26ASR2d

26ASR2d

Tuimavave; McKenzie v.


AUGUSTINE M. McKENZIE, Plaintiff

v.

TUIMAVAVE T. LE`IATO and GAFA TAUVEUVEU, Defendants

High Court of American Samoa
Trial Division

MISC No. 1-94

May 19, 1994

__________

[1] General statements are insufficient to make the required showing that plaintiff has necessary expenditures which would preclude his paying the filing fee.

Before RICHMOND, Associate Justice.

Counsel: Plaintiff, Pro Se

Second Order Denying Motion for Leave to Proceed In Forma Pauperis:

Plaintiff, an inmate at the Tafuna Correctional Facility, submitted his motion for leave to proceed in forma pauperis on March 29, 1994. Plaintiff's motion was denied in an order filed April 4, 1994. On May 11, 1994, plaintiff resubmitted his motion, though this time it was accompanied by an affidavit. He also enclosed $15 to cover a portion of the filing fee. This money is being held by the Clerk of Courts pending the resolution of plaintiff's motion.

[1] Plaintiff has failed to show that he is eligible to proceed in forma pauperis. In his affidavit, plaintiff states that he makes up to $100 per month selling crops. He also has $31.87 in cash and receives cash gifts of $5-$20 from friends and relatives. Furthermore, his mother receives $590 in monthly Social Security payments. In contrast, the territorial government provides plaintiff's food and shelter, sparing him those major costs of living. Although making general statements, he has not shown any necessary expenditures which would preclude his paying the filing fee.

Therefore, plaintiff's second motion for leave to proceed in forma pauperis is denied. The Clerk of Courts is to return plaintiff's $15. [26ASR2d74]

It is so ordered.

*********

Tuimavave; McKenzie v.


AUGUSTINE M. McKENZIE, Plaintiff

v.

TUIMAVAVE T. LE`IATO and GAFA TAUVEUVEU, Defendants

High Court of American Samoa
Trial Division

Misc. No. 1-94

April 4, 1994

__________

[1] Reasonable costs may be required of litigants. Because litigation costs are borne not only by a plaintiff but also by defendants, taxpayers, and parties in other lawsuits (which may be delayed or receive less attention), even a small filing fee helps a plaintiff to think about the merits of his case. An indigent plaintiff may even be required to pay a partial filing fee.

[2] A litigant desiring to proceed in forma pauperis must submit a sworn affidavit supporting his motion. The affidavit is to specifically detail the reasons for the alleged inability to pay court fees and must enumerate all sources of funds.

[3] Proceeding in forma pauperis is undeniably a privilege and not a right; therefore, permission to do so is at the court's discretion.

Before RICHMOND, Associate Justice.

Counsel: Plaintiff, Pro Se

Order Denying Motion for Leave to Proceed In Forma Pauperis:

Plaintiff is currently an inmate at the Tafuna Correctional Facility. Seeking injunctions against various alleged constitutional violations, he submitted his motion for leave to proceed in forma pauperis on March 29, [26ASR2d14] 1994.(1) However, plaintiff has failed to meet the requirements for obtaining in forma pauperis status.

[1] Reasonable costs may be required of litigants. Because litigation costs are borne not only by a plaintiff but also by defendants, taxpayers, and parties in other lawsuits (which may be delayed or receive less attention), even a small filing fee helps a plaintiff to think about the merits of his case. An indigent plaintiff may even be required to pay a partial filing fee. Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 259 (7th Cir. 1987).

[2] A litigant desiring to proceed in forma pauperis must submit a sworn affidavit supporting his motion. Cf. A.C.R.24 (a) (requiring, in an appeal of criminal action, the filing of "an affidavit showing, in the detail prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issued which he intends to present"). The affidavit is to specifically detail the reasons for the alleged inability to pay court fees and must enumerate all sources of funds. See American Samoa Gov't v. Fesagaiga , 4 A.S.R.2d 29 (Trial Div. 1987) (in determining need to appoint counsel for an indigent person, "the court should consider all funds available to the defendant from all sources, not just the income from his employment.") (syllabus).

[3] Proceeding in forma pauperis is undeniably a privilege and not a right; therefore, permission to do so is at the court's discretion. Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986) (citing Carter v. Thomas, 527 F.2d 1332 (5th Cir. 1976); Watson v. Ault, 525 F.2d 886 (5th Cir. 1976)); see Pene v. American Samoa Power Auth., 10 A.S.R.2d 61 (App. Div. 1989) ("There is no general constitutional right of indigent persons to litigate free of charge.") (syllabus). The problem with in forma pauperis litigation, especially by prisoners, is described as follows:

[T]he problem of litigation that generates social costs in excess
of its social benefits is particularly acute with respect to litigation
by indigents, since they cannot be deterred from suit by the
prospect of having to pay their adversaries' legal expenses
should the suit be adjudged frivolous. The problem is even
more acute when the indigent plaintiff is a prison inmate, because
the costs of a prisoner's time are very low.

Lumbert, 827 F.2d at 259. In light of the government's interest in discouraging meritless lawsuits, the requirement that persons seeking in forma pauperis status must complete detailed affidavits "ensures that those with sufficient resources will not claim poverty and receive in forma pauperis treatment through the use of artfully drafted affidavits of poverty." Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982).

Plaintiff has failed to meet the minimum requirements necessary to proceed in forma pauperis. First, plaintiff's self-styled "affidavit" does not contain the required oath or affirmation before a notary public. Second, this document is vague, ambiguous, and does not clearly show an inability to pay the court's fees. Plaintiff states he sells crops for "some [sic] $15 to $35 per sold [sic], some months I get as much as $100 - otherwise average $5 to $50 per month." He also states that he receives cash gifts from family and friends. These differing income estimates do not clearly prove indigence; indeed, they seem to support plaintiff's ability to pay the filing fee. He also does not indicate whether he has any bank or prison accounts or the amount of their respective balances. Neither has plaintiff, whose food and shelter are provided by the prison, enumerated any necessary expenditures which would preclude paying the filing fee. See Lumbert, 827 F.2d at 260 (as shown by his purchasing peanuts and candy at the prison commissary, an inmate was able to pay a $7.20 partial filing fee but had made an "implied evaluation" of his lawsuit, which the district court was "entitled to honor").

Plaintiff has failed to show his eligibility for leave to proceed in forma pauperis.(2) Therefore, plaintiff's motion for leave to proceed in forma pauperis is denied.

It is so ordered.

**********

1. Plaintiff's motion is improperly captioned as being filed in the non-existent Civil Division of the District Court of American Samoa. The motion is properly presented to the Trial Division of the High Court of American Samoa. Furthermore, his citing of the federal in forma pauperis statute is inappropriate, as American Samoa does not have a statutory counterpart to 28 U.S.C. § 1915.

2. This order does not address the merits, if any, of plaintiff's case.

Togafau; Mulitauaopele v.


ALAMOANA S. MULITAUAOPELE, as Fono Representative and
Individual, Petitioner

v.

MALAETASI M. TOGAFAU, as Attorney General, American
Samoa Government, Respondent

High Court of American Samoa
Trial Division

CA No. 05-94

May 5, 1994

__________

[1] American Samoa's declaratory-judgment statute limits such relief to a person "interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property." A.S.C.A. § 43.1101.

[2] The court retains the discretion not to grant declaratory relief if "not necessary or proper." A.S.C.A. § 43.1102.

[3] The doctrine of standing is derived from the "case or controversy" requirement in Article III of the United States Constitution. This limitation imposed by a standing requirement is based on the separation of powers which underlies the federal government. Because the government and constitution of American Samoa are based on the U.S. model, those principles generally apply to the judiciary of this territory.

[4] To establish standing, a party must demonstrate (1) "injury in fact," meaning an invasion of a legally protected interest that is "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;" (2) a causal relationship between the injury and the challenged conduct, meaning that the injury "fairly can be traced to the challenged action of the defendant," and has not resulted "from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, meaning that the "prospect of obtaining relief from the injury as a result of a favorable ruling" is not "too speculative."

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

Counsel: Petitioner, Pro Se
For Respondent, Cherie S. Norman, Assistant Attorney General

Opinion and Order on Motion to Dismiss Petition for Declaratory Relief: [26ASR2d53]

Petitioner filed his request for declaratory relief on January 5, 1994. Respondent filed his motion to dismiss on January 24, 1994. On April 29, 1994, a hearing was held on respondent's motion. For the following reasons, respondent's motion is granted.

First, petitioner claims that a conflict exists between the Attorney General's "verbal opinion" and A.S.C.A. § 1.0405(a). This provision says that "[a]ny person claiming succession to a matai title shall file with the territorial registrar a written claim of succession to the title." However, the Attorney General is clearly not trying to claim a matai title. Thus, this statute on its face is inapplicable to this case.

[1-2] Second, American Samoa's declaratory-judgment statute limits such relief to a person "interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property." A.S.C.A. § 43.1101. Petitioner is not disputing his rights under a written document or in regards to property, nor are his rights or duties with the Attorney General or another person at issue. As such, petitioner falls outside the scope of the statute. In any event, this court retains the discretion not to grant declaratory relief if "not necessary or proper." A.S.C.A. § 43.1102.

[3-4] Third, petitioner lacks standing to pursue this case. The doctrine of standing is derived from the "case or controversy" requirement in Article III of the United States Constitution. This limitation imposed by a standing requirement is based on the separation of powers which underlies the federal government. Northeastern Fla. Chapter of the Assoc. Gen. Contractors of America v. City of Jacksonville, Fla., 508 U.S. ___, ___, 124 L. Ed. 2d 586, 595 (1993) (citing Lujan v. Defenders of Wildlife, 504 U.S. ___, ___, 119 L. Ed. 2d 351, 364 (1992); Allen v. Wright, 468 U.S. 737, 750, (1984)). Because the government and constitution of American Samoa are based on the U.S. model, those principles generally apply to the judiciary of this territory.

To establish standing, a party must demonstrate the following:

(1) "injury in fact," by which we mean an invasion of a legally
protected interest that is "(a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical;" (2) a
causal relationship between the injury and the challenged conduct,
by which we mean that the injury "fairly can be traced to the
[26ASR2d54] challenged action of the defendant," and has
not resulted "from the independent action of some third party
not before the court; and (3) a likelihood that the injury will be
redressed by a favorable decision, by which we mean that the
"prospect of obtaining relief from the injury as a result of a
favorable ruling" is not "too speculative." These elements are
the "irreducible minimum" required by the Constitution.

Id. at ___, 124 L. Ed. 2d at 595-96 (internal citations omitted); see Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, (1982). In addition to these constitutional minima, the Supreme Court has added the following limits:

First, the Court has held that when the asserted harm is a
"generalized grievance" shared in substantially equal measure
by all or a large class of citizens, that harm alone normally does
not warrant exercise of jurisdiction. Second, even when the
plaintiff has alleged injury sufficient to meet the "case or controversy"
requirement, this Court has held that the plaintiff generally must
assert his own legal rights and interests, and cannot rest his claim
to relief on the legal rights or interests of third parties. Without
such limitations--closely related to Art III concerns but essentially
matters of judicial self-governance--the courts would be called
upon to decide abstract questions of wide public significance
even though other governmental institutions may be more
competent to address the questions and even though judicial
intervention may be unnecessary to protect individual rights.

Warth v. Seldin, 422 U.S. 490, 499-500, (1975) (internal citations omitted); see Valley Forge, 454 U.S. at 474-75, (plaintiff's complaint must also fall within "zone of interests" protected or regulated by a statute or constitutional provision); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 & n.6, (1979).

Petitioner has failed to show that his petition for declaratory relief meets the requirements for standing, as he has not shown that he has suffered any actual, particular, and imminent harm. Neither his positions as "a duly elected member" and "Vice-Chairman of Government Operations" in the territorial House of Representatives nor his status as "a voter, resident and [26ASR2d55] taxpayer" confer standing on petitioner. At most, his pleadings merely seem to assert a "generalized grievance" or the legal rights of others. (1)

Furthermore, many of petitioner's arguments appear premised on his assertion that there is only one Mulitauaopele family and title. See, e.g., Petitioner's "Supplemental Pre-Hearing Memorandum," at 3. However, this court has recognized the existence of two distinct Mulitauaopele families and matai titles. In re Matai Title Mulitauaopele, 16 A.S.R.2d 63 (Land & Titles Div. 1990), aff'd 25 A.S.R.2d 43 (App. Div. 1993). Insofar as petitioner may be attempting to relitigate this court's decision, the judgment stands and is binding on him.

Petitioner lacks the requisite standing to maintain his lawsuit. Therefore, respondent's motion to dismiss is granted.

It is so ordered.

*********

1. Those family members who claim entitlement or right to the Mulitauaopele title, left vacant at the demise of Mulitauaopele Tamotu, would have standing; their representative to the Fono does not gain standing vicariously by virtue of his office.

Utu; Paolo v.


PAOLO SIVIA, MOENOA SIVIA, and PAOLO FAMILY,
Appellants

v.

UTU SINAGEGE and UTU FAMILY, Appellees

High Court of American Samoa
Appellate Division
[26ASR2d19]

AP No. 26-92
(LT No. 45-90)

April 5, 1994

__________

[1] In reviewing a decision of the Land and Titles Division or the Trial Division, the Appellate Division utilizes a "clear error" standard. This standard of review applies to the lower court's evaluation of witnesses' credibility.

Before RICHMOND, Associate Justice, CANBY, (1) Acting Associate Justice, MUNSON,(2) Acting Associate Justice, VAIVAO, Associate Judge, BETHAM, Associate Judge.

Counsel: For Appellants, Togiola T.A. Tulafono
For Appellees, Fainu`ulelei L.F. Ala`ilima-Utu

RICHMOND, Justice:

On November 10, 1993, oral arguments were heard in the appeal of the October 28, 1993, decision of the trial court. This decision found that the land at issue belonged to appellee Utu family and enjoined appellants from further construction on that land.

[1] In reviewing a decision of the Land and Titles Division or the Trial Division, the Appellate Division utilizes a "clear error" standard. A.S.C.A. § 43.0801 (b); T.C.R.C.P. 52 (a); see Moea`i v. Alai`a , 12 A.S.R.2d 91, 92 (App. Div. 1989); Tuileata Family v. Amituana`i, 8 A.S.R.2d 173, 175 (App. Div. 1988). This standard of review applies to the lower court's evaluation of witnesses' credibility. Moea`i, 12 A.S.R.2d at 92 (quoting T.C.R.C.P. 52 (a)); National Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 94-95 (App. Div. 1986). When conflicting testimony has been presented, "believ[ing] the witnesses favoring the appellee and disbelieving those favoring the appellant . . . is the prerogative of the trial court which saw and heard the witnesses." National Pac. Ins., 3 A.S.R.2d at 94.

Appellants' arguments essentially consisted of asserting that their witnesses [26ASR2d20] and not appellees' witnesses should be believed, as well as claiming that landmarks and construction on the land supported their ownership claim. However, these arguments only dispute the trial court's evaluation of the evidence. Determining the credibility and weight of the evidence is the function of the trial court, and its findings were amply supported by the evidence. Therefore, the decision of the Land and Titles Division is affirmed.

It is so ordered.

**********

1. Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

2. Alex R. Munson, Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

Uiagalelei v. Ulufale,


UIAGALELEI IONA, and the UIAGALELEI FAMILY, Appellants

v.

ULUFALE SAFUE, OSSIE M. MORRIS Also Known As
OSOVALE FA`ASUAMALIE, Appellees

High Court of American Samoa
Appellate Division

AP No. 15-92

August 19, 1994

__________

[1] The Appellate Division of this court can set aside findings of the trial court only if they are clearly erroneous, and may not simply re-weigh the facts presented at trial.

Before:WARD,* Acting Associate Justice, CANBY,** Acting Associate Justice, MUNSON,*** Acting Associate Justice,, VAIVAO, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant, Levaula S. Kamu
For Appellee, Gata E. Gurr

WARD, Acting Associate Justice:

This Appeal involves a dispute over a piece of land claimed as the communal property of two families, the Uiagalelei's and the Ulufale's. This dispute began when a member of the Ulufale family began construction of a house on the land in 1990; the Uiagalelei family bringing an action for eviction. The trial court, after weighing two families' often contradictory evidence, ruled in favor of the Ulufale family and denied the eviction.

Appellant/Plaintiff Uiagalelei appealed the trial court's decision, submitting that its findings of fact were clearly erroneous, (even "fabricated"). Appellant argued that the opinion of the trial court was clearly erroneous in that the court's opinion contained erroneous references to the trial transcript at several points.

[1] This court can set aside findings of the trial court only if they are clearly erroneous. Uiagalelei Iona v. Ulufale Safue, 17 A.S.R.2d 158, 160 (App Div. 1990) citing Malaga v. Mase, 3 A.S.R. 518 (App. Div. 1957); Tiumale v. Tiumale, 3 A.S.R. 502 (App. Div. 1956). In this appeal appellant is in essence urging this court to reweigh the facts presented at trial, an area specifically reserved for the trier of fact, who is in a unique position to hear evidence and observe the demeanor of witnesses. The trial court found that the occupants of the land were members of the Ulufale family and had rendered service to that family for many years. Despite appellants' allegations to the contrary, this court does not find the trial court's version of the facts to be clearly erroneous, as there is sufficient evidence in the record to support the holding. Additionally, while the trial court's opinion is at variance with the trial transcript at some points, each instance is minor, and cumulatively do not present reversible error.

The trial court's findings are not dispositive of the question of title to the land, nor do we decide that question now. The true holder of title will have to be left to further determination. The trial court's opinion, as it specifically decides the eviction action, however, is hereby AFFIRMED.

It is so ordered.

*********

* The Honorable John L. Ward, District Judge, High Court of American Samoa, sitting by designation of the United States Secretary of the Interior.

** The Honorable William C. Canby, Jr., Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation of the Secretary of the Interior.

*** The Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, sitting by designation of the United States Secretary of the Interior.

Lutali; Senate v.


THE SENATE OF THE LEGISLATURE OF AMERICAN
SAMOA, LETULI TOLOA, in his capacity as Senate President,
and alternatively, as a taxpayer,and TUILEFANO VAELA`A and
TUANA`ITAU TUIA, in their capacity as Senators, and
alternatively, as taxpayers, Plaintiffs

v.

A.P. LUTALI, Governor of American Samoa, MALAETASI
TOGAFAU, in his capacity as Attorney General of American
Samoa, AITOFELE SUNIA,Treasurer of American Samoa, OPA
JOSEPH IULI, Director of Program Planning and Budget
Development, and SAPINI SIATU`U, Director of Human
Resources, Defendants

High Court of American Samoa
Trial Division

CA No. 40-94

August 29, 1994

__________

[1] The ability of the House or Senate to maintain a suit against the executive branch is, in the proper circumstances, beyond question.

[2] The test for standing is whether or not the plaintiffs have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues.

[3] It is well established that it is not enough to qualify, for standing purposes, merely as a taxpayer. A party must establish that the alleged conduct would result in a tax increase or cause other irreparable injury. This injury must be different than that endured by the citizenry en masse. Additionally, there must be a logical nexus between the alleged wrongful behavior and the harm suffered.

[4] A case becomes moot when the issues are no longer "live" or the parties lack a legally cognizable interest in the outcome.

[5] There is an exception to the mootness rule where the case is "capable of repetition, yet evading review". In non-class actions, this exception is limited to cases where (1) a defendant terminates the challenged action before the issue is fully litigated, and (2) there is a reasonable expectation the plaintiff would be subject to the same actions in the future.

[6] For purpose of the exception to the mootness rule "reasonable expectation" must go beyond a theoretical possibility of repetition to the same plaintiff. However, the case is not rendered moot simply by the fact that the defendant has, at the moment, ceased the behavior at issue.

[7] A controversy still smolders when the defendant has voluntarily, but not necessarily [26ASR2d126] permanently, ceased to engage in the allegedly wrongful conduct.

[8] Joinder is appropriate when the court is asked to adjudicate upon the rights of a party who is not presently before the court.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiffs, Arthur Ripley, Jr., and Gata E. Gurr
For Defendants, Jennifer L. Joneson, Assistant Attorney General, and Elvis R.P. Patea, Assistant Attorney General

Order Denying in Part and Granting in part Motion to Dismiss:

Presently, we have before us defendants' motion to dismiss plaintiffs' amended complaint. First, we will briefly state the history of this case.

HISTORY

In March 1994, defendant A.P. Lutali, the Governor of American Samoa ("the Governor"), announced his plan to effectuate salary step increases ("step increases") to American Samoa Government ("Government") career service employees so entitled. These employees had not received such increments between 1989-1991, due to a freeze by gubernatorial executive order, and the Governor proposed bringing these salaries to the levels where they would have been had the step increases become operative throughout those years.

In response, plaintiff Letuli Toloa, the President of the Senate ("the President"), expressed concern that the proposed step increases were not funded through the proper legislative channels and, therefore, could not be lawfully implemented.

On March 4, 1994, the President filed this action and obtained a temporary restraining order. Defendants stipulated to a preliminary injunction. On June 14, 1994, plaintiffs submitted the amended complaint at issue, which added the names of Senators Tuilefano Vaela`a and Tuana`itau Tuia as plaintiffs. The amended complaint also asserted that defendants had authorized the disbursement of funds for the payment of the Government's "past due debts," without proper legislative appropriation. [26ASR2d127]

Despite attempts to reconcile their two positions, the parties before us have been unable to reach a definitive resolution of the issues, and trial is scheduled for September 2, 1994.

Defendants raised several points in the motion to dismiss, and we will address each of them in turn.

THE AUTHORITY OF THE SENATE

Defendants allege that plaintiffs lack the legal capacity to sue, and that the individual plaintiffs as Senators cannot represent the Senate and lack the necessary standing to sue.

In support of the proposition that plaintiffs cannot sue, defendants point out that neither the Revised Constitution of American Samoa nor any applicable statutes specifically invest the Senate, or the Senators, with the capacity to sue.

[1-2] The ability of the House or Senate to maintain a suit against the executive branch is, in the proper circumstances, beyond question. This court has previously entertained such suits. See House of Representatives v. Coleman & Tago, CA No. 38-89 (Trial Div. 1989); House of Representatives v. Coleman, CA No. 93-83 (Trial Div. 1983). Additionally, the federal courts have also held that either house of Congress has the capacity and the standing in suits seeking to protect its lawmaking powers. See Barnes v. Kline, 759 F.2d 21, 26 (D.C. Cir. 1985); Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir. 1979). The suit presently before us involves the protection of just such powers, and the Senate has the requisite standing in its own capacity. In Baker v. Carr, 7 L. Ed.2d 663, 678 (1962), the Supreme Court stated that the test for standing was whether or not the appellants "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . ." U.S. Senators have also been found to have enough of a personal stake to achieve standing to maintain a suit in their individual capacity.

In Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), an individual senator was found to have standing to sue for a declaratory judgment. The court noted that as the subject of the suit was "legislative power," the individual senator's stake in the controversy was to vindicate the effectiveness of his vote. "No more essential interest could be asserted by a legislator." Kennedy v. Sampson, 511 F.2d at 436. [26ASR2d128] Other cases have also found that one or more legislators interest in maintaining the effectiveness of their votes is sufficient to give them the capacity and standing to sue. See Coleman v. Miller, 307 U.S. 433, 438 (1939) ("The complaining senators ... have a plain, direct and adequate interest in maintaining the effectiveness of their votes.");Pressler v. Simon, 428 F. Supp. 302, 304 (D.C.D.C. 1976) ("A [single] Congressman has standing to sue by virtue of his office where Executive action has impaired the efficacy of his vote").

The case before us has obvious similarities to those cited. Three Senators have alleged that the executive branch of the Government has overstepped its bounds and attempted to usurp legislative power. The Senators are, therefore, seeking to maintain not only the power of their votes but also a proper definition of the separation of powers in the context of this case. "(W)hen the assertion of authority by one branch interferes with the claim of institutional independence by another branch, it becomes the province and duty of the Judiciary to define the respective spheres of power." U.S. v. Brainer, 515 F. Supp. 627, 630 (D.C. Md. 1981). It is beyond dispute that the Senators have the right, in this type of situation, to maintain such a suit.

Defendants' motion to dismiss on the grounds of either lack of capacity to sue or lack of senatorial standing is denied.

THE TAXPAYERS STANDING

Defendants also challenge the right of the three individual plaintiffs to sue in their capacity as taxpayers. Defendants allege that in this context, these plaintiffs must show a special interest or injury, not common to the public at large, and that they have failed to do so. The individual plaintiffs assert that a direct link exists between the activities of the Government and the consequences of those activities to taxpayers, such that these plaintiffs as taxpayers will suffer a direct burden from the Governor's fiscal management techniques.

[3] It is well established that it is not enough to qualify, for standing purposes, merely as a taxpayer. Citizens must actually prove damage to themselves different from the public generally. Knoxville Progressive Christian Coal. v. Testerman, 404 F. Supp. 783, 788 (E.D. Tenn. 1975) (agency action). A party must establish that the alleged conduct would result in a tax increase or cause other irreparable injury. Belford v. City of New Haven, 364 A.2d 194, 199 (Conn. 1975). This injury must be different than that endured by the citizenry en masse. Additionally, there [26ASR2d129] must be a logical nexus between the alleged wrongful behavior and the harm suffered.

Here the individual plaintiffs claim that the Governor's actions have a direct effect on them as taxpayers. Because American Samoa is a relatively small place, they allege that individual tax payments are directly affected by discrete programs. They assert that an increased tax burden due to the Governor's actions is both more probable and more measurable than it might be in other, larger contexts.

Where individuals have sued as both legislators and taxpayers, courts have in general denied the latter. See Pressler v. Simon, 428 F. Supp. at 304. We agree. Although the individual plaintiffs have the requisite standing to sue as legislators, we do not find that they have adequately alleged that right as taxpayers. Indeed, American Samoa has a very small economy relative to other American jurisdictions, but this point does not save the individual plaintiffs' argument. They have not demonstrated links between the programs at issue and any consequential burden sufficient to set them apart from the public at large. Nor have they sufficiently demonstrated a resultant burden that they as taxpayers would incur due to the defendants' actions.

Defendants' motion to dismiss on the ground of taxpayer standing issue is granted.

MOOTNESS

[4] Defendants assert that the issue of the step increases is now moot, as the Governor has declared that he will not attempt to implement the increases in fiscal year 1994. However, we must disagree with defendants' position on this matter. A case becomes moot when the issues are no longer "live" or the parties lack a legally cognizable interest in the outcome. Murphy v. Hunt, 71 L. Ed.2d 353, 356 (1982) (per curiam); Tuscan Medical Center v. Sullivan, 947 F.2d 971, 977 (D.C. Cir. 1991).

[5-6] The issue of effectuating salary step increases to career service employees so entitled is arguably moot. However, this case clearly falls into a long articulated exception to the mootness rule. This exception is primarily focused on cases that are "capable of repetition, yet evading review". Murphy v. Hunt, 71 L. Ed.2d at 357. In non-class actions, this exception is limited to cases where (1) a defendant terminates the challenged action before the issue is fully litigated, and (2) there is a reasonable expectation the plaintiff would be subject to the same actions [26ASR2d130] in the future. "Reasonable expectation" must go beyond a theoretical possibility of repetition to the same plaintiff. However, the case is not rendered moot simply by the fact that the defendant has, at the moment, ceased the behavior at issue. See Delta Air Lines, Inc. v. Civil Aeronautics Bd., 674 F.2d 1 (D.C. Cir. 1982); Murphy v. Hunt, 71 L. Ed.2d at 357.

[7] The legislative and executive branches of the Government have clashed before over what their respective spheres of funding power entail. We cannot say that the Governor's letter of June 27, 1994, clearly put the matter to rest once and for all--the remaining disagreements over the payment of past due debts, among other indicators, attest to that. In fact, the only factor tending to convince us that the step increase controversy is past is the fact that the Governor has voluntarily said that he will no longer proceed during fiscal year 1994. "A controversy still smolders when the defendant has voluntarily, but not necessarily permanently, ceased to engage in the allegedly wrongful conduct." Hooker Chem. Co., Ruco Div. v. U.S., Etc., 642 F.2d 48, 52 (3rd Cir. 1981) (cite omitted); see also City of Mesquite v. Aladdins Castle Inc., 71 L. Ed.2d 152, 159 (1982).

Because the issues in this case are clearly capable of repetition, yet may evade review, and because defendants ceased their allegedly wrongful conduct before the case could be fully litigated, and because there is a reasonable expectation that plaintiffs will be subjected to the same actions by defendants in the future, the motion for dismissal on the grounds of mootness is denied.

ADDITIONAL DEFENDANTS

Defendants assert that plaintiffs have failed to join a number of potentially necessary parties. Defendants claim that plaintiffs should have joined the Government career service employees who may be entitled to the salary step increases, the various Government vendors who may be owed past debts, and the House of Representatives of the Legislature of American Samoa. We begin with the Government employees.

[8] Joinder is appropriate when the court is asked to adjudicate upon the rights of a party who is not presently before the court. Warner v. Pacific Tel. & Tel. Co., 263 P.2d 465, 467. In this case, the question before the court concerns the proper separation of powers between two branches of government. Regardless of the resolution of this dispute, the career service employees step increases may or may not be awarded. Their pecuniary interests in the step increases are not at the center of this lawsuit. What we have before us is a dispute over proper procedure. The career service employees most definitely do not need to be joined, and complete relief can be afforded the parties presently before us without their direct participation.(1)

The House of Representatives is, likewise, not a necessary party to this lawsuit. As discussed above under standing, the Senate has the capacity to independently sue the executive branch. This is true whether or not the House is designated a party or chooses to intervene.

The question of joining the various Government vendors who are owed past due debts is more questionable. Plaintiffs have not clearly indicated the individual vendors' significance in this suit, but it appears unlikely as of now that these vendors will be central, or necessary, to the trial. We will, however, reconsider the vendors' joinder, should their substantive creditor's rights become at issue.

The motion to dismiss for failure to name necessary parties is, at this time, denied in its entirety.

CONCLUSION

Defendants' motion to dismiss on the lack of the individual plaintiffs' standing as taxpayers is granted. Defendants' motion to dismiss on all other grounds is denied. Trial will proceed, as scheduled, on September 2, 1994.

It is so ordered.

*********

1. Joinder of necessary parties is governed by T.C.R.C.P. Rule 19. Under this rule, a party is necessary if the disposition of the case would impair that parties' rights, or would subject a present party to inconsistent obligations. Neither situation is applicable in this case.

Lutali; Foster v.


MABEL FOSTER and AMERICAN SAMOA DEVELOPMENT 
CORPORATION, jointly and severally, Appellants

v.

GOVERNOR A.P. LUTALI, on behalf of DEVELOPMENT BANK 
OF AMERICAN SAMOA, Appellees

High Court of American Samoa
Appellate Division

AP No. 9-93
(CA No.37-93)

April 5, 1994

__________

[1] Parties are restricted on appeal to contesting the lower court's final judgments. They cannot assert positions outside those parameters.

Before RICHMOND, Associate Justice, CANBY,* Acting Associate Justice, MUNSON,** Acting Associate Justice, FRUEAN, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellants, Asaua Fuimaono
For Appellees, Jennifer L. Joneson, Assistant Attorney General

RICHMOND, Justice:

In February and March of 1993, appellee Governor A.P. Lutali ("the Governor"), on behalf of appellee Development Bank of American Samoa ("DBAS"), made three written requests to appellant Mabel Foster ("Foster"), secretary of appellant American Samoa Development Corporation ("ASDC"), to call a special shareholders' meeting. The Governor's first demand letter, dated February 11, requested a meeting for[26ASR2d17] the purpose of voting on whether or not to remove the then-current board of directors. His second demand letter, dated February 25, reiterated this request and added a request to vote on a bylaw amendment adopted February 5. Both these demands went unsatisfied, and the president of the ASDC responded to the Governor in writing that the requested purpose of these meetings would cause a conflict between the corporations bylaws and articles of incorporation.

On March 15, the Governor made his third written demand for a special meeting, here adding a request for an additional special meeting to vote on amending the ASDC's articles of incorporation. This demand went unanswered, and appellees subsequently sought and were granted a temporary restraining order. Upon appellees' claim for injunctive relief, the trial court issued an order on May 3, instructing Foster to call the special meetings requested for the purposes sought.

In its decision, the court below was confined to considering whether or not Foster should be enjoined from failing to call a special shareholders' meeting to (1) amend ASDC's articles of incorporation and (2) remove the current board of directors and elect a new board (Decision and Opinion issued May 3, 1993, at 2). The court found that ASDC's articles of incorporation permit amendments by a majority of stockholders, and that special meetings may be called for any purpose by at least 10% of the common stock entitled to vote (DBAS owns 80% of ASDC). The court noted that even if removing and electing directors was at the time prohibited, and the court did not state that it was, the removal would be proper if the proposed changes were duly adopted. The court found defendants argument that corporate directors are only to be elected at the annual meeting to be without merit, and that election of directors is notably different than removal of same. This is true even if removal necessarily results in a special election to choose replacement directors. In any event, the courts ruling was specifically directed to enjoining Foster from failing to carry out her duty to call the requested meetings.

[1] On appeal, appellants, in essence, assume a legal connection between the court's ruling that the meetings be called and the actions that transpired at those meetings. Appellants continue to assert that the trial court's ruling necessarily led to the removal of the then-present board of directors, even though they acknowledge that the purpose of the injunction was simply to compel Foster to call the requested meetings. There is simply no legal nexus to these separate contentions. Appellants' appeal is restricted to the final decisions of the trial court. This court is not in the position of continually supervising legal and internal shareholder decisions of the[26ASR2d18] ASDC, however badly they may rest with appellants.

Appellants also argue that the trial court's finding that the board improperly attempted to insulate itself from accountability is not supported by the evidence. Contrary to appellants' assertions, this was not a finding of the trial court. The court's order of June 3, denying appellants' motion to reconsider, specifically stated:

This court merely noted the fiduciary duty owed by a corporation 
board of directors to the stockholders and observed that a 
board's attempt to insulate itself from accountability to the 
shareholders is inconsistent with this duty.

The court, as it said itself, merely pointed out the board's fiduciary duty, an issue that was not before the court. Nor was the court basing its conclusions on the then-board's assumed motives. As this was clearly not part of the lower court's findings upon which it based its ruling, appellant's arguments must necessarily fail.

[1] Appellants' last asserted issue on appeal, the alleged employment and due process rights of the removed directors, also fails as a matter of law. As appellants are restricted on appeal to contesting the lower court's final judgments, they cannot assert positions outside those parameters. This contention is firmly outside the scope of this appeal.

Accordingly, having fully reviewed appellant's arguments in support of their appeal, and finding none compelling, the trial court's decision is hereby affirmed.

It is so ordered.

**********

* The Honorable William C. Canby, Jr., Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** The Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

Lolo; In re Matai Title


SUALEVAI LAULELEI SEA, Claimant

v.

TAFEA FAAUMA SEUI, T.S. TUIMOLOAU, SI`ITUA SAVINI, 
LETALU M. MOLIGA,
 PESE MASELINO, PULEISILI F. TUIOLESEGA, 
and SEGILA PUIAI VAEAO, Objectors/Counter-Claimants

[In the Matter of the Matai Title "LOLO"]

High Court of American Samoa
Land and Titles Division

MT No. 09-93

May 2, 1994

__________

[1] T.C.R.C.P. 7(b)(1) requires that an application to the court for any order shall be by motion which shall state with particularity the grounds therefore.

[2] In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, AFUOLA, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Tafea F. Seui, Robert A. Porter
For Si`itua Savini, Gata E.W. Gurr
For Letalu M. Moliga, Afoafouvale L.S. Lut
For Segila P. Vaeao, Albert Mailo

Order on Motions for New Trial:

On March 23, 1994, the Court issued its Opinion and Order adjudging Letalu M. Moliga to be most qualified candidate to hold the matai title "Lolo," pertaining to the village of Sili, Manu`a. On March 30, 1994, Segila P. Vaeao filed his motion for new trial basically on the contention that the evidence favored his candidacy. Likewise, Tafea F. Seui, filed his identical motion.

[1-2] We first note that both motions are mere disagreements with the Associate Judges' weighing of the evidence. Second, neither motion [26ASR2d47] hardly complies with the "particularity" requirements of T.C.R.C.P. 7 (b)(1) ("An application to the court for any order shall be by motion which . . . shall state with particularity the grounds therefor. . . ."). In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. Taulaga v. Patea , 17 A.S.R.2d 34, 35 (App. Div. 1990). See also American Samoa Government v. Falefatu , 17 A.S.R.2d 114, 119-120 (Trial Div. 1990) ("What is essential [to a motion for a new trial] is that it be filed within the statutory period and that it fully apprises the court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections."). The grounds for the motions are simply couched in the way of conclusionary statements, and we were without the benefit of argument elaborating on the positions respectively asserted. The motions for new trial are, therefore, denied.

It is so ordered.

**********

Interocean Ships, Inc. v . Samoa Gases,


INTEROCEAN SHIPS, INC., a Delaware corporation, Plaintiff

v.

SAMOA GASES, a corporation, Defendant

High Court of American Samoa
Trial Division

CA No. 123-85

June 20, 1994

__________

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge.

Counsel: For Plaintiff, William H. Reardon
For Defendant, Arthur Ripley, Jr.

Order Denying Motions for Reconsideration or New Trial:

Both plaintiff Interocean Ships, Inc. ("Interocean") and defendant Samoa Gases moved for reconsideration or a new trial. The motions came regularly for hearing on June 9, 1994. Both parties were represented by counsel. For the reasons detailed below, we deny both motions.

This elongated case revolves around an explosion which took place on the purse seiner Ocean Pearl on November 21, 1983. The facts of the case [26ASR2d96] have been extensively detailed in both phases of the bifurcated trial held before this court, and will not be reiterated here.(1)

In its memorandum for a new trial, Interocean maintains that the court erred in its allocations of fault, and in failing to award lost profits, attorney's fees and costs, prejudgment interest, and court costs. We address, briefly, each above contention.

Interocean first challenges the court's assessment of 1% liability for PRI, the fuel supplier. Contrary to Interocean's assertions, the court had ample evidence before it to allocate responsibility to PRI for the explosion. While Interocean now asserts that any fuel contamination could have been caused by a variety of factors, the court examined all these possible causes at the trial. We decline to revisit and reassess the evidence.(2)

Interocean also takes issue with the court's assessment of 95% liability for Interocean. As Interocean itself acknowledges, the court noted in its Opinion issued on December 22, 1992, that Interocean should bear a significant quantum of responsibility for the explosion. Although Interocean equates the court's allocation of fault with "a complete bar of Interocean's claim" (Plaintiff's Motion for a New Trial at 5), we disagree. Under the particular facts of this case, the condition of the engine, and the conduct of the crew, Interocean's allocated percentage of liability was properly decided.

Interocean also submits, briefly, that the court erred in failing to award Interocean a portion of their claimed lost profits. Nowhere does Interocean dispute the facts found or law applied by the court. In reexamining our decision in this area, we are unable to find any basis for awarding Interocean the lost profits they seek.

Interocean also claims error in the court's failure to award any attorney's fees or costs incurred by Interocean in defending against suits brought by the injured crewmen and the widow of the Ocean Pearl's captain. Interocean presents no specific law to support this claimed error. [26ASR2d97] Although we have examined our decision in this area in the light of Interocean's allegations, we find no error. Samoa Gases is not obligated to reimburse Interocean in any amount for attorney fees or costs.

Additionally, Interocean alleges error in the court's declining to award it prejudgment interest. Although Interocean claims that Samoa Gases caused significant delay in the trial of this case, this statement is only partially true. As Interocean itself states, not all of Samoa Gases' various motions to continue the trial were granted. Additionally, the lapsed prosecution certainly accounts for at least some of the delay this case has undergone. Furthermore, Interocean's alluding that Samoa Gases' refusal to settle prolonged the litigation is beside the point. Finally, Interocean does not dispute the law or particular facts relied on by the court. In short, we deny plaintiff's motion on this ground.

Finally, Interocean submits that, as the prevailing party, it is entitled to court costs pursuant to T.C.R.C.P. Rule 54(d). At the hearing on the present motions, the court invited Interocean's counsel to submit these costs in writing, with a copy provided to opposing counsel. We are still awaiting this submission.

We now, briefly, turn to the motion submitted by Samoa Gases. Samoa Gases asserts that the court erred in finding that the missing labels were the proximate cause of the accident, in rejecting the defense of misuse, in finding no direct evidence to refute testimony on the absence of warning labels, in denying defendant's objection to plaintiff's introduction of depositions, and in excluding various evidence and witnesses of the defendant.

It is clear that Samoa Gases' contention regarding proximate cause is without merit.(3) The question of the missing labels was litigated before this court, and the evidence fully supports the court's findings and conclusions.

Samoa Gases also claims that the court was in error in rejecting the defense of assumption of risk.(4) It appears that Samoa Gases has answered its own question by presenting a circular argument in its memorandum. [26ASR2d98] Additionally, we certainly decline the invitation to award a new trial on this basis.

Samoa Gases also declares that the court erred in its finding that it had no direct evidence to refute the testimony of Mr. Robert Parkinson. Unfortunately for Samoa Gases, the only testimony they presented related to general practices of Samoa Gases. Additionally, Samoa Gases has mischaracterized Andrew Nesheim's testimony.

Samoa Gases next asserts that the court erred in denying defendant's objection to Interocean's introduction of certain depositions. Again, the argument made in this area is circular. The court's denial of Samoa Gases' objections in this area was correct.

Finally, Samoa Gases contends that the court erred in excluding various evidence and witnesses offered by it. Again, Samoa Gases presents no law, or specific facts, to uphold this contention. This evidence was correctly excluded.

For the foregoing reasons, both motions for reconsideration or a new trial are denied.

It is so ordered.

*********

1. The first phase of the trial took place on October 7-9, 1992 and the court's Opinion and Decision on Liability was issued on December 22, 1992. The second phase of the trial was itself divided into two parts and took place on July 14-15 and December 13-15, 1993. The court's Opinion and Decision on Damages was then issued on May 2, 1994.

2. Moreover, even if we were to reallocate PRI's percentage of fault, it is not certain that we would assign the percentage to Samoa Gases.

3. We note that Samoa Gases, in its memorandum for a new trial, seems to be asserting that the court found the missing labels to be the proximate cause of the explosion. As our Opinion and Decision on Damages attests, this contention is mistaken.

4. Contrary to the entire thrust of Samoa Gases' argument, the court did in fact explore this defense. We encourage Samoa Gases to reexamine our Opinions and Decisions.

Interocean Ships, Inc. v. Samoa Gases,


INTEROCEAN SHIPS, INC., a Delaware corporation, Plaintiff

v.

SAMOA GASES, a corporation, Defendant

High Court of American Samoa
Trial Division

CA No. 123-85

May 2, 1994

__________

[1] In the absence of any even minimally probative evidence tending to show that a defendant bore some quantifiable measure of responsibility, the court will decline to arbitrarily guess what that percentage may be.

[2] In admiralty it is well settled that fishing vessel owners and commercial fishermen may recover for lost fishing profits under the general maritime law of negligence.

[3] Lost profits are awarded when a defendant's actions are the direct cause of the loss. Additionally, while lost profits do not have to be calculated exactly, they generally must be "proved with reasonable certainty."

[4] The duty of the shipowner to provide for the ill or injured seaman can be traced as far back as the Sea Codes of the Middle Ages. This right, to recover maintenance and cure without regard to fault, is among the most pervasive incidents of the responsibility anciently imposed upon a shipowner.

[5] A shipowner has a right of indemnity against a third party tortfeasor for maintenance and cure paid to an injured seaman to the extent occasioned by the third party tortfeasor's fault.

[6] Admiralty law recognizes that even where a party to a lawsuit settles, it may still bring an indemnity action against a joint tort feasor. [26ASR2d29]

[7] Even when defendant rejects plaintiff's tender of defense of the personal injury and wrongful death claims, the failure to tender, alone, would not preclude an indemnity claim by plaintiff, if that claim still presented a valid theory of relief.

[8] The fact the crew themselves contributed to the injury does not preclude an indemnity claim, if they were liable as well.

[9] If court finds third party tortfeasor liable for all, or partial, payments to one who has reached a settlement with injured parties, it must look to the reasonableness of the amounts paid.

[10] Courts should allocate damages liability in proportion to relative fault.

[11] The general rule is against recovery of attorney's fees as such, by a party which incurs them in enforcing a claim against another. It is equally well settled, however, that the reasonable expenses incurred by an indemnitee in defending a claim against him may be recovered of his indemnitor--and that these expenses include attorney's fees. This exception applies equally to courts sitting in admiralty. However, the prevailing party in an admiralty case is generally not entitled to an award of attorney's fees, absent statutory authorization.

[12] In cases where contribution has been allowed for damages, both in admiralty and nonadmiralty, courts have generally denied a right to contribution for attorney's fees and expenses incurred in defense of the action brought by the injured party.

[13] The general rule is to award prejudgment interest, although this award always lies soundly within the court's discretion. However, it is also true that when certain "peculiar" circumstances exist, the discretion to deny prejudgment interest is sustained. These peculiar circumstances have fallen into three categories: (1) "plaintiff's delay in bringing suit," (2) "the existence of a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved," and (3) "judgment in an amount substantially less than that claimed.

Before RICHMOND, Associate Justice, and TAUANU`U, Chief Associate Judge.

Counsel: For Plaintiff, William L. Banning and William H. Reardon
For Defendant, Arthur Ripley, Jr. and Gata E. Gurr

Opinion and Decision on Damages:

This case revolves around an explosion which took place on the purse seiner Ocean Pearl on November 21, 1983. This action, the final phase of a bifurcated trial, is all that remains of a number of suits filed in various jurisdictions. Due to the long history of the action, we briefly recite the facts as laid out in the court's Opinion and Decision on Liability, issued on December 22, 1992.

On November 16, 1983, the purse seiner Ocean Pearl set sail on a fishing [26ASR2d30] voyage from Pago Pago, American Samoa. While on the high seas two days later, the diesel propulsion engine of the Ocean Pearl stopped, due to tainted fuel taken on in Pago Pago. For three days unsuccessful attempts were made to restart the stalled engine. On November 21, 1983, a now notorious attempt was made to restart the engine using a combination of ether-based starter spray and pure oxygen gas. After one encouraging try, the second attempt to so start the engine resulted in a low order explosion. The explosion damaged the engine and the engine room and severely burned six crew members and the captain, who eventually died of his injuries.

Subsequently, actions were filed by the injured crew members and the widow of the Ocean Pearl's captain, naming Interocean Ships, Inc. ("Interocean") as defendant. Each of these claims was settled by Interocean, which in turn brought actions against the companies that supplied the diesel fuel, the starter fluid, and the oxygen. Both the actions against the suppliers of the diesel fuel and the starter fluid were settled, and the remaining suit against the supplier of the oxygen, Samoa Gases, proceeded to trial on October 7-9, 1992.

The court bifurcated the trial, addressing first the liability of Samoa Gases, if any, and reserving the determination of damages until now. At the first phase of the trial, the court, for the first time, applied the doctrine of strict products liability to an admiralty proceeding. The court found that Samoa Gases' failure to provide a warning label on the oxygen cylinders rendered the oxygen unreasonably dangerous and was a proximate cause of the explosion. Applying the principles of comparative fault, the court held Samoa Gases liable in proportion to the amount by which its fault furthered the accident. Reserving the question of damages for the second part of the bifurcated trial, the court did find that the crew, and therefore Interocean, should bear a significant quantum of responsibility for the accident, as they should have known of the danger of using pure oxygen. The court left the question of allocating percentage of fault between Samoa Gases, the crew of the Interocean, and the suppliers of the diesel fuel and starter fluid for the damages phase of the trial, and it is to these questions that we now turn.

This second phase of the trial, itself divided into two parts, took place on July 14-15, 1993 and December 13-15, 1993. Interocean requested total damages of between $2,373,962.88 and $2,578,962.88 (depending on the method of lost profits calculation, and excluding the request for prejudgment interest). The claims are requested for: (1) lost profits; (2) maintenance and cure payments made to the crewmen; (3) settlement [26ASR2d31] payments made to the crew and the widow of the captain; (4) damage and repair costs; (5) attorney's fees and costs incurred in collateral litigation; and (6) prejudgment interest. We will address each aspect of the requested damages in turn, addressing first the question of apportioning liability between the parties.

At the close of trial, Interocean requested Samoa Gases be held liable for at least 50% of the damages, and not less than 25%. Samoa Gases requested that their liability be assessed at 0% of the damages, and not more than 1%. In order to most accurately determine the percentage of fault of each player, we examine the causal roles played by both parties to this action, as well as by PRI (supplier of the diesel fuel) and Radiator Specialty (supplier of the starter fluid, THRUST). Once percentages of fault are established, the dollar amounts actually paid by settling third parties are disregarded and liability is calculated pro rata.

COMPARATIVE LIABILITY

Assessing first the roles played by PRI and Radiator Specialty, we note that suits against each of these suppliers never came to trial. However, the defendant was given the opportunity, at the second phase of the trial, to introduce evidence regarding the comparative fault of nonparties.

[1] There has been no evidence submitted as to the liability, if any, of Radiator Specialty. Save for the fact of their settlement, which could be attributed to a variety of factors not pertaining to liability, this court has heard nothing more than allusions as to their liability. The chief engineer testified, without contradiction, that he had used THRUST at least twice after the engine stopped working and prior to the explosion, with no discernible results at all (Deposition of Richard M. Gonsalves, December 19, 1990, p. 34-37). Samoa Gases's own witness, Andy Nesheim, testified that using THRUST as done by the crew of the Ocean Pearl was the proper thing to do, and is done all the time at Samoa Gases (Transcript, October 9, 1992, p. 11). There was no admissible evidence regarding the labeling of THRUST, or showing that the product was unreasonably dangerous. In the absence of any even minimally probative evidence tending to show that Radiator Specialty bore some quantifiable measure of responsibility, we decline to arbitrarily guess what that percentage may be. Therefore, the percentage of liability assessed to Radiator Specialty is zero.

The evidence relating to the liability of PRI, the fuel supplier, was less speculative. While all parties seem to take it for granted that the fuel was [26ASR2d32] in fact tainted, and therefore the cause of the engine's failure in the first place, there was little proof before the court as to this fact.(1) While fuel contaminates may have been a problem, at least at first, whether or not this was due to the negligence of PRI or Interocean remains unclear. However, the fuel tanks were drained and refilled with what was thought to be "good fuel" and the engine still did not start (Deposition of Richard M. Gonsalves at 27). While it seems clear that PRI played some minimal part in the accident, the evidence does not reveal that it was a large role. Additionally, whatever their contribution may have been, the fuel itself did not cause the explosion. With all this in mind, we assess the liability of PRI at 1%.

We now look at the percentage of damages to be assessed against the two remaining players before the court - Interocean and Samoa Gases. We begin with Interocean.

Throughout all phases of this litigation, Interocean has never maintained that it was blameless. Indeed, it stated that it bears some measure of responsibility for the explosion, differing with Samoa Gases only as to how much. Interocean's liability can be traced to two separate roots: the condition of the engine and the negligence of the crew. There is evidence showing that the engine itself was not functioning properly prior to the breakdown.(2) Additionally, there was some evidence that the manner of fuel storage may have led to its contamination, and that the engine itself was poorly maintained (Transcript, December 14, 1993, p. 68).

Even more important is the obvious negligence of the crew. As defendants noted, this crew was not new to the sea, nor were they [26ASR2d33] unfamiliar with proper uses of oxygen.(3) While Samoa Gases had the responsibility to label the oxygen cylinders, the captain and crew certainly had the responsibility to handle all materials in a workmanlike manner.

Because of Interocean's both passive and active roles in bringing about the explosion, we assess their degree of liability at 95%.

The final participant, then, is the defendant before us, Samoa Gases. As the court concluded after the first part of the bifurcated trial, the lack of warning labels on the oxygen cylinders rendered the oxygen unreasonably dangerous and was certainly a proximate cause of the accident. However, within the particular fact situation before us, we cannot say that Samoa Gases bears the primary responsibility for the explosion.

Therefore, we assess the liability of Samoa Gases at 4%. With these percentages of fault in mind, we now turn to each category of damage claimed by Interocean. [26ASR2d34]

LOST PROFITS

Lost profits are estimated by Interocean to be either $405,000.00 or $610,000.00, depending upon the method of calculation employed (average catch per day or profit per trip). Because of our finding in this area, it is unnecessary to determine which method, if either, should in fact be utilized.

[2] Interocean is claiming that the loss of profits on this particular trip was due to the fault of Samoa Gases in not labeling the oxygen cylinders, and in causing the explosion. While we acknowledge that "(I)n admiralty it is well settled that fishing vessel owners and commercial fishermen may recover for lost fishing profits under the general maritime law of negligence.", Jones v. Bender Welding & Mach. Works, Inc., 581 F.2d 1331, 1337 (9th Cir. 1978) (citations omitted), this is not the type of case that lends itself to this recovery.

[3] Cases that have allowed recovery of lost profits have done so when a defendant's actions were the proximate cause of the loss. In Jones, supra, the court found that overall there was no intervening cause between defendant's actions and plaintiff's losses (finding otherwise that plaintiff was entitled to pursue these damages, without ruling on whether they would be awarded on remand). In Reefer Queen Co. v. Marine Construction & Design Co., 440 P.2d 453 (Wash. 1968), a case where plaintiff lost 11 fishing days out of an otherwise successful fishing voyage due to faulty winches, the court noted that the lost profits calculation was based on not only plaintiff's expert witness testimony but on evidence as to the fish the vessel was catching immediately prior to and in between breakdowns. The court pointed out that the failure of the winches was due to defective shafts (and therefore defendant's negligence), and that once this problem was addressed, there was no further trouble. In Miller Indus. v. Caterpillar Tractor Co., 473 F. Supp. 1147, 1156 (S.D. Ala. 1979), appeal after remand 516 F. Supp. 84 (S.D. Ala. 1980), the court, in computing lost profits in a case where the defendant's actions were the only, and proximate, cause of the lost profits, said "This (computation of lost profits) includes a comparison to similar vessels engaged in the same fishery in the same general area as would have been fished by plaintiff but for the fault of the defendants." (emphasis added). In each of these cases, and others, lost profits were awarded when a defendant's actions were the direct cause of the loss. Additionally, while lost profits do not have to be calculated exactly, they generally must be "proved with reasonable certainty." Delta S.S. Lines, Inc. v. Avondale Shipyards, Inc., 747 F.2d 995, 1000 (5th Cir. 1984); application for rehearing den'd in part 753 [26ASR2d35] F.2d 378 (5th Cir. 1989). This computation certainly cannot automatically transform a failing voyage into one where lost profits are at all recoverable.

In this case, Samoa Gases' failure to label the oxygen cylinders has been found to be a proximate cause of the explosion, but we cannot say that the explosion was the primary reason for the Ocean Pearl's loss of profits on the voyage under scrutiny. Prior to the explosion, the vessel had been adrift on the seas for three days, through no fault of Samoa Gases, with no demonstrated ability to extricate herself from this predicament. Various methods had been tried by the crew and, as both parties agree, to no avail. While the explosion itself was proximately responsible for other damages, it was not the "but-for" cause of the lost profits. Indeed, from this court's observance of the evidence, it seems that this voyage would have resulted in the Ocean Pearl's being towed to shore without completing its fishing expedition whether or not the explosion had taken place.(4) The explosion does not negate the fact that the voyage was unprofitable, nor does it turn an unprofitable trip into a lucrative one. To allow Interocean to recover lost profits from what was turning out to be an unsuccessful voyage, simply because of a subsequent event that, at most, added to its failure, would be palpably unfair. Therefore, the only evidence before us tends to establish that the breakdown of the engine, and the inability to fix it, was the proximate cause of the lost profits.

In the absence of any evidence illustrating that the engine was going to be repaired, save for the intervening explosion, we cannot, and do not, hold Samoa Gases liable for lost profits.(5)

MAINTENANCE AND CURE

Interocean seeks indemnity for maintenance and cure payments made to [26ASR2d36] the injured crew members in the total amount of $241,935.06.(6) This figure is made up of expenses related to medical payments, ambulance receipts, food bills and telephone charges. In support of these payments, Interocean submitted receipts, copies of canceled checks and invoices. Samoa Gases did not dispute these payments with any evidence.

For the cure payment of each injured crew member Interocean submitted copies of canceled checks made out to Hawaii's Straub Clinic and Hospital, American Ambulance Service, various medical personnel and mileage reimbursements to and from doctors.(7) Additionally, maintenance checks were also made out to each crew member.(8) We have itemized the maintenance and cure payments expended to each crewman in the chart below:

Crew Member

Maintenance

Cure

     
Situa Brown $1,284.00 $23,453.53
Afamiliona Faatasiga 3,132.00 34,986.91
Deok Gon Kim 3,132.00 31,359.64
Tae Hong Kim 6,768.00 43,041.74
Antonio Lolesio 5,040.00 41,481.71
Robert Parkerson 7,140.00 41,115.53
Total $26,496.00

$215,439.06

[4] Maintenance and cure are entitlements that have certainly withstood the tests of time and judicial scrutiny. "In fact, the duty of the shipowner to provide for the ill or injured seaman can be traced as far back as the Sea Codes of the Middle Ages." Rutherford v. Sea-Land Service, Inc., 575 F. Supp. 1365, 1369 (N.D.Cal. 1983), citing 2 Norris,The Law of Seamen, § 540 (1970). A seaman is entitled to maintenance and cure whether or not the injuries were received as a result of negligence. The Osceola, 189 [26ASR2d37] U.S. 158, 47 L. Ed. 760 (1903) (superseded by statute on other grounds as stated in Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1979) and on remand 89 F.R.D. 322 (1980)). This right, to recover maintenance and cure without regard to fault, is among the most pervasive incidents of the responsibility anciently imposed upon a shipowner. Anguilar v. Standard Oil Co., 318 U.S. 724, 730, 87 L. Ed. 1107 (1943).

[5] A shipowner does have a right of indemnity against a third party tortfeasor for maintenance and cure paid to an injured seaman. Black v. Red Star Towing & Transp. Co., Inc., 860 F.2d 30 (2nd Cir. 1988). We ask, although the issue was not explicitly raised by the parties, if a shipowner whose negligence has contributed to the injury pays maintenance and cure to a contributorily negligent seaman, is that shipowner entitled to contribution for maintenance and cure from a third party joint tortfeasor, also held to be at fault? The answer here is also yes. The third party should contribute the portion of maintenance and cure proportionate to fault. "[A] party whose neglect has in part contributed to the need for maintenance and cure payments . . . should reimburse the costs of those payments to the extent occasioned by its fault." Adams v. Texaco Inc., 640 F.2d 618 (5th Cir. 1981). "We think that equity, as well as good sense, should serve to limit the liability of a third-party tortfeasor to its proportionate share of fault in all cases where reimbursement is sought for maintenance and cure." Black, supra, 860 F.2d at 34. The fact that the claims for maintenance and cure were settled prior to trial does not bar contribution by Samoa Gases. Rogers v. New Jersey Barging Corp., 567 F. Supp. 822 (S.D.N.Y. 1983) (citations omitted).

We hold Samoa Gases liable for maintenance and cure payments equal to the amount of their assessed liability of 4%. On this element of damages, therefore, it is liable in the amount of $9,677.40.

SETTLEMENT PAYMENTS

Interocean settled claims made against them by the injured crew members and the widow of the captain, and now seeks to be reimbursed by Samoa Gases.(9) In support of these amounts, Interocean submitted copies of settlement checks, releases and court documents (before this court and others). There has been no evidentiary dispute as to the amounts actually [26ASR2d38] paid. The settlement payments made are detailed below:

Crew Member Settlement Amount  
     
Situa Brown $67,500.00  
Afamiliona Faatasiga 135,000.00  
Deok Gon Kim 105,000.00  
Tai Hong Kim 165,000.00  
Antonio Lolesi 150,000.00  
John Medina 100,000.00  
Robert Parkerson 185,000.00  
Total $907,500.00  

[6-7] It is true that "admiralty law recognizes that even where a party to a lawsuit settles, it may still bring an indemnity action against a joint tort feasor". Sea-Land Service, Inc., v. American Logging Tool Corp., 637 F. Supp. 240, 241 (W.D. Wash. 1985). We note that in 1985 Samoa Gases rejected Interocean's tender of defense of the personal injury and wrongful death claims (Transcript, December 14, 1993, p. 2). However, a failure to tender, alone, would not preclude an indemnity claim by Interocean, if that claim still presented a valid theory of relief. National Marine Service, Inc., v. Gulf Oil Co., 433 F. Supp. 913, 916 (E.D. La. 1977) (citations omitted).

[8-9] Throughout the damages phase of the litigation, Interocean stressed that the settlement payments made were reasonable and, if anything, were low. Samoa Gases presented no evidence showing that the settlement payments were unreasonable in amount. Examining the photographs and testimony concerning the injuries received from the explosion, this court must agree. We have also been presented with little evidence as to the liability of Interocean to the settling crew members. However, it is not difficult for us to find, based on the voluminous material before the court, that Interocean would have been held liable, as our finding of its liability in the matter before us supports. The fact the crew themselves contributed to the injury does not preclude recovery by Interocean, if they were liable as well. West Coast Ter. Co. of Cal. v. Luckenbach SS Co., 349 F.2d 568 (9th Cir. 1968) (shipowner's action against stevedore for breach of indemnity contract). We also recognize the slight degree of fault that would render Interocean responsible to a Jones Act plaintiff. Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975); Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1542 (11th Cir. 1989). Therefore, we find that the settlements were not voluntary payments. Cases finding a third party [26ASR2d39] tortfeasor liable for all, or partial, payments to one who has reached a settlement with crew members have then looked to the reasonableness of the amounts paid. Wisconsin Barge Line, Inc. v. Barge Chem 300, 546 F.2d 1125 (5th Cir. 1977).

In the case before us, we find that the settlements paid by Interocean and detailed above were all reasonable. Samoa Gases has already been held strictly liable and its degree of fault established at 4%. Following the principle of having each party bear their share of fault, Cooper Stevedoring Co. v. Kopke, 417 U.S. 106, 40 L. Ed.2d 694 (1974) (dividing liability equally in a non-collision case as proper under the circumstances), we hold Samoa Gases liable for 4% of the settlement payments made to the injured crew and the widow of the captain. Samoa Gases is to pay $36,300.00 in this area of damages.

DAMAGE AND REPAIR COSTS

Interocean claims damage and repair costs attributable to the explosion of $53,338.33, out of a total damage and repair cost of between $132,417.39 and $157,378.54. The damage and repair costs assigned by Interocean to the explosion consist of the following charges: turbo charger at a cost of $30,624.52; helicopter costs of $10,293.25; one-fourth repair crew costs of $3,137.50 and $2,349.90; one-fourth travel at a cost of $3,074.05; phone charges at a cost of $139.29; and miscellaneous charges of $2,657.87. These amounts were explained and checked for reasonableness by Kenneth F. Franke, a marine surveyor who investigated the Ocean Pearl's casualty and recommended repairs.(10)

On this issue, there was conflicting testimony as to what was actually damaged and how much repairs should have cost. While Interocean claims that the turbocharger was damaged by the explosion, there is evidence that it was not properly working prior to the explosion (Deposition of Richard M. Gonsalves, December 1990, p. 32-33) (prior to explosion, the chief engineer applied a test to see if the turbocharger was working and could not tell from the results if it was). Joseph Yandall testified that he felt the turbocharger was in poor shape and not properly functioning prior to the explosion. Specifically, he noted an imbalance of heat in the exhaust barometer readings from the engine, the presence of water in the fuel, sticking of the fuel injectors and the valves not being [26ASR2d40] seated properly (Transcript, December 14, 1993, p. 102, 106). Mr. Yandall felt that it would have taken the same amount of time to repair the engine had the explosion never occurred and that some elements of the engine, (i.e., the blow-out covers) could have been repaired instead of replaced.

We first address the costs attributed to travel, repair crews, helicopter, phone and miscellaneous charges. On these issues there was little, if any, contradiction. Interocean submitted these costs, and then subtracted what they felt could not be attributed to the explosion itself. While Samoa Gases lodged a "general protest" against these charges, there was nothing approaching particularity for any challenges. From our review of the extensively documented record, it appears that these costs at least were reasonable and attributable to the explosion.

The record is not so clear as regards the turbocharger. While there was undoubtedly additional damage done to it due to the explosion at issue, the record is equivocal at best regarding its functioning just prior to the explosion. In sum, we have evidence before us stating that the turbocharger probably did work, probably did not work, and may have worked prior to November 21, 1983. From our review of the record, we can ascertain that the turbocharger, while not functioning properly, was certainly affected by the explosion itself. Therefore, we assess the damages to the turbocharger attributable to the explosion at 50% of its total damage, or $15,312.26.

[10] We are mindful that we should allocate damages liability in proportion to relative fault. United States v. Reliable Transfer, 421 U.S. 397, 44 L. Ed.2d 251 (1975). Therefore, we assess Samoa Gases liability in this area at 4% of $36,964.12, or $1,478.56.

ATTORNEY'S FEES AND COSTS

Interocean is claiming attorney's fees and costs as damages arising out of suits brought against it by the crew members and the widow of the captain in connection with the explosion. The total amount of attorney's fees claimed is $611,575.00, and the amount of costs is $154,597.00, for a total claim of $766,172.00.(11) Interocean, in support of the claimed [26ASR2d41] amount, submitted multiple invoices documenting the dates, descriptions, time and value of all services related to this claim, as well as a summary of this voluminous material. In response, Samoa Gases, while not challenging the doctrine or the legal authorities relied upon by Interocean, simply disputes any award. This position is bolstered by Samoa Gases' two-pronged assertion:

(1) first, that Interocean submitted insufficient evidence to
prove that attorney's fees and costs were incurred and/or paid;
and (2) second, that fees and costs that were paid were already
reimbursed by the settlement amounts from PRI and Radiator
Specialty.

In this case, Interocean's submissions as to the amount of attorney's fees and costs must stand. Samoa Gases has submitted no proof going to the reasonableness of the fees and costs, any deficiency with Interocean's accounting system, any padding, or indeed any other evidence that would show that the costs themselves are unreasonable. With nothing to show that these fees and costs are anything other than what Interocean has submitted them to be, we accept them as offered.

Samoa Gases' assertion that Interocean's award in this area must fail due to settlements received from PRI and Radiator Specialty is without merit. This court has previously stated that the settlements reached with these parties is inadmissible. (Opinion and Interim Orders, September 3, 1993, p.5).

[11] However, there are other difficulties with Interocean's request. While it is trite law that attorney's fees, in general, are not awarded, we acknowledge that there are exceptions to that rule. The general rule is ". . . against recovery of attorney's fees as such, by a party which incurs them in enforcing a claim against another. It is equally well settled, however, indeed it is hornbook law, that the reasonable expenses incurred by an indemnitee in defending a claim against him may be recovered of his indemnitor--and that these expenses include attorney's fees." Cotten v. Two "R" Drilling Co., Inc., 508 F.2d 669, 771 (5th Cir. 1975). This exception applies equally to courts sitting in admiralty, as it has been specifically held that admiralty courts have such equitable powers as to assess attorney's fees. McKeithen v. S.S. Frosta, 426 F. Supp. 307 (E.D. La. 1977) (pretrial order addressing discovery). However, we also note that "The prevailing party in an admiralty case is generally not entitled to an award of attorney's fees, absent statutory authorization." B.P. North America Trading v. Vessel Panamox Nova, 784 F.2d 975, 977 (9th Cir. [26ASR2d42] 1986) (emphasis added) (citations omitted); see also In Re Sause Bros. Ocean Towing, 801 F. Supp. 378, 380 (D. Or. 1991) (the American Rule requiring parties to bear their own attorney's fees generally applies in admiralty).

[12] This case, however, does not fall into the exception as advocated by Interocean. Here Samoa Gases would, at most, only be held liable for attorney's fees equal to their percentage of fault and would not in any event fully indemnify Interocean.(12) And as we hold today, Samoa Gases is responsible for contribution as regards damages caused by the explosion and settlement amounts paid. In this type of situation, attorney's fees and costs, between responsible parties, are not recoverable. Western Tankers Corporation v. United States, 387 F. Supp. 487 (S.D.N.Y. 1975). In Odds Bergs Tankrederi A/S v. S/T Gulfspray, 650 F.2d 652, 653 (5th Cir. 1981), the court stated: "In cases where contribution has been allowed for damages, both in admiralty and nonadmiralty, courts have generally denied a right to contribution for attorney's fees and expenses incurred in defense of the action brought by the injured party (citations omitted)."

Here, although we awarded Interocean contribution, we have found from the evidence before us that it bears the vast majority of liability in this case. Cases have found that a party who is at fault, while defending against a victim's claim, cannot then turn to another liable party for attorney's fees in the first suit. Leingang v. Bottled Gas Corporation, 332 F.2d 959 (7th Cir. 1964). We agree with this reasoning, particularly where the original defendant is found significantly responsible.

In the case before us, Interocean would have had to defend against the claims, and incur attorney's fees, regardless of the role of Samoa Gases. While Samoa Gases may have garnered an indirect benefit from Interocean's actions, that alone does not make them liable for attorney's fees.(13) Indeed, our entire opinion makes clear that each party should be [26ASR2d43] held liable to their degree of fault. Here Interocean would have litigated, and settled, these claims regardless of the fact that any other parties may be held partially liable, and benefited themselves from the settlement, so attorney's fees are unrecoverable in contribution. Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190 (5th Cir. 1989); see also Lennon v. Aluminum Company of America, 279 F. Supp. 487 (S.D. Iowa 1968); Rauch v. Senecal, 112 N.W.2d 886 (S.D. Iowa 1962).

Therefore, Interocean is not entitled to attorney's fees or costs incurred in this collateral litigation. We hold that Samoa Gases is not liable for them in any amount.

PREJUDGMENT INTEREST

Interocean has requested an award of prejudgment interest and asked that this be calculated by setting a constant rate of interest based on a rate equal to the coupon issue yield, as determined by the Secretary of the Treasury, of the average accepted auction price for the last auction of 52-week United States Treasury Bills settled immediately prior to the date of the explosion (Interocean's Supplemental Bench Brief Regarding Recoverability of Prejudgment Interest in Maritime Law, July 13, 1993).

[13] We acknowledge the fact that the general rule is to award prejudgment interest, although this award always lies soundly within the court's discretion. Masters v. Transworld Drilling Co., 688 F.2d 1013, 1014 (5th Cir. 1982) (citations omitted); Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1157 (5th Cir. 1990). However, it is also true that when certain "peculiar" circumstances exist, the discretion to deny prejudgment interest is sustained. Noritake Co. V. M/V HELLENIC CHAMPION, 627 F.2d 724, 728 (5th Cir. 1980); U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir. 1992). These peculiar circumstances have fallen into three categories: (1) "plaintiff's delay in bringing suit," (2) "the existence of a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved," and (3) "judgment in an amount substantially less than that claimed." Mecom v. Levingston Shipbuilding Co., 622 F.2d 1209, 1217 (5th Cir. 1980) (citations omitted); Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028 (5th Cir. 1986) (citations omitted). In the case before us, Interocean has claimed damages of over two million dollars, and Samoa Gases is being held liable for substantially less than that amount, fitting [26ASR2d44] this case into the third category. In addition, the second category has been relied on in denying prejudgment interest in cases of apportioned fault, as this weakens a plaintiff's claim that his or her funds have been withheld by a recalcitrant party. Inland Oil and Transport Co. v. Ark-White Towing, 696 F.2d 321, 328 (5th Cir. 1983). In Inland Oil, two vessels collided on the Mississippi River, and fault was found to lie 25% with Inland Oil and 75% with Ark-White and Murphy Marine. In upholding the denial of prejudgment interest, the court noted that "the decision regarding prejudgment interest will not be disturbed if it has a rational fit in the resulting judgement viewed as a whole." Inland Oil, 696 F.2d at 328. We think that not only does the case before us fit into the category of "peculiar facts" often alluded to, but that the denial of prejudgment interest is a rational aspect of the case as described herein.

Interocean has pointed out that the Ninth Circuit, in Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789 (9th Cir. 1980), has, in a footnote, apparently questioned the wisdom of denying prejudgment interest in cases with a high degree of contributory negligence. However, we note that in Alkmeon, a case referring to admiralty collisions, the court found that the only disputes were over allocation of fault and damages and both parties conceded some fault from the onset. The case was then remanded to determine whether or not special circumstances for denying prejudgment interest existed. Aside from the differences between the Alkmeon case and the one before us, we note that the denial of prejudgment interest is widely followed, and that the Alkmeon case has garnered criticism since its publication ( noted the "flaw" in Alkmeon and found that case did not require reexamination of the law regarding denials of prejudgment interest).

Because of the facts that (1) judgment is being rendered in an amount significantly less than claimed, and (2) our apportionment of liability finds Interocean substantially more liable than Samoa Gases, we deny any award of prejudgment interest in this case. Interocean is entitled, of course, to postjudgment interest at the rate of 6% per annum.

CONCLUSION

Based on the principles and law enunciated above, we find the following:

(1) The degree of liability for Radiator Specialty is 0%.
(2) The degree of liability for PRI is 1%.
(3) The degree of liability for Interocean is 95%.
(4) The degree of liability for Samoa Gases is 4%.
(5) Samoa Gases is liable for the following in damages:

Lost profits $ 0.00
Maintenance and cure 9,677.40
Settlement payments 36,300.00
Damage and repair 1,478.56
Attorney's fees and costs 0.00
Prejudgment interest 0.00
Total $ 47,455.96

Judgment shall enter accordingly.

It is so ordered.

*********

1. The chief engineer testified that he initially thought there was a problem with the fuel and he changed the fuel filters, to no avail. He also changed 5 (out of 20) fuel injectors he found to be "sticking," also with no effect. The fuel pressure was found to be sufficient and the chief engineer concluded that the fuel was not the problem (Deposition of Richard M. Gonsalves, December 19, 1990, p. 24-27).

2. The chief engineer testified that when he first joined up with the Ocean Pearl on November 16th the departing chief engineer, Walter Cook, indicated that the engine had shut itself down when operating at high speed (Deposition of Richard M. Gonsalves, December 19, 1990, p. 17-19). Joseph Yandall testified that from his review of the evidence the Ocean Pearl left on its fateful voyage with a very faulty engine (on voir dire, transcript, December 12, 1993, p. 68).

3. The Captain, John Medina, came from a fishing family (Transcript, October 7-8, 1992, p. 161). The chief engineer, Richard Gonsalves, stated in his deposition that he attended junior college and the University of San Diego and began his fishing career in 1973. He passed examinations and received Coast Guard licenses as an assistant engineer and chief engineer, and served as a chief engineer for four years before coming to the Ocean Pearl. He testified that the boats he served on prior to the Ocean Pearl were of similar tonnage and had identical engines, and that his duties on them were similar in scope to those on the Ocean Pearl (Deposition of Richard M. Gonsalves, December 19, 1990, p. 7-12).

4. Whether or not Interocean is able to pursue a claim against those responsible for the engine failure, and for the subsequent lost profits, is not before the court at this time, and we decline to comment on it.

5. In any event, had we found the explosion to be the direct cause of transforming an otherwise profitable fishing voyage into a loss, we would have held Samoa Gases liable only to their percentage of fault. Miller Indus. v. Caterpillar Tractor Co., 473 F. Supp. 1147, 1156 (S.D. Ala. 1979) appeal after remand 516 F. Supp. 84 (S.D. Ala. 1980) (holding negligent actors liable for lost profits to their individual degree of fault).

6. Interocean actually requested maintenance and cure in the amount of $233,203.99. However, the payments made add up to the higher figure given. As there was no evidence regarding any lowering or subtraction of amounts, we assume the figure given by Interocean was error.

7. Cure payment receipts were admitted to the court as plaintiff's exhibits 19A through 19F.

8. Maintenance payment receipts were admitted to the court as plaintiff's exhibits 20A through 20F.

9. Neither party submitted detailed briefs on the topic. However, as the issue of settlement payments was treated by both parties as an aspect of requested damages, we address the issue in full.

10. See Deposition of Kenneth F. Franke, November 7, 1991, San Diego California, and attendant exhibits. We note that the defendant was not present at the deposition, although they had sufficient notice and opportunity.

11. At several points throughout the litigation there was confusion on the part of Interocean as to the total amount of claimed attorney's fees and costs. Our figures reflect the final ones given during the second half of the trial's second phase on December 14, 1993.

12. Ohio River Company v. Great Lakes Carbon Corporation, 714 F.2d 65 (8th Cir. 1983). This follows the tradition of courts sitting in admiralty and attempting to have assessments of liability be based on fault. In United States v. Reliable Transfer, the court, in replacing the admiralty rule of divided damages (in collisions or stranding) with a rule requiring, when possible, allocation of liability in proportion to relative fault, noted "The (old) rule produces palpably unfair results (where fault is not equal)." 44 L. Ed 2d 251, 259, 421 U.S. 397 (1975). In this case, fault is clearly not equal.

13. We note the possible distinction when the original plaintiff is awarded costs, and the original defendant then seeks contribution against a third-party tortfeasor. See Seal Offshore, Inc. v. American Standard, Inc., 777 F.2d 1042 (5th Cir. 1985). However, that is not the question directly before the court at this time.

In re Two Minor Children (JR Nos. 09-94, 10-94),


In Re Two Minor Children

High Court of American Samoa
Trial Division

JR 09-94
JR 10-94

August 9, 1994

__________

[1] In the absence of evidence to the contrary, the law favors preservation of the children's natural circumstances.

Before KRUSE, Chief Justice, BETHAM, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Petitioner, Robert Porter

Decision and Order:

Petitioner, a recent widow and retiree of the American Samoa Government, is the paternal grandmother of the two minor children before the court. She seeks to terminate the minors' legal relationship to their natural parents who are resident in the State of Hawaii. We know nothing else of the natural parent's circumstances save for two letters on file with the Clerk of Court--one is a "to whom it may concern" letter, while the other is addressed to petitioner's counsel--to the effect that they, the parents, had no objections to the petition. The sole ground for the petition is that the children have been under the care of the petitioner since birth.

[1] On the evidence before us, the petition must be denied. First, the facts do not lend themselves to an involuntary termination proceeding under A.S.C.A. §45.0401(a)(1). Rather the evidence points to a voluntary relinquishment type proceeding under A.S.C.A. §45.0402. Second, we cannot say on the basis of the evidence that the child's best interests will be served by severing his legal rights to his natural parents. As above-noted, we know nothing of the natural parent's circumstances. In the absence of evidence to the contrary, the law favors preservation of the children's natural circumstances. See A.S.C.A. §45.0102.

The petition is, therefore, denied. [26ASR2d118]

It is so ordered.

*********

In re Matai Title “Te'o”,


UIVA TE`O, Claimant

v.

MUTIA TE`O, and PUIA`I TUFELE, JR.,
Objectors/Counter-claimants

[In the Matter of the Matai title "TE`O"]

High Court of American Samoa
Land and Titles Division

MT No. 06-90

June 30, 1994

__________

[1] In matai title disputes, the court shall be guided by the four considerations set out in A.S.C.A. § 1.0409(c), in the priority listed. These are (1) the best hereditary right to the title; (2) the "wish of the majority or plurality of those clans of the family as customary in that family"; (3) forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country.

[2] Such qualities as "demeanor, personality, presence of mind, the clarity speed and correctness with which the answers were given, the self-confidence and other qualities reflected from speech and behavior," which go towards the issue of forcefulness and personality.

[3] Poor health and advanced age weigh against a candidate on the consideration of forcefulness and personality.

Before: KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, BETHAM, Associate Judge, MAILO, Temporary Associate Judge.

Counsel: For Uiva Te`o, Tuana`itau F. Tuia
For Mutia Te`o, Togiola T. Tulafono
For Puia`i Tufele, Jr., Fai`ivae A. Galea`i

Decision and Order:

This outstanding matter originated in the Territorial Registrar's Office on July 10, 1989, when claimant Uiva Te`o, hereafter "Uiva," filed his succession claim to the matai title Te`o attached to the village of Pago Pago, apparently after failing to secure family endorsement to his attempts to have one of his sons installed as the matai. Mutia Te`o, hereafter "Mutia," and Puia`i Tufele, hereafter "Puia`i," subsequently filed their respective objections/counterclaims. For various reasons, including the [26ASR2d102] unavailability and turnover of counsel, and one stipulated continuance for a period of six months owing to Uiva's extended illness, the matter finally came on for trial on June 16, 1994. Uiva's counsel moved on the day of trial for yet a further continuance, owing to his client's continuing illness. The motion was denied and trial proceeded without the presence of claimant.

[1] In matai title disputes, the court shall be guided by the four considerations set out in A.S.C.A. § 1.0409(c), in the priority listed. These are (1) the best hereditary right to the title; (2) the "wish of the majority or plurality of those clans of the family as customary in that family"; (3) forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country. With regard to these criteria, the court makes the following findings and conclusions:

1. Best Hereditary Right

There was no dispute that all three candidates are blood members of the Te`o family of the village of Pago Pago. Each candidate calculated his degree of hereditary entitlement under the traditional formula, that is, descent line to the nearest titleholder in his genealogy. Mutia stated his degree of hereditary right to be 50% in that his father, Te`o Falepopo, was a previous titleholder; Uiva Te`o traced his descent to Te`o Fua`au, his grandfather, which thus gives him a 25% degree of hereditary right; Puia`i Tufele traced his descent to Te`o Mutiatai, his great, great grandfather, and thus stated his degree of hereditary right to be 6.25%. We conclude that Mutia prevails on this consideration.

2. Wish of the Majority or Plurality of the Clans

Under this heading, the court is directed to inquire into "the wish of the majority or plurality of those clans as customary in that family." See A.S.C.A. § 1.0409(c)(2). The preponderance of the evidence points to the contemporary family practice of recognizing only two clans; namely, the Si`itia or Manuma clan, and the Falepopo clan. Puia`i is a member of the former while Uiva and Mutia are members of the latter. While Puia`i's candidacy is supported by his side of the family, the Si`itia or Manuma clan, the Falepopo clan's support is split between its candidates Uiva and Mutia. In these circumstances, all that can be said on this criterion is that the Te`o family is divided on the issue of a titleholder since no one candidate can be said to command support of the "majority" of the family's customary clans. We therefore conclude that no candidate [26ASR2d103] prevails on this consideration.

3. Forcefulness, Character and Personality, and Knowledge of Samoan Customs

[2-3] Although Uiva has resided largely outside the village of Pago Pago, he has, as with Mutia and Puia`i, played his expected part in significant family fa`alavelave. Uiva has been able to call on the fruits of his sons' industry to meet all important family obligations. His absence at trial, however, has necessarily precluded in-court observation of such qualities as "demeanor, personality, presence of mind, the clarity speed and correctness with which the answers were given, the self-confidence and other qualities reflected from speech and behavior," which go towards the issue of forcefulness and personality. See Reid v. Talalele , 4 A.S.R. 458, 463-64, (Land and Titles Div. 1964). At the same time, Uiva's absence has also precluded first-hand opportunity for the judges to assess his knowledge of Samoan customs. Finally, Uiva's poor health and advanced age, 88 years, also weigh against him on this consideration. See Tuinei v. Ieliko, 2 A.S.R. 117 (Land and Titles Div. 1940).

Except for educational pursuits, and occasional off-island visits by Mutia to visit his children, Mutia and Puia`i have both spent most of their lives residing in Pago Pago on Te`o family property. They have each proven to be enterprising and industrious individuals and are both economically self-secure. Mutia is 73 years of age and proudly boasts to being the father of 20 children--one of whom was a Vietnam casualty whose memory is honored by the U.S. Army's naming of its reserve compound in Tafuna after him. At a time when opportunities were limited, Mutia nonetheless managed to further his education off-island and eventually trained as a refrigeration and electrical technician. His varied career life included a stint with the naval government library as well as a number of years as a commercial fisherman--where he gained a reputation as a skillful seaman as borne out by the U.S. Navy's commendation of his successful rescue of a number of naval personnel who were swept out to sea in a storm. Mutia's present day source of income are a number of rental houses.

Puia`i, like Mutia, has also built up a number of rental properties in Pago Pago; he has in addition commercial tenants. After Marist Brothers' School in Atu`u, Puia`i completed high school in Hawaii. His career life has included service with the Department of Education, the Department of Public Safety, and operation of a grocery store until he and his wife ventured into real estate. [26ASR2d104]

Under this heading, we rate Mutia and Puia`i equal on this consideration but ahead of Uiva.

4. Value to Family, Village, and Country

On this issue, we also find Uiva behind Mutia and Puia`i because of ill-health and advanced age. As between Mutia and Puia`i, we find both candidates to be about equal with respect to value to village and country, however, we rate Mutia slightly ahead of Puia`i on family value considerations. The Te`o family has been without a sa`o for several years now; Mutia, who holds the Te`o family's lesser matai title "Mutia," is the only Te`o family matai at present. Thus, Mutia has necessarily had to fill in for the sa`o in terms of the family's relationship to village and county. Furthermore, Mutia is the only candidate with standing as a matai; he has held the Mutia title for 32 years. Although Puia`i has given invaluable service to the family as an untitled man and has shown great leadership potential, Mutia, in our view, with longstanding matai recognition within the village, is more experienced and better qualified to lead the family.

On the foregoing, we conclude that Mutia should be registered the next holder of the matai title Te`o since he prevails over Puia`i on the first and fourth statutory criteria, and over Uiva on the first, third, and fourth statutory criteria. The Territorial Registrar shall accordingly register the Te`o title from the village of Pago Pago in candidate Mutia Te`o, in accordance with the requirements of A.S.C.A. § 1.0409(b).

It is so ordered.

*********

In re Matai Title “Lolo”,


SUALEVAI LAULELEI SEA, Claimant

v.

TAFEA FAAUMA SEUI, T.S. TUIMOLOAU, SI`ITUA SAVINI,
LETALU M. MOLIGA,
PESE MASELINO, PULEISILI F. TUIOLESEGA,
and SEGILA PUIAI VAEAO, Objectors/Counter-Claimants

[In the Matter of the Matai Title "LOLO"]

High Court of American Samoa
Land and Titles Division

MT No. 09-93

May 2, 1994

__________

[1] T.C.R.C.P. 7(b)(1) requires that an application to the court for any order shall be by motion which shall state with particularity the grounds therefore.

[2] In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, AFUOLA, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Tafea F. Seui, Robert A. Porter
For Si`itua Savini, Gata E.W. Gurr
For Letalu M. Moliga, Afoafouvale L.S. Lut
For Segila P. Vaeao, Albert Mailo

Order on Motions for New Trial:

On March 23, 1994, the Court issued its Opinion and Order adjudging Letalu M. Moliga to be most qualified candidate to hold the matai title "Lolo," pertaining to the village of Sili, Manu`a. On March 30, 1994, Segila P. Vaeao filed his motion for new trial basically on the contention that the evidence favored his candidacy. Likewise, Tafea F. Seui, filed his identical motion.

[1-2] We first note that both motions are mere disagreements with the Associate Judges' weighing of the evidence. Second, neither motion [26ASR2d47] hardly complies with the "particularity" requirements of T.C.R.C.P. 7 (b)(1) ("An application to the court for any order shall be by motion which . . . shall state with particularity the grounds therefor. . . ."). In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. Taulaga v. Patea , 17 A.S.R.2d 34, 35 (App. Div. 1990). See also American Samoa Government v. Falefatu , 17 A.S.R.2d 114, 119-120 (Trial Div. 1990) ("What is essential [to a motion for a new trial] is that it be filed within the statutory period and that it fully apprises the court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections."). The grounds for the motions are simply couched in the way of conclusionary statements, and we were without the benefit of argument elaborating on the positions respectively asserted. The motions for new trial are, therefore, denied.

It is so ordered.

**********

In re Matai Title “Faumuina”,


SAUNOA S. VAOULI, SUAFA`I P. SATELE, UTU SINAGEGE, and
FAUTUA L.T. FAUMUINA, Appellants

v.

A.P. LUTALI, Appellee

[In the Matter of the Matai Title "FAUMUINA"]

High Court of American Samoa
Appellate Division

AP No. 7-92

April 4, 1994

__________

[1] The language of A.S.C.A. § 1.0409 (d) is clear--the trial court shall issue a decision that covers each factor enumerated in A.S.C.A. § 1.0409 (c). The word "shall" has traditionally been interpreted as a mandatory direction, inconsistent with the idea of discretion.

[2] Absent any clearly expressed legislative intention to the contrary, the term "shall" is significantly commanding.

[3] A failure to follow the clear meaning of A.S.C.A. § 1.0409 (d) results in prejudice to all involved. The legislature has required that the judiciary issue written findings of fact and conclusions of law. The trial court has no discretion to ignore that legislative mandate.

[4] The words of A.S.C.A. § 3.1007 (a) "a case in which he ... has a substantial interest" not only mean that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere.

[5] Recusal should never be undertaken lightly, but there are certain instances in which recusal is proper.

[6] The standard of review applied to a courts denial of a request for recusal is, in accordance with A.S.C.A. § 43.0801 (b), "clearly erroneous."

[7] A judge has an obligation not to recuse himself or herself unless there is a need to do so.

[8] Recusal is appropriate when an appointing governor appears in his capacity as an individual citizen before an appointee judge.

[9] There is a duty of recusal incumbent on an associate judge who finds himself or herself assigned to a case in which a governor who appointed the judge appears in his or her personal capacity. [26ASR2d2]

Before RICHMOND, Associate Justice, CANBY,(1) Acting Associate Justice, MUNSON,(2) Acting Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant Saunoa S. Vaouli, Gata E. Gurr
For Appellant Suafai P. Satele, Asaua Fuimaono
For Appellee A.P. Lutali, Tauivi Tuinei

Opinion:

For 20 years various candidates have been legally pursuing the Faumuina title. This appeal is the latest chapter in a case that will be, we fear, ongoing. Most recently, the case was heard before this court's Land and Titles Division on March 18, 1992. The trial court, in a very brief decision, awarded the title to appellee A. P. Lutali.(3) For the reasons detailed below, we must remand for a new trial.

INSUFFICIENT FINDINGS ON CLAN PREFERENCE

Both appellants pursuing this appeal, Saunoa S. Vaouli and Saufa`i P. Satele, assert that the trial court erred in law by failing to comply with all provisions of A.S.C.A. § 1.0409 . The relevant part of that section reads:

(c) In the trial of title cases, the High Court shall be guided by 
the following considerations, in the priority listed:
* * *
(2) the wish of the majority or plurality of those clans of the family 
as customary in that family;
* * *
(d) The court shall issue a written decision that must contain 
findings of fact and conclusions of law on each issue under (c) 
above.

In addressing A.S.C.A. § 1.0409 (c)(2), the trial court stated: "None of the [26ASR2d3] claimants were supported by a majority of the clans of the Faumuina family" (Opinion and Order at 2). Nowhere in the trial court's decision was a finding made on the make-up or number of clans in the Faumuina family. In fact, the only other reference to clans is found in the conclusion, where the court, citing In re Matai Title "Galea`i", LT No. 1050 slip op. at 3 (1971), states: "[W]hen claimants are closely matched, it is conducive to family harmony to make the selection from a different clan than the clan which last held the title." Yet the court never indicated which clan candidate Lutali, or indeed any former title-holder, represents.

[1] We note that the language of A.S.C.A. § 1.0409 (d) is clear-- the trial court shall issue a decision that covers each factor enumerated in A.S.C.A. § 1.0409 (c). We note that use of the word "shall" has traditionally been interpreted as a mandatory direction, inconsistent with the idea of discretion. Hill v. United States I.N.S., 714 F.2d 1470 (9th. Cir 1983); In Re Thrift Shoe Co., Inc., 502 F.2d 1211 (9th Cir. 1974); United States v. Machado, 306 F. Supp. 995 (N.D.Cal. 1969).

[2-3] Absent any clearly expressed legislative intention to the contrary, "shall" has been found to be significantly commanding. Escoe v. Zerbst, 295 U.S. 490, 493 (1935) ("shall ... is the language of command, a test significant, though not controlling); MCI Telecommunications Corp. v. F.C.C., 765 F.2d 1186, 1191 (D.C.Cir. 1985) (courts ordinarily regard such statutory language as "shall" as conclusive). In Woodrum v. Donovan, 544 F. Supp. 202, 206 (Ct. of Int'l. Trade 1982), the court noted under what circumstances a statute's procedural directive might be considered to be mandatory. Citing French v. Edwards, 80 U.S. 506 (1872), the court said: "(W)hen the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory". In this case, it is clear that a failure to follow the clear meaning of A.S.C.A. § 1.0409 (d) results in prejudice to all involved, as substantive rights are clearly at issue. The legislature has required that the judiciary issue written findings of fact and conclusions of law. The trial court has no discretion to ignore that legislative mandate.

The court's obligation to render a decision on each of the four considerations has also been found to be mandatory by this court. In In re Matai Title "Gaoteote", AP No. 103-75 (1975), the court found that failure to enter a finding on what the clans of a family are and who they support was an error of law. The court stated: [26ASR2d4]

The Fono has determined that only a serious review of the claimants in light of each of the four factors can result in an informed selection by the court. . . . Naturally, the trial judges must determine what the clans of the family are before they can be guided by the desire of the majority or plurality of those clans (citation omitted). It makes no difference that this determination is difficult; it is the function of the Court to resolve difficult questions.

The Gaoteote case is directly on point.(4) While we acknowledge the often-difficult task of determining clans and whom they support,(5)we are precluded by law from allowing the decision below to stand, since the trial court failed to make the required findings. Because the trial court did not make a finding on the number, identity and preference of the clans in the Faumuina family, the decision cannot stand.

APPEARANCE OF JUDICIAL IMPARTIALITY

We perceive a second problem with the trial court's decision. At the onset of trial, a motion was made to disqualify two of the associate judges that had been appointed by appellee A.P. Lutali in his capacity as the Governor of American Samoa. That motion was denied. The issue was reasserted, and again rejected, at the hearing on the motion for reconsideration or new trial. We feel this issue merits further consideration.

In the federal courts, the method for raising the issue of a judge's possible bias or prejudice and the grounds for disqualification are set out in 28 U.S.C. §§ 144 and 455, respectively. Section 144 allows a party to file an affidavit raising the issue of a judge's possible personal bias or prejudice against the party, and the steps to be taken once such an affidavit has been filed. Section 455, revised in 1974, reads, in pertinent part: "(a) Any justice, judge ... of the United States shall disqualify himself in any [26ASR2d5] proceeding in which his impartiality might reasonably be questioned".(6) Section 455(a) focuses not on whether or not there is actual prejudice, but on whether or not there is an appearance of partiality. United States v. Ritter, 540 F.2d 459, 462 (10th Cir. 1976) (disqualification is appropriate under section 455(a) when the circumstances are such that the judge's impartiality might be reasonably questioned); Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978) (the question is not whether the judge is impartial in fact, it is whether another might reasonably question his impartiality in the circumstances). This standard has been interpreted by reference to the reasonable person. SCA Services, Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977); Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (the test for appearance of partiality is whether a disinterested observer would entertain significant doubt that justice would be done).

The appearance of partiality is also a matter of concern in the territory. American Samoa's High Court Rule 103 reads, in pertinent part: "The conduct of all judges shall be governed by the Canons of Judicial Ethics". Canon 2 states: "A Judge should avoid impropriety and the appearance of impropriety in all his activities" (emphasis added). Canon 3 states: "A Judge should perform the duties of his office impartially and diligently". Canon 3C(1) states: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . ."

A.S.C.A. § 3.1007 (a) reads:

(a) No judge shall sit in any case in which he, or a family of which 
he is a member, has a substantial interest, or in which he has been 
counsel, is or has been a material witness, or is a member of the 
same family with any party to the case.

[4-5] We interpret the words of A.S.C.A. § 3.1007 (a) "a case in which he ... has a substantial interest" not to mean only that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. We interpret the words of A.S.C.A. § 3.1007 (a) "a case in which he ... has a [26ASR2d6]substantial interest" not to mean only that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. Meredith v. Atualevao, AP No. 06-79 (1979) (the appearance of impartiality is an operative standard as much as the fact of impartiality; it is irrelevant whether a judge was in fact impartial or whether actual prejudice was shown); In re Matai Title "Tauala" , 15 A.S.R.2d 65, 66 (1990) (disqualification may, in other cases, be appropriate to avoid the appearance of impropriety). Recusal should never be undertaken lightly, but there are certain instances in which recusal is proper. We think that this is one of those times.(7)

[6] The standard of review is, in accordance with A.S.C.A. § 43.0801 (b), "clearly erroneous". Federal courts also apply the clearly erroneous standard to such issues. See Laxalt v. McClatchy, 602 F. Supp. 214, 217 (D. Nev. 1985) (citations omitted).

[7] A judge has an obligation not to recuse himself or herself unless there is a need to do so. Pene v. American Samoa Power Authority , 10 A.S.R.2d 23 (mem.)(1989); see also Uiagalelei v. Ulufale , 17 A.S.R.2d 158 (1990). If recusals were easily obtained, parties might use them as a means of "judge-shopping." Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1300 (8th Cir. 1982) ("Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice," citing Blizard v. Fielding, 454 F. Supp. 318, 320 (D. Mass. 1978)).

The two associate judges in question were appointed to the bench by appellee A.P. Lutali during his first term as the Governor. While we do not wish to say that a governor, having appointed an associate judge, may never come before that individual in court, there are instances when this is so. We think that when a governor is before the court in his or her official capacity, the chance of any appearance of partiality is slim, and there is, absent special circumstances, no reason for an associate judge to [26ASR2d7] have to recuse themself.(8)

[8] However, when an appointing governor appears in his capacity as an individual citizen before an appointee judge, it is even more important that the appearance of partiality be avoided. Particularly in a small community where most people know one another, it is critically important for the courts to avoid the appearance of favoritism to a party. The appearance of partiality can be as corrosive to the judiciary as actual partiality; the courts must always maintain absolute independence and integrity.(9) Under the particular facts and circumstances of the case before us: its history, the title at stake and the relationship between the two judges and appellee, we feel that recusal of the two associate judges involved was required.

[9] We make special mention of the fact that no party to this appeal has raised any specific accusation against either of the judges involved herein. Nor are we in any way suggesting that either judge acted in any but the most honorable way. However, to insure the public's continuing confidence in the fairness of our courts, we must be as vigilant regarding the appearance of this court as we are regarding its actual functioning. For the future, we note that, save special circumstances not here present,(10) there is a duty of recusal incumbent on an associate judge who finds himself or herself assigned to a case in which a governor who appointed the judge appears in his or her personal capacity. (11)

In summary, based on the clan issue dealt with above, as well as the issue of recusal discussed herein, we are obligated to remand this case for a new trial consistent with this opinion. [26ASR2d8]

It is so ordered.

**********

* The Honorable William C. Canby, Jr., Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** The Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

1. That decision, dated April 23, 1992, also contained a dissent. However, our grounds for remand are not related to the reasons for that dissent.

2. We point out that 19 years have passed since the decision in the Gaoteote case was issued. If the legislature disagreed with the reasoning therein, it has had ample time to clarify A.S.C.A. § 1.0409. Its silence on this matter is yet another indication of the mandatory nature of the provision.

3See In re Matai Title "Tauala" , 14 A.S.R.2d 83 (1990).

4. The 1974 revision of section 455 was based on the "appearance of justice" standard adopted by the House of Delegates of the American Bar Association in 1972. See SCA Services, Inc. v. Morgan, 557 F.2d 110, 113 (7th Cir. 1977) (citations omitted).

5. We take notice of the fact that when this court was called upon to select a successor to the Faumuina title in 1973, there were also questions regarding the composition of the original panel assigned to the trial. At that time, the entire panel recused itself and "The Chief Justice then collected a pool of all the names of permanent, temporary, and retired associate judges, and submitted those names to the parties...". The names that remained then proceeded to sit at trial. In re Matai Title "Faumuina", LT No. 1265-72 (1973).

6. The question of what may constitute these special circumstances is not now before this court, and we therefore decline to comment on it.

7. Federal cases concluding that the governor-appointee relationship is too tenuous and remote to in and of itself justify recusal are not persuasive here, because the population of American Samoa is small and the citizens are generally well-known to each other.

8. We particularly heed the Rule of Necessity-- when a case cannot be otherwise heard, even an interested judge has a duty to sit on that matter, See United States v. Will, 449 U.S. 200, 66 L.Ed.2d 392 (1980) (the Rule of Necessity is at least five and a half centuries old and has been recognized by many state and federal courts).

9. Because of our decision on the points above, there is no need to reach appellants' other issues of contention. However, we do note that the trial court found candidate Lutali to have 1/128 hereditary right to the title. In In re Matai Title "Faumuina", LT No. 1265-72 (1973), this court stated that hereditary claim is "far too remote to warrant serious consideration in the absence of special circumstances."

ASG Employees Fed. Credit Union v. Gurr


[1] Conversion of a T.C.R.C.P. Rule 12(b)(6) motion into a motion for summary judgment lies squarely with the court.

[2] On a motion for summary judgment all parties must be given reasonable opportunity to present all material made pertinent to such a motion.

[3] Adherence to notice requirements is necessary in order to present the opposing party with an adequate opportunity to put forward their best response.

[4] Once the National Credit Union Administration Board become a conservator, it stands in the shoes of the mortgagee. [26ASR2d88]

[5] The time limit for removal to federal district court is 30 days, and this clock begins ticking when a party formally intervenes and becomes a party of record, a process that may be initiated by either party.

[6] Great specificity is ordinarily not required to survive a Rule 12(b)(6) motion.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Jill W. Crew
For Defendant, Togiola T.A. Tulafono

Order Denying Motion to Dismiss Counterclaims:

These consolidated cases are presently before the court on the motions by plaintiff ASG Employees Federal Credit Union ("EFCU") to dismiss the counterclaims filed by defendant Bernard Gurr, Jr. ("Gurr"). We begin with a brief recitation of the facts, as they have been alleged by both parties.

EFCU is a federal credit union operating in American Samoa. In July 1991, Gurr signed a promissory note with EFCU for $20,261.63, with interest accruing at 14% per annum on the unpaid principal. Gurr also signed a security agreement to secure this debt, giving EFCU a security interest in Gurr's 1991 Ford Taurus stationwagon, serial number 1FACP57U5LG260572.

In August 1992, Gurr also signed a Fixed & Mortgage Note with EFCU for a loan of $130,544.28, with interest accruing at 10% per annum on the unpaid principal. In September 1992, Gurr then signed a Mortgage to secure the aforementioned loan. This latter Mortgage gave EFCU a security interest in Gurr's personal residence and land in Maloata, American Samoa, and the right to take and sell this property if Gurr defaulted on the loan.

Additionally, in May 1993, Gurr received a loan from EFCU for $1,565.90. Interest accrued on this promissory note at 18% per annum on the unpaid principal.

In January 1994, EFCU filed three complaints before this court, later consolidated into the present action, alleging that Gurr had in fact defaulted and seeking: (1) the principal and accrued interest due on the debts; (2) prejudgment interest to judgment; (3) post-judgment interest; (4) credit for foreclosure proceeds (or judicial foreclosure), as to the home, [26ASR2d89] land and vehicle; and (5) reasonable attorney's fees and costs.

In his answers, Gurr admitted to signing the notes and to his failure to make payments on the loans. He also does not dispute that the EFCU has a security interest in his land and residence, or in his vehicle, or that EFCU has the right to take and sell these properties. Gurr also concurs with EFCU as to the various amounts owing. In fact, Gurr's only divergence with the facts up to this point is his disagreement with EFCU's right to prejudgment interest and post-judgment interest and attorney's fees. However, Gurr has also forwarded a number of counterclaims, and it is these that are now before the court

These counterclaims state that although Gurr has not kept up his payments, he has been wrongfully prevented from doing so by EFCU. Gurr asserts that EFCU has wrongfully kept him from his job and has erroneously failed to issue paychecks to him. Additionally, Gurr states that after he was asked to vacate his office, checks in his possession were rejected by EFCU and this has also prevented him from meeting his obligations. In consequence of these actions Gurr asks this court to dismiss EFCU's complaints and award him damages in the amount of wages due, wrongfully rejected checks, injury to his reputation, and costs.

EFCU responded to these counterclaims with the motions to dismiss under T.C.R.C.P. Rules 12(b)(1) and 12(b)(6). These motions came regularly before the court on April 11, 1994. At the hearing, EFCU also argued that the inclusion of its supplemental affidavit converted the motions to dismiss to ones for summary judgment. It is this aspect of EFCU's argument that we first address.

T.C.R.C.P. Rule 12(b) is identical to its federal counterpart.(1) The relevant parts of T.C.R.C.P. Rule 12(b) read as follows:

(b) ... the following defenses may at the option of the pleader 
be made by motion: (1) lack of jurisdiction over the subject 
matter, ... (6) failure to state a claim upon which relief can be 
granted.

If, on a motion asserting the defense numbered (6) to dismiss 
for failure of the pleading to state a claim upon [26ASR2d90] 
which relief can be granted, matters outside the pleading are 
presented to and not excluded by the court, the motion shall 
be treated as one for summary judgment and disposed of as 
provided in 56 TCRCP, and all parties shall be given reasonable 
opportunity to present all material made pertinent to such a 
motion by 56 TCRCP.

[1] Conversion of a 12(b)(6) motion into a motion for summary judgment lies squarely with the court. Morris v. Gilbert, 649 F. Supp. 1491, 1493 (E.D.N.Y. 1986) ("Whether or not the motion to dismiss has been converted to a motion for summary judgment is not a topic for debate. The court, and not the parties, decides whether the motion to dismiss is converted to one for summary judgment. The decision whether or not to convert the motion is within the court's discretion.")

[2] In these cases, EFCU introduced, as part of its supplemental memorandum in support of its motion to dismiss Gurr's counterclaims, the supplemental affidavit by Robert McCartney, EFCU's conservatorship manager. This affidavit is clearly outside the pleadings. However, the Rule is clear--all parties "must be given reasonable opportunity to present all material made pertinent to such a motion".

Federal courts have generally been strict on compliance with this notice requirement. "In evaluating the adequacy of notice, this circuit has determined ... whether the party against whom summary judgment was entered was fairly appraised that the court would look beyond the pleadings and thereby transform the 12(b) motion to dismiss into one for summary judgment." Cool Fuel, Inc. v. Connett, 685 F.2d 309 (9th Cir. 1982). "Before summary judgment may be entered against a party, that party must be afforded both notice that the motion is pending and an adequate opportunity to respond." Portland Retail, Etc. v. Kaiser Foundation, Etc., 662 F.2d 641, 645 (9th Cir. 1981). See also Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979) (holding that in the 5th circuit, when converting a 12(b)(6) motion into one under Rule 56, adherence to notice and hearing requirements must be rigorous).

[3] Adherence to notice requirements is necessary in order to present the opposing party with an adequate opportunity to put forward their best response. "If the conversion [from a Rule 12(b)(6) motion to one under Rule 56] occurs unexpectedly, the nonmoving party is left at the disadvantage of being unprepared to respond; hence notice is required." (citations omitted). Portland Retail, Etc. at 645. [26ASR2d91]

In these cases, EFCU filed its motions to dismiss Gurr's counterclaims in the High Court on March 3, 1994. Included as part of these motions, in CA Nos 8-94 and 16-94, was Robert McCartney's initial affidavit. Gurr responded on Friday, April 8, 1994. EFCU also filed its supplemental memorandum, with a supplemental affidavit attached, on April 8, 1994--a Friday, just three days before the present hearing on the following Monday. It was only then that EFCU first sought conversion to a summary judgment motion.

Clearly, this supplemental submission does not comport with necessary, or even reasonable, notice requirements. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979) (the court noted that when converting a 12(b)(6) motion to one for summary judgment, all parties had to be given a reasonable opportunity to present pertinent material; "reasonable opportunity" includes notice that the motion is now one for summary judgment). While Gurr was ready to defend against the motion to dismiss brought under 12(b)(6), he was neither prepared nor afforded fair opportunity to defend against one for summary judgment.

Because Gurr was given inadequate notice to respond to a summary judgment motion, we explicitly deny the conversion of this 12(b)(6) motion into a T.C.R.C.P. Rule 56 motion. This decision, lying within our discretion, also comports with the widespread view that summary judgment is not made automatic by filing matters outside the pleadings, but occurs only when a court "actually [takes] cognizance of them, or invoke(s) Rule 56." Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 19 (1st Cir. 1992).(2) Therefore, we will examine EFCU's motions to dismiss without consideration of matters beyond the pleadings.

We must next address EFCU's motions to dismiss under T.C.R.C.P. Rule 12(b)(1), alleging lack of jurisdiction over the subject matter. EFCU alleges that Gurr's counterclaims are directed against the National Credit Union Administration Board ("NCUA"), and based on actions taken by NCUA. While EFCU states that Gurr may bring suit against NCUA in federal district court, it alleges that EFCU is not the party properly subject to his counterclaim allegations and that his counterclaims should be dismissed on this basis. For the reasons detailed below, we deny the motion to dismiss under T.C.R.C.P. Rule 12(b)(1). [26ASR2d92]

[4-5] Once NCUA placed EFCU into conservatorship, in October 1993, NCUA then stood in the shoes of EFCU. Rosciti Const. v. Lot 10 of E. Greenwich, Plat 14, 754 F. Supp. 14, 17 (D.R.I. 1991) ("NCUA, as conservator, stands in the shoes of the mortgagee ..."). As EFCU itself states, NCUA, as conservator, "took possession and control of the business, assets, and records" (Memorandum in Support of Motion to Dismiss Counterclaim, March 3, 1993, p. 2). Gurr's counterclaims, naming EFCU, therefore directly implicate NCUA. NCUA can now file a motion to be substituted for EFCU as the real party in interest. NCUA may also, if it so desires, file a notice of removal to federal district court. The time limit for removal is 30 days, and this clock begins ticking when NCUA formally intervenes and becomes a party of record, a process that may be initiated by either party. See Savoy v. White, 753 F. Supp. 412 (D. Mass 1990); Putnam v. DeRosa, 963 F.2d 480, 483 (1st Cir. 1992). However, EFCU may not dismiss Gurr's claims on this basis, as NCUA is indeed a party to this action.

We turn next to EFCU's motions to dismiss under T.C.R.C.P. Rule 12(b)(6)--that Gurr's counterclaims fail to state a claim upon which relief can be granted. Insofar as EFCU's objection to the counterclaims rests on the premise that Gurr's counterclaims are directed at the wrong party, it is denied. As we stated when addressing the motion to dismiss under Rule 12(b)(1), NCUA now stands in the shoes of EFCU.

We address separately the two remaining contentions making up Gurr's counterclaims. Both the counterclaims and the motions to dismiss them are fatally unsupported and imprecise.

In his first contention, Gurr states that the termination of his employment by NCUA was wrongful, and that this was a proximate cause of his failure to make the required payments.

12 U.S.C.S. § 1787(c)(1) states, in pertinent part:

In addition to any other rights ... the conservator ... for any 
insured credit union may disaffirm or repudiate any contract 
or lease-

(A) to which such credit union is a party;

(B) the performance of which the conservator ..., in the 
conservator's ... discretion, determines to be burdensome; and
[26ASR2d93]

(C) the ... repudiation of which the conservator ... determines, 
in the conservator's ... discretion, will promote the orderly 
administration of the credit union's affairs.

Later provisions of 12 U.S.C.S. § 1787(c) mandate that this repudiation must be within a reasonable period following the conservator's appointment. Gurr has not alleged that his termination was untimely, choosing instead to challenge it on other grounds.

It is clear from this section that Gurr did not have an unqualified right to maintain his employment. Indeed, the law plainly states that NCUA, as EFCU's conservator, has a legal right to repudiate his type of contract. While Gurr has a right to challenge his termination under 12 U.S.C.S. § 1787(c)(3), the possible success of his challenge on those grounds does not provide an excuse for his failure to make required mortgage payments. Gurr's obligation to EFCU is not vacated even if he successfully challenges his termination of employment.

However, we are unable to glean from the pleadings what Gurr may assert when challenging his dismissal, or if he may have a valid claim. We are also unable to dismiss his counterclaims at the present time, as EFCU has forwarded nothing on which we can base such a ruling. Therefore, the motions to dismiss the counterclaims on this aspect of T.C.R.C.P. Rule 12(b)(6) are denied.(3)

We now turn to the second basis on which the counterclaims rest--that Gurr was prevented from making timely mortgage payments by EFCU's wrongful rejection of checks he had in his possession at the time he was terminated. Gurr states that these checks were for compensatory time-off that Gurr had not taken, past wages, and his EFCU shares. EFCU claims that there were five such checks and that they were for accrued compensatory time-off, accrued vacation time, accrued sick leave, and for FICA and American Samoa income tax withholdings. EFCU also states that Gurr was in default prior to these actions and therefore, even if these acts are wrongful, they have no bearing on Gurr's failures to make the [26ASR2d94] required payments. Specifically, EFCU states that Gurr had become delinquent, at least as to the notes secured by the vehicle, loan and home, by May 1993. Although EFCU catalogues payments on these notes made by Gurr between May and September 1993, it states in its memorandum in support of the motions to dismiss the counterclaims that these payments did not cure Gurr's delinquencies, and that he remained in default throughout this period. Nowhere does Gurr actually refute the assertion that these defaults had occurred prior to the alleged wrongful stop payments on the checks in question.

[6] We note that "great specificity is ordinarily not required to survive a Rule 12(b)(6) motion." Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 17 (1st Cir. 1992). Moreover, we are again faced with the problem that neither Gurr nor EFCU has asserted enough facts, or any law, for us to rule with assurance on the matter one way or another. Therefore, the motion to dismiss the counterclaims on this aspect of T.C.R.C.P. Rule 12(b)(6) is also denied. See Chi Shun Hua Steel Co., Ltd. v. Crest Tankers, Inc., 708 F. Supp. 18 (D.N.H. 1989); State of Or. v. City of Rajneeshpuram, 598 F. Supp. 1208 (D. Or. 1984); Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.Y. 1984); Williams v. Gorton, 529 F.2d 668 (9th Cir. 1976).

We last address EFCU's motions to dismiss under T.C.R.C.P. Rule 12(b). Here EFCU urges dismissal because Gurr has already asserted identical counterclaims against NCUA in CA No. 117-93, (NCUA v. Gurr, et. al.). In CA No. 117-93, NCUA applied for permanent injunctive relief against defendants named in that action. A default judgment granting permanent injunctive relief against all these defendants, except Gurr, was entered on January 10, 1994. On January 5, 1994, Gurr answered and counterclaimed, alleging that he was illegally removed from his position and that checks in his possession were wrongfully denied payment. Gurr also alleges injury to his reputation and requests damages and reinstatement.

It appears that the counterclaims advanced by Gurr are the same in both CA No. 117-93 and in the cases before us. Although the causes of action are not as identical, we are mindful of the possible waste of judicial time and resources that often springs from repetitive litigation. Both the suit in CA No. 117-93 and the ones before us are essentially based on the same transaction. Additionally, Gurr has forwarded identical counterclaims in all suits. Therefore, we now consolidate CA No. 117-93 with the cases before us, in order to more expeditiously resolve this matter. See I.A. Durbin, Inc. v. Jefferson Nat. Bank, 793 F.2d 1541 (11th Cir. 1986);[26ASR2d95] Walton v. Eaton, 563 F.2d 66 (3rd Cir. 1977).

In addition, this same underlying transaction is also the basis of another suit presently pending before this court, LT No. 13-94. In the interest of addressing this matter in full, we also now consolidate LT No. 13-94 with the cases before us, in order to resolve this matter properly.

In conclusion, we invite further documented and supported submissions that may enable the court to dispose of this matter, or portions of it, in a manner a more expeditious than trial.

It is so ordered.

*********

1. Like its federal counterpart, T.C.R.C.P. Rule 12 makes no provision for converting a motion to dismiss under 12(b)(1) into a summary judgment motion.

2. Although we clearly feel that this is the best, and most substantiated, view, we acknowledge that some courts have decided the question in various ways. For a brief overview see Gilbert v. City of Cambridge, 932 F.2d 51, 60 (n.11) (1st Cir. 1991).

3. Additionally, the conservator's liability for repudiating any contract pursuant to 12 U.S.C.S. § 1787(c)(1) is limited to actual direct compensatory damages as of (1) the date of the conservator's appointment or (2) the date of repudiation of the contract. Section (c)(3)(B) makes it clear that actual direct compensatory damages do not include punitive damages or damages for pain and suffering. Therefore, even assuming Gurr's counterclaims are upheld, his demand for damages related to injury to reputation would be baseless.

ASG Employees Fed. Credit Union v. Galea'i


[1] The Board of the National Credit Union Administration has exclusive authority to regulate terms of federal credit union loans, and this authority preempts any American Samoan laws affecting such interest rates. Therefore, the ceiling of 15% provided for in A.S.C.A. § 28.1501 is preempted by the federal rate established by the NCUA.

[2] Summary judgment is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him.

[3] Where the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof. Thus, the burden on the moving party may be discharged by pointing out that there is an absence of evidence to support the nonmoving party's case.

[4] A defendant is not entitled to a trial upon the unsubstantiated hope that he can produce convincing evidence at trial.

Before RICHMOND, Associate Justice, AFUOLA, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Cheryl Crenwelge
For Defendant Fatima Galea`i, Pro Se

Order Granting Motion for Summary Judgment:

On October 25, 1993, plaintiff American Samoa Government Employees Federal Credit Union ("EFCU") filed a complaint in the District Court of American Samoa alleging that defendants Fatima Galea`i and Paradise Travel (collectively "Galea`i") were in arrears on a loan issued by EFCU. EFCU sought the principal, $3,952.82 (as of October 20, 1993), accrued interest, prejudgment and post-judgment interest, and attorney fees and costs. In a unverified answer filed pro se, Galea`i denied the allegations in the complaint, forwarded a number of affirmative defenses and sought to have any debt found forfeited and costs awarded.

On February 25, 1994, EFCU moved this court for summary judgment against Galea`i, submitting the affidavit by Vi`i Cho, collection supervisor for EFCU. EFCU later submitted a supplementary affidavit, as well as copies of Galea`i's account history and disbursement check. (1) In response to EFCU's summary judgment motion, Galea`i submitted both a sworn statement alleging that there exists a genuine dispute at least as to the amount of money owed to the plaintiff, and an unsworn statement alleging essentially the same defense. Galea`i also alleged that the District Court lacked jurisdiction, and that the interest rate charged by the EFCU of 18% is usurious.

The motion for summary judgment came regularly before this court for hearing on May 9, 1994. EFCU was represented by counsel. Galea`i was not present at the hearing, and sent no representation, despite being properly served.

We can quickly dispose of two of Galea`i's objections. The issue of the District Court's jurisdiction is now moot, as this case was properly transferred to this court on April 12, 1994.

[1] Additionally, Galea`i's objection to the interest rate charged by EFCU must fail as a matter of law. The interest rates charged by a federal lending institution such as the EFCU are determined by the Board of the National Credit Union Administration ("NCUA"). The NCUA determined that for loans originating between May 15, 1987, and September 3, 1994, such as Galea`i's, the interest rate may be as high as 18% per annum. This determination was published in the Code of Federal Regulations, 12 C.F.R. § 701.21 (b)(7)(ii)(1993). The NCUA has exclusive authority to regulate terms of federal credit union loans, and this authority preempts any American Samoan laws affecting such interest rates. 12 C.F.R. § [26ASR2d76] 701.21(b)(1)(i)(A). Therefore, the ceiling of 15% provided for in A.S.C.A. § 28.1501 is preempted by the federal rate established by the NCUA. See Crissey v. Alaska U.S.A. Federal Credit Union, 811 P.2d 1057 (Alaska 1991); Home Mortgage Bank v. Ryan, 986 F.2d 372 (10th Cir. 1993); Fidelity Fed. Sav. & Loan Ass'n. v. de la Cresta, 73 L. Ed.2d 664 (1982). The interest rate charged Galea`i is neither usurious nor in violation of local law. We now turn to the remaining claims.

[2] Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 8 L. Ed.2d 176 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987).

[3] It is also true that where "[T]he proof in support of the motion ... has a high degree of credibility the opponent must produce convincing proof." Wright, et. al., Federal Practice and Procedure, § 2727 at 142 (2nd Ed. 1983). This standard was articulated by the Supreme Court of the United States in "the Celotex trilogy." These three cases stand for the proposition that an inadequate showing cannot defeat a moving party's competent motion for summary judgment. "[T]he burden on the moving party may be discharged by ... pointing out ... that there is an absence of evidence to support the nonmoving party's case." Bryant v. Southwest Marine of Samoa, Inc., CA No. 41-92 (1993),citing Celotex Corp. v. Catrett, 91 L. Ed.2d 265, 275 (1986).

[4] We are well aware that summary judgment is both final and drastic. We are also cognizant of the need to dispose of meritless disputes at the earliest opportunity and so preserve judicial resources. In this case, EFCU has submitted ample materials of high reliability in order to support its motion. In response Galea`i has submitted no evidence at all, and neglected to either make an appearance at the hearing, or procure a representative to so appear. Galea`i has asserted that there is a genuine dispute but has not made the court privy in any way to the substance of this dispute. A defendant is not entitled to a trial upon the "[u]nsubstantiated hope that he can produce such evidence at trial." Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 (9th Cir. 1969). Galea`i has not submitted check stubs, receipts, any verified statement, or indeed any document whatsoever that we could view in a [26ASR2d77] light favorable to Galea`i's case. (2)

While we strive to give pro se parties every benefit of the doubt, the doubt must provide some benefit to such parties. In this case, none is articulated. Therefore, for the reasons articulated above, EFCU's motion for summary judgment is granted.

It is so ordered.

*********

1. Vi`i Cho's supplemental affidavit, submitted by the EFCU on May 3, 1994, attested that the principal refinanced amount of the loan was $4,361.65.

2. While we have taken note of Galea'i's unsworn statement of April 5, 1994, we also note that it suffers from the same fatal flaws as Galea'i's other submissions. A non-moving party's statement, even in proper affidavit form, may be inadequate opposition to a credible summary judgment motion. See Ashwell & Company, Inc., v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1956).

G.H.C. Reid Co. v. American Samoa Gov’t ,


G.H.C. REID & CO., LTD., Petitioner

v.

AMERICAN SAMOAN GOVERNMENT, GOVERNOR'S 
APPOINTED ADMINISTRATIVE BOARD, Respondents and 

HALECK'S WEST DAIRY, INC., Intervenor

High Court of American Samoa
Appellate Division

AP No. 15-94

September 30, 1994

__________

[1] A petitioner is entitled to a stay of enforcement only on showing 1) a substantial likelihood of ultimately prevailing on the merits and 2) great or irreparable injury if a stay is not issued before a full and final determination can be made.

Before RICHMOND, Associate Justice, WARD,* Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Petitioners, Ellen A. Ryan 
For Respondent, Henry W. Kappel, Assistant Attorney General 
For Intervenor, Brian M. Thompson

Order Denying Motion for Stay of Enforcement:

On September 23, 1994, petitioner filed, pursuant to A.S.C.A. §§ 4.1041 et seq., for judicial review of respondents' administrative decisions awarding the 1994-95 school milk and juice contract to intervenor, and sought preliminary injunctive relief preventing implementation of these decisions. The hearing on the order to show cause was held on September 29, 1994. Counsel for petitioner, respondents, and intervenor were present, and, without objection, intervenor became a party.

[1] We consider petitioner's application for provisional relief as a request, [26ASR2d140] in accordance with A.S.C.A. § 4.1041(b), for a stay of enforcement of the administrative decisions. In the immediate context, petitioner is entitled to a stay of enforcement only on showing (1) a substantial likelihood of ultimately prevailing on the merits and 2) great or irreparable injury if a stay is not issued before a full and final determination can be made. See Leti v. Immigration Board, 8 A.S.R.2d 107, 109 (1988).

Petitioner has failed to show that it will suffer great or irreparable harm if the stay is not issued. Petitioner's contract with respondent American Samoan Government has been terminated. Its losses, if any, can be recovered either administratively or judicially by ascertainable, money damages. Since petitioner will not suffer great or irreparable harm, we need not consider the likelihood of the ultimate result.

Petitioner's request for provisional relief is denied.

It is so ordered.

**********

* The Honorable John L. Ward sitting by designation of the Secretary of the Interior.

Fanene; Fanene v.


FANENE FETAIAGIA KAVA, Plaintiff

v.

FANENE S. SCANLAN, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 06-94

April 4, 1994

__________

[1] There is nothing in law or custom to prevent reunification of a split matai title; however, reunification is something best left to the evolutionary process of Samoan custom, as opposed to yet another conflicting judicial pronouncement on the issue of split/joint matai titles.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, Aviata F. Fa`alevao
For Defendant, Arthur Ripley, Jr.

Order on Motion to Dismiss:

Defendant Fanene Scanlan moves to dismiss on the basis that plaintiff Fanene Kava's complaint fails to state a claim for which relief may be granted. Defendant argues that plaintiff is once again seeking to relitigate an issue which has been settled in previous court decisions. Underlying the action is plaintiff's outstanding ambition to have a say over certain Fanene family lands known as "Lalopu`a," which prior court decisions have declared as being under the exclusive pule of Fanene Scanlan and his predecessors in title.(1)[26ASR2d9]

Fanene Kava seeks a declaration to the effect that the Fanene title attached to the village of Pago Pago is not a split title; that she thus co-holds the Fanene title with defendant Scanlan and so shares pule with the latter over all family assets; and that, notwithstanding earlier court decisions to the contrary, there is only one Fanene family, not two separate families, in the village of Pago Pago.

After reviewing the numerous court cases involving the Fanene title of Pago Pago, we find the following: In 1932, the court in Taofi v. Foster , 1 A.S.R. 464 (Trial Div. 1932), awarded the Fanene title to Filo Foster, defendant Scanlan's predecessor in title. Filo then singularly held the Fanene title for a period of thirty-three years. In 1965, however, the court allowed the registration of another Fanene titleholder when it granted the matai-succession claim of Vaoali`i K. Fanene, plaintiff Kava's predecessor in title. See Fanene Filo v. Vaoali`i K. Fanene , 4 A.S.R. 603 (Trial Div. 1965). Ironically, and over Fanene Filo's vigorous objection, Vaoali`i's application was granted on the basis of his claim that the Fanene title was in fact a "split" title--the antithesis of the position being canvassed by his present-day successor, Fanene Kava.(2) With the registration of Vaoali`i's claim, there were two Fanene titleholders in the village of Pago Pago.

After the death of Vaoali`i, Tauveve L. Fanene filed his application to register the title accordingly left vacant by the death of Fanene Vaoali`i. Tauveve's application, like Vaoali`i's, was also contested by Fanene Filo, who once again asserted that the Fanene title was not a split title. The matter eventually went before the Lands and Titles Division. A review of the Clerk's file, LT No. 1035-69, reveals that the court had initially sent the matter back to the parties with the directive that "all branches of the Fanene family" were to meet and then report back to the Court "in writing" on the question "whether or not the entire family desires that its split Matai title be merged and made whole again." See Fanene Filo v. Tauveve L. Fanene, LT No. 1035, Order Calling For Joint Meeting of Fanene Family (April 2, 1970). The parties apparently met or attempted to meet; however, they were not able come to any agreement on the question posed and thus the matter found its way back to the court for resolution. The court, finding that the title "being a split title, and the family having been unable to agree that the title be merged into a single [26ASR2d10] holder," dismissed Fanene Filo's objection and directed the registration of the title "formerly held by Fanene VAOALI`I in accordance with the law and with the wishes of his branch of the family." Id., Order Dismissing Objection (Oct. 14, 1970) (emphasis in original). With the registration of Tauveve's application, there were once again two registered Fanene titleholders in the village of Pago Pago.

These two Fanene titleholders were again before the court in 1971, over a dispute regarding land "Lalopu`a." See Fanene v. Fanene, LT No. 1089-71 (Nov. 1, 1971). It seems that while Tauveve's matai-succession application was pending, Fanene Filo had executed a separation agreement in favor of Herman Scanlan, now Fanene Scanlan, the defendant herein. When this agreement was offered for recordation with the Territorial Registrar, it attracted the separate objections of Tauveve and Fetaiaiga F. Fanene, now Fanene F. Kava, the plaintiff herein. At trial, the parties presented the following stipulated issues to the court: 1) "[Whether] the two Fanene Families, namely, Fanene Filo and Fanene Tauveve, [were] one and the same family? 2) Who has the pule or authority over communal land of the Fanene Family?" The court concluded:

Fanene Filo and Tauveve Fanene families are two separate, 
different and distinct families. They, in the past and continue 
for a period of approximately 70 years conducted themselves 
as separate families, each not consulting the other in major 
Samoan family affairs such as weddings and funerals.
. . . 
Lalopu`a is communal land of the Fanene Filo Family [under 
the pule of the Fanene Filo family's senior matai; to wit, Fanene 
Filo].

Slip op. at 3-4. In an addendum to the decision later entered, the court further held that those members of the Fanene Tauveve side who were residing on Lalopu`a, namely, "Fetaiaiga F. Kava and her children," were entitled to remain on the land subject to the requirement of tautua (traditional service) to Fanene Filo. Fanene v. Fanene, 4 A.S.R. 66, 67 (Land & Titles Div. 1972).

Most recently, in Fanene v. Fanene , LT No. 73-90. 19 A.S.R.2d 69 (Land & Titles Div. 1991), the pule of the Fanene Filo side of the family was again upheld. The parties that were then before the court are the very same parties before the court today, and the question that was before the court in 1991 was whether Fanene Scanlan had the sole authority to issue [26ASR2d11] separation agreements relating to Lalopu`a. The court granted Fanene Scanlan's motion for summary judgment.

The principal argument in this latest attempt to resurrect the issue of pule is premised on yet another ruling of the Land and Titles Division, which does not appear to have been previously raised by plaintiff. In the case of In the Matter of High Chief Title Mauga , 4 A.S.R. 132 (Land & Titles Div. 1974), the court held that "Mauga" is not a split title. The court here considered the notion of split titles as being unsamoan but explained that two persons may jointly hold the same title. Id. at 139. It also purported to reverse Tauvevematalilo v. Fanene Filo, Civ. 1035 (1970), which held that when a matai title was registered as a split title and two groups of a family cannot agree to merge the title, successors to each holder of the split title may be selected. Mauga , 4 A.S.R. at 135.

However, this court is neither bound nor inclined to follow the statements made in the Mauga case, insofar as they pertain to the Fanene family or families of Pago Pago. First, the Mauga court's comments on the Tauvevematalilocase were not central to its decision on the case then before it. Second, at the time that case was decided, the High Court's rulings on split titles were inconsistent. See, e.g., In re Registration of the Matai Title "Salave`a" , 4 A.S.R. 44 (Land & Titles Div. 1971) (finding that matai titles may be split and that descendants of each branch may elect its own titleholder), overruling Salave`a v. Salave`a, No. 18-1919 (1919) (which ordered titles of two branches of a family "merged"). Significantly, these inconsistencies came about as a result of the court's ready resort to judicial notice of Samoan custom. The Mauga court simply reversed the Tauvevematalilo case because, upon "reconsideration," it viewed the earlier decision as being "ill-advised and in substantial derogation of Samoan custom." Mauga , 4 A.S.R. at 140. The court's views on the matai system were in part based upon the court's judicial notice of "the development of the matai system from its inception during the Polynesian migration from Asia until the present time. See Buck, 'Vikings of the Sunrise' (1938)."Mauga , 4 A.S.R. at 137-138. Likewise, the court's findings on the issue of "split titles" was a generalization similarly grounded on Samoan custom as judicially noticed by the court. Id. at 140. On the other hand, the exact opposite result was reached in In re Registration of the Matai Title "Salave`a"; the court there made the following observation on the matai system, as well as on the scope of the court's constitutional power with respect to issues touching on the matai system:

It may be well at this time to state that under the matai 
[26ASR2d12] system there are certain fundamental rights that 
are passed from father to son through the blood. These rights 
are held sacred and lasting by all who live under the matai system 
and are considered above and beyond the limits of the authority 
of the courts or any other tribunal or power. One of these is 
the right of a Samoan to claim a matai title once held by an ancestor.

Salave`a , 4 A.S.R. at 46-47.

The Mauga court's premise is not particularly compelling. First, we note that the Land and Titles division has subsequently acknowledged that Samoan custom is neither static nor cast in stone. See Fairholt v. Aulava , 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983) ("The Samoan way of life has shown that it can accommodate itself to change. Samoan culture is dynamic, energetic, forceful, and vigorous."). At the same time, our review of the Tauvevematalilo file reveals that that court's findings, to wit; separately developing family entities that gave rise to split titles, was founded on the evidence and testimony at trial, including an admission by "Tauveve Fanene [plaintiff Kava's predecessor in title] that their family is not related to the Fanene Filo family [plaintiff Scanlan's family]." These findings were not based on generalizations about Samoan custom; rather, they were findings relating to the affairs and historical development of a specific family in the village of Pago Pago as related by the parties' evidence on family development.(3)

[1] In regards to the pule over the land Lalopu`a, the High Court has already decided the matter in favor of Fanene Scanlan and his predecessors in title. As such, Fanene Kava's suit is barred by res judicata. If at some time the two Fanene families decide and agree that theirs is truly one family and choose to reunite the Fanene title, that is their prerogative. There is nothing in law or custom to prevent that reunification; however, reunification is something best left to the evolutionary process of Samoan custom, as opposed to yet another conflicting judicial pronouncement on the issue of split/joint matai titles. [26ASR2d13]

Defendant's motion to dismiss is, therefore, granted.

It is so ordered.

**********

1. See Fanene v. Fanene , 4 A.S.R. 66 (Land & Titles Div. 1972); Fanene v. Fanene , 19 A.S.R.2d 69 (Land & Titles Div. 1991).

2. The 1965 court found precedent for Vaoali`i's claim from the Territorial Registrar's records, which reflected dual Fanene-holders on two previous occasions, and was further persuaded by certain corroborative remarks it found in the court's earlier decision in Taofi v. Foster , supra.

3. Plaintiff Fanene Kava's claim of a singular Fanene family with joint titleholders seems rather puzzling in light of the fact that the only reason she is a titleholder today is because her predecessor in title's version of family history--about separate and distinct development of two separate and unrelated Fanene families--was earlier accepted by the court. The logical extension of plaintiff's contention would seem to be the elimination of the title she is holding, since the very premise for which the same was recognized in Fanene Filo v. Vaoali`i K. Fanene , 4 A.S.R. 603 (1965), would be overturned.

Bernard ; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TOLO aka ALBERT BERNARD, Defendant

High Court of American Samoa
Trial Division

CR No. 54-93

July 5, 1994

__________

[1] If evidence of past crimes speaks more to defendant's proclivity to commit crimes in general, rather than his participation in the crime at hand, it has a high probability of instigating the jury to convict because defendant "is a bad person" - an unallowable inference.

[2] The fact that this defendant is in the "general class" of those prone to commit such crimes, does not go to the modus operandi/identity of this particular defendant. Such evidence tends only to mark him as one of an undesirable, unremarkable sub-class, a distinction that would have a prejudicial effect and tend to mislead the jury.

[3] In determining whether to admit prior crimes, wrongs or acts, length of time between the prior crimes and acts and the incident at hand is another factor to be considered.

Before KRUSE, Chief Justice, and TAUANU`U, Chief Associate Judge.

Counsel: For Plaintiff, Rosemary H. Kaholokula, Assistant Attorney General
For Defendant, Barry I. Rose, Assistant Public Defender

Order on Motion to Admit Evidence of Prior Conduct:

The government seeks to admit three previous incidents from the defendant's past. These include a conviction for trespassing, a conviction for burglary/assault/attempted rape, and a "peeping" incident that involved no conviction. The government seeks to admit these acts as evidence of the defendants identity. In these matters we look to the probative worth of the offered evidence against the dangers of unfair prejudice, confusion of the issues, and misleading the jury.

[1] In the case before us, the offered evidence certainly has probative value, however, its value speaks more to defendant's proclivity to commit crimes in general, rather than his participation in the crime at hand. This speaks to defendant's character, and has a high probability of instigating the jury to convict because defendant "is a bad person" - an unallowable inference. This holds true even though the prior crimes show propensity to commit crimes of a particular class, rather than in general. See People v. Alcala, 685 P.2d 1126 (Cal. 1984).

[2] Here the government asserts that there are enough commonalities between the current charged offense and the prior acts. We disagree. The three prior incidents occurred in the Tafuna ASG Housing complex. While the latest incident occurred close to this complex, this geographical proximity is not enough to admit the evidence. Additionally, the bulk of the other similarities forwarded by the government are qualities shared by many would-be rapists. The fact that an attacker is wearing little or no clothing, at night, carrying a weapon and targeting women, is a description that does not take this defendant out of the "general class" of those prone to commit such crimes. Instead of going to the modus operandi/identity of this particular defendant, such evidence tends only to mark him as one of an undesirable, unremarkable sub-class, a distinction that would have a prejudicial effect and tend to mislead the jury. See People v. Rivera, 710 P.2d 362 (Cal. 1985).

[3] Another factor to be considered is the length of time between the prior crimes and acts and the incident at hand. Although evidence that would otherwise fall under this exception may be admitted even though it occurred some time ago, the incidents at issue here are not probative enough to overcome this barrier. See Paulson v. State, 393 N.E.2d 211 (Ind. 1979).

The government's contention that this evidence is "critical to their case" is unpersuasive. The government has the complainant's identification already ruled admissible by this court. Admitting these prior acts, that on balance are more prejudicial than probative, would serve only as cumulative evidence. [26ASR2d112]

Therefore, the motion to admit prior crimes, wrongs or acts should be denied for the reasons detailed above.

It is so ordered.

*********

Bernard; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TOLO aka ALBERT BERNARD, Defendant

High Court of American Samoa
Trial Division

CR No. 54-93

May 9, 1994

__________

[1] A one-on-one showup is inherently suggestive; however, suggestiveness of the identification process does not, by itself, merit suppression.

[2] The factors to be considered in determining the admissibility of identification testimony are the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation.

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Rosemary H. Kaholokula, Assistant Attorney General
For Defendant, Barry I. Rose, Assistant Public Defender

Order on Motion to Suppress Identification:

The defendant was identified by the complainant and her husband following a showup--an identification process where only one person is shown to the eyewitness. Defendant contends that his pre-charge identification by the complainant and her husband was undertaken in overly suggestive circumstances, and that any subsequent attempts at in-court identification by these two individuals would therefore be in violation of his rights to due process.

Contrary to proper police procedure, the complainant and her husband were taken by Officers King Talamoni and Afimuao Leota to the Tafuna Correctional Facility (TCF) for the purpose of their viewing the defendant, an inmate at the TCF. The complainant, while sitting with her husband and Officer Leota in a police vehicle outside one of the TCF cell-blocks, [26ASR2d57] identified the defendant as she observed him exiting the cell-block to cross the yard. Her husband then similarly identified the defendant as the culprit.

[1-2] A one-on-one showup is inherently suggestive; however, suggestiveness of the identification process does not, by itself, merit suppression. United States v. Hamlin, 684 F2d 380 (6th Cir. 1982). In Manson v. Braithwaite, 432 U.S. 98 (1977), the Supreme Court elaborated on the standards to be used in determining the admissibility of identification testimony. The Court put the focus of inquiry on reliability of the identification and applied the "totality of the circumstances" standard of Stoval v. Denno, 388 U.S. 393 (1967), to test reliability. In this regard, the factors to be considered are:

the opportunity of the witness to view the criminal at the time 
of the crime, the witness' degree of attention, the accuracy of 
his prior description of the criminal, the level of certainty 
demonstrated at the confrontation, and the time between the 
crime and confrontation.

Manson, 432 U.S. at 114.

With regard to the complainant's identification, the evidence suggests that she had the opportunity to view the defendant. She testified that she struggled in the bedroom with the intruder while he attempted to hold her down with one hand on her neck and threatened a stabbing motion with the other. Although the incident happened during the hours of darkness, the complainant testified that there was sufficient light from a nearby streetlight to enable her to see the person she was struggling with that morning. While the opportunity to identify her assailant may well have been momentary and at a time of heightened anxiety, these are factors that go to weight rather than admissibility.

Additionally, the fact that the complainant implored the officers to take her to the TCF that very morning, corroborates her claim of an opportunity for positive identification. She lives near the TCF. She was determined in her request to the officers to be taken immediately to the TCF because she realized that she had seen the intruder's face before; she was certain in her own mind that the intruder was an inmate whom she had seen around the prison area.

Her recollection of having seen the intruder before also bespeaks her degree of attention. Furthermore, she had the presence of mind to race [26ASR2d58] after the intruder to the front door, after the latter had bolted from the bedroom, so that she could turn on the outside light. At the same time, the description of the intruder which she and her husband had given to the police, together with certain telltale evidence of a peculiar, but well known, modus operandi, caused at least one of the officers to suspect the defendant and relent to complainant's insistence to be taken to the TCF. At the TCF, complainant's level of certainty was demonstrated by her immediate and excited identification of the defendant. Finally, the prompt confrontation with defendant actually enhanced reliability.

Notwithstanding the suggestiveness of the procedure employed, we are satisfied that the complainant's identification of the defendant had an independently reliable origin.

As to her husband's identification of the defendant, we conclude that his identification of the defendant cannot be sustained. The complainant's husband did not have the opportunity to positively identify the defendant. The best that he had in the way of opportunity was a fleeting side-view of the intruder, although in his ensuing chase with the intruder, he was able to observe the latter's size, hair length, complexion, and clothing. In actuality, all that this witness can really attest to is that the defendant "resembled" the person he was chasing that morning. (1)

His identification of the defendant at the TCF was, we believe, based upon his wife's sense of assuredness that she had seen the intruder as the defendant walked out of the cell-block. We are affirmed in this conclusion by this witness's demonstrated inability to recognize the defendant at the preliminary examination stage. At the same time, his ineffective attempts on the stand to reconcile certain inconsistencies with his earlier testimony at the preliminary examination clearly pointed to his inability to sort out what it was that he had seen, and what it was that he had deduced.

We conclude that any in-court attempts at positive identification of the defendant by this witness would be improperly tainted by his pre-trial identification of the defendant at the TCF.

On the foregoing, the motion to suppress identification by the complainant is DENIED. The motion to suppress identification by the complainant's husband is GRANTED. [26ASR2d59]

It is so ordered.

*********

1. Although falling short of positive identification, such testimony is admissible. 29 Am. Jur.2d, Evidence § 267.

In re a Minor Child (JR No. 36-94),


In Re a Minor Child

High Court of American Samoa
Trail Division

JR No. 36-94

June 30, 1994

__________

[1] Western Samoan courts are in a better position to meaningfully assess the natural circumstances of a Samoan baby who was born in Western Samoa to Western Samoan domiciled parents and to therefore judge whether it is in his best interests and welfare to sever his legal relationship to his parents.

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

Counsel: For Petitioners, Ellen A. Ryan

Order on Petition for Termination:

The petitioners are a non-Samoan couple who have been unsuccessful in their efforts to have a child and are desirous of adopting a child; petitioners are currently residing in the territory by reason of short term duty assignment with the federal government; petitioners intend to return to the United States after completion of tour duty in American Samoa; through the efforts of on-island friends, petitioners obtained physical custody of a then six month old Samoan baby who was born in Western Samoa of Western Samoan domiciled parents; the child has been in the care and custody of petitioners for a period of six months now and petitioners seek to terminate the legal relationship between the child and his natural parents in order that the child be made available for adoption; although one of the natural parents was on-island on the day before the hearing of this petition, neither natural parent appeared; while the Office of Child Protective Services has undertaken a home study on the petitioners, the court has learned absolutely nothing on the child's natural circumstances, save hearsay accounts of one of the petitioners that the natural parents have willing surrendered the child and that they are financial incapable of providing for the minor.

[1] In these circumstances, we decline to exercise jurisdiction. The Western Samoan courts are the courts of domicile and have a more substantial interest in the minor's welfare. Furthermore, the Western [26ASR2d106] Samoan courts are in a better position to meaningfully assess the child's natural circumstances and, therefore, judge whether it is in his best interests and welfare to sever his legal relationship to his parents.

The petition is denied.

It is so ordered.

*********

Gorniak; Scalise v.


JOHN SCALISE, Plaintiff

v.

DAVID D. GORNIAK and WILLIAM SELLERS, JR., Defendants

High Court of American Samoa
Trial Division

CA No. 133-93

June 5, 1994

__________

[1] Before a default judgment may be entered, a court must scrutinize the evidence itself.

[2] Evidence of amount of debt, presented in support of motion for default judgment should consist not of a conclusory affidavit by attorney, but of bank ledgers and other direct evidence from which a court can conclude for itself whether the amount has been correctly calculated.

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Michael H. Crew and Marshall L. Ashley

Order on Motion for Default Judgment:

Plaintiff filed his complaint for an overdue debt and pre- and post-judgment interest on December 6, 1993. On December 30, 1993, this court granted defendant Sellers' motion for enlargement of time to file his answer. However, neither defendant has filed an answer. On March 22, 1994, plaintiff filed his motion for default judgment under T.C.R.C.P. 55. On April 22, 1994, a hearing on the default-judgment motion was held. Plaintiff has submitted a "Settlement Agreement" as evidence of defendants' indebtedness and their agreement to make regular payments. The underlying liability recounted in the agreement relates to a purchase of certain equipment by Gorniak from Scalise. The agreement further recites that Sellers subsequently purchased the equipment from Gorniak and assumed responsibility for paying off Scalise. Sellers apparently failed to pay Scalise; however, the "Settlement Agreement" resulted. This suit has arisen on that agreement.

We note from the file that while the complaint and summons was personally served upon Sellers, service upon Gorniak was effected through Sellers as the former's contractually designated agent--the agreement provides, among other things, that Gorniak designates Sellers as his agent for service of process. We note in personam jurisdiction not only over Sellers but also over Gorniak. The contractual appointment of an agent for service of process is proper. T.C.R.C.P. 4(d)(1); National Equipment Rental v. Szukhent, 375 U.S. 311 (1964).

[1-2] Before a default judgment may be entered, a court must scrutinize the evidence itself. See, e.g., Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66, 67 (Trial Div. 1990) ("clerk's defaults" abolished in 1986). Furthermore, a default judgment may not be entered merely on the basis of an attorney's affidavit. Rather, at the default hearing the court may examine evidence of the indebtedness, such as bank ledgers. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177, 181 (Trial Div. 1988). In short, "[e]vidence of amount of debt, presented in support of motion for default judgment . . ., should consist not of [a] conclusory affidavit by attorney, but of bank ledgers and other direct evidence from which [a] court can conclude for itself whether the amount has been correctly calculated." Id. at 177-78 (syllabus).

Plaintiff has, as previously noted, presented the "Settlement Agreement" as evidence of indebtedness and the defendants' agreement to make regular payments. He has also submitted a ledger showing defendants' payments to plaintiff's counsel under the "Settlement Agreement." Plaintiff also requests $480 in legal fees "for negotiating and drafting" the Settlement Agreement, in addition to collection costs.

On the foregoing, plaintiff's motion for default judgment is granted as follows: Plaintiff shall have judgment in the amount of $ 7,302.91 together with interest accruing thereon at the contract rate of 15% per annum from December 1, 1993, to the date of entry of judgment. Reasonable attorneys fees and costs of collection are allowed (a statement of fees and costs shall be filed with the Clerk of Courts for approval by the Court) together with legal fees in the amount of $480.00 incurred by plaintiff in connection with negotiating and preparing the Settlement Agreement. Judgment shall attract interest at the rate of 15% per annum until satisfied.

It is so ordered.

*********

Asifoa v. National Pacific Ins . Co.,


SOSENE ASIFOA and MOLI ASIFOA, Plaintiffs

v.

NATIONAL PACIFIC INSURANCE CO., LTD., Defendant

High Court of American Samoa
Trail Division

CA No. 60-92

June 23, 1994

__________

[1] An insurance policy is to be read from the viewpoint of a layperson.

[2] When a conflict exists between the endorsement and the body of a policy, the conflict is resolved in favor of the endorsement.

[3] A court cannot inquire into the intent of either party unless the policy is ambiguous.

Before RICHMOND, Associate Justice, and BETHAM, Associate Judge.

Counsel: For Plaintiffs, Gata E. Gurr
For Defendant, Roy J.D. Hall, Jr.

Order Denying Motion for Reconsideration or New Trial:

This dispute centers on insurance policy number XCF001/70019414 ("the policy") issued to Sosene and Moli Asifoa ("the Asifoas") for a consideration of $475.00 by National Pacific Insurance Co. Ltd. ("NPI") in March, 1991. While the parties have settled on the amount due from NPI as regards damage to the building sustained from Hurricane Val in 1991, there remains a dispute as to the actual coverage of the aforesaid policy. In opposing motions for summary judgment, the Asifoas maintained the policy insured the Asifoas building and contents, and NPI contended that no coverage for the contents of the insured structure was obtained.

In an order issued on April 25, 1994, this court denied NPI's motion for summary judgment and granted the Asifoas' cross-motion. Finding a conflict between the body of the contract and the endorsement, the court held that the endorsement prevailed. This resolved any ambiguities, and the court was able to decide the issue as a matter of law. [26ASR2d100]

Subsequently, NPI submitted a motion for reconsideration or new trial. The motion came regularly for hearing on June 13, 1994. Both parties were represented by counsel.

NPI contends the court erred in finding a conflict between the wording in the body of the contract and the wording in the endorsement. It is NPI's position that the purpose of the endorsement was merely to set forth the various perils that the contract covered. NPI asserts that the body of the contract should have prevailed, and that if the dispute was resolved as a matter of law, it should have been in favor of NPI.

[1-2] We are unable to agree with NPI's position on this matter. As stated in our order on the summary judgment motions, the policy at issue is to be read from the viewpoint of a layperson. State Farm Mutual Automobile Ins. Co. v. O'Brien, 535 P.2d 46, 48 (Ct. App. Ariz. 1975). This policy, so read, reveals a conflict between the endorsement and the body of the policy. A resolution of this conflict, properly in favor of the endorsement, leaves no ambiguity. See B.L. Ivey Construction Co. v. Pilot Fire and Casualty Co., 295 F. Supp. 840, 848 (N.D. Ga. 1968); Fireman's Fund Insurance Co. v. Reliance Insurance Co., 291 F. Supp. 618, 620 (D. Or. 1968). The policy is then properly construed, as a matter of law, in favor of the Asifoas.

[3] Contrary to NPI's assertions, we cannot inquire into the intent of either party unless the policy is ambiguous. See Kline v. The Kemper Group, 826 F. Supp. 123, 127 (M.D. Pa. 1993); Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala. 1982). In this case, it is not. For the reasons given, NPI's motion for reconsideration or new trial is denied.

It is so ordered.

*********

Asifoa v. National Pacific Ins. Co.,


SOSENE ASIFOA and MOLI ASIFOA, Plaintiffs

v.

NATIONAL PACIFIC INSURANCE CO., LTD., Defendant

High Court of American Samoa
[26ASR2d24]
Trial Division

CA No. 60-92

April 25, 1994

__________

[1] Summary judgment is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him.

[2] An insurance policy is a contract and the same rules of construction applicable to other contracts are applicable to insurance policies. If an insurance contract is unambiguous, the vast majority of U.S. jurisdictions require that a court follow the prescriptions of the policy as written, and need look no further in resolving any disputes.

[3] Once an insurance policy is found to be ambiguous, further inquiry is generally allowed by the court.

[4] Endorsements are forms added to basic policies to address a situation's particular coverage needs. Endorsements become part of an insurance contract and must be construed with it.

[5] If there is a conflict between the terms of the endorsement and those in the body of the main policy, then the endorsement prevails, particularly when it favors the insured.

Before RICHMOND, Associate Justice, LOGOAI, Associate Judge, BETHAM, Associate Judge.

Counsel: For Plaintiffs, Gata E. Gurr
For Defendant, Roy J.D. Hall, Jr.

Order Granting Plaintiffs' Motion for Summary Judgment and Denying Defendant's Motion for Summary Judgment:

Both parties have moved this court for summary judgment with respect to the issue of liability on the insurance policy underlying this case. For the reasons detailed below we deny the motion by defendant National Pacific Insurance, Co., Ltd. ("NPI") but grant the cross-motion by plaintiffs Sosene Asifoa and Moli Asifoa ("the Asifoas").

[1] Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. 56. In ruling on such a motion, the court must view all pleadings and [26ASR2d25] supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan , 6 A.S.R.2d 44,45 (1987).

This dispute centers on property insurance policy number XCF001/70019414 ("the policy") issued to the Asifoas for a consideration of $475.00 by NPI in March, 1991. NPI entirely prepared the policy. On December 6-10, 1991, when the policy was in force, Hurricane Val damaged the property and its contents. While the parties have settled on the amount due from NPI as regards the building, there remains a dispute as to the actual coverage of the aforesaid policy.

The Asifoas allege that the policy insured their building and its contents from fire or cyclone in the amount of $50,000.00, and NPI contends that no coverage for the contents of the insured structure was obtained. NPI moved for summary judgment and submitted an affidavit from Arnold Carter, branch manager of NPI, stating that the Asifoas had paid no additional consideration in order to insure the building's contents. As part of its response to the Asifoas' cross-motion, NPI later submitted the affidavit of Anna Auvaa, an underwriter for NPI, who stated that she was the one who assisted Mr. Asifoa and that he never mentioned an intention to have the buildings contents insured.

The Asifoas submitted Mr. Asifoa's affidavit in support of their cross-motion, stating that Paul Gray received plaintiff's application and was informed of their desire to have insurance coverage for both the building and contents. Additionally, this affidavit points out that it was the Asifoas' intention to insure the contents in order for them to receive the balance of their loan from the U.S. Small Business Administration ("SBA"), and that NPI knew of this requirement, listing SBA in the policy as the loss payee. The affidavit points out that the building was worth only $20,000.00, and the Asifoas contend, therefore, that the coverage obtained would have been unjustifiably high for merely the building itself.

[2] An insurance policy is a contract and the same rules of construction applicable to other contracts are applicable to insurance policies. Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir. 1986), cert. den'd94 L. Ed.2d 761 (1987), citing 2 Couch, Cyclopedia of Insurance Law § 15:1, 15:3 (2nd Ed. 1984); Commercial Union Ins. v. State Farm Fire & Cas., 546 F. Supp. 543, 545 (D.C. 1982) (citations omitted). If an insurance contract is unambiguous, the vast majority of U.S. jurisdictions require that a court follow the prescriptions of the policy [26ASR2d26] as written, and need look no further in resolving any disputes. Berne v. Aetna Ins. Co., 604 F. Supp. 958, 960-962 (D.C.V.I. 1985), aff'd 782 F.2d 1026 (1985); St. Paul Fire & Mar. Ins. v. U.S. Fire Ins. Co., 655 F.2d 521 (3rd Cir. 1981).

[3] Once a policy is found to be ambiguous, however, further inquiry is generally allowed by the court. Allstate Ins. Co. v. Ellison, 757 F.2d 1042 (9th Cir. 1985) ("Intent is an issue ... if the contract is ambiguous."). As stated by a Connecticut court, only if the court "makes a preliminary finding that the policy language at issue, taken either on its face or in the context of the entire policy, is ambiguous, should the Court consider the reasonable expectations of the insured . . .," Jarrius v. Maccabees Mut. Life Ins. Co., 587 F. Supp. 1301, 1305 (D. Conn. 1984).

We agree with this reasoning, and only if the insurance policy at issue is ambiguous will further inquiry by this court be necessary. If the policy is not ambiguous, the parties intent will be gleaned from the four corners of the contract and the dispute may be resolved as a matter of law. See Rauch v. Underwriters at Lloyd's of London, 320 F.2d 525, 531 (9th Cir. 1963); Transamerica Ins. v. State Farm Mut. Auto. Ins., 492 F. Supp. 283 (D. Nev. 1980).

Many courts have struggled with, and defined, what constitutes "ambiguity" in the context of an insurance contract. Kansas law states that in construing an insurance policy courts may consider the language, the parties situation and the purpose to be accomplished when ascertaining parties intentions from the instrument as a whole. Dronge v. Monarch Ins. Co. of Ohio, 511 F. Supp. 1, 4 (D. Kan. 1979). "Contracts are not rendered ambiguous by the mere fact that the parties do not agree on the meaning of a specific policy term . . . . Ambiguity exists only when the policy terms at issue are subject to reasonable differing interpretations." Potter v. Ranger Ins. Co., 732 F.2d 742, 743 (9th Cir. 1984) (citations omitted). "The language of the policy is examined from the viewpoint of one trained neither in law nor in insurance." Combined Communications Corp. v. Seaboard Sur. Co., 641 F.2d 743, 745 (9th Cir. 1981) (citation omitted). "The fact that a lawyer is able to make an argument as to the proper construction of any given language does not make the language ambiguous." Transamerica Ins. at 287. Courts may not "create" ambiguity, even if the outcome would otherwise be harsh. Combined Communications Corp. at 745.

[4] In the case before us, the dispute focuses on the body of the policy and an attached endorsement. Endorsements are forms added to basic policies [26ASR2d27] to address a situation's particular coverage needs. Endorsements become part of an insurance contract and must be construed with it. Kalmbach, Inc. v. Ins. Co. of State of PA., Inc., 529 F.2d 552 (9th Cir. 1976), on remand 422 F. Supp. 44 (D. Alas. 1976). A policy and an endorsement should be construed together to give effect to all provisions. Buntin v. Continental Ins. Co., 437 F. Supp. 132, 135 (D.C.V.I. 1977),rev'd 583 F.2d 1201 (3rd Cir. 1978), on remand 525 F. Supp. 1077 (D.C.V.I. 1981).

In this case, the first page of the policy states that the property insured is "ON BUILDING OF GENERAL STORE". The word "CONTENTS" is included in the endorsement on the sixth page of the policy, as being covered when damaged by a cyclone and enclosed by a building permanently in place. On the seventh page of the policy, under "Deductible," the endorsement to the policy outlines the deductible for the building. Under this provision, the wording says "CONTENTS - Same as Above," referencing for purposes of the contents the language used for the building's deductible.

[5] A conflict exists between the first page of the policy and the wording of the endorsement. It is clear that under the policy's first page, damage to the building's contents is not covered, while under the endorsement, such damage is covered. When faced with this type of contrast, courts have consistently held that the wording of the endorsement holds sway, and a party's undisclosed intentions, particularly those of the insurer that prepared the document, cannot prevail. "If there is a conflict between the terms of the endorsement and those in the body of the main policy, then the endorsement prevails, particularly when it favors the insured." St. Paul Fire & Mar. Ins. at 524. "It is the general rule that an endorsement . . . attached to an insurance policy becomes and forms a part of the contract; . . . and that where the provisions in the body of the policy and those in the endorsement or rider are in irreconcilable conflict the provisions contained in the endorsement or rider will prevail ..." Farmers Ins. Exchange v. Ledesma, 214 F.2d 495, 498 (10th Cir. 1954); see Price v. Zim Israel Navigation Co., Ltd., 616 F.2d 422 (9th Cir. 1980).

This course has been followed because endorsements are considered to be tailored to the particular needs of the insured. Unlike the more standardized general forms, endorsements are to reflect the needs and intentions of the parties. See St. Paul Fire & Mar. Ins., supra at 524. This resolution of intrinsic language differences does away with any ambiguity. Long v. Adams, 312 S.E.2d 262, 265 (S.C. App. 1984). In this case, the endorsement governs, and liability on the insurance policy is properly resolved as a matter of law in favor of the Asifoas.

We hold that the policy covers the contents of the building in question. Therefore, we deny summary judgment to NPI and grant summary judgment to the Asifoas.

It is so ordered.

**********

ASG Employees Federal Credit Union v. Galea'i,


AMERICAN SAMOA GOVERNMENT EMPLOYEES FEDERAL
CREDIT UNION, Plaintiff

v.

FATIMA GALEA`I and PARADISE TRAVEL, Defendants

High Court of American Samoa
Trial Division

CA No. 61-94

May 23, 1994

__________

[1] The Board of the National Credit Union Administration has exclusive authority to regulate terms of federal credit union loans, and this authority preempts any American Samoan laws affecting such interest rates. Therefore, the ceiling of 15% provided for in A.S.C.A. § 28.1501 is preempted by the federal rate established by the NCUA.

[2] Summary judgment is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him.

[3] Where the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof. Thus, the burden on the moving party may be discharged by pointing out that there is an absence of evidence to support the nonmoving party's case.

[4] A defendant is not entitled to a trial upon the unsubstantiated hope that he can produce convincing evidence at trial.

Before RICHMOND, Associate Justice, AFUOLA, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Cheryl Crenwelge
For Defendant Fatima Galea`i, Pro Se

Order Granting Motion for Summary Judgment:

On October 25, 1993, plaintiff American Samoa Government Employees Federal Credit Union ("EFCU") filed a complaint in the District Court of American Samoa alleging that defendants Fatima Galea`i and Paradise Travel (collectively "Galea`i") were in arrears on a loan issued by EFCU. EFCU sought the principal, $3,952.82 (as of October 20, 1993), accrued interest, prejudgment and post-judgment interest, and attorney fees and costs. In a unverified answer filed pro se, Galea`i denied the allegations in the complaint, forwarded a number of affirmative defenses and sought to have any debt found forfeited and costs awarded.

On February 25, 1994, EFCU moved this court for summary judgment against Galea`i, submitting the affidavit by Vi`i Cho, collection supervisor for EFCU. EFCU later submitted a supplementary affidavit, as well as copies of Galea`i's account history and disbursement check. (1) In response to EFCU's summary judgment motion, Galea`i submitted both a sworn statement alleging that there exists a genuine dispute at least as to the amount of money owed to the plaintiff, and an unsworn statement alleging essentially the same defense. Galea`i also alleged that the District Court lacked jurisdiction, and that the interest rate charged by the EFCU of 18% is usurious.

The motion for summary judgment came regularly before this court for hearing on May 9, 1994. EFCU was represented by counsel. Galea`i was not present at the hearing, and sent no representation, despite being properly served.

We can quickly dispose of two of Galea`i's objections. The issue of the District Court's jurisdiction is now moot, as this case was properly transferred to this court on April 12, 1994.

[1] Additionally, Galea`i's objection to the interest rate charged by EFCU must fail as a matter of law. The interest rates charged by a federal lending institution such as the EFCU are determined by the Board of the National Credit Union Administration ("NCUA"). The NCUA determined that for loans originating between May 15, 1987, and September 3, 1994, such as Galea`i's, the interest rate may be as high as 18% per annum. This determination was published in the Code of Federal Regulations, 12 C.F.R. § 701.21 (b)(7)(ii)(1993). The NCUA has exclusive authority to regulate terms of federal credit union loans, and this authority preempts any American Samoan laws affecting such interest rates. 12 C.F.R. § [26ASR2d76] 701.21(b)(1)(i)(A). Therefore, the ceiling of 15% provided for in A.S.C.A. § 28.1501 is preempted by the federal rate established by the NCUA. See Crissey v. Alaska U.S.A. Federal Credit Union, 811 P.2d 1057 (Alaska 1991); Home Mortgage Bank v. Ryan, 986 F.2d 372 (10th Cir. 1993); Fidelity Fed. Sav. & Loan Ass'n. v. de la Cresta, 73 L. Ed.2d 664 (1982). The interest rate charged Galea`i is neither usurious nor in violation of local law. We now turn to the remaining claims.

[2] Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 8 L. Ed.2d 176 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987).

[3] It is also true that where "[T]he proof in support of the motion ... has a high degree of credibility the opponent must produce convincing proof." Wright, et. al., Federal Practice and Procedure, § 2727 at 142 (2nd Ed. 1983). This standard was articulated by the Supreme Court of the United States in "the Celotex trilogy." These three cases stand for the proposition that an inadequate showing cannot defeat a moving party's competent motion for summary judgment. "[T]he burden on the moving party may be discharged by ... pointing out ... that there is an absence of evidence to support the nonmoving party's case." Bryant v. Southwest Marine of Samoa, Inc., CA No. 41-92 (1993),citing Celotex Corp. v. Catrett, 91 L. Ed.2d 265, 275 (1986).

[4] We are well aware that summary judgment is both final and drastic. We are also cognizant of the need to dispose of meritless disputes at the earliest opportunity and so preserve judicial resources. In this case, EFCU has submitted ample materials of high reliability in order to support its motion. In response Galea`i has submitted no evidence at all, and neglected to either make an appearance at the hearing, or procure a representative to so appear. Galea`i has asserted that there is a genuine dispute but has not made the court privy in any way to the substance of this dispute. A defendant is not entitled to a trial upon the "[u]nsubstantiated hope that he can produce such evidence at trial." Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 (9th Cir. 1969). Galea`i has not submitted check stubs, receipts, any verified statement, or indeed any document whatsoever that we could view in a [26ASR2d77] light favorable to Galea`i's case. (2)

While we strive to give pro se parties every benefit of the doubt, the doubt must provide some benefit to such parties. In this case, none is articulated. Therefore, for the reasons articulated above, EFCU's motion for summary judgment is granted.

It is so ordered.

*********

1. Vi`i Cho's supplemental affidavit, submitted by the EFCU on May 3, 1994, attested that the principal refinanced amount of the loan was $4,361.65.

2. While we have taken note of Galea'i's unsworn statement of April 5, 1994, we also note that it suffers from the same fatal flaws as Galea'i's other submissions. A non-moving party's statement, even in proper affidavit form, may be inadequate opposition to a credible summary judgment motion. See Ashwell & Company, Inc., v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1956).

Zoning Board; McGuire v .


JAMES McGUIRE, Appellant

v.

ZONING BOARD, Appellee and [26ASR2d70]
OTTOVILLE DEVELOPMENT CORP., Appellee/Intervenor

High Court of American Samoa
Appellate Division

AP No. 4-91

May 17, 1994

__________

[1] The Zoning Board, and not this court, has the jurisdiction to decide the issues, at the administrative level, where court has already determined that it lacked jurisdiction to decided these issues based on party's failure to exhaust administrative remedy.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD, * Acting Associate Justice, TAUANU`U, Chief Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Reginald E. Gates
For Appellee, Douglas J. Juergens, Assistant Attorney General
For Appellee/Intervenor, Roy J.D. Hall, Jr.

Order Denying Zoning Board's Petition for Rehearing:

Appellee Zoning Board ("the Zoning Board") has petitioned the court for rehearing pursuant to A.C.R. Rule 40(a), which states, in part: "The petition shall state with particularity the points of law or fact which . . . the court has overlooked or misapprehended." The Zoning Board's petition for rehearing focuses on neither law nor fact, but rather on dicta arising out of the court's statutorily required review of the Zoning Board's agency record. The court ruledit did not have jurisdiction to hear this appeal, based upon its review of the record and the applicable statutes, administrative rules, and court rules.

The court also addressed procedures to be followed in future administrative proceedings involving zoning-variance requests that would aid future judicial review proceedings. Most of these recommendations were intended to highlight what the court would concentrate upon in reviewing an agency record. One such salient point in the judicial review of an agency record spanning a period of approximately three and one-half years [26ASR2d71] would be whether or not mandatory lapse provisions of statutes or administrative rules were clearly addressed in that particular agency's record.

[1] The Zoning Board, and not this court, has the jurisdiction to decide, if necessary in the course of the administrative process related to this proceeding, the issue raised in the Zoning Board's petition for rehearing. The petition is therefore denied.

It is so ordered.

*********

* Honorable John L. Ward II, District Court Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

Zoning Board; McGuire v.


JAMES McGUIRE, Appellant

v.

ZONING BOARD, Appellee and
OTTOVILLE DEVELOPMENT CORP., Appellee/Intervenor

High Court of American Samoa
Appellate Division

AP No. 04-91

May 10, 1994

__________

[1] Appeals to the High Court from the Zoning Board "may be taken in like manner to appeals under the Administrative Procedure Act.

[2] Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the proceedings in the matter under review. A.S.C.A. § 4.1042; A.C.R. 17(a).

[3] Appellate review is confined to the record. On a party's request, "the court shall receive briefs and hear oral argument"; and the court has the discretion to receive evidence to supplement the record. A.S.C.A. § 4.1043(a).

[4] The court is not to reweigh the evidence on factual questions and is to give "appropriate weight to the agency's experience, technical competence, and specialized knowledge." A.S.C.A. § 4.1043(b).

[5] Judicial review is available to a "person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case."

[6] A.S.A.C. § 26.0320(h) requires that "[w]ithin 10 days after receipt of the decision the applicant or any other interested party may file a written motion for reconsideration."

[7] Whether compelled by statute or exercised as a matter of judicial discretion, the "long settled rule of judicial administration [is] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy had been exhausted.

[8] When a statute prescribes administrative remedies which must be exhausted before judicial review is allowed, these procedures are jurisdictional. [26ASR60]

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD,* Acting Associate Justice, TAUANU`U, Chief Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Reginald E. Gates
For Appellee, Douglas J. Juergens, Assistant Attorney General
For Appellee/Intervenor, Roy J.D. Hall, Jr.

Opinion and Order:

PROCEDURAL HISTORY

On February 14, 1991, appellee Zoning Board granted a zoning variance to appellee Ottoville Development Corporation (hereinafter ODC). On May 3, 1991, the Zoning Board and appellants Charles Ala`ilima, who has since withdrawn as a party, and James McGuire stipulated to a stay of the zoning variance. ODC's motion to intervene was granted on December 6, 1993, and the order was filed on January 26, 1994. On March 8, 1994, Appellate Division granted ODC's motion to dissolve the stay but denied its motion to dismiss; the Zoning Board's motion for summary judgment was also denied.

JURISDICTION GENERALLY



[1-4] Appeals to the High Court from the Zoning Board "may be taken in like manner to appeals under the Administrative Procedure Act [described in A.S.C.A. §§] 4.1040 through 4.1044." A.S.C.A. § 26.0341. Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the proceedings in the matter under review. A.S.C.A. § 4.1042; A.C.R. 17(a). Appellate review is confined to the record. On a party's request, "the court shall receive briefs and hear oral argument"; and the court has the discretion to receive evidence to supplement the record. A.S.C.A. § 4.1043(a). However, the court is not to reweigh the evidence on factual questions and is to give "appropriate weight to the agency's experience, technical competence, and specialized knowledge." A.S.C.A. § 4.1043(b).

FAILURE TO EXHAUST ADMINISTRATIVE
[26ASR61] [5-6] Judicial review is available to a "person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case." A.S.C.A. § 4.1040(a) (emphasis added). Regulations promulgated by the government further state that "[w]ithin 10 days after receipt of the decision the applicant or any other interested party may file a written motion for reconsideration." A.S.A.C. § 26.0320(h). Thus, this statute requires that all available administrative remedies be pursued before this court can grant judicial relief.

[7-8] Whether compelled by statute or exercised as a matter of judicial discretion, the "long settled rule of judicial administration [is] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy had been exhausted." LaVallee Northside Civic Ass'n v. Virgin Islands Coastal Zone Management Comm'n, 866 F.2d 616, 620-21 (3d Cir. 1989) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)). The rationale for this requirement is as follows:

[T]he doctrine [of exhaustion of administrative remedies] (1)
insures against premature interruption of the administrative
process; (2) allowed the agency to develop the necessary factual
background on which to base a decision; (3) allowed exercise of
agency expertise in its area; (4) provided a more efficient process;
and (5) protected the administrative agency's autonomy by allowing
it to correct its own errors and insuring that individuals were not
encouraged to ignore its procedures by resorting to the courts.

South Hollywood Hills Citizens v. King County, 677 P.2d 114, 118 (Wash. 1984) (citing McKart v. United States, 395 U.S. 185 (1969)). Most importantly, utilizing administrative procedures may eliminate the need for judicial review altogether. LaVallee Northside Civic Ass'n, 866 F.2d at 620 (citing FTC v. Standard Oil Co., 449 U.S. 232, 243-45 (1980)). When a statute prescribes administrative remedies which must be exhausted before judicial review is allowed, these procedures are jurisdictional. See Joelson v. City of Casper, Wyo., 676 P.2d 570, 571-72 (Wyo. 1984) (statute provides for judicial review after administrative remedies have been exhausted; the timely filing of a petition for review is jurisdictional); American Hog Co. v. County of Clinton, 495 S.W.2d 123, 125 (Mo. Ct. App. 1973) (failure to follow statutory procedure for appeals is a jurisdictional matter); Midland Enterprises, Inc. v. City of Elmhurst, 589 N.E.2d 1019, 1024 (Ill. App. Ct. 1992) (trial court lacked jurisdiction [26ASR62] when plaintiff failed to seek review pursuant to state's Administrative Review Law).

Appellant did not file a motion for reconsideration with the Zoning Board. Since exhaustion of administrative remedies is required by statute, this court lacks jurisdiction to hear his appeal.

OTHER ISSUES

While petitioner's appeal cannot succeed due to his failure to exhaust his administrative remedies, this court will nonetheless address a few other matters concerning the Zoning Board's procedures in deciding requests for zoning variances. These matters are brought to the Zoning Board's attention so that future zoning-variance requests can be handled in conformance with applicable provisions of statutes, administrative regulations, and court rules. Following these provisions will also aid future judicial review of the Zoning Board's decisions.

I. A Zoning Variance Lapses 180 Days After Issuance

While the failure to exhaust administrative remedies disposes of this appeal, the variance may have lapsed. The administrative rule reads as follows:

Unless renewal of a variance is requested, it shall lapse 180
days after its issuance unless prior to that date . . . if a building
is to be constructed . . . a building permit has been issued, and
construction is commenced and diligently pursued. . . . A
variance may be renewed by the board for a period of 30 days.

A.S.A.C. § 26.0320(j). The record of a variance proceeding would not necessarily show whether or not a building permit was issued and construction was commenced in a timely manner. The record would normally indicate a 30-day renewal of a variance. This record does not show any renewal. Moreover, this record contains an ODC officer's declaration that "[c]onstruction is expected to begin in early March/1994." Affidavit of David O. Halleck, ¶ 4 (Feb. 7, 1994). If indeed there was a failure to comply with A.S.A.C. § 26. 0320(j), the variance may no longer be valid.

II. The Zoning Variance Lacks the Requisite Findings of Fact

"The Zoning Board may grant a variance . . . if it finds that the variance is necessary to make possible a reasonable use of land or a building, or that the refusal of a variance would impose a hardship, and that the variance would not be injurious to the neighborhood." A.S.C.A. § 26.0340(a). Furthermore, the evidence must show that (1) the use is compatible with other uses in the "general neighborhood area" and does not unduly burden utilities or other services, (2) the site's size can accommodate the use, (3) the streets can handle the anticipated traffic volume, and (4) the use will not adversely affect other property in the area or the territory's welfare. A.S.A.C. § 26.0320(d). Written findings supporting the granting of a variance must be made. A.S.C.A. § 26.0340(b).

However, the findings contained in the Zoning Board's decision granting ODC's request for a variance consisted of the following:

(a) The parking aisles are sufficient in width to provide
convenience in vehicular circulation throughout the site and
that the required amount [sic] of parking stalls comply with
Zoning Requirement.

(b) The proposed use and development is compatible with
the existing and anticipated development in the area.

(c) The project will be architecturally compatible with
anticipated development in the future.

(d) The project meets all setback requirements.

"Decision of Zoning Board Regarding Variance Application," File No. V-347-90 (Jan. 31, 1991). On its face, these findings are inadequate. Some findings mandated by regulation or statute are omitted entirely, and others merely recite the language of statutes or regulations. As such, the variance lacks the necessary findings of facts.

"[G]eneralized, conclusory, or incomplete findings are not sufficient. . . . [T]here must be findings on each material fact with full reasons given to support each finding." A.L.W., Inc. v. District of Columbia Bd. of Zoning Adjustment, 338 A.2d 428, 430 (D.C. Ct. App. 1975) (emphasis in original) (quoting Dietrich v. Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C. Ct. App. 1972)). Similarly, a statutory requirement for findings of fact "is not met by parroting the highly generalized statutory phrases" of a variance ordinance. Blair v. Zoning Bd. of App., City of Chicago, 228 N.E.2d 555, 557 (Ill. App. Ct. 1967) (quoting Lindburg v. Zoning Bd. of App., 133 N.E.2d 266, 268 (Ill. 1956)); A.L.W., 338 A.2d at 430 ("no administrative body fulfills its quasi-judicial responsibility by merely repeating the applicable statutory language in making its conclusions"). When findings of fact are not made, a reviewing court cannot ascertain what evidence, if any, was the basis of a zoning board's conclusion. Blair, 228 N.E.2d at 557. The Zoning Board should formulate its findings of fact in accordance with the applicable statutes and its own regulations.

III. Inadequacy of the Zoning Board's Record

At minimum, the agency's record is to include (1) the parties' pleadings, motions, briefs, and memoranda; (2) a summary of evidence received and considered; (3) any agency rulings, decisions, or reports; and (4) the final decision or order. A.S.C.A. § 4.1032; see A.C.R. 16(a) (record must include the "order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, evidence and proceedings before the agency"). If a record lacks the information required by the statute and court rule, proper judicial review is impossible. See Penn Township Bd. of Supervisors v. DeRose, 339 A.2d 859, 860 (Pa. Commw. Ct. 1975) (remand to Zoning Hearing Board to develop a proper record due to absence of statutorily-mandated stenographic record and transcript of proceedings); Hot Shoppes, Inc. v. Clouser, 231 F. Supp. 825, 832 (D.D.C. 1964) (zoning regulations required that the zoning board enter "the full reasons for its decisions" in its "minutes book"), aff'd 346 F.2d 834 (D.C. Cir. 1965) (per curiam); see also East Greenwich Yacht Club v. Coastal Resources Management Council, 376 A.2d 682, 687 (R.I. 1977) (judicial review was "impossible," and certiorari petition was denied, when statutorily-required factual findings were absent and the transcript of hearing was not before the court).

The "record" provided by the government lacks many of the required elements, especially the evidence upon which the Zoning Board decided to grant the variance. As such, the Zoning Board is admonished to comply with all applicable statutes, regulations, and rules in preparing records of its proceedings.

CONCLUSION

Petitioner has failed to exhaust his administrative remedies, so this court lacks jurisdiction to hear his appeal. Therefore, this appeal is dismissed.

It is so ordered.

*********

* Honorable John L. Ward II, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

American Samoa Power Auth.; Mamea v.


FIA T.S. TIAPULA, SIUFANUA T. MAMEA, for and on behalf
of MAMEA TA`IAU, Senior Matai of the MAMEA FAMILY of
Aoa, Plaintiffs

v.

AMERICAN SAMOA POWER AUTHORITY, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 14-94

May 3, 1994

__________

[1] After-the-fact compensation for a land's use is not an adequate substitute for obtaining permission or following applicable statutory procedures in order to use the land in the first place.

[2] For purposes of a preliminary injunction, a request for surety is inappropriate when the subject matter of the request relates to communal property issues. A.S.C.A. § 41.1309 (b). [26ASR2d48]

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiffs, Asaua Fuimaono
For Defendant, Marshall Ashley

Order on Motion for Preliminary Injunction:

The Mamea family of Aoa seeks a preliminary injunction against the American Samoa Power Authority ("ASPA") to enjoin its continuing construction of a feeder antenna, and appurtenances thereto, on a certain site on Mount Olomoana which is claimed by the Mamea family as its communal property.

Testimony on behalf of plaintiffs was to the effect that the site in question is within an area historically cultivated by the Mamea family on which they maintain coconut plantations. The evidence also revealed that while a representative of ASPA had discussions with a representative of the Mamea family regarding the actual site for the antenna, a lease of the site has not even reached the negotiation stage. Notwithstanding, ASPA has completed a sizeable concrete structure on Mount Olomoana on the site discussed, preparatory to the installation of the antenna. ASPA has presented, without elaboration, its government Land Use and Building Permit Application relating to some area on Mount Olomoana, which application was executed by the sa`o of the Aumoeualogo family, also of Aoa, as land owner. There was no evidence, however, as to whether the Aumoeualogo family laid claim to the particular antenna site in dispute.

On the evidence before the court, we are satisfied that a prima facie showing of ownership to the site in question has been made by the Mamea family. ASPA, on the other hand, neither appears to contest the Mamea family's claim to ownership, nor has it attempted to show superior entitlement in derogation of that claim. ASPA has merely alluded to its own critical need for such an antenna and the American Samoa Government's right of eminent domain. Additionally, it argues that plaintiffs have an adequate legal remedy--damages.

[1] ASPA's contentions are without merit; they suffer a fundamental due process flaw. That is, after-the-fact compensation for the land's use is not an adequate substitute for obtaining permission or following applicable statutory procedures in order to use the land in the first place.

[2] On the foregoing, we conclude "sufficient grounds" have been [26ASR2d48] demonstrated by plaintiffs in accordance with the provisions of A.S.C.A. § 43.1301 (j). Accordingly, and pending further order of Court, an order will enter enjoining the defendant ASPA, its agents, servants and assigns from any further construction on that site on Mount Olomoana, Eastern District, Island of Tutuila, on which sits its recent concrete construction preparatory to the installation of its proposed feeder antenna. Since the subject matter hereof relates to communal property issues, ASPA's request for surety from the plaintiffs is denied. See A.S.C.A. § 41.1309 (b).

It is so ordered.

**********

American Samoa Gov’t; G.H.C. Reid Co. v.


G.H.C. REID & CO., LTD., Petitioner

v.

AMERICAN SAMOAN GOVERNMENT, GOVERNOR'S
APPOINTED ADMINISTRATIVE BOARD, Respondents and

HALECK'S WEST DAIRY, INC., Intervenor

High Court of American Samoa
Appellate Division

AP No. 15-94

September 30, 1994

__________

[1] A petitioner is entitled to a stay of enforcement only on showing 1) a substantial likelihood of ultimately prevailing on the merits and 2) great or irreparable injury if a stay is not issued before a full and final determination can be made.

Before RICHMOND, Associate Justice, WARD,* Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Petitioners, Ellen A. Ryan
For Respondent, Henry W. Kappel, Assistant Attorney General
For Intervenor, Brian M. Thompson

Order Denying Motion for Stay of Enforcement:

On September 23, 1994, petitioner filed, pursuant to A.S.C.A. §§ 4.1041 et seq., for judicial review of respondents' administrative decisions awarding the 1994-95 school milk and juice contract to intervenor, and sought preliminary injunctive relief preventing implementation of these decisions. The hearing on the order to show cause was held on September 29, 1994. Counsel for petitioner, respondents, and intervenor were present, and, without objection, intervenor became a party.

[1] We consider petitioner's application for provisional relief as a request, [26ASR2d140] in accordance with A.S.C.A. § 4.1041(b), for a stay of enforcement of the administrative decisions. In the immediate context, petitioner is entitled to a stay of enforcement only on showing (1) a substantial likelihood of ultimately prevailing on the merits and 2) great or irreparable injury if a stay is not issued before a full and final determination can be made. See Leti v. Immigration Board, 8 A.S.R.2d 107, 109 (1988).

Petitioner has failed to show that it will suffer great or irreparable harm if the stay is not issued. Petitioner's contract with respondent American Samoan Government has been terminated. Its losses, if any, can be recovered either administratively or judicially by ascertainable, money damages. Since petitioner will not suffer great or irreparable harm, we need not consider the likelihood of the ultimate result.

Petitioner's request for provisional relief is denied.

It is so ordered.

**********

* The Honorable John L. Ward sitting by designation of the Secretary of the Interior.

American Samoa Gov’t ; Toleafoa v.


SIONA TOLEAFOA, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 03-94

May 19, 1994

__________

[1] A petition for rehearing "shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition." A.C.R. 40.

[2] Rule 40 does not permit reconsideration of the same matters addressed in the original appeal "in the absence of demonstrable mistake."

[3] General allegations and bald-faced assertions do not provide the particularity which Rule 40 requires.

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

Counsel: For Appellant, Aumoeualogo S. Soli, Assistant Public Defender
For Appellee, Fainu`ulelei L.F. Ala`ilima-Utu, Assistant Attorney General [26ASR2d72]

Order on Motion for Reconsideration:

PROCEDURAL HISTORY

Appellant was convicted in the District Court of Speeding (A.S.C.A. § 22.0323) and Driving Under the Influence of Alcohol or Other Drugs (A.S.C.A. § 22.0707) on January 12, 1994. His motion for new trial or reconsideration was denied on January 31, 1994. On April 14, 1994, the Appellate Division affirmed his conviction for driving under the influence and vacated the order staying the execution of sentence. Appellant filed his "Motion for Reconsideration" on April 25, 1994.

DISCUSSION

[1] A petition for rehearing "shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition." A.C.R. 40. Appellant's "Motion for Reconsideration" does not meet this standard. His memorandum cites no statute or case law which actually supports his arguments. Instead, he quotes the DUI and blood-alcohol level statutes and states that words should be "interpreted and understood in their ordinary sense."

[2] Appellant essentially reargues the same matters raised on appeal. However, Rule 40 does not permit reconsideration of the same matters addressed in the original appeal "in the absence of demonstrable mistake." United States v. Smith, 781 F.2d 184, 184 (10th Cir. 1986) (citing United States v. Doe, 455 F.2d 753, 762 (1st Cir. 1972) (as modified), vacated on other grounds sub nom. Gravel v. United States, 408 U.S. 606 (1972)). By its very terminology, a motion for "reconsideration" involves arguments previously made and so is not permitted by Rule 40. Doe, 455 F.2d at 762.

Likewise, general allegations and bald-faced assertions do not provide the particularity which Rule 40 requires. Appellant's memorandum, including its rhetoric questioning "our sense of justice," fails to support a petition for rehearing.

Therefore, appellant's "Motion for Reconsideration" is denied.

It is so ordered.

*********

American Samoa Gov’t; Toleafoa v.


SIONA TOLEAFOA, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 03-94

April 14, 1994

__________

[1] Final decisions of the District Court may be appealed to the High Court. A.S.C.A. § 3.0309.

[2] An appellate court will not set aside a trial court's findings in the absence of clear error. A.S.C.A. § 43.0801(b). The test is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court's decision.

[3] Under A.S.C.A. §  22.0607 (a)(3), a driver having a blood-alcohol level of 0.08% or more is presumed to be "under the influence of intoxicating liquor."

[4] Additional evidence regarding driving under the influence may also be presented at trial. A.S.C.A. § 22.0607 (b).

[5] Once a driver is found to have a blood-alcohol level of 0.08% or more, the statute presumes that he is under the influence and so is incapable of operating a vehicle safely. This statutory presumption reflects the proven medical fact that ingesting substantial quantities of alcohol impairs one's driving ability.

[6] Appellant's contention that his not getting in an accident supports a finding that he was capable of safe driving, this is a "specious argument." The whole point of traffic laws is [26ASR2d21] to prevent accidents, not just to punish drivers after an accident.

[7] Only two elements constitute the offense of Driving under the Influence of Alcohol or Other Drugs: (1) the defendant was driving a motor vehicle, (2) while under the influence of alcohol or other drugs. Being a legal and not a medical term, "under the influence" means a person's intoxication has reached "a degree which renders him incapable of safely driving." A.S.C.A. § 22.0707 (a).

[8] The means of proving "under the influence" varies with each case and may include (1) observations of the defendant's manner of driving, his physical symptoms, and his performance of field sobriety tests; (2) his blood-alcohol level as shown in test results; and (3) admissible statements made by the defendant.

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

Counsel: For Appellant, Aumoeualogo S. Soli, Assistant Public Defender
For Appellee, Fainu`ulelei L.F. Ala`ilima-Utu, Assistant Attorney General

Opinion and Order:

PROCEDURAL HISTORY

On January 12, 1994, the District Court convicted appellant of Speeding ( A.S.C.A. § 22.0323 ) and Driving Under the Influence of Alcohol or Other Drugs ( A.S.C.A. § 22.0707 ), although he was found not guilty of Reckless Driving ( A.S.C.A. § 22.0702 ). Appellant's motion for new trial or reconsideration was denied on January 31, 1994. On February 2, 1994, his notice of appeal and his motion to stay execution of sentence were filed with the High Court. A hearing on his motion to stay execution of sentence was held on March 9, 1994, and the appeal was heard on March 28, 1994.

JURISDICTION AND STANDARD OF REVIEW

[1-2] Final decisions of the District Court may be appealed to the High Court. A.S.C.A. § 3.0309. An appellate court will not set aside a trial court's findings in the absence of clear error. A.S.C.A. § 43.0801(b); Uiagalelei v. Ulufale , 17 A.S.R.2d 158, 160 (App. Div. 1990); Utuutuvanu v. Mataituli , 12 A.S.R.2d 88, 90 (App. Div. 1989). That is, the test is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court's decision. Moea`i v. Alai`a , 12 A.S.R.2d 91, 93 (App. Div. 1989); Afualo v. Puailoa, 21 A.S.R.2d 115, 117 (App. Div. 1992); Taeleifi v. Willis , 21 A.S.R.2d 118, 121 (App. Div. 1992); Afoa v. Asi , 20 A.S.R.2d 81,83 (App. Div. 1992) (citing Moea`i , 12 A.S.R.2d at 93).

DISCUSSION

[3-4] At trial, appellant stipulated to a number of facts, including his (1) speeding, which was clocked by radar at 55 mph; (2) failing to stop after Officer Maifea activated his cruiser's lights; (3) having red and bloodshot eyes; (4) having the strong smell of alcohol; (5) admitting drinking alcoholic beverages; (6) failing three field sobriety tests; and (7) having a breathalyzer test result of 0.17% blood-alcohol level. Under the applicable statute, a driver having a blood-alcohol level of 0.08% or more is presumed to be "under the influence of intoxicating liquor." A.S.C.A. § 22.0607(a)(3). Additional evidence regarding driving under the influence may also be presented at trial. A.S.C.A. § 22.0607(b).

Appellant stipulated to driving with a blood-alcohol level which was more than twice the statutory level creating a presumption of driving under the influence (DUI). Additional evidence supporting the finding that appellant was driving under the influence included his failing the three field sobriety tests and his operating the vehicle 30 mph over the speed limit.

[5] Once a driver is found to have a blood-alcohol level of 0.08% or more, the statute presumes that he is under the influence and so is incapable of operating a vehicle safely. This statutory presumption reflects the proven medical fact that ingesting substantial quantities of alcohol impairs one's driving ability. Indeed, the role of alcohol consumption in traffic fatalities demonstrates the rational connection between the statute's presumption and the proven fact of impaired driving ability. People v. Schrieber, 119 Cal. Rptr. 812, 813 (Cal. Ct. App. 1975).

[6] In contrast, appellant has not presented any evidence which contradicts this presumption. See People v. Schumann, 458 N.E.2d 182, 188 (Ill. App. Ct. 1983) ("defendant has the burden of producing evidence in his favor sufficient to rebut the presumption" of driving under the influence). Contrary to appellant's arguments, the offense of reckless driving is neither a lesser-included offense of DUI nor an element of a DUI offense. As in this case, a driver can be under the influence of alcohol without a finding of "reckless" driving. As for appellant's contention that his not getting in an accident supports a finding that he was capable of safe driving, this is a "specious argument." See State v. Corkran, 448 So. 2d [26ASR2d23] 1346, 1352 (La. Ct. App. 1984) ("The fact that the defendant was skillful enough to stay on the road during this [115 mph chase] episode is insufficient to rebut the presumption [of intoxication]."). The whole point of traffic laws is to prevent accidents, not just to punish drivers after an accident.

[7] Finally, this court desires to make it clear that only two elements constitute the offense of Driving under the Influence of Alcohol or Other Drugs: (1) the defendant was driving a motor vehicle, (2) while under the influence of alcohol or other drugs. Being a legal and not a medical term, "under the influence" means a person's intoxication has reached "a degree which renders him incapable of safely driving." A.S.C.A. § 22.0707(a) (emphasis added).

[8] The means of proving "under the influence" varies with each case and may include (1) observations of the defendant's manner of driving, his physical symptoms, and his performance of field sobriety tests; (2) his blood-alcohol level as shown in test results; and (3) admissible statements made by the defendant. Thus, a DUI prosecution need never prove an accident's occurrence or another incident of unsafe driving, when the totality of circumstances convinces the trier of fact beyond a reasonable doubt that the defendant was incapable of driving safely.

CONCLUSION

The District Court found that appellant was driving while under the influence of alcohol, and sufficient evidence existed to support that finding. Therefore, appellant's conviction for driving under the influence is affirmed. The order staying execution of sentence hereinbefore entered is vacated.

It is so ordered.

**********

American Samoa Gov’t v. South Pacific Island Airsystems,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SOUTH PACIFIC ISLAND AIRSYSTEMS, INC., GEORGE
WRAY, SAMOA AVIATION, INC., dba SAMOA AIR, & DOES
1-10, Defendants

High Court of American Samoa
Trial Division

CA No. 13-94

September 2, 1994

__________

[1] Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56.

[2] In ruling on a motion for summary judgment the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him.

[3] Summary judgment is a drastic and final remedy that operates to deprive the non-moving parties of their day in court.

[4] Questions as to intent, as well as questions going to knowledge, timing, and control, are generally not appropriate for summary judgment.

[5] The test generally applied in determining whether a case presents a justiciable issue which can serve as a basis for a declaratory judgment suit is whether it is relatively certain that coercive litigation will eventually ensue between the same parties if a declaratory judgment is refused.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, BETHAM, Associate Judge.

Counsel: For Plaintiff, Cherie Shelton Norman, Assistant Attorney General
For Defendant South Pacific Airsystems, Inc., Togiola Tulafono
For Defendant Samoa Aviation, Inc., dba Samoa Air, Marshall Ashley
For Defendant George Wray, Pro Se

Order on Motion for Summary Judgment and Cross Motion to Dismiss: [26ASR2d133]

This case concerns competing claims to a parcel of American Samoa Government ("ASG") owned land at the Pago Pago International Airport in Tafuna, American Samoa. This parcel was, all parties agree, leased to South Pacific International Airways, Inc. ("SPIA") by ASG in June 1977. With or without ASG acquiescence, SPIA transferred this lease in March 1985. SPIA then filed for Chapter 11 bankruptcy in 1985 and in 1986 ASG and SPIA amended the lease so as to mortgage it to National Pacific Insurance ("NPI"). At some point, SPIA's bankruptcy was changed from chapter 11 to chapter 7, and its' operations and assets were transferred to Trustee Richard Kennedy ("Trustee"). There is dispute over whether or not the Trustee assumed SPIA's obligations under the ASG lease, and if the property then reverted back to ASG. The parties do agree that ASG and Samoa Aviation Inc., dba Samoa Air ("SamAir") attempted to enter into a lease of the parcel in 1988. ASG then filed for recovery of the parcel against SamAir in CA No. 56-89. The court determined that ASG's lease with SamAir was a valid five-year lease.(1) See American Samoa Government v. Samoa Aviation, Inc, 11 A.S.R.2d 144 (1989), rehearing denied 13 A.S.R.2d 65 (1989). Although this lease has ended, there is also a dispute between the parties as to the status of SamAir's use of the parcel, the validity and effect of various documents executed by George Wray ("Wray"), and the entitlements, if any, of SPIA. The parties have also faced each other in CA No. 49-89, where SamAir filed against ASG, Wray and South Pacific Island Airsystems ("Airsystems"). Although a preliminary injunction was stipulated to in May 1989 that case is still pending. In January 1994, ASG filed for declaratory relief in the instant matter, which is now before the court on a motion for summary judgment filed by SamAir. At the same time, Wray presented at oral argument a motion to dismiss on jurisdictional grounds on the basis of an affidavit given by the Governor Lutali's chief of staff which in effect contradicts, to counsel for ASG's bewilderment, factual allegations contained in ASG's complaint for declaratory relief. We address each issue in turn.

THE SUMMARY JUDGMENT MOTION

Defendant SamAir submitted a motion for summary judgment on July 20, 1994. In its motion, SamAir argues that the quitclaim deed signed by Wray on behalf of SPIA and Airsystems did not convey any real interest, as necessary approval from the Governor was never obtained. SamAir then asserts that any leasehold interest remained with SPIA at the time it [26ASR2d134] filed for bankruptcy and that this lease was automatically dissolved, with all interests reverting back to ASG. Therefore Wray and Airsystems have no legal interest as a matter of law.

In response, Wray claims that there is a question of fact as to which chapter of the U.S. Bankruptcy Code SPIA was operating under when the Trustee took over. Wray also asserts that SamAir has no present interest in the parcel, that the Governor did approve in writing Airsystems entitlement as an assignee of SPIA's original lease, that SPIA's assignment to Airsystems was effective, and that the lease was reaffirmed by the parties. Wray asserts these mixed arguments of law and fact as evidence that summary judgment is inappropriate at this time.

Defendant Airsystems has also filed a response to the summary judgment motion, alleging that SamAir does not have the requisite standing to seek summary judgment. In addition, Airsystems contends that SamAir's interpretation of the applicable Bankruptcy Code chapter is erroneous, and whether or not the lease was terminated is a question of fact most properly determined at trial.

[1-2] Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 8 L. Ed.2d 176 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987). This burden on the moving party "may be discharged by ... pointing out ... that there is an absence of evidence to support the non-moving party's case." Bryant v. Southwest Marine of Samoa, Inc., CA No. 41-92 (1993), citing Celotex Corp. v. Catrett, 91 L. Ed.2d 265, 275 (1986).

[3-4] Summary judgment is a drastic and final remedy that operates to deprive the non-moving parties of their day in court. Examining this motion, we cannot say that there is no genuine issue of fact. Although the opponents to this motion present a non-differentiated mix of fact and law, their submissions, do rise to the level needed to defeat this particular motion. Whether or not the lease was terminated by the Trustee and, perhaps as importantly, whether or not the lease was reaffirmed, is an issue best not summarily resolved at this juncture. Additionally, the parties raise questions as to intent, an area generally not appropriate for summary judgment, as well as questions going to knowledge, timing, and [26ASR2d135] control. See Cross v. United States, 336 F.2d 431 (2nd Cir. 1964). In short, the parties have raised enough factual issues to defeat SamAir's submission. The motion for summary judgment is therefore denied.

THE JURISDICTIONAL ISSUE

At the hearing, Wray tendered an affidavit of Governor A.P. Lutali's Chief of Staff, Aleni Ripine ("Ripine"), dated August 25, 1994, the very day of the hearing. In this affidavit, Ripine deposes that the Governor has made no decision on whether or not to lease the parcel to SamAir and that the Governor has "expressed no intentions with respect to any leasehold matter on this property". (Affidavit of Aleni Ripine, August 25, 1994). At oral argument Wray alleged that the court has no jurisdiction to hear this case - that since the Governor had not decided to lease the parcel there was no longer any controversy to be decided. We disagree.

In the first instance, the submitted affidavit and its hearsay averments, as the basis of establishing jurisdictional facts, is inadmissible. (We also declined Airsystems request to call Wray to the stand to testify about Ripine's affidavit, and hence compound the hearsay problem.) After five years and three court cases we are unprepared to dismiss this action on the basis of an affidavit testifying to what Ripine reports the Governor's alleged intentions are. The difficulties with this type of submission are both too numerous and too obvious to be dealt with at any length.

[5] Additionally, the case before us does present a case of actual controversy relating to the legal rights and duties of the respective parties, in accordance with A.S.C.A. § 43.1101. As stated in In re High Chief Title "Mauga", 4 A.S.R. 132, 135 (1974), the test generally applied in determining whether a case presents a justiciable issue which can serve as a basis for a declaratory judgment suit is "whether it is relatively certain that coercive litigation will eventually ensue between the same parties if a declaratory judgment is refused."

The plaintiff in this case is faced with the very real possibility of further litigation once it engages in any contemplated course of action. Additionally, this case presents us with a justiciable controversy touching on the parties adverse legal interests. In short, this suit fulfills the requirements of A.S.C.A. § 4.1101 and is exactly the type of controversy contemplated by that statute. The motion to dismiss on jurisdictional grounds is, therefore, denied.

It is so ordered.

*********

1. Neither SPIA nor Mr. George Wray were parties to this action.

American Samoa Gov’t v. Snow,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

STANLEY SNOW, Defendant

High Court of American Samoa
Trial Division

CR No. 3-94

May 23, 1994

__________

[1] T.C.R.Cr.P. Rule 33 provides that the court, on a defendant's motion, may grant a new trial if required in the interest of justice. When the court considers such a motion, the burden is on a convicted defendant to show that some error was committed and that that error was prejudicial to him.

[2] In the absence of any contrary evidence, the court will not assume a tainted jury.

[3] It is the trial court's province to determine whether or not news media materials have the possibility of prejudicing the jury. A special jury voir dire is not essential to that determination, and a defendant has no right to be granted this procedure.

[4] Having neglected to request a sequestered jury, defendant cannot now complain of the jury's minimal exposure to daily life

[5] In the context of a motion for a new trial, the court may weigh the evidence presented at trial and assess the credibility of witnesses. However, the court is not free to set aside the jury's verdict even if the court concludes that another result is more reasonable. The evidence must preponderate against the verdict so severely that a miscarriage of justice has occurred.

[6] The court will not second-guess decisions properly in the jury's province, particularly decisions with firm foundations.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendant, Asaua Fuimaono

Order Denying Motion for New Trial:

On April 15, 1994, defendant Stanley Snow ("Snow") was found guilty, by a jury, of one count of stealing services with a value of $100.00 or [26ASR2d79] more and one count of stealing services with a value of $100.00 or less.

On May 11, 1994, Snow was sentenced by the court. The court suspended Snow's concurrent prison sentences of four years on count one and one year on count two, and placed Snow on concurrent probation terms of five years on count one and one year on count two. As conditions of probation, Snow was ordered to serve four months detention at the Tafuna Correctional Facility, out of a detention period of sixteen months, to begin on June 15, 1994.(1) Execution of the remaining 12 months of detention and 600 hours of community service was suspended. Snow was also ordered to pay a fine of $1,500 no later than 60 days after release from the four-month detention period and to make restitution of $1,737.60, in equal monthly payments, which if not paid in full by the end of the initial detention period, is to be paid over the remaining months of the probation term.(2)

On April 25, 1994, Snow filed a motion for new trial and a motion to treat as an indigent on appeal.(3) These motions came regularly for hearing on May 16, 1994. Two aspects of these motions--Snow's assertion of prejudicial error in the motion for a new trial because the court had neglected to rule on his motion for a judgment of acquittal, and his motion [26ASR2d80] to be treated as an indigent--were disposed of at the hearing.(4) [1] The remaining aspects of Snow's motion for a new trial essentially make two challenges. The first is that Snow was denied a fair trial because of the jury's exposure to media coverage. The second is that the finding of the jury is not supported by the weight of the evidence. T.C.R.Cr.P. Rule 33 provides that the court, on a defendant's motion, may grant a new trial "if required in the interest of justice." When the court considers such a motion, the burden is on a convicted defendant to show that some error was committed and that that error was prejudicial to him. United States v. Simms, 508 F. Supp. 1188, 1203 (W.D. La. 1980). For the reasons detailed below, we deny Snow's motion with respect to both grounds.

In support of the first challenge, Snow argues that the jury, unsequestered throughout the trial until its deliberations, was exposed to prejudicial news coverage that unfairly prejudiced the jury against him. Snow also asserts that the court erred in not allowing him to voir dire the jury about their exposure to the news coverage, and in not warning the news media to balance their coverage of the trial.

[2] These objections must fail for several reasons. To begin with, Snow has not submitted any evidence whatsoever that the coverage was in fact prejudicial,(5) or that any of the jury members were actually prejudiced. Although counsel evinced an intention to poll members of the jury on this question after the verdict, this has not been done. In the absence of any contrary evidence, we will not assume a tainted jury. See Mayola v. State of Ala., 623 F.2d 992 (5th Cir. 1980), cert den'd 451 U.S. 913, 68 L. Ed.2d 303, 101 S. Ct. 1986 (1981).

[3] Nor has Snow mounted a sufficient challenge to the court's trial [26ASR2d81] rulings on this matter. The court's denials of Snow's motion to specially voir dire the jury in the midst of trial, and subsequent motion for a mistrial, must stand. United States v. Abascal, 564 F.2d 821 (8th Cir. 1977), cert den'd 435 U.S. 953 (1978); United States v. Jones, 542 F.2d 186 (4th Cir. 1976), cert den'd 426 U.S. 922 (1976). It is the trial court's province to determine whether or not news media materials have the possibility of prejudicing the jury. A special jury voir dire is not essential to that determination, and a defendant has no right to be granted this procedure. See United States v. Weisman, 736 F.2d 421 (7th Cir. 1984), cert den'd 469 U.S. 983, 83 L. Ed.2d 324, 105 S. Ct. 390 (1984); United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976), cert den'd 426 U.S. 948, 49 L. Ed.2d 1184, 96 S. Ct. 3167 (1976), reh'g den'd 429 U.S. 873, 50 L. Ed.2d 156, 97 S. Ct. 193 (1976).

[4] Snow's demand that the court oversee press coverage regarding this trial is not only impractical but also seeks a constitutionally unsound restraint on the freedom of the press. Nebraska Press Asso. v. Stuart, 427 U.S. 539, 49 L. Ed.2d 683, 96 S. Ct. 2791 (1976). Additionally, Snow, having neglected to request a sequestered jury, cannot now complain of the jury's minimal exposure to daily life. See Martin v. Warden, Huntingdon State Corr. Inst., 653 F.2d 799 (3rd Cir. 1981), cert den'd 454 U.S. 1151, 71 L. Ed.2d 306, 102 S. Ct. 1019 (1982).

[5] We also disagree with Snow's assertion that the evidence fails to support the jury's findings. In the context of a motion for a new trial, the court may weigh the evidence presented at trial and assess the credibility of witnesses. However, the court is not free to set aside the jury's verdict even if the court concludes that another result is more reasonable. The evidence must preponderate against the verdict so severely that a miscarriage of justice has occurred. United States v. Simms, 508 F. Supp. 1188, 1202-03 (W.D. La. 1980); United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985).

[6] In this case, the jury had ample evidence to find against Snow, and this was the course the jury chose to take. Although not necessary to this ruling, we also note that the jury, in count two, had the opportunity to hold Snow guilty of a more serious crime and declined to do so. We are not in the habit of second-guessing decisions properly in the jury's province, particularly decisions with such firm foundations as the one before us.

For the reasons given, neither of Snow's challenges to the jury's verdict establish any prejudice to him that requires a new trial in the interest of justice. Therefore, the motion for a new trial is denied. [26ASR2d82]

It is so ordered.

*********

1. The postponement was to allow Snow to procure alternative care during the four-month detention period for his one-year old son, who was recently hospitalized at the LBJ Tropical Medical Center with a diagnosis of pneumonia with plural effusion and, upon further testing, juvenile diabetes. Snow is receiving training to administer, and is actually administering, twice-daily insulin injections and other necessary health care for his son. Snow's wife is not yet able to cope with her son's condition and administer these injections.

2. Snow was also restricted to American Samoa unless he obtained prior permission from the court to travel outside the territory, with the Attorney General retaining his travel documents. He is to be a law-abiding citizen. He is to report monthly to his probation officer and make outstanding restitution payments, and fine payments within the 60 days allowed, after release from the four-month detention period. This reporting requirement is extended to once every three months after both the fine and restitution are fully paid. The probation officer may require more frequent visits at any time. Upon violation of any of the conditions of probation, Snow is subject to further detention and/or community service as an alternative to probation revocation until the full months of detention and hours of community service as ordered are exhausted.

3. A.S.C.A. § 46.2402(b) states that a motion for a new trial shall be filed within 10 days after the judgment or sentence. Although Snow's motion was filed before the sentencing actually took place, but after the verdict, we treat the motion as if it had complied correctly with all procedural requirements.

4. The motion for a judgment of acquittal was made at the close of all the evidence, and the court, in accordance with T.C.R.Cr.P. Rule 29(b), reserved the decision on this motion. The court denied this motion on May 11, 1994, before pronouncing the judgment and sentence.

The indigency question is governed by A.C.R. Rule 24, which comes into play when an appeal is taken. Rule 24 also requires a supporting affidavit in the detail prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure. No such affidavit has been filed. Since this motion was filed prematurely and without the necessary substantive support, it was withdrawn.

5. Snow submitted two articles from the Samoa News that describe events during the first two days of the four-day trial. He did not include any later articles. He also submitted an affidavit that gave an extremely sketchy account of a call-in radio show regarding the trial. We cannot by any stretch call this, as Snow does, "extensive coverage." Nor can we at all term the articles as either wholly one-sided or prejudicial.

Foster v. Lutali,


MABEL FOSTER and AMERICAN SAMOA DEVELOPMENT
CORPORATION, jointly and severally, Appellants

v.

GOVERNOR A.P. LUTALI, on behalf of DEVELOPMENT BANK
OF AMERICAN SAMOA, Appellees

High Court of American Samoa
Appellate Division

AP No. 9-93
(CA No.37-93)

April 5, 1994

__________

[1] Parties are restricted on appeal to contesting the lower court's final judgments. They cannot assert positions outside those parameters.

Before RICHMOND, Associate Justice, CANBY,* Acting Associate Justice, MUNSON,** Acting Associate Justice, FRUEAN, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellants, Asaua Fuimaono
For Appellees, Jennifer L. Joneson, Assistant Attorney General

RICHMOND, Justice:

In February and March of 1993, appellee Governor A.P. Lutali ("the Governor"), on behalf of appellee Development Bank of American Samoa ("DBAS"), made three written requests to appellant Mabel Foster ("Foster"), secretary of appellant American Samoa Development Corporation ("ASDC"), to call a special shareholders' meeting. The Governor's first demand letter, dated February 11, requested a meeting for [26ASR2d17] the purpose of voting on whether or not to remove the then-current board of directors. His second demand letter, dated February 25, reiterated this request and added a request to vote on a bylaw amendment adopted February 5. Both these demands went unsatisfied, and the president of the ASDC responded to the Governor in writing that the requested purpose of these meetings would cause a conflict between the corporations bylaws and articles of incorporation.

On March 15, the Governor made his third written demand for a special meeting, here adding a request for an additional special meeting to vote on amending the ASDC's articles of incorporation. This demand went unanswered, and appellees subsequently sought and were granted a temporary restraining order. Upon appellees' claim for injunctive relief, the trial court issued an order on May 3, instructing Foster to call the special meetings requested for the purposes sought.

In its decision, the court below was confined to considering whether or not Foster should be enjoined from failing to call a special shareholders' meeting to (1) amend ASDC's articles of incorporation and (2) remove the current board of directors and elect a new board (Decision and Opinion issued May 3, 1993, at 2). The court found that ASDC's articles of incorporation permit amendments by a majority of stockholders, and that special meetings may be called for any purpose by at least 10% of the common stock entitled to vote (DBAS owns 80% of ASDC). The court noted that even if removing and electing directors was at the time prohibited, and the court did not state that it was, the removal would be proper if the proposed changes were duly adopted. The court found defendants argument that corporate directors are only to be elected at the annual meeting to be without merit, and that election of directors is notably different than removal of same. This is true even if removal necessarily results in a special election to choose replacement directors. In any event, the courts ruling was specifically directed to enjoining Foster from failing to carry out her duty to call the requested meetings.

[1] On appeal, appellants, in essence, assume a legal connection between the court's ruling that the meetings be called and the actions that transpired at those meetings. Appellants continue to assert that the trial court's ruling necessarily led to the removal of the then-present board of directors, even though they acknowledge that the purpose of the injunction was simply to compel Foster to call the requested meetings. There is simply no legal nexus to these separate contentions. Appellants' appeal is restricted to the final decisions of the trial court. This court is not in the position of continually supervising legal and internal shareholder decisions of the [26ASR2d18] ASDC, however badly they may rest with appellants.

Appellants also argue that the trial court's finding that the board improperly attempted to insulate itself from accountability is not supported by the evidence. Contrary to appellants' assertions, this was not a finding of the trial court. The court's order of June 3, denying appellants' motion to reconsider, specifically stated:

This court merely noted the fiduciary duty owed by a corporation
board of directors to the stockholders and observed that a
board's attempt to insulate itself from accountability to the
shareholders is inconsistent with this duty.

The court, as it said itself, merely pointed out the board's fiduciary duty, an issue that was not before the court. Nor was the court basing its conclusions on the then-board's assumed motives. As this was clearly not part of the lower court's findings upon which it based its ruling, appellant's arguments must necessarily fail.

[1] Appellants' last asserted issue on appeal, the alleged employment and due process rights of the removed directors, also fails as a matter of law. As appellants are restricted on appeal to contesting the lower court's final judgments, they cannot assert positions outside those parameters. This contention is firmly outside the scope of this appeal.

Accordingly, having fully reviewed appellant's arguments in support of their appeal, and finding none compelling, the trial court's decision is hereby affirmed.

It is so ordered.

**********

* The Honorable William C. Canby, Jr., Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** The Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

Faumuina; In re Matai Title


SAUNOA S. VAOULI, SUAFA`I P. SATELE, UTU SINAGEGE, and
FAUTUA L.T. FAUMUINA, Appellants

v.

A.P. LUTALI, Appellee

[In the Matter of the Matai Title "FAUMUINA"]

High Court of American Samoa
Appellate Division

AP No. 7-92

April 4, 1994

__________

[1] The language of A.S.C.A. § 1.0409 (d) is clear--the trial court shall issue a decision that covers each factor enumerated in A.S.C.A. § 1.0409 (c). The word "shall" has traditionally been interpreted as a mandatory direction, inconsistent with the idea of discretion.

[2] Absent any clearly expressed legislative intention to the contrary, the term "shall" is significantly commanding.

[3] A failure to follow the clear meaning of A.S.C.A. § 1.0409 (d) results in prejudice to all involved. The legislature has required that the judiciary issue written findings of fact and conclusions of law. The trial court has no discretion to ignore that legislative mandate.

[4] The words of A.S.C.A. § 3.1007 (a) "a case in which he ... has a substantial interest" not only mean that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere.

[5] Recusal should never be undertaken lightly, but there are certain instances in which recusal is proper.

[6] The standard of review applied to a courts denial of a request for recusal is, in accordance with A.S.C.A. § 43.0801 (b), "clearly erroneous."

[7] A judge has an obligation not to recuse himself or herself unless there is a need to do so.

[8] Recusal is appropriate when an appointing governor appears in his capacity as an individual citizen before an appointee judge.

[9] There is a duty of recusal incumbent on an associate judge who finds himself or herself assigned to a case in which a governor who appointed the judge appears in his or her personal capacity. [26ASR2d2]

Before RICHMOND, Associate Justice, CANBY,(1) Acting Associate Justice, MUNSON,(2) Acting Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant Saunoa S. Vaouli, Gata E. Gurr
For Appellant Suafai P. Satele, Asaua Fuimaono
For Appellee A.P. Lutali, Tauivi Tuinei

Opinion:

For 20 years various candidates have been legally pursuing the Faumuina title. This appeal is the latest chapter in a case that will be, we fear, ongoing. Most recently, the case was heard before this court's Land and Titles Division on March 18, 1992. The trial court, in a very brief decision, awarded the title to appellee A. P. Lutali.(3) For the reasons detailed below, we must remand for a new trial.

INSUFFICIENT FINDINGS ON CLAN PREFERENCE

Both appellants pursuing this appeal, Saunoa S. Vaouli and Saufa`i P. Satele, assert that the trial court erred in law by failing to comply with all provisions of A.S.C.A. § 1.0409 . The relevant part of that section reads:

(c) In the trial of title cases, the High Court shall be guided by
the following considerations, in the priority listed:
* * *
(2) the wish of the majority or plurality of those clans of the family
as customary in that family;
* * *
(d) The court shall issue a written decision that must contain
findings of fact and conclusions of law on each issue under (c)
above.

In addressing A.S.C.A. § 1.0409 (c)(2), the trial court stated: "None of the [26ASR2d3] claimants were supported by a majority of the clans of the Faumuina family" (Opinion and Order at 2). Nowhere in the trial court's decision was a finding made on the make-up or number of clans in the Faumuina family. In fact, the only other reference to clans is found in the conclusion, where the court, citing In re Matai Title "Galea`i", LT No. 1050 slip op. at 3 (1971), states: "[W]hen claimants are closely matched, it is conducive to family harmony to make the selection from a different clan than the clan which last held the title." Yet the court never indicated which clan candidate Lutali, or indeed any former title-holder, represents.

[1] We note that the language of A.S.C.A. § 1.0409 (d) is clear-- the trial court shall issue a decision that covers each factor enumerated in A.S.C.A. § 1.0409 (c). We note that use of the word "shall" has traditionally been interpreted as a mandatory direction, inconsistent with the idea of discretion. Hill v. United States I.N.S., 714 F.2d 1470 (9th. Cir 1983); In Re Thrift Shoe Co., Inc., 502 F.2d 1211 (9th Cir. 1974); United States v. Machado, 306 F. Supp. 995 (N.D.Cal. 1969).

[2-3] Absent any clearly expressed legislative intention to the contrary, "shall" has been found to be significantly commanding. Escoe v. Zerbst, 295 U.S. 490, 493 (1935) ("shall ... is the language of command, a test significant, though not controlling); MCI Telecommunications Corp. v. F.C.C., 765 F.2d 1186, 1191 (D.C.Cir. 1985) (courts ordinarily regard such statutory language as "shall" as conclusive). In Woodrum v. Donovan, 544 F. Supp. 202, 206 (Ct. of Int'l. Trade 1982), the court noted under what circumstances a statute's procedural directive might be considered to be mandatory. Citing French v. Edwards, 80 U.S. 506 (1872), the court said: "(W)hen the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory". In this case, it is clear that a failure to follow the clear meaning of A.S.C.A. § 1.0409 (d) results in prejudice to all involved, as substantive rights are clearly at issue. The legislature has required that the judiciary issue written findings of fact and conclusions of law. The trial court has no discretion to ignore that legislative mandate.

The court's obligation to render a decision on each of the four considerations has also been found to be mandatory by this court. In In re Matai Title "Gaoteote", AP No. 103-75 (1975), the court found that failure to enter a finding on what the clans of a family are and who they support was an error of law. The court stated: [26ASR2d4]

The Fono has determined that only a serious review of the claimants in light of each of the four factors can result in an informed selection by the court. . . . Naturally, the trial judges must determine what the clans of the family are before they can be guided by the desire of the majority or plurality of those clans (citation omitted). It makes no difference that this determination is difficult; it is the function of the Court to resolve difficult questions.

The Gaoteote case is directly on point.(4) While we acknowledge the often-difficult task of determining clans and whom they support,(5)we are precluded by law from allowing the decision below to stand, since the trial court failed to make the required findings. Because the trial court did not make a finding on the number, identity and preference of the clans in the Faumuina family, the decision cannot stand.

APPEARANCE OF JUDICIAL IMPARTIALITY

We perceive a second problem with the trial court's decision. At the onset of trial, a motion was made to disqualify two of the associate judges that had been appointed by appellee A.P. Lutali in his capacity as the Governor of American Samoa. That motion was denied. The issue was reasserted, and again rejected, at the hearing on the motion for reconsideration or new trial. We feel this issue merits further consideration.

In the federal courts, the method for raising the issue of a judge's possible bias or prejudice and the grounds for disqualification are set out in 28 U.S.C. §§ 144 and 455, respectively. Section 144 allows a party to file an affidavit raising the issue of a judge's possible personal bias or prejudice against the party, and the steps to be taken once such an affidavit has been filed. Section 455, revised in 1974, reads, in pertinent part: "(a) Any justice, judge ... of the United States shall disqualify himself in any [26ASR2d5] proceeding in which his impartiality might reasonably be questioned".(6) Section 455(a) focuses not on whether or not there is actual prejudice, but on whether or not there is an appearance of partiality. United States v. Ritter, 540 F.2d 459, 462 (10th Cir. 1976) (disqualification is appropriate under section 455(a) when the circumstances are such that the judge's impartiality might be reasonably questioned); Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978) (the question is not whether the judge is impartial in fact, it is whether another might reasonably question his impartiality in the circumstances). This standard has been interpreted by reference to the reasonable person. SCA Services, Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977); Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (the test for appearance of partiality is whether a disinterested observer would entertain significant doubt that justice would be done).

The appearance of partiality is also a matter of concern in the territory. American Samoa's High Court Rule 103 reads, in pertinent part: "The conduct of all judges shall be governed by the Canons of Judicial Ethics". Canon 2 states: "A Judge should avoid impropriety and the appearance of impropriety in all his activities" (emphasis added). Canon 3 states: "A Judge should perform the duties of his office impartially and diligently". Canon 3C(1) states: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . ."

A.S.C.A. § 3.1007 (a) reads:

(a) No judge shall sit in any case in which he, or a family of which
he is a member, has a substantial interest, or in which he has been
counsel, is or has been a material witness, or is a member of the
same family with any party to the case.

[4-5] We interpret the words of A.S.C.A. § 3.1007 (a) "a case in which he ... has a substantial interest" not to mean only that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. We interpret the words of A.S.C.A. § 3.1007 (a) "a case in which he ... has a [26ASR2d6] substantial interest" not to mean only that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. Meredith v. Atualevao, AP No. 06-79 (1979) (the appearance of impartiality is an operative standard as much as the fact of impartiality; it is irrelevant whether a judge was in fact impartial or whether actual prejudice was shown); In re Matai Title "Tauala" , 15 A.S.R.2d 65, 66 (1990) (disqualification may, in other cases, be appropriate to avoid the appearance of impropriety). Recusal should never be undertaken lightly, but there are certain instances in which recusal is proper. We think that this is one of those times.(7)

[6] The standard of review is, in accordance with A.S.C.A. § 43.0801 (b), "clearly erroneous". Federal courts also apply the clearly erroneous standard to such issues. See Laxalt v. McClatchy, 602 F. Supp. 214, 217 (D. Nev. 1985) (citations omitted).

[7] A judge has an obligation not to recuse himself or herself unless there is a need to do so. Pene v. American Samoa Power Authority , 10 A.S.R.2d 23 (mem.)(1989); see also Uiagalelei v. Ulufale , 17 A.S.R.2d 158 (1990). If recusals were easily obtained, parties might use them as a means of "judge-shopping." Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1300 (8th Cir. 1982) ("Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice," citing Blizard v. Fielding, 454 F. Supp. 318, 320 (D. Mass. 1978)).

The two associate judges in question were appointed to the bench by appellee A.P. Lutali during his first term as the Governor. While we do not wish to say that a governor, having appointed an associate judge, may never come before that individual in court, there are instances when this is so. We think that when a governor is before the court in his or her official capacity, the chance of any appearance of partiality is slim, and there is, absent special circumstances, no reason for an associate judge to [26ASR2d7] have to recuse themself.(8)

[8] However, when an appointing governor appears in his capacity as an individual citizen before an appointee judge, it is even more important that the appearance of partiality be avoided. Particularly in a small community where most people know one another, it is critically important for the courts to avoid the appearance of favoritism to a party. The appearance of partiality can be as corrosive to the judiciary as actual partiality; the courts must always maintain absolute independence and integrity.(9) Under the particular facts and circumstances of the case before us: its history, the title at stake and the relationship between the two judges and appellee, we feel that recusal of the two associate judges involved was required.

[9] We make special mention of the fact that no party to this appeal has raised any specific accusation against either of the judges involved herein. Nor are we in any way suggesting that either judge acted in any but the most honorable way. However, to insure the public's continuing confidence in the fairness of our courts, we must be as vigilant regarding the appearance of this court as we are regarding its actual functioning. For the future, we note that, save special circumstances not here present,(10) there is a duty of recusal incumbent on an associate judge who finds himself or herself assigned to a case in which a governor who appointed the judge appears in his or her personal capacity. (11)

In summary, based on the clan issue dealt with above, as well as the issue of recusal discussed herein, we are obligated to remand this case for a new trial consistent with this opinion. [26ASR2d8]

It is so ordered.

**********

* The Honorable William C. Canby, Jr., Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** The Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

1. That decision, dated April 23, 1992, also contained a dissent. However, our grounds for remand are not related to the reasons for that dissent.

2. We point out that 19 years have passed since the decision in the Gaoteote case was issued. If the legislature disagreed with the reasoning therein, it has had ample time to clarify A.S.C.A. § 1.0409. Its silence on this matter is yet another indication of the mandatory nature of the provision.

3. See In re Matai Title "Tauala" , 14 A.S.R.2d 83 (1990).

4. The 1974 revision of section 455 was based on the "appearance of justice" standard adopted by the House of Delegates of the American Bar Association in 1972. See SCA Services, Inc. v. Morgan, 557 F.2d 110, 113 (7th Cir. 1977) (citations omitted).

5. We take notice of the fact that when this court was called upon to select a successor to the Faumuina title in 1973, there were also questions regarding the composition of the original panel assigned to the trial. At that time, the entire panel recused itself and "The Chief Justice then collected a pool of all the names of permanent, temporary, and retired associate judges, and submitted those names to the parties...". The names that remained then proceeded to sit at trial. In re Matai Title "Faumuina", LT No. 1265-72 (1973).

6. The question of what may constitute these special circumstances is not now before this court, and we therefore decline to comment on it.

7. Federal cases concluding that the governor-appointee relationship is too tenuous and remote to in and of itself justify recusal are not persuasive here, because the population of American Samoa is small and the citizens are generally well-known to each other.

8. We particularly heed the Rule of Necessity-- when a case cannot be otherwise heard, even an interested judge has a duty to sit on that matter, See United States v. Will, 449 U.S. 200, 66 L.Ed.2d 392 (1980) (the Rule of Necessity is at least five and a half centuries old and has been recognized by many state and federal courts).

9. Because of our decision on the points above, there is no need to reach appellants' other issues of contention. However, we do note that the trial court found candidate Lutali to have 1/128 hereditary right to the title. In In re Matai Title "Faumuina", LT No. 1265-72 (1973), this court stated that hereditary claim is "far too remote to warrant serious consideration in the absence of special circumstances."

Farapo v. Schuster ,


OLIVE FARAPO, TEKURA ALU, and LILLY PAUMBARI,
Plaintiffs

v.

SU`A SCHUSTER, STARR SCHUSTER, and GLEN SCHUSTER,
Defendants

High Court of American Samoa
Trial Division

CA No. 97-92

July 21, 1994

__________

[1] Liability under a quasi-contract theory is implied-in-law by the equitable principle against unjust enrichment.

[2] When an individual lives as a member of a family's household, a presumption arises that the services for which compensation is sought were rendered gratuitously. This is true even when persons living in the same household are not related by blood or affinity.

[3] Restitutionary claims under the quasi-contract theory do not apply to family situations.

Before KRUSE, Chief Justice, TAUANU`U, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendants, Gata Edwin Gurr

Decision and Order:

The plaintiffs, nationals of Papua New Guinea, initially met the defendants Su`a and Starr Schuster in September 1991, while the latter were attending the South Pacific Games in Port Moresby, Papua New Guinea. At the [26ASR2d113] time, plaintiffs were working as domestics at the hotel where the Schusters were staying. The evidence(1) conflicts as to who first approached whom; but in the course of their contacts, plaintiffs and the Schusters befriended each another, and their encounters eventually led to the idea of plaintiffs' returning with the Schusters to American Samoa. The Schusters then somehow managed to hastily arrange entry permits for the plaintiffs, who accompanied the Schusters on their return to American Samoa, with the rest of the territory's South Pacific Games contingent.

The only clear understanding among the parties that may be gathered from the evidence was that plaintiffs would live with the Schusters who would be responsible for their care; that plaintiffs would be expected to do household chores; that the arrangement would be for a period of one year, to see how things worked out; and that the Schusters would from time to time provide plaintiffs with money for personal use.

Upon arrival, the Schusters immediately had to depart the territory again for a family fa`alavelave on the mainland. Mrs. Schuster arranged with relatives to house-sit with plaintiffs until the Schusters' return. It seems, however, that plaintiffs soon became very homesick; they were on the telephone almost daily to Papua New Guinea. The Schusters were later startled to discover that their telephone bill for the months of November and December 1991 included nearly $4,000 in telephone calls to Papua New Guinea.

Plaintiffs' duties were initially confined to chores around the family home; however, these duties left plaintiffs with a lot of spare time on their hands. So, they were subsequently instructed by Mrs. Schuster to help out with the family video-rental shop, which was being operated by her daughter, and a lunch wagon, which was being run by her son, defendant Glen Schuster. Work at the video shop and lunch wagon was periodic. This was brought about in part by the Schuster children's need for assistance, in part by their need for baby-care help, and in part by the plaintiffs' desire, which was expressed to Mrs. Schuster, to get out of the house. Plaintiffs became increasingly disenchanted with their Samoan sojourn and they soon wanted to be returned home. Mrs. Schuster, on the other hand, told plaintiffs to arrange for their own passage if they wanted to return home early. Relations soured, and plaintiffs, eventually defiant, left the [26ASR2d114] Schuster household and filed suit seeking compensation and punitive damages. The Schusters responded by withdrawing their immigration sponsorship, which in turn gave rise to deportation proceedings and the issuance of a deportation order by the immigration authorities. Plaintiffs successfully appealed the deportation order. See Farapo v. American Samoa Government, 23 A.S.R.2d 136 (App. Div. 1993). However, they subsequently decided to depart the territory, which they did at the expense of the Schusters, who as sponsors were ultimately responsible for plaintiffs' return passage.(2)

Plaintiffs' claim to compensation are based on the contention that the parties had concluded an employment contract. Alternatively, plaintiffs pose a "quasi" employment contract with the Schusters, as "may be imposed under terms the court finds appropriate to secure just restitution to the aggrieved parties for services performed." Plaintiffs' Closing Arguments and Memorandum, at 6.

The evidence does not, in our view, bear out plaintiffs' contract claims. While initially attempting to analyze the evidence in terms of "offer" and "acceptance," plaintiffs readily concede that "the express contract analysis might be . . . stretch[ing] credulity a bit." Plaintiffs' Closing Arguments and Memorandum, at 7. As to an implied contract, we note that plaintiffs' evidence with regard to the issue of employment with the Schusters is not consistent. While Lilly Paumbari, who was introduced to the Schusters by Olive Farapo, deposed that she was recruited by the Schusters for hire, Olive Farapo's and Tekura Alu's depositions tend to support the Schusters' position that their discussions with plaintiffs contemplated a familial-like setup; that is, plaintiffs would live within the Schusters' household, and the latter would care for them as family members. At the same time, the evidence also suggests that plaintiffs' real motivation to leave home and travel to American Samoa was more the result of an impulsive sense of adventure, that unfortunately did not pan out as imagined, rather than prospective employment with the Schusters. Olive Farapo, for example, was keen "to see the country place" and find similar work with a hotel in American Samoa; she responded on cross-examination that Mrs. Schuster did not offer employment nor was Mrs. Schuster made aware of her expectations for hotel-type work in American Samoa. As noted above, plaintiffs very early developed a severe case of homesickness, and their desire to return home much sooner than expected bears out the impulsive nature of their decision to venture away from home in the first place. [26ASR2d115] Thus, plaintiffs' contention that an employment contract may be "implied" is likewise without foundation. The evidence simply fails to sustain the desired inference.

[1] Absent a contract-in-fact, plaintiffs alternatively argue a "quasi-contract" theory of liability. Unlike the situation with contracts-in-fact, express or implied, in which liability is based on the apparent intentions of the parties, liability under a quasi-contract theory is implied-in-law by the equitable principle against unjust enrichment. See Schott v. Westinghouse Electric Corporation, 259 A.2d 443 (Pa. 1969). That is:

[i]n quasi-contracts the obligation arises, not from consent of the
parties as in the case of contracts expressed or implied in fact,
but from the law of natural immutable justice and equity. Where
a case shows that it is the duty of the defendant to pay, the law
imputes to him a promise to fulfill that obligation. The duty, which
forms the foundation of a quasi-contractual obligation, is frequently
based on the doctrine of unjust enrichment.

66 Am. Jur. 2d, Restitution and Implied Contracts, § 2, at 943-944 (1973 & Supp. 1993). Thus, plaintiffs are here seeking restitution for services rendered on the claim that the Schusters were unjustly enriched by the value of those services. Nevertheless, this unjust enrichment claim is also unsupported by the evidence.

[2] When an individual lives as a member of a family's household, a presumption arises that the services for which compensation is sought were rendered gratuitously. This is true even when persons living in the same household are not related by blood or affinity. Peoples Nat'l Bank v. Cohn, 110 S.W.2d 42, 45 (Ark. 1937) (stating that, conversely, even close relatives may receive compensation for services if such an agreement actually existed); Wells v. Goff, 239 S.W.2d 301, 303-04 (Mo. 1951) ("Kinship in any degree . . . are [sic] not necessarily essential to the establishment of a family relation," which precludes compensation in the absence of an express or implied contract.). When a claimant has provided housekeeping services, courts have considered a claimant's dependence on the services' recipient for support in raising the presumption that the services were rendered gratuitously. Courts have also considered factors such as the legal or moral obligation of a service's recipient to support a claimant and the loyalty, mutual respect, and devotion existing between the parties. Annotation, Establishment of "Family" Relationship to Raise Presumption that Services Were Rendered [26ASR2d116] Gratuitously, as Between Persons Living in Same Household but not Related by Blood or Affinity, 92 A.L.R.3d 726, 731, 745, 754 (1979 & Supp. 1991). See, e.g., Smith v. Riedele, 213 P. 281 (Cal. App. 1923) (no implied payment contract was found when claimant lived and ate his meals in respondent's household, never paid for room or board, and occasionally received gifts of clothing and money);Manning v. Driscoll's Estate, 174 S.W.2d 921, 924 (Mo. App. 1943) (a family relationship existed when a woman did household work, a man provided rent money and paid expenses, both persons invited friends and relatives to visit and have meals, and neither kept records of services rendered or expenses paid); Arns v. Disser, 178 N.E. 27, 28 (Ohio App. 1931) (a man who lived in a family and did household work was not entitled to compensation, as a court will not imply an obligation to pay for services performed by a family member).

[3] In short, restitutionary claims under the quasi-contract theory do not apply to family situations. What the evidence here discloses is essentially a familial setup--the widespread practice of extending a Samoan household beyond its immediate family members. Thus, a claim of unjust enrichment is inconsistent with this context. Plaintiffs resided in the Schusters' household and did not pay for room or board. While living there, plaintiffs performed household chores and worked in family businesses. Additionally, plaintiffs occasionally received money for personal use.

On their claim for punitive damages, plaintiffs essentially argue that there is a need to deter exploitation of people like the plaintiffs by those of "influence," such as the Schusters, who are able to "abuse both the territory's immigration process and . . . wage and hour laws." Plaintiffs' Closing Arguments and Memorandum, at 12. We see no basis in fact for this claim and similarly deny the same.

In conclusion, the evidence presented failed to show the existence of an employment contract. Furthermore, plaintiffs are not entitled to compensation on a quasi-contract theory, having failed to present evidence sufficient to overcome the presumption of gratuitous service by family members. Similarly, plaintiffs' punitive-damage claim is baseless. Therefore, this court's decision is rendered in favor of the defendants. Judgment shall enter accordingly.

It is so ordered.

*********

1. The evidence here included transcripts of depositions of plaintiffs, moved onto the record without objection from the defendants, who had already left the territory by the time of trial.

2. See A.S.C.A. § 41.0408(e).

Fanene v. Fanene,


FANENE FETAIAGIA KAVA, Plaintiff

v.

FANENE S. SCANLAN, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 06-94

April 4, 1994

__________

[1] There is nothing in law or custom to prevent reunification of a split matai title; however, reunification is something best left to the evolutionary process of Samoan custom, as opposed to yet another conflicting judicial pronouncement on the issue of split/joint matai titles.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, Aviata F. Fa`alevao
For Defendant, Arthur Ripley, Jr.

Order on Motion to Dismiss:

Defendant Fanene Scanlan moves to dismiss on the basis that plaintiff Fanene Kava's complaint fails to state a claim for which relief may be granted. Defendant argues that plaintiff is once again seeking to relitigate an issue which has been settled in previous court decisions. Underlying the action is plaintiff's outstanding ambition to have a say over certain Fanene family lands known as "Lalopu`a," which prior court decisions have declared as being under the exclusive pule of Fanene Scanlan and his predecessors in title.(1)[26ASR2d9]

Fanene Kava seeks a declaration to the effect that the Fanene title attached to the village of Pago Pago is not a split title; that she thus co-holds the Fanene title with defendant Scanlan and so shares pule with the latter over all family assets; and that, notwithstanding earlier court decisions to the contrary, there is only one Fanene family, not two separate families, in the village of Pago Pago.

After reviewing the numerous court cases involving the Fanene title of Pago Pago, we find the following: In 1932, the court in Taofi v. Foster , 1 A.S.R. 464 (Trial Div. 1932), awarded the Fanene title to Filo Foster, defendant Scanlan's predecessor in title. Filo then singularly held the Fanene title for a period of thirty-three years. In 1965, however, the court allowed the registration of another Fanene titleholder when it granted the matai-succession claim of Vaoali`i K. Fanene, plaintiff Kava's predecessor in title. See Fanene Filo v. Vaoali`i K. Fanene , 4 A.S.R. 603 (Trial Div. 1965). Ironically, and over Fanene Filo's vigorous objection, Vaoali`i's application was granted on the basis of his claim that the Fanene title was in fact a "split" title--the antithesis of the position being canvassed by his present-day successor, Fanene Kava.(2) With the registration of Vaoali`i's claim, there were two Fanene titleholders in the village of Pago Pago.

After the death of Vaoali`i, Tauveve L. Fanene filed his application to register the title accordingly left vacant by the death of Fanene Vaoali`i. Tauveve's application, like Vaoali`i's, was also contested by Fanene Filo, who once again asserted that the Fanene title was not a split title. The matter eventually went before the Lands and Titles Division. A review of the Clerk's file, LT No. 1035-69, reveals that the court had initially sent the matter back to the parties with the directive that "all branches of the Fanene family" were to meet and then report back to the Court "in writing" on the question "whether or not the entire family desires that its split Matai title be merged and made whole again." See Fanene Filo v. Tauveve L. Fanene, LT No. 1035, Order Calling For Joint Meeting of Fanene Family (April 2, 1970). The parties apparently met or attempted to meet; however, they were not able come to any agreement on the question posed and thus the matter found its way back to the court for resolution. The court, finding that the title "being a split title, and the family having been unable to agree that the title be merged into a single [26ASR2d10] holder," dismissed Fanene Filo's objection and directed the registration of the title "formerly held by Fanene VAOALI`I in accordance with the law and with the wishes of his branch of the family." Id., Order Dismissing Objection (Oct. 14, 1970) (emphasis in original). With the registration of Tauveve's application, there were once again two registered Fanene titleholders in the village of Pago Pago.

These two Fanene titleholders were again before the court in 1971, over a dispute regarding land "Lalopu`a." See Fanene v. Fanene, LT No. 1089-71 (Nov. 1, 1971). It seems that while Tauveve's matai-succession application was pending, Fanene Filo had executed a separation agreement in favor of Herman Scanlan, now Fanene Scanlan, the defendant herein. When this agreement was offered for recordation with the Territorial Registrar, it attracted the separate objections of Tauveve and Fetaiaiga F. Fanene, now Fanene F. Kava, the plaintiff herein. At trial, the parties presented the following stipulated issues to the court: 1) "[Whether] the two Fanene Families, namely, Fanene Filo and Fanene Tauveve, [were] one and the same family? 2) Who has the pule or authority over communal land of the Fanene Family?" The court concluded:

Fanene Filo and Tauveve Fanene families are two separate,
different and distinct families. They, in the past and continue
for a period of approximately 70 years conducted themselves
as separate families, each not consulting the other in major
Samoan family affairs such as weddings and funerals.
. . .
Lalopu`a is communal land of the Fanene Filo Family [under
the pule of the Fanene Filo family's senior matai; to wit, Fanene
Filo].

Slip op. at 3-4. In an addendum to the decision later entered, the court further held that those members of the Fanene Tauveve side who were residing on Lalopu`a, namely, "Fetaiaiga F. Kava and her children," were entitled to remain on the land subject to the requirement of tautua (traditional service) to Fanene Filo. Fanene v. Fanene, 4 A.S.R. 66, 67 (Land & Titles Div. 1972).

Most recently, in Fanene v. Fanene , LT No. 73-90. 19 A.S.R.2d 69 (Land & Titles Div. 1991), the pule of the Fanene Filo side of the family was again upheld. The parties that were then before the court are the very same parties before the court today, and the question that was before the court in 1991 was whether Fanene Scanlan had the sole authority to issue [26ASR2d11] separation agreements relating to Lalopu`a. The court granted Fanene Scanlan's motion for summary judgment.

The principal argument in this latest attempt to resurrect the issue of pule is premised on yet another ruling of the Land and Titles Division, which does not appear to have been previously raised by plaintiff. In the case of In the Matter of High Chief Title Mauga , 4 A.S.R. 132 (Land & Titles Div. 1974), the court held that "Mauga" is not a split title. The court here considered the notion of split titles as being unsamoan but explained that two persons may jointly hold the same title. Id. at 139. It also purported to reverse Tauvevematalilo v. Fanene Filo, Civ. 1035 (1970), which held that when a matai title was registered as a split title and two groups of a family cannot agree to merge the title, successors to each holder of the split title may be selected. Mauga , 4 A.S.R. at 135.

However, this court is neither bound nor inclined to follow the statements made in the Mauga case, insofar as they pertain to the Fanene family or families of Pago Pago. First, the Mauga court's comments on the Tauvevematalilocase were not central to its decision on the case then before it. Second, at the time that case was decided, the High Court's rulings on split titles were inconsistent. See, e.g., In re Registration of the Matai Title "Salave`a" , 4 A.S.R. 44 (Land & Titles Div. 1971) (finding that matai titles may be split and that descendants of each branch may elect its own titleholder), overruling Salave`a v. Salave`a, No. 18-1919 (1919) (which ordered titles of two branches of a family "merged"). Significantly, these inconsistencies came about as a result of the court's ready resort to judicial notice of Samoan custom. The Mauga court simply reversed the Tauvevematalilo case because, upon "reconsideration," it viewed the earlier decision as being "ill-advised and in substantial derogation of Samoan custom." Mauga , 4 A.S.R. at 140. The court's views on the matai system were in part based upon the court's judicial notice of "the development of the matai system from its inception during the Polynesian migration from Asia until the present time. See Buck, 'Vikings of the Sunrise' (1938)." Mauga , 4 A.S.R. at 137-138. Likewise, the court's findings on the issue of "split titles" was a generalization similarly grounded on Samoan custom as judicially noticed by the court. Id. at 140. On the other hand, the exact opposite result was reached in In re Registration of the Matai Title "Salave`a"; the court there made the following observation on the matai system, as well as on the scope of the court's constitutional power with respect to issues touching on the matai system:

It may be well at this time to state that under the matai
[26ASR2d12] system there are certain fundamental rights that
are passed from father to son through the blood. These rights
are held sacred and lasting by all who live under the matai system
and are considered above and beyond the limits of the authority
of the courts or any other tribunal or power. One of these is
the right of a Samoan to claim a matai title once held by an ancestor.

Salave`a , 4 A.S.R. at 46-47.

The Mauga court's premise is not particularly compelling. First, we note that the Land and Titles division has subsequently acknowledged that Samoan custom is neither static nor cast in stone. See Fairholt v. Aulava , 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983) ("The Samoan way of life has shown that it can accommodate itself to change. Samoan culture is dynamic, energetic, forceful, and vigorous."). At the same time, our review of the Tauvevematalilo file reveals that that court's findings, to wit; separately developing family entities that gave rise to split titles, was founded on the evidence and testimony at trial, including an admission by "Tauveve Fanene [plaintiff Kava's predecessor in title] that their family is not related to the Fanene Filo family [plaintiff Scanlan's family]." These findings were not based on generalizations about Samoan custom; rather, they were findings relating to the affairs and historical development of a specific family in the village of Pago Pago as related by the parties' evidence on family development.(3)

[1] In regards to the pule over the land Lalopu`a, the High Court has already decided the matter in favor of Fanene Scanlan and his predecessors in title. As such, Fanene Kava's suit is barred by res judicata. If at some time the two Fanene families decide and agree that theirs is truly one family and choose to reunite the Fanene title, that is their prerogative. There is nothing in law or custom to prevent that reunification; however, reunification is something best left to the evolutionary process of Samoan custom, as opposed to yet another conflicting judicial pronouncement on the issue of split/joint matai titles. [26ASR2d13]

Defendant's motion to dismiss is, therefore, granted.

It is so ordered.

**********

1. See Fanene v. Fanene , 4 A.S.R. 66 (Land & Titles Div. 1972); Fanene v. Fanene , 19 A.S.R.2d 69 (Land & Titles Div. 1991).

2. The 1965 court found precedent for Vaoali`i's claim from the Territorial Registrar's records, which reflected dual Fanene-holders on two previous occasions, and was further persuaded by certain corroborative remarks it found in the court's earlier decision in Taofi v. Foster , supra.

3. Plaintiff Fanene Kava's claim of a singular Fanene family with joint titleholders seems rather puzzling in light of the fact that the only reason she is a titleholder today is because her predecessor in title's version of family history--about separate and distinct development of two separate and unrelated Fanene families--was earlier accepted by the court. The logical extension of plaintiff's contention would seem to be the elimination of the title she is holding, since the very premise for which the same was recognized in Fanene Filo v. Vaoali`i K. Fanene , 4 A.S.R. 603 (1965), would be overturned.

Estate of Malae v. Sega ,


ESTATE OF OFISA MALAE, by SALOTA OFISA MALAE,
Plaintiff

v.

MAMOE and KOLETA SEGA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 40-93

September 14, 1994

__________

[1] "Good faith" improvers of land are entitled to equitable relief, against unjust enrichment, in the way of compensation for improvements upon eviction.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, Afoa L. Lutu
For Defendants, Togiola T.A. Tulafono

Opinion and Order:

Plaintiff estate seeks the eviction of defendants Mamoe and Koleta Sega from a certain portion of land "Autai" located in Sogi, village of Leone, Western District. The undisputed facts are that the late Ofisa Malae, hereafter "Malae," delivered to the defendants on July 6, 1982, a deed of conveyance to .44 acres of Autai, being its southwestern portion. Subsequently, the defendants sought and obtained from Malae permission to use an additional contiguous portion of Autai comprising a triangular shaped area resulting from the simple extension of one of the boundary points a further 70 feet. This arrangement, which the parties have referred to as a "lease," and for which the defendants paid Malae $100 a month, was subsequently terminated by Malae on June 12, 1989, after he had his lawyer send the defendants a letter demand to vacate his land. The defendants duly complied with the attorney's demand letter and in yielding up the premises they removed a structure which they had built on the [26ASR2d137] leased land. Sometime thereafter, Malae, then 84 years of age, moved to the mainland to seek medical treatment. He passed away off-island in Tacoma, Washington, on April 30, 1990.

In 1993, Malae's son Salota petitioned for and was granted letters of administration to his father's estate. Salota, who had been off-island for a period of two years, then discovered that the defendants had built six structures on what he believed was his father's land. As administrator, he filed for eviction on behalf of his father's estate.

The defendants, however, claim that they and Malae had previously entered into a contract for the sale of a further portion of Autai. They in turn filed a counter-claim seeking specific performance from the estate. To this end, Mamoe testified that he had built the structures complained of because Malae had in 1988 previously agreed to sell to him the additional area of Autai on which he had built, and that he had on three different occasions given Malae cash installments totaling $5,500, which includes a payment of $1,500 he made to Malae on November 29, 1989 before the latter went off-island. He further testified that the agreed purchase price was $10,000, and that the extent of land involved in the agreement comprised that resulting area from extending the boundary-line 70 feet in his favor. As evidence of their agreement for sale and purchase, Mamoe produced a photocopy of a receipt which he testified was prepared by him, but signed and acknowledged by Malae on November 29, 1989, the date of his last installment. According to Mamoe, after the execution of the receipt, he and Malae drove to CBT Ho-Ching's Store to make a photocopy of the receipt which he kept, while Malae took the original; hence, he was only able to produce a photocopy in these proceedings.

The administrator Salota testified that he was very much involved with his aging father's affairs and that he was not aware of any contract of sale between his father and Mamoe. Furthermore, he testified that his father had left American Samoa in the month of June, 1989 and was thus already off-island when the tendered receipt was purportedly signed by his father.

The issue here is simply whether there was in fact an agreement for the sale of land between Malae and the defendants, and if so, whether the agreement as a contract for the sale of land is enforceable under the Statute of Frauds, A.S.C.A. §37.0211. For reasons given, we find the defendants' evidence to be not believable and accordingly answer the first question in the negative.

First, the photocopy receipt tendered by defendants is not genuine and [26ASR2d138] quite clearly appears to be the product of forgery. We had before us for comparison purposes five different photocopy specimens of Malae's signature, the authenticity of which was not disputed. These specimens are to be found on the 1982 deed, on counsel's letter demand to defendants to vacate, which Malae had also signed, and also on the back of three of defendants' cancelled checks made to Malae which the latter had endorsed for negotiation. Although each of these specimen signatures appear to have been made by the same person, each signature varies to a degree which shows quite clearly that each was a separate act undertaken at a different time. On the other hand, it is equally clear that the signature attributed to Malae on the photocopy receipt is in actuality a photo-reproduction of Malae's signature contained on the 1982 deed. The two writings are without a doubt identical. Second, we accept the testimony of Salota that his father had long departed the territory several months prior to the date on the photocopy receipt, namely, November 29, 1989. Malae was not around when the receipt was produced. Additionally, Mamoe did not impress as someone who was testifying about events that occurred, rather he came across as someone who was telling a story. Indeed, his version has not been consistent throughout these proceedings. While his earlier answer filed avers to a fully performed agreement, his subsequent testimony and written evidence alluded to a partially performed contract. This inconsistency was also evident in the manner in which his testimony vacillated between direct examination and cross examination--to the point of being equivocal on the very question of whether or not an agreement was concluded. At the same time, he was also noticeably vague and hesitant on such crucial events as when partial payments were supposed to have been made, exhibiting problems with coherence while attempting to reconcile his dates--the asserted agreement would have come into being within the same time frame that he was being evicted by Malae for not paying the stipulated rent to a lease of the very land which he is claiming to be buying.

[1] On the foregoing, we conclude that defendants are trespassing on the plaintiff estate's land and, therefore, the petition to evict will be granted. Additionally, defendants are not "good faith" improvers entitling them to equitable relief, against unjust enrichment, in the way of compensation for improvements upon eviction. Accordingly, defendants will also be required to remove their structures within sixty (60) days of entry of judgment hereof or otherwise forfeit the same to the plaintiff estate. Judgment will enter accordingly.

It is so ordered.

*********

E-C Rental Services v. Pedro,


E-C RENTAL SERVICES, Plaintiff

v.

JOE PEDRO dba T.J. PEDRO CONSTRUCTION, Defendant

High Court of American Samoa
Trial Division

CA No. 49-92

May 10, 1994

__________

[1] The standards for relief when a judgment of default has been entered are substantially higher than when an entry of judgment stands alone.

[2] While the court must be slow in granting default judgments, mindful of its partiality for trial on the merits, it must also balance this concern with finality of judgments and protection of the judicial process.

[3] Default judgments are not favored this may be why a court must hold a hearing on damages before entering a judgment on an unliquidated claim even against a defendant who has been totally unresponsive. In general, however, a litigant must make a strong showing to demonstrate that he or she is entitled to relief from a default judgment under T.C.R.C.P. 60(b).

[4] Rule 60(b) relief from a default judgment is an extraordinary remedy and is granted only under exceptional circumstances. Additionally, once granted, a default judgment is accorded a high degree of deference, both in the federal courts and in American Samoa, and the granting or denial of such motions is left largely to the discretion of the court.

[5] Relief from a judgment under Rule 60(b) is discretionary and a denial of a Rule 60(b) motion should only be reversed if the trial court has abused its discretion.

[6] Traditionally, relief from a judgment of default should be granted where the defaulting party acts with reasonable diligence and tenders a meritorious defense.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Roy J.D. Hall, Jr. [26ASR2d66]
For Defendant, Marshall Ashley

Order Denying Motion for Reconsideration of Default Judgment:

This case began on May 12, 1992, when plaintiff E-C Rental Service ("E-C Rental") filed a complaint alleging that Joe Pedro ("Pedro") owed E-C Rental $7,082.50 in rental fees. Pedro was served with this summons and complaint on June 9, 1992. When Pedro had still not responded by November 12, 1993, E-C Rental requested an entry of default, pursuant to T.C.R.C.P. Rule 55(a). Default was entered by the clerk of courts on November 12, 1993. E-C Rental then moved for a default judgment.

After three unsuccessful attempts to hold a hearing, the fourth scheduled hearing took place on March 17, 1994. Although E-C Rental was represented by counsel, Pedro did not appear at the hearing either personally or by counsel. Pedro did send an `emissary' in his stead, but this representation was not recognized by the court. After E-C Rental presented its case, witness testimony and receipts, the court granted the motion for a default judgment in the principal sum of $7,082.50, together with reasonable attorney's fees, court costs, and prejudgment and post-judgment interest. This judgment was entered on March 25, 1994, and only then did Pedro make his first appearance.

On March 28, 1994, Pedro, through counsel, filed a motion for reconsideration of the default judgment, along with an affidavit purporting to explain why he had ignored the case for almost two years. This motion for reconsideration of the default judgment came regularly for hearing on April 26, 1994. For the reasons detailed below, we deny defendant's motion.

[1] Although not referenced by the defendant, a judgment of default may be set aside in accordance with T.C.R.C.P. Rule 60(b). This rule, whose language tracks its federal counterpart, reads in pertinent part:

(b) On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment,
. . . for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; . . . or (6) any other reason justifying relief
from the operation of the judgment. The motion shall be made
within a reasonable time, and for reasons (1), . . . not more than
one year after the judgment . . . was taken. A motion under this
subdivision (b) does not affect [26ASR2d67] the finality of a
judgment or suspend its operation . . . . (1)

The standards for relief when a judgment of default has been entered are substantially higher than when an entry of judgment stands alone. Phillips v. Weiner, 103 F.R.D. 177, 179 (D. Maine 1984). "[A] judgment by default may be set aside using the more restrictive provisions of Rule 60(b) for final judgments." Federal Deposit Ins. Corp. v. Francisco Inv. Corp., 873 F.2d 474, 478 (1st Cir. 1989) (italics omitted).

[2] While the court must be slow in granting default judgments, mindful of our partiality for trial on the merits, we must also balance this concern with finality of judgments and protection of the judicial process. "Although we are mindful of the strong policy in favor of trial on the merits, we are equally aware of the district court's duty to protect the integrity of the judicial process." Dolphin Plumbing Co. of Fla. v. Financial Corp. of N.A., 508 F.2d 1326, 1327 (5th Cir. 1975). "In its efforts to alleviate the tension that occasionally arises among the principles of promoting efficient, effective litigation by demanding that litigants conduct their cases reasonably, favoring disposition of cases by trial on the merits, and according full justice to all parties, a court must take care to order default only when it is appropriate and absolutely necessary, but then, consequently, only vacate its decision under Rule 60(b) when the evidence so requires." Inryco, Inc. v. Metropolitan Engineering Co., Inc., 708 F.2d 1225, 1230 (7th Cir. 1983), cert den'd 78 L. Ed.2d 313, 464 U.S. 937 (1983).

[3] "Default judgments are not favored . . . . This may be why a court must hold a hearing on damages before entering a judgment on an unliquidated claim even against a defendant who has been totally unresponsive." Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). In general, however, a litigant must make a strong showing to demonstrate that he or she is entitled to relief from a default judgment under T.C.R.C.P. 60(b). "Rule 60(b) relief from a default judgment is an extraordinary remedy and is granted only under exceptional circumstances." United States v. $48,595, 705 F.2d 909, 912 (7th Cir. 1983). "[T.C.R.C.P. Rule 60(b)] allows relief from final judgments under certain extraordinary circumstances." Saufo`i v. American Samoa [26ASR2d66] Government, 16 A.S.R.2d 71, 73 (1990).

[4] Additionally, once granted, a default judgment is accorded a high degree of deference, both in the federal courts and in American Samoa. "[I]t should be noted that the granting or denial of such motions [under Rules 55(c) and 60(b)] is left largely to the discretion of the district court." Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140, 146 (9th Cir. 1975). "The decision whether to set aside a default judgment is left to the sound discretion of the trial judge . . . ." Dolphin Plumbing Co. at 1327. "The decision on a rule 60(b) motion is left to the broad discretion of the trial court." Inryco, Inc. at 1230.

[5] "[T.C.R.C.P. Rule] 60(b) empowers the Court to relieve a party, other than the party in whose favor judgment is rendered, or his legal representative from a final judgment for any of six enumerated reasons. The rule uses the word "may" and thus granting motions under the rule is subject to the Court's sound discretion." Taulaga v. Patea, 12 A.S.R.2d 64, 65 (1989). "[S]uch relief [from a judgment under Rule 60(b)] is discretionary and a denial of a Rule 60(b) motion should only be reversed if the trial court has abused its discretion." Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54, 57 (1987). See also Tolliver v. Northrop Corp., 786 F.2d 316 (7th Cir. 1986).

With these principles firmly in mind, we turn to the case before us. Pedro has never alleged that he was unaware of the case against him, or that he was given insufficient opportunity to respond. For 22 months he simply ignored this case. Although Pedro states that he resided, for a time, in the U.S. mainland, this contention, which we accept as true for the purposes of this motion, does not adequately address the issue. Aside from the obvious problem of Pedro's neglect to inform the court of when and for how long he was absent from the territory, his absence does not in any way address his failure to have an answer filed in his behalf, or to ensure representation before the court. Furthermore, Pedro alleges that due to time and money constraints he was previously unable to contact the court, or to procure counsel. Striving to give Pedro every benefit of the doubt, this still does not address several key factors. While defendant may have had other matters pressing, this does not touch on his inability to ask the court for a continuance. Nor does his inability to hire counsel address his failure to, at the least, send a note from his employer indicating that he was not allowed to attend the hearing on March 17, 1994.

[6] The difficulties with Pedro's showing, however, do not end here. Even if we were to somehow forgive this egregious delay, and we do not, [26ASR2d69] Pedro has hardly indicated that he would be able to forward a meritorious defense on the issues. It is important, when seeking to overturn a final judgment, that the applicant "[d]emonstrate that he had a meritorious defense . . . ." United States v. $48,595 at 912. "Traditionally, we have held that relief from a judgment of default should be granted where the defaulting party acts with reasonable diligence . . . and tenders a meritorious defense." United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). Although Pedro alludes to "records and invoices" which would disprove E-C Rental's case, there has been no particularity regarding this proof. While E-C Rental adequately explained the invoices submitted, Pedro has not indicated how he would refute this evidence. In addition, Pedro's counsel, present at the hearing on April 26, 1994, indicated that he has not even seen these records and/or invoices and therefore could not explain what they might show. See Dolphin Plumbing Co. at 1327.

We also take note of E-C Rental's position. E-C Rental has now waited almost two years for this case to progress. It has submitted documentation and appeared at the various hearings held. While its position must not overshadow Pedro's legitimate interests, we must acknowledge the unfairness that endless delay creates upon the other party.

In sum, Pedro has not made a sufficient, threshold showing necessary for this court to overturn a final judgment under T.C.R.C.P. Rule 60(b). There has been no solid showing sufficient under either Rule 60(b)(1) or (b)(6), and the motion submitted by Pedro was fatally imprecise. In the interests of finality, the judicial system, and fairness to all parties, we therefore cannot grant this motion.

With all this in mind, we decline to overturn the default judgment. The motion for reconsideration is denied.

It is so ordered.

*********

1. Although Pedro did not explicitly state under what parts of T.C.R.C.P. Rule 60(b) he was seeking relief, his motion and accompanying affidavit, as well as testimony at the hearing, gave no indication that this motion could fall under the other enumerated reasons for relief in the rule. These reasons include newly discovered evidence, fraud, or a void or satisfied judgment.

Duchnak ; Plaza Department Store, Inc. v.


PLAZA DEPARTMENT STORE, INC.,dba PLAZA HOME FURNISHINGS, Plaintiff,and LUMANA`I DEVELOPMENT CORP., Intervenor

v.

MARTY DUCHNAK dba PRIMO BUILDERS, Defendant/Cross-Claimant, and CIGNA INSURANCE COMPANY and CIGNA PROPERTY AND CASUALTY COMPANY,

Defendants/Cross-Defendants

High Court of American Samoa
Trial Division

CA No. 15-91

July 1, 1994

__________

[1] Summary judgment, in whole or in part, is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

[2] In ruling on a motion for summary judgment, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him.

[3] An insurance policy is a contract, and the same rules of construction applicable to other contracts are applicable to insurance policies.

[4] A court may inquire into the circumstances surrounding an insurance policy if that policy is found to be ambiguous.

[5] Reformation involves rewriting a contract in order to reflect the actual intent of both parties, and an insurance contract may be reformed after a loss has occurred. However, [26ASR2d107] reformation is not appropriate to enforce terms to which the defendant never assented, but is used only to correct a mistake in writing to conform to the actual agreement of the parties.

[6] Reformation is an extraordinary remedy, and courts have in general exercised it with caution. However, courts have reformed insurance contracts in regard to the amount of coverage provided.

Before RICHMOND, Associate Justice, and TAUANU`U, Chief Associate Judge.

Counsel: For Plaintiff and Intervenor, Marshall Ashley
For Defendant/Cross-Claimant Marty Duchnak, William H. Reardon, Togiola T.A. Tulafono and Roger Hazell
For Defendants/Cross-Defendants Cigna Insurance Co. and Cigna Property and Casualty Company, Roy J.D. Hall, Jr.

Order Denying Motion for Partial Summary Judgment:

The motion now before this court is for partial summary judgment, brought by defendants/cross-defendants Cigna Property and Casualty Company ("Cigna"), against defendant/cross-claimant Marty Duchnak ("Duchnak"). For the reasons detailed below we deny Cigna's motion.

[1-2] Summary judgment, in whole or in part, is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987).

The original complaint in this matter was filed by Plaza Department Store ("Plaza") on February 19, 1991. The motion to intervene was granted to Lumana`i Development Corp. ("LDC") on September 19, 1991.

The genesis of this case is a fire that broke out in Plaza's section of LDC's warehouse in the Tafuna Industrial Park, at about 5 p.m. on September 19, 1990. The exact cause of the blaze has not yet been determined. For some time prior to the start of the fire, Duchnak and several of his workmen had been conducting repairs on this warehouse. Duchnak was [26ASR2d108] then carrying a general liability insurance policy with Cigna.(1) It is this policy that is the subject of the partial summary judgment motion now before us.

Cigna brought this motion claiming that Duchnak's policy had a general liability limit of $100,000. Cigna states that when Duchnak obtained his first policy with Cigna, Duchnak purchased general liability insurance with a $100,000 limit. That policy allowed Duchnak coverage of $1,000,000 only for the work Duchnak was then performing for the VCS Samoa Packing Company ("SAMPAC"). When this insurance policy expired, its renewal, after a lapse, was not handled by Duchnak but by Bill Maxey ("Maxey"), a third party who had then hired Duchnak to perform construction work. Cigna states that this renewed policy, like its predecessor, had a general liability limit of $100,000. This renewed policy also provided Duchnak with $1,000,000 in contingent automobile liability coverage, an increase that was not requested but was provided according to standard practices at Cigna's home office.

In opposition to Cigna's motion, Plaza and LDC state that Duchnak originally sought $1,000,000 in general coverage and the $100,000 limit in Duchnak's first insurance policy with Cigna was due to error on Cigna's part. Plaza and LDC state that Maxey also sought $1,000,000 coverage for Duchnak and that Cigna mistakenly assigned the request of $1,000,000 to automobile liability coverage that was neither sought nor desired.

[3] An insurance policy is a contract, and the same rules of construction applicable to other contracts are applicable to insurance policies. Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir. 1986) cert. den'd 94 L.Ed.2d 761 (1987) citing 2 Couch, Cyclopedia of Insurance Law § 15:1, 15:3 (2nd Ed. 1984).

[4] While a court may inquire into the circumstances surrounding an insurance policy if that policy is found to be ambiguous, Allstate Ins. Co. v. Ellison, 757 F.2d 1042 (9th Cir. 1985), Plaza, LDC and Duchnak have not contended that the policy at issue is ambiguous. We agree.(2) [26ASR2d109] However, Plaza and LDC assert that this policy is subject to reformation on the basis of mutual mistake, as the policy does not express the true agreement of the parties.

[5] Reformation involves rewriting a contract in order to reflect the actual intent of both parties, and an insurance contract may be reformed after a loss has occurred. Rolane Sportswear, Inc. v. United States Fidelity & G. Co., 407 F.2d 1091, 1096 (6th Cir. 1969). Reformation is not appropriate to enforce terms to which the defendant never assented, but is used only to correct a mistake in writing to conform to the actual agreement of the parties. Watson v. United States Fidelity and Guaranty Co., 427 F.2d 1355, 1357 (9th Cir. 1970).

[6] Reformation is an extraordinary remedy, and courts have in general exercised it with caution. Mutual of Omaha Insurance Company v. Russell, 402 F.2d 339, 344 (10th Cir. 1969) cert den'd 394 US 973 753 (1969). However, courts have reformed insurance contracts in regard to the amount of coverage provided. Johnson v. United Investors Life Ins. Co., 263 N.W.2d 770 (Spme. Ct. Ia. 1978).

In the case before us, Maxey asserts that he asked Cigna to provide a policy for Duchnak in the amount of $1,000,000 and that Cigna's representative Rick Petri ("Petri") agreed to this request. LDC and Plaza question Cigna's assertion that the $1,000,000 limit for automobile liability was standard procedure, and point out that this change contradicts Cigna's claim that Duchnak's policy was to be renewed without changes, save for the deletion of the $1,000,000 coverage for work at SAMPAC.

Additionally, LDC and Plaza submit the affidavit of Arnold Carter, branch manager for National Pacific Insurance, stating that Duchnak's premium of $3,000, a significant increase over the previous years policy premium, would have led a reasonable person to conclude that the coverage obtained was for $1,000,000. They also assert that Duchnak's failure to read the policy does not bar reformation.

Cigna has correctly pointed out that the right to reformation of a contract must be proven by clear and convincing evidence. However, this is a summary judgment motion and at this stage of the proceedings, we are obliged to view the pleadings and supporting papers in the light most favorable to Duchnak. All parties have presented reasonable arguments in favor of their respective positions, and differ most glaringly on the factual issues. This case presents several disputes that cannot properly be ruled on at this point. In fact, this is precisely the type of dispute that, [26ASR2d110] ordinarily, should not be resolved summarily.

Therefore, the motion for partial summary judgment is denied.

It is so ordered.

*********

1. This policy was originally procured by Duchnak to cover the 1988-1989 year. The insurance policy at issue is the renewed policy for the 1989-1990 year.

2. In Duchnak's brief memorandum in opposition to Cigna's motion for partial summary judgment, Duchnak states he is asserting a combination of mutual mistake and ambiguity. However, the language utilized, and facts presented, support only a defense of mutual mistake.

Duchnak; Plaza Department Store, Inc. v.


PLAZA DEPARTMENT STORE, INC.,dba PLAZA HOME
FURNISHINGS, Plaintiff,and LUMANA`I DEVELOPMENT
CORP., Plaintiff/Intervenor

 

v.

MARTY DUCHNAK, dba PRIMOBUILDERS, CIGNA
INSURANCE CO., and CIGNA PROPERTY AND CASUALTY
Co., Defendants

High Court of American Samoa
Trial Division

CA No. 15-91

May 24, 1994

__________

[1] Summary judgment is only appropriate when no genuine issue as to any material fact exists. In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. The facts must be "beyond dispute," and the non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true.

[2] Summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.

[3] A trial court possesses the discretion to deny a summary judgment motion when it desires an inquiry into the facts to clarify the application of the law.

Before RICHMOND, Associate Justice, and TAUANU`U, Chief Associate Judge.

Counsel: For Plaintiffs, Marshall Ashley and Jill W. Crew
For Defendant Marty Duchnak, William H. Reardon and Togiola T.A. Tulafono
For Defendants Cigna Insurance Co. and Cigna Property and Casualty Co., Roy J.D. Hall, Jr. [26ASR2d83]

Order Denying Motion for Summary Judgment:

PROCEDURAL HISTORY

Plaintiff Plaza Department Store filed its complaint on February 19, 1991. On August 23, 1991, plaintiff/intervenor Lumana`i Development Corporation filed a motion to intervene, which was granted on September 19, 1991. On February 15, 1994, Plaza and LDC filed their motion for partial summary judgment on the issue of liability for the warehouse fire. On April 22, 1994, defendants filed their answers opposing the summary judgment motion. A hearing on the motion was held on April 25, 1994.

STANDARD OF REVIEW

[1] Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. 56(c);see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. King v. Cuyler, 541 F. Supp. 1230, 1232 (E.D. Pa. 1982); D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44, 46 (1987)). That is, the facts must be "beyond dispute," and the non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true. Ah Mai v. American Samoa Gov't (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989). If a factual dispute might affect the outcome of a case, a "genuine issue of material fact" exists. United States v. Murphy, 937 F.2d 1032, 1036 (6th Cir. 1991) (citing Liberty Lobby, 477 U.S. at 248); Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Liberty Lobby, 477 U.S. at 248); Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (citing Liberty Lobby, 477 U.S. at 248; Matsushita, 475 U.S. at 587).

[2] In short, "the court must recognize that summary judgment is a drastic remedy, resolve all doubts as to the existence of genuine issues of fact against the moving party, and view all inferences from the facts in the light most favorable to the parties opposing the motion." Mid-South Grizzlies v. National Football League, 550 F. Supp. 558, 564 (E.D. Pa. 1982) (citing Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982)). Thus, "summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for [26ASR2d84] controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances." United States v. Bachman, 601 F. Supp. 1537, 1540 (E.D. Wis. 1985) (citing Prince v. Pittston Co., 63 F.R.D. 28, 32 (S.D.W. Va. 1974)).

[3] Furthermore, a trial court possesses the discretion to deny a summary judgment motion when it desires an "inquiry into the facts to clarify the application of the law." Bachman, 601 F. Supp. at 1540. Even if technically justified, a summary judgment motion may be denied in order "to give the parties an opportunity to fully develop the case." United States v. Merchants Nat'l Bank of Mobile, 772 F.2d 1522, 1524 (11th Cir. 1985) (per curiam) (quoting Marcus v. St. Paul Fire & Marine Ins. Co., 651 F.2d 379, 382 (5th Cir. Unit B 1981)). Even when the facts are uncontroverted, summary judgment is ordinarily inappropriate in negligence actions. This is so because negligence actions center on the reasonableness of a party's actions. Utu, 9 A.S.R.2d at 94 (citing King v. Avtech Aviation, Inc., 655 F.2d 77, 78 (5th Cir. 1981); Gross v. Southern R.R., 414 F.2d 292, 296 (5th Cir. 1969)).

DISCUSSION

Plaintiffs seek partial summary judgment on the issue of liability for the fire at the Lumana`i Development Corporation's warehouse. They assert that the fire was proximately caused by welding work done by defendant Duchnak and his employees. In this regard, plaintiffs point to the dangers of flying sparks and falling bits of hot metal connected with the welding. Plaintiffs also state that the welders' precautionary measures, particularly a blue plastic tarp, were inadequate. Furthermore, they note violations of A.S.C.A. Chapter 31 in Duchnak's failing to possess a contractor's certification to do welding for hire and his employees' lack of tradesmen's licenses. In alleging liability, plaintiffs utilize a number of legal theories, including strict liability for the statutory violations, strict liability for the use of an abnormally dangerous or ultrahazardous instrumentality, and common negligence.

In contrast, defendants claim that the evidence does not clearly support plaintiffs' theory of causation. First, defendants note that Plaza's employees did not observe a fire before they closed the warehouse. Second, defendants argue that an electrical problem is a likely cause of the fire. Duchnak stated in his deposition that on the same day as the fire, sparks were flying as Plaza employees attempted to conduct repairs. Third, defendants challenge the qualifications of the fire investigator, on whose findings plaintiffs greatly rely. [26ASR2d85]

Additionally, defendants argue that plaintiffs themselves may have had a duty to confirm Duchnak's qualifications and to take safety precautions, such as removing inventory from the warehouse while the welding was in progress. As such, defendants state that even if the welding caused the fire, plaintiffs were also negligent. Defendants also challenge plaintiffs' legal theories, arguing that the statutory violations are merely "negligence per se" or "evidence of negligence" and that welding is not an abnormally dangerous or ultrahazardous activity.

As previously noted, summary judgment is particularly inappropriate in negligence cases. Not only do the parties disagree as to the cause of the fire, but they also disagree as to the reasonableness of their respective safety precautions (or lack thereof). In light of these disputes and the need for a trial to determine the amount of damages once liability is determined, plaintiffs' motion for summary judgment is denied.

It is so ordered.

*********

American Samoa Gov’t v. Mase,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TIAI MASE, Defendant [26ASR2d120]

High Court of American Samoa
Trial Division

CR No. 35-93

August 22, 1994

__________

[1] The phrase "the proximate cause of the death" in A.S.C.A. § 22.0706 refers to the legal cause of the death, as distinguished from other causes in fact.

[2] An accused cannot escape criminal liability for a vehicular homicide if intervening contributing conduct is foreseeable.

[3] Accountability is excused only if the intervening cause supersedes the defendant's original act.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, Fainuulelei L.F. Ala`ilima, Assistant Attorney General
For Defendant, William H. Reardon

Order Denying Motion for New Trial:

On June 7, 1994, defendant Tiai Mase ("Mase") was found guilty of the offense of homicide by vehicle in violation of A.S.C.A. § 22.0706, following a bench trial. On August 15, 1994, Mase was adjudicated guilty of this offense and sentenced to three years' imprisonment. Execution of the sentence was suspended, and he was placed on probation for a term of three years. As probation conditions, Mas was required to (1) serve a detention period of six months, with the privilege of work release from 7:00 a.m. until 5:00 p.m., Monday through Friday; (2) enroll, attend and succesfully complete a driver's education course, if this program is renewed during the probation term; (3) be a law-abiding citizen; and (4) visit his probation officer monthly or as directed. In addition, the court revoked his private driver's license for 360 days, pursuant to A.S.C.A. §22.0204, with this conviction recorded on the license, in accordance with A.S.C.A. § 22.0217.

On June 16, 1994, Mase moved for a new trial, in advance of the pronounced judgment and sentence and prematurely under A.S.C.A. § 46.2402(a). He asserted that both the court's findings of fact and [26ASR2d121] conclusions of law were erroneous in several particulars. Additionally, he declared that the court erred in not granting his motion for a mistrial when the prosecutor offered evidence of his prior driving record. The court also heard this motion on August 15, 1994, following pronouncement of the judgment and sentence, and took it under advisement. Further, in order to avoid Mase's immediate incarceration and loss of his driving privilege to his prejudice, the court postponed any commencement of Mase's sentence and probation until it issued the decision on the motion.

DISCUSSION

Mase claims that the evidence is insufficient to establish beyond a reasonable doubt the finding of fact that he failed to exercise due care, in violation of A.S.C.A. § 22.0406. Because of inconsistency with the physical evidence, he takes issue with the court's finding that he was driving his vehicle in excess of the 30-mph speed limit applicable to the area of the accident. Claiming he neither saw nor should have seen the deceased victim, Jerome Palemia ("Palemia") before Palemia started across the road, he disputes the court's findings that he was driving his vehicle inattentively to the situation at hand and not sounding his horn when necessary. He further argues that the evidence is insufficient to establish beyond a reasonable doubt the finding that Palemia would not have died but for Mase's speeding, inattention and failure to sound a warning. Rather, he characterizes the accident as a classic, dart-out situation, exonerating him of responsibility for Palemia's death. In his factual depiction, Palemia created the risk of harm, perhaps coupled with his grandfather's and mother's knowledgeable and careless failure to take action to avoid the accident.

Mase refers to the braking distance standards set forth in A.S.C.A. § 22.1109 as demonstrating that the evident skid marks at the accident scene showed his speed to be below 30 mph. However, the standards in A.S.C.A. § 22.1109 are abstract measures of brake quality. The visible length of skid marks at an actual accident scene may be affected by numerous factors other than speed. Neither party produced evidence in depth on the true factual significance of the particular skid marks at issue, and we did not, and do not, place ultimate credence on them in resolving the speed issue. Rather, we found, and still find, the eyewitness opinions as the credible evidence that Mase driving in excess of 30 mph. [26ASR2d122] Talitaga Afasene(1) was especially convincing. He was operating a bus traveling at 30 mph behind Mase and observed Mase's vehicle pulling ahead of his bus and increasing the intervening distance as both vehicles approached the accident point.

[1-3] We are unpersuaded that Mase's lack of actual knowledge of Palemia's presence is an essential factual factor to the finding of inattentiveness or failure to sound a warning. When the driver of a vehicle observes a bus stopped in a road at a three-corner intersection, and the intersecting road is located across the road to the bus driver's left, the oncoming driver is given a clear warning signal. Passengers may be embarking or disembarking and possibly about to cross the road; the driver may be preparing to turn left onto the intersecting road; or the bus may be inoperable. The approaching driver should slow down, be especially alert for pedestrians, and sound his horn. See People v. Lett, 177 P.2d 47, 48 (Cal. App. 1947). If Mase had taken these precautions, he would have reached the stopped bus when Palemia had cleared the road, halted his crossing, or was at least not in such extremely hazardous circumstances.(2) For these reasons, we stand by our original findings of fact, as well as our conclusions of law that Mase, Sagapolu and Palemia respectively violated A.S.C.A. §§ 22.0406, 22.0320(a), and 22.0401(d), and that these violations were causes in fact of Palemia's death.(3) The phrase "the proximate cause of the death" in A.S.C.A. § 22.0706 refers to the legal cause of the death, as distinguished from other causes in fact. An accused [26ASR2d123] cannot escape criminal liability for a vehicular homicide if intervening contributing conduct is foreseeable. See People v. Harris, 125 Cal. Rptr. 40, 45-46 (Cal. App. 1975). Accountability is excused only if the intervening cause supersedes the defendant's original act. See id. Indeed, American Samoa Government v. Uo , 4 A.S.R.2d 14, 18-19 (1987), cited by Mase, clearly recognizes this principle of law.

In this case, Mase ignored the plain sign of present danger ahead and failed to take proper precautionary steps. We are not dealing with a true dart-out situation. Mase should have foreseen that a pedestrian may be present and positioned for grave risk of harm. He should have slowed down, become more perceptive of possible pedestrian presence, and sounded his horn. While intervening, Palemia's conduct was not a superseding cause. Arguably, Sagapolu's stopping violation was not even intervening, but in any event it, too, was not superseding.(4) Our conclusion of law that Mase's conduct was the proximate cause of Palemia's death is valid.

On the mistrial issue, the prosecutor committed deplorable misconduct when he attempted to introduce Mase's prior driving record into evidence. This evidence was not relevant, under T.C.R.Ev. Rules 401 and 402, to any facts of consequence in this case. Even if considered remotely relevant, it would not have been admissible in the context offered to prove Mase's character or for any other legitimate purpose, under T.C.R.Ev. Rule 404(a)(1) or (b), or Rule 803(22), and would be characterized as unfairly prejudicial, under T.C.R.Ev. Rule 403. If this case had been tried before a jury, we would have granted a mistrial for the prosecutor's attempt to misguide the jury through a counterfeit token of guilt consciousness. However, the evidence was not admitted, and keenly aware of its nature, we completely put aside any thought of it in making our decision. Mase suffered no prejudice. Nevertheless, the prosecutor is admonished to stay away from such improper tactics in the future, whether he is in trial before a jury or the court.

ORDERS [26ASR2d122]

The original opinion and order is corrected and clarified by the amendments indicated herein. Mase's motion for a new trial is denied. He shall begin his sentence and probation upon entry of this order, and commence serving his detention period no later than 5:00 p.m. on the day following such entry.

It is so ordered.

*********

1. Mase pointed out that the court's opinion and order mistakenly identifies the driver of the bus in which Palemia was riding before the accident as Taliliga Afanese (correct name Talitiga Afasene). In fact, this bus driver was Iosefo Sagapolu ("Sagapolu"), Palemia's grandfather, and Afasene was operating the bus following Mase. The opinion and order will be amended by: (1) deleting "Taliliga Afasene" where this name appears and substituting "Iosefo Sagapolu" therefor; and (2) deleting "Afanese" or "Afasene" where either name appears and substituting "Sagapolu" therefor.

2. Mase would have us find that Palemia ran when he attempted to cross the road. While we are convinced that Palemia was not alert to Mase's approaching vehicle, we are persuaded by the credible evidence that Palemia walked onto the road. In either event, however, Mase failed to take the precautionary measures that would have likely prevented the loss of Palemia's life.

3. Mase faults our original analysis declaring that three proximate causes of the death were present. For purposes of applying the applicable law to the facts in this case, we did inartfully fail to distinguish between legal or proximate cause and cause in fact in this discussion. In order to clarify this discussion, we will now amend the original opinion and order by deleting the words "proximate causes" from the third line of conclusion of law No. 4 and substituting the words "causes in fact" therefor.

4. Perhaps, as Mase has asserted, Sagapolu should have sounded his horn as Mase's vehicle approached his bus, and Palemia's mother, who was also in Sagapolu's bus, could have shouted or taken some other step to warn her son of the imminent danger. However, their omissions at this juncture were also foreseeable and not superseding causes. In fact, in our view, Palemia's death would have resulted even if they had acted affirmatively. Their inactions are truly questionable causes in fact.

American Samoa Gov’ t v. Bernard,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TOLO aka ALBERT BERNARD, Defendant

High Court of American Samoa
Trial Division

CR No. 54-93

July 5, 1994

__________

[1] If evidence of past crimes speaks more to defendant's proclivity to commit crimes in general, rather than his participation in the crime at hand, it has a high probability of instigating the jury to convict because defendant "is a bad person" - an unallowable inference.

[2] The fact that this defendant is in the "general class" of those prone to commit such crimes, does not go to the modus operandi/identity of this particular defendant. Such evidence tends only to mark him as one of an undesirable, unremarkable sub-class, a distinction that would have a prejudicial effect and tend to mislead the jury.

[3] In determining whether to admit prior crimes, wrongs or acts, length of time between the prior crimes and acts and the incident at hand is another factor to be considered.

Before KRUSE, Chief Justice, and TAUANU`U, Chief Associate Judge.

Counsel: For Plaintiff, Rosemary H. Kaholokula, Assistant Attorney General
For Defendant, Barry I. Rose, Assistant Public Defender

Order on Motion to Admit Evidence of Prior Conduct:

The government seeks to admit three previous incidents from the defendant's past. These include a conviction for trespassing, a conviction for burglary/assault/attempted rape, and a "peeping" incident that involved no conviction. The government seeks to admit these acts as evidence of the defendants identity. In these matters we look to the probative worth of the offered evidence against the dangers of unfair prejudice, confusion of the issues, and misleading the jury.

[1] In the case before us, the offered evidence certainly has probative value, however, its value speaks more to defendant's proclivity to commit crimes in general, rather than his participation in the crime at hand. This speaks to defendant's character, and has a high probability of instigating the jury to convict because defendant "is a bad person" - an unallowable inference. This holds true even though the prior crimes show propensity to commit crimes of a particular class, rather than in general. See People v. Alcala, 685 P.2d 1126 (Cal. 1984).

[2] Here the government asserts that there are enough commonalities between the current charged offense and the prior acts. We disagree. The three prior incidents occurred in the Tafuna ASG Housing complex. While the latest incident occurred close to this complex, this geographical proximity is not enough to admit the evidence. Additionally, the bulk of the other similarities forwarded by the government are qualities shared by many would-be rapists. The fact that an attacker is wearing little or no clothing, at night, carrying a weapon and targeting women, is a description that does not take this defendant out of the "general class" of those prone to commit such crimes. Instead of going to the modus operandi/identity of this particular defendant, such evidence tends only to mark him as one of an undesirable, unremarkable sub-class, a distinction that would have a prejudicial effect and tend to mislead the jury. See People v. Rivera, 710 P.2d 362 (Cal. 1985).

[3] Another factor to be considered is the length of time between the prior crimes and acts and the incident at hand. Although evidence that would otherwise fall under this exception may be admitted even though it occurred some time ago, the incidents at issue here are not probative enough to overcome this barrier. See Paulson v. State, 393 N.E.2d 211 (Ind. 1979).

The government's contention that this evidence is "critical to their case" is unpersuasive. The government has the complainant's identification already ruled admissible by this court. Admitting these prior acts, that on balance are more prejudicial than probative, would serve only as cumulative evidence. [26ASR2d112]

Therefore, the motion to admit prior crimes, wrongs or acts should be denied for the reasons detailed above.

It is so ordered.

*********

American Samoa Gov’t v. Bernard,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TOLO aka ALBERT BERNARD, Defendant

High Court of American Samoa
Trial Division

CR No. 54-93

May 9, 1994

__________

[1] A one-on-one showup is inherently suggestive; however, suggestiveness of the identification process does not, by itself, merit suppression.

[2] The factors to be considered in determining the admissibility of identification testimony are the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation.

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Rosemary H. Kaholokula, Assistant Attorney General
For Defendant, Barry I. Rose, Assistant Public Defender

Order on Motion to Suppress Identification:

The defendant was identified by the complainant and her husband following a showup--an identification process where only one person is shown to the eyewitness. Defendant contends that his pre-charge identification by the complainant and her husband was undertaken in overly suggestive circumstances, and that any subsequent attempts at in-court identification by these two individuals would therefore be in violation of his rights to due process.

Contrary to proper police procedure, the complainant and her husband were taken by Officers King Talamoni and Afimuao Leota to the Tafuna Correctional Facility (TCF) for the purpose of their viewing the defendant, an inmate at the TCF. The complainant, while sitting with her husband and Officer Leota in a police vehicle outside one of the TCF cell-blocks, [26ASR2d57] identified the defendant as she observed him exiting the cell-block to cross the yard. Her husband then similarly identified the defendant as the culprit.

[1-2] A one-on-one showup is inherently suggestive; however, suggestiveness of the identification process does not, by itself, merit suppression. United States v. Hamlin, 684 F2d 380 (6th Cir. 1982). In Manson v. Braithwaite, 432 U.S. 98 (1977), the Supreme Court elaborated on the standards to be used in determining the admissibility of identification testimony. The Court put the focus of inquiry on reliability of the identification and applied the "totality of the circumstances" standard of Stoval v. Denno, 388 U.S. 393 (1967), to test reliability. In this regard, the factors to be considered are:

the opportunity of the witness to view the criminal at the time
of the crime, the witness' degree of attention, the accuracy of
his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and confrontation.

Manson, 432 U.S. at 114.

With regard to the complainant's identification, the evidence suggests that she had the opportunity to view the defendant. She testified that she struggled in the bedroom with the intruder while he attempted to hold her down with one hand on her neck and threatened a stabbing motion with the other. Although the incident happened during the hours of darkness, the complainant testified that there was sufficient light from a nearby streetlight to enable her to see the person she was struggling with that morning. While the opportunity to identify her assailant may well have been momentary and at a time of heightened anxiety, these are factors that go to weight rather than admissibility.

Additionally, the fact that the complainant implored the officers to take her to the TCF that very morning, corroborates her claim of an opportunity for positive identification. She lives near the TCF. She was determined in her request to the officers to be taken immediately to the TCF because she realized that she had seen the intruder's face before; she was certain in her own mind that the intruder was an inmate whom she had seen around the prison area.

Her recollection of having seen the intruder before also bespeaks her degree of attention. Furthermore, she had the presence of mind to race [26ASR2d58] after the intruder to the front door, after the latter had bolted from the bedroom, so that she could turn on the outside light. At the same time, the description of the intruder which she and her husband had given to the police, together with certain telltale evidence of a peculiar, but well known, modus operandi, caused at least one of the officers to suspect the defendant and relent to complainant's insistence to be taken to the TCF. At the TCF, complainant's level of certainty was demonstrated by her immediate and excited identification of the defendant. Finally, the prompt confrontation with defendant actually enhanced reliability.

Notwithstanding the suggestiveness of the procedure employed, we are satisfied that the complainant's identification of the defendant had an independently reliable origin.

As to her husband's identification of the defendant, we conclude that his identification of the defendant cannot be sustained. The complainant's husband did not have the opportunity to positively identify the defendant. The best that he had in the way of opportunity was a fleeting side-view of the intruder, although in his ensuing chase with the intruder, he was able to observe the latter's size, hair length, complexion, and clothing. In actuality, all that this witness can really attest to is that the defendant "resembled" the person he was chasing that morning. (1)

His identification of the defendant at the TCF was, we believe, based upon his wife's sense of assuredness that she had seen the intruder as the defendant walked out of the cell-block. We are affirmed in this conclusion by this witness's demonstrated inability to recognize the defendant at the preliminary examination stage. At the same time, his ineffective attempts on the stand to reconcile certain inconsistencies with his earlier testimony at the preliminary examination clearly pointed to his inability to sort out what it was that he had seen, and what it was that he had deduced.

We conclude that any in-court attempts at positive identification of the defendant by this witness would be improperly tainted by his pre-trial identification of the defendant at the TCF.

On the foregoing, the motion to suppress identification by the complainant is DENIED. The motion to suppress identification by the complainant's husband is GRANTED. [26ASR2d59]

It is so ordered.

*********

1. Although falling short of positive identification, such testimony is admissible. 29 Am. Jur.2d, Evidence § 267.

Afoa v. Taaifili,


AFOA SANERIVE for himself and on behalf of the AFOA family
of the village of Taputimu, Plaintiffs

v.

TAAIFILI MARA and TAVITA MARA and family, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 51-92

May 4, 1994

__________

[1] Even family members cannot insist on using family property without the requisite tautua to the senior matai of the family.

[2] That one matai's lands are in essence being used to render tautua to another is thoroughly repugnant to the customs and traditions of the Samoan people.

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

Counsel: For Plaintiff, Asaua Fuimaono
Defendants appearing Pro Se

Opinion and Order:

Afoa Sanerive is the senior matai of the Afoa family of Taputimu. He seeks the eviction of defendants Taaifili and Tavita Mara [26ASR2d50] from Afoa family land "Lalofau," located inland of Taputimu village.

FINDINGS

The defendants Taaifili and Tavita Mara have been planting crops on an area of Lalofau for some time now; they claim since 1976. They entered Lalofau at a time when the plaintiff Afoa was off-island on an extended absence. Afoa first found out about defendants' presence on Lalofau in 1986 after he returned to the territory. At the earlier hearing of his application for a preliminary injunction,(1) Afoa testified that after returning to the territory, he discovered that the defendants, whom he only knows as people from Western Samoa who currently reside in the village of Vailoa, had removed the various crops that he had once planted on Lalofau--cocoa, bananas, coconuts--and replanted crops of their own. Before his sojourn off-island, plaintiff was an enterprising farmer. He took great pride in his claim to have been the most-extensive cocoa planter in the area. In an earlier time he supplied the government hospital and the Van Camp cannery restaurant with bananas and other vegetables. Afoa further testified that after encountering defendants on his land he told them many times to leave; and that in his efforts to accomplish this he referred the matter to the Office of Samoan Affairs.

Despite Taaifili Mara's claim to some sort of family connection between her mother and the current Afoa's father, the latter strongly rejects any claim by Mrs. Mara to Afoa family membership. The defendants, on the other hand, have been living with and render tautua (traditional service) to the senior matai of the Te`o family of the neighboring Vailoa village. They candidly admit that they have never served the Afoa, although they acknowledge using Afoa's land to plant crops.

We find that the defendants are not members of the Afoa family of Taputimu; and that they do not serve the Afoa titleholder, although they have been using Afoa family land Lalofau for plantation purposes. (2)

CONCLUSIONS
[26ASR2d51]

[1-2] The defendants are without any rights to Lalofau. They appear to harbor the mistaken belief that a family connection with the current Afoa titleholder gives them unrestricted access to Afoa family lands in Taputimu. Indeed, even if they were Afoa family members, they could not insist on using family property without the requisite tautuato the senior matai of the Afoa family.

[A family member's] property rights . . . are 'conditional' to the
extent that they attract reciprocal obligations towards the sa`o
and family. Fairholt v. Aulava, 1 A.S.R.2d 73 (1983). Significant
among these is the obligation to tautua. Toleafoa v. Tiapula,
[7 A.S.R.2d 117 (1988), aff'd 12 A.S.R.2d 56 (1989)]. Indeed,
failure to tautua is grounds for eviction from family land. Leapaga
v. Masalosalo, [4 A.S.R. 868 (1962)]; Vaotuua Family v. Puletele,
3 A.S.R. 145 (1955).

Seventh Day Adventist Church of American Samoa v. Maneafaiga , 23 A.S.R.2d 150, 155 (Land & Titles Div. 1993) (emphasis added). That one matai's lands are in essence being used to render tautua to another is, to say the least, thoroughly repugnant to the customs and traditions of the Samoan people.

The petition for eviction and injunctive relief is, therefore, granted. The defendants Taaifili and Tavita Mara shall vacate Afoa land Lalofau within thirty (30) days hereof. Thereafter, the defendants, their children, family and household members, and all those in active concert with them, are permanently enjoined from going upon Lalofau without the prior permission of plaintiff Afoa.

It is so ordered.

*********

1. T.C.R.C.P. 65(a)(2) provides that "any evidence received upon an application for a preliminary injunction which would be admissible upon the trial upon the merits becomes part of the record in the trial and need not be repeated upon the trial."

2. In 1992, however, the court granted plaintiff's application for a preliminary injunction and accordingly enjoined the defendants from planting any new crops, although they were permitted to maintain and harvest existing crops.

26ASR2dTOC


TABLE OF CONTENTS







Afoa v. Taaifili 49

American Samoa Government v. Bernard 56

American Samoa Government v. Bernard 110

American Samoa Government v. Mase 119

American Samoa Government v. Snow 78

American Samoa Government v. South Pac. Is. Airsystems 132

Asifoa v. National Pacific Insurance Co. 23

Asifoa v. National Pacific Insurance Co. 99

ASG Employees Federal Credit Union v. Galea`i 74

ASG Employees Federal Credit Union v. Gurr 87

Estate of Malae v. Sega 136

E-C Rental Services v. Pedro 65

Fanene v. Fanene 8

Farapo v. Schuster 112

Foster v. Lutali 16

G.H.C. Reid & Co. v. American Samoan Government 139

In re Matai Title "Faumuina" 1

In re Matai Title "Lolo" 46

In re Matai Title "Te`o" 101

In re a Minor Child 105

In re Two Minor Children 117

Interocean Ships, Inc. v. Samoa Gases 28

Interocean Ships, Inc. v. Samoa Gases 95

Mamea v. American Samoa Power Authority 47

Mulitauaopele v. Togafau 52

McGuire v. Zoning Board 59

McGuire v. Zoning Board 69

McKenzie v. Tuimavave 13

McKenzie v. Tuimavave 73

Paolo v. Utu 18

Plaza Department Store, Inc. v. Duchnak 82

Plaza Department Store, Inc. v. Duchnak 106

Scalise v. Gorniak 85

Senate of the Legislature of American Samoa v. Lutali 124

Toleafoa v. American Samoa Government 20

Toleafoa v. American Samoa Government 71

Uiagalelei v. Ulufale 118