff Fuimaono against Ioelu Pen and Emma Pen d.b.a. John's General Construction, in the sum of $6,150.00. Plaintiff Papali'i shall take nothing by his complaint.

It is so Ordered.

*********

1. A nineteenth century English judge spoke of "public policy" as "a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail" Burrough, J., in Richardson v. Mellish, 2 Bing. 229, 252, 130 Eng. Rep. 294, 303 (1824).

2. This is hardly persuasive evidence for equal sharing if the performance of these duties represented entirely Mr. Papali'i's partnership share in lieu of capital contribution.

3. A.S.C.A. § 32.0323 states that "[n]o employer may employ and employee in excess of 40 hours per week unless such employee receives compensation tor employment in excess of such weekly hours, at a rate not less than one and a half times the regular hourly rate at which he is employed."

Tuilefano; Rakhshan v.


DAVOUD RAKHSHAN, Petitioner

v.

TUILEFANO VAELA'A, Commissioner of Public Safety and FUE
TUITELELEAPAGA, Warden, Tafuna Correctional Facility,
Respondents

High Court of American Samoa
Trial Division

 

CA No. 104-90

 

February 11, 1991

__________

It is not unreasonable to confine an immigration detainee and other non-dangerous inmates within an enclosed building for two hours a day while a dangerous inmate exercises and attends religious services.

When a dangerous inmate threatens other inmates, he and not the others, should be isolated.

The Government has the discretion to save money by detaining inmates in the Tafuna Correctional Facility, rather than in a high-security institution in the United States, provided that it can do so without violating its constitutional and legal obligations to protect fellow inmates and members of the general public from those whom it has taken within its custody.

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

Counsel: For Petitioner, William H. Reardon

  For Respondent, Aitofele T. Sunia

The Government has filed a response to the Court's order of February 1, 1991, proposing to protect the petitioner from inmate Afoa Mata'itusi by confining Afoa to his cell at all times except for two hours a day, during which he shall do physical exercises and attend religious services. During these times, petitioner "will be inside an enclosed building with other detainees." The government also proposes that when the petitioner himself "comes out to do his exercises, all other inmates are locked in their cells." [18ASR2d47]

Counsel for petitioner has filed a response, suggesting that it is unreasonable to lock petitioner up for two hours every day while Afoa exercises and that Afoa should exercise and attend religious services in his cell. The response also objects to an implication in the Government's submission to the effect that petitioner may be placed in some sort of special confinement not only during Afoa's exercise periods but also at various other times.

The Court approves the Government's proposal, with the following conditions and observations:

1) Contrary to the suggestion by petitioner's counsel, it is not unreasonable to confine petitioner and other non-dangerous inmates within an enclosed building for two hours a day while Afoa does his exercises and attends religious services.

2) As the Court has stated in its previous order, however, petitioner must be allowed the same freedom of movement within the Correctional Facility as is allowed to other non-dangerous inmates. The solution to the problem of threats by certain inmates against others is not to keep the ones who have been threatened in solitary confinement or in some similar arrangement with a different name. If there are other inmates besides Afoa whose criminal record and/or past behavior in prison suggest that they represent a danger to petitioner or to other inmates, they should be confined in whatever way is necessary to protect the other inmates.

3) The Government's proposal states that the two hours designated for Afoa's exercise and religious attendance "will be strictly kept by guards." This is a condition of our approval of the Government's proposal. A further condition is that Afoa be attended by a guard or guards at all times during these designated periods.

4) Afoa and other dangerous inmates must not be allowed access to bush knives or any other sort of knives or potential weapons, either inside or outside their cells.

5) The Commissioner, the Warden, and the Attorney General are ordered to monitor the implementation of this plan at frequent intervals to ensure that petitioner and other non-dangerous inmates are genuinely protected from those whose criminal records and/or other past behavior indicate dangerousness. If at any time it should appear that the Government cannot absolutely ensure the safety of the non-dangerous [18ASR2d48] inmates by segregation of the dangerous inmates within the facility, arrangements shall be made for the immediate transfer of all dangerous inmates to a secure facility in theUnited States or elsewhere.

It is the Court's considered opinion that transferring the handful of really vicious criminals in the Correctional Facility to a secure facility in the United Stateswould be by far the best solution to the present case and to others like it. The Court is informed that the Government has had for some years a Memorandum of Understanding with the federal government allowing for such transfers, and that the Memorandum is renewed every year but that the Government has not exercised its rights under the Memorandum for some years. It appears from the Government's response to our order of February 1 that the Government's reluctance to take this step is motivated entirely by financial considerations. It is undoubtedly less expensive to keep an inmate in the Tafuna Correctional Facility than in a high-security facility of the sort generally deemed suitable for violent criminals. The Government has the discretion to save money in this or in any other way provided that it can do so without violating its constitutional and legal obligations; in this case the obligation to protect fellow inmates and members of the general public from those whom it has taken within its custody. See American Samoa Government v. Agasiva, 6 A.S.R.2d 32 (1987).

The Government generally finds the money to do the things it really wants to do. It is essential that priorities be ordered so as to ensure that the Government's primary functions---and particularly the fulfillment of its constitutional and legal obligations ---are not neglected in favor of more exciting but less important uses of public resources. However, a court should not overrule the discretion of the political branches of government with respect to such ordering until and unless it is clearly shown that this is necessary to protect a constitutional or legal right of a party to a case properly before the Court. In the present case the Government assures us that it can protect the petitioner and others like him without transferring dangerous inmates to a facility designed for such inmates and without unreasonable restrictions on petitioner's freedom of movement within the Correctional Facility. We take the Government at its word. It is essential that this word be kept.

The Government's proposal is approved, with the conditions stated herein.

It is so Ordered.

*********

Tuilefano; Rakhshan v.


DAVOUD RAKHSHAN, Petitioner

v.

TUILEFANO VAELA'A, Commissioner of Public Safety

and FUE TUITELELEAPAGA, Warden,

Tafuna Correctional Facility, Respondents

High Court of American Samoa
Trial Division

CA No. 104-90

January 31, 1991

__________

The Government's right to hold a prisoner gives rise to a correlative duty to protect that prisoner against assault and injury, especially when the prisoner is an immigration detainee who has been convicted of no crime.

A prisoner detained for immigration purposes is entitled to relief from conditions of confinement that include exposure to other inmates of proven vicious temperament.

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

Counsel: For Petitioner, William H. Reardon

  For Respondent, Aitofele T. Sunia

Petitioner, an alien who is being held in connection with deportation proceedings, sued for a writ of habeas corpus. A writ was issued, ordering respondents to produce the petitioner in Court. The respondents appeared as ordered, produced the petitioner, and stated their position that his continued detention was authorized by the immigration statutes and by the Court's orders in the ongoing immigration case, Rakhshan v. American Samoa Government, AP 7-90. The Court continued the hearing, appointed counsel for the petitioner, and ordered the parties to submit briefs with respect to the issues raised by the petition and by the respondents' answers.

Shortly before the new hearing date the Court received a handwritten letter from the petitioner, alleging that another inmate at the [18ASR2d19] Correctional Facility, one Afoa Mata'itusi, had threatened that "he is going to kill me because I am sueing [sic] the warden of C.F." The letter further alleged that Afoa has a spear with which he hunts dogs and cats and that petitioner had reported the threats to the warden but that nothing had been done.

At the continued hearing the Court ruled that the matters in the original petition, having to do with the lawfulness of petitioner's detention itself, had been addressed and resolved in the immigration case and could not now be raised by habeas corpus. The Court continued the hearing yet again, however, so that both parties might address the issues raised by petitioner's letter having to do with the conditions of his confinement.

At the second continued hearing we heard testimony from petitioner himself, from inmate Afoa, and from two other witnesses to Afoa's threats against the petitioner. We find the facts to be as follows:

1) Inmate Afoa Mata'itusi is serving sixty years' worth of consecutive sentences for rape and murder. He raped his step-daughter in 1978 and then murdered a fellow prisoner with a bush knife later the same year .

2) Prior to his two 1978 convictions, Afoa had "a lengthy record ...with the criminal justice system in Western Samoa." American Samoa Government v. Agasiva, 6 A.S.R.2d 32, 37 (1987). The presentence report in the rape case recommended that Afoa not be released for any purpose during his term of confinement, and that he be segregated from the rest of the inmates, "[t]o safeguard the lives of others in the Community as well as inmates.” Id. The Court that sentenced him for murder required that he be confined in a state or federal institution in the United States (as was then done with especially dangerous offenders) pending construction of a new prison facility "that would allow a suitable accommodation for felons of this type." Judgment and Sentence, American Samoa Government v. Mata'itusi, CR No. 45-78 (issuedJuly 6, 1978). The sentence also forbade access to any "work release" programs.

3) Contrary to the Court's order, Afoa Mata'itusi was not sent to an off-island prison. Although he may once have been segregated from other inmates in the territorial correctional facility, by 1987 this was no longer the case. See Agasiva, supra. Indeed, the Court found in 1987---in a case with facts quite similar to those now before us---[18ASR2d20] the Court found that the prison authorities had designated Afoa an informal "matai" with extraordinary quasi-official power over his fellow inmates.Id. at 37-40.

4) In the Agasiva case the Government maintained that Afoa had been thoroughly rehabilitated and was no longer a threat to other inmates. The warden even "presented himself as a character witness for inmate Afoa." Id. at 38. The Court rejected the Government's contention in the strongest possible terms:

[I]nmate Afoa presents a real danger to the defendant from a "physiological and psychological perspective." We find defendant's fears to be objectively demonstrated and they give rise to the situation whereby his term of imprisonment is made more burdensome than the law allows. Inmate Afoa is not only a dangerous felon, but he actively trades on his reputation in order to instill fear and to manipulate a following with certain of the inmate population. His potential for violence is exacerbated and perhaps encouraged with the ostensible imprint of official sanction....

Id. at 39. Specifically, the Court found that Afoa was an "institutional bully" who had recently struck one inmate on the face with a two-by- four, pummeled another with a rock, and "openly threatened to cut up another prisoner." Id. The Court further noted that "[t]he instrument used in the killing for which Afoa was convicted was a bush knife, and testimony had it that Afoa has ready access to such knives.” Id.

5) The Court therefore ordered that Afoa be segregated from the complaining inmate, and that the complaining inmate "shall not as a result thereof be segregated from the remainder of the inmate population.” Id. at 41. In other words, the required insulation of the complainant from Afoa could not be achieved by locking the complainant up in some out-of-the-way place while allowing Afoa to run loose.

6) At the recent hearing, the Government conceded that inmate Afoa, although nominally in "maximum security,” in fact is allowed the run of the correctional facility. It also appears that he is frequently allowed to leave the correctional facility for various purposes.

7) Inmate Afoa did in fact threaten the life of petitioner [18ASR2d21] Rakhshan on at least one occasion. He told some visitors from the Seventh Day Adventist Church that they had better dissuade Rakhshan from suing a certain friend of his, or he, Afoa, would "chop him up."

8) Afoa did make himself a spear, which the Warden has since taken away. However, it appears that Afoa still has access to bush knives.

9) It appears that the prison authorities---including the Warden, who was relieved of his duties for a time after the 1987 "matai system" incident but has since been reinstated---may still regard Afoa as an eccentric but useful fellow who has been unfairly maligned by certain troublesome inmates and by their pesky judicial protectors. Afoa himself testified at the recent hearing. He still regards himself as a matai (an apparent reference to his role within prison society rather than to a formally invested, legally registered matai title) and states that the other prisoners regard him as their leader and that he is the one who teaches them about Samoan customs. He says the prison authorities like him because he always follows the rules. He denies threatening Rakhshan and also denies the rape for which he was originally sent to jail, but freely admits killing another inmate because that inmate was planning to kill him and the Warden. (One of the alleged death threats against Rakhshan has to do with a lawsuit Rakhshan has brought against the Warden.)

The position now taken by the Government on Rakhshan's petition echoes the position the Warden took (and the Court rejected) in the 1987 Agasiva case: that Afoa is thoroughly rehabilitated, a gentle soul who is no threat to anyone except perhaps the occasional dog or cat, and that the real problem in the correctional facility is troublemakers like Rakhshan. Counsel argued that Afoa's recent threat to "chop up" Rakhshan must be understood as a way of "expressing his feelings" rather than as anything to worry about.

This is dangerous nonsense. We agree with the assessment of Chief Justice Miyamoto in 1978, and of Chief Justice Kruse in 1987, that Afoa presents a clear danger to those of his fellow inmates who will not acknowledge his "leadership" or whom he perceives as inconvenient to his friends, who appear to include the prison authorities. We further agree with Chief Justice Kruse's holding in Agasiva that the Government's right to hold a prisoner gives rise to "a correlative duty to protect that prisoner against assault and injury." 6 A.S.R.2d at 39. This is especially true in the case of petitioner Rakhshan, an immigration [18ASR2d22] detainee who has been convicted of no crime.(1)

We conclude that Rakhshan is entitled, as was the petitioner in Agasiva, to relief from conditions of confinement that include exposure to Afoa or to any other inmate of proven vicious temperament. The Government may afford this relief in any of several ways:

1) It may choose to house immigration detainees in a separate facility from convicts;

2) It may transfer inmate Afoa to a genuinely secure facility in theUnited States, as required by his sentence, and make similar arrangements for other dangerous inmates;

3) It may release petitioner Rakhshan pending further deportation proceedings, notwithstanding his earlier bail violation; or

4) It may devise a system by which non-dangerous inmates such as Rakhshan will be protected from dangerous ones such as Afoa. Such a system, as noted by the Court in Agasiva, must operate by restricting the freedom of the dangerous inmates rather than the non-dangerous ones. This would necessitate dramatic changes in the current hotel-like arrangement by which almost all inmates, including recent rapists and murderers, are allowed not only to roam free within the prison grounds but also to come and go on "work release," "home release," or just to run personal errands. It would seem, however, to be the obvious solution to this case and to others like it. [18ASR2d23]

The Government shall report to the Court no later than Thursday, February 7 which of these arrangements it has chosen to make. In the meantime, the Court's interim order that inmate Afoa not be allowed within fifty feet of petitioner Rakhshan remains in force.

It is so ordered.

*********

1. This is not to say that Rakhshan has not brought many of his troubles on himself. His continued presence in the correctional facility is due partly to his having run afoul of the immigration laws, partly to his having violated the terms of a bail that was granted by the Court, and partly to his having asked to be sent to a country whose immigration laws would allow him to apply for asylum and then having rejected a proposed stipulation by which he would be transported to Honolulu in order to present his asylum claim to United States immigration authorities. He also seems to have a real talent for alienating people. None of this, however, can justify conditions of detention which include threats that he will be "chopped up" by someone who has demonstrated the ability and disposition to chop people up. The petitioner in Agasiva had killed a man, and yet the Court held that it was unconstitutional to punish him by exposure to Afoa. 6 A.S.R.2d at 39-40.

Tuika; Sala v.


SALA SALA Jr., Plaintiff

v.

TUIKA TUIKA Jr. and MAFA TUIKA, dba "SIX ELEVEN"

High Court of American Samoa
Trial Division

CA No. 44-90

February 5, 1991

__________

A lease which contains an ambiguous renewal option will be interpreted to give lessee the option to renew, rather than lessor, where renewal term and rent were fixed at the outset.

Lessor's acceptance from the lessee of the very performance envisaged by the renewal option, while at the same time acquiescing in the lessee's continuing possession of the demised premises, constitutes a waiver by the lessors of their right to refuse renewal of the lease by reason of lessee's breach or non-performance.

Where leased premises were substantially damaged by a hurricane and neither lessee nor lessor were obligated under the lease to repair, and did not in fact make such repairs, mutual cancellation or recision of the lease under the circumstances will be inferred.

Absent agreement or statute, the unyielding rule at common law is that the lessor is under no obligation to rebuild or restore premises destroyed without his fault.

If there is no breach of a lease agreement, there can be no claim for which damages may be granted tor lost profits and lost value of leasehold interest.

When lessor takes possession of leased premises and its contents to the exclusion of the lessor, the lessee becomes the bailee of such property and thus hlls a duty to look after it while it remains in his custody.

Where there is no satisfactory explanation or accounting given by the bailee for missing, bailed items, the inference arises that the bailee failed to take due care of the bailor's missing property.

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

Counsel: For Plaintiff, Robert A. Dennison III

  For Defendants, Steven H. Watson [18ASR2d30]

Plaintiff alleges defendant's breach of lease agreement and sues for the following damages: lost profits, lost value of leasehold interest, personal property converted, and unreturned security deposit. Plaintiff also seeks exemplary damages, alleging that defendants' actions were "willful and wanton." The referenced leasehold is embodied in a written "Lease Agreement" entered into by the parties onSeptember 1, 1986, for a stated term of three (3) years. The lease's expiry date is given asSeptember 1, 1989; however, the instrument further provides for:

[an] option to renew for two (2) years, provided that no violations have occurred during the original term of the lease. Parties hereto may re-negotiate [sic] for renewal of this lease should such desire be expressed by Lessee to Lessor in writing within the last 30 days of this lease.

It is the meaning of this provision which is basically the source of the dispute between the parties. The immediate issue is whether or not the lease was renewed ---plaintiff claims that it was, whereas the defendants say that it was not.

I. Renewal

The quoted provision starts out looking like a familiar conditional "option" to renew. However, the immediately succeeding sentence also looks contradictory; it arguably suggests that renewal is subject to the lessors' discretionary cooperation (the parties "may" renegotiate renewal). Indeed, this is defendants' argument. Defendants submit that the option is not really an option and that the lease agreement merely contemplates a renewal if in fact the lessors agree. Defendant Tuika Tuika denied agreeing to a renewal of the lease and explains his acceptance of rent after the expiration of the original term in terms of a holdover tenancy on a month to month basis.

We disagree with defendants' reading of the lease. Although somewhat awkwardly expressed in the instrument,(1) we are satisfied that an option to renew was given to the lessee. The rental clause also contains the following language: [18ASR2d31]

Lessee agrees to pay without demand, to Lessor, as rental for the demised premises the sum of Five Hundred Dollars ($500.00) per month for the first six months, and Seven Hundred and Fifty ($750.00) thereafter until the expiration of five years should Lessee exercise and Lessor accepts the Option. (Emphasis added).

What is quite clear from the above is that both the renewed term (two years) and rent ($750.00 a month) were unambiguously fixed by the parties from the outset. Thus, the provision relating to re-negotiation refers only to those other terms and conditions of the lease, excepting term and rent. Furthermore, the option is not at all contradicted by the language, "the parties may re-negotiate for renewal," because this phrase can only sensibly mean that the parties may either go with the old terms of the lease, or they may re-negotiate where appropriate.

We are also satisfied that the lessor had accepted renewal of the lease. After being informed of the lessee's desire to renew, the lessor continued to accept rent while the lessee continued to remain in possession. Significantly, the rental sum being paid and received was exactly that rental figure stipulated as being payable throughout the renewed period. Having, therefore, accepted from the lessee that very performance envisaged by the renewal option while at the same time acquiescing in the lessee's continuing possession of the demised premises, the lessors cannot now be heard to deny the exercise of the option. Moreover, the inference is compelling; acceptance by the lessors of the lessee's performance also constituted a waiver by the lessors of their right to refuse renewal of the lease by reason of lessee's breach or non-performance.

II. Breach

After expiration of the lease's original term, on September 1, 1989, "at midnight," the lessee duly made the rent payments for the next three months. In January 1990, however, the lessee could only tender the lessors a partial payment on the rent with the explanation that business had been slow over the passing holiday period. In fact, this turned out to be the last payment of rent by the lessee. Hurricane "Ofa " struck in the following month of February, and its high winds tore off some roofing to the demised premises, resulting in extensive water damage to the interior of the premises and much of its contents. The [18ASR2d32] premises remained in that condition for several months thereafter. In the interim, plaintiff was out of business while the defendants were out of rents.

This situation appeared to be fostered in part by the tact that neither party had any clear idea as to each's rights and obligations under the lease. Among other things, the instrument was completely silent on the contingency of ruinous storm damage. In addition, the evidence was also clear that plaintiff’s financial circumstances were such that he was not in a position to undertake any sort of repairs himself. Rather, he could only take a "wait and see" approach as to whether the lessors would repair the roof. The lessors, on the other hand, were similarly looking to the lessee to do the repairs, and when it became apparent that such repairs were unlikely, the lessors began to be more concerned with the likelihood that the lease was coming to an end. This became evident following Tuika Tuika's confronting plaintiff sometime in March about his intentions to recover the premises. Plaintiff told Tuika that he did not have the money to do any repairs. He also informed Tuika about his unsuccessful attempts to find an investor or partner and, indeed, he also solicited Tuika's assistance in this regard. Thus, when plaintiff was seen shortly thereafter to be removing things from the premises, the defendants (again without any clear idea as to rights under the agreement) asserted claims to the furnishings and equipment in the premises as if the lease had concluded.(2)

An argument ensued as to who owned what in the building, and the defendants thwarted any attempts by plaintiff to take anything out of the premises. This triggered plaintiffs filing of suit in which he also sought provisional relief to enjoin the defendants from interfering with his removal of property which he considered was his. Fortunately, with the assistance of counsel, the parties did manage to sort out much of who-owned-what in the premises. Plaintiff, however, is minus two electric organs, two air conditioners, and miscellaneous bar stock which he claims to have been converted by the defendants. [18ASR2d33]

On the foregoing, we conclude that the lease had, for all intents and purposes, come to an end following the destruction of the premises. As noted above, the lease did not provide for the sort of contingency which materialized with hurricane "Ofa." Neither party had any obligation to restore the premises which for all practical purposes was substantially damaged.(3) From plaintiffs financial point of view, the premises may just as well have been totally destroyed as he was in no position whatsoever to take any remedial action. Until restoration of the premises, plaintiff could not get back into business, let alone think about paying up the reserved rent which, incidentally, was payable "without demand."(4) Therefore, as neither party did anything to reinstate the premises, we infer mutual cancellation or rescission in the circumstances.

III. Relief

There being no breach of the lease, plaintiff has no claim for which damages may be granted for lost profits and lost value of leasehold interest. Additionally, we see no basis for exemplary damages. We hold, however, that defendants are liable for plaintiffs missing property. When they took possession of the premises and its contents to the exclusion of plaintiff, a bailment situation arose. Thus as bailee, the lessors owed lessee a duty to look after his property while it remained in their custody. Garcia v. Galea'i, 15 A.S.R.2d 14, 17 (1990). At the same time, the cases have consistently held that a bailee's failure to return the bailor's property upon the latter's demand constituted a prima facie case of culpable negligence. See Annotation, 65 A.L.R.2d 1228, 1233. In the instant matter, there was no satisfactory explanation or accounting given by defendants for the missing bailed items and the inference, therefore, arises that the defendants had failed to take due care [18ASR2d34] of plaintiffs missing property. See Commercial Corp. v. N.Y. Barge Corporation, 314 U.S. 104 (1941). Accordingly, we hold that the defendants are liable in damages to plaintiff for the latter's lost property, to wit; two electric organs (storm exposed), two air-conditioners purchased in 1987 (18,000 btu), and miscellaneous bar stock. We fix damages for the value of these items as follows: the organs, $950.00; the air conditioners, $650.00; and the bar stock, $1,000.00.

We also conclude that plaintiff is entitled to a full refund of the security deposit of $1,000 which he made with the lessors at the outset of the lease. As noted above, the lessee's covenant to repair is limited to damage arising through his use and occupation of the premise excepting damage arising out of "an act of God," from "normal wear and tear," or "reasonable use and wear. ..and damages by elements." See Lease Agreement, clauses 1, 12, and 13. The "wear and tear" exception must be read in context with the lease's underlying purpose---that the demised premise would be used as a "restaurant and bar." In this regard, the public health directives pointed to by defendants as demonstrating pre-hurricane damage hardly revealed anything beyond the sort of wear and tear normally expected from bar patrons. In any event, the extensive damage evident with the demised premises at the time the lessors took over was that occasioned by hurricane "Ofa." This is damage for which plaintiff is not responsible and, thus, defendants' counter-claim for damage to the premises is without foundation. Fair wear and tear to the premises generated by bar patrons was something which the defendants had bargained for in return for rent. On the other hand, hurricane damage was not an obligation bargained for by the lessee.

Plaintiff shall have judgment against the defendants for the sum of $3,600.00 plus court costs. The defendants shall take nothing on the counter-claim.

It is so Ordered.

*********

1. The document looks very much homemade; it obviously reflects a number of different lease precedent forms inartfully put together without too much concern for coherency.

2. Clause 7 of the lease states that "improvement [sic] and repair [sic] permanently attached to the leased premises shall become part of said premises." Similarly, clause 19 provides that "fixtures and attachments" become part of the premises "including bar counter and all parts attached to it, the booths and tables remain with leased premises at the termination of the lease agreement."

3. Lessee's covenant to repair was limited to damage attributed to his use and occupation excepting damage arising out of an "act of God,” see clause 12, and fair, wear, and tear, see clause I. On the other hand, absent agreement or statute, the unyielding rule at common law is that the lessor is under no obligation to rebuild or restore premises destroyed without his fault. See 49 Am. Jur.2d, Landlord and Tenant § 774, at 715.

4. Plaintiff appeared to harbor the misconception that he gained some grace period with late payment of rent when the landlord tailed to timely show up and collect the rent.

Lualemana v. Asifoa,


LUALEMANA E. FAOA, Plaintiff

v.

SOSENE ASIFOA and LEFOTU TUILESU, 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 FET ALAIGA, Defendant

TUANAITAU TUIA, AVA VILI, TOLUAO FETALAIGA 
for themselves and the VILLAGE OF PAVAIAI, 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

[18ASR2d50]

February 11, 1991

__________

Where a motion for reconsideration has been filed after the statutory deadline, the Appellate Division has no jurisdiction to entertain an appeal regardless of any arguments, equitable or otherwise.A.S.C.A. § 43.0802.

Although the statute does not provide a remedy for a situation in which, due to an error on the part of a Court employee or a theft from counsel's Court box a litigant does not receive notice of the judgment until after the ten-day deadline, the Court might, in extraordinary situations, entertain a T.C.R.C.P Rule 60(b) motion and vacate the previous order dismissing the motion for reconsideration for lack of jurisdiction. A.S.C.A. § 43.0802. T.C.R.C.P. Rule 60(b).

Before REES, Associate Justice, TAUANU'U , Chief Associate Judge

Counsel: For Plaintiffs Lualemana E. FaoaLualemana Family, Village of A 'asuTuitele K.A. Le'osoAfoa L.S. Lutu

  For Defendants Sosene Asifoa and Lefotu Tuilesu, Charles V. Ala'ilima

  For Plaintiffs/Defendants A 'oloau Village Council, A.U. Fuimaono and Village of A'oloau, Edwin Gurr

  For Defendant Toluao FetalaigaFai'ivae A. Galea'i

  For Intervenors Tuanaitau TuiaAva ViliTolua Fetalaiga and the Village of PavaiaiTau'ese P. Sunia

  For Intervenors Lepuapua Utu and the Utu Family, Togiola T.A. Tulafono

  For Intervenors Tuilet'an VaelaaTuiagamoaTuiolemotu, and TuitasiTuiasosopo Mariota II

On Motion for Reconsideration:

Our ruling on this motion was announced from the bench on February 5, 1991. This written opinion is issued primarily in order to avoid any future misunderstanding about certain supplemental orders directed to counsel at the time we ruled on the motion. [18ASR2d51]

Facts and Procedural History

As is suggested by its caption, the present motion has had a long and complicated history:

1) The action the motion most directly concerns, LT No.12-87, was filed in 1987. The action was consolidated with other related cases, and the consolidated cases were tried in May 1990. After various post-trial submissions, the case was taken under advisement and judgment was rendered on August 6, 1990. The judgment provided, inter alia, that the present movant Toluao must vacate some land held to belong to various families of the neighboring village of Aoloau onto which he and his agents had entered in or about 1986.

2) Toluao did not file a motion for reconsideration or new trial within the requisite ten days. The timely filing of such a motion is a jurisdictional prerequisite to the filing of an appeal. A.S.C.A. § 43.0802; see Taulaga v.Patea, 17 A.S.R.2d 34 (1990) and authorities cited therein.

3) Toluao did, however, file a motion styled "Motion for Reconsideration and Stay of Execution" on September 10, 1990, twenty-five days after the jurisdictional deadline. This document explained its late filing by reference to the joint representation in the litigation of all the chiefs of the village of Pava'ia'i by a single counsel. This joint counsel had dealt with the chiefs through a single representative, who was alleged not to have notified Toluao of the adverse judgment within the ten-day time limit for filing motions for new trial or reconsideration. (Toluao's September 10 motion was brought by new counsel who had recently been retained byToluao and/or members of his family.)

4) The motion was heard on September 26, 1990. The Court held that the motion for reconsideration must be denied for want of jurisdiction due to the statutory time limit, but that the motion stated possible grounds for relief from the judgment under T.C.R.C.P. 60(b). The Court therefore set the motion for rehearing as a Rule 60(b) motion for relief from judgment.

5) After rehearing and a responsive pleading by counsel for the chiefs of Aoloau, the Court held on December 10, 1990, that the Rule 60(b) motion should be denied. The Court held that Toluao had voluntarily submitted to the arrangement by which one counsel would deal with all the chiefs of Pava'ia'i through a single representative. The [18ASR2d52] Court further found that Toluao had entered into a similar arrangement in a prior case, representing to the Court that he could not afford to hire his own lawyer and that the chief whom he wished to designate to represent his family's interest (the same person who served as representative for the village in the present case) was a close relative of his; that the representative had apparently not consulted Toluao on major decisions during the course of the litigation, but that Toluao had continued to accept this arrangement, even signing his name to a stipulated judgment with which he later said he did not agree. Finally, the Court noted that Toluao had apparently left the island while the case was under advisement and did not allege that he had left the Pava'ia'i representative or counsel any information about how to get in touch with him while he was off-island.

6) On or after December 27, 1990, the presiding judge received a letter purporting to be from Toluao's counsel, suggesting that a decision on the Rule 60(b) motion was long overdue. The tone of this letter was somewhat peremptory. The person who wrote it was either unaware or pretending to be unaware that a decision had been issued some weeks earlier. The letter was prepared for the signature of Toluao's counsel but was signed by one Ropati S. Pene (of whom more later) "for" this counsel. It was not filed with the Clerk but was placed in an envelope and given to a Court employee to be placed in the judge's mail box. The presiding judge received it on January 7, 1991, upon his return from a vacation.

7) The presiding judge, who is also the writer of the present opinion, inquired of the Clerk of Courts whether the decision had been given to Toluao's counsel. The Clerk indicated that a copy of the decision had been placed in counsel's Court box on December 10, the same day it was issued, as is the regular practice. The judge then wrote a memorandum to this effect and directed that it be placed in the Court box of Toluao's counsel, along with a second copy of the December 10 opinion. Shortly thereafter the judge personally checked counsel's Court box to make sure that the memorandum and the attached copy of the opinion had in fact been placed there. This was done on the afternoon of January 7.

8) On or about January 9, Toluao's counsel told the Chief Justice that the December 27 letter: issued under his signature had been written and sent by Mr. Pene without his knowledge, and that he was deeply embarrassed by it. [18ASR2d53]

9) On or about January 10, however, the presiding judge in the present case received a second letter also purporting to be from Toluao's counsel. Like the earlier letter, it bore the typed name of Toluao's counsel on the signature line but was signed with Mr. Pene's name "for" the official signatory. This letter stated, contrary to what counsel had told the Chief Justice, that counsel himself had sent the earlier letter after returning from a trip and learning that there was still no decision on the Rule 60(b) motion. Although quite different in tone than its predecessor, this letter was written in a style which the Court has come to recognize as that of the aforementioned Pene.

10) On January 11 the presiding judge sent counsel a second memorandum. It enclosed a copy of the January 10 letter and stated: "Although it [the letter] purports to be from you, it is not signed by you and I am quite certain it was not written by you. I have serious doubts about whether you are even aware of it." The memorandum requested that counsel inform the judge of the circumstances under which the letter was sent. The judge took the unusual step of having the letter hand- delivered to counsel by the Marshal of the High Court, this apparently being the only way to ensure a response from counsel himself rather than Pene.

11) Early the following week counsel called the Court to request an appointment. Counsel met with the presiding judge later that same week. He explained that he had not known about either the December 27 or the January 10 letters purporting to be from him. He had been off-island on December 27 but had been present on island on January 10. Apparently Mr. Pene had simply taken it upon himself to send this letter without counsel's knowledge.

12) The judge urged counsel to take immediate measures to regain control of his law practice. Particular stress was laid on the Court's need to be certain of two things: (a) that documents placed in the official Court box of a licensed lawyer or legal practitioner would be seen by the lawyer or practitioner himself; and (b) that papers filed with or otherwise given to the Court under the signature of a lawyer or practitioner, even when signed by someone else "for" him, have actually been written---or at least read---by him and represent his considered opinions regarding the matters stated therein. Counsel assured the Court that he would do this.

13) On January 18, 1991, which to the best of the Court's recollection was either the same day or the day after the meeting [18ASR2d54] described above, the present "Motion for Reconsideration" was filed. It asks for reconsideration of the denial of the earlier Motion for Reconsideration, which due to its untimely filing had been treated as a Rule 60(b) motion. Incredibly, the second motion was also filed after any date which could conceivably be considered the deadline for such filing. It was filed not only more than ten days after December 10, 1990---the day of the entry of the order whose reconsideration it seeks, which according to the statute and the precedents construing it is the day from which the ten-day time limit must be counted---but also more than ten days after January 7, 1991, the day the judge personally saw to it that a second copy of the opinion was placed in counsel's box.

14) Along with the present motion, counsel has submitted a copy of our December 10 opinion. This appears to be the copy that was placed in counsel's Court box on January 7. It bears the stamp and signature of the Clerk certifying it to be a true copy and dated "1/7/91." It also bears a copy of the clerk's original stamp dated "12/10/90." Toward the top of the first page, however, in large letters, is the handwritten legend "Received: 1/9/91" followed by what appear to be Mr. Pene's initials. At the hearing on the present motion, counsel stated that his "records" showed that the opinion had not been received until January 9. The implication was apparently that it must be assumed not to have been put in his Court box until January 9 and that the ten days for filing a motion for reconsideration or new trial should be calculated from that day. When the presiding judge stated that he himself had personally seen the opinion in counsel's box on January 7, counsel responded, "It's my word against yours."

Discussion

The motion to reconsider must be denied for want of jurisdiction. A.S.C.A. § 43.0802; seee.g.Taulaga v. PafeasupraFai'ivae v. Aumavae, AP 2-76 (decided December 9, 1977); Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). Because no motion for reconsideration has been filed within the statutory deadline, "the Appellate Division ...has no jurisdiction to entertain an appeal ...regardless of any arguments, equitable or otherwise, to the contrary." Taulagasupra, 17 A.S.R.2d at 35; see Judicial Memorandumsupra, 4 A.S.R.2d at 174; Fai'ivaesupra.

The statute does not appear to provide a remedy for a situation [18ASR2d55] in which, due to an error on the part of a Court employee or a theft from counsel's Court box, a litigant does not receive notice of the judgment until after the ten-day deadline. There might be a way to mitigate this harsh effect in an appropriate situation. If we believed that Toluao's counsel had not received a copy of the December 10 decision until January 7, and if the present motion to reconsider had been filed within ten days of January 7, it is arguable that we could entertain yet another Rule 60(b) motion, vacate our December 10 order, and immediately re-enter it. This would start the statutory deadlines allover again, effectively reinstating the litigant's right to appeal.

Assuming that A.S.C.A. § 43.0802 should not be construed as implicitly prohibiting such a judicial end-run around its provisions, such a course of action should surely be reserved for extraordinary situations in which the equities are quite strong. At the very least, the Court should be reasonably certain that the litigant really did not receive timely notice of the adverse order and that he acted expeditiously as soon as he did receive notice. SeeSpika v. Village of Lombard, 763 F.2d 282, 285 (7th Cir. 1985), and authorities cited therein. Neither of these conditions is met in the present case.

In order to preserve whatever equities he had as of January 7---the day the second copy of the opinion was placed in his Court box--- it was absolutely essential that counsel file his motion to reconsider on or before January 17, which would have been the deadline if the adverse order had not been entered until January 7. (1) Indeed, prudence would [18ASR2d56] have advised filing a motion within a day or two. Instead, counsel (or, it would seem, his associate Pene) inexplicably waited until the eleventh day. Even giving the movant the benefit of every possible doubt about the facts before January 7, this puts him in at least as unfavorable an equitable situation as any other litigant whose counsel simply does not get around to filing a pleading until the day after a jurisdictional deadline. Indeed , the equities here are even weaker, since the present Rule 60(b) proceeding was itself a product of the missing of a jurisdictional deadline on August 16, and a ten-page judicial lecture on the subject of such deadlines had just been received by movant's counsel.

Nor, unfortunately, do we have any confidence in counsel's assertion that our opinion was not received in his Court box on December 10. First, if there is one thing every employee in the Clerk's office has learned to do right, it is to place Court orders in the boxes of the appropriate counsel immediately upon their entry. Second, although we have no reason to doubt counsel's word, it is not his word on which we must rely for the facts regarding what was received from counsel's Court box on or around December 10. This function seems to have been surrendered to Mr. Pene, who, as clearly appears from the record of this case and others, has been acting not as a messenger or a secretary but as a de facto law office under the license and signature of the counsel in question.

Mr. Pene has been perhaps the most frequent litigant in the High Court of American Samoa during the last six or seven years. He has, moreover, not been content to litigate on behalf of himself but has attempted on many occasions to represent other people in Court. He has cited his status as a member of various extended families, as an officer in corporations or a nominal partner in joint ventures, or as a "certified Samoan Court interpreter" or a "Samoan High Chief" in support of his argument that he should be allowed to represent other litigants "pro se, " although he is not a licensed lawyer or legal practitioner. Court files suggest that he has also carried on an active practice outside of court, [18ASR2d57] preparing legal documents and attempting to negotiate with insurance companies. During the mid-1980s the judges of the High Court frequently found themselves in the position of having to counsel, remonstrate with, and finally warn him about these activities. The warnings gradually became more stern, and in 1987 the Attorney General prosecuted him for the illegal practice of law. He was convicted by a jury, and the conviction was upheld on appeal. Pene v. American Samoa Government, 12 A.S.R.2d 43 (1989). He was given a suspended six-month sentence and placed on probation, but he has apparently not learned his lesson.

His latest gambit appears to be the association with counsel for the present movant. This counsel is a licensed legal practitioner. Legal practitioners are persons who have no formal legal education but were admitted to practice before the High Court at a time when there were few trained lawyers in the Territory. Although no new legal practitioners have been admitted since 1982, those who were admitted before that date are permitted to practice in land, matai title, and adoption cases.

Present counsel, a distinguished citizen of the Territory and the holder of a most important matai title, has long been a licensed legal practitioner but had not in recent years carried on an active practice except in occasionalmatai-title cases. This began to change about a year ago, when the Court began receiving pleadings and other papers under counsel's signature whose grammar, diction, and content were remarkably similar to those formerly received under the signature of Mr . Pene. The trademark feature of Mr. Pene's quasi-law practice, then and now, has been multiple duplicative and meritless motions for reconsideration, rehearing, new trial, amendment of judgment, clarification, etc. Missing deadlines is another of his specialties.

The time has come for this to stop. It was painfully obvious at the hearing on the recent motion, as it has been on other occasions, that counsel himself has had little to do with the conduct of the litigation being conducted under color of his license. As we noted in Parisi v. Parisi, 10 A.S.R.2d 106 (1989),

The Court's unwillingness [to allow unlicensed persons to operate as lawyers] ...derives not from enthusiasm for the concept of a lawyers' guild, but from experience with the unhappy results of amateurbarristry. These have included not only artless pleadings and pointless arguments, but also the [18ASR2d58] forfeiture of important substantive and procedural rights through the missing of jurisdictional deadlines or the fatal misconstruction of rules and statutes.

Id. at 111.

Although Parisi was not a case directly involving Mr. Pene, several of the illustrations we used in that case including the one involving "the missing of jurisdictional deadlines" did stem from our experience with his former illegal law practice. See id., 10 A.S.R.2d at 110-11; Lam Yuen v. Leomiti, LT No. 3-87. The present case and Taulagasupra ---a 1990 case in which the Appellate Division dismissed an appeal brought under the name of present counsel because, as in the present case, no timely motion for reconsideration had been filed---illustrate that "the unhappy results of amateur barristry" are the same no matter whose signature is used.

In some circumstances, movant Toluao might be entitled to equitable credit for having been an innocent victim of the Pene deadline- missing machine. It appears from the record, however, that the present motion and its predecessor were generated not by Toluao himself but by none other than Mr. Pene. The first sign of any possible post-judgment motion on behalf of Toluao is a long letter dated September 5, 1990, about a month after the decision was rendered. It is addressed to one of the counsel in the consolidated cases and appears to have been written by Pene. The letter is signed by Pepe Lam Yuen, a close associate of Mr. Pene and evidently the principal occupant of the land now claimed by Toluao. It suggests that its author had been aware of the adverse judgment rendered on August 6 (and of the post-trial motions by other parties) for an unspecified period of time.

Mr. Lam Yuen and Mr. Pene were the co-plaintiffs in Lam Yuen v. Leomitisupra, in which Mr. Lam Yuen unsuccessfully resisted Chief Leomiti's efforts at eviction by alleging, inter alia, that Mr. Pene was his "partner" in a multimillion-dollar "commercial farm" on Leomiti land and that Mr. Pene should therefore be allowed to represent the "partnership" pro se. The evidence in the present case reflects that the Toluao incursions into the landof Aoloau families, apparently spearheaded by Mr. Lam Yuen as agent or licensee for Toluao, began at about the time the Pene/Lam Yuen "partnership" was being evicted from the neighboring land of Leomiti. It also affirmatively appears from the memorandum filed on September 10 in support of the first Motion for Reconsideration that Chief Toluao did not then know about it, although [18ASR2d59] he did later endorse it. The picture that emerges is not of Toluao shopping for a licensed and competent legal practitioner and inadvertently getting Pene, but of Toluao agreeing to join in an effort generated in his name by the team of Pene and Lam Yuen. In any event, as we observed in our opinion denying the first untimely Motion for Reconsideration in this case, "it is an abuse of discretion for the court to use relief from judgment to allow an appeal where the party missed the deadline through his own fault or through the fault of his lawyer." 17 A.S.R.2d 151, 157 (1990) (citing Spika v. Village of Lombardsupra, 763 F.2d at 285), and authorities cited therein. Any remedy Toluaomay have at this point is not against the parties who won the present case but against whoever it was that missed his deadlines for him.

Finally, to the extent that a balancing of equities has any relevance at all to the present motion, it must include an estimate of the likelihood of success on the merits should the jurisdictional issues somehow be avoided. The argument Toluao and/or Pene apparently want to make on appeal is that the various chiefs of Aoloau should not have been allowed to join as one party for the purpose of evicting Toluao's licensees, and/or that the Court should not have ordered such eviction without saying exactly which family or families of Aoloau owned the land. Toluao could have objected to this joinder at trial or at any point prior to trial but did not do so. Indeed, the very best time to object would have been upon the filing of the complaint in LT No. 12-87. At this time Toluao was represented by his own individual counsel, who filed an answer which raised no objection to the chiefs ofAoloau litigating ''as a village" but merely contested on the merits the plaintiffs' assertion that the disputed land belonged to them. (Later, when Toluao's counsel withdrew, he himself decided to join the other chiefs ofPava'ia'i to litigate" as a village.") Moreover, we can conceive of no reason why the various Aoloau litigants, having proved by the preponderance of the evidence that the land belongs to some or all of them rather than toToluao, should be required to litigate any internecine boundary disputes they might have in order to get an injunction against Toluao. The principal witness for the Aoloau parties did describe particular areas within the disputed land belonging to particular families of Aoloau. Their quarrel, however, was with Toluao and with the people he had sent onto their land, not with one another. At least in the absence of any pre-judgment objection from Toluao, the Aoloau plaintiffs were free to prove that the land belongs to one or more of them and not to him, without requiring the Court to decide the precise boundaries among the various co-plaintiffs. Having proved this, they were entitled to the injunction they sought. [18ASR2d60]

Conclusion and Order

The Motion to Reconsider is untimely filed and is therefore denied for want of jurisdiction.

Were we to consider this Motion to Reconsider as a Rule 60(b) motion for relief from judgment, as we did with this movant's previous untimely filed Motion to Reconsider, we would deny it as not showing excusable neglect or any other ground for relief under Rule 60(b). Nor does it appear that there is a substantial likelihood that the movant would prevail on the merits should he be allowed to litigate further.

The following additional orders are entered in order to safeguard the integrity of future communications between counsel and the Court:

(1) Counsel shall authorize no one but himself to retrieve documents from his Court box.

(2) Counsel shall authorize no one but himself to use his signature or to file or send under his name any document addressed to the Court, to other counsel, or to clients or other litigants. In the event it should become absolutely necessary to have any other person sign a document "for" counsel, this should be someone other than Mr. Pene, and such signature should be authorized only on documents that have been read over the telephone or otherwise communicated in their entirety to counsel and specifically approved by him.

(3) Counsel is directed not to sign any document submitted to the Court, to other counsel, or to clients or other litigants unless he has personally read it and it represents his own considered opinion with respect to the matters stated therein.

It is so Ordered.

*********

1. See T.C.R.C.P. Rule 6(a) (emphasis added):

In computing any period of time prescribed . ..by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allotted is less than 7 days, intermediate Saturday, Sundays, and legal holidays shall be excluded in the computation.

The tenth day from January 7, not counting January 7 itself but counting the last day of the ten days, was January 17. This was not a Saturday, a Sunday, or a legal holiday. (It was a Thursday.) Because the period prescribed by the statute, ten days, is not "less than 7 days," it does not matter that there was an intermediate legal holiday on January 15. Nor does it matter whether the order placed in counsel's Court box on January 7 was picked up by counsel on the same day or one or two days later.

Leatumauga; Avegalio v.


FAILAUTUSI AVEGALIO for the HEIRS OF

SEKIO AVEGALIO, Plaintiff/Objector

v.

LEATUMAUGA ENE FALEFIA, Defendant/Claimant

High Court of American Samoa 
Land and Titles Division

LT No. 8-90

January 28, 1991

__________

Once the registered owner of land has shown that the area in controversy is the same land previously registered, the burden then shifts to the challenger, who can only prevail by showing that his family subsequently acquired the land by deed from record owners or by adverse possession. A.S.C.A. § 37.0120.

An individual who claims land as individual property of himself and his siblings, rather than as communal property of an extended family, must overcome the presumption that land in American Samoa is communally owned.

Before REES, Associate Justice, VAIVAO, Associate Judge, LOGOAI, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, Afoafouvale L.S. Lutu [18ASR2d10]

This case is a sequel to Avegalio v. Leatumauga, 9 A.S.R.2d 96 (1988), referred to hereinafter as "the 1988 case." In that case the present objector (hereinafter "Failautusi") sued to enjoin the family of the present claimant (Leatumauga) from occupying land legally registered as property of Failautusi and his brothers and sisters.

Failautusi's 1978 resurvey of the 3-acre tract called Vaosa, which he and his siblings had registered in 1946, showed a Leatumauga tract called Talifia'ai immediately adjoining Vaosa on the seaward side. This resurvey also showed an overlap with a 1974 Leatumauga survey of Talifia'ai, which had been prepared in connection with previous litigation between the same parties.

In the 1988 case Failautusi claimed that the Leatumauga family had recently begun occupying a part of Vaosa, roughly corresponding to the overlap between the 1974 Leatumauga survey and the 1978 Failautusi survey. The Leatumauga family admitted occupying the area in question but denied that Failautusi and his siblings owned this land ---or, indeed, any land at all to the mountain side of Talifia'ai. They contended that the 1978Failautusi resurvey must be in an entirely different place than the land described in the original 1946 survey.

The court held that the 1978 resurvey was, in fact, an accurate retrace of the 1946 survey and that Failautusi and his brothers and sisters owned the land in question. The court therefore enjoined the Leatumauga family from occupying any land within the area covered by the resurvey. 9 A.S.R.2d at 99.

The present dispute is about three small parcels just outside the boundaries of the 1946 and 1978 surveys of VaosaFailautusi claims that he and his brothers and sisters have occupied this land since the 1930s, perhaps because they misunderstood the precise boundaries of the tract their father had purchased. Leatumauga maintains that his family has always owned and occupied these parcels, which adjoin a larger area that is undisputedly the communal land of the Leatumauga family. He contends that his neighbor to the mountain side is the Paogofie family and that the boundary he has drawn reflects the settled understanding of the Leatumauga and Paogoflefamilies. (There are indeed two houses within the registered survey of Vaosa which belong to some people called Nelesoni who are said to be members of the Paogofie family; neither Paogofle nor any member of his family, however, has filed an objection to the Leatumauga survey.) [18ASR2d11]

Failautusi stresses that the three parcels disputed in the present case are outside the 1974 Leatumauga survey of Talifia'ai. He urges that this disproves Leatumauga's contention that his family has long claimed (much less occupied) the areas in question. Although this argument is not without force, it does not preclude Leatumauga from presenting whatever evidence he may have in support of his present claim. Whether Leatumauga can prevail in spite of the disparities between the 1974 survey (ordered by a former Leatumauga who is now deceased) and the more recent one depends partly on the strength of his own evidence and partly on the strength or weakness of Failautusi's opposing case.

In this connection it must be observed that Failautusi's position in the present case is far weaker, and Leatumauga's correspondingly stronger, than in the 1988 case. In that case Failautusi sought only to regain possession of land that had long been registered as the property of his family. The 1946 registration procedure had the effect of precluding later judicial inquiry into the validity of the title registered therein. See Ifopo v. Siatu'u12 A.S.R.2d 24 (1989). Failautusi had only to prove that the land in dispute was the same land he had registered in 1946; the burden then shifted to Leatumauga, who could have prevailed only by showing that his family had subsequently acquired the land by deed from the record owners or by twenty or thirty years' adverse possession.

In the present litigation Failautusi relies not on a deed or recorded title but on a claim of occupation. Because he claims the land as individual property of himself and his siblings rather than as communal property of an extended family, he must overcome the presumption that land in American Samoa is communally owned. Moreover, the land now in dispute appears to be surrounded by land belonging to (or purchased from) communal families of Pava'ia'i and Faleniu. Even if Failautusi and his siblings did occupy parts of it at times since the 1930s, they were almost certainly moving onto land formerly occupied by someone else rather than settling "virgin bush" that had never belonged to anyone. Failautusi can therefore prevail only by showing twenty years of "actual, open, notorious, hostile, exclusive and continuous occupancy"---or thirty years if such possession commenced after 1961. See A.S.C.A. § 37.0120 (as amended in 1982 by P.L. 17-31); id. (prior to 1982 amendment).

Leatumauga, by contrast, is the matai of a communal family of Pava'ia'i which is the undisputed historic owner and occupant of land immediately adjoining the three smaller parcels now in dispute. He has also offered his claim (including these three small parcels) for registration [18ASR2d12] in compliance with the procedures set forth in A.S.C.A. §§ 37.0101 et seq. There has been no objection from anyone other than Failautusi. If, therefore, Leatumauga can present even a minimally plausible claim that his family's historic occupation has included the three disputed parcels and if Failautusi cannot prove a title by adverse possession, Leatumauga must prevail.

One of the three parcels in dispute is a triangular area at the extreme west-northwest of the Leatumauga survey. It adjoins Failautusi's registered survey of Vaosa on the south-southwest. Failautusi concedes thatLeatumauga is the only one with crops in this area but claims that he and his family formerly had crops there and that Leatumauga did not move in until after the 1988 case. Leatumauga claims that he and his family have long occupied the land and that Failautusi and his family never have.

The judges viewed the land. There are taro and banana plants in this area, apparently extending from Leatumauga's plantations to the southeast. Although taro and bananas are annual plants whose appearance is not helpful in determining how long an area has been planted, the adjoining settlements of Failautusi and his family to the north (on Vaosa) and to the southwest (on another parcel called Ulutolu) are quite evident. These settlements appear to have clear and well-established lines of demarcation. The disputed triangle is separated from Ulutolu to the southwest by a stone wall, which the parties acknowledge to be an ancient one. To the north, the neatly kept area surrounding some houses of Failautusi's family is on a slightly elevated plateau that drops off sharply to a sort of no-man's land some distance to the north of the disputed parcel. It thus appears quite unlikely that either of these two settled areas formerly extended into the disputed triangle. The plantings within this triangle are, on the other hand, immediately adjacent to and indistinguishable from other plantings in the heart ofLeatumauga's property, with no apparent natural or man-made boundaries in between. Nor did Failautusi contend that Leatumauga's people had ever physically ousted him or his family; if Failautusi’s family ever did occupy this land, they had apparently abandoned it by 1988. Both the testimonial evidence and the physical appearance of the land are far more consistent with Leatumauga's claim to historic (although perhaps intermittent) occupation than with Failautusi's claim that he and his siblings had exclusive and continuous occupancy long enough to acquire it by adverse possession. We therefore conclude that this parcel belongs to Leatumauga.

The second parcel is an even smaller rectangular area. It is on [18ASR2d13] the Leatumauga side of a straight line that Leatumauga identified as defining most of his boundary with the Paogofie family. This line is also the boundary of the 1946 registered survey of Vaosa. This parcel is adjacent to an area in which there are Leatumauga houses and to another area in which there are houses belonging to the Nelesoni people. It does not appear to be near any areas occupied by Failautusi or his relatives. The evidence preponderates in favor of Leatumauga's claim to this parcel.

The northwestern (that is, inland) portion of the third parcel is the location of a house belonging to a Mr. and Mrs. Pele. Mrs. Pele is a relative of Failautusi. She testified that she and her husband got permission fromFailautusi's father to build a house on this location, have been occupying the present house and its predecessor since 1945, and have never been disturbed in their possession by any Leatumauga people. Leatumauga does not contest the Peles' long presence on the land but contends that they were there by permission of his grandmother, who was then the Leatumauga. Mrs. Pele denies this. The Peles have neither rendered tautua to theLeatumauga family nor otherwise acknowledged any property rights of that family in the land they possess. In these circumstances Mrs. Pele's testimony that she was on the land by permission of her relative Sekio Avegalioand not of an unrelated matai has the ring of truth. We therefore conclude that the heirs of Sekio (i.e., Failautusi and his siblings) acquired ownership of the area surrounding this house in or about 1965 as the result of twenty years' actual, open, notorious, hostile, exclusive and continuous occupancy by Mr. and Mrs. Pele.(1)

Mrs. Pele also testified that she and her family had cultivated the land to the southeastern (seaward) side of her house. She acknowledged, however, that the Leatumauga people had also cultivated this area at various times. All parties acknowledge that the area surrounding the Peles' house is separated from this seaward area by a stone wall. Mrs. Pele says the wall was built by members of her family in 1945; Leatumauga says it is an ancient wall. In either case it appears to be a boundary of long standing. With respect to the area on the seaward side of the Peles' stone wall, Failautusi has not presented evidence sufficient [18ASR2d14] to establish a title by adverse possession.

Accordingly, we hold that all the land within the 1989 Leatumauga survey of Talifia'ai should be registered as the communal property of the Leatumauga family, with the exception of the area in the northwestern corner of the survey, to the northwest of the stone wall in front of the Pele house.

It is so Ordered.

*********

1. We note that the Peles own another house, a short distance to the east of this one, which is on a tract of land the Peles purchased from a matai of Faleniu. It is outside the Leatumauga survey and is in no way involved in the present case.

Laie; In re Matai Title


TAFUA M. SEUMANUTAFA, Claimant

v.

TAFAOA FAAUMU, AUKUSO TUIVETA MISA,

KERETI L. MATA'UTIA, IOELU UTU, TIFILAU LOGONA,

and LIUGALUA TAPUOLA VAITAUTOLU, Objectors

 

[In the Matter of Matai Title "LAIE"

of the Village of Fitiuta]

High Court of American Samoa 
Land and Titles Division

MT No. 5-90

February 9, 1991

__________

The "Sotoa role" for determining the best hereditary right of matai candidates may sometimes be appropriate for clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title.

For the limited purpose of calculating a matai candidate's blood relationship to a title, relation to a former titleholder who never registered the title will be accepted under the limited conditions where: 1) there was no indication that the titleholder was not recognized by the entire family; 2) the titleholder held the title for only three or four years; 3) the idea of title registration was a fairly new practice at the time (1920's or 1930's); 4) transportation between Tutuila (where registration was required to be filed) and Manu'a (where the title was located) was difficult and irregular; and 5) there was no indication of any legal obstacle to his registration of the title.

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

Counsel: For Claimant, Lutu T. Fuimaono

  For Objector Tafaoa FaaumuFaiivae A. Galea'i

  For Objector Aukuso Tuiveta MisaGata E. Gurr & Sala Samiu

  For Objector Kereti L. Mata'utiaTauese P.F. Sunia

"Laie" is a to'oto'o or high talking chief in the village of Fitiuta on the island of Ta'uManu'a[18ASR2d36]

Tafua M. Seumanutafa offered the title for registration in his own name. There were six objectors, and the matter was referred by the Registrar to the Office of Samoan Affairs and thence to the High Court. Two of the objectors failed to appear despite notice, and a third withdrew shortly before the day set for trial. The candidates who appeared at trial were claimant Tafua and objectors TafaoaTuiveta, and Kereti.

I. Motions to Disqualify

Counsel for candidate Kereti moved to disqualify the other three candidates on the ground that none of their petitions contained the signatures of twenty-five blood members of the family who reside in American Samoa, as required by statute. See A.S.C.A. §§ 1.0405(b), 1.0406(b). Counsel for candidate Tafaoa pointed out that this requirement does not apply "[i]n the event the family does not have a sufficient number of members qualified as herein required to support the claim." A.S.C.A. § 1.0405(b); see A.S.C.A. § 1.0405(d).

The difficulty with this argument is that candidate Kereti was able to obtain 158 signatures, all of them apparently valid. The paucity of signatures on the other candidates' lists (at least in the case of Tafaoa and Tuiveta) would appear to be due not to an insufficiency of family members living in American Samoa, but to an insufficiency of family members living in American Samoa who support the candidates in question. This is an important distinction, going to the heart of what the twenty-five signature requirement and the exception to it seem to be about. Also, no candidate submitted an affidavit with his petition attesting to the insufficiency of qualified family members, as is required in order to invoke the statutory exception.

Counsel for candidate Tafua had a somewhat different defense to the twenty-five signature rule: he offered to prove that his candidate had in fact obtained twenty-five signatures but had inadvertently turned in only twenty-three to the Registrar. Counsel showed the Court a document which did contain twenty-five signatures and which he said was Tafua's original petition. For some unexplained reason, the circulators of the petition did not turn in this original but decided to circulate a new one to the same people who had signed the old one. Possibly because two of the signatures on the new petition are so large as to take up two lines apiece, the circulators turned it in to the Registrar with two fewer signatures than were necessary. Counsel requested that we take judicial notice of the two additional names on Tafua's original petition. [18ASR2d37]

Because the motion to disqualify these three candidates was not made until the day of trial, we consolidated our consideration of it with the merits of the case. Because our decision on the merits renders a formal ruling on the motion unnecessary, we make no such ruling. Candidates for matai titles should be advised, however, not to treat the twenty-five signature rule lightly. Its language appears to be mandatory; similar requirements have been held to be jurisdictional. The Court may yet find itself in the unfortunate position of having to disqualify a candidate who would otherwise be held best qualified to hold a matai title.

Counsel for candidate Kereti also made a motion to disqualify candidate Tafua on the ground that he was not born in American Samoa and does not fall within any of the statutory exceptions to the requirement of American Samoan birth. See A.S.C.A. § 1.0403. Apropos of this motion the Court was presented with two birth certificates, one from Western Samoa and one from American Samoa, appearing to attest the birth of a baby with the same name to the same parents on the same day but on different islands. Counsel for Kereti also presented what purported to be a copy of a 1982 letter from the Chief Immigration Officer of American Samoa to his counterpart in Western Samoa, to the effect that Tafua had renounced his American Samoa citizenship and turned in his passport for cancellation. Tafua, however, produced an apparently valid American Samoa passport, bearing his name and picture with a different number than the one mentioned in the letter. Our decision on the merits obviates further inquiry into the various questions raised by these documents, but we thank the candidates for an interesting afternoon.

II. Best Hereditary Right

As with all matai title cases during the last few years, the Court had to decide whether to calculate hereditary right according to the traditional rule---calculating each candidate's descent to the nearest titleholder---or to the "Sotoa rule" by which all candidates' descent is traced from the original titleholder or from a common ancestor of all candidates. The advantage of the latter rule is that it avoids discrimination against clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title. Unfortunately, the candidates often [18ASR2d38] vigorously disagree about the facts that would be necessary to calculate descent from the original titleholder or any other such ancient ancestor. In the present case it seems clear that the first titleholder was called either Laie AlalaieLaie Fiatau, or both, and that he was alive in about 1830. No two candidates agree, however, on who this Laie's children were.

There is closer agreement, although not unanimity, on who has held the title since Alalaie or Fiatau. The candidates agree, with scattered exceptions, that the Laie titleholders through whom the other candidates claim were real people who did hold the title. This militates in favor of the application of the traditional formula.

Tafua claims descent from Laie Fiatau. He traces his ancestry to a great-great-great-great-grandmother called Fesolata'i, whom he says was a daughter of the first Laie. There are no other Laie titleholders in his genealogy. This would give Tafua a 1/128 right to the title under either the traditional formula or the Sotoa formula.

Tafaoa claims that his mother's mother's father was Laie Sione or Tai, who is recognized by all candidates except Tuiveta as having been the second titleholder and the son of Laie Fiatau/Alalaie. Counsel for other candidates suggested that this number of generations (only four since the early 1800s) seems quite small. Assuming that his genealogy is correct, however, Tat'aoa would have a 1/8 connection to the nearest titleholder. He would also have a 1/16 connection to the first titleholder .

Tuiveta Misa is son of Laie Misa. It is clear that Laie Misa held the title briefly about sixty or seventy years ago, just before Laie Aniva. He never registered the title as required by law, for no apparent reason other than that he never got around to it during the three or four years he was holding the title. Registration of matai titles was a fairly new practice, and transportation between Manu'a and Tutuila was difficult and irregular. There is no suggestion that the whole family did not recognize Misa as the Laie during this time, or that there was any other legal obstacle to his registering of the title had he chosen to do so. In these circumstances, and for the limited purpose of calculating Tuiveta's blood relationship to the title, we hold that Misa should be counted as a titleholder. This gives Tuiveta a 1/2 hereditary right to the title according to the traditional formula. (Tuiveta also claims that Laie Misa was one of four children of Faioa, whom he also claims was the only child of Laie Alalaie. The other candidates disagree. If correct, this genealogy would give Tuiveta a 1/8 relationship to the first[18ASR2d39] titleholder.)

Kereti is the son of a daughter of Laie Aniva, whom all candidates recognize as having held the title. This means that his right to the title according to the traditional formula is 114. (Kereti also claims that his grandfatherAniva was the great-great-grandson of Faioa, the daughter of Laie Fiatau. This would give him a 1/128 relationship to the first titleholder.)

We find that Tuiveta prevails on the issue of hereditary right, with a 1/2 relationship to Laie MisaKereti is second, with a 1/4 relationship to Laie Aniva. It is more difficult to evaluate the evidence presented by Tafaoa andTafua, but Tafaoa appears to rank third and Tafua fourth.

III. Support of the Clans

The second statutory criterion is the support of the majority or plurality of the customary clans within the family. The candidates are in hopeless disagreement about how many clans there are in the family, what they are called, and from whence they derived. One reason for this is that Laie Taulago, the most recent titleholder, paid no particular attention to clans in family gatherings and fa'alavelave. This may also have been true under the previous titleholder, Laie Aniva. It is therefore arguable that a custom has evolved within the family whereby the whole family operates as one clan.

It also appears, however, that during the five family meetings held in an effort to choose a successor to Laie Taulago, there were certain recognized hereditary groups or "sides" within the family. Two clear instances of such groups were the descendants of Laie Misa (whose spokesman was Tuiveta) and the descendants of Aniva (whom at least one other candidate referred to as constituting candidate Kereti's "side"). It appears that candidateTafaoa and an elderly chief named Te'i Lanu also represent distinct groups within the famjlyTafaoa identifies himself as being from the Sione or Tai clan, and Te'i is identifIed by candidate Kereti as a member of the Fiatauclan.

Candidate Kereti presented the most comprehensive theory of the operation of customary clans within the Laie family. In his theory there are eight clans, each composed of the descendants of a particular Laie titleholder. Those family members who are descended from more than [18ASR2d40] one titleholder are members only of the clan associated with their most recent ancestor. There is no clan associated with the most recent holder,Taulago, apparently because during his lifetime his children chose to remain active in the clan of his father Aniva. The judges are aware of other families in which clans are derived according to this system or a similar one. We note, moreover, that Kereti's list of clans is virtually identical to that given by Taulago, the victorious candidate in the last Laie title case, MT No. 25-63.

Whether the number of clans is one, three, four, five, or eight, Kereti prevails on the question of clan support. It is clear both from the petitions and from the various accounts of the family meetings that the overwhelming majority of the family supports Kereti. According to a list compiled by Kereti and not effectively contradicted by any other candidate, the 158 signatures on his petition include substantial numbers from each of eight clans. Even if there are fewer than eight clans, and even giving each other candidate the benefit of the doubt with respect to majority support within his own clan---and this includes giving Tafua the benefit of the doubt with respect to the existence of the Fesolata'i clan, which is denied by the other three candidates---Kereti is the only candidate who can demonstrate substantial strength outside his own clan. His support includes, at the very least, the Aniva clan and also the group whose spokesman is Te'i and whom Kereti identifies as the Fiatau clan. These two groups account for thirty-four of Kereti's signatures. No matter how the remaining 124 are divided, it would be difficult for Kereti not to prevail over the other candidates' twenty-three, twenty-two, and fifteen supporters. It is also clear that an overwhelming consensus at most of the family meetings supportedKereti.

We conclude that Kereti prevails on the issue of family support and that the other three candidates are tied for a distant second.

IV. Forcefulness, Character, and Knowledge of Samoan Custom

All the candidates had strong and weak points with respect to the statutory criterion of forcefulness, character, and knowledge of Samoan custom.

Tuiveta is seventy-four years old and presumably has many of the virtues that tend to develop with age. These virtues have unfortunately not been manifested in the family context. Although Tuiveta says he is standing for the title only in order to unite the family, [18ASR2d41] he does not recognize any of the other three candidates (or, by strong implication, either of the last two Laie titleholders) as blood members of the family. His attitude on this and many other questions, moreover, is a vehement one that does not seem to admit the possibility of compromise.

Tafaoa gave long and loyal service to Laie Taulago. The Tafaoa title has an ancient and important relationship to the Laie title, and in this Tafaoa appears to have performed his duties well. His actions have demonstrated his good character more clearly than any words could do. His familiarity with the finer points of Samoan custom and chiefly language, however, is not as well developed as that of the other candidates.

Tafua, notwithstanding any lingering doubts about the matter of his two birth certificates, more than adequately demonstrated his forcefulness and knowledge of Samoan custom. He is perhaps the best speaker among the candidates, has attended college, and has held a number of important positions in the government and in the private sector.

Kereti is also an impressive candidate. Although his illegal use of an unregistered matai title (Tua'au) stands against him, it may be said in mitigation that this was apparently done out of ignorance rather than malice and that there has been no apparent objection to his use of the title until now. This does not appear to have been a situation in which one candidate for a title has deliberately defied the law in order to gain a strategic advantage over his rivals. In general, Kereti is an intelligent and educated man whose character and forcefulness have been demonstrated by success in business and in government service, as well as by his many services to the Laie family.

It is the consensus of the judges that Tafua and Kereti prevail on the issue of forcefulness, character, and knowledge of Samoan custom, followed by Tafaoa and Tuiveta.

V. Value to the Family, Village, and Country

The judges find that Kereti prevails on the fourth criterion, value to the family, village, and country. The factors that entered into consideration of the criterion of forcefulness, character, and knowledge of Samoan custom also figure heavily in the calculation of a candidate's [18ASR2d42] value to the family, village, and country. In addition, Kereti's strong support within the family is a factor that must be considered in estimating his potential value as the Laie.

VI. Conclusion

Kereti prevails over Tuiveta on the second, third, and fourth criteria. Kereti prevails over Tafua on the first, second, and fourth criteria and is tied with him on the third criterion. Kereti prevails over Tafaoa on the first, second, third, and fourth criteria.

We therefore hold that Kereti L. Mata'utia is entitled to hold the Laie title.

It is so Ordered.

*********

K.M.S.T. Inc.; Diocese of Samoa Pago Pago v.


DIOCESE OF SAMOA PAGO PAGO, Plaintiff

v.

K.M.S. T. INC. and JUM YONG JONG, Defendants

NELSON & ROBERTSON PTY., LTD. and 
SHANTILAL BROTHERS, LTD., Intervenors

High Court of American Samoa 
Land and Titles Division

LT No. 18-90

February 13, 1991

__________

In American Samoa, unlike jurisdictions which follow the Uniform Commercial Code, reference in a mortgage to all of a mortgagor's property within a certain class does not amount to a description of each item within the class, sufficient to create a mortgage interest in that property. A.S.C.A. § 43.1510.

A judgment creditor at common law who acquired knowledge of an unrecorded mortgage at any time before executing upon specific property of the debtor would have been bound by the mortgage, unless the jurisdiction had statutory judgment liens; American Samoa has no such statutory judgment liens.

A judgment creditor's lien attaches at the moment he gives his writ of execution, duly issued and describing specific property, to the marshal or other officer who will enforce it. A.S.C.A. § 43.1523.

Inasmuch as I) the holder of an unrecorded or deficiently recorded mortgage could acquire a lien superior to any right of prior unsecured creditors of the mortgagee by properly recording his mortgage, 2) a judgment creditor would appear to be an unsecured creditor until the moment he gives his writ of execution to the marshal, and 3) the American Samoa statute clearly seems designed to make actual knowledge a complete substitute for the constructive knowledge provided by recordation, a mortgage holder's interest would have priority over a judgment creditor the moment that the judgment creditor found out that the mortgage existed, if the deficiency in the mortgage has arisen from nonrecordation or improper recordation. A.S.C.A. § 43.1523.

Where a mortgage document does not describe with sufficient specificity the property mortgaged, no amount of knowledge that the deficient mortgage exists can cure the deficiency; subsequent creditors with knowledge of the deficient mortgage are not bound thereby.

As between two judgment creditors, the one who first levies upon the property has priority, irregardless of the order in which the judgments were obtained. A.S.C.A. § 43.1523. [18ASR2d68]

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

Counsel: For Plaintiff, Charles v. Ala'ilima

  For Defendants, Togiola T.A. Tulatono

  For Intervenor Nelson & Robertson, John L. Ward II

  For Intervenor Shantilal Brothers, Gata E. Gurr

This case concerns some of the same parties as our recent opinion in Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 15 A.S.R.2d 115 (1990). It also presents a slightly different aspect of the same issue: the priority of liens among (1) the named mortgagee in a recorded document purporting to create a mortgage on all or essentially all the property owned by the mortgagor, but not describing any particular thing subject to the mortgage; (2) a judgment creditor of the named mortgagor, who had levied an execution upon certain property of the mortgagor/judgment debtor and caused it to be sold at a marshal's sale; and (3) another judgment creditor who had not levied an execution upon the subject property, but whose judgment was of earlier date than that of the creditor who had executed.

Intervenor Nelson & Robertson, the purported mortgagee, repeats the position we rejected in Shantilal, supra: that a reference ill a mortgage to all a mortgagor's property within a certain class amounts to a description of each item within the class. For reasons we discussed at length in Shantilal, we reject this proposition. The common-law courts were sharply divided on this question. See Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 16 A.S.R.2d 103, 104 (1990), and authorities cited therein. The Uniform Commercial Code resolved the question in other jurisdictions by providing that "any description ...is sufficient whether or not it is specific if it reasonably identifies what is described." U.C.C. § 9-110 (emphasis added). Our Fono chose not to adopt the Uniform Commercial Code but instead to resolve the question just as decisively the other way. The second article of American Samoa 's brief Commercial Code provides that a mortgage or other security device, in order to be effective against the world upon recordation, must "contain[] a description of the specific article, articles, or land ...mortgaged." A.S.C.A. § 43.1510. The mortgage in this case, which was the same one involved in Shantilal, contains no such description.

This case is different from Shantilal, however, in one important respect: the record in that case contained no indication that the levying [18ASR2d69] judgment creditor knew anything about the intervenors' mortgage until after it had secured its writ of execution. In the present case we judicially notice that the levying judgment creditor in this case, the Diocese of Samoa Pago Pago, acquired knowledge of the existence of the mortgage before it secured its writ. We know this because the Diocese was represented in the various hearings having to do with the post-execution motions in Shantilal, at which the present Intervenor's mortgage was the guest of honor. Neither the Diocese nor Shantilal (also an intervenor in the present case) appears to have had any knowledge of intervenor Nelson & Robertson 's mortgage before judgment, however.

Because our statute provides only that certain conditions (including the description of specific items) must be met in order for a mortgage to be valid "as to persons who do not have actual knowledge thereof," intervenorNelson & Robertson argues that this case is distinguishable from ShantilalIntervenor argues that its mortgage became binding on the Diocese as soon as it acquired actual knowledge of the document, notwithstanding that the description of mortgaged goods was insufficient to bind a person without actual knowledge.

Intervenor Nelson & Robertson appears to be correct in its argument that there was no such thing as a judgment lien at common law, and that a judgment creditor who acquired knowledge of an unrecorded mortgage at any time before executing upon specific property of the debtor would therefore have been bound by the mortgage unless he were lucky enough to live in a jurisdiction with statutory judgment liens.  See generally 46 Am.Jur2d, Judgments §§ 237-45. American Samoa has no statutory judgment lien; instead, our statute on execution of judgments strongly implies that a judgment creditor's lien attaches at the moment he gives his writ of execution, duly issued and describing specific property, to the marshal or other officer who will enforce it. A.S.C.A. § 43.1523.  Inasmuch as (1) the holder of an unrecorded or deficiently recorded mortgage could acquire a lien superior to any right of prior unsecured creditors of the mortgagee by properly recording his mortgage, (2) a judgment creditor would appear to be an unsecured creditor until the moment he gives his writ of execution to the marshal, and (3) our statute clearly seems designed to make "actual knowledge" a complete substitute for the constructive knowledge provided by recordation, we conclude that intervenor's mortgage would have become binding on the Diocese the moment it found out there was such a mortgage if the deficiency in the mortgage had arisen from nonrecordation or improper recordation.

The problem with this mortgage, however, was not that it was [18ASR2d70] deficiently recorded. The problem was that it was not a mortgage at all; it did not purport to create a security interest in any particular thing, but in everything. Such documents were never treated as deficiently recorded; rather, they were treated by some courts as perfectly valid and by others as deficient in themselves. Where the problem with a mortgage has to do with the process by which the world is supposed to receive constructive notice of it, it makes sense that actual knowledge should serve as a complete substitute for such constructive notice. When the problem has to do with the inadequacy of the mortgage itself, as is the case with insufficiencies of description, no amount of knowledge that the deficient document exists can cure the deficiency. Seee.g.Arro Oil & Refining Co. v. Montana Dakota Grain Co., 286 P. 1115 (Mont. 1930); Strong City Gin Co. v. Herring & Young, 79 P.2d 582 (Okla. 1938).

The language of our statute, it is true, can be read to contain a negative, pregnant inference that actual knowledge cures any deficiency at all. Because the statute says deficient (or deficiently recorded) mortgages are not binding on persons without actual knowledge, the argument goes, the statute must mean that they are binding on persons with actual knowledge. But such a reading wrenches the language from its purpose. Some of the requisites provided by the statute have to do with the manner of recordation, and we have no doubt that actual knowledge is a substitute for deficiencies in these respects. Others, such as the requirement that the mortgage be in writing, be signed by the mortgagor, and include a description of the specific article or articles mortgaged, go to the essence of the document.

To argue that ally problem in a purported mortgage, not just problems in recordation, can be cured by actual knowledge leads to absurd results. According to this argument, a selectively binding mortgage would be created when a debtor should say to one of his creditors, "Bill, as far as I am concerned your debt is secured by everything I own. I want you to take ahead of everyone else." Assuming that the debtor subsequently refused to put this statement in writing or to sign a writing incorporating its terms, the "mortgage" could never be recorded, for several excellent reasons. To those creditors unfortunate enough to have been within earshot, however, or to be told about the conversation years later just as they were about to hand the marshal their writs of execution, it would be dispositive. The statute, after all, only says that a mortgage must be written and signed in order to be valid as to persons "without actual knowledge. [18ASR2d71]

We reject this approach in favor of one that reads the "actual knowledge" language in light of its purpose. There is no question that the judgment creditors in this case had constructive knowledge of intervenor's mortgage from the moment it was recorded. For the reasons we have set forth in Shantilal, this constructive knowledge made no difference because it was knowledge of a mortgage that did not apply to any particular thing. For the same reasons, the actual knowledge the judgment creditors acquired after they had secured their judgments did not affect their right to execute upon specific property of the debtor.

We hold that the Diocese acquired a lien on the subject property when it gave its writ of execution to the marshal. Shantilal's prior judgment did not give it a lien superior to that of the creditor who levied upon the property first. See A.S.C.A. § 43.1523. Nor did the deficient mortgage or the Diocese's knowledge of it create a prior lien. The Diocese is therefore entitled to the proceeds of the marshal's sale, the total amount of which is smaller than the amount of its judgment against K.M.S.T. The stay of distribution will be denied.

This order is stayed for ten days or until the disposition of any timely filed motion for reconsideration or new trial, whichever comes last.

It is so Ordered.

*********

In re Matai Title “Laie”,


TAFUA M. SEUMANUTAFA, Claimant

v.

TAFAOA FAAUMU, AUKUSO TUIVETA MISA,

KERETI L. MATA'UTIA, IOELU UTU, TIFILAU LOGONA,

and LIUGALUA TAPUOLA VAITAUTOLU, Objectors

 

[In the Matter of Matai Title "LAIE"

of the Village of Fitiuta]

High Court of American Samoa
Land and Titles Division

MT No. 5-90

February 9, 1991

__________

The "Sotoa role" for determining the best hereditary right of matai candidates may sometimes be appropriate for clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title.

For the limited purpose of calculating a matai candidate's blood relationship to a title, relation to a former titleholder who never registered the title will be accepted under the limited conditions where: 1) there was no indication that the titleholder was not recognized by the entire family; 2) the titleholder held the title for only three or four years; 3) the idea of title registration was a fairly new practice at the time (1920's or 1930's); 4) transportation between Tutuila (where registration was required to be filed) and Manu'a (where the title was located) was difficult and irregular; and 5) there was no indication of any legal obstacle to his registration of the title.

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

Counsel: For Claimant, Lutu T. Fuimaono

  For Objector Tafaoa Faaumu, Faiivae A. Galea'i

  For Objector Aukuso Tuiveta Misa, Gata E. Gurr & Sala Samiu

  For Objector Kereti L. Mata'utia, Tauese P.F. Sunia

"Laie" is a to'oto'o or high talking chief in the village of Fitiuta on the island of Ta'u, Manu'a. [18ASR2d36]

Tafua M. Seumanutafa offered the title for registration in his own name. There were six objectors, and the matter was referred by the Registrar to the Office of Samoan Affairs and thence to the High Court. Two of the objectors failed to appear despite notice, and a third withdrew shortly before the day set for trial. The candidates who appeared at trial were claimant Tafua and objectors Tafaoa, Tuiveta, and Kereti.

I. Motions to Disqualify

Counsel for candidate Kereti moved to disqualify the other three candidates on the ground that none of their petitions contained the signatures of twenty-five blood members of the family who reside in American Samoa, as required by statute. See A.S.C.A. §§ 1.0405(b), 1.0406(b). Counsel for candidate Tafaoa pointed out that this requirement does not apply "[i]n the event the family does not have a sufficient number of members qualified as herein required to support the claim." A.S.C.A. § 1.0405(b); see A.S.C.A. § 1.0405(d).

The difficulty with this argument is that candidate Kereti was able to obtain 158 signatures, all of them apparently valid. The paucity of signatures on the other candidates' lists (at least in the case of Tafaoa and Tuiveta) would appear to be due not to an insufficiency of family members living inAmerican Samoa, but to an insufficiency of family members living inAmerican Samoa who support the candidates in question. This is an important distinction, going to the heart of what the twenty-five signature requirement and the exception to it seem to be about. Also, no candidate submitted an affidavit with his petition attesting to the insufficiency of qualified family members, as is required in order to invoke the statutory exception.

Counsel for candidate Tafua had a somewhat different defense to the twenty-five signature rule: he offered to prove that his candidate had in fact obtained twenty-five signatures but had inadvertently turned in only twenty-three to the Registrar. Counsel showed the Court a document which did contain twenty-five signatures and which he said was Tafua's original petition. For some unexplained reason, the circulators of the petition did not turn in this original but decided to circulate a new one to the same people who had signed the old one. Possibly because two of the signatures on the new petition are so large as to take up two lines apiece, the circulators turned it in to the Registrar with two fewer signatures than were necessary. Counsel requested that we take judicial notice of the two additional names on Tafua's original petition. [18ASR2d37]

Because the motion to disqualify these three candidates was not made until the day of trial, we consolidated our consideration of it with the merits of the case. Because our decision on the merits renders a formal ruling on the motion unnecessary, we make no such ruling. Candidates for matai titles should be advised, however, not to treat the twenty-five signature rule lightly. Its language appears to be mandatory; similar requirements have been held to be jurisdictional. The Court may yet find itself in the unfortunate position of having to disqualify a candidate who would otherwise be held best qualified to hold a matai title.

Counsel for candidate Kereti also made a motion to disqualify candidate Tafua on the ground that he was not born in American Samoa and does not fall within any of the statutory exceptions to the requirement of American Samoan birth. See A.S.C.A. § 1.0403. Apropos of this motion the Court was presented with two birth certificates, one from Western Samoa and one from American Samoa, appearing to attest the birth of a baby with the same name to the same parents on the same day but on different islands. Counsel for Kereti also presented what purported to be a copy of a 1982 letter from the Chief Immigration Officer of American Samoa to his counterpart in Western Samoa, to the effect that Tafua had renounced his American Samoa citizenship and turned in his passport for cancellation. Tafua, however, produced an apparently validAmerican Samoa passport, bearing his name and picture with a different number than the one mentioned in the letter. Our decision on the merits obviates further inquiry into the various questions raised by these documents, but we thank the candidates for an interesting afternoon.

II. Best Hereditary Right

As with all matai title cases during the last few years, the Court had to decide whether to calculate hereditary right according to the traditional rule---calculating each candidate's descent to the nearest titleholder---or to the "Sotoa rule" by which all candidates' descent is traced from the original titleholder or from a common ancestor of all candidates. The advantage of the latter rule is that it avoids discrimination against clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title. Unfortunately, the candidates often [18ASR2d38] vigorously disagree about the facts that would be necessary to calculate descent from the original titleholder or any other such ancient ancestor. In the present case it seems clear that the first titleholder was called either Laie Alalaie, Laie Fiatau, or both, and that he was alive in about 1830. No two candidates agree, however, on who this Laie's children were.

There is closer agreement, although not unanimity, on who has held the title since Alalaie or Fiatau. The candidates agree, with scattered exceptions, that the Laie titleholders through whom the other candidates claim were real people who did hold the title. This militates in favor of the application of the traditional formula.

Tafua claims descent from Laie Fiatau. He traces his ancestry to a great-great-great-great-grandmother called Fesolata'i, whom he says was a daughter of the first Laie. There are no other Laie titleholders in his genealogy. This would give Tafua a 1/128 right to the title under either the traditional formula or the Sotoa formula.

Tafaoa claims that his mother's mother's father was Laie Sione or Tai, who is recognized by all candidates except Tuiveta as having been the second titleholder and the son of Laie Fiatau/Alalaie. Counsel for other candidates suggested that this number of generations (only four since the early 1800s) seems quite small. Assuming that his genealogy is correct, however, Tat'aoa would have a 1/8 connection to the nearest titleholder. He would also have a 1/16 connection to the first titleholder .

Tuiveta Misa is son of Laie Misa. It is clear that Laie Misa held the title briefly about sixty or seventy years ago, just before Laie Aniva. He never registered the title as required by law, for no apparent reason other than that he never got around to it during the three or four years he was holding the title. Registration of matai titles was a fairly new practice, and transportation between Manu'a and Tutuila was difficult and irregular. There is no suggestion that the whole family did not recognize Misa as the Laie during this time, or that there was any other legal obstacle to his registering of the title had he chosen to do so. In these circumstances, and for the limited purpose of calculating Tuiveta's blood relationship to the title, we hold that Misa should be counted as a titleholder. This gives Tuiveta a 1/2 hereditary right to the title according to the traditional formula. (Tuiveta also claims that Laie Misa was one of four children of Faioa, whom he also claims was the only child of Laie Alalaie. The other candidates disagree. If correct, this genealogy would give Tuiveta a 1/8 relationship to the first [18ASR2d39] titleholder.)

Kereti is the son of a daughter of Laie Aniva, whom all candidates recognize as having held the title. This means that his right to the title according to the traditional formula is 114. (Kereti also claims that his grandfather Aniva was the great-great-grandson of Faioa, the daughter of Laie Fiatau. This would give him a 1/128 relationship to the first titleholder.)

We find that Tuiveta prevails on the issue of hereditary right, with a 1/2 relationship to Laie Misa. Kereti is second, with a 1/4 relationship to Laie Aniva. It is more difficult to evaluate the evidence presented by Tafaoa and Tafua, but Tafaoa appears to rank third and Tafua fourth.

III. Support of the Clans

The second statutory criterion is the support of the majority or plurality of the customary clans within the family. The candidates are in hopeless disagreement about how many clans there are in the family, what they are called, and from whence they derived. One reason for this is that Laie Taulago, the most recent titleholder, paid no particular attention to clans in family gatherings and fa'alavelave. This may also have been true under the previous titleholder, Laie Aniva. It is therefore arguable that a custom has evolved within the family whereby the whole family operates as one clan.

It also appears, however, that during the five family meetings held in an effort to choose a successor to Laie Taulago, there were certain recognized hereditary groups or "sides" within the family. Two clear instances of such groups were the descendants of Laie Misa (whose spokesman was Tuiveta) and the descendants of Aniva (whom at least one other candidate referred to as constituting candidate Kereti's "side"). It appears that candidate Tafaoa and an elderly chief named Te'i Lanu also represent distinct groups within the famjly. Tafaoa identifies himself as being from the Sione or Tai clan, and Te'i is identifIed by candidate Kereti as a member of the Fiatau clan.

Candidate Kereti presented the most comprehensive theory of the operation of customary clans within the Laie family. In his theory there are eight clans, each composed of the descendants of a particular Laie titleholder. Those family members who are descended from more than [18ASR2d40] one titleholder are members only of the clan associated with their most recent ancestor. There is no clan associated with the most recent holder, Taulago, apparently because during his lifetime his children chose to remain active in the clan of his father Aniva. The judges are aware of other families in which clans are derived according to this system or a similar one. We note, moreover, that Kereti's list of clans is virtually identical to that given by Taulago, the victorious candidate in the last Laie title case, MT No. 25-63.

Whether the number of clans is one, three, four, five, or eight, Kereti prevails on the question of clan support. It is clear both from the petitions and from the various accounts of the family meetings that the overwhelming majority of the family supports Kereti. According to a list compiled by Kereti and not effectively contradicted by any other candidate, the 158 signatures on his petition include substantial numbers from each of eight clans. Even if there are fewer than eight clans, and even giving each other candidate the benefit of the doubt with respect to majority support within his own clan---and this includes giving Tafua the benefit of the doubt with respect to the existence of the Fesolata'i clan, which is denied by the other three candidates---Kereti is the only candidate who can demonstrate substantial strength outside his own clan. His support includes, at the very least, the Aniva clan and also the group whose spokesman is Te'i and whom Kereti identifies as the Fiatau clan. These two groups account for thirty-four of Kereti's signatures. No matter how the remaining 124 are divided, it would be difficult for Kereti not to prevail over the other candidates' twenty-three, twenty-two, and fifteen supporters. It is also clear that an overwhelming consensus at most of the family meetings supported Kereti.

We conclude that Kereti prevails on the issue of family support and that the other three candidates are tied for a distant second.

IV. Forcefulness, Character, and Knowledge of Samoan Custom

All the candidates had strong and weak points with respect to the statutory criterion of forcefulness, character, and knowledge of Samoan custom.

Tuiveta is seventy-four years old and presumably has many of the virtues that tend to develop with age. These virtues have unfortunately not been manifested in the family context. Although Tuiveta says he is standing for the title only in order to unite the family, [18ASR2d41] he does not recognize any of the other three candidates (or, by strong implication, either of the last two Laie titleholders) as blood members of the family. His attitude on this and many other questions, moreover, is a vehement one that does not seem to admit the possibility of compromise.

Tafaoa gave long and loyal service to Laie Taulago. The Tafaoa title has an ancient and important relationship to the Laie title, and in this Tafaoa appears to have performed his duties well. His actions have demonstrated his good character more clearly than any words could do. His familiarity with the finer points of Samoan custom and chiefly language, however, is not as well developed as that of the other candidates.

Tafua, notwithstanding any lingering doubts about the matter of his two birth certificates, more than adequately demonstrated his forcefulness and knowledge of Samoan custom. He is perhaps the best speaker among the candidates, has attended college, and has held a number of important positions in the government and in the private sector.

Kereti is also an impressive candidate. Although his illegal use of an unregistered matai title (Tua'au) stands against him, it may be said in mitigation that this was apparently done out of ignorance rather than malice and that there has been no apparent objection to his use of the title until now. This does not appear to have been a situation in which one candidate for a title has deliberately defied the law in order to gain a strategic advantage over his rivals. In general, Kereti is an intelligent and educated man whose character and forcefulness have been demonstrated by success in business and in government service, as well as by his many services to the Laie family.

It is the consensus of the judges that Tafua and Kereti prevail on the issue of forcefulness, character, and knowledge of Samoan custom, followed by Tafaoa and Tuiveta.

V. Value to the Family, Village, and Country

The judges find that Kereti prevails on the fourth criterion, value to the family, village, and country. The factors that entered into consideration of the criterion of forcefulness, character, and knowledge of Samoan custom also figure heavily in the calculation of a candidate's [18ASR2d42] value to the family, village, and country. In addition, Kereti's strong support within the family is a factor that must be considered in estimating his potential value as the Laie.

VI. Conclusion

Kereti prevails over Tuiveta on the second, third, and fourth criteria. Kereti prevails over Tafua on the first, second, and fourth criteria and is tied with him on the third criterion. Kereti prevails over Tafaoa on the first, second, third, and fourth criteria.

We therefore hold that Kereti L. Mata'utia is entitled to hold the Laie title.

It is so Ordered.

*********

Holland v. Haleck's Island Motors,


JACK and JOAN HOLLAND, Plaintiffs

v.

HALECK'S ISLAND MOTORS, Defendant

High Court of American Samoa 
Trial Division

CA No. 95-89

January 22, 1991

__________

Plaintiff has a right of direct action against an insurance company. A.S.C.A. § 29.1537. [18ASR2d3]

It is a well-settled rule of law that an ordinary bailee is not an insurer of bailed property absent statute or express agreement but is liable only for loss resulting from his negligence in caring for and protecting the bailed property.

In the case of a mutual bailment, it has been said that a bailee, in relation to the property bailed, is held to a duty of ordinary care.

In the case of a mutual bailment, many courts have held that a prima facie case of negligence or breach of contract will have been established against the bailee where a bailor has shown: (1) a bailment, (2) delivery of property to the bailee, and (3) failure of the bailee to redeliver the property undamaged.

In the case of a mutual bailment, in order to avoid liability under either a negligence or breach-of-contract theory, a bailor must provide a lawful excuse for non-return of the property or otherwise explain that damage to the property was not owing to his lack of due care.

In a bailment for mutual purposes, a bailee will be held to a higher standard of care if he has either agreed to assume a greater liability or he is one of those special bailees, such as common carriers and innkeepers, upon whom the law has imposed a strict rule of liability on grounds of public policy.

To escape liability in a mutual-bailment situation, a bailee should either go forward with exculpatory evidence accounting for the property or with evidence which exonerates him of fault.

bailee for mutual purposes is under no legal obligation to insure.

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

Counsel: For Plaintiffs, Robert A. Dennison III

  For Defendant, John L. Ward II

Plaintiffs, Jack and Joan Holland, owned a certain motor vehicle which they had left with the defendant Haleck's Island Motors (hereafter "Haleck's") for servicing. Haleck's is an American Samoan corporation registered under the name Island Nissan Subaru, Inc., and it carries on business in Pavaia'i as a dealer and repairer of automobiles. While the subject vehicle remained in Haleck's possession, it was destroyed by a fire which completely consumed the building in which Haleck's was located.

Plaintiffs seek recovery from Haleck's and its insurer, Royal [18ASR2d4] Insurance Company,(1) for the value of the lost vehicle. They assert a bailment contract and further submit that Haleck's failure to return the bailed property, after demand had been made for its return, constituted, prima facie case of actionable breach of bailment." Alternatively," plaintiffs allege "that [Haleck] was negligent in the performance of it [sic] obligations to Plaintiff under the [bailment] contract.” (Amended complaint, paragraph 4).

There is no dispute that the facts here depict a bailment for mutual purposes between plaintiffs and Haleck's. At the same time, the parties also acknowledge the well-settled rule of law that an ordinary bailee is not an insurer of bailed property absent statute or express agreement. A bailee, however, is liable only for loss resulting from his negligence in caring for and protecting the property bailed.(2) Garcia v. Galea'i, 15 A.S.R.2d 14, 17 (1990). In the case of a mutual bailment, it has been said that a bailee, in relation to the property bailed, is held to a duty of "ordinary care, " that is, "that degree of care, attention, or exertion which, under the actual circumstances, a man of reasonable prudence and discretion would use in reference to the particular thing if it was his own property, and failure to do so would render him liable." Rice Oil Co. v. Atlas Assurance Co., 102 F.2d 561, 574 (9th Cir. 1939). It is that measure of care which "ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances.” Garcia v. Galea'i, supra at 17. See also 8 C.J.S., Bailments § 27; 8 Am. Jur.2d, Bailments § 221-222.

Whether the action here is viewed as one based on negligence or on breach of contract, the courts have held in many instances that a prima facie case of negligence or breach of contract will have been established against the bailee where a bailor has shown: 1) a bailment, 2) delivery of property to the bailee, and 3) failure of the bailee to redeliver the property undamaged. See Am. Jur.2d, Bailments § 329, at 1066; 8 C.J.S. Bailments, § 50(2), at 518; Annotation, 65 A.L.R.2d [18ASR2d5] 1228, 1233. The underlying policy reasons here have been explained as follows:

[T]he law takes into account the relative opportunity of the parties to know the fact in issue and to account for the loss which it is alleged is due to the breach. Since the bailee in general is in better position than the bailor to know the cause of the loss and to show that it was 
one not involving the bailee's liability, the law lays on him the duty to come forward with the information available to him.

Commercial Corporation v. N.Y. Barge Corporation, 314 U.S. 104, 111 (1941) (citations omitted). It therefore follows that the bailee, in order to avoid liability under either theory, must provide a lawful excuse for non-return of the property or otherwise explain that damage to the property was not owing to his want of due care. Otherwise, as the Supreme Court further noted,

the trier of fact [is free] to draw an inference unfavorable to [the bailee] upon the bailor's establishing the unexplained failure to deliver the goods safely.  Whether we label this permissible inference with the equivocal term "presumption" or consider merely that it is a rational inference from the facts proven, it does no more than require the bailee, if he would avoid the inference, to go forward with evidence 
sufficient to persuade that the non-existence of the fact, which would otherwise be inferred, is as probable as its existence.

Id. (citations omitted). See also Am. Jur.2d, Bailments §§ 323, 326, 327.

In the matter before us, there being no suggestion in the evidence of misdelivery or conversion, the prima facie case to be met by Haleck's, whether under plaintiffs contract theory or negligence theory, is culpable negligence or absence of ordinary care.(3) Having said as [18ASR2d6] much, this is not to say, however, that the law thereby requires "that the bailee must affirmatively prove a negative to the effect that he was not guilty of negligence." McKeever v. Kramer, 218 S.W. 403, 405 (Mo. App. 1920). "Under such circumstances it is the duty of the defendant to account for the loss of the goods, and to show that the loss was occasioned by some act such as theft, fire, etc., in which event prima facie this is an exoneration, and it is not his duty to further prove affirmatively that he is guilty of no negligence." Id. Thus, a bailee should either go forward with exculpatory evidence accounting for the property, or with evidence which exonerates him of fault. See also Am. Jur.2d, Bailments § 333 at 1074. This "does not cause the burden of proof to shift, and if the bailee does go forward to raise doubts as to the validity of the inference, which the trier of fact is unable to resolve, the bailor does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start." Commercial Corporation v. N. Y. Barge Corporationsupra 314 U .S. at 111.

In the instant matter, the defense argues that no inference of undue care on the part of Haleck's may be drawn from the facts surrounding the occurrence of the fire. (4) The evidence shows that the fire broke out in the early hours of the morning, at a time when the premises are normally left unoccupied. Mr Dave Haleck, Vice President for Haleck's, testified that he was alerted to the fire by a telephone operator who had called him at aboutone o'clock in the morning to advise that the supermarket building was on fire. He stated that when he arrived at the scene, there were fire trucks already there engaging the [18ASR2d7] fire. By that time, the fire, according to Mr. Haleck, was very intense as he could feel the heat from across the road where he had stopped his car, and he noted that the fire was progressing from the building's western end, where Haleck'sshowroom was located, towards its eastern end. He also went to the back to check on the other side of the buildings, where he found one of the resident employees hosing down the adjoining supermarket building.

Notwithstanding the efforts of the Fire Division, the consequence of the fire was the total destruction of the entire building.(5) Significantly, those efforts were undoubtedly hampered because the fire hydrants located directly opposite the burning structure were hopelessly lacking in water. This calamitous state of affairs, in turn, necessitated a time loss with the pick-up of water from other and distant locations.

An adjuster, a Mr. Stanley Chung of Honolulu, employed by the insurance company to investigate the fire, had earlier deposed that he ruled out electrical fault as being the cause of the fire. As he had found that all the circuit breakers for the building were still in the "on" position, this led him to believe that none of the wiring in the building had short-circuited. He further concluded after sifting through the various levels of burn debris that the fire had originated on the second floor of the building in a room above Haleck's premises. Mr. Chung, however, could find no evidence pinpointing the actual cause of the fire.

At the time of the fire, plaintiffs' vehicle was stored at the rear of the building where the automobile repair shop was located. The automobile repair shop was actually a lean-to against the main building; however, it was secured at nights by fencing and adjacent buildings. As might be expected of any similar business, Haleck's kept its premises reasonably secured and locked at nights, and the area was also well lighted both to the rear and front of the building. Although Haleck's did not employ a night watchman, Mr. Otto Haleck did have certain employees quartered in two residential homes within his property and adjacent to his various business enterprises.

In our view, the evidence presented in this matter was not inconsistent with due care on the part of Haleck's. At all relevant times, plaintiffs' vehicle was secured in a locked, fenced, and well-lighted area. [18ASR2d8]Unfortunately, a fire of unknown causes broke out late at night and totally destroyed Haleck's premises and contents. The efforts of fire fighters were significantly curtailed because fire hydrants in the area lacked water. We conclude that these are circumstances more consistent with exoneration rather than fault.

Plaintiffs also submit that the absence of such things such as a night watchman, fire detection devices and alarms, sprinklers and more extensive fire fighting equipment constituted negligence on the part of Haleck's. We disagree. Whether the presence of such things could have mitigated or prevented plaintiffs' loss is at best a matter of speculation. The fire was intense and spread very rapidly, and there was realistically very little to be done in way of containing it, given the hydrants' lack of water. Secondly, negligence presumes a duty of care, and, as we noted at the outset, the duty of care which the law imposes upon a bailee (in the context of a bailment for mutual purposes) is that degree of care which ordinarily prudent men would exercise in caring for their own property. We hold, bearing in mind that a bailee for mutual purposes is not an insurer, that Haleck's failure to have the sort of fire detection devices and alarms advocated by plaintiffs did not amount to negligence on the part of Haleck's. To find otherwise would be tantamount to imposing a very high degree of care, approaching that of requiring a bailee for mutual purposes to employ every precaution available for the protection of bailed property.

Finally, plaintiffs also contend that Haleck's had a duty to insure for their benefit. The argument here curiously appears to be based on the fact that Mr. Dave Haleck had thought that such insurance coverage had been procured. As it turns out, this belief was not only mistaken but entirely without foundation. Mr. Haleck also acknowledged that he had nothing to do with the negotiation and procurement of insurance, and that the matter of insurances for the various Haleck-affiliated businesses was actually handled by another corporate official, the controller.(6) In any event, the submission is at odds with the law. Unless plaintiffs can point to a governing statute, to an agreement to insure, to some custom or usage of trade, or to a course of dealings between the parties which [18ASR2d9] manifests an understanding that insurance would be provided, Haleck's, as a baileefor mutual purposes, was under no legal obligation to insure. Annotation, 44 A.L.R.3d 513.

For reasons given, judgment will be in favor of the defendants.

It is so Ordered.

*********

1. The insurance company was .joined under A.S.C.A. § 29.1537 which permits plaintiff a right of direct action. See Holland v. Haleck's Island Motors15 A.S.R.2d 44 (1990).

2. Unless he has either agreed to assume a greater liability or he is one of those special bailees, such as common carriers and innkeepers, upon whom the law has imposed a strict rule of liability on grounds of public policy. 8 Am Jur 2d, Bailments §§ 215, at 941.

3. Some cases have also suggested a distinction between pleading under a contract theory and pleading under a negligence theory. That distinction is said to be the difference between proving an affirmative defense for failure to redeliver the bailed article and the rebuttal of an evidentiary presumption of negligence. In a contract case, the burden is said to remain with the bailee to prove that the bailed article was destroyed without his fault; however, where negligence is alleged, the burden is on the bailorSee Am. Jur.2d, Bailments §§ 327; Annotation, 65 A.L.R.2d, 1228, 1242; 44 A.L.R.3d 171, 201. The immediate criticism with this rule, of course, is that the ultimate burden of persuasion is made dependent on the niceties of pleading.

4. Although a great number of cases have held that proof of destruction by fire is sufficient to rebut a presumption of undue care, the courts have in some other cases taken the view that proof of fire is not in itself sufficient rebuttal and that the bailee had to go forward with further evidence to overcome the presumption of negligence raised by non-return. See Annotation, 44 A.L.R.3d 171, 184.

5. The building belonged to Mr. Otto Haleck and housed other business tenants as well.

6. We also noted the following disclaimer on Haleck's standard "Repair Order" form which seems to embody a policy contradicting Mr. Dave Haleck's belief: "It is understood that the company assumes no responsibility for loss or damage by theft or fire to the vehicle placed with them for storage, sale, repair or road testing."

Fanene; Fagasoaia v.


VALU FAGASOAIA and MAINA ATAFUA, for themselves and 
on behalf of the FAGASOIA FAMILY of Nu'uli, Plaintiffs

v.

TUITOGAMAATOE FANENE, SIUFAGA FANENE, TUMEMA 
KIM, DONG IK KIM, PUAO SIONE, TEVESI SIONE, and 
PUAILOA TAVETE, Defendants

High Court of American Samoa 
Land and Titles Division

LT No. 34-90

February 13, 1991

__________

With respect to land, a separation agreement splits a pal1icular structure from the land on which it is built or is to be built, so that the structure will be the property of the person building it rather than the landowner. A.S.C.A. § 37.1501 et seq.

A traditional assignment of land from the matai to a family member does not imply permission to build new structures or materially change the character of the property.

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

Counsel: For Plaintiffs, Asaua Fuimaono

  For Defendants, Charles V. Ala'ilima

On Motion for Reconsideration:

This motion was heard on December 14, 1990. The Court announced from the bench its intention to deny the motion, except that the record would be left open for counsel to submit additional evidence with respect to two issues.

To restate briefly our principal reason for denying the motion, defendants are spectacularly wrong about the meaning of a separation agreement. Such an agreement "separates" a particular structure from the land on which it is built or to be built, so that the structure will be the property of the person building it rather than the landowner; nothing [18ASR2d73] more. Neither the statute authorizing such agreements, A.S.C.A. § 37.1501 et seq., nor the language of the particular separation agreement at issue in the present case even remotely implies that a person who has obtained a separation agreement for one structure may thereafter build other structures on the land, much less, as defendants assert, that "when there is a separation agreement, permits for building of structures within the area encompassed by the agreement [are] signed by the building owner, not the [landowner.] " The agreement at issue here identifies its subject as "a certain dwelling house" and the "said dwelling house" and identifies defendant Fanene as "the Building Owner."  It certainly did not give her a right to build a substantially new and far larger structure, to be used as a store and not a dwelling house, without permission of the matai of the family who owned the land.  See Roberts v. Sesepasara7 A.S.R.2d 139 (1988).

It is immaterial that defendant Fanene apparently attached to the copy of the agreement she filed in the Registrar's Office a map showing an area of land somewhat larger than necessary to build the dwelling house, and large enough for the store and much (but not all) of the other improvements she eventually authorized. It is not signed by Fagasoaia and there is no evidence that Fagasoaia knew anything about it. Moreover, even his endorsement of the map would not have changed the separation agreement into a blanket authorization to defendant to build whatever structures she pleased within the area in question.

This is particularly true of structures that would dramatically change the character of the use of the communal land in question. Even if defendant Fanene had had not only a separation agreement but also a traditional assignment of the land (as defendant Puao appears to have had on the other side of the road), she would have needed the permission of the matai for new structures and particularly for such a major change in the character of the property. A family member's right to live on family land does not include a right to build supermarkets, warehouses, and parking lots on it and rent these out to strangers. Cf. Robertssupra, 7 A.S.R.2d at 142. In any event, the evidence in the present case is not to the effect that Fanene had a traditional assignment of the land; it is far more consistent with an assignment to her uncle, plaintiff Valu, whose permission she sought to build her house. It is ironic that she now uses the separation agreement as evidence of her right to dispossess Valu when the surrounding circumstances strongly suggest the matai may have signed precisely in deference to Valu'slong possession of this area.

Finally, we did not and do not find that Fagasoaia signed the [18ASR2d74] agreement at all. Plaintiffs presented evidence tending to show that the signature on the document was not that of Fagasoaia. Plaintiffs also argued that defendant Fanene, who was then working in the Registrar's office, may have forged the signature. This is a most serious charge, and we see no reason to reach such a question when it would not affect our holding. If a separation agreement really meant what defendants say it means, however, it would become necessary to decide whether Fagasoaia really signed this one.

We left the record open for defendant Kim to present evidence of his expenditures on a warehouse across the road from the store. We are satisfied that he spent the $68,390.63 shown by his exhibits.

Defendant Kim also presented other voluminous post-trial exhibits (which, unlike the warehouse receipts, we did not request and did not expect) having to do with expenditures on things other than the warehouse. For a variety of reasons, we see no reason to change our judgment on account of these exhibits. For one thing, the family is entitled to the benefits of Kim's 1986 stipulation with defendant Fanene about his expenditures on theValu/Fanene side of the road. For another, although we gave the family a credit for the year's free rent Kim has already had on the warehouse, we gave no such credit for the five years he has been using family property on the other side of the road. The amount of such a credit would more than offset any previously unreported expenditures Kim may have made.

Many of the expenditures put at issue after trial, moreover, were for a parking lot that was vigorously resisted by plaintiff Valu who preferred the coconut trees that were there before. Others are for hurricane damage for which it is virtually inconceivable that Kim has not been otherwise compensated and for which the family would have been compensated had its ownership of the buildings in question been recognized. It also appears that defendant Kim has inadvertently submitted some receipts which had to do not with the store, the warehouse, or the parking lot but with some of his other enterprises.

Finally, defendants submit that our estimate of $1500 as monthly rental for the warehouse is too high. Our estimate, however, was well within the range suggested by the post-trial exhibits submitted by defendants. As we understand the evidence presented at trial about the size of the warehouse, $1500 amounts to about 50 cents per square foot. Plaintiff has now submitted evidence of warehouse space renting for various amounts between 25 and 75 cents per square foot. (The 25-cent [18ASR2d75] warehouse actually rents for 50 cents per square foot of ground space, but has been divided into two stories. It is only six feet higher than the warehouse in the present case, and we cannot see that the division into two stories increases the amount of storage space.) The $1500 per month warehouse rental seems quite fair, at least as an interim figure pending negotiations between defendant Kim and the new Fagasoaia.

Our judgment is amended to omit the requirement that defendant Kim pay $1800 per month into the registry of the Court to be held for the benefit of the family. Instead, this monthly amount will continue to offset the as yet uncompensated portion of the $68,390.63 that Kim spent on the warehouse. (As of February 1, 1991, this uncompensated amount is $45,530.63.)

In all other respects the motion is denied.

It is so Ordered.

*********

Vaimaona v. Tuitasi,


VAIMAONA FOLOI, ARIETA VAIMAONA,
LAGIMA VAIMAONA, and TAU FUIAVA, Appellants

v.

FA'AMAMAFA TUITASI, Appellee

High Court of American Samoa
Appellate Division

AP No. 24-89

March 12, 1991

__________

Although Samoan custom requires family consultation before a sa'o conveys communal land, the court cannot impose this as an additional condition to such a conveyance absent statutory direction from the Fono. A.S.C.A. §§ 1.0202, 37.0201 et seq.

The Land Commission carried out its duty to prevent "improvident alienation" of land by asking the sa'o if he had consulted with his family before conveying communal land, but the Commission is under no obligation to absolutely prevent such a conveyance. A.S.C.A. § 37.0203(c).

An affidavit of a posting of notice may be inadequate where: I) it alleges that notice was posted for thirty-three days, as opposed to the requisite sixty days; 2) it was subscribed before the posting took place and thus was prepared without personal knowledge as to whether the posting actually took place; 3) it does not show the signature of the person qualified to take oaths and so may not have been made under oath; and 4) it states that notice was posted in a village different from that where the deed indicated the land is located. A.S.C.A. § 37.0103(a).

Inadequacies of affidavit of posting may be supplemented on remand by testimony showing actual compliance with statutory guidelines. A.S.C.A. § 37.0103(a).

Though registration of an instl1lment of conveyance is a necessary condition of the effectiveness of that instl1lment to pass title, it may not in all cases be sufficient; registration of the instl1lment gives notice to people dealing with the land "thereafter" but does not necessarily affect the interests of persons who dealt with the land before. A.S.C.A. § 37.0210.

Where the record is unclear as to whether a deed has been duly registered, the appellate court will remand the issue to the trial court for further evidentiary findings. A.S.C.A. § 37.0210(a). [18ASR2d89]

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, TOGAFAU***, Acting Associate Justice, TUIAFONO, Associate Judge, SIAKI, Associate Judge.

Counsel: For Appellants, Togiola T.A. Tulafono

  For Appellee, Charles V. Ala'ilima

The senior matai and other members of the Vaimaona family appeal a decision which dismissed a challenge to registration of land to Fa'amamafa Tuitasi.

The trial court's findings of fact, except as to notice, are not at issue in this appeal. In December of 1977, Vaimaona Foloi, the senior matai of the Vaimaona family of the village of Lauli'i, executed a warranty deed to a portion of the land known as Mulipa, to Fa'amamafa Tuitasi, a member of the Vaimaona family. Tuitasi tried to register the tract as her individual land. Arieta Vaimaona complained to various government officials. The title was not registered, and the original copy of the warranty deed was destroyed or lost.

Ten years later, in September of 1987, Vaimaona Foloi appeared personally before the Land Commission, seeking its approval of his conveyance to Tuitasi. Members of the commission asked him if he had consulted with his family about the transaction. He replied that he had not. Commission members then recommended that he not alienate the land without consulting with his family and suggested a separation agreement rather than a conveyance. Vaimaona Foloi subsequently returned and reiterated his request. At this second appearance, the Commission approved, and the Governor signed his approval a few days later .

Tuitasi had, prior to these approvals, filed a photocopy of the deed with the Territorial Registrar. The Registrar treated the filing as a request for Land Commission approval and also as a request for[18ASR2d90] registration. After the notice period had elapsed, which was after the approvals by the Land Commission and the Governor, the Registrar issued a certificate of registration, certifying that the "Warranty Deed, Portion of Land 'Mulipa' in the Village of Lauli'i [had been offered for registration by Mrs. Tuitasi] as her individually-owned land [and had been] duly registered."

The Vaimaona family filed a complaint the following year, when Tuitasi built a wall on the land. They alleged fraud in the factum, that is, that Tuitasi obtained Vaimaona's signature by deceiving him into thinking he was signing something other than a deed, and prayed for a decree setting aside the registration. The trial court dismissed the claims, finding no fraud in the factum, and denied a motion for new trial based on alleged inadequacies in notice. We affirm on the issue of fraud and remand for additional findings of fact regarding notice.

At trial, the focus of the proceedings was on the issue of fraud, not notice. The trial judge found that there was no fraud in the factum, because the proceedings before the Land Commission plainly demonstrated that Vaimaona understood that the document was a conveyance to Tuitasi. The trial court found that the forcefulness of Tuitasi's personality did not nullify the otherwise lawful actions of the sa'o, the land commission, the governor, and the territorial registrar. These findings are not challenged on appeal and are plainly not "clearly erroneous." A.S.C.A. § 43.0801(b).

I. Family Consultation and Approval

The central issue on appeal is whether a matai can convey communal lands without family approval. Both sides agree, and the trial court found, that "the members of the family. ..should, in accordance with Samoan custom, have been consulted before any family land was alienated," and that the sa'o did not comply with this custom. They disagree on whether this requires or permits the court to set aside a conveyance.

Vaimaona correctly notes the constitutional command that the policy of all branches of the government must be "to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life. " Rev. Const. Am. Samoa, Art. I §3. He also correctly notes the statutory requirement as to the role of custom, which is among the many statutory provisions implementing the constitutional requirement: [18ASR2d91]

The customs of the Samoan people not in conflict with the laws ofAmerican Samoaor the laws of theUnited StatesconcerningAmerican Samoashall be preserved.

A.S.C.A. § 1.0202. Appellant is also correct in noting this court's characterization of Samoan custom regarding the matai system and communal tenure:

The twin cornerstones of the Samoan way life are communal tenure and the matai system. Each is essential to the other. Without the matai system to administer it, the communal land system becomes anarchy. Without the communal land system, there is no reason for a matai.

In American Samoa, the family owns the land. A matai, selected by, and subject to removal by the family, allots the land to family members who pay a type of compensation comparable to rent in the way of service to the matai-actually, to the family. In return the matai undertakes the protection and well-being of family members. Such is the basic Samoan custom and tradition.

Tavai v. Silao, 2 A.S.R.2d 1, 2 (1983).

Appellant errs, though, in arguing that because custom requires family consultation before the sa'o conveys communal land, courts must implement that custom. The argument falters because of the statutory phrase, "not in conflict with the laws of American Samoa." The statute provides for judicial preservation of customs "not in conflict" but not for those customs which are "in conflict." This provision authorizes the Fono, not the High Court, to set aside custom by statutes to the contrary.

In this case, the Fono has provided by law for conveyances without an absolute requirement of family consultation, so the custom upon which appellants rely is "in conflict." A serious policy argument can be made for revision of the statutes to require family consultation, or family consultation and approval. See Judge Vaivao's concurrence in the trial court. Such an argument, though, as Judge Vaivao's opinion explains, must be addressed to the Fono; our role is limited to applying the law which the Fono has made. [18ASR2d92]

The Fono has codified the system for alienation of land, at chapter 2 of title 37, in sufficiently comprehensive form so that the courts cannot add an additional substantive requirement such as the one urged by appellants. Under the statutory scheme, a matai generally cannot alienate communal family lands (l)without the written approval of the governor and (2) to any person of less than one-half native blood. A.S.C.A. § 37.0204(a)(b).

Nor does the statute allow a written approval by the governor without an additional hurdle. An instrument accomplishing such a conveyance must be filed with the secretary of the land commission "for study and recommendations thereon by the commission" before becoming effective. A.S.C.A. § 37.0203(a). In performing its duty of study and recommendation, the commission must "endeavor to prevent... improvident alienations of communal lands by those charged with the management and control thereof." A.S.C.A. § 37.0203(c).

By providing that a conveyance requires these three things, the Fono has excluded the possibility of a fourth so substantial and significant as family consultation and approval. Had the Fono meant to impose this as a fourth requirement, it would have said so.

Under this statutory scheme, instead of the High Court applying a rule requiring family consultation and approval, the land commission applies a more general purpose of preventing "improvident alienation. " This standard may, in the discretion of the commission, embrace failure by the matai to consult with his family, but the commission is not required by law to withhold approval for failure to consult, where it has not found the conveyance to be "improvident.” That word is usually defined to mean lacking in foresight, not providing for the future, thriftless, or rash. American Heritage Dictionary (2d College ed.); Webster's New International Dictionary (2d ed. unabridged). Vaimaona had stuck to his expressed intention to convey communal land to Tuitasi for ten years and stuck to it through two hearings of the commission. The Fono structured the commission as an appropriate body to exercise discretion; it consists of a chairman experienced in real estate transactions appointed by the Governor, the territorial registrar, and the three district governors, A.S.C.A. § 37.0202, so is certainly an appropriate repository of broad discretion. In this case, the Commission carried out its duty by asking Vaimaona if he had consulted with his family, recommending against alienation without such consultation, and rejecting his first attempt to alienate the land without seeking family approval. The statute says, regarding the Land Commission' s duty, "endeavor to prevent" and not [18ASR2d93] merely "prevent." Addition of the words "endeavor to" limit the word "prevent," making it less absolute. The commission endeavored to induce Vaimaona to comply with custom.

Vaimaona has not argued, before the trial court or this court, that the Commission failed to discharge its duty. Our discussion of its duty may therefore be dicta. We comment upon the commission's duty because the commission 's and the Governor's discretion to disapprove are as far as the Fono has enabled public authorities to go in preventing a matai from conveying to a native Samoan without appropriate consultation with and approval from his family.

Vaimaona argues that Sione v. Tiualii, 3 A.S.R. 66 (1953) (Trial Division), requires a contrary conclusion. The case does indeed contain language contrary to the result we reach. The language may be dictum, because the basis for the decision appears to be adverse possession. In any event, the alienation statutes were comprehensively recodified in 1962, so the Sione decision, issued before the 1962 statutory revisions, lacks compelling force.

II. Notice

This issue appears to have been something of an afterthought in the case, but we think it is important. It was not fully developed by the litigants at trial, which focused upon the issue of family consultation and approval, so the trial record is sketchy, and the issue seems to have been developed mainly on a motion for new trial. We conclude that additional fact-finding is needed.

American Samoahas a subtle and complex system for developing and preserving public records of land ownership. The Samoan system blends aTorrensregistration system, a recording system, and special Samoan provisions to protect communal ownership and the Samoan way of life.

Most American jurisdictions rely on a recording system. In such a system, many kinds of instruments affecting title to land may be recorded. The government record does not certify ownership. Instead, proof that an instrument was recorded establishes only that persons subsequently acquiring interests in the land had notice of the public record and provides evidence of the terms of the documents filed.  In case of title disputes, quiet-title suits in the nature of ejectment are used to determine who owns what interests. A purchaser of land may hire a [18ASR2d94] title company or attorney to search the public records and render an opinion, perhaps backed by insurance, regarding the title. Because of the difficulty of searching each chain of title through grantor and grantee indices back to the initial government patent or other first acquisition, specialized attorneys and title companies develop "title plants," maintained by parcel, so that old chains of title need only be updated for new conveyances.

Sir Robert Torrens developed an alternative to the recording system, called a registration system, based on the system prevalent for registering title to merchant ships. TheTorrenssystem of land registration, first implemented inSouth Australia, is prevalent in theBritish Commonwealth. This kind of registration system is also now typically used for motor vehicles and airplanes in American jurisdictions.

In a Torrensregistration system, an owner of land registers the land, and obtains a certificate of registration. The certificate establishes title, so a buyer can rely on it, and does not have to obtain evidence of the owner's chain of title. The registration certificate is not merely notice that someone filed an instrument, as a certified copy of a recorded instrument would be in a recording system, but is instead government certification that the registered owner does indeed own what the certificate says he owns. The certificates are subject to being set aside only in very limited circumstances. Because the certificate wipes out alternative claims to interests in the land, Torrenssystems generally require surveys to establish the boundaries of the land, and notice, to assure that competing claimants will have an opportunity to dispute issuance of the certificate. The certificate has the same function as a decree in a quiet title suit, so "meticulous attention to the proper manner for service of process" is "absolutely essential to assure certainty to persons who wish to rely on the conclusiveness of the certificate." 6A R. Powell, The Law of Real Property' 908[3][a], at 83-8 (Rohan ed. 1991). See generally 66 Am. Jur.2d, Registration of Land Titles; W. Burby, Real Property 332-34 (3d ed. 1965); J. Cribbet, W. Fritz, C. Johnson, Cases and Materials on Property 855-64 (2d ed. 1966).

As the system is implemented inAmerican Samoa, a registration system exists alongside a recording system. The registration system is established in chapter I of title 37. A recording system appears to have evolved under chapter 2 of title 37,

The registration system is a fairly traditional Torrenssystem. An owner of unregistered land may register his title with or without the [18ASR2d95] precipitating event of a conveyance. A.S.C.A. § 37.0101(a). No title can be registered unless the Registrar "is satisfied that there is no conflicting claim thereto." A.S.C.A. § 37.0101(b). The central device for determining whether there are conflicting claims is the notice provision. Notice of a proposed registration must be posted for 60 days on the bulletin board at the courthouse in Fagatogo" and at 2 public places in the village in which or nearest to which the land is located." A.S.C.A. § 37.0103(a). During the 60-day notice period, anyone claiming an interest in the land adverse to the applicant's claimed interest may file notice of his claim with the Territorial Registrar, but if no such notice is filed and the other statutory requirements are complied with, the Territorial Registrar is required to register the title to the land in the name of the applicant. A.S.C.A. § 37.0103(b),(c). If adverse claims are filed, then the Territorial Registrar refers the matter to the High Court of American Samoa for adjudication. A.S.C.A. § 37.0104(a).

The trial court correctly noted the problems in the evidence regarding notice of proposed registration of title. Notice has to be posted of a proposed registration "for 60 days on the bulletin board at the courthouse in Fagatogo and at 2 public places in the village in which or nearest to which the land is located." A.S.C.A. § 37.0103(a). In this case, the affidavit of posting may be insufficient evidence that the statutory posting requirement was met. It alleges posting from August 6 to September 8, which is only about 33 days, not 60. The affidavit says that it was subscribed August 6, before the posting took place, so it was evidently prepared without personal knowledge of whether the notices really were posted through September 8. It does not show a signature of the person qualified to take oaths, so it may not be under oath. It says that the notice was posted in the village of Lauli'i, and the certificate of registration says that the land is in Lauli'i; but the deed says that the land is in the village of Aumi, and so does the survey.

This is not to say that the posting was inadequate. It may be that the posting satisfied A.S.C.A. § 37.0103(c), but that the affidavit does not fully set forth the notice which was given. Testimony might fill in the gaps. Nevertheless, an evidentiary hearing and findings of fact are needed on the question. Vaimaona's actual knowledge of the proposed conveyance does not vitiate the importance of notice, because other interested persons might have had some objection to registration of title in Tuitasi's name. On the record before us, the evidence of procedural irregularity in the notice of proposed registration is sufficiently compelling to overcome the strong presumption of the validity of certificates of registration and put the matter at issue. [18ASR2d96]

Notice is an especially salient issue in this case, because the substantive dispute was about whether Vaimaona consulted with and obtained consent from his family. Though we have agreed with the trial court that the statutes do not make that a necessary condition of a valid conveyance by a matai of communal land, nevertheless a matai seeking to convey against what he knew to be the preferences of part of his family might have an interest in slipping the conveyance past them so that they would not find out about it. Details like posting in a non-obvious place or in an adjacent village, posting for too short a period, incorrect statements of posting, not including the oath which would subject the maker to penalties of perjury, or even illegible photocopies in the places of posting, could be used to prevent the members of the family who disapproved of the conveyance from finding out about it in time to object to the registrar or, if the deed was not yet approved, to the land commission or the governor.

The recording system seems to have evolved under a statute in chapter 2 limiting the effectiveness of unrecorded conveyances. Under A.S.C.A. § 37.0210, a deed cannot "pass the title to any land or any interest therein. ..until such instrument has been duly registered with the Territorial Registrar."

(a) No instrument shall be effectual to pass the title to any land or any interest therein, or to render such land liable as security for the payment of any debt or obligation until such instrument has been duly registered with the territorial registrar.

(b) Due registration of an instrument relating to land or an interest therein shall be notice of the contents of such instrument to all persons thereafter dealing with such land or interest therein.

A.S.C.A. § 37.0210.

This chapter 2 provision provides for registering the instrument, as compared with the chapter 1 provision for registering the title. Though registration of the instrument is a necessary condition of the effectiveness of the instrument to pass title, it may not in all cases be sufficient. Registration of the instrument gives notice to people dealing with the land "thereafter" but does not necessarily affect the interests of persons who dealt with the land before. Unlike the chapter 1 registration of title provision, the chapter 2 registration of instruments provision [18ASR2d97] contains no requirement of notice prior to registration of the instrument. This is consistent with most recording statutes, because the instrument generally cannot affect preexisting interests of those not signatories to or otherwise bound by the instrument itself.

Even assuming that Tuitasi duly recorded Vaimaona's deed, this recording provision in chapter 2 does not entitle Tuitasi to prevail. The judgment below leaves her with a certificate of title, not just a recorded deed. The Vaimaona family sued to have the certificate set aside. The trial court noted probable defects in notice but did not set it aside. The practical effect of the trial court decision is to quiet title in Tuitasi. But Tuitasi did not sue to quiet title and has not proved an entitlement to have title quieted in her. All she proved was that the Vaimaona and members of his family were not entitled to have the title vacated because of lack of family consultation and approval. There may be other defects in Tuitasi's title, perhaps capable of assertion by other interested persons not plaintiffs in this lawsuit. It may be that the appropriate relief, as determined after an evidentiary hearing and findings on notice, would be to set aside the registration certificate but otherwise leave the parties as they are or to determine that the registration certificate was properly issued and that notice was adequate even though not adequately proved in the first trial. We cannot say on the present record which is correct.

Another reason not to quiet title in Tuitasi is that she may not have a duly registered deed. The words in A.S.C.A. § 37.0210(a) limit effectiveness of deeds to those which are "duly registered":

No instrument shall be effectual to pass the title to any land or any interest therein, or to render such land liable as security for the payment of any debt or obligation until such instrument has been duly registered with the Territorial Registrar .

A.S.C.A. § 37.0210 (emphasis added). As the trial court noted, this case was a bit unusual in that the Registrar did not testify. The record does not show whether Tuitasi "duly registered" the instrument. The trial court found that the registrar treated her filing as being for registration of title and approval of the conveyance by the land commission. The deed must have been "duly" registered to convey Vaimaona's interest to Tuitasi. When it was presented to the registrar, the instrument was apparently a photocopy of a ten-year-old deed, which had not been approved by the governor. Was the deed presented to the registrar for chapter 2 registration of the instrument, and not only for [18ASR2d98] chapter 1 registration of the title? Was such an instrument recordable? Was it presented for recording? If the answer to any of these questions turns out to be "no" after evidence is taken, then the instrument may turn out not to have been "effectual to pass the title" under A.S.C.A. § 37.0210(a). Cf. 66 Am. Jur .2d, Records and Recording Laws §§ 124, 127, 128, 134, 138. If Tuitasi does not prevail on her registration certificate, then findings of fact on whether the deed was "duly registered " will be necessary.

AFFIRMED IN PART, REMANDED IN PART.

*********

*Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

***Honorable Maleatasi Togafau, District Judge, High Court of American Samoa, serving by designation of the Secretary of the Interior.

Williams; Talili v.


TU'ULIMA TALILI and TALILI FAMILY, Plaintiffs

v.

FAGA WILLIAMS and SATELE UOKA MOMOSEA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 6-89

February 4, 1991

__________

While it was undoubtedly true before the coming of the present government that some matais, on some occasions, wielded the power to dispossess family members, at will, of lands they had long occupied and cultivated, their authority to do so was strictly limited by customary law.

The tradition that certain lands are reserved for the use of certain family members is at its strongest when the family is a large and prestigious one containing clearly identifiable sub- groups.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima

  For Defendants, Afoafouvale L. Su'esu'e Lutu [18ASR2d24]

This case amounts to a relitigation of Talili v. Satele, 4 A.S.R.2d 23 (1987), involving substantially the same land, the same parties, and the same Issues.

In Talili v. Satele (hereinafter referred to as "the 1987 case") we held that certain land within a larger tract called Tomea, belonging to the Satele family, had long been assigned to the descendants of a Satele family member called Talili. Satele Uoka Momosea, a defendant in the 1987 case as in this one and then, as now, the sa'o of the Satele family, proposed to build a house for his sister on land that had previously been occupied by the Talilis. We held that the sa'o of a family does have a right, in some circumstances, to take land previously assigned to one family member when the land is needed for important family purposes, but that this right is circumscribed by legal and traditional prerequisites of consultation and compensation which had not been observed in the case at hand. 4 A.S.R.2d at 27-28.

Both Satele and the Talilis subsequently notified the Court through counsel that they had settled their remaining differences in accordance with the Court's decision. The Talili people had agreed to withdraw their objection to the construction of a house for Satele's sister, thereby giving up any traditional and legal rights they may have had to the land on which this house was being built. In return, Satele had designated the boundaries of an area of Tomea which all parties agreed would thereafter constitute the area assigned to the Talilis.

The present case arose less than two years later when defendant Faga Williams, a Satele family member who is closely related to defendant Satele Momosea but not to the Talilis, was assigned by defendant Satele to live and work on part of the land then occupied by Talili plantations.

The plaintiff Talilis urge that the assignment to Faga contravenes the Court's 1987 order and the settlement entered into pursuant to that order. Defendants Satele and Faga deny that the land assigned to Faga in 1989 is within the boundaries of the land assigned to the Talilis. Defendants also contend that even if the land is within the 1987 Talili boundaries, Satele retains the power as sa'o of the family to reassign family land as and when he pleases. They maintain that as the population of the island of Tutuila increases, it follows naturally that some family members will have to give up some of their assigned land to other family members, and that the courts should not interfere with decisions by a sa'o about which family members should be required to make such [18ASR2d25] sacrifices.

It is clear that the land assigned to Faga is within the area long occupied by the Talilis. Defendants maintain, however, that the 1987 settlement excluded from the Talili-assigned area some Talili-occupied land in addition to the area that was taken for Satele's sister's house. Plaintiffs vigorously deny this, saying that they agreed to give up some of their previously assigned land only in exchange for a solemn commitment that there would be no further encroachments.

All parties agree about the northern, southern, and western boundaries of the area designated for the Talilis in 1987. These are, respectively, the main road, a gully, and a line extending at a right angle from the road at a point just to the east of Satele's sister's new house. The disagreement is about the eastern boundary. The Talili witnesses, including their counsel who was present when the boundaries were pointed out, testified that Satele specifically designated the well-settled boundary with the village of Futiga as the eastern boundary of the Talili assigned area. The Satele witnesses, including their then-counsel who was also present, testified that Satele never walked over to the eastern side of the land occupied by the Talilis, apparently because the dispute in question was about the western part of the Talili area and not the eastern part. One of defendants' witnesses, however, testified that Satele did point toward the easternmost Talili house, thus designating all the land east of that house as outside the Talili area. (The present dispute concerns land between this easternmost house and the Futiga border.)

Whether or not Satele actually walked over to the eastern part of the Talili holdings to point out a boundary, we find for plaintiffs on this issue. If the parties felt no need to designate an eastern boundary, it was precisely because there was no dispute about what this boundary should be. The long-standing eastern boundary of the Talili portion of Tomea was the Futiga line. If the parties to the 1987 case had meant to change this boundary---and thereby to cancel a long-standing traditional assignment of land to family members whose crops even then were growing on the land ---they would have done so by clearly identifying a boundary, as they did in the west.

We note, moreover, that even the Talilis' version of the 1987 settlement was somewhat more favorable to Satele and his immediate relatives than was required or suggested by the Court's opinion. See Talili v. Satele, supra, 4 A.S.R.2d at 28 ("At the conclusion of such negotiations, the plaintiffs should have the right to cultivate [18ASR2d26] approximately the same amount of land as they were cultivating immediately prior to the bulldozing."). The defendants' version of the settlement---that plaintiffs not only gave up the part of their assigned land which had been the subject of the 1987 case, without insisting on the customary compensation for which they had just fought and won in court, but also gave up an altogether separate portion of their assigned land which had not theretofore been in dispute---is inconsistent with everything else the litigants have said and done during the course of the two recent lawsuits.

Defendants are also wrong about the law and custom with respect to assigned land, for reasons we have stated at length in our 1987 decision and in our opinion granting a preliminary injunction in the present case. While it was undoubtedly true before the corning of the present government that some matais, on some occasions, wielded the power to dispossess family members at will of lands they had long occupied and cultivated, their authority to do so was strictly limited by customary law. The High Court's decisions over the last ninety years or so have attempted to restate and reinforce those customary rules. See, e.g., Mailo v. Fanene, 1 A.S.R. 191 (1907); American Samoa v. Iose, 2 A.S.R. 638, 640 (1939) ("[U]nder the Samoan custom. ...the plantation and the fruits thereof are the property of the man putting in the plantation subject to the duty of service to the matai."); Malaea v. Fiapapalagi, 2 A.S.R. 651 (1951); Vaotuua Family v. Puletele, 3 A.S.R. 145 (1955); Tago v. Faleulu, 3 A.S.R. 370 (1958); Tali v. Tupeona, 4 A.S.R. 199 (1961); Leapaga v. Masalosalo, 4 A.S.R. 868 (1962); Ifopo v. Vaiao, 2 A.S.R. 472 (1949); Tiumalu v. Lio, 3 A.S.R. 176 (1955).

The tradition that certain lands are reserved for the use of certain family members is at its strongest where the family is a large and prestigious one containing clearly identifiable sub-groups. In smaller families the sa'o stands in relation to members of the family as a father to his children; the handful of large families headed by "paramount chiefs" are more like European principalities in which the relation of the prince to his subjects was an essentially political one, carried on through various mediating layers of well-defined rights and obligations. Satele is an outstanding example of such a family. The Satele family consists of several large clans, each of which has various sub-groups and could just as easily be regarded as a family unto itself, and Satele lands tend to be clearly identified with one or another of these clans or sub-groups.

Tomea has long been held to be reserved for the exclusive use of "those members of the Satele family who are the descendants of Satele [18ASR2d27] Pili and the members of the Satele family who were under the rnataiship of Satele Pili, and their descendants." Satele v. Faga, 2 A.S.R. 26, 28 (1938) (emphasis added). Defendant Satele Momosea Uoka and his immediate relatives, including defendant Faga Williams, are direct descendants of Satele Pili. As such they belong to one of the two groups who hold a beneficial interest in Tomea. The Talili plaintiffs belong to the other group: Satele family members who were "under the mataiship of Satele Pili"---that is, who supported Pili against his rival Satele Uga during a time when there was a split in the family.

What is really going on in this case has little or nothing to do with theories about the absolute versus limited power of the sa'o; indeed, Momosea himself once successfully argued in Court (prior to becoming the Satele) that the Satele titleholder does not have the authority he now asserts to assign land within Tomea to any family member he pleases. Satele v. Naea, Momosea & Sisters, LT No.1544-75 (Decision issued November 26, 1976). Nor is this case really about the diminishing amount of land per person in Tutuila; the Satele family has many lands, and the record affirmatively discloses that there is a large vacant area immediately behind the new house of Satele's sister, formerly occupied by Talili crops but already given up by the Talilis as part of the 1987 settlement. What is going on here, as in five of the other six lawsuits concerning Tomea during the last twenty years,(1) is that some of the immediate relatives of the present Satele have read the 1938 Satele v. Faga case as reserving Tomea for the exclusive use only of descendants of Pili, and therefore believe they have a right to expel those long-time occupants of Tomea who were "under the mataiship" of Pili, although [18ASR2d28] not descended from him. This contention is flatly inconsistent with the language of the 1938 opinion and has been rejected by the Court on at least two occasions before now. See Momosea v. Talili, LT No.19-84 (Opinion and Order issued July 8, 1985); Satele v. Talili, supra, 4 A.S.R.2d at 27.

Tomea in its entirety, as depicted ill a 1930 survey map by defendants' ancestor Faga, appears to consist of about ten acres. See Defendant's Exhibit 2. Interestingly, this 1930 map was a retrace of a 1907 survey which had designated all Tomea as the property of "Satele and Talili." See Satele v. Afoa, LT No.19-1930 (1907 survey map by J.W. Jewett). See also id. (testimony of Satele Moso'oi, March 4, 1932): "In 1907...Satele then make his appointment and told. ... Talili I designate the land Tomea for you to use."). The Talilis now occupy only a fraction of this land. They have been occupying it, along with the portion recently given up for the house of Satele's sister, for many years. The 1987 settlement reaffirmed their traditional right to occupy this part of Tomea and should have put an end to further contention.

We hold that the eastern portion of Tomea, from the Futiga boundary to the line drawn by the parties in 1987 near the house of Satele's sister, is Satele communal land reserved for the exclusive use of descendants of Talili. Although they must continue to render tautua to Satele (as they have been doing through their branch of the family in Vailoa) and may not build structures requiring building permits or separation agreements without permission of Satele, the descendants of Talili may not be disturbed in their exclusive possession of this land.

The preliminary injunction issued on April 19, 1990, will be made permanent, and defendant Faga Williams will be further directed to remove his crops and structures from the land within sixty days. Any crops or structures remaining on the land after that time will be deemed to have been surrendered to the plaintiffs.

It is so ordered.

*********

1. See Momosea v. Talili, LT No.29-77 (dismissed without prejudice June 15, 1977); Talili v. Foma'i, LT No.72-79 (dismissed without prejudice June 17, 1980); Lavata'i v. Foma'i, LT No.96-79 (dismissed without prejudice June 17, 1980); Momosea v. Talili, LT 19-84 (Order issued July, 8, 1985); Talili v. Satele, 4 A.S.R.2d 23 (1987). All of these cases involved Momosea (now Satele Momosea) or members of his immediate family on one side, and Talilis on the other. The only case in which Momosea squarely prevailed was not against the Talilis but against an attempt by the then-Satele to assign land in Tomea to a member of the Uga side of the family. This case concerned land outside of the part of Tomea occupied by the Talilis, apparently in an area traditionally reserved for descendants of Pili. See Satele v. Naea, Momosea & Sisters, LT No. 1544-75 (Decision issued November 26, 1976).

Haleck's Island Motors; Holland v.


JACK and JOAN HOLLAND, Plaintiffs

v.

HALECK'S ISLAND MOTORS, Defendant

High Court of American Samoa
Trial Division

CA No. 95-89

January 22, 1991

__________

Plaintiff has a right of direct action against an insurance company. A.S.C.A. § 29.1537. [18ASR2d3]

It is a well-settled rule of law that an ordinary bailee is not an insurer of bailed property absent statute or express agreement but is liable only for loss resulting from his negligence in caring for and protecting the bailed property.

In the case of a mutual bailment, it has been said that a bailee, in relation to the property bailed, is held to a duty of ordinary care.

In the case of a mutual bailment, many courts have held that a prima facie case of negligence or breach of contract will have been established against the bailee where a bailor has shown: (1) a bailment, (2) delivery of property to the bailee, and (3) failure of the bailee to redeliver the property undamaged.

In the case of a mutual bailment, in order to avoid liability under either a negligence or breach-of-contract theory, a bailor must provide a lawful excuse for non-return of the property or otherwise explain that damage to the property was not owing to his lack of due care.

In a bailment for mutual purposes, a bailee will be held to a higher standard of care if he has either agreed to assume a greater liability or he is one of those special bailees, such as common carriers and innkeepers, upon whom the law has imposed a strict rule of liability on grounds of public policy.

To escape liability in a mutual-bailment situation, a bailee should either go forward with exculpatory evidence accounting for the property or with evidence which exonerates him of fault.

A bailee for mutual purposes is under no legal obligation to insure.

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

Counsel: For Plaintiffs, Robert A. Dennison III

  For Defendant, John L. Ward II

Plaintiffs, Jack and Joan Holland, owned a certain motor vehicle which they had left with the defendant Haleck's Island Motors (hereafter "Haleck's") for servicing. Haleck's is an American Samoan corporation registered under the name Island Nissan Subaru, Inc., and it carries on business in Pavaia'i as a dealer and repairer of automobiles. While the subject vehicle remained in Haleck's possession, it was destroyed by a fire which completely consumed the building in which Haleck's was located.

Plaintiffs seek recovery from Haleck's and its insurer, Royal [18ASR2d4] Insurance Company,(1) for the value of the lost vehicle. They assert a bailment contract and further submit that Haleck's failure to return the bailed property, after demand had been made for its return, constituted, prima facie case of actionable breach of bailment." Alternatively," plaintiffs allege "that [Haleck] was negligent in the performance of it [sic] obligations to Plaintiff under the [bailment] contract.” (Amended complaint, paragraph 4).

There is no dispute that the facts here depict a bailment for mutual purposes between plaintiffs and Haleck's. At the same time, the parties also acknowledge the well-settled rule of law that an ordinary bailee is not an insurer of bailed property absent statute or express agreement. A bailee, however, is liable only for loss resulting from his negligence in caring for and protecting the property bailed.(2) Garcia v. Galea'i, 15 A.S.R.2d 14, 17 (1990). In the case of a mutual bailment, it has been said that a bailee, in relation to the property bailed, is held to a duty of "ordinary care, " that is, "that degree of care, attention, or exertion which, under the actual circumstances, a man of reasonable prudence and discretion would use in reference to the particular thing if it was his own property, and failure to do so would render him liable." Rice Oil Co. v. Atlas Assurance Co., 102 F.2d 561, 574 (9th Cir. 1939). It is that measure of care which "ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances.” Garcia v. Galea'i, supra at 17. See also 8 C.J.S., Bailments § 27; 8 Am. Jur.2d, Bailments § 221-222.

Whether the action here is viewed as one based on negligence or on breach of contract, the courts have held in many instances that a prima facie case of negligence or breach of contract will have been established against the bailee where a bailor has shown: 1) a bailment, 2) delivery of property to the bailee, and 3) failure of the bailee to redeliver the property undamaged. See Am. Jur.2d, Bailments § 329, at 1066; 8 C.J.S. Bailments, § 50(2), at 518; Annotation, 65 A.L.R.2d [18ASR2d5] 1228, 1233. The underlying policy reasons here have been explained as follows:

[T]he law takes into account the relative opportunity of the parties to know the fact in issue and to account for the loss which it is alleged is due to the breach. Since the bailee in general is in better position than the bailor to know the cause of the loss and to show that it was
one not involving the bailee's liability, the law lays on him the duty to come forward with the information available to him.

Commercial Corporation v. N.Y. Barge Corporation, 314 U.S. 104, 111 (1941) (citations omitted). It therefore follows that the bailee, in order to avoid liability under either theory, must provide a lawful excuse for non-return of the property or otherwise explain that damage to the property was not owing to his want of due care. Otherwise, as the Supreme Court further noted,

the trier of fact [is free] to draw an inference unfavorable to [the bailee] upon the bailor's establishing the unexplained failure to deliver the goods safely.  Whether we label this permissible inference with the equivocal term "presumption" or consider merely that it is a rational inference from the facts proven, it does no more than require the bailee, if he would avoid the inference, to go forward with evidence
sufficient to persuade that the non-existence of the fact, which would otherwise be inferred, is as probable as its existence.

Id. (citations omitted). See also Am. Jur.2d, Bailments §§ 323, 326, 327.

In the matter before us, there being no suggestion in the evidence of misdelivery or conversion, the prima facie case to be met by Haleck's, whether under plaintiffs contract theory or negligence theory, is culpable negligence or absence of ordinary care.(3) Having said as [18ASR2d6] much, this is not to say, however, that the law thereby requires "that the bailee must affirmatively prove a negative to the effect that he was not guilty of negligence." McKeever v. Kramer, 218 S.W. 403, 405 (Mo. App. 1920). "Under such circumstances it is the duty of the defendant to account for the loss of the goods, and to show that the loss was occasioned by some act such as theft, fire, etc., in which event prima facie this is an exoneration, and it is not his duty to further prove affirmatively that he is guilty of no negligence." Id. Thus, a bailee should either go forward with exculpatory evidence accounting for the property, or with evidence which exonerates him of fault. See also Am. Jur.2d, Bailments § 333 at 1074. This "does not cause the burden of proof to shift, and if the bailee does go forward to raise doubts as to the validity of the inference, which the trier of fact is unable to resolve, the bailor does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start." Commercial Corporation v. N. Y. Barge Corporation, supra 314 U .S. at 111.

In the instant matter, the defense argues that no inference of undue care on the part of Haleck's may be drawn from the facts surrounding the occurrence of the fire. (4) The evidence shows that the fire broke out in the early hours of the morning, at a time when the premises are normally left unoccupied. Mr Dave Haleck, Vice President for Haleck's, testified that he was alerted to the fire by a telephone operator who had called him at about one o'clock in the morning to advise that the supermarket building was on fire. He stated that when he arrived at the scene, there were fire trucks already there engaging the [18ASR2d7] fire. By that time, the fire, according to Mr. Haleck, was very intense as he could feel the heat from across the road where he had stopped his car, and he noted that the fire was progressing from the building's western end, where Haleck's showroom was located, towards its eastern end. He also went to the back to check on the other side of the buildings, where he found one of the resident employees hosing down the adjoining supermarket building.

Notwithstanding the efforts of the Fire Division, the consequence of the fire was the total destruction of the entire building.(5) Significantly, those efforts were undoubtedly hampered because the fire hydrants located directly opposite the burning structure were hopelessly lacking in water. This calamitous state of affairs, in turn, necessitated a time loss with the pick-up of water from other and distant locations.

An adjuster, a Mr. Stanley Chung of Honolulu, employed by the insurance company to investigate the fire, had earlier deposed that he ruled out electrical fault as being the cause of the fire. As he had found that all the circuit breakers for the building were still in the "on" position, this led him to believe that none of the wiring in the building had short-circuited. He further concluded after sifting through the various levels of burn debris that the fire had originated on the second floor of the building in a room above Haleck's premises. Mr. Chung, however, could find no evidence pinpointing the actual cause of the fire.

At the time of the fire, plaintiffs' vehicle was stored at the rear of the building where the automobile repair shop was located. The automobile repair shop was actually a lean-to against the main building; however, it was secured at nights by fencing and adjacent buildings. As might be expected of any similar business, Haleck's kept its premises reasonably secured and locked at nights, and the area was also well lighted both to the rear and front of the building. Although Haleck's did not employ a night watchman, Mr. Otto Haleck did have certain employees quartered in two residential homes within his property and adjacent to his various business enterprises.

In our view, the evidence presented in this matter was not inconsistent with due care on the part of Haleck's. At all relevant times, plaintiffs' vehicle was secured in a locked, fenced, and well-lighted area. [18ASR2d8] Unfortunately, a fire of unknown causes broke out late at night and totally destroyed Haleck's premises and contents. The efforts of fire fighters were significantly curtailed because fire hydrants in the area lacked water. We conclude that these are circumstances more consistent with exoneration rather than fault.

Plaintiffs also submit that the absence of such things such as a night watchman, fire detection devices and alarms, sprinklers and more extensive fire fighting equipment constituted negligence on the part of Haleck's. We disagree. Whether the presence of such things could have mitigated or prevented plaintiffs' loss is at best a matter of speculation. The fire was intense and spread very rapidly, and there was realistically very little to be done in way of containing it, given the hydrants' lack of water. Secondly, negligence presumes a duty of care, and, as we noted at the outset, the duty of care which the law imposes upon a bailee (in the context of a bailment for mutual purposes) is that degree of care which ordinarily prudent men would exercise in caring for their own property. We hold, bearing in mind that a bailee for mutual purposes is not an insurer, that Haleck's failure to have the sort of fire detection devices and alarms advocated by plaintiffs did not amount to negligence on the part of Haleck's. To find otherwise would be tantamount to imposing a very high degree of care, approaching that of requiring a bailee for mutual purposes to employ every precaution available for the protection of bailed property.

Finally, plaintiffs also contend that Haleck's had a duty to insure for their benefit. The argument here curiously appears to be based on the fact that Mr. Dave Haleck had thought that such insurance coverage had been procured. As it turns out, this belief was not only mistaken but entirely without foundation. Mr. Haleck also acknowledged that he had nothing to do with the negotiation and procurement of insurance, and that the matter of insurances for the various Haleck-affiliated businesses was actually handled by another corporate official, the controller.(6) In any event, the submission is at odds with the law. Unless plaintiffs can point to a governing statute, to an agreement to insure, to some custom or usage of trade, or to a course of dealings between the parties which [18ASR2d9] manifests an understanding that insurance would be provided, Haleck's, as a bailee for mutual purposes, was under no legal obligation to insure. Annotation, 44 A.L.R.3d 513.

For reasons given, judgment will be in favor of the defendants.

It is so Ordered.

*********

1. The insurance company was .joined under A.S.C.A. § 29.1537 which permits plaintiff a right of direct action. See Holland v. Haleck's Island Motors, 15 A.S.R.2d 44 (1990).

2. Unless he has either agreed to assume a greater liability or he is one of those special bailees, such as common carriers and innkeepers, upon whom the law has imposed a strict rule of liability on grounds of public policy. 8 Am Jur 2d, Bailments §§ 215, at 941.

3. Some cases have also suggested a distinction between pleading under a contract theory and pleading under a negligence theory. That distinction is said to be the difference between proving an affirmative defense for failure to redeliver the bailed article and the rebuttal of an evidentiary presumption of negligence. In a contract case, the burden is said to remain with the bailee to prove that the bailed article was destroyed without his fault; however, where negligence is alleged, the burden is on the bailor. See Am. Jur.2d, Bailments §§ 327; Annotation, 65 A.L.R.2d, 1228, 1242; 44 A.L.R.3d 171, 201. The immediate criticism with this rule, of course, is that the ultimate burden of persuasion is made dependent on the niceties of pleading.

4. Although a great number of cases have held that proof of destruction by fire is sufficient to rebut a presumption of undue care, the courts have in some other cases taken the view that proof of fire is not in itself sufficient rebuttal and that the bailee had to go forward with further evidence to overcome the presumption of negligence raised by non-return. See Annotation, 44 A.L.R.3d 171, 184.

5. The building belonged to Mr. Otto Haleck and housed other business tenants as well.

6. We also noted the following disclaimer on Haleck's standard "Repair Order" form which seems to embody a policy contradicting Mr. Dave Haleck's belief: "It is understood that the company assumes no responsibility for loss or damage by theft or fire to the vehicle placed with them for storage, sale, repair or road testing."

Governor of American Samoa; Solomona v.


MEKI SOLOMONA, Appellant

v.

GOVERNOR OF AMERICAN SAMOA, AMERICAN SAMOA GOVERNMENT,

ECONOMIC DEVELOPMENT PLANNING OFFICE, and

PRODUCT NOTIFICATION AND REVIEW SYSTEM, Appellees

High Court of American Samoa
Appellate Division

AP No. 22-89

January 30, 1991

__________

In an administrative proceeding a tact need not be proved beyond a reasonable doubt or even by clear and compelling evidence in order to be proved conclusively; the applicable standard is, rather, whether the fact appears from the evidence to be more probably true than not.

It is not necessary that evidence be accompanied by an affirmative stipulation with respect to its accuracy.

On appeal, a party should not make an objection to evidence after it has already been admitted without objection at the trial level. [18ASR2d15]

No compensation is due for what would otherwise be a regulatory taking when the government merely restrains uses of property that are tantamount to public nuisances.

Before REES, Associate Justice, FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, TAUANU'U, Chief Associate Judge, and LOGOAI, Associate Judge.

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

  For Appellee, Virginia L. Gibbons, Assistant Attorney General

This appeal was from a denial of permit to build a home on filled land within the Leone Pala Lagoon. We held that the land in question was "tidal or submerged" land belonging to the Government, which therefore had the authority to deny private persons permission to build on the land.

Appellant now urges that we misapprehended the facts of the case. We noted that the administrative panel below found that "tidal levels and action are clearly evident" and that "the area would most likely be inundated" had it not been for appellant's prior unpermitted filling of the area. Appellant argues that this finding was "inconclusive" and "unclear at best," stressing the panel's use of the term "most likely." He also suggests that it was improper for the Court to take notice of a "site plan," contained in the record of the proceeding below, which shows the entire proposed building site to be within the lagoon, because the map "was never stipulated to be an exact topographical drawing.” Finally, appellant points to other language in the opinion below, to the effect that "[a]t least two-thirds of the land, perhaps more," is tidal land. He argues that this language compels the conclusion that one-third of the land (about a quarter of an acre) "is now and always has been dry land subject to private ownership."

The panel's use of the term "most likely" provides no support for appellant's argument. In an administrative proceeding such as the [18ASR2d16] one below, as in most judicial proceedings, a fact need not be proved beyond a reasonable doubt or even by clear and compelling evidence in order to be proved conclusively .Rather, it is sufficient that the fact appear from the evidence to be more probably true than not. The panel's language, although somewhat colloquial, restates this standard.

Appellant's objection to the Court's use of the site plan is also without merit. The plan was part of the record below. It clearly shows the entire building site to be within the lagoon. If appellant had any objection to the accuracy of this depiction, he should have made it in the proceeding below. No such objection appears on the record, and appellant does not now indicate that he ever made one. Rather, he suggests that the plan should not be regarded as evidence in the absence of an affirmative stipulation with respect to its accuracy. The law of evidence is to the contrary.

A far more substantial basis for appellant's objection to our original opinion is afforded by the panel's reference to "at least two thirds of the land, perhaps more," as submerged or tidal land. This language does cast doubt on our interpretation of the panel's more general statement that "the area would most likely be inundated" as including the entire area in dispute.

These two statements of the location of the building site vis-a-vis the lagoon are among several in the panel's opinion. The panel also described the site as "in the midst of the mangrove swamp in the pala lagoon"; as "bounded all around by a cement wall sunk into the lagoon area"; and as "mostly, if not entirely, man-made fill." Two of these five references, taken in isolation, would suggest that a small part of the site might have been dry land before appellant began his illegal fill activities some years ago. The other three references place the entire site squarely within the lagoon.

It must be borne in mind that the determination of what an area would have looked like if someone had not dumped many tons of rocks and dirt on it entails a certain measure of speculation. Our reading of the panel's treatment of this issue in its totality is that the great preponderance of the land was certainly, and the entirety of it was more probably than not, submerged or tidal before the filling began.

This reading is borne out by the evidence in the record. Not only the site plan, but every single recorded reference to the building site at any stage of the proceedings below, places it within the lagoon and [18ASR2d17] designates it as the "landfill" or the "till area." Though appellant's proposed reading of the administrative decision is not semantically impossible, we believe our original reading to be a fairer one in the context of the entire decision and of the evidence received by the administrative panel.

Finally, even if Mr. Solomona did own a quarter acre island within the lagoon, constituting a portion of the land on which he proposes to build, we would still not reach the larger questions posed by his appeal. The American Samoa Government would be entitled to deny a permit for a house with a septic tank on a small island in a lagoon, at the mouth of a stream, even without the coastal-management regulations. See generally A.S.C.A. §§ 25.0l01 et seq., 25.1501 et seq., 25.3001 et seq. As we observed in our original opinion, no compensation is due for what would otherwise be a regulatory taking when the government "'merely restrains uses of property that are tantamount to public nuisances.'" Solomona v. Governor of American Samoa, 17 A.S.R.2d 186, 191 (1990) (quoting Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470,491 (1987)).

Accordingly, the petition for rehearing is denied.

*********

*Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

Avegalio v. Leatumauga,


FAILAUTUSI AVEGALIO for the HEIRS OF

SEKIO AVEGALIO, Plaintiff/Objector

v.

LEATUMAUGA ENE FALEFIA, Defendant/Claimant

High Court of American Samoa
Land and Titles Division

LT No. 8-90

January 28, 1991

__________

Once the registered owner of land has shown that the area in controversy is the same land previously registered, the burden then shifts to the challenger, who can only prevail by showing that his family subsequently acquired the land by deed from record owners or by adverse possession. A.S.C.A. § 37.0120.

An individual who claims land as individual property of himself and his siblings, rather than as communal property of an extended family, must overcome the presumption that land in American Samoa is communally owned.

Before REES, Associate Justice, VAIVAO, Associate Judge, LOGOAI, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, Afoafouvale L.S. Lutu [18ASR2d10]

This case is a sequel to Avegalio v. Leatumauga, 9 A.S.R.2d 96 (1988), referred to hereinafter as "the 1988 case." In that case the present objector (hereinafter "Failautusi") sued to enjoin the family of the present claimant (Leatumauga) from occupying land legally registered as property of Failautusi and his brothers and sisters.

Failautusi's 1978 resurvey of the 3-acre tract called Vaosa, which he and his siblings had registered in 1946, showed a Leatumauga tract called Talifia'ai immediately adjoining Vaosa on the seaward side. This resurvey also showed an overlap with a 1974 Leatumauga survey of Talifia'ai, which had been prepared in connection with previous litigation between the same parties.

In the 1988 case Failautusi claimed that the Leatumauga family had recently begun occupying a part of Vaosa, roughly corresponding to the overlap between the 1974 Leatumauga survey and the 1978 Failautusi survey. The Leatumauga family admitted occupying the area in question but denied that Failautusi and his siblings owned this land ---or, indeed, any land at all to the mountain side of Talifia'ai. They contended that the 1978 Failautusi resurvey must be in an entirely different place than the land described in the original 1946 survey.

The court held that the 1978 resurvey was, in fact, an accurate retrace of the 1946 survey and that Failautusi and his brothers and sisters owned the land in question. The court therefore enjoined the Leatumauga family from occupying any land within the area covered by the resurvey. 9 A.S.R.2d at 99.

The present dispute is about three small parcels just outside the boundaries of the 1946 and 1978 surveys of Vaosa. Failautusi claims that he and his brothers and sisters have occupied this land since the 1930s, perhaps because they misunderstood the precise boundaries of the tract their father had purchased. Leatumauga maintains that his family has always owned and occupied these parcels, which adjoin a larger area that is undisputedly the communal land of the Leatumauga family. He contends that his neighbor to the mountain side is the Paogofie family and that the boundary he has drawn reflects the settled understanding of the Leatumauga and Paogofle families. (There are indeed two houses within the registered survey of Vaosa which belong to some people called Nelesoni who are said to be members of the Paogofie family; neither Paogofle nor any member of his family, however, has filed an objection to the Leatumauga survey.) [18ASR2d11]

Failautusi stresses that the three parcels disputed in the present case are outside the 1974 Leatumauga survey of Talifia'ai. He urges that this disproves Leatumauga's contention that his family has long claimed (much less occupied) the areas in question. Although this argument is not without force, it does not preclude Leatumauga from presenting whatever evidence he may have in support of his present claim. Whether Leatumauga can prevail in spite of the disparities between the 1974 survey (ordered by a former Leatumauga who is now deceased) and the more recent one depends partly on the strength of his own evidence and partly on the strength or weakness of Failautusi's opposing case.

In this connection it must be observed that Failautusi's position in the present case is far weaker, and Leatumauga's correspondingly stronger, than in the 1988 case. In that case Failautusi sought only to regain possession of land that had long been registered as the property of his family. The 1946 registration procedure had the effect of precluding later judicial inquiry into the validity of the title registered therein. See Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). Failautusi had only to prove that the land in dispute was the same land he had registered in 1946; the burden then shifted to Leatumauga, who could have prevailed only by showing that his family had subsequently acquired the land by deed from the record owners or by twenty or thirty years' adverse possession.

In the present litigation Failautusi relies not on a deed or recorded title but on a claim of occupation. Because he claims the land as individual property of himself and his siblings rather than as communal property of an extended family, he must overcome the presumption that land in American Samoa is communally owned. Moreover, the land now in dispute appears to be surrounded by land belonging to (or purchased from) communal families of Pava'ia'i and Faleniu. Even if Failautusi and his siblings did occupy parts of it at times since the 1930s, they were almost certainly moving onto land formerly occupied by someone else rather than settling "virgin bush" that had never belonged to anyone. Failautusi can therefore prevail only by showing twenty years of "actual, open, notorious, hostile, exclusive and continuous occupancy"---or thirty years if such possession commenced after 1961. See A.S.C.A. § 37.0120 (as amended in 1982 by P.L. 17-31); id. (prior to 1982 amendment).

Leatumauga, by contrast, is the matai of a communal family of Pava'ia'i which is the undisputed historic owner and occupant of land immediately adjoining the three smaller parcels now in dispute. He has also offered his claim (including these three small parcels) for registration [18ASR2d12] in compliance with the procedures set forth in A.S.C.A. §§ 37.0101 et seq. There has been no objection from anyone other than Failautusi. If, therefore, Leatumauga can present even a minimally plausible claim that his family's historic occupation has included the three disputed parcels and if Failautusi cannot prove a title by adverse possession, Leatumauga must prevail.

One of the three parcels in dispute is a triangular area at the extreme west-northwest of the Leatumauga survey. It adjoins Failautusi's registered survey of Vaosa on the south-southwest. Failautusi concedes that Leatumauga is the only one with crops in this area but claims that he and his family formerly had crops there and that Leatumauga did not move in until after the 1988 case. Leatumauga claims that he and his family have long occupied the land and that Failautusi and his family never have.

The judges viewed the land. There are taro and banana plants in this area, apparently extending from Leatumauga's plantations to the southeast. Although taro and bananas are annual plants whose appearance is not helpful in determining how long an area has been planted, the adjoining settlements of Failautusi and his family to the north (on Vaosa) and to the southwest (on another parcel called Ulutolu) are quite evident. These settlements appear to have clear and well-established lines of demarcation. The disputed triangle is separated from Ulutolu to the southwest by a stone wall, which the parties acknowledge to be an ancient one. To the north, the neatly kept area surrounding some houses of Failautusi's family is on a slightly elevated plateau that drops off sharply to a sort of no-man's land some distance to the north of the disputed parcel. It thus appears quite unlikely that either of these two settled areas formerly extended into the disputed triangle. The plantings within this triangle are, on the other hand, immediately adjacent to and indistinguishable from other plantings in the heart of Leatumauga's property, with no apparent natural or man-made boundaries in between. Nor did Failautusi contend that Leatumauga's people had ever physically ousted him or his family; if Failautusi’s family ever did occupy this land, they had apparently abandoned it by 1988. Both the testimonial evidence and the physical appearance of the land are far more consistent with Leatumauga's claim to historic (although perhaps intermittent) occupation than with Failautusi's claim that he and his siblings had exclusive and continuous occupancy long enough to acquire it by adverse possession. We therefore conclude that this parcel belongs to Leatumauga.

The second parcel is an even smaller rectangular area. It is on [18ASR2d13] the Leatumauga side of a straight line that Leatumauga identified as defining most of his boundary with the Paogofie family. This line is also the boundary of the 1946 registered survey of Vaosa. This parcel is adjacent to an area in which there are Leatumauga houses and to another area in which there are houses belonging to the Nelesoni people. It does not appear to be near any areas occupied by Failautusi or his relatives. The evidence preponderates in favor of Leatumauga's claim to this parcel.

The northwestern (that is, inland) portion of the third parcel is the location of a house belonging to a Mr. and Mrs. Pele. Mrs. Pele is a relative of Failautusi. She testified that she and her husband got permission from Failautusi's father to build a house on this location, have been occupying the present house and its predecessor since 1945, and have never been disturbed in their possession by any Leatumauga people. Leatumauga does not contest the Peles' long presence on the land but contends that they were there by permission of his grandmother, who was then the Leatumauga. Mrs. Pele denies this. The Peles have neither rendered tautua to the Leatumauga family nor otherwise acknowledged any property rights of that family in the land they possess. In these circumstances Mrs. Pele's testimony that she was on the land by permission of her relative Sekio Avegalio and not of an unrelated matai has the ring of truth. We therefore conclude that the heirs of Sekio (i.e., Failautusi and his siblings) acquired ownership of the area surrounding this house in or about 1965 as the result of twenty years' actual, open, notorious, hostile, exclusive and continuous occupancy by Mr. and Mrs. Pele.(1)

Mrs. Pele also testified that she and her family had cultivated the land to the southeastern (seaward) side of her house. She acknowledged, however, that the Leatumauga people had also cultivated this area at various times. All parties acknowledge that the area surrounding the Peles' house is separated from this seaward area by a stone wall. Mrs. Pele says the wall was built by members of her family in 1945; Leatumauga says it is an ancient wall. In either case it appears to be a boundary of long standing. With respect to the area on the seaward side of the Peles' stone wall, Failautusi has not presented evidence sufficient [18ASR2d14] to establish a title by adverse possession.

Accordingly, we hold that all the land within the 1989 Leatumauga survey of Talifia'ai should be registered as the communal property of the Leatumauga family, with the exception of the area in the northwestern corner of the survey, to the northwest of the stone wall in front of the Pele house.

It is so Ordered.

*********

1. We note that the Peles own another house, a short distance to the east of this one, which is on a tract of land the Peles purchased from a matai of Faleniu. It is outside the Leatumauga survey and is in no way involved in the present case.

Asifoa; Lualemana v.


LUALEMANA E. FAOA, Plaintiff

v.

SOSENE ASIFOA and LEFOTU TUILESU, 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 FET ALAIGA, Defendant

TUANAITAU TUIA, AVA VILI, TOLUAO FETALAIGA
for themselves and the VILLAGE OF PAVAIAI, 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

[18ASR2d50]

February 11, 1991

__________

Where a motion for reconsideration has been filed after the statutory deadline, the Appellate Division has no jurisdiction to entertain an appeal regardless of any arguments, equitable or otherwise. A.S.C.A. § 43.0802.

Although the statute does not provide a remedy for a situation in which, due to an error on the part of a Court employee or a theft from counsel's Court box a litigant does not receive notice of the judgment until after the ten-day deadline, the Court might, in extraordinary situations, entertain a T.C.R.C.P Rule 60(b) motion and vacate the previous order dismissing the motion for reconsideration for lack of jurisdiction. A.S.C.A. § 43.0802. T.C.R.C.P. Rule 60(b).

Before REES, Associate Justice, TAUANU'U , Chief Associate Judge

Counsel: For Plaintiffs Lualemana E. Faoa, Lualemana Family, Village of A 'asu, Tuitele K.A. Le'oso, Afoa L.S. Lutu

  For Defendants Sosene Asifoa and Lefotu Tuilesu, Charles V. Ala'ilima

  For Plaintiffs/Defendants A 'oloau Village Council, A.U. Fuimaono and Village of A'oloau, Edwin Gurr

  For Defendant Toluao Fetalaiga, Fai'ivae A. Galea'i

  For Intervenors Tuanaitau Tuia, Ava Vili, Tolua Fetalaiga and the Village of Pavaiai, Tau'ese P. Sunia

  For Intervenors Lepuapua Utu and the Utu Family, Togiola T.A. Tulafono

  For Intervenors Tuilet'an Vaelaa, Tuiagamoa, Tuiolemotu, and Tuitasi, Tuiasosopo Mariota II

On Motion for Reconsideration:

Our ruling on this motion was announced from the bench on February 5, 1991. This written opinion is issued primarily in order to avoid any future misunderstanding about certain supplemental orders directed to counsel at the time we ruled on the motion. [18ASR2d51]

Facts and Procedural History

As is suggested by its caption, the present motion has had a long and complicated history:

1) The action the motion most directly concerns, LT No.12-87, was filed in 1987. The action was consolidated with other related cases, and the consolidated cases were tried in May 1990. After various post-trial submissions, the case was taken under advisement and judgment was rendered on August 6, 1990. The judgment provided, inter alia, that the present movant Toluao must vacate some land held to belong to various families of the neighboring village of Aoloau onto which he and his agents had entered in or about 1986.

2) Toluao did not file a motion for reconsideration or new trial within the requisite ten days. The timely filing of such a motion is a jurisdictional prerequisite to the filing of an appeal. A.S.C.A. § 43.0802; see Taulaga v. Patea, 17 A.S.R.2d 34 (1990) and authorities cited therein.

3) Toluao did, however, file a motion styled "Motion for Reconsideration and Stay of Execution" on September 10, 1990, twenty-five days after the jurisdictional deadline. This document explained its late filing by reference to the joint representation in the litigation of all the chiefs of the village of Pava'ia'i by a single counsel. This joint counsel had dealt with the chiefs through a single representative, who was alleged not to have notified Toluao of the adverse judgment within the ten-day time limit for filing motions for new trial or reconsideration. (Toluao's September 10 motion was brought by new counsel who had recently been retained by Toluao and/or members of his family.)

4) The motion was heard onSeptember 26, 1990. The Court held that the motion for reconsideration must be denied for want of jurisdiction due to the statutory time limit, but that the motion stated possible grounds for relief from the judgment under T.C.R.C.P. 60(b). The Court therefore set the motion for rehearing as a Rule 60(b) motion for relief from judgment.

5) After rehearing and a responsive pleading by counsel for the chiefs of Aoloau, the Court held on December 10, 1990, that the Rule 60(b) motion should be denied. The Court held that Toluao had voluntarily submitted to the arrangement by which one counsel would deal with all the chiefs of Pava'ia'i through a single representative. The [18ASR2d52] Court further found that Toluao had entered into a similar arrangement in a prior case, representing to the Court that he could not afford to hire his own lawyer and that the chief whom he wished to designate to represent his family's interest (the same person who served as representative for the village in the present case) was a close relative of his; that the representative had apparently not consulted Toluao on major decisions during the course of the litigation, but that Toluao had continued to accept this arrangement, even signing his name to a stipulated judgment with which he later said he did not agree. Finally, the Court noted that Toluao had apparently left the island while the case was under advisement and did not allege that he had left the Pava'ia'i representative or counsel any information about how to get in touch with him while he was off-island.

6) On or after December 27, 1990, the presiding judge received a letter purporting to be from Toluao's counsel, suggesting that a decision on the Rule 60(b) motion was long overdue. The tone of this letter was somewhat peremptory. The person who wrote it was either unaware or pretending to be unaware that a decision had been issued some weeks earlier. The letter was prepared for the signature of Toluao's counsel but was signed by one Ropati S. Pene (of whom more later) "for" this counsel. It was not filed with the Clerk but was placed in an envelope and given to a Court employee to be placed in the judge's mail box. The presiding judge received it onJanuary 7, 1991, upon his return from a vacation.

7) The presiding judge, who is also the writer of the present opinion, inquired of the Clerk of Courts whether the decision had been given to Toluao's counsel. The Clerk indicated that a copy of the decision had been placed in counsel's Court box on December 10, the same day it was issued, as is the regular practice. The judge then wrote a memorandum to this effect and directed that it be placed in the Court box of Toluao's counsel, along with a second copy of the December 10 opinion. Shortly thereafter the judge personally checked counsel's Court box to make sure that the memorandum and the attached copy of the opinion had in fact been placed there. This was done on the afternoon of January 7.

8) On or about January 9, Toluao's counsel told the Chief Justice that the December 27 letter: issued under his signature had been written and sent by Mr. Pene without his knowledge, and that he was deeply embarrassed by it. [18ASR2d53]

9) On or about January 10, however, the presiding judge in the present case received a second letter also purporting to be from Toluao's counsel. Like the earlier letter, it bore the typed name of Toluao's counsel on the signature line but was signed with Mr. Pene's name "for" the official signatory. This letter stated, contrary to what counsel had told the Chief Justice, that counsel himself had sent the earlier letter after returning from a trip and learning that there was still no decision on the Rule 60(b) motion. Although quite different in tone than its predecessor, this letter was written in a style which the Court has come to recognize as that of the aforementioned Pene.

10) On January 11 the presiding judge sent counsel a second memorandum. It enclosed a copy of the January 10 letter and stated: "Although it [the letter] purports to be from you, it is not signed by you and I am quite certain it was not written by you. I have serious doubts about whether you are even aware of it." The memorandum requested that counsel inform the judge of the circumstances under which the letter was sent. The judge took the unusual step of having the letter hand- delivered to counsel by the Marshal of the High Court, this apparently being the only way to ensure a response from counsel himself rather than Pene.

11) Early the following week counsel called the Court to request an appointment. Counsel met with the presiding judge later that same week. He explained that he had not known about either the December 27 or the January 10 letters purporting to be from him. He had been off-island on December 27 but had been present on island on January 10. Apparently Mr. Pene had simply taken it upon himself to send this letter without counsel's knowledge.

12) The judge urged counsel to take immediate measures to regain control of his law practice. Particular stress was laid on the Court's need to be certain of two things: (a) that documents placed in the official Court box of a licensed lawyer or legal practitioner would be seen by the lawyer or practitioner himself; and (b) that papers filed with or otherwise given to the Court under the signature of a lawyer or practitioner, even when signed by someone else "for" him, have actually been written---or at least read---by him and represent his considered opinions regarding the matters stated therein. Counsel assured the Court that he would do this.

13) On January 18, 1991, which to the best of the Court's recollection was either the same day or the day after the meeting [18ASR2d54] described above, the present "Motion for Reconsideration" was filed. It asks for reconsideration of the denial of the earlier Motion for Reconsideration, which due to its untimely filing had been treated as a Rule 60(b) motion. Incredibly, the second motion was also filed after any date which could conceivably be considered the deadline for such filing. It was filed not only more than ten days after December 10, 1990---the day of the entry of the order whose reconsideration it seeks, which according to the statute and the precedents construing it is the day from which the ten-day time limit must be counted---but also more than ten days after January 7, 1991, the day the judge personally saw to it that a second copy of the opinion was placed in counsel's box.

14) Along with the present motion, counsel has submitted a copy of our December 10 opinion. This appears to be the copy that was placed in counsel's Court box on January 7. It bears the stamp and signature of the Clerk certifying it to be a true copy and dated "1/7/91." It also bears a copy of the clerk's original stamp dated "12/10/90." Toward the top of the first page, however, in large letters, is the handwritten legend "Received: 1/9/91" followed by what appear to be Mr. Pene's initials. At the hearing on the present motion, counsel stated that his "records" showed that the opinion had not been received until January 9. The implication was apparently that it must be assumed not to have been put in his Court box until January 9 and that the ten days for filing a motion for reconsideration or new trial should be calculated from that day. When the presiding judge stated that he himself had personally seen the opinion in counsel's box on January 7, counsel responded, "It's my word against yours."

Discussion

The motion to reconsider must be denied for want of jurisdiction. A.S.C.A. § 43.0802; see, e.g., Taulaga v. Pafea, supra; Fai'ivae v. Aumavae, AP 2-76 (decided December 9, 1977); Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). Because no motion for reconsideration has been filed within the statutory deadline, "the Appellate Division ...has no jurisdiction to entertain an appeal ...regardless of any arguments, equitable or otherwise, to the contrary." Taulaga, supra, 17 A.S.R.2d at 35; see Judicial Memorandum, supra, 4 A.S.R.2d at 174; Fai'ivae, supra.

The statute does not appear to provide a remedy for a situation [18ASR2d55] in which, due to an error on the part of a Court employee or a theft from counsel's Court box, a litigant does not receive notice of the judgment until after the ten-day deadline. There might be a way to mitigate this harsh effect in an appropriate situation. If we believed that Toluao's counsel had not received a copy of the December 10 decision until January 7, and if the present motion to reconsider had been filed within ten days of January 7, it is arguable that we could entertain yet another Rule 60(b) motion, vacate our December 10 order, and immediately re-enter it. This would start the statutory deadlines allover again, effectively reinstating the litigant's right to appeal.

Assuming that A.S.C.A. § 43.0802 should not be construed as implicitly prohibiting such a judicial end-run around its provisions, such a course of action should surely be reserved for extraordinary situations in which the equities are quite strong. At the very least, the Court should be reasonably certain that the litigant really did not receive timely notice of the adverse order and that he acted expeditiously as soon as he did receive notice. See Spika v. Village of Lombard, 763 F.2d 282, 285 (7th Cir. 1985), and authorities cited therein. Neither of these conditions is met in the present case.

In order to preserve whatever equities he had as of January 7---the day the second copy of the opinion was placed in his Court box--- it was absolutely essential that counsel file his motion to reconsider on or before January 17, which would have been the deadline if the adverse order had not been entered until January 7. (1) Indeed, prudence would [18ASR2d56] have advised filing a motion within a day or two. Instead, counsel (or, it would seem, his associate Pene) inexplicably waited until the eleventh day. Even giving the movant the benefit of every possible doubt about the facts before January 7, this puts him in at least as unfavorable an equitable situation as any other litigant whose counsel simply does not get around to filing a pleading until the day after a jurisdictional deadline. Indeed , the equities here are even weaker, since the present Rule 60(b) proceeding was itself a product of the missing of a jurisdictional deadline on August 16, and a ten-page judicial lecture on the subject of such deadlines had just been received by movant's counsel.

Nor, unfortunately, do we have any confidence in counsel's assertion that our opinion was not received in his Court box on December 10. First, if there is one thing every employee in the Clerk's office has learned to do right, it is to place Court orders in the boxes of the appropriate counsel immediately upon their entry. Second, although we have no reason to doubt counsel's word, it is not his word on which we must rely for the facts regarding what was received from counsel's Court box on or around December 10. This function seems to have been surrendered to Mr. Pene, who, as clearly appears from the record of this case and others, has been acting not as a messenger or a secretary but as a de facto law office under the license and signature of the counsel in question.

Mr. Pene has been perhaps the most frequent litigant in the High Court of American Samoa during the last six or seven years. He has, moreover, not been content to litigate on behalf of himself but has attempted on many occasions to represent other people in Court. He has cited his status as a member of various extended families, as an officer in corporations or a nominal partner in joint ventures, or as a "certified Samoan Court interpreter" or a "Samoan High Chief" in support of his argument that he should be allowed to represent other litigants "pro se, " although he is not a licensed lawyer or legal practitioner. Court files suggest that he has also carried on an active practice outside of court, [18ASR2d57] preparing legal documents and attempting to negotiate with insurance companies. During the mid-1980s the judges of the High Court frequently found themselves in the position of having to counsel, remonstrate with, and finally warn him about these activities. The warnings gradually became more stern, and in 1987 the Attorney General prosecuted him for the illegal practice of law. He was convicted by a jury, and the conviction was upheld on appeal. Pene v. American Samoa Government, 12 A.S.R.2d 43 (1989). He was given a suspended six-month sentence and placed on probation, but he has apparently not learned his lesson.

His latest gambit appears to be the association with counsel for the present movant. This counsel is a licensed legal practitioner. Legal practitioners are persons who have no formal legal education but were admitted to practice before the High Court at a time when there were few trained lawyers in the Territory. Although no new legal practitioners have been admitted since 1982, those who were admitted before that date are permitted to practice in land, matai title, and adoption cases.

Present counsel, a distinguished citizen of the Territory and the holder of a most important matai title, has long been a licensed legal practitioner but had not in recent years carried on an active practice except in occasional matai-title cases. This began to change about a year ago, when the Court began receiving pleadings and other papers under counsel's signature whose grammar, diction, and content were remarkably similar to those formerly received under the signature of Mr . Pene. The trademark feature of Mr. Pene's quasi-law practice, then and now, has been multiple duplicative and meritless motions for reconsideration, rehearing, new trial, amendment of judgment, clarification, etc. Missing deadlines is another of his specialties.

The time has come for this to stop. It was painfully obvious at the hearing on the recent motion, as it has been on other occasions, that counsel himself has had little to do with the conduct of the litigation being conducted under color of his license. As we noted in Parisi v. Parisi, 10 A.S.R.2d 106 (1989),

The Court's unwillingness [to allow unlicensed persons to operate as lawyers] ...derives not from enthusiasm for the concept of a lawyers' guild, but from experience with the unhappy results of amateur barristry. These have included not only artless pleadings and pointless arguments, but also the [18ASR2d58] forfeiture of important substantive and procedural rights through the missing of jurisdictional deadlines or the fatal misconstruction of rules and statutes.

Id. at 111.

Although Parisi was not a case directly involving Mr. Pene, several of the illustrations we used in that case including the one involving "the missing of jurisdictional deadlines" did stem from our experience with his former illegal law practice. See id., 10 A.S.R.2d at 110-11; Lam Yuen v. Leomiti, LT No. 3-87. The present case and Taulaga, supra ---a 1990 case in which the Appellate Division dismissed an appeal brought under the name of present counsel because, as in the present case, no timely motion for reconsideration had been filed---illustrate that "the unhappy results of amateur barristry" are the same no matter whose signature is used.

In some circumstances, movant Toluao might be entitled to equitable credit for having been an innocent victim of the Pene deadline- missing machine. It appears from the record, however, that the present motion and its predecessor were generated not by Toluao himself but by none other than Mr. Pene. The first sign of any possible post-judgment motion on behalf of Toluao is a long letter dated September 5, 1990, about a month after the decision was rendered. It is addressed to one of the counsel in the consolidated cases and appears to have been written by Pene. The letter is signed by Pepe Lam Yuen, a close associate of Mr. Pene and evidently the principal occupant of the land now claimed by Toluao. It suggests that its author had been aware of the adverse judgment rendered on August 6 (and of the post-trial motions by other parties) for an unspecified period of time.

Mr. Lam Yuen and Mr. Pene were the co-plaintiffs in Lam Yuen v. Leomiti, supra, in which Mr. Lam Yuen unsuccessfully resisted Chief Leomiti's efforts at eviction by alleging, inter alia, that Mr. Pene was his "partner" in a multimillion-dollar "commercial farm" on Leomiti land and that Mr. Pene should therefore be allowed to represent the "partnership" pro se. The evidence in the present case reflects that the Toluao incursions into the land of Aoloau families, apparently spearheaded by Mr. Lam Yuen as agent or licensee for Toluao, began at about the time the Pene/Lam Yuen "partnership" was being evicted from the neighboring land of Leomiti. It also affirmatively appears from the memorandum filed on September 10 in support of the first Motion for Reconsideration that Chief Toluao did not then know about it, although [18ASR2d59] he did later endorse it. The picture that emerges is not of Toluao shopping for a licensed and competent legal practitioner and inadvertently getting Pene, but of Toluao agreeing to join in an effort generated in his name by the team of Pene and Lam Yuen. In any event, as we observed in our opinion denying the first untimely Motion for Reconsideration in this case, "it is an abuse of discretion for the court to use relief from judgment to allow an appeal where the party missed the deadline through his own fault or through the fault of his lawyer." 17 A.S.R.2d 151, 157 (1990) (citing Spika v. Village of Lombard, supra, 763 F.2d at 285), and authorities cited therein. Any remedy Toluao may have at this point is not against the parties who won the present case but against whoever it was that missed his deadlines for him.

Finally, to the extent that a balancing of equities has any relevance at all to the present motion, it must include an estimate of the likelihood of success on the merits should the jurisdictional issues somehow be avoided. The argument Toluao and/or Pene apparently want to make on appeal is that the various chiefs of Aoloau should not have been allowed to join as one party for the purpose of evicting Toluao's licensees, and/or that the Court should not have ordered such eviction without saying exactly which family or families of Aoloau owned the land. Toluao could have objected to this joinder at trial or at any point prior to trial but did not do so. Indeed, the very best time to object would have been upon the filing of the complaint in LT No. 12-87. At this time Toluao was represented by his own individual counsel, who filed an answer which raised no objection to the chiefs of Aoloau litigating ''as a village" but merely contested on the merits the plaintiffs' assertion that the disputed land belonged to them. (Later, when Toluao's counsel withdrew, he himself decided to join the other chiefs of Pava'ia'i to litigate" as a village.") Moreover, we can conceive of no reason why the various Aoloau litigants, having proved by the preponderance of the evidence that the land belongs to some or all of them rather than to Toluao, should be required to litigate any internecine boundary disputes they might have in order to get an injunction against Toluao. The principal witness for the Aoloau parties did describe particular areas within the disputed land belonging to particular families of Aoloau. Their quarrel, however, was with Toluao and with the people he had sent onto their land, not with one another. At least in the absence of any pre-judgment objection from Toluao, the Aoloau plaintiffs were free to prove that the land belongs to one or more of them and not to him, without requiring the Court to decide the precise boundaries among the various co-plaintiffs. Having proved this, they were entitled to the injunction they sought. [18ASR2d60]

Conclusion and Order

The Motion to Reconsider is untimely filed and is therefore denied for want of jurisdiction.

Were we to consider this Motion to Reconsider as a Rule 60(b) motion for relief from judgment, as we did with this movant's previous untimely filed Motion to Reconsider, we would deny it as not showing excusable neglect or any other ground for relief under Rule 60(b). Nor does it appear that there is a substantial likelihood that the movant would prevail on the merits should he be allowed to litigate further.

The following additional orders are entered in order to safeguard the integrity of future communications between counsel and the Court:

(1) Counsel shall authorize no one but himself to retrieve documents from his Court box.

(2) Counsel shall authorize no one but himself to use his signature or to file or send under his name any document addressed to the Court, to other counsel, or to clients or other litigants. In the event it should become absolutely necessary to have any other person sign a document "for" counsel, this should be someone other than Mr. Pene, and such signature should be authorized only on documents that have been read over the telephone or otherwise communicated in their entirety to counsel and specifically approved by him.

(3) Counsel is directed not to sign any document submitted to the Court, to other counsel, or to clients or other litigants unless he has personally read it and it represents his own considered opinion with respect to the matters stated therein.

It is so Ordered.

*********

1. See T.C.R.C.P. Rule 6(a) (emphasis added):

In computing any period of time prescribed . ..by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allotted is less than 7 days, intermediate Saturday, Sundays, and legal holidays shall be excluded in the computation.

The tenth day from January 7, not counting January 7 itself but counting the last day of the ten days, was January 17. This was not a Saturday, a Sunday, or a legal holiday. (It was a Thursday.) Because the period prescribed by the statute, ten days, is not "less than 7 days," it does not matter that there was an intermediate legal holiday on January 15. Nor does it matter whether the order placed in counsel's Court box on January 7 was picked up by counsel on the same day or one or two days later.

Aoelua Family; Sa'ofetalai v.


AOELUA SA'OFETALAI, Appellant

v.

MEMBERS OF THE AOELUA FAMILY, Appellees

High Court of American Samoa
Appellate Division

AP No. 32-90

January 15, 1991

__________

An appellant has ten days to file an order for a transcript, to deposit with the reporter an amount of cash equal to the estimated cost of the transcript, and to file with the Clerk of the High Court the receipt for such deposit. A.C.R. 10(b)(1), (4).

An order for a transcript must be in writing, must be filed with the Clerk, and must be served on the appellee. A.C.R. 10(b)(1).

The only way to secure an extension of time in which to order a transcript is to file a motion with notice to the opposing parties, although the appellant would then bear the heavy burden of explaining why the motion was not filed before the expiration of the deadline.

Before REES, Associate Justice.

Counsel: For Appellant, Togiola T .A. Tulafono

  For Appellees, Charles V. Ala'ilima

On Request for Transcript:

OnDecember 21, 1990, appellant timely filed a notice of appeal and a request for an estimate of the cost of preparing a transcript. OnDecember 24, 1990, the court reporter filed the requested estimate, with a certificate of service on appellant's counsel.

Appellant then had ten days to file an order for a transcript, to deposit with the reporter an amount of cash equal to the estimated cost of the transcript, and to file with the Clerk of the High Court the receipt for such deposit. Appellate Court Rule 10(b)(1), (4). An order for a [18ASR2d2] transcript must be in writing, must be filed with the Clerk, and must be served on the appellee. Appellate Court Rule 10(b)(1).

The ten-day deadline for compliance with the provisions of Rule 10(b) expired on January 4, 1991. Appellant appears not to have done any of the things necessary to comply with the rule. Instead, on January 16, appellant's counsel's secretary gave an envelope containing cash in the amount of the required deposit to a colleague of the court reporter who had provided the estimate. No written order for a transcript has been filed with the clerk or served on appellee.

The only way to secure an extension of time in which to order a transcript is to file a motion with notice to the opposing parties. See Opapo v. Puailoa, 17 A.S.R.2d 30 (1990); Alaimalo v. Sivia, 17 A.S.R.2d 25 (1990). Appellant is still free to file such a motion, although he must now bear the heavy burden of explaining why the motion was not filed before the expiration of the deadline he sought to extend. The cash given to the court reporter has been deposited with the Clerk. It will be returned to appellant should he so request.

**********

American Samoa Gov’t v. Tuiasosopo,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

MARIOTA TUIASOSOPO, UIAGALELEI IONA, UIAGALELEI
LEALOFI, NAMU T. FA'ASEMOMO, and FALE L. FAI'AI for
and on behalf of the FA'AILIOILO HEIRS, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 61-90

March 19, 1991

__________

Where the only evidence as to the claims of two parties to shares of rental payments due is affidavits provided by those parties showing their respective percentages of interest in the rented land, those parties are entitled to summary judgment on the matter. T.C.R.C.P. Rule 56(e).

Before REES, Associate Justice, MATA'UTIA, Associate Judge, LOGOAI, Associate Judge.

Counsel: For Plaintiff, Arthur Ripley, Jr., Assistant Attorney General

  For Defendant Mariota Tuiasosopo, Gata E. Gurr [18ASR2d99]

  For Defendants Uiagalelei Iona and Uiagalelei Lealofi, Levaula Kamu

  For Defendants Fale L. Fai'ai and the Fa'ailioilo Heirs, Charles V. Ala'ilima

The American Samoa Government brought this action in interpleader to determine entitlement to certain rental payments (presently amounting to about $105,000) held in a bank account pending resolution of a dispute over the ownership of the land on which the territorial garbage dump is located. The ownership of this land has been adjudicated in Satele v. Uiagalelei, 6 A.S.R.2d 143 (1987), aff'd sub nom. Uiagalelei v. Fai'ai, 9 A.S.R.2d 19 (1988), and in Fauolo v. Satele, 15 A.S.R.2d 141 (1990). See also Uiagalelei v. Tuiasosopo, LT No. 64-76, CA No.3086-75 (Stipulated Judgment entered December 30, 1976; "Motion for Reconsideration and/or to Vacate Judgement" denied February 8, 1991).

Defendants Fai'ai and Namu move for partial summary judgment. Each of these two parties has submitted an affidavit from a surveyor, calculating the portion of the dump site that is within his or her property as described in the judgments in Satele v. Uiagalelei and Fauolo v. Satele. No other party has submitted an opposing affidavit, so technically the entire record before us consists of the evidence submitted by Fai'ai and Namu. This evidence being to the effect that the moving parties own respectively 44.823% and 2.13% of the disputed land and are therefore entitled to the same percentages of the accrued rents, and no other party having set forth by affidavit or otherwise specific evidentiary facts showing that there remain any genuine issues for trial, the moving parties are entitled to summary .judgment. See T.C.R.C.P. Rule 56(e).

We have, moreover, carefully reviewed the calculations in the surveyor's affidavits and are satisfied that they do reflect the location of the land which was held in Satele and Namu to belong to the two moving parties. The surveyor's calculations reflect precisely the situation of the various parties' land as depicted in the maps designated Uiagalelei Exhibits D and G in Satele v. Uiagalelei, supra, the two exhibits on which we principally relied in drawing the Uiagalelei/Tuiasosopo/Fa'ailioilo boundaries in the dump area. See 6 A.S.R.2d at 146.

We held in Satele that the Fa'ailoilo heirs owned the land below the "old boundary" in Exhibit G (Drawing 1531-A), the map of the dump lease site, which according to that exhibit would amount to about 2.6 acres; that Uiagalelei owned everything north of the "new boundary," [18ASR2d100] depicted as amounting to about 2.25 acres; and that Tuiasosopo and his siblings owned the acre, more or less, in between the two boundaries. The Fa'ailoilo surveyor's affidavit, submitted in connection with the present motion, claims exactly 2.606 acres.

Contrary to a suggestion made by counsel for Uiagalelei during argument on the present motions, it is also clear from an examination of Exhibits D and G and of our 1990 opinion in Namu that the tip of the southeastern panhandle of the dump lease site extends into land held to belong to Namu. Exhibit D, a "super-imposition drawing" also introduced as Uiagalelei Exhibit 13 in LT No.39-87, clearly shows that the easternmost boundary of the Uiagalelei property known as Saumolia I is along the Utuloa/Futiga paved road, and that the southeastern corner of this property is about 100 feet south of the fork leading into the dump area. Exhibit G, the dump lease site map, clearly shows that the southeastern panhandle of the leased land extends about 300 feet south/southeast of this same fork. This land is within the "eastern pocket" claimed by Namu in LT No. 39-87, which we held to belong to him, with the exception of those portions within the registered survey of Saumolia I in the north and the Ulufale survey in the south. Because the parcel described in the Namu surveyor's affidavit, a strip of land about 200 feet long by 30 feet wide, is within neither Saumolia I nor the Ulufale survey, it is within the land adjudicated to be the property of Namu. (We note, moreover, that this strip is well to the south of the "new boundary" in Exhibit G, which was held in the 1987 Satele case to be the southernmost boundary of Uiagalelei's property in the dump area. The location of this panhandle, well to the southeast of the Uiagalelei/Fa'ailoilo boundary, also appears clearly from a composite map of "Fasamea" and Drawing No. 1531-A, designated Plaintiffs Exhibit 1 in the 1975 trial of LT No. 64-76, and reintroduced as Exhibit 6 by Uiagalelei at the hearing on his recent motion to vacate the judgment in that case.)

Because the record before us in the present case, consisting solely of the affidavits and other documents submitted by Namu and Fai'ai, leaves no dispute about any fact material to their ownership of the two parcels in question---and also because any factual or legal issue that might have been raised by any party has been resolved by our holdings in Satele and Namu and in the recent denial of Uiagalelei's motion to vacate the judgment in CA No. 3086-75---the moving parties are entitled to partial summary judgment as follows:

The Fa'ailoilo heirs own 2.606 acres within the dump lease site. [18ASR2d101] This is 44.823% of the 5.814 acres comprising the leased land. They are entitled to 44.823% of the accrued funds in the account (representing rentals since 1979) and to the same percentage of any further rentals that should accrue under the 1979 interim agreement pending the negotiation of superseding agreements between the Government and the various landowners.

The Namu family owns 0.124 acres within the dump lease site, representing 2.13% of the total area. They are entitled to 2.13% of the accrued rental proceeds and to the same percentage of future rentals pending the negotiation of a superseding agreement.

Insofar as the motions request additional funds to compensate the moving parties for rentals alleged to have been wrongfully paid to Tuiasosopo between 1974 and 1979, they are denied. The interpled amount obviously includes no such funds, and the complaint in interpleader has nothing to say about them. Although several parties' answers do raise these and related questions, the parties' respective rights and obligations with respect to pre-1979 rents depend on various unresolved questions of fact and law.

Counsel for the Government has called to our attention the fact that the bank holding the funds is not a party to the case. We are informed by counsel that the three signatories on the account are attorneys who signed as representatives of the parties to the 1979 agreement, who are also parties to the present case. This judgment is binding on the parties and their representatives.

The Bank of Hawaii is authorized to distribute 44.823% of the funds in the Futiga Landfill Dump account to Fale Fai'ai in her capacity as administratrix of the Estate of Fa'ailoilo Fau'olo, and 2.13% of the funds in this account to Namu T. Fa'asemomo.  Should the Bank require a Court order specifically directing any party or his representative to execute a formal authorization for such distribution or to do any other act necessary to implement this judgment, counsel for the Government should draft and submit the appropriate order.

Judgment will enter in accordance with this opinion.

It is so Ordered.

*********

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

February 10, 1991

__________

A defendant will be found incompetent to stand trial if he does not have a sufficient and present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against him.

Although tests to assess general intelligence, capability of abstract thought, and presence of mental disorders had not been specifically "validated" for Samoans or Pacific Islanders as a group, there was little risk that such tests would give false results when applied to a Samoan defendant in determining his competency to stand trial. [18ASR2d43]

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

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

  For Defendant, Barry Rose, Assistant Public Defender

On August 7, 1990, after a hearing to determine the defendant's competency to stand trial pursuant to A.S.C.A. §§ 46.1301 et seq., we held that the evidence preponderated against a finding of present competency. We made it clear that the question was a close one and that our finding was partly due to the government's presentation of practically no evidence. (This was apparently due not to prosecutorial negligence but to last-minute difficulties in arrangements with the expert witness who had been scheduled to testify.) Although we had serious doubts about the conclusion of the expert witness presented by the defense, to the effect that defendant suffers from a mental disorder called dementia which makes it impossible for him to understand the proceedings against him or to assist in his own defense, we found this conclusion to be supported by the preponderance of the evidence presented at the hearing.

We ordered, pursuant to A.S.C.A. § 46.1305, that defendant be confined pending a further hearing to be held within 120 days to determine whether defendant was then competent to stand trial or, if not, was substantially likely to become competent within a year. The second competency hearing was held on December 7 and 10, 1990.

We now find the defendant competent to stand trial. The evidence taken at the second hearing, even when taken together with the evidence at the first hearing, preponderates against a finding that defendant suffers from dementia or any other severe mental disorder.

Although not of particularly high intelligence, defendant is not mentally retarded. He appears to have at least a rudimentary ability to think abstractly and to discuss concepts, including legal concepts. He is eager to assist in his own defense and gets along well with his attorney.

It does appear that there have been certain gaps or obstacles in defendant's ability to communicate with counsel about legal strategy. One such problem, defendant's apparent belief that he would be sentenced to death if convicted (despite counsel's assurance that American Samoa has no constitutionally enforceable death penalty statute), has been solved since the first hearing. Defendant no longer [18ASR2d44] believes he will get the death penalty.

Defendant still may have problems discussing certain other questions, particularly the insanity defense and the question of how and why a weapon that was involved in the case was transported to American Samoa. The evidence suggests, however, that these problems stem neither from any comprehensive mental disability nor (as the Government's expert suggested) from any defects in defense counsel, who appears to be doing an excellent job. Rather, the descriptions we have heard of defendant's statements on these issues impress us as having to do with emotional reactions such as many an otherwise reasonable person would have in contemplating the possibility of his own insanity or in discussing half-forgotten private thoughts and actions which may seem in retrospect to have been vague, confusing, or shameful. Even if defense counsel should have no success in his continuing effort to persuade defendant to adopt a more open and flexible attitude toward these issues, we could not say on that account alone that the defendant does not have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" or "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960).

Defendant does have a heart condition and other physical problems that could render him too ill for trial at any given time. If this appears to be the case on the day scheduled for trial, or becomes the case during the course of the trial, a continuance or even a mistrial might be necessary. We do not believe, however, that defendant's medical problems render him incompetent to stand trial. During the several days of the two competency hearings he appeared attentive and alert. Indeed, the defendant gave every outward appearance of understanding what was being said.

One incident, in which the defendant was for a few minutes unable to remember his counsel's name, does not fit easily into the above analysis. This may have been related to a "cardiac crisis" such as the defendant may have had on another occasion while being examined by the defense expert, or to a mild epileptic episode, or just to the fact that defendant had recently awakened and was momentarily disoriented. It could also be symptomatic of deeper problems. At present, however, it is the only incident of its kind of which we have been made aware. Perhaps the one fact on which the parties agree is that defendant generally has quite a good memory. Nor does the incident we have described suggest that the defendant is generally unable to work with his [18ASR2d45] counsel.

The expert witnesses for the two parties took quite different approaches to the evaluation of competency, and each made it clear that he did not think much of the methodology employed by the other. Although the Court adopts the conclusion advanced by the Government's expert, this is not to be taken as implicit acceptance of his criticism of the defense expert---nor, indeed, of outright rejection of all the defense's criticisms of the approach taken by the Government expert. In particular, the "Competency to Stand Trial Assessment Instrument" impressed us as simplistic and circular in theory and as highly susceptible to idiosyncracies and errors in application. Several other tests administered by the Government's expert, however, appear to be reliable in assessing general intelligence and the ability to think abstractly and in identifying symptoms of mental disorders that might interfere with such thinking. Although none of these tests appears to have been specifically "validated" for Samoans or Pacific islanders as a group, the literature supplied by both experts suggests that the risk run in giving the test to a member of a group for whom it has not been validated is that he will seem less intelligent or more psychotic than he really is, not the other way around. There does not seem to be any risk that such testing will generate a false impression of intelligence or of the absence of mental disorders.

The Court also questioned both experts at length about the data they considered in reaching their conclusions and has attempted, as far as possible, to make an independent evaluation of this data in light of the significance the experts suggested it ought to have and the Court's own understanding of the legal standards to be applied. The Court has also considered the information supplied by the other witnesses at the two hearings and in the affidavits of defense counsel and has listened to taped conversations with the defendant. Our conclusion is that the defendant, while undoubtedly quite far from being the perfect communicator or the perfect legal strategist, is capable of understanding the things he needs to understand in order to have a fair trial.

We hold that the defendant is competent to proceed. The case will be set for trial upon motion of either party.

*********

Fuimaono; Rakhshan v.


DAVOUD RAKHSHAN, Plaintiff

v.

ASAUA FUIMAONO, Defendant

High Court of American Samoa
Trial Division

CA No. 96-90

February 25, 1991

__________

An attorney who undertakes to conduct a legal proceeding promises, among other things, to see the matter through to its conclusion, and may not withdraw from the suit without the client's consent or justifiable cause.

An attorney who abandons a legal proceeding without justifiable cause or the client's consent is generally liable to the client for damages.

An attorney who signs a complaint certifies to the court that he has not only read the pleading but that, to the best of his knowledge, there is good ground to support it. T.C.R.C.P. Rule 11.

Even where an attorney's non-consensual withdrawal from representation of a client might be appropriate under the Model Code of Professional Conduct. the attorney nonetheless owes it to his client to first take all reasonable steps to secure his client's case from foreseeable prejudice.

To ensure that a client is not prejudiced by his attorney's withdrawal of representation. the attorney should take precautions such as giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with all applicable laws and rules.

Where validity of plaintiff’s action remains unchanged after inappropriate withdrawal of counsel, no damages will be found for former counsel's failure to prosecute a claim. [18ASR2d78]

Where plaintiff has had ample time to obtain substitute counsel but fails to do so because he "trusts no other lawyers," withdrawing counsel will not be assessed damages for leaving plaintiff to pursue his suit pro se .

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

Counsel: For Plaintiff, pro se

  For Defendant, pro se

Plaintiff Rakhshan claims damages against defendant Fuimaono for an alleged breach of a services contract.

I. Factual Background

By way of background, plaintiff is an Iranian national whom the American Samoan immigration authorities have been attempting, for some time now, to deport from the territory. In mid-1989, Rakhshan was ordered by the Immigration Board to depart the territory following the board's denial of his application for a work permit. (1) Until recently, Rakhshan has been assisted with his immigration matter by defendant Fuimaono, who is a practicing attorney.  Fuimaono's assistance has entailed appearances both before the Immigration Board and the Appellate Division of the High Court,(2) as well as arranging alternative counsel when he was himself temporarily unable to practice. The parties were lately personal friends who initially became acquainted through church meetings.  As Rakhshan's immigration problems unfolded, Fuimaono inevitably extended his hand of friendship by offering his professional assistance. For all intents and purposes, Fuimaono labored for his then-friend on a pro bono basis.

II. The Dispute

Fuimaono had also filed, however, on Rakhshan's behalf, a collateral civil suit against the government. This suit seeks damages in the amount of $1 million from the government for what is alleged was [18ASR2d79] Rakhshan's unlawful seizure and detention by certain immigration officers. See Complaint in Rakhshan v. American Samoa Government, CA No. 20-90. According to Fuimaono, the civil suit was filed primarily as a tactical manoeuvre in the hope of gaining some bargaining leeway with the government's unyielding view on the deportation issue---however, he thought the merits of the suit were dubious. Nevertheless, Fuimaono did not overlook the routine of having Rakhshan the client, execute a "contingency services agreement." It is this contingency agreement which is the basis of the dispute before us.

On August 28, 1990, the complaint in CA No.20-90 was dismissed by the Court for failure to state a claim, although plaintiff was given the opportunity to file an amended complaint within 10 days. The amended complaint as contemplated by the order was never in fact filed; however, on October 26, 1990, the Court was next alerted to the file by way of a pro se motion from Rakhshan requesting an extension of time to file the amended complaint on the ground that his lawyer had abandoned him. Rakhshan's motion was granted on November 23, 1990, over the government's objection, and he was afforded a further ten-day period to file his amended complaint. On November 28, 1990, Rakhshan filed his amended complaint ---albeit a reproduction (with the aid of a copying machine) of the earlier one dismissed.

At the same time, Rakhshan also prepared the pro se complaint now before us, which he filed on October 25, 1990. Here, his complaint is that Fuimaono had failed to honor the contingency agreement by failing to refile the amended complaint and omitting to notify him of that failure.

In his defense, Fuimaono denies withholding information from Rakhshan regarding the non-filing of an amended complaint. He testified that he had met with his client on at least two occasions within the ten- day limitations period, to discuss the merits of the suit. He testified that after the dismissal of the complaint, he immediately undertook further research on the merits of the case and then specifically confronted Rakhshan with his conclusions. In Fuimaono's opinion, neither the law nor the facts were favorable to Rakhshan's case, and he reiterated that the suit was essentially filed as a matter of strategy for employment with the deportation case. He also testified that the complaint in CA No. 20- 90 was largely premised upon information given to him by Rakhshan, but after interviewing witnesses in preparation for trial, he said that he found little support for his client's version of the facts. Defendant also said that he had further told his client that he was unable to do anything with the [18ASR2d80] case, which he considered a "dead horse," and he also urged his client to seek a second opinion on the matter while offering to move, in the meantime, for an extension of time to refile an amended complaint. Fuimaono added that Rakhshan, on the other hand, manifested less concern for strategy and was insisting that he wanted to go forward with the matter. Rakhshan has apparently not only declined the invitation to seek another lawyer but also declined the invitation to drop the case.

III. Breach of Contract

In terms of a lawyer's contractual obligations to his client, it is generally said that an attorney who undertakes to conduct a legal proceeding promises, among other things, to see the matter through to its conclusion, and he may not withdraw from the suit without the client's consent or without justifiable cause. See 7A C.J.S., Attorney & Client § 221.(3)  Further, a lawyer who abandons the conducting of a legal proceeding without justifiable cause or the client's consent is generally liable to the client for damages. 7A C.J.S., Attorney & Client § 235.

Notwithstanding Fuimaono's argument---that the suit, being of doubtful merit, was merely filed as part and parcel of the strategy employed in the immigration case ---we conclude that he had undertaken to prosecute Rakhshan's civil suit to its conclusion, as evidenced by the contingency agreement. When Fuimaono signed the complaint in CA No.20-90, he thereby certified to the Court, pursuant to Trial Court Rules of Civil Procedure, Rule 11, that he had not only read the pleading, "but [also] that to the best of his knowledge, information, and belief, there is good ground to support it. " Id. (emphasis added). Indeed, "[f]or a willful violation of this rule an attorney may be subjected to appropriate disciplinary action.”  Id. Furthermore, the very fact that the contingency agreement was not overlooked contradicts this argument. At the same time, the agreement has no bearing whatsoever to the immigration matter .

None having been shown, we also conclude on the evidence that Fuimaono abandoned the conducting of a legal proceeding without [18ASR2d81] reasonable or justifiable cause. Counsel's manner here in simply walking away was exceedingly risky from the client's point of view. Conceivably, the dismissal could very well have become one "with prejudice" had the other side, for example, made a case of plaintiffs non-compliance with the Court's ten-day time limitation period. Even where non-consensual withdrawal might be appropriate under the Model Code of Professional Conduct, Fuimaono nonetheless owed it to his client to take "all reasonable steps" to secure his client's case from "forseeable prejudice" before withdrawing. See AHA (1983) Model Code of Prof. Responsibility, DR 210(A)(2). Such steps include "giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules." Id. See alsoKirsch v. Duryea, 578 P.2d 935 (Cal. App. 1978).

We agree with plaintiff that Fuimaono breached the contingency agreement and is liable to him for any damages thereby arising.

IV. Damages

Damages, however, have not been proven nor are they apparent on the evidence. The potential harm with a prejudicial dismissal stemming from Fuimaono's failure to refile the amended complaint is now non-existent. Rahkshan is in exactly the same situation he was in prior to dismissal, while his suit is undoubtedly still open to prosecution to its logical conclusion. That is, Fuimaono's conduct has not cost plaintiff anything in terms of the viability of his suit. Thus, no damages are evident in this regard.

A case, however, might be made for damages premised on the argument that the viability of plaintiffs suit today, as compared to its viability prior to Fuimaono's unjustifiable withdrawal, is the difference between prosecution pro se, on the one hand, and prosecution by a trained professional, on the other. This argument, however, also presupposes that there are either no other lawyers available in the community to take up plaintiffs case or that there has been no time to arrange for such alternative professional assistance. The evidence points in the other direction. Several months have now passed since plaintiff filed his amended complaint in CA No.20-90 on November 28, 1990, and we note from that file that a trial setting for March 20, 1991, was ordered at Rakhshan’s request. It seems quite clear, therefore, that Rakhshan has had more than ample time to arrange substituted counsel. [18ASR2d82]

At the same time, there has been no attempt by Rakhshan to contact other counsel, while his reasons given for not seeking other counsel are that he trusts no other lawyers. These reasons are not only inconsistent with damages but also with the duty to mitigate damages---if damages are in fact available hereunder. .

We fail to find damages, and, therefore, enter judgment accordingly.

It is so Ordered.

*********

1. See Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (1989).

2. See Rakhshan v. Immigration Board, 15 A.S.R.2d 29 (1990).

3. Cf. ABA (1983) Model Rules of Professional Conduct. Rule 1.16(b) suggests that a lawyer has the "option" to seek a non-consensual withdrawal if it can be accomplished without "material adverse affect upon a client's interests.” See Comment.

Fai'ivae; Willis v.


TONY WILLIS on behalf of himself
and the HEIRS OF AMELIA VA, Plaintiff

v.

FAI'IVAE GALEA'I and FAI'IVAE FAMILY, TO'OMATA
M.T. TUITELE, CHIEFS OF
LEONE VILLAGE, SUAPA'lA
ANETERE' A, PIO LE'OSO and SE'E LE'OSO, Defendants

SA' AGA LEVI on behalf of himself and the
HEIRS OF AFELE LEVI, Plaintiff/Intervenor

WILLIAM AH KUOI, Defendant/Intervenor

PAT M. GALEA'I, Defendant/Intervenor

OLO LETULI, Defendant/Intervenor

SUAFO' A VELIO, Defendant/Intervenor

PIO SAGOTE on behalf of himself and the
SAGOTE FAMILY, Defendant/Intervenor

PULETU M. MEREDITH, Defendant/Intervenor

TAELEIFI MANE, Defendant/Intervenor

ROMAN CATHOLIC DIOCESE OF SAMOA-PAGO PAGO,
Intervenor

LE'OSO A. RIPLEY on behalf of the
LE'OSO FAMILY, Defendant/Intervenor

LE'OSO A. RIPLEY on behalf of the
Estate of EDWARD RIPLEY, Defendant/Intervenor

TONY WILLIS and VAETOIFAGA D. ASUEGA
on behalf of themselves and the
HEIRS OF AMELIA VA, Plaintiffs/Objectors

v.
[18ASR2d62]

FAI'IVAE FAMILY and
MALUOLEFALE P. SALAVE'A, Claimants/Defendants

TO'OMATA M.T. TUITELE, AVEGALIO FAMILY,
LE'ALAIALOA FAMILY, AIGAMAUA FAMILY,
CHIEFS AND TALKING CHIEFS OF LEONE,
FAI'IVAE GALEA'I, TAELEIFI A. RIPLEY,
and FAILAUTUSI A VEGALIO, Plaintiffs/Objectors

v.

DOROTHY V. ASUEGA on behalf of the
HEIRS OF AMELIA VATALAMAIVAO, Defendant/Claimant

TONY WILLIS, Plaintiff

v.

SU'A of the Village of Auma, ETUALE & SONS of the Village of Auma,
and DOES I through X, Defendants

TUITELELEAPAGA NAPOLEONE, Plaintiff

v.

TONY WILLIS, Defendant

LUCY UO AH CHING, EUGENE UO, EDWARD UO, and
EMILE UO for the UO FAMILY , Plaintiffs

v.

AMOS GALEA'I and FAI'IVAE GALEA'I, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 45-81
LT No. 45-82
LT No. 08-84
LT No. 22-86
LT No. 06-87

[18ASR2d63]

February 11, 1991

__________

Motion for reconsideration or new trial will be denied when parties agree to a settlement.

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

Counsel: For heirs of Amelia Va and Diocese of Samoa-Pago Pago, Charles V. Ala'ilima

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

  For To'omata and Suapa'ia, Tau'ese P.F. Sunia

  For Pio Le'oso, Se'e Le'oso, and Le'oso A. Ripley, Arthur Ripley Jr.

  For William Ah Kuoi, Lucy Uo Ah Ching, Eugene Uo, Edward Uo, and Uo and Iuli families, Gata E. Gurr

  For Olo, Suafo'a, Avegalio family, Aigamaua family, and Le'alaialoa family, Aitofele T. Sunia

  For Puletu, Isa-Lei F.

  Iuli Taeleifi pro se

  For Failautusi Avegalio, Asaua Fuimaono For Tuiteleleapaga, Tautai A.F. Fa'alevao

The hearing on this motion by Le'oso for new trial or amendment of our judgment was continued several times so as to allow the parties to attempt a settlement.

At the most recent hearing, counsel for Le'oso and counsel for Iuli informed the Court that these parties had reached a settlement. The terms of this settlement appear to be that Iuli will cede to Le'oso a portion of the land held to be his family's property but presently occupied by members of the Le'oso family, and Le'oso will agree to the dismissal of his motion for new trial or amendment of the .judgment with respect to the remainder of this land. We have been promised a written stipulation, which we expect to receive momentarily and which will be entered as an amendment to our judgment.

The remainder of the Le'oso motion had to do with land held to be the property of Taeleiti. At the recent hearing we were also informed that Le'oso and Taeleifi had not reached a settlement. Each of these two [18ASR2d64] parties agreed that the motion (insofar as it relates to land held to be Taeleifi property) would be submitted to the Court on the previous post- trial submissions, along with any additional written submissions the parties should submit by February 8. We have, however, received a "supplemental memorandum" (filed February 8) from Taeleifi, to the effect that some sort of settlement has in fact been reached between him and Le'oso. The terms of this settlement, according to Taeleifi, are that Taeleifi will "designate a portion of said disputed land awarded to the Sa Taeleifi family, for the use and occupation by Le'oso family members." It appears, however, that the details are yet to be worked out and that the parties have agreed "for counsel Ripley's appeal [on behalf of Le'oso] to proceed" while the parties negotiate such details.

The court has received no additional submission from counsel for Le'oso and therefore assumes that Taeleifi's memorandum represents the understanding of all parties.

Accordingly, the motion by Le'oso for new trial, reconsideration, or amendment of judgment is denied for the reasons stated in Part III(F) of our original opinion. We note, however, one apparent factual error in that opinion. A Taeleifi house which we identified as being "near the southeasternmost boundary" of the Taeleifi survey, although marked in that location on one of the exhibits, appears in fact to have been the same house which (prior to its substantial destruction by the 1990 hurricane) belonged to the children of Pepa Taeleifi and was adjacent to Pepa's house in the central, not the southeastern, portion of the Taeleifi survey. Although this change in our findings of fact tends to help Le'oso, we are not convinced that it should change our conclusion that there was sufficient Taeleifi activity in the area to prevent the Le'oso occupation from being exclusive for the requisite twenty-year period.

Accordingly, the motion is denied.

*********

Fagasoaia v. Fanene,


VALU FAGASOAIA and MAINA ATAFUA, for themselves and
on behalf of the FAGASOIA FAMILY of Nu'uli, Plaintiffs

v.

TUITOGAMAATOE FANENE, SIUFAGA FANENE, TUMEMA
KIM, DONG IK KIM, PUAO SIONE, TEVESI SIONE, and
PUAILOA TAVETE, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 34-90

February 13, 1991

__________

With respect to land, a separation agreement splits a pal1icular structure from the land on which it is built or is to be built, so that the structure will be the property of the person building it rather than the landowner. A.S.C.A. § 37.1501 et seq.

A traditional assignment of land from the matai to a family member does not imply permission to build new structures or materially change the character of the property.

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

Counsel: For Plaintiffs, Asaua Fuimaono

  For Defendants, Charles V. Ala'ilima

On Motion for Reconsideration:

This motion was heard onDecember 14, 1990. The Court announced from the bench its intention to deny the motion, except that the record would be left open for counsel to submit additional evidence with respect to two issues.

To restate briefly our principal reason for denying the motion, defendants are spectacularly wrong about the meaning of a separation agreement. Such an agreement "separates" a particular structure from the land on which it is built or to be built, so that the structure will be the property of the person building it rather than the landowner; nothing [18ASR2d73] more. Neither the statute authorizing such agreements, A.S.C.A. § 37.1501 et seq., nor the language of the particular separation agreement at issue in the present case even remotely implies that a person who has obtained a separation agreement for one structure may thereafter build other structures on the land, much less, as defendants assert, that "when there is a separation agreement, permits for building of structures within the area encompassed by the agreement [are] signed by the building owner, not the [landowner.] " The agreement at issue here identifies its subject as "a certain dwelling house" and the "said dwelling house" and identifies defendant Fanene as "the Building Owner."  It certainly did not give her a right to build a substantially new and far larger structure, to be used as a store and not a dwelling house, without permission of the matai of the family who owned the land.  See Roberts v. Sesepasara, 7 A.S.R.2d 139 (1988).

It is immaterial that defendant Fanene apparently attached to the copy of the agreement she filed in the Registrar's Office a map showing an area of land somewhat larger than necessary to build the dwelling house, and large enough for the store and much (but not all) of the other improvements she eventually authorized. It is not signed by Fagasoaia and there is no evidence that Fagasoaia knew anything about it. Moreover, even his endorsement of the map would not have changed the separation agreement into a blanket authorization to defendant to build whatever structures she pleased within the area in question.

This is particularly true of structures that would dramatically change the character of the use of the communal land in question. Even if defendant Fanene had had not only a separation agreement but also a traditional assignment of the land (as defendant Puao appears to have had on the other side of the road), she would have needed the permission of the matai for new structures and particularly for such a major change in the character of the property. A family member's right to live on family land does not include a right to build supermarkets, warehouses, and parking lots on it and rent these out to strangers. Cf. Roberts, supra, 7 A.S.R.2d at 142. In any event, the evidence in the present case is not to the effect that Fanene had a traditional assignment of the land; it is far more consistent with an assignment to her uncle, plaintiff Valu, whose permission she sought to build her house. It is ironic that she now uses the separation agreement as evidence of her right to dispossess Valu when the surrounding circumstances strongly suggest the matai may have signed precisely in deference to Valu's long possession of this area.

Finally, we did not and do not find that Fagasoaia signed the [18ASR2d74] agreement at all. Plaintiffs presented evidence tending to show that the signature on the document was not that of Fagasoaia. Plaintiffs also argued that defendant Fanene, who was then working in the Registrar's office, may have forged the signature. This is a most serious charge, and we see no reason to reach such a question when it would not affect our holding. If a separation agreement really meant what defendants say it means, however, it would become necessary to decide whether Fagasoaia really signed this one.

We left the record open for defendant Kim to present evidence of his expenditures on a warehouse across the road from the store. We are satisfied that he spent the $68,390.63 shown by his exhibits.

Defendant Kim also presented other voluminous post-trial exhibits (which, unlike the warehouse receipts, we did not request and did not expect) having to do with expenditures on things other than the warehouse. For a variety of reasons, we see no reason to change our judgment on account of these exhibits. For one thing, the family is entitled to the benefits of Kim's 1986 stipulation with defendant Fanene about his expenditures on the Valu/Fanene side of the road. For another, although we gave the family a credit for the year's free rent Kim has already had on the warehouse, we gave no such credit for the five years he has been using family property on the other side of the road. The amount of such a credit would more than offset any previously unreported expenditures Kim may have made.

Many of the expenditures put at issue after trial, moreover, were for a parking lot that was vigorously resisted by plaintiff Valu who preferred the coconut trees that were there before. Others are for hurricane damage for which it is virtually inconceivable that Kim has not been otherwise compensated and for which the family would have been compensated had its ownership of the buildings in question been recognized. It also appears that defendant Kim has inadvertently submitted some receipts which had to do not with the store, the warehouse, or the parking lot but with some of his other enterprises.

Finally, defendants submit that our estimate of $1500 as monthly rental for the warehouse is too high. Our estimate, however, was well within the range suggested by the post-trial exhibits submitted by defendants. As we understand the evidence presented at trial about the size of the warehouse, $1500 amounts to about 50 cents per square foot. Plaintiff has now submitted evidence of warehouse space renting for various amounts between 25 and 75 cents per square foot. (The 25-cent [18ASR2d75] warehouse actually rents for 50 cents per square foot of ground space, but has been divided into two stories. It is only six feet higher than the warehouse in the present case, and we cannot see that the division into two stories increases the amount of storage space.) The $1500 per month warehouse rental seems quite fair, at least as an interim figure pending negotiations between defendant Kim and the new Fagasoaia.

Our judgment is amended to omit the requirement that defendant Kim pay $1800 per month into the registry of the Court to be held for the benefit of the family. Instead, this monthly amount will continue to offset the as yet uncompensated portion of the $68,390.63 that Kim spent on the warehouse. (As of February 1, 1991, this uncompensated amount is $45,530.63.)

In all other respects the motion is denied.

It is so Ordered.

*********

Diocese of Samoa Pago Pago v. K.M.S.T., Inc.,


DIOCESE OF SAMOA PAGO PAGO, Plaintiff

v.

K.M.S. T. INC. and JUM YONG JONG, Defendants

NELSON & ROBERTSON PTY., LTD. and
SHANTILAL BROTHERS, LTD., Intervenors

High Court of American Samoa
Land and Titles Division

LT No. 18-90

February 13, 1991

__________

In American Samoa, unlike jurisdictions which follow the Uniform Commercial Code, reference in a mortgage to all of a mortgagor's property within a certain class does not amount to a description of each item within the class, sufficient to create a mortgage interest in that property. A.S.C.A. § 43.1510.

A judgment creditor at common law who acquired knowledge of an unrecorded mortgage at any time before executing upon specific property of the debtor would have been bound by the mortgage, unless the jurisdiction had statutory judgment liens; American Samoa has no such statutory judgment liens.

A judgment creditor's lien attaches at the moment he gives his writ of execution, duly issued and describing specific property, to the marshal or other officer who will enforce it. A.S.C.A. § 43.1523.

Inasmuch as I) the holder of an unrecorded or deficiently recorded mortgage could acquire a lien superior to any right of prior unsecured creditors of the mortgagee by properly recording his mortgage, 2) a judgment creditor would appear to be an unsecured creditor until the moment he gives his writ of execution to the marshal, and 3) the American Samoa statute clearly seems designed to make actual knowledge a complete substitute for the constructive knowledge provided by recordation, a mortgage holder's interest would have priority over a judgment creditor the moment that the judgment creditor found out that the mortgage existed, if the deficiency in the mortgage has arisen from nonrecordation or improper recordation. A.S.C.A. § 43.1523.

Where a mortgage document does not describe with sufficient specificity the property mortgaged, no amount of knowledge that the deficient mortgage exists can cure the deficiency; subsequent creditors with knowledge of the deficient mortgage are not bound thereby.

As between two judgment creditors, the one who first levies upon the property has priority, irregardless of the order in which the judgments were obtained. A.S.C.A. § 43.1523. [18ASR2d68]

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

Counsel: For Plaintiff, Charles v. Ala'ilima

  For Defendants, Togiola T.A. Tulatono

  For Intervenor Nelson & Robertson, John L. Ward II

  For Intervenor Shantilal Brothers, Gata E. Gurr

This case concerns some of the same parties as our recent opinion in Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 15 A.S.R.2d 115 (1990). It also presents a slightly different aspect of the same issue: the priority of liens among (1) the named mortgagee in a recorded document purporting to create a mortgage on all or essentially all the property owned by the mortgagor, but not describing any particular thing subject to the mortgage; (2) a judgment creditor of the named mortgagor, who had levied an execution upon certain property of the mortgagor/judgment debtor and caused it to be sold at a marshal's sale; and (3) another judgment creditor who had not levied an execution upon the subject property, but whose judgment was of earlier date than that of the creditor who had executed.

Intervenor Nelson & Robertson, the purported mortgagee, repeats the position we rejected in Shantilal, supra: that a reference ill a mortgage to all a mortgagor's property within a certain class amounts to a description of each item within the class. For reasons we discussed at length in Shantilal, we reject this proposition. The common-law courts were sharply divided on this question. See Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 16 A.S.R.2d 103, 104 (1990), and authorities cited therein. The Uniform Commercial Code resolved the question in other jurisdictions by providing that "any description ...is sufficient whether or not it is specific if it reasonably identifies what is described." U.C.C. § 9-110 (emphasis added). Our Fono chose not to adopt the Uniform Commercial Code but instead to resolve the question just as decisively the other way. The second article of American Samoa 's brief Commercial Code provides that a mortgage or other security device, in order to be effective against the world upon recordation, must "contain[] a description of the specific article, articles, or land ...mortgaged." A.S.C.A. § 43.1510. The mortgage in this case, which was the same one involved in Shantilal, contains no such description.

This case is different from Shantilal, however, in one important respect: the record in that case contained no indication that the levying [18ASR2d69] judgment creditor knew anything about the intervenors' mortgage until after it had secured its writ of execution. In the present case we judicially notice that the levying judgment creditor in this case, the Diocese of Samoa Pago Pago, acquired knowledge of the existence of the mortgage before it secured its writ. We know this because the Diocese was represented in the various hearings having to do with the post-execution motions in Shantilal, at which the present Intervenor's mortgage was the guest of honor. Neither the Diocese nor Shantilal (also an intervenor in the present case) appears to have had any knowledge of intervenor Nelson & Robertson 's mortgage before judgment, however.

Because our statute provides only that certain conditions (including the description of specific items) must be met in order for a mortgage to be valid "as to persons who do not have actual knowledge thereof," intervenor Nelson & Robertson argues that this case is distinguishable from Shantilal. Intervenor argues that its mortgage became binding on the Diocese as soon as it acquired actual knowledge of the document, notwithstanding that the description of mortgaged goods was insufficient to bind a person without actual knowledge.

Intervenor Nelson & Robertson appears to be correct in its argument that there was no such thing as a judgment lien at common law, and that a judgment creditor who acquired knowledge of an unrecorded mortgage at any time before executing upon specific property of the debtor would therefore have been bound by the mortgage unless he were lucky enough to live in a jurisdiction with statutory judgment liens.  See generally 46 Am. Jur. 2d, Judgments §§ 237-45. American Samoa has no statutory judgment lien; instead, our statute on execution of judgments strongly implies that a judgment creditor's lien attaches at the moment he gives his writ of execution, duly issued and describing specific property, to the marshal or other officer who will enforce it. A.S.C.A. § 43.1523.  Inasmuch as (1) the holder of an unrecorded or deficiently recorded mortgage could acquire a lien superior to any right of prior unsecured creditors of the mortgagee by properly recording his mortgage, (2) a judgment creditor would appear to be an unsecured creditor until the moment he gives his writ of execution to the marshal, and (3) our statute clearly seems designed to make "actual knowledge" a complete substitute for the constructive knowledge provided by recordation, we conclude that intervenor's mortgage would have become binding on the Diocese the moment it found out there was such a mortgage if the deficiency in the mortgage had arisen from nonrecordation or improper recordation.

The problem with this mortgage, however, was not that it was [18ASR2d70] deficiently recorded. The problem was that it was not a mortgage at all; it did not purport to create a security interest in any particular thing, but in everything. Such documents were never treated as deficiently recorded; rather, they were treated by some courts as perfectly valid and by others as deficient in themselves. Where the problem with a mortgage has to do with the process by which the world is supposed to receive constructive notice of it, it makes sense that actual knowledge should serve as a complete substitute for such constructive notice. When the problem has to do with the inadequacy of the mortgage itself, as is the case with insufficiencies of description, no amount of knowledge that the deficient document exists can cure the deficiency. See, e.g., Arro Oil & Refining Co. v. Montana Dakota Grain Co., 286 P. 1115 (Mont. 1930); Strong City Gin Co. v. Herring & Young, 79 P.2d 582 (Okla. 1938).

The language of our statute, it is true, can be read to contain a negative, pregnant inference that actual knowledge cures any deficiency at all. Because the statute says deficient (or deficiently recorded) mortgages are not binding on persons without actual knowledge, the argument goes, the statute must mean that they are binding on persons with actual knowledge. But such a reading wrenches the language from its purpose. Some of the requisites provided by the statute have to do with the manner of recordation, and we have no doubt that actual knowledge is a substitute for deficiencies in these respects. Others, such as the requirement that the mortgage be in writing, be signed by the mortgagor, and include a description of the specific article or articles mortgaged, go to the essence of the document.

To argue that ally problem in a purported mortgage, not just problems in recordation, can be cured by actual knowledge leads to absurd results. According to this argument, a selectively binding mortgage would be created when a debtor should say to one of his creditors, "Bill, as far as I am concerned your debt is secured by everything I own. I want you to take ahead of everyone else." Assuming that the debtor subsequently refused to put this statement in writing or to sign a writing incorporating its terms, the "mortgage" could never be recorded, for several excellent reasons. To those creditors unfortunate enough to have been within earshot, however, or to be told about the conversation years later just as they were about to hand the marshal their writs of execution, it would be dispositive. The statute, after all, only says that a mortgage must be written and signed in order to be valid as to persons "without actual knowledge. [18ASR2d71]

We reject this approach in favor of one that reads the "actual knowledge" language in light of its purpose. There is no question that the judgment creditors in this case had constructive knowledge of intervenor's mortgage from the moment it was recorded. For the reasons we have set forth in Shantilal, this constructive knowledge made no difference because it was knowledge of a mortgage that did not apply to any particular thing. For the same reasons, the actual knowledge the judgment creditors acquired after they had secured their judgments did not affect their right to execute upon specific property of the debtor.

We hold that the Diocese acquired a lien on the subject property when it gave its writ of execution to the marshal. Shantilal's prior judgment did not give it a lien superior to that of the creditor who levied upon the property first. See A.S.C.A. § 43.1523. Nor did the deficient mortgage or the Diocese's knowledge of it create a prior lien. The Diocese is therefore entitled to the proceeds of the marshal's sale, the total amount of which is smaller than the amount of its judgment against K.M.S.T. The stay of distribution will be denied.

This order is stayed for ten days or until the disposition of any timely filed motion for reconsideration or new trial, whichever comes last.

It is so Ordered.

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Bank of Hawaii ; Pene v.


SEIGAFOLAVA R. PENE (H/C) and CARMENCITA PENE, Appellants

v.

BANK OF HAWAII, Appellee

High Court of American Samoa
Appellate Division

AP No. 11-89

February 20, 1991

__________

A party who desires costs to be assigned shall state them in an itemized and verified bill of costs which shall he filed with the clerk, with proof of service, within 14 days after the entry of judgment. A.C.R.39(d). [18ASR2d76]

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, MALEATASI, Acting Associate Justice***, TAUANU'U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellants, Pro Se

  For Appellee, John L. Ward II

On Application for Costs:

Appellee Bank of Hawaii has filed an application for costs to be added to the court's mandate of December 11, 1990, affirming the trial court's decision. Appellee states that pursuant to the terms of appellants' promissory note, appellants are obligated to pay for reasonable attorney tees up to 25% of the unpaid amounts.

The trial court's amended judgment of February 3, 1989, affirmed by this court on December 11, 1990, found that the appellants' obligation to appellee, including the outstanding principal and interest, totaled $8,858.21. Appellee states that attorney's fees and cost now total $1,956.50, which is less then 25% of the judgment against the appellants and is therefore authorized under the terms of the note.

Appellee brings this motion pursuant to Appellate Court Rule 39(d) and/or (e). However, Rule 39(d) requires that a party who desires costs to be taxed shall state them in an itemized and verified bill of costs which shall be filed with the clerk, with proof of service, within 14 days after the entry of judgment. No such itemized bill was submitted to the court, and the application for costs itself was filed onJanuary 14, 1991, while the opinion and judgment of this court was filed onDecember 11, 1990.

Accordingly, as appellee has not yet submitted a properly itemized bill of costs and has not yet explained its apparently overdue filing time, the court hereby DENIES appellee's application for costs to [18ASR2d77] be added to the mandate.

*********

*Honorable Harold M. Fong, Senior Judge United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld. DistrictJudge,United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

***Honorable Malaetasi M. Togatu’u, District Judge, High Court of American Samoa, serving by designation of the Secretary of the Interior.

Bank of Hawaii; Pene v.


SEIGAFOLAVA R. PENE (H/C) and CARMENCITA PENE, Appellants

v.

BANK OF HAWAII, Appellee

High Court of American Samoa
Appellate Division

AP No. 11-89

February 11, 1991

__________

Informal statements of traditional Samoan custom and law are neither binding on the Court nor persuasive, as they do not represent a recitation of legal authority.

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, MALAETASI, Acting Associate Justice***, TAUNU'U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellants, Pro Se

  For Appellee, Johnn L. Ward II

Appellants Seigafolava R. Pene (H/C) and Carmencita Pene (hereinafter the Penes) petition this court for rehearing and/or reconsideration of the Opinion and Order filed by this court on December 11, 1990, affirming the trial court's order granting summary judgment in favor of appellee/plaintiff Bank of Hawaii.

Appellants first cite both an article entitled Fa'asamoaaa vs. U.S. Constitution, Samoa J. & Advertiser, Aug. 1, 1985, and a speech given [18ASR2d66] by the acting Governor of American Samoa, Faleomavaega Eni Hunkin, on August 25, 1986, for the proposition that this court must follow traditional Samoan law and should therefore dismiss the instant complaint. Neither citation is binding upon this court, nor are they even persuasive, as neither represents a recitation of legal authority.

Appellants attempt to argue that the court has no jurisdiction over the instant suit. However, A.S.C.A. § 3.0103, cited by appellants, clearly states that a court may exercise personal jurisdiction in civil cases over persons residing or found inAmerican Samoa. Appellants have been residents ofAmerican Samoafor more than five years and therefore are subject to personal Jurisdiction of this court.

In the petition for rehearing and/or reconsideration, appellants merely restate their previous position that the customary law of Samoa supports their previous position that the customary law of Samoa supports their contention that the Note and Security Agreement executed by the Penes on December 22, 1982, is an "unwritten" contract rather than a "written contract" for the purposes of determining the appropriate statute of limitations. As the court stated in its original Opinion and Order, appellants have not produced adequate evidence to support their claim that the cases cited by appellees are inapplicable, nor have they produced adequate evidence to support their own interpretation of customary law. Appellants' present attempts to persuade the court by attaching their own schematic diagrams of their views of the current state of Samoan customary law are equally unpersuasive upon this court.

Finally, appellants' assertion that Mr. Pene was not fully apprised of the transactions in this matter carries no weight, as the alleged strife between Mr. Pene and his wife has no effect upon the "unwritten" or "written" status of the Note and Security Agreement at issue in this case.

Accordingly, having reviewed appellants' arguments in support of their petition for rehearing and finding none compelling, appellant's petition for rehearing and/or reconsideration of the court's Opinion and Order ofDecember 11, 1990, is hereby DENIED.

*********

* Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

*** Honorable Malaetasi M. Togafau, District Judge, High Court of American Samoa, serving by designation of the Secretary of the Interior.