28ASR2d

28ASR2d

Ninna Marianne; Mobile Marine Ltd. v.


MOBILE MARINE LIMITED, DAVID BELL,
and PETER BRENTON, Plaintiffs

v.

NINNA MARIANNE, its fish, cargo, freight, equipment,
engines, mast, boats, anchors, cables, chains, rigging, its engines,
tackle, furniture and all other necessaries appertaining to the
vessel, Defendant in Rem, and ARNE BJORCK
and ROSE MARIE BJORCK, Defendants in Personam.

ABJORN BJORCK, Intervenor

High Court of American Samoa
Trial Division

CA No. 29-95

June 7, 1995

__________

[1] Once a stipulation is made in the course of judicial proceedings, estoppel prevents its withdrawal absent a showing of fraud or mistake. Stipulations entered into freely and fairly are not to be set aside except to prevent manifest injustice. T.C.R.C.P. 16.

[2] An order based on a material mistake of fact can be reopened and modified at the court's discretion.

[3] A maritime bond cannot exceed the total value of the vessel. T.C.R.C.P. Supp. Rule E(5)(a).

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

Counsel: For Plaintiffs, Brian M. Thompson
For Defendants and Intervenor, Togiola T.A. Tulafono

Order Releasing Vessel Upon Posting Security Bond in Increase Amount:

BACKGROUND

This order concerns defendants' motion to reconsider our decision removing Abjorn Bjork from the vessel Ninna Marianne ("vessel"), where he is captain, and requiring plaintiffs to post a $20,000.00 bond for the safe return of the vessel to New Zealand. On June 5, 1995, a hearing was held on defendants' motion with counsel for all parties present.

DISCUSSION

There are essentially two issues before the court: First, whether or not defendants are entitled to withdraw from their stipulation that New Zealand is the proper forum for this lawsuit; and second, whether our order of May 8, 1995 transferring possession of the vessel to plaintiffs, and requiring plaintiffs to post a $20,000.00 bond is valid in light of the fact that the order was not stipulated to by defendants.

At the hearing held April 12, 1995, plaintiffs and defendants stipulated to the fact that New Zealand was the proper forum for this lawsuit. Their agreement on that issue formed the basis of our order issued on April 25, 1995, which required the return of the vessel to New Zealand, but provided the parties with a seven day period in which they could agree to an arrangement of custody of the vessel and a security bond guaranteeing the safe return of the vessel to New Zealand. Defendants and Captain Bjorck, who has since intervened in this action, now wish to withdraw the stipulation.

[1] Generally, once a stipulation is made in the course of judicial proceedings, an estoppel theory prevents its withdrawal absent a showing of fraud or mistake. White v. State, 266 S.E.2d 528, 528-29 (Ga. 1980); McDonald v. Hester, 155 S.E.2d 720, 721 (Ga. 1967). According to F.R.C.P. 16 (mirrored by T.C.R.C.P. 16), stipulations entered into freely and fairly are not to be set aside except to prevent "manifest injustice." Chatzicharalambus v. Petit, 430 F. Supp. 1087, 1090 (E.D. La. 1977). Such "manifest injustice" is only present under "exceptional circumstances." Id. We find no such manifest injustice in the present case, nor is any alleged by defendants and intervenor. It would be manifestly unjust to decide the contrary. To allow a party to freely enter into a stipulation and then to withdraw it when the result is not what that party had hoped, would be manifestly unjust to the other parties. We therefore reject the attempt by defendants and intervenor to withdraw the stipulation that New Zealand is the proper forum for this action.

[2] We now turn to the issue of whether our prior order transferring possession of the vessel to plaintiffs and requiring plaintiffs to post a bond for the secure return of the vessel remains valid. On May 5, 1995, plaintiffs submitted a proposed order which, by its language, purported to be "PURSUANT to stipulation of the parties . . . ." Although a copy of the stipulation accompanied the proposed order, it was not signed by anyone representing defendants. Unfortunately, we issued the proposed order under the impression that the stipulation was agreed to by all parties, when, in fact, defendants had rejected it. (1) Since we issued the order based on a material mistake of fact, we exercise our discretion to reopen and modify the order. See Indus. Valley Bank and Trust v. Lawrence Voluck, 428 A.2d 156, 158 (Pa. 1981).

In most respects, we find the proposed order to be acceptable. Possession should be transferred to plaintiffs, because it is likely that plaintiffs would return the ship to New Zealand in light of plaintiffs' own location there. This result is legally permissible according to T.C.R.C.P. Supp. Rule D.

[I]n all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the process shall be by a warrant of arrest of the vessel, cargo, or other property . . . (emphasis added).

[3] Security may be effectuated by a bond, provided by the party designated to possess the vessel after its release, to be held by the court pursuant to T.C.R.C.P. Supp. Rule E(5)(a).

[W]henever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property released, on giving security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of the appellate division . . . (emphasis added).

When, as in this case, the parties are unable to come to an agreement as to the correct amount of the security bond, the rules provide that the court shall fix the sum.

In the event of the inability or refusal of the parties so to stipulate,
the court shall fix the principal sum of the bond or stipulation at an
amount sufficient to cover the amount of the [defendants'] (2) claim
fairly stated with accrued interests and costs; but the principal sum
shall in no event exceed (i) twice the amount of plaintiff's claim or
(ii) the value of the property on due appraisement, whichever is
smaller . . . .

Id. Defendants' counsel claims, by affidavit, that a bond in the amount of at least US$200,000 is necessary to secure defendants' interests and, at the hearing, that a bond in the amount of US $300,000 might be necessary to secure both defendants' and intervenor's interests. Testimony at the hearing further indicates that the claims by defendants and intervenor are about US$230,000 and the total present worth of the vessel may be as much as $500,000. However, the agreement between plaintiffs and defendants for sale of the vessel sets a purchase price US$185,000 at the exchange rate for the Australian dollar on the hearing date. Pursuant to T.C.R.C.P. Supp. Rule E(5)(a), the bond cannot exceed the total value of the vessel. In light of the claims of both defendants and intervenor, we find the amount of US $185,000 to be a reasonable security.

ORDER

The court hereby orders that the vessel be released from arrest upon the fulfillment of the following conditions:

1. Plaintiffs shall take possession of the vessel and provide security in the form of US$185,000 bond, to be deposited into this court's registry.

2. Bond shall be exonerated upon agreement of the parties, by order of this court, or by reference in a duly executed judgment of the courts of New Zealand.

3. Plaintiffs shall be responsible for payment of air transportation for intervenor and any other crew member wishing to leave the vessel for their return to New Zealand upon custody of the vessel transferring to plaintiffs's representatives.

4. The plaintiffs shall provide the services of a duly licensed captain for the return voyage to New Zealand.

It is so ordered.

*********

1. In light of our order giving the parties seven days to come up with their own arrangement to return the vessel to New Zealand, we expected a stipulated order. When plaintiff failed to reach agreement with the other parties, it would have made sense to take language out of his proposed order which conveyed the message that the order was stipulated to by all parties. Why plaintiff's counsel failed to take such action escapes the understanding of this court.

2. The rule uses the word "plaintiff's" claim, because in most circumstances, the secured party is a plaintiff. T.C.R.C.P. Supp. Rule D, however, permits the court to award possession of a vessel to its part owners upon giving security for its safe return. We therefore look to T.C.R.C.P. Supp. Rule E(5)(a) for guidance in fixing the bond to the amount of defendants' and intervenor's claims in the vessel.

Ninna Marianne; Mobile Marine Ltd. v.


MOBILE MARINE LIMITED, DAVID BELL, and PETER BRENTON, Plaintiffs

v.

NINNA MARIANNE, its fish, cargo, freight, equipment, engines,
masts, boats, anchors, cables, chains, rigging, its engines, furniture and
all other necessaries appertaining to the vessel, Defendant in Rem, and
ARNE BJORCK and ROSE MARIE BJORCK, Defendants in Personam

High Court of American Samoa
Trial Division

CA No. 29-95

April 25, 1995

__________

[1] Appropriate reasons to arrest a vessel include guaranteeing safe return of the vessel to the chosen forum and preventing defendants from retaining the proceeds earned by the sale of the cargo. T.C.R.C.P. Supp. Rule D.

[2] Security for a vessel may be effectuated by a bond provided by the party designated to possess the vessel after its release, to be held by the court. T.C.R.C.P. Supp. Rule E(5)(a).

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

Counsel: For Plaintiffs, Brian M. Thompson
For Defendants, Togiola T.A. Tulafono

Order Preliminary to Releasing Vessel:

BACKGROUND

This order concerns plaintiffs' motion to remove Abjorn Bjorck from the vessel Ninna Marianne ("vessel"), where he is captain. Plaintiffs allege partial ownership of the vessel and the right to share in profits earned through its use, and claim that Arne and Rose Marie Bjorck ("defendants") failed to communicate with plaintiffs while the vessel was at sea, intended to sell fish cargo for cash to deprive plaintiffs of the proceeds, and intended to take the vessel to their native Sweden rather than returning it to New Zealand. On March 7, 1995, a warrant was issued for the arrest of the vessel. On April 12, 1995, a hearing was held on plaintiffs' motion with defendants and counsel for both parties present.

DISCUSSION

[1] Both parties agreed at the hearing that New Zealand is the preferred forum to try title to the vessel. Plaintiffs' reason for arresting the vessel in American Samoa was to guarantee its safe return to New Zealand, and to prevent defendants from retaining the proceeds earned by the sale of fish cargo. According to T.C.R.C.P. Supp. Rule D, this is an appropriate reason to arrest a vessel:

. . . in all actions by one or more part owners against the others to
obtain security for the return of the vessel from any voyage
undertaken without their consent, or by one or more part owners
against the others to obtain possession of the vessel for any voyage
on giving security for its safe return, the proceeds shall be by a
warrant of arrest of the vessel, cargo, or other property . . .
(emphasis added).

[2] The object of this preliminary order is to assist the parties in obtaining security for the safe return of the vessel to New Zealand where the ship is registered. Security may be effectuated by a bond, provided by the party designated to possess the vessel after its release, to be held by the court pursuant to T.C.R.C.P. Supp. Rule E(5)(a):

. . . whenever process of maritime attachment and garnishment or
process in rem is issued the execution of such process shall be stayed,
or the property released, on giving security, to be approved by the
court or clerk, or by stipulation of the parties, conditioned to answer
the judgment of the court or of the appellate division. The parties may
stipulate the amount and nature of such security. In the event of the
inability or refusal of the parties to so stipulate the court shall fix the
principal sum of the bond . . . (emphasis added).

Accordingly, the parties have seven days from the entry of this order to stipulate who shall have care and custody of the vessel during its return to New Zealand, and what bond the custodial party shall post. This bond shall be for the purpose of securing the interest of the non-custodial party. Such stipulation shall be filed with the clerk and accompanied by a proposed order to release the vessel. If they do not provide such stipulation and proposed order within the seven-day period, this court will fix the sum of the bond as permitted by the foregoing rule, and will adjudicate which party shall have custody of the vessel on its return to New Zealand. If the parties agree that the plaintiffs are to take possession of the vessel for the voyage to New Zealand, this court will require that plaintiffs provide a licensed captain for the voyage. The vessel shall remain arrested until we enter an order releasing it.

It is so ordered.

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Registrar of Vital Statistics; Porter v.


ROBERT PAUL PORTER and FAALELEIGA PORTER, Petitioners

v.

REGISTRAR OF VITAL STATISTICS, Respondent

High Court of American Samoa
Trial Division

CA No. 88-95

August 22, 1995

__________

[1] The standard for issuing the alternative writ of mandamus is that the petitioner must make out a prima facie case for granting the peremptory writ.

[2] The petitioner will fail the second prong of the test for issuing an alternative writ of mandamus unless he/she establishes that the duty of respondent is purely "ministerial." A duty is ministerial only if it is clearly proscribed and does not involve an exercise of judgment or discretion.

Before KRUSE, Chief Justice

Counsel: For Petitioners, Charles V. Ala`ilima

Order Denying Petition for Writ of Mandamus:

This matter concerns the adoption of three American Samoan children in the Courts of Western Samoa, by a couple who are citizens and residents of New Zealand. The children currently face the possibility of being deported from New Zealand, because New Zealand immigration authorities insist that the children present birth certificates certifying that the children's adoptive parents are the lawful parents. The Registrar of Vital Statistics has declined to issue amended birth certificates. Consequently, the birth mother of all of the adopted children, along with her husband, petition this court for an extraordinary writ to compel the Registrar of Vital Statistics to issue amended birth certificates certifying that the adoptive parents are the lawful parents.

[1] The standard for issuing the alternative writ of mandamus is that the petitioner must make out a prima facie case for granting the peremptory writ. Black v. State Personnel Board, 289 P.2d 863, 866 (Cal. 1955); see also Bair v. Mayor, 221 A.2d 643, 646 (Md. 1966). The standard for granting the peremptory writ of mandamus, as set forth in T.C.R.C.P. 90, is interpreted by this court as follows:

The extraordinary writ of mandamus will not be issued unless:
(1) the plaintiff has a plain right to have the act performed;
(2) the defendant has a plain duty to perform it; and
(3) there is no other adequate remedy available to the plaintiff.

Mulitauaopele v. Maiava, 24 A.S.R.2d 97, 98 (Trial Div. 1993). (1)

[2] The petitioner will fail the second prong of this test unless he/she establishes that the duty of respondent is purely "ministerial." Id. A duty is ministerial only if it is clearly proscribed and does not involve an exercise of judgment or discretion. Cf. Thomas v. Vinson, 153 F.2d 636, 638 (D.C. Cir. 1946); Bryant & Chapman v. Lowell, 27 A.2d 637, 639 (Conn. 1942). In the present matter, the petitioners simply cannot demonstrate the existence of a "plain right," to compel the action sought of the Registrar, nor the existence of a "plain duty," on the Registrar to amend the birth registry pursuant to a foreign decree of adoption. (2) Petitioners' cite to In Re Puailoa, 13 A.S.R.2d 22 (Trial Div. 1989), for the proposition that American Samoa should accept adoption decrees from Western Samoa as a matter of comity, is misplaced. In Puailoa, we actually declined to require the registration of a foreign adoption decree in American Samoa and refused to give a "blanket declaration to the effect that Western Samoan adoption decrees ought to be given full faith and credit in American Samoa." Id. at 24. Whether comity principles will prevail "is dependent on wide ranging local policy considerations," including whether the foreign proceeding comports with our notions of due process. Id at 24. These are clearly issues involving judgment and discretion.

Since there is no clear and non-discretionary duty for the Registrar of Vital Statistics to register the adoption decrees of foreign nations, a writ of mandamus will not issue and the petition is, therefore, denied.

It is so ordered.

*********

1. Citing Gifford Pinchot Alliance v. Butruille, 742 F. Supp. 1077, 1082-83 (D. Ore. 1990); see Siofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988);Beckless v. Heckler, 622 F. Supp. 715, 720 (N.D. Ill. 1985) (citing Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); City of New York v. Heckler, 742 F.2d 729 (2d Cir. 1984), aff'd sub nom. Bowen v. City of New York, 476 U.S. 467 (1986)).

2. Cf. A.S.C.A. § 45.0424(b). This enactment clearly imposes a non-discretionary, ministerial duty on the Registrar of Vital Statistics to amend the birth registry pursuant to a decree of Adoption of the District Court of American Samoa.

Tuia'ana; Seva'aetasi v.


ROBERT T. SEVA`AETASI and UILIATA
MOEAI, Plaintiffs

v.

MOI TUIA`ANA and FA`ATALATALA T.
MAUA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 08-95

April 27, 1995

__________

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

Counsel: For Plaintiffs, Charles V. Ala`ilima
For Moi Tuia`ana, pro se

Order Denying Motion for Preliminary Injunction:

Plaintiffs seek a preliminary injunction against the defendants to enjoin their further construction on a certain area within land known as "Tafeta." (1) Plaintiffs additionally seek to enjoin the defendants from issuing any further building permits on the said land pending final disposition of this matter.

The source of the dispute seems to be a proposed extension to an existing home belonging to the daughter of defendant Fa`atalatala Maua, whose presence on the disputed site is claimed by plaintiff Robert T. Seva`aetasi as having been through his father Tago R. Seva`aetasi. The proposed extension is the subject of a separation agreement executed by defendant Tuia`ana Moi, who claims the land on behalf of the Magalei/Tuia`ana families of Faleniu. Plaintiff Tago, on the other hand, claims that his father owns the disputed area of Tafeta under one of two alternative theories: (1) adverse possession; or, (2) a "customary grant" from the Chiefs of Faleniu to his father and his descendants.

DISCUSSION

In these matters, we are guided by A.S.C.A. § 43.1401(j), which sets out the requirement of "sufficient grounds" for the issuance of a preliminary injunction. These requirements are:

(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and

(2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.

On the first of these grounds, we find against the movant. This case seems to be yet another attempt on behalf of Tago Seva`aetasi to assert his ownership claim to a part of Tafeta, which this court has previously denied on at least two occasions. In Magalei v. Tago, 3 A.S.R. 185 (Land & Titles Div. 1955), the court rejected Tago Seva`aetasi's claim to ownership on his theory of adverse possession. Likewise in Magalei v. Atualevao, 19 A.S.R.2d 86 (Land & Titles Div. 1991), the court also rejected Tago's claim based on a 1957 deed purportedly given by two of Faleniu's matai. Therefore, plaintiffs appear to have immediately apparent problems with the doctrines of res judicata and collateral estoppel. See e.g. Taulaga M. v. Patea S., 4 A.S.R.2d 186 (Land & Titles Div. 1987); Sialega v. Taito, 5 A.S.R.2d 99 (Land & Titles Div. 1987).

On the second issue of irreparable injury, we find that none has been established by plaintiff. The extension to an existing home is hardly irreparable harm. Indeed, the equities weigh in the other direction. Tuia`ana testified that the purpose behind the separation agreement at issue was to facilitate financing for the extension work. Thus, the homeowner will incur harm in terms of her financial obligations if her remodeling plans are placed on hold pending final disposition. By comparison, the harm to plaintiff proposed by the extension is negligible, if any, as the land in question will not drastically change in nature as a result of the proposed construction. According to the plaintiffs' exhibits attached to their pleadings, the disputed area is already encumbered by a number of other structures. Thus, an extension to an existing structure will not amount to anything radically new in the way of use to the land, as proposed by the homeowner's enlargement of her home. The only other conceivable harm to plaintiff is perhaps the indignity of having his pule questioned; but this is an issue before the court, neither tantamount to irreversible prejudice nor sufficient to tilt the balance of equities in plaintiffs' favor. Gaoa v. Tulifua, 13 A.S.R.2d 30, 32 (Land & Titles Div. 1989).

Finally, the owner of the home in question, according to the testimony of Tuia`ana, is plaintiff Fa`atalatala Maua's daughter, who is not even before the court.

We conclude insufficient grounds for issuance of a preliminary injunction, in accordance with A.S.C.A. § 43.1401(j), and, therefore, deny the application. Motion denied.

It is so ordered.

*********

1. Tafeta is a large land area located behind Faleniu and Pava`ia`i, and extending inland toward Aoloaufou and Aasufou. A cursory look at the casebooks will reveal that Tafeta has been the subject of endless litigation not only among the Chiefs of Faleniu themselves but also between the Chiefs of Faleniu and others.

Tauileva; Moetoto v.


ANN MOETOTO, LOGOITINOMATAGILELEI ALAMA,
HUGO R. GEBAUER, SR. and JANE MAY GEBAUER, Plaintiffs

v.

SAVUSA TAUILEVA and SAMOA CONSTRUCTION
COMPANY LIMITED, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 21-95

July 20, 1995

__________

[1] To become valid, a lease of native land must be approved by the Governor. A.S.C.A. § 37.0221(a). Before the Governor approves any document affecting title to land, it must be reviewed by the Land Commission for recommendations. A.S.C.A. § 37.0203(a).

[2] Courts will not grant declaratory judgments until administrative remedies have been exhausted unless such administrative remedies are inadequate.

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

Counsel: For Plaintiffs Logoitinomatagilelei Alama, Hugo R. Gebauer, Sr., and Jane May Gebauer, Katopau T. Ainuu
For Plaintiffs Ann Moetoto and Logoitinomatagilelei Alama, Charles V. Ala`ilima

Order Remanding Matter to the Land Commission:

This matter concerns two leases for the same piece of property. The facts relevant to the dispute, as can be gleaned from the pleadings and exhibits on file, are as follows: On July 22, 1963, Savusa Tului ("Tului") entered into a 30 year agreement with Samoa Construction Company ("SCC") for the lease of communal land belonging to the Savusa family of Nu`uuli. The two conflicting leases both purport to take effect at the conclusion of this 1963 lease. On March 13, 1978, Savusa Ropati ("Ropati") Tului's successor, entered a lease agreement for the same land with Hugo R. Gebauer, Sr. and Jane May Gebauer ("the Gebauer lease"), which allegedly took effect upon the expiration of the original lease. The original lease allegedly expired on either June 30 or July 1, 1993.

It seems that neither Tului nor Ropati was, at any time, the registered holder of the Savusa title. Savusa Tauileva ("Tauileva"), on the other hand, has apparently been the registered titleholder of the Savusa name since 1974. On June 30, 1993, Tauileva entered into a lease agreement with SCC ("the SCC lease") for the relevant property, and subsequently attempted to register it with the Territorial Registrar. The plaintiffs objected to the offer for registration and the lease was then referred to the Land Commission pursuant to A.S.C.A. § 37.0203. In turn the Land Commission referred the matter to Samoan Affairs for mediation. Samoan Affairs, unable to resolve the dispute, referred the parties to the High Court.

Plaintiffs Logoitinomatagilelei Alama, a descendant of Tului, and the Gebauers, through counsel Ainuu, seek declaratory relief to adjudicate the validity of the Gebauer lease. At the same time, Alama and another descendant of Tului, plaintiff Ann Moetoto, through counsel Ala`ilima, move to dismiss so much of this action as it may relate to their rights affected by the attempted lease to SCC, on the grounds that SCC lease was properly before the Land Commission.

DISCUSSION

[1] According to A.S.C.A. § 1101, a declaratory judgment may not issue unless there is a "case[] of actual controversy relating to the legal rights and duties of the respective parties." In the present case, the plaintiffs have no actual case in controversy unless the Governor approves the SCC lease, which has not yet occurred, and may never occur. To become valid, a lease of native land must be approved by the Governor. A.S.C.A. § 37.0221(a). Before the Governor approves any document affecting title to land, it must be reviewed by the Land Commission for recommendations. A.S.C.A. § 37.0203(a). Accordingly, the Governor may properly consider the recommendation and findings of the Land Commission and make a decision regarding the validity of the two leases in question.

[2] Courts are traditionally loath to interfere prematurely with administrative proceedings and generally will not grant declaratory judgments until administrative remedies have been exhausted, unless such administrative remedies are inadequate. Public Utilities Comm. v. United States, 355 U.S. 534, 539-40 (1958). In Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431-434 (1947), the Supreme Court held that there was no actual case in controversy where no party was immediately injured by the regulation which was claimed to be invalid, sufficient to warrant interference in the administrative proceeding. At the same time, we do not find that plaintiffs are injured by the SCC lease which plaintiffs claim is invalid, sufficient to warrant our intervention in the deliberations of the Land Commission or the Governor.

American Samoa has a statutory method of judicial appeal from the final decision of an administrative body, which provides that, "A preliminary, procedural or intermediate agency action or ruling shall be immediately reviewable only if review of the final agency decision would not provide an adequate remedy." A.S.C.A. § 4.1040(c). There is no indication in this case that review of the Land Commission's recommendation and ultimately the Governor's decision in this case would be inadequate. (1) Under the provisions of A.S.C.A. § 4.1025(a), all interested parties to a "contested case" are entitled to be heard by the Land Commission. After the plaintiffs have "exhausted all administrative remedies," they may appeal the "final decision" of the agency to the High Court, and in a proper case, either the Governor or the High Court may order the Governor's decision stayed, pending the outcome of the court action, if appropriate. A.S.C.A. § 4.1041(b).

For reasons given, we remand this matter to the Land Commission.

It is so ordered.

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1. For purposes of the statute, the Governor qualifies as an "agency." A.S.C.A. § 4.1001(a).

United Congregational Christian Church of the South Bay in Samoa v. McMoore,


UNITED CONGREGATIONAL CHRISTIAN CHURCH
OF THE SOUTH BAY IN SAMOA, and UNITED CONGREGATIONAL
CHURCH OF THE SOUTH BAY, LOS ANGELES,
Plaintiffs/Counter-defendants

v.

SESE McMOORE, RAYMOND McMOORE and
DOES 1 through 10, Defendants/Counter-claimants

High Court of American Samoa
Trial Division

CA No. 13-92

September 6, 1995

__________

[1] Money lending is not within the ambit of the gaming statute's proviso exempting gaming for religious, educational, or charitable purpose. A.S.C.A. §  46.4301-02.

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

Counsel: For Plaintiffs/Counter-defendants, Afoa Moega Lutu
For Defendants/Counter-claimants, Togiola T.A. Tulafono

Decision and Order:

Plaintiffs/Counter-defendants, United Congregational Christian Church in South Bay in Samoa (hereafter "UCCC Samoa") and United Congregational Christian Church of the South Bay, Los Angeles (hereafter "UCCC LA") seek to enjoin defendants, Sese and Raymond McMoore (hereafter collectively referred to as the "McMoores"), from entry onto a certain four acre parcel of individually owned land known as Soata (hereafter "Soata") located in the Tafuna plains. The McMoores have in turn counter-claimed for compensatory damages, alleging that they had made loans to plaintiffs over the years to repay UCCC Samoa's $120,000 loan with Amerika Samoa Bank, and for security services they claim to have rendered in connection with Soata over a number of years. For reasons given herein, we grant plaintiffs' petition for injunctive relief and deny the McMoore's counter-claim for damages.

The UCCC LA is a congregational church established some twenty years ago in Carson City, Los Angeles, by various Samoan residents of that area. In its temporal affairs, the UCCC LA prospered in its bingo fund raising activities (Myron Thompson, a former Secretary of the UCCC LA, testified that the church was the foremost bingo operator in Carson City) and consequently looked to purchasing land in American Samoa. On June 16, 1982, it paid High Talking Chief Pagofie Sasa`e the sum of $100,000 for Soata, as evidence by Pagofie's Warranty Deed of the same date recorded with the Territorial Registrar in Volume IV, Transfers at pages 244-45.

With the land purchase in American Samoa, certain officials of the UCCC LA began working on a grand scheme to build a $3 million plus structure on Soata, to be known as the "Samoana Conventional Center." The main planning goal behind the structure was a facility to generate local revenue, largely through bingo games, to fund different church related projects. (1) To this end, UCCC LA sought and secured toward the end of 1985 the appropriate government land use permit for the project, with work beginning shortly thereafter. Then president of the UCCC LA, John Thompson, moved to American Samoa bringing with him Frank Onys, the UCCC LA's mainland contractor, to undertake construction of the convention center. Thompson apparently thought it desirable to incorporate a separate local entity, affiliated with the local Congregational Christian Church in American Samoa, to hold church property and undertake the UCCC LA's activities in the territory. Accordingly, a charter was sought, and one was issued on July 10, 1986, for the UCCC Samoa. Additionally, a separate entity, structured for profit, known as "Samoana, Inc." was also incorporated to handle the church's local business affairs.

On July 26, 1986, a document styled "Deed Transfer" was executed by John Thompson as President of the UCCC LA, (2) and witnessed by Myron Thompson as "Board Secretary," to convey Soata to "the United Samoan Congregational Christian Church of Samoa in the village of Tafuna, American Samoa." (3)

After securing a mainland loan for construction of the Soata project, the UCCC LA shipped equipment and a large quantity of construction material to the territory. The initial construction work, however, also utilized a credit facility with the Amerika Samoa Bank, taken out by John Thompson on behalf of UCCC Samoa. This debt totalled $120,000, which was later converted to a term loan. It was not clear on the evidence just how much money was obtained from the off-island loan; however, it was a substantial amount and not all of loan proceeds found their way to the construction project in Samoa. As events turned out, the ongoing expenses at Soata and the repayment of the Amerika Samoa Bank loan were being financed through locally operated bingo games.

In setting up its local bingo operation, the UCCC LA imported its more sophisticated bingo paraphernalia from Carson City, as well as a number of its seasoned bingo employees. The local operation soon elevated "occasional" church bingo to new heights in the territory. (4) In July 1986, the UCCC LA began running "regular" gaming activities several days each week, first at Fatuo`aiga and then at the VA Club premises. The bingo games were held out under the sponsorship of the "Samoana Fellowship," the same name by which the UCCC LA's bingo operation was known by in Carson. The bingo revenue was handled exclusively at the outset by John Thompson, who also opened up an Amerika Samoa Bank checking account with Onys and himself as the account signatories.

Defendant Raymond McMoore's (hereafter "Raymond") involvement with the UCCC LA's local activities arose through his relationship with John Thompson, who was also his maternal uncle. Although not a member of the UCCC LA, Raymond assisted his uncle with the Soata project from the outset, and he was consequently put on the payroll at $5.00 an hour. His range of duties was general in nature, involving both the construction project and the bingo games.

In mid 1987, Mr John Thompson returned to the mainland because of medical problems and never returned to the territory. He passed away in Los Angeles in December 1988. In Thompson's absence, Raymond assumed supervision of the bingo operation and the handling of its revenue, including the making of deposits, while Onys continued with the construction at Soata, and also the signing of checks on the local account. The work, however, effectively came to a halt when the project was about 30 percent complete. According to Onys, the construction had reached a stage where it could not go forward without certain needed material, while at the same time he was informed by Raymond that bingo revenues were becoming barely sufficient to cover operating expenses.

In October, 1988, Onys returned to the mainland. With his departure, the Soata project not only came to a standstill but eventually went to waste, and so continues to this very day. Completed work as well as a substantial quantity of building material and equipment left on the site either became dilapidated or disappeared over time.

From our assessment of the evidence, a principle reason for the stagnant state of affairs with Soata was an ensuing power struggle which arose among UCCC LA officials following the demise of John Thompson, in December 1988, and the immediately succeeding death of UCCC LA's longstanding minister, Rev. Malaki Tauiliili, in the month of January, 1989. In Carson City, the dispute came to a head with the filing of cross-lawsuits in the Superior Court of California for the County of Los Angeles. These suits resulted in the Superior Court's issuance of permanent injunction on January 6, 1993, enjoining Myron Thompson (who is also the son of the late John Thompson) and others from, among other things, further holding themselves out as UCCC LA representatives authorized to deal with UCCC LA property, including a bank account with the Amerika Samoa Bank.

In American Samoa, several attempts by UCCC LA officials to enter Soata, beginning early in 1990, were actively resisted by Raymond, who confronted these delegations with demands for large sums of money. On one such occasion, Raymond had people posted on the land, including a few who just happened to be working in and around the area with bush knives, with instructions to keep everybody out. In the interim Raymond, then assisted by his wife Sese McMoore (hereafter "Sese"), undertook the bingo games for their own purposes. (5)

The McMoores' resistance to plaintiffs' attempts to take possession of Soata brought about the matter now before us.

The McMoores assert some vague entitlement claim to possession of Soata until they are paid their claim for monies loaned to UCCC LA. They simply contend that this was their agreement with John Thompson. We see no basis for the McMoores' possessory claims. Their retention of Soata and interference with plaintiffs' attempts to go upon the land is tantamount to actionable trespass. (6) Among their affirmative defenses to plaintiffs' claim for injunctive relief, the McMoores attempt to assail plaintiff UCCC LA's entitlement to take possession of Soata, citing non-compliance with the territory's native land alienation laws, A.S.C.A. § 37.0201 et seq. This, however, is nothing but a sham defense, since it does absolutely nothing to advance defendants' position in the slightest manner. As between the parties, and notwithstanding the Native Land Alienation statute, plaintiffs' payment of $100,000 to High Talking Chief Pagofie constitutes at least one hundred thousand more reasons than the McMoores have to lay superior possessory claims to Soata. In short, the McMoores can provide no basis whatsoever to set up an adverse possessory claim to Soata. Their relief, if any, lies in damages and, therefore, plaintiffs' petition for injunctive relief should be granted.

We turn to the McMoores' counter-claim for damages. The basis of this claim is an alleged oral promise made by John Thompson to Raymond over the telephone. According to Raymond, after failure of the church's bingo, John Thompson had requested him to engage Sese's bingo to repay the Amerika Samoa Bank loan. Raymond claims that John Thompson had further promised that the McMoores would be reimbursed for such payments on the loan. In support of Raymond's claim, his cousin Myron Thompson testified that he was privy to the telephone conversation between his father and Raymond.

On our review of the evidence, we find that the bingo operation subsequently undertaken jointly by the McMoores, the proceeds of which were used to pay the Amerika Samoa Bank loan, was in essence a continuation of the very same bingo operation started by UCCC LA. Sese's questionable "flag day" bingo operation, (7) simply merged with the UCCC LA's "Samoana Fellowship" bingo, the label long used and promoted by the UCCC LA both off-island as well as on-island. Insolvency of the UCCC LA's gaming operation, as claimed by Raymond, proved to be of Raymond's own doing. On the one hand, he failed to provide any accounting to anybody except, as he claims, to his deceased uncle; on the other hand, the sampling of bank deposit slips for the UCCC Samoa's checking account, furnished by the McMoores upon the plaintiffs' discovery requests, reveal that Raymond simply stopped depositing the UCCC LA's bingo cash receipts and only banked the checks received.

[1] The bingo games, on the other hand, when run as a McMoores' venture, subsequently became profitable enough to maintain current loan payments with Amerika Samoa Bank. At the same time, we are satisfied that the bingo's association with the UCCC LA continued to provide the appearance of legitimacy to the continuing gaming operation. We have difficulty reconciling the gaming statute, A.S.C.A. § 46.4302 et seq., with the McMoores' bingo "operator" status. Furthermore, even if Sese's bingo could, for the sake of argument, be viewed as a legitimate exception to the gaming prohibition, she has failed to convince us that a legitimate "religious, educational, or charitable purpose," within contemplation of the gaming statute's proviso, includes "loan-making." Money lending is quite clearly not within the ambit of the gaming statute's proviso. See A.S.C.A. §§ 46.4301-02. Finally, we attach no weight to Raymond's self serving claim of an oral contract with John Thompson, nor to the corroborative attempt by his cousin Myron Thompson. We find their credibility questionable and their motives suspect. They were thwarted earlier in their attempt to cash an insurance check on-island in the amount of $41,919.38, being the proceeds of a life insurance policy taken out by the UCCC LA on the life of Rev. Tauiliili, payable to UCCC LA as beneficiary. Both Raymond and Myron appear to have difficultly accepting the fact that their once dominant family influence on the temporal and business affairs of plaintiffs, both in Los Angeles and in American Samoa, ended with the demise of John Thompson and the immediately ensuing election of substitute officials of the UCCC LA and UCCC Samoa. Indeed, in what seems to have been an after-thought, the theory first emerged on the witness stand (tendered as a basis for a possession claim by the defendants) that the UCCC Samoa was comprised exclusively of the Thompsons, the McMoores, and even perhaps attorney Albert Mailo, who was involved with incorporating UCCC Samoa. We see no basis in fact nor in law for this remarkable claim. We conclude that the Amerika Samoa Bank loan was in actuality discharged by plaintiffs' bingo revenue receipts, and not by the McMoores individually.

Similarly, we are also satisfied on the evidence that the expenses with regard to the night watchman who was initially on the premises after Onys' departure, was met with Samoana Fellowship bingo revenues. We find the McMoores' subsequent claimed security services, for which compensation is sought, to be utterly without merit. Soata went to waste; it was not looked after, and a principal reason for the near total waste and substantial loss of property evident at the site was Raymond's efforts in blocking plaintiffs' access to Soata in the first place. If anything, damages would seem to more appropriately lie against the McMoores.

On the foregoing, it is the judgment of the court that the defendants Raymond and Sese McMoore, their agents, employees, representatives, and all persons acting in concert with them, are hereby permanently enjoined from going upon the land Soata, and/or from interfering in any manner whatsoever, whether directly or indirectly, with plaintiffs' possession of Soata. Further, it is also the judgment of the court that the defendants take nothing on their counter-claim for damages.

It is so ordered.

*********

1. Cf. A.S.C.A. § 37.0204(b) ("It is prohibited to alienate any lands except freehold lands to any person who has less than half native blood. . . .") and § 37.0204(d) ("This section does not prohibit the conveyance and transfer of native land . . . to an authorized, recognized religious society, of sufficient land for the erection thereon of a church or dwelling house for the pastor of both. . . .").

2. While the instrument recites the "bylaws" as the source of John Thompson's presidential authority to alienate the UCCC LA's real property, the current bylaws invest that authority in the Board of Trustees, subject to ratification by two-thirds of the church's membership. See Bylaws of UCCC LA, Art. IV, § 4(a).

3. Although not explained on the evidence, the instrument was only offered for registration with the Territorial Registrar on February 1, 1990, some four years after its execution.

4. Except for the "occasional" bingo game or raffle for religious, educational, or charitable purposes, it is a criminal offense in the territory to engage in gambling. See A.S.C.A. §§ 46.4301-4302. Notwithstanding, the UCCC LA also introduced at least one gaming novelty, beyond the lawfully exempted "raffle" or "bingo" game, known as "pull tabs," a chance game that mirrors the operating principle of the Las Vegas slot machine.

5. Sese had previously been involved with bingo games sponsored by the Office of Samoan Affairs to raise funds for the annual Flag Day celebrations. This "flag day" bingo activity of Sese's continued indefinitely beyond Flag Day to include bingo games in the name of different church groups.

6. Plaintiffs, however, do not seek damages.

7. In light of the gaming statute, A.S.C.A. §§ 46.4301-02, and its rather limited proviso, the evidence in this case points incredulously to a nascent and self-regulating gaming industry on-island involving operators principally set up for that purpose. There does not seem to be anything "occasional" about bingo games, nor does there appear to be much regard to the proscription against the keeping of gaming equipment, employees, and premises for gaming activity. The evidence before us alluded to gambling activity where cash transactions appeared to be the norm, even in the compensation of employees, with doubtful accounting. In terms of receipt splits between the operator and a particular church for whom the bingo is held out, Sese testified that she started off conducting bingos for different churches, initially under her "flag day" bingo license, under an arrangement whereby the church would take a part of the receipts, while allowing her to do what she wished with the remainder. Raymond additionally testified that Samoana Fellowship has now progressed to undertaking bingo games in its own stead, thereby exercising discretion in the distribution of the bingo profits, in order to make it "fair" for everyone. It would seem that the bingo operator is now defining the level between what is expense and what is profit, for purposes of the gaming statute.

Lutu v. Ale,


AFOA L. SU`ESU`E LUTU, Petitioner

v.

SAVALI TALAVOU ALE, Speaker of the House of Representatives, 
and SAVALI SAVALI, JR., Legislative Financial Officer, Respondents

High Court of American Samoa
Trial Division

CA No. 25-95

May 19, 1995

__________

[1] The extraordinary writ of mandamus will not be issued unless: (1) the plaintiff has a plain right to have the act performed; (2) the defendant has a plain duty to perform it; and (3) there is no other adequate remedy available to the plaintiff.

[2] The language of A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the "plain duty" and "plain right" required for the issuance of a writ of mandamus.

[3] A Legislator has the right to request work from the Legislative Financial Officer, and the Legislative Financial Officer may not disclose the request or the resulting information to anyone else before the Legislator making the request has an opportunity to review the resulting work product.

[4] An individual Legislator has the authority of the entire Legislature for purposes of gathering information from the Legislative Financial Officer.

[5] The House rule requiring that the Speaker review materials prepared by the Legislative Financial Officer before their submission to the Legislator requesting the work offends the plain language of the statute and exceeds the constitutional power of a single house to make rules of procedure for itself, and is therefore invalid insofar as it purports to countermand statutory mandate.

[6] A constitutionally authorized rule of procedure loses its procedural character when it determines the status of substantive legal rights.

[7] The office of the Speaker is an agency of government within the meaning of A.S.C.A. §  2.0602, and the Speaker therefore has a plain duty to cooperate with the Legislative Financial Officer by opening records to the Legislative Financial Officer within normal working hours and times.

[8] The writ of mandamus is meant to provide a remedy for a plaintiff only if the plaintiff has exhausted all other avenues of relief, and if the defendant owes the plaintiff a clear, indisputable, and non-discretionary duty.

[9] A writ of mandamus will not issue to enforce rights which are common to everyone and enjoyed by the public at large.

[10] A record is a public record if it is required to be kept by law, or is kept in furtherance of some other duty required by law, or which is meant to serve as a memorial of something done by a person in his/her capacity as a public official.

[11] The right to review public records is not absolute. The law requires that the interests of the individual seeking the record be weighed against the public interest in confidentiality.

[12] Private individuals cannot assert priority over public officials in the use of public documents for purposes such as auditing.

[13] Where a record contains some private information, mingled with public information, mandamus may compel an official to allow supervised copying of the public portions of the record while omitting the private.

[14] A duty to disclose information exists when: (1) the information is public record; and (2) petitioner's interest in the information outweighs any public interest in preventing disclosure of the information; or (3) the Constitution or a statute requires disclosure.

[15] Where the right to view a public record is established, mandamus may compel disclosure of the record by whomever is preventing such disclosure.

[16] A writ of mandamus may not compel the reversal of a decision of a legislative leader, exercising the proper discretion of his legislative capacity, but where the required act of a legislative leader is purely ministerial, mandamus may lie to compel it.

[17] A declaratory judgment is a judgment that calls for a broad adjudication of rights other than those on which the immediate relief is dependent. A judgment is not declaratory if it declares no more than is necessary to sustain the immediate relief prayed for.

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

Counsel: For Petitioner, Marshall Ashley
For Respondents, Aitofele T. Sunia

Opinion and Order on Petition for Writ of Mandamus:

This case concerns the right of a Legislator in his legislative capacity, or in his capacity as a private citizen, to obtain information regarding the financial affairs of the Legislative body in which he serves.

HISTORY

Representative Afoa L. Su`esu`e Lutu ("Petitioner") brought this action seeking a writ of mandamus to compel Savali Talavou Ale, Speaker of the American Samoa House of Representatives ("the Speaker") and Savali Savali, Jr., Legislative Financial Officer ("LFO") to allow Petitioner to review and receive copies of House expenditures and overruns for the year 1994. This court action followed a series of verbal and written communications by Petitioner, addressed to both respondents, requesting "a breakdown of the 1994 House expenditures." In a letter dated February 17, 1995, the LFO indicated that the Speaker had not yet given his approval, and that the LFO did not have authority to release the information without such approval. At the hearing held April 19, 1995, Petitioner indicated his desire to inspect House records concerning travel authorization, hiring and termination of employees, and other personnel records and expenses.

STANDARD OF REVIEW

[1] The standard for granting the peremptory writ of mandamus, as set forth in T.C.R.C.P. 90, is interpreted by the High Court as follows:

The extraordinary writ of mandamus will not be issued unless: (1) the plaintiff has a plain right to have the act performed; (2) the defendant has a plain duty to perform it; and (3) there is no other adequate remedy available to the plaintiff.

Mulitauaopele v. Maiava, 24 A.S.R.2d 97, 98 (Trial Div. 1993) (citing Gifford Pinchot Alliance v. Butruille, 742 F. Supp. 1077, 1082-83 (D. Ore. 1990); see Siofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988); Beckless v. Heckler, 622 F. Supp. 715, 720 (N.D. Ill. 1985) (citing Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); City of New York v. Heckler, 742 F.2d 729 (2d Cir. 1984), aff'd sub nom. Bowen v. City of New York, 476 U.S. 467 (1986))).

DISCUSSION

Petitioner claims authority to examine the relevant documents based on his status as a Legislator and on the theory that the documents are public records.

I. Petitioner's Right as a Legislator

Petitioner claims a special right to review the requested documents, arising from his status as a member of the American Samoa House of Representatives pursuant to A.S.C.A. § 10.0603, which states: "Except as otherwise limited by law, the Legislature shall have full authority and control the request, approval, and disbursement of funds in its budget. The Legislature shall be fully responsible for maintaining proper record-keeping and management over the expenditure of funds."

Petitioner claims that the duties of the Legislature also belong to him as one of its members, and that he is unable to adequately perform those duties without access to relevant information. This analysis begs the question of whether either Petitioner or the Speaker is "the Legislature" within the meaning of the foregoing language.

[2] The Revised Constitution of American Samoa, art. II § 1 provides the most plain definition of "Legislature" available, stating: "There shall be a Legislature which shall consist of a Senate and House of Representatives." Accordingly, neither Petitioner nor the Speaker is "the Legislature" within the meaning of A.S.C.A. § 10.0603, and it is doubtful whether Petitioner is justified in bootstrapping himself individually to the rights and responsibilities of the Legislature as a whole. The language of the statute itself suggests the intention of giving the Legislature control over its own budget instead of having its budget managed by an agency within the executive branch. We conclude that the language of A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the "plain duty" and "plain right" required for the issuance of a writ of mandamus. This conclusion, however, does not end the argument.

[3] Petitioner further claims the right to review the relevant documents pursuant to A.S.C.A. § 2.0601(b), which gives direction to the LFO regarding how information is to be distributed: "Unless otherwise directed by a Legislator making [a] request for information, the request and the resulting work product shall first be submitted to the Legislator who requested it before it is distributed" (emphasis added). Petitioner contends that the foregoing language entitles him to receive the information he requests before it is distributed to anyone else, including the Speaker. The question of who receives information first does not directly resolve the question of what information is accessible to Petitioner in the first place, but the foregoing statute does clearly imply that an individual "Legislator" has the right to make a "request for information" to review the resulting work product.

[4] In turn, the LFO has very broad authority to gather the requested information pursuant to A.S.C.A. § 2.0602. This enactment provides:

The agencies of the government shall cooperate with the Legislative 
Financial Officer in order that he may carry out the investigations, 
studies, analyses, and reports so directed to him by the Legislature, 
by opening their records to the officer during normal working hours 
and times (emphasis added).

Reading the foregoing language together with A.S.C.A. § 2.0601(b), an individual Legislator seems to have the authority of the entire Legislature for purposes of gathering information through LFO. The words "directed to him by the Legislature" cannot mean that a majority in both houses of the Fono must approve work requests for LFO, since individual Legislators have the right to make confidential work requests, and to review the results of such requests prior to their distribution to others. It would be similarly absurd to read the foregoing statute as requiring approval from the Speaker for the same reason. This contention is strengthened by the language of A.S.C.A. § 2.0601(a) which reads, in relevant part:

There is created a Legislative Financial Office. The Head of the Office is the Legislative Financial Officer, who is appointed by the President of the Senate and the Speaker of the House and compensated by the Legislature. The office is directly responsible to the Legislature . . . .

In drafting the foregoing language, the Fono had the opportunity to make the LFO directly responsible to the President of the Senate ("the President") and to the Speaker. Instead of doing so, the Fono placed language in the statute making the office "directly responsible to the Legislature" immediately following its instruction that LFO be "appointed" by the President and the Speaker. This language indicates that, despite being appointed by Fono leaders, the LFO is "directly responsible to the Legislature," rather than being indirectly responsible to it via the leadership.

[5] The Speaker contends that House Rule I § 11(C) permits him to refuse requests for House documents, and to prevent LFO from releasing information concerning the House. The rule reads, in relevant part:

All requests for information or documents from the House must be 
referred to the Speaker's office for approval. . . . The Legislative 
Financial Office may not release any information concerning the 
House without prior approval of the Speaker.

Each house in the Legislature has the constitutional right to "determine its rules of procedure." Rev. Const. Am. Samoa, art. II § 11. The LFO, however, is not a committee of the House of Representatives nor in any other way a part of that House. The LFO is responsible to the Legislature, not to rules enacted through one house only. A House rule using language that "The Legislative Financial Office may not . . ." exceeds the constitutional power of a single house to make rules of procedure for itself. Furthermore, regardless of whether the requested information concerns the House, A.S.C.A. § 2.0601(b) requires that ". . . the request and the resulting work product shall first be submitted to the Legislator who requested it before it is distributed." The House rule requiring that the Speaker review materials prepared by LFO before their submission to the Legislator requesting the work offends the plain language of the statute, and is therefore invalid insofar as it purports to countermand statutory mandate.

[6] The rule that "[a]ll requests for information or documents from the House must be referred to the Speaker's office for approval," is perhaps an acceptable procedural rule, but it cannot be used by the Speaker to circumvent codified law and displace substantive rights. A constitutionally authorized rule of "procedure" loses its procedural character when it determines the status of substantive legal rights. (1) In this case, House Rule I § 11(C) was used to defeat A.S.C.A. § 2.0602, which reads:

The agencies of the government shall cooperate with the Legislative Financial Officer in order that he may carry out the investigations, studies, analyses, and reports so directed to him by the Legislature, by opening their records to the officer during normal working hours and times.

In other words, when the LFO presents an agency of government with a request, no approval is necessary. The agency is legally required to cooperate during normal working hours and times.

This analysis, however, begs the question of whether or not the House of Representatives, or perhaps the Speaker's office, is considered an "agency" within the meaning of the statute. In the narrow sense of the word, "agency" probably means an organization within the executive branch. We think that a broader definition is appropriate in this case. The chapter creating LFO is preceded by a chapter creating the Legislative Reference Bureau with the language, "There is, as an agency within the Legislature, a legislative reference bureau for the use of the members of the Legislature." A.S.C.A. § 2.0501 (emphasis added). The common sense meaning of A.S.C.A. § 2.0602 is that "agencies of government" include organs of government within all three branches, including "an agency within the Legislature" such as the Legislative Reference Bureau, the House of Representatives itself, or the office of the Speaker.

[7] We find that the office of the Speaker is an "agency" within the meaning of A.S.C.A. § 2.0602, and therefore the Speaker has a plain duty to cooperate with LFO by opening his records to LFO within normal working hours and times. LFO in turn has a plain duty to make its work product available to the Legislator requesting it, prior to distributing it to anyone else, including the Speaker. Accompanying these duties the Legislator has a plain right pursuant to A.S.C.A. § 2.0601(b) to request information from the LFO, and to review the work product before it is distributed to anyone else.

II. Petitioner's Right as a Private Citizen

[8] The writ of mandamus is meant to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief, and if the defendant owes him a clear, indisputable, and non-discretionary duty.

A. Individual Right or Held in Common with the Public?

Petitioner claims a right to the sought information because it is public record. This argument gives rise to the question of whether petitioner impermissibly seeks to enforce a right which he holds in common with the public.

The Supreme Court of Maine granted a writ of mandamus in Robbins v. Bangor Ry., 62 A. 136, 139 (Me. 1905), holding that each and every building owner had an individual right to utility service at a reasonable rate, and that this right was individual, and not held in common with the public. The Robbins court further explained that the petition may not be granted to enforce rights which are common to everyone and enjoyed by the public at large.

A similar issue arose in Mellinger v. Khun, 130 A.2d 154 (Pa. 1957). In that case, the appellant was incensed at receiving a citation after the parking meter adjoining his vehicle had expired, when he saw that a lunch wagon parked in the same lot for 39 hours continuously had not been cited. Id. at 155. The appellant sought a writ of mandamus to compel prosecution of the owner of the lunch wagon. The Mellinger court held that the benefit of open parking spaces (protected by the enforcement of time limitations) was a right which appellant held in common with the public at large and not an individual right which he was entitled to enforce on a particular occasion. The petition was therefore denied.

[9] The question arises whether Petitioner's petition is closer to the Robbins case, where petitioner's "personal and particular rights have been invaded beyond those that he enjoys as part of the public, and that are common to everyone," Robbins, 62 A. at 139, or whether it is closer to the facts in Mellinger, where the petitioner sought to enforce the rights of the public in general. We find the facts closer to Robbins.

Public policy may be in place to make it more likely that one can find a parking space, but a writ of mandamus may not compel that the policy be enforced whenever a particular individual is frustrated at being unable to find a space on any given occasion. A parking space is not an individual guarantee. One may compel a utility to deliver service because, unlike a parking space, he/she has an individual right to that service.

If the information Petitioner seeks is public record, it may be argued that each and every member of the public has an individual right to review it, subject to the balancing principle discussed below, just as every building owner has an individual right to utility service in Robbins.(2)

B. Financial Reports of the Legislature Public Record

[10] Any record which is required by law to be kept, or is kept in furtherance of some other duty required by law, or which is meant to serve as a memorial of something done by a person in his/her capacity as a public official, is a public record. Nero v. Hyland, 386 A.2d 846, 851 (N.J. 1978); Mathews v. Pyle, 251 P.2d 893, 895 (Ariz. 1952). It is arguable that an "official record" is one kept pursuant to the official duty of a particular officer, even if not specifically mandated by statute. Fargnolli v. Cianci, 397 A.2d 68, 76 n. 9 (R.I. 1979).

A.S.C.A. 10.0603 states:

Except as otherwise limited by law, the Legislature shall have full 
authority and control the request, approval, and disbursement of 
funds in its budget. The Legislature shall be fully responsible for 
maintaining proper record-keeping and management over the 
expenditure of funds (emphasis added).

The foregoing language is an explicit requirement that the Fono keep the records requested by Petitioner. Since the Fono is required by law to keep financial records, such information is "public record." (3)

C. The Effect of Public Record Status

[11] Under the common law of access to public documents, the right to review public records is not absolute. Nero,386 A.2d at 851. The law requires that the interests of the individual seeking the record be weighed against the public interest in confidentiality. Nero, 386 A.2d at 851-52. This balancing principle is very important in this proceeding, since mandamus requires that the petitioner's right to the relief be clear and indisputable. Mulitauaopele, 24 A.S.R.2d at 99. This standard therefore requires that the balance of interests be so clearly in Petitioner's favor as to be beyond dispute.

[12] The Speaker contends that he initially withheld the requested information from Petitioner because the Inspector General of the U.S. Department of the Interior ("IG") was preparing to audit the Fono, and would need the records for that purpose. Private individuals cannot assert priority over public officials in the use of public documents for purposes such as auditing. Bruce v. Gregory, 423 P.2d 193, 197 (Cal. 1967). In the present case, however, the audit is now complete and the Speaker persists in his refusal to release the information prior to the issuance of the IG's report, on the ground that he wishes to prevent public misinformation about the contents of the records. The Speaker declines to decide whether he is willing to release the records after the IG's report is issued. We find the Speaker's argument to be wanting in merit. While we readily acknowledge that the public has an interest in receiving accurate information, it is positively dangerous to allow high ranking government officials to act as the supreme umpires of truth by arbitrarily withholding information regarding the expenditure of public funds.

[13] A second consideration which the Speaker asks the court to weigh against Petitioner's right to view the records is that personnel records contain social security numbers, birth dates, and other personal data. Where a record contains some private information, mingled with public information, mandamus may compel an official to allow supervised copying of the public portions of the record while omitting the private. Gleaves v. Terry, 25 S.E. 552, 553-554 (Va. 1896). Accordingly, this argument is not conclusive in the Speaker's favor.

III. The Respondent's Duty to Disclose the Information

A. Does the Duty Exist? Who Performs it?

[14] A duty to disclose the information exists if: (1) the information is public record; and (2) Petitioner's interest in the information outweighs any public interest in preventing disclosure of the information; or (3) the Constitution or statute is read to require disclosure.

Having established the existence of the duty, the question remains as to whom the duty is upon. The duty to distribute information to Legislators is upon the LFO pursuant to A.S.C.A. § 2.0601(b). In turn, the Speaker has a duty to disclose information requested by the LFO pursuant to A.S.C.A. § 2.0602.

[15] Where the right to view a public record is established, mandamus may compel disclosure of the record by whomever is preventing such disclosure. Ex Parte Uppercu, 239 U.S. 435, 440 (1915).

B. Is the Duty Ministerial?

[16] A writ of mandamus may not compel the reversal of a decision of a legislative leader, exercising the proper discretion of his legislative capacity. State v. Bolte, 52 S.W. 262 (Mo. 1899) (court refused to grant the writ where presiding officer of senate refused to sign a bill certifying its passage, after he ruled that it lacked a constitutional majority). Where the required act of a legislative leader is purely ministerial mandamus may lie to compel it. Kavanaugh v. Chandler, 72 S.W.2d 1003, 1005 (Ky. 1934) (writ should issue where Constitution directed president of the senate to sign a bill under specified conditions, and he failed to do so in the presence of such conditions); State v. Osburn, 147 S.W.2d 1065, 1068 (Mo. 1941) (Speaker of the House did not have discretion to refuse to declare the presumptively correct result of an election, even where there was a potentially valid dispute and protest to be filed). A duty is purely ministerial when it is mandatory and the officer has no discretion in the matter. Id. It is abuse of judicial discretion to direct performance of an action when an officer's duty requires the exercise of discretion. Cartwright v. Sharpe, 162 N.W.2d 5 (Wis. 1968). The same rule applies to legislative clerks regarding management of legislative records. Stewart v. Wilson Printing, 99 So. 92, 95 (Al. 1924).

The Speaker has discretion to subject the right to inspect public documents to reasonable rules and regulations. Bruce,423 P.2d at 199. The speaker clearly has no discretion to refuse to cooperate with LFO; nor to deny a request for public documents in his custody, absent a legitimate public interest in confidentiality which outweighs the individual's right to inspect the documents. The Speaker's duty to allow inspection of public documents by Petitioner in accordance with common law, and by the LFO as a matter of statutory law, is therefore ministerial.

C. Separation of Powers

Any action by the judicial branch of government to compel action by a legislative leader must be undertaken with pause and reflection in order to prevent judicial encroachment into legislative affairs. The cloak of immunity shielding the legislative branch of government from judicial intervention does not, however, extend to duties of a purely ministerial character. State v. Osburn, 147 S.W.2d 1065, 1070 (Mo. 1941).

In Clough v. Curtis, 134 U.S. 361 (1890), the United States Supreme Court considered whether a writ of mandamus should issue to compel the Secretary of the Territory of Idaho to release and amend documents purporting to be the record of proceedings of the territorial legislature. According to the plaintiffs, several members of the Territorial Legislature remained in chambers after the session had adjourned one evening, elected a Speaker of the House and a President of the Council, and passed 17 bills. Id. at 574. All of these proceedings were duly recorded by the Clerk of the House and transmitted to the Secretary of the Territory. Id. at 574.

A unanimous court held that it was not necessary to correct the record, or to decide whether the relevant body was a lawful legislative assembly. The Court found that judicial intervention into legislative record-keeping would violate separation of powers principles where there was no actual suit pending to adjudicate the rights of private parties which hinged upon the questionable legislation. Id. at 577.

Although the present case is arguably analogous and that issuance of the writ would amount to meddling in legislative record-keeping, there are some important differences. First, Petitioner is not asking that the records be modified, only that he be allowed to examine them. Second, the present matter does call for an adjudication of rights, since Petitioner is attempting to adjudicate an individual right to view the documents, and not merely to settle a legal question about the powers of the Speaker. Furthermore, the old English rule that a person's right to examine public records is contingent upon the prospective use of those records in a legal proceeding, has been replaced by the balancing test which weighs the interest of the individual in seeing the records against the interest of the community in keeping them confidential. Nero, 386 A.2d at 851-52.

IV. Other Avenues of Relief

House Rule VI § 1 provides, "Any ruling by the Chair may be appealed to the entire membership and overruled by a majority of the members elected and serving." At first glance, this rule may seem to provide a means of appealing the Speaker's decisions regarding the distribution of financial information. On further reflection the rule appears to be a means of appealing a committee chair's rulings or rulings by the Speaker regarding matters of parliamentary procedure and conducting legislative business, not a means of enforcing the Speaker's ministerial duties. Furthermore, evidence at the hearing seemed to indicate that efforts to compel the Speaker to release the records were somehow blocked by the Speaker's silence.

[17] The question has also been raised whether declaratory relief is an adequate alternative remedy. American Samoa's declaratory relief statute, set forth in A.S.C.A. § 43.1101, reads in relevant part:

Any person . . . who desires a declaration of his rights or duties 
with respect to another . . . may, in cases of actual controversy 
relating to the legal rights and duties of the respective parties, 
bring an action in the trial division of the High Court for a 
declaration of his rights and duties . . . . The court may make a 
binding declaration of such rights or duties, whether or not further 
relief is or could be claimed at the time. The declaration may be 
either affirmative or negative in form and effect, and such 
declaration shall have the force of a final judgment.

Accordingly, this court could potentially make a formal declaration of Petitioner's rights and Respondents' duties relative to those rights instead of issuing a writ of mandamus. The Second Circuit, lead by the venerable Judge Learned Hand, held that all judgments are in a sense, "declaratory" of the rights of the litigants, but a "declaratory judgment" in the legal sense is a judgment that calls for a broad "adjudication of rights other than those on which the immediate relief is dependent." Corcoran v. Royal Dev., 121 F.2d 957, 958-59 (2d Cir. 1941). A judgment is not "declaratory" if it declares no more than is necessary to sustain the immediate relief prayed for. Id. As Respondents' concede, a declaratory judgment in this case would have the same effect as a writ of mandamus, in compelling the Speaker and the LFO to release House financial records. Petitioner does not ask for a declaration of his rights beyond what is necessary to decide this particular cause of action. Therefore a declaratory judgment is not an available remedy. Furthermore, a judicial declaration as to the powers of the Speaker without regard to underlying private rights affected by those powers, would surely be tantamount to judicial intervention repugnant to the separation of powers doctrine. See Clough v. Curtis, 134 U.S. 361 (1890).

CONCLUSIONS

The Petitioner has a right to gain information regarding the financial affairs of the House of Representatives through the LFO, and the Speaker has a duty to cooperate with the LFO in its investigation. The Petitioner has a right to have his request for information and resulting work product kept confidential until he has reviewed the work product.

House of Representatives financial records are public record documents, and Petitioner has a common law right to review them since his interest in viewing them is not outweighed by a public policy interest in their confidentiality. If private information such as social security numbers and birth dates appear within these documents, the Speaker has the right to demand that the inspection be supervised to see that such private information is not copied.

ORDER

On the foregoing, Mandamus shall issue directed to respondents, commanding:

1) the Speaker and his office to provide the LFO with a "breakdown of information concerning the 1994 House budget expenditures," as originally requested by Petitioner if such a breakdown exists. If a breakdown of expenditures does not exist, the Speaker and his office must make such information available as will be required for the LFO to create such a breakdown;

2) the LFO to present the results of its investigation to Petitioner within a reasonable time, not to exceed thirty (30) days, unless otherwise extended by the court; and,

3) the Speaker and his office to allow Petitioner to examine and copy any existing "breakdown of information" concerning House expenditures for 1994. (4) The Speaker may, if he chooses, require that the review be supervised in order to secure the integrity of the House's records and to prevent the copying of confidential personal data of House personnel such as birth dates and social security numbers, or to see that such information is blocked out on the copies.

It is so ordered.

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1. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. United States v. Ballin, 144 U.S. 5 (1892); see by analogy 28 U.S.C.A. § 2072 ("Such [procedural] rules shall not abridge, enlarge, or modify any substantive right . . . .").

2. This position was rejected in Nowack v. Fuller, 219 N.W. 749, 751 (Mich. 1928):

[I]n the instant case, the plaintiff as a citizen and taxpayer has a common-law right to inspect the public records in the auditor general's office, to determine if the public money is being properly expended. It is a right which belongs to his citizenship. It is a right which he holds in common with all other citizens, a public right, which can be enforced only by mandamus proceedings brought by the Attorney General. It is not and never has been the policy of the law to permit private individuals to the use of the writ of mandamus against public officers, except in cases where they had some special interest not possessed by the citizens generally.

(Citations omitted.) The Nowack Court, however, granted the writ to a private citizen, based on a "special interest" arising from facts very similar to those in the present case:

The plaintiff has not sought to enforce his rights through the office of the Attorney General. He has begun this suit in his own name. In order to maintain it, he must show that he has a special interest, not possessed by the citizens generally. Apart from his public interest, his petition shows that he has been hampered and injured in his business by the refusal of defendant to allow him to inspect the records in his office. Is it a sufficient interest to entitle him to the aid of the court by this writ of mandamus? We think so. He is the manager and editor of a newspaper. It is published and circulated in Michigan. He sells news to the people through the medium of his paper. In a proper and lawful manner, he has a right to publish matters of public interest. The citizens and taxpayers of this state are interested in knowing whether the public business is being properly managed. By denying him access to the public records for the purpose of securing such information, he is deprived of legal rights for which he is entitled to redress by the writ of mandamus.

Id. at 451-52. Certainly, if publishing a newspaper to inform citizens regarding "public business" creates a "special interest" enforceable by a writ of mandamus, serving as a Representative and performing "public business" must also be a "special interest."

3. Legislative journals are public record. Amos v. Moseley, 77 So. 619, 621 (Fla. 1917).

4. In Petitioner's letters to the Speaker and to the LFO he requests a "breakdown of information concerning the 1994 House budget expenditures," which seemed to indicate that he desired an accounting of expenses. At the hearing, Petitioner surprised the Speaker by asking for travel and expense receipts, personnel records and other such documents not specifically demanded prior to the hearing. Frankly, we are not entirely sure that we understand the particulars of Petitioner's request. Since the Speaker has not had an opportunity to respond to these requests, they are not properly the subject of judicial inquiry at this time. If Petitioner wishes to pursue a request for such documents, he should request them from the Speaker with sufficient specificity that the Speaker knows precisely what information is being requested.

Leiataua; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

THERESA FANUAEA GURR LEIATAUA, Defendant

High Court of American Samoa
Trial Division

CR No. 9-94
CR No. 44-94

September 18, 1995

__________

[1] In a criminal case involving fraud on a bank, the government has the burden to show that the defendant acted with the intent to injure or defraud the bank.

[2] Intent to injure or defraud a bank exists when the defendant acts knowingly and the natural result of this conduct would be to injure or defraud the bank, regardless of motive. It is not required that the bank suffer a loss or injury, since the intent of the law is to protect the bank's right to make its own decisions regarding the use of its funds. Furthermore, there exists an inherently fraudulent nature to bank loans made by officers for their own benefit.

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendant, Afoa L. Su`esu`e Lutu

Opinion and Order:

In this criminal prosecution, plaintiff American Samoa Government ("ASG") charged defendant Theresa Fanuaea Gurr Leiataua ("Leiataua") with two counts of larceny or fraud, in violation of A.S.C.A. § 28.0111. These acts were allegedly committed from September to October 1992, and in January 1993, when Leiataua was an officer of the Development Bank of American Samoa ("DBAS"). The lengthy bench trial commenced on May 23 and concluded on June 5, 1995. Leiataua and counsel for both parties were present throughout the trial. The court, having heard testimony and considered the evidence, and pursuant to T.C.R.Cr.P. 23(c), makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Leiataua was employed as the Vice President for Loans at DBAS in July 1988. In January 1993, in accordance with A.S.C.A. § 28.0103(b), Leiataua was appointed President of DBAS by the Governor of American Samoa and confirmed by the Senate. Prior to her employment by DBAS, she worked for the American Savings and Loan in California for about 13 years, including experience as an assistant branch manager for several years and as a branch manager for the final two years, 1985-1987.

DBAS makes direct home loans, whereby it pays the invoices submitted by the suppliers of the building materials and the contractors performing the construction. DBAS further guarantees the payment of direct home loans made in this manner for residential construction by the local commercial banks, either the Amerika Samoa Bank ("ASB") or the Bank of Hawaii ("BOH").

On December 27, 1990, while Leiataua was still the Vice President for Loans, she submitted a request to DBAS for a direct loan of $75,000 for the construction of a residence on the Gurr family's land in the area known as Maloata on the north shore near the western end of Tutuila Island, American Samoa. This amount is the maximum for both direct home loans and guaranteed home loans under DBAS' loan policies.

Leiataua's loan file at DBAS contains a letter, dated June 12, 1991, to Leiataua, stating that on March 27, 1991, DBAS' Board of Directors had approved her "application for a guaranteed home loan," subject to providing adequate security by a mortgage of the land and residence and to obtaining credit approval by either ASB or BOH. This form letter calls for Leiataua's signature as the Vice President for Loans and, perhaps for that reason, is unsigned either by her or anyone else.

More importantly, the minutes in evidence of DBAS's Lending Committee and Board of Directors for 1991 do not show any action taken by either body on Leiataua's loan application. Both sets of DBAS's bylaws in effect during this period require the Lending Committee to examine loan applications, make recommendations to the Board for action on the applications, and require the Board to examine and record in minutes the action it takes on all loan applications.

Leiataua claims that during May through July 1991, the Board imposed a freeze on disbursing funds for direct home loans, but the minutes in evidence of the Board for 1991 do not record that the Board either imposed or lifted any freeze on such disbursements. In any event, for that or some other reason, Leiataua decided to apply for a separate direct home loan of $75,000 from ASB. She submitted this application on July 15, 1991, more than six months after her loan application to DBAS. ASB's Lending Committee approved the loan in this amount on July 24, 1991, with terms at 11.5% interest per annum and 120 monthly installment payments of $1,054.46.

On the following day, July 25, 1991, Leiataua signed a "Master Note for Multiple Advances" with ASB in the principal amount not to exceed $75,000, maturing on January 21, 1992, and end-of-month interest payments at the rate of 11.5% per annum on the unpaid balance of the amounts advanced. (1)

Inexplicably under the evidence, an ASB real estate lending officer then permitted Leiataua to draw down the entire loan amount within seven weeks, without any underlying invoices or other documentation of actual construction expenses for the house.

On July 25, 1991, Leiataua was allowed to draw $61,190 from the ASB loan, of which $1,190 was used to pay the loan fee and attorney's fee and the remaining $60,000 went directly by cashier's check to Leiataua. (2)This same day, Leiataua endorsed the $60,000 check and gave it for safekeeping to her brother Bernard Gurr ("B. Gurr"), who was then the chief executive officer of the American Samoa Government Employees Federal Credit Union ("ASGEFCU"). B. Gurr deposited the check proceeds in a share account in his name at ASGEFCU and withdrew $2,000 from the account for Leiataua's immediate use and was to hold the $58,000 balance for her. That night, she departed American Samoa on a trip to Los Angeles.

Apparently Leiataua gave the $2,000 to a cousin in California to purchase furniture. Despite telling H.G. Flores ("Flores"), Executive Vice President of ASB, in a February 4, 1992, meeting, that during this trip, she purchased building materials for her house and stored them with her brother, she actually merely priced the materials. She also told Flores that the two $500 draws were also used to purchase materials, and that the last draw was used for interest payments during the construction phase of the loan, shipment of building materials to American Samoa, and land grading. She further told him that the grading was not yet completed, because only one operator would take the needed heavy duty equipment to her remote village, but in actuality his equipment had broken down and then was still in disrepair.

Meanwhile, B. Gurr, instead of safeguarding Leiataua's loan funds, rapidly depleted the $58,000 to his personal ends. By September 30, 1991, just two months after receipt of the funds, he had spent the entire amount, except for a $148.86 share dividend credited to the account on that date. On October 31, 1991, he withdrew this meager remaining amount, leaving the account with a zero balance.

Leiataua deposited the proceeds of the remaining three cashier's checks in her personal checking account at BOH. These funds were commingled with funds from her paychecks and other sources. She spent some of these funds on loan payments to ASB, and for furniture and cabinets for her house, but most of these funds were spent on personal transactions unrelated to the construction of her house, and none of the funds were spent on building materials. By February 13, 1992, the balance in this personal account was reduced to $156.94.

On October 23, 1991, Leiataua submitted an application to ASG's Development Planning Office ("DPO") for a land use and building permit for her proposed residence. (3)

DPO issued the permit on November 1, 1991, but the original was never entered into evidence. Despite the issuance of the permit, no residence or other structure has been constructed on the site. The work done was limited to excavating an access road from the main road and some site clearing and grading. On July 9, 1993, DPO inspectors noted that the site has since become revegetated. Leiataua cites the 1991 DPO permit's fourth condition as the reason for the lack of further construction. This condition, which appears in DPO's official copies, postponed construction for two years after leveling the site. (4)

In January 1992, Leiataua resolved to order the building materials and enlisted the assistance of her brother Peter Gurr ("P. Gurr"). She explained that despite the construction delay condition, and her mother's reluctance, she was still hopeful that with the concurrence of her brothers and sister, she could persuade her mother to allow construction of her residence elsewhere on the family's land at Maloata.

At her request, B. Gurr provided $50,000. (5)

Cloaked with his chief executive officer's position, B. Gurr either directly or in some manner indirectly used the ASGEFCU savings account of Lisona Leiataua, Leiataua's husband, to fund this purpose. (6) In addition, P. Gurr contributed $40,000, $25,000 for Leiataua's order due to loans she had previously made to him and $15,000 for his own order. He obtained these funds from an insurance settlement paid for storm damages occurring during Hurricane Val in December 1991.

Recruiting Jack Yamaguchi, a stateside friend of P. Gurr, an order for building materials, totaling $85,141.89, including freight and other charges, was processed by a Washington state supplier on or about February 26, 1992. The materials were consigned to T & T, Inc. ("T & T"), to the attention of P. Gurr, who was then this company's general manager. They arrived in American Samoa on April 14, 1992, and upon payment of the import excise tax by T & T, were released to P. Gurr on or about April 24, 1992.

P. Gurr stored Leiataua's materials at T & T's premises and took his materials elsewhere. Later, due to Leiataua's inability to proceed with construction of her residence, the decision was made to sell her materials before they deteriorated and in light of the demand for them created by Hurricane Val. Most, if not all of these materials were sold by the end of February 1993 to several local building materials suppliers and some buyers who passed by T & T's premises. Specifically, Tasi Asuega, T & T's principal owner and a Gurr relative, stated that he bought a large amount, paying about $10,000 in cash and still owing about $20,000, which he intended to pay by allowing Leiataua to use his heavy equipment when she started construction. (7)

On June 7, 1993, Leiataua told DBAS' auditors that prior to ASB's contacts with her in July 1992 concerning her loan with ASB, she sold the materials purchased off-island back to suppliers before they rotted and deposited the proceeds in a six-month certificate of deposit. On the same day, however, she told the attendees at DBAS' Executive Committee meeting that she sold the materials to local suppliers, at a profit, and the funds were deposited in a savings account at the American Savings and Loan in Buena Park, California. In actuality, Leiataua received little, if any, of the sales proceeds.

On February 6, 1992, Flores, in his capacity as Vice President of ASB, and concerned about the absence of construction or building materials, and lack of insurance covering loss of the materials, advised Leiataua in writing that ASB required her: (1) to provide an insurance policy of at least $63,000 covering loss of the materials she had purchased for the residence, naming ASB as the loss payee, and to state the exact location of the materials; and (2) to open a savings account at ASB in the minimum amount of $30,356.18, representing the $11,862.18 loan advance she received on September 12, 1991, plus $18,494, the difference between the loan amount and total estimated construction cost. The funds were to be transferred immediately from an existing savings account or later when an existing certificate of deposit matured, if she advised ASB of that maturity date.

Leiataua disclaimed receipt of this letter, even though it was correctly addressed. In any event, she admits to receipt of a later letter, dated July 21, 1992, in which Flores notified Leiataua that she had not complied with the February 6, 1992, directions and was also delinquent in her loan payments, and had until August 6, 1992, to comply with the requests and bring her loan payments current. Leiataua, in response to receipt of this notice, contacted Flores and told him that her loan payments to ASB were current through July 1992. (8) 

In September 1992, Flores once more notified Leiataua that the loan was still in default, but she again refuted the delinquency. Frustrated by ASB's stance, Leiataua decided to free herself from this loan. Other factors, however, were surely involved. Her residence was not constructed or under construction. Her land use and building permit would expire on October 31, 1992, and perhaps, in any event, she was stalled from construction by government officialdom until November 1, 1993. More important still, she did not have any building materials. Thus, she could not comply with ASB's demand to know the location and be insured against loss of the materials, and she realized that her good standing with ASB was in serious jeopardy and coming to an end. However, she was without immediate means to repay ASB. She did not have in savings or elsewhere sufficient proceeds, if any at all, from her brother P. Gurr's sale of any building materials she may have purchased in early 1992. She knew that she had spent a substantial portion of the ASB loan proceeds on items unassociated with construction of her proposed residence. Most important, she knew that she had insufficient funds at ASGEFCU to buy out her ASB loan. She either knew that her brother B. Gurr had embezzled most of her ASB loan proceeds, or at the very least she truly believed that these purchase funds came from her ASB loan proceeds still in B. Gurr's hands for safekeeping. She could also obtain more advantageous loan terms from DBAS--a term of 20 years, with 11% interest and monthly payments of approximately $774, compared to 10 years, with 11.5% interest and monthly payments of approximately $1,054 under her ASB loan.

Shortly after her contact with Flores in September 1992 regarding the status of her ASB loan, Leiataua asked Manu Meredith ("Meredith"), who was then DBAS's President, to approve and direct purchase of her ASB loan by DBAS. Apparently, on the strength of the loan approval letter of June 12, 1991, or his knowledge or belief that by then that Leiataua's application for a direct DBAS loan had been properly approved, Meredith sent written directions on September 30, 1992, to DBAS's legal secretary for preparation of the documents needed to purchase Leiataua's loan from ASB.

DBAS's personnel completed the purchase of the ASB loan on October 2, 1992, as Meredith had instructed, for a purchase price of $72,308.95. Leiataua signed an installment note in the principal amount of $75,000 and a payroll deduction authorization, both dated October 2, 1992, a mortgage of the land and improvements as collateral, dated December 21, 1992, and various other related documents.(9)

DBAS's purchase of the ASB loan is questionable because Leiataua did not submit an application specifically for the loan purchase and a large amount of time had elapsed since her earlier 1991 application. Meredith either ignored the lapse of time because the apparent loan approval of Leiataua's earlier 1990 loan application or did not consider it necessary to update the customary support documentation. (10) Also, neither DBAS's Lending Committee nor Board of Directors reviewed and approved the loan purchase. (11) The 1991 loan approval, assuming it was actually granted, was for a different purpose, a guaranteed home loan, and was inherently flawed, as the application was for a direct home loan and the unsigned record of the approval was for a guaranteed home loan.

On January 22, 1993, Bernadette Fruean ("Fruean"), a loan interviewer and processor at DBAS, prepared a check to reimburse Leiataua in the amount of the remaining balance of Leiataua's loan from DBAS. One of Fruean's duties is to prepare checks in payment of invoices issued for materials and labor provided to DBAS's direct home loan borrowers. Fruean found a disbursement record in Leiataua's loan file showing the undisbursed balance to be $2,691.05 and prepared the check in the amount of the balance, even though she did not have a supporting invoice.

On the same day, Leiataua and another authorized official of DBAS signed the check, as was necessary to negotiate the check, and Leiataua endorsed and deposited the proceeds of the check in an account at ASB, which she apparently maintained despite her dissatisfaction with ASB's management.

On January 26, 1993, Fruean obtained from Makisi's Home Improvement Center, with the help of a friend employed there, a so-called "pro-forma invoice--quotation only" for Leiataua's purchase of building materials. The amount of this invoice, $2,701.45, exceeded the loan balance which was disbursed by the January 22, 1993, check. The invoice form was designed to permit customers to obtain advances from their home construction loans and would be replaced by a payment receipt when the customer made actual payment and took delivery of the materials. However, at some point during this transaction, someone noted "Paid Cash" on this pro-forma invoice and enabled its use in back-up support of loan balance disbursement. Although Makisi's did not in fact sell or deliver materials to Leiataua, the pro-forma invoice was used for this purpose.

Contradicting Fruean's testimony, Leiataua denied instigating either the loan balance check or false invoice, or participating in the latter in any manner. Fruean was not a strong witness. She was hesitant and uncertain at times, made partially inconsistent prior statements, and may have committed some acts which bring her truthfulness into question. On this basis, we will give Leiataua the benefit of any doubts. She may not have initiated either of these transactions. However, she admitted that the same legal secretary who prepared the loan purchase documents asked her if she wanted to be reimbursed for the amount of the loan balance, and that she did not purchase any materials justifying reimbursement. Unquestionably, Leiataua signed the loan balance check and received the proceeds and knew that the false invoice was used to support the disbursement. This disbursement is on the same footing as the purchase of the loan from ASB.

CONCLUSIONS OF LAW

Appropriate to this case, the elements of the offense charged in CR No. 44-94 are:

1. on or about September and October 1992,
2. in American Samoa,
3. the defendant,
4. then an officer of DBAS,
5. with intent to injure or defraud DBAS, or any other person,
6. embezzled or misapplied moneys or funds of DBAS, to wit: disbursement of DBAS's funds, without proper authorization, to purchase her direct construction loan from ASB.

The elements of the offense charged in CR No. 9-94 are:

1. on or about January 1993,
2. in American Samoa,
3. the defendant,
4. then an officer of DBAS,
5. with intent to injure or defraud DBAS, 
6. embezzled or misapplied moneys or funds of DBAS, to wit: disbursement of DBAS's funds, without proper authorization, as a reimbursement to her, or made a false entry in DBAS's records or performed another fraudulent act, to wit: use of a false invoice for the purchase of building materials.

Indisputably, as to both charges, ASG has proven the first four elements beyond a reasonable doubt. The court is equally satisfied that ASG has proven the sixth element of each offense beyond a reasonable doubt.

Undeniably, Leiataua caused DBAS to expend its funds as a direct loan to her to purchase her direct home loan from ASB. DBAS' Lending Committee and Board of Directors are required to approve this loan, under DBAS's bylaws and did not do so. This disbursement was clearly a misapplication of DBAS's funds.

Undoubtedly, Leiataua participated in the disbursement of DBAS' funds reimbursing her for a purchase of building materials, which she did not in fact buy, and supported by placing in DBAS's records a fictitious invoice. This, too, was a misapplied expenditure of DBAS's funds.

The only genuine issue before the court, with respect to both counts, is whether or not Leiataua acted with the requisite intent to injure or defraud DBAS.

[1-2] In addition to proving that Leiataua committed the act of larceny, fraud, or misapplication of funds, ASG has the burden to show that she acted "with the intent to injure or defraud the bank." A.S.C.A. § 28.0111, which mirrors 18 U.S.C. §§ 656, 657. Intent to injure or defraud a bank exists when the defendant acts knowingly and the natural result of this conduct would be to injure or defraud the bank, regardless of motive. United States v. Krepps, 605 F.2d 101, 104 (3rd. Cir. 1979). It is not required that the bank suffer a loss or injury, since the intent of the law is to protect the bank's right to make its own decisions regarding the use of its funds. United States v. Cauble, 706 F.2d 1322, 1355 (5th Cir. 1983). Furthermore, there exists an inherently fraudulent nature to bank loans made by officers for their own benefit. United States v. Krepps, 605 F.2d at 106.

Considering Leiataua's position as the Vice President for Loans with DBAS at the time of the loan purchase, in addition to her actions in securing the loan and the misapplication of the funds for purposes other than construction of a residence, we conclude that the evidence shows beyond a reasonable doubt that she committed these acts with the requisite intent to injure or defraud, as required by A.S.C.A. § 28.0111.

The people of American Samoa are entitled to have their development bank, as a public financial institution, managed with impeccable integrity. The events underlying the instant charges show a decided failure to meet this standard. These events are marked by improper procedures and faulty documentation, by the lack of exercising effective internal controls, and above all by a bank official's intolerable use of insider advantage.

DECISION

Leiataua is guilty of both counts of larceny and fraud in violation of A.S.C.A. § 28.0111, as charged in the consolidated informations.

Leiataua is continued on bail in the sum of $10,000, pending sentencing, on the condition that she is present before the court whenever required. The Attorney General shall retain her travel documents. ASG's stop order prohibiting her departure from American Samoa, unless by prior court order, remains in effect.

Leiataua shall be present before the court for sentencing on October 20, 1995, at 9:00 a.m. The presentence report will be completed and made available to the court and counsel not later than October 18, 1995.

It is so ordered.

*********

1. This multiple advances note was apparently replaced on September 12, 1991, the day of the final draw completing the advances of the entire $75,000, when Leiataua signed a promissory note to ASB and a mortgage of the land and anticipated residence to secure payment of the note. This promissory note was in the principal amount of $75,000, with interest at 11.5% per annum, and provided for 120 monthly installment payments of $1,054.46, commencing October 1, 1991.

2. Leiataua also received cashier's checks from ASB for $500 on August 30, 1991, $500 on September 5, 1991, and $11,862.18, apparently the remaining balance with earned interest, on September 12, 1991.

3. On July 18, 1994, Leiataua submitted an application to DPO for a renewed land use and building permit. This application is on hold, pending clarification of the record titleholder of the building site. Although not recorded in DPO's official file in evidence, Leiataua claimed that she first sought a permit in June 1991, but DPO never responded. Hence, she filed again in October 1991. She further claimed that she resubmitted an application in 1993. Again, this application is not reflected as such in the DPO file, except possibly by inference from a DPO inspection site visit in July 1993. These three applications are not significant to our decision, except to illustrate Leiataua's continuing desire throughout the time frame involved to construct a residence in Maloata, an intention we do not question.

4. The inclusion of the fourth condition in the permit is suspect. The original permit, which is usually given to the applicant, is not in evidence, and the DPO official who issued the permit does not recall whether the fourth condition was initially included. The first three special conditions are regularly included in permits, while the substance of the fourth condition is within the expertise of structural engineers and not DPO planners. The permit routinely required construction to begin within 120 days and expired in one year, on October 31, 1992, which is inherently inconsistent with the two-year postponement in the fourth condition. Also, the type used for the fourth condition is different and not aligned with the first three conditions. These circumstances suggest that the fourth condition was added later. However, no evidence shows that Leiataua or anyone acting on her behalf had surreptitious access to her DPO file at any relevant time. Thus, although worth mentioning, the suspicion is not persuasively established, and it is not a factor in our decision.

5. In essence, Leiataua claimed that in January 1992, she thought the $50,000 came out of the $58,000, which she believed B. Gurr was still holding for her, and that although she asked him about the $58,000 at various times, she did not learn about his expenditure of these funds until after this prosecution was commenced. We do not find her testimony on this late discovery credible, and while she may still have been in the dark at the beginning of 1992, we are convinced that she knew or should have known about B. Gurr's waste of the $58,000 by the summer of 1992.

6. Leiataua claimed that she was unaware of the source of the $50,000 until 1994, but it appears that she may have learned about this source about or after September or October 1992 when her husband applied for a loan of $90,939.46 from ASGEFCU, apparently to consolidate existing loans. In the application, he listed his present occupation as a Vice President of DBAS, for the previous six years, with a salary approximating Leiataua's recompense. During the trial, she still disclaimed any prior actual knowledge of this loan. ASGEFCU gave Leiataua's husband final notice of his default of this new loan in July 1993.

7. P. Gurr denied that he owned and operated a business under the name "Pete Gurr Lumber Company." The documentation in evidence, however, apparently related to the sales of Leiataua's materials at T & T bears references to this business. The total amount of sales shown in these documents is $31,868.82. Tasi Asuega's purchases account for $11,868.82 of this amount.

8. ASB also notified Leiataua, by letter dated January 13, 1992, that her loan was delinquent due to nonpayments in October and November 1991. Leiataua returned ASB's letter with her note appended, denying the delinquency, and enclosing her payment book. According to Leiataua, ASB did not respond to her note, and she assumed that ASB corrected its records. Apparently, other than her meeting with Flores on February 4, 1992, Leiataua next received communication from ASB about the loan when she received Flores letter of July 21, 1992.

9. She apparently made loan payments until at least June 7, 1993, when DBAS placed her on administrative leave with pay, and probably made payments until she left DBAS's employment at a later date.

10. As pointed out by DBAS's independent auditors as a result of their inspection of Leiataua's loan file in 1993, the file lacked current credit information when DBAS purchased the ASB loan, such as verification of deposits from other banks, documentation of hazard and life insurance, copies of last paid utilities bills, and a copy of her last pay stub.

11. On June 7, 1993, Leiataua told the independent auditors and later members of the DBAS's Board of Directors attending an Executive Committee meeting, which was called to review, among other matters, Leiataua's loan file with her, in essence, that she thought it unnecessary to go through the loan underwriting process again. She also told the auditors that she thought the DBAS loan was adequately secured by the site for her residence and her life insurance benefit provided by DBAS.

Laumatia; Pasesa v.


MILIAMA PASESA, individually and as next friend of SERINA PASESA, Plaintiff

v.

TUILUA T. LAUMATIA, Defendant

High Court of American Samoa
Trial Division

CA No. 67-93

May 18, 1995

__________

[1] Disability under the law ceases when a minor reaches the age of majority or is otherwise earlier emancipated through marriage. A minor is no longer disabled for statute of limitations purposes when a guardian ad litem is named.

[2] The statute of limitations begins to run against a minor when a guardian ad litem is appointed and files suit on the minor's behalf. A.S.C.A. § 43.0120(2).

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

Counsel: For Plaintiff, Cheryl Crenwelge
For Defendant, Albert Mailo

Order Denying Motion for Reconsideration:

BACKGROUND

On November 16, 1990, Miliama Pasesa ("Miliama") as Guardian Ad Litem for Serina Pasesa ("Serina") brought an action, docketed CA 102-90, on behalf of Serina against Tuilua T. Laumatia ("Laumatia"), Laau Liufai and Insurance Company of the Pacific, Inc., seeking damages for physical injuries suffered on February 9, 1990, as the result of a car accident involving Laumatia.

On February 18, 1993, this court approved a settlement in CA 102-90 and dismissed the action as to Laau Liufai, the owner of the vehicle Laumatia was driving, and Insurance Company of the Pacific, Inc., the insurer of the vehicle. On June 4, 1993, this court approved the stipulation of the parties to dismiss the action as to Laumatia without prejudice.

Subsequently, on June 23, 1994, Serina, through her Guardian Ad Litem Miliama, filed this action against Laumatia for her injuries sustained in the February 9, 1990 car accident. On December 6, 1994, Laumatia filed a motion to dismiss on the grounds that the matter was barred by the statute of limitations, A.S.C.A. § 43.0120(2). (1)

On January 18, 1995, we issued an Order granting the motion to dismiss, concluding that the previous appointment of a guardian ad litem in CA 102-90, (2) resulted in the termination of Serina's disability, for purposes of any claims she may have had as a result of the February 9, 1990 car accident and the running of a statute of limitations. On January 27, 1995, plaintiff filed a motion for reconsideration.

DISCUSSION

The issue presented for reconsideration is whether the appointment of a guardian ad litem, which allows a minor to commence an action, effectively terminates the minor's disability for purposes of the statute of limitation.

The general rule is that a statute of limitations will ordinarily run against the claims of minors in the absence of a contrary statute or provision. Vance v. Vance, 108 U.S. 514 (1983). Minors are not afforded any special rights under the Constitution or by any general doctrine of law; but it is within the discretion of state legislatures to make exceptions to the general rule. Id. Most state legislatures have passed statutes that toll the running of a limitation period against minors' claims until they reach the age of majority or their disability under the law is terminated. In American Samoa, for instance, the Fono has enacted legislation stating, "Minors and insane persons shall have 1 year from the termination of such disability within which to commence any action regardless of any other applicable limitation period." A.S.C.A. § 43.0126.

Although plaintiffs filed this action over three years after the date of the accident, they assert that it is not barred by statute of limitations because Serina, as a minor, is governed by the provisions of A.S.C.A. § 43.0126. We must now determine, under this statute, when a minor's disability is terminated.

[1] Disability under the law quite clearly ceases when a minor reaches the age of majority or is otherwise earlier emancipated through marriage. Additionally, a minor is no longer under disability, for statute of limitation purposes, when a guardian ad litem is named. In each of the above situations, the minor has gained the necessary legal capacity to commence an action and is thus no longer prevented from suing.

The purpose of a statute which tolls the statute of limitations during a party's disability is to suspend limitations with respect to persons who have no access to the courts. Adler v. Beverly Hills Hosp., 594 S.W.2d 153, 157-58 (Tex. 1980). Disability includes practical as well as legal incapacity to sue. Id. Since the appointment of a guardian ad litem removes a minor's incapacity to sue, it allows the minor to gain access to the courts, thus removing the disability.

In dicta, this court has suggested that "since a minor is no longer prohibited from bringing a law suit once a guardian ad litem has been appointed for him, it would seem that the statute of limitations began to run on [the date of appointment] at the very latest." Lutu v. American Samoa Gov't, 7 A.S.R. 2d 61, 63, n. 2 (Trial Div. 1988). InLutu, the guardians filed suit on the same day they were appointed; thus, the court was not required to decide if the statute of limitations began to run. Since Serina filed this action over two years after her original appointment as guardian, (3) we must now decide whether a claim by a minor, for whom a guardian has been appointed, is barred when the action is filed more than one year after the date of appointment.

Black's Law Dictionary, 4th edition, defines the term "legal disability" as "[t]he want of legal capability to perform an act" and "incapacity for the full enjoyment of ordinary legal rights; thus persons under age, . . . are said to be under disability." This definition was adopted by the Pennsylvania Superior Court in Salvado v. Prudential Property and Casual Ins. Co., 430 A.2d 297, 298-99 (Penn. 1981). Despite a strong dissent, the court in Salvado held that the statute of limitations did not run against a minor due to the strict language of the Pennsylvania No-Fault Insurance Act which stated that "the period of [the minor's] disability is not a part of the time limited for commencement of the action." Id. at 299 (emphasis added). At the same time, the Supreme Court of Pennsylvania has noted that "the statute of limitations will run against persons under a disability, including minors, . . . [and] the legislature can at any time, that it see fit, reestablish an exclusion of persons under disability from the operation of the statute of limitations." Walters v. Ditzler, 227 A.2d 833, 835 (Penn. 1967). In Salvado, the court applied the Pennsylvania No-Fault Insurance Act, which was passed by its legislature, but such restrictive language in the Pennsylvania No-Fault Insurance Act specifically excluding minors is, on the other hand, not to be found in A.S.C.A. §  43.0126.

Other jurisdictions have allowed the statute of limitations to run against a minor once a guardian ad litem is appointed. For instance, under Colorado law, a limitation period does not begin to accrue for a minor until "after the disability is removed." Colo. Rev. Stat. Ann. §  13-80-116. The Colorado statute, which is similar to A.S.C.A. §  43.0126, only allows minors two years after reaching the age of majority to bring an action when "no legal representative has been appointed for him." C.R.S.A. § 13-81-103(1)-(3). McKinney v. Armco Recreational Prods., Inc., 419 F. Supp. 464, 465-66 (D.C. Colo. 1976).; Price v. Sommermeyer, 603 P.2d 135, 138 (Colo. 1979).

In Colorado, if a person under disability is appointed a guardian or a legal representative prior to the termination of such disability, the applicable statute of limitations shall run against such person with the same effect as it runs against a person not under disability. Id.; McClanahan v. American Gilsonite Co., 494 F. Supp. 1334, 1339 (D.C. Colo. 1980).

North Carolina law also permits a "statute of limitations to run against the a minor plaintiff's claim upon appointment of his guardian ad litem," Anderson v. Canipe, 317 S.E.2d 44, 47 (N.C. 1984); Lane v. Aetna Casualty & Surety Co., 269 S.E.2d 711 (N.C. 1980) (statute of limitations begins to run against a minor either upon the appointment of a guardian or removal of the age of disability, whichever occurs first), especially since the legal guardian is appointed by the court and charged with the duty of bringing suit on the minor's behalf. Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 284-86 (4th Cir. 1979). The Genesco court further held that the statute of limitations begins to run against a minor on the date a guardian ad litem is appointed and reasoned that "since an infant, who is represented by a guardian, has the capacity, despite his infancy, to bring suit through his guardian, there is no need to suspend the running of the statute of limitations." Id. at 285.

In the case before us, Miliama was appointed guardian ad litem on behalf of Serina. A compelling reason for this appointment was to allow Miliama to bring an action on Serina's behalf. This is evident by the fact that both times Miliama was appointed guardian ad litem for Serina, she filed suit on behalf of Serina the same day.

We recognize that courts in other jurisdictions have held that a statute of limitations will toll until a minor reaches the age of majority, regardless of whether a guardian ad litem is appointed, but these cases can be easily distinguished from the action before us. For example, in California, it has been held that "the appointment of a guardian has no effect upon the tolling of the statute of limitations as to a cause of action accruing to or vesting in a minor." Aronson v. Bank of America N.T. & S.A., 109 P.2d 1001, 1007 (Cal. 1941). The rationale behind this holding is explained by the restrictive language of the relevant California statute. In California, if a person entitled to bring an action is, "at the time the cause of action accrued, either: 1. Under the age of majority . . . the time of such disability is not a part of the time limited for commencement of action." Title 2, Cal. Code of Civil Procedure, § 352(a).

A.S.C.A. § 43.0126 is clearly distinguishable from the California statute because § 43.0126 states that "minors shall have one year after the termination of such disability", whereas the California statute unqualifiedly proscribes that "the time of disability is not a part of the time limited for commencement of action." In other words, there is absolutely no running of limitations for a minor in California, whereas, in American Samoa the language of the statute permits the limitation to run when the disability of a minor is terminated.

California courts have thus held that the running of a limitations period is against the public policy to protect the rights of a minor. Williams v. Mariposa County Unified School, 147 Cal.Rptr. 452, (Cal. 1978). The Williams court reasoned that the rights of a minor to recover damages should not be forfeited by the failure or neglect of a third party guardian to bring an action on behalf of a minor since the minor has no effective control over the guardian's actions. Id. Likewise, the Illinois courts have held that "a minor's claim is not barred by limitations until two years after obtaining majority, even though guardian ad litem has been appointed for minor." Eiseman v. Lerner, 380 N.E.2d 1033, 1033-34 (Ill. 1978) (action brought by guardian on minor's behalf was not barred even though the estate in dispute had been completed for six years). The Eiseman court reasoned that the public policy in Illinois is to protect the rights of minors, unless clearly disbarred by some relevant statute, and these rights should not be jeopardized by the failure of a guardian to timely file suit on minor's behalf. Since Miliama filed an action on Serina's behalf and settlement was reached, Serina's rights were not forfeited and her "day in court" was not jeopardized.

Also, under New Jersey law, the statute of limitations fails to run against a minor who brings an action through a guardian, discontinues it, then brings a successive action up until two years after attaining the age of majority. Snare & Triest Co. v. Friedman, 169 F. 1, 6 (3rd Cir. 1909). The New Jersey statute permitted a minor to bring an action until two years after turning twenty-one, but did not state the language "or until such time as the disability is removed or terminated." Therefore, it is distinguishable from A.S.C.A. § 43.0126.

Finally, plaintiffs cite Keating v. Michigan Central Railroad Co., 53 N.W. 1053, 1054 (Mich. 1892), for the proposition, adopted by the Supreme Court of Michigan, that the disability mentioned in the law is the status of being a minor and that it is not removed until the minor turns the age of majority; (4) and a statute of limitations does not run against the minor, even if a suit is commenced by an appointed guardian. Although we take note of the position of the Michigan Court, in light of Lutu and other court decisions in jurisdictions with statutes similar to A.S.C.A. § 43.0126, we are not persuaded by the holding in Keating, especially since Serina was able to bring suit and recover damages in settlement.

ORDER

[2] A.S.C.A. § 43.0120(2) begins to run against a minor when a guardian ad litem is appointed and files suit on her behalf. The minor's disability is removed and her right to a "day in court" is protected. Plaintiff's motion for reconsideration is, therefore, denied.

It is so ordered.

*********

1. A.S.C.A. § 43.0120(2) states in relevant part that "actions founded on injuries to the person . . . whether based on contract or tort, or for a statutory penalty, [must be brought] within two years [after their causes accrue]."

2. Miliama has been appointed Guardian Ad Litem for Serina on two occasions. First, on November 16, 1990, the date CA 102-90 was filed, and second, on June 23, 1994, the date this action was filed.

3. Even if the running of the limitation period is tolled between the date plaintiff filed CA 102-90 and the date it was dismissed, it was still 1 year, 9 months and 24 days from the appointment of a guardian until this action was filed, which is not in accordance with the one year limitation period prescribed in A.S.C.A. § 43.0126.

4. In Michigan, the relevant law is similar to § 43.0126 in stating that a minor may bring an action within the prescribed time period "after the disability is removed."

Laulusa; In re Matai Title


TUAILEMAU TAVAI, Claimant

v.

SAMOA OSOIMALO, Objector/Counter-claimant

In Re the Matai Title "LAULUSA" of the village of Utulei

High Court of American Samoa
Land and Titles Division

MT No. 05-93

June 27, 1995

__________

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

Counsel: For Petitioner, Gata Edwin Gurr
For Objector, Asaua Fuimaono

Decision and Order:

On July 23, 1991, Tuailemau Tavai ("Tuailemau") offered for registration with the Territorial Registrar the matai title "Laulusa" of Gataivai, Utulei. (1) On September 17, 1991, Samoa Osoimalo ("Samoa") filed his objection to the offer and asserted his own counter-claim to succession. Subsequent attempts to resolve the matter before the Office of Samoan Affairs proved unsuccessful. On March 10, 1993, the Secretary of Samoan Affairs certified the dispute as "irreconcilable" and referred the matter for resolution to the Lands & Titles Division.

On the evidence received, the court makes the following findings and conclusions on the four criteria set out in A.S.C.A. § 1.0409(c):

FINDINGS

1. Hereditary Right

We find that both candidates are blood related to the Laulusa title. Regardless of whether we employ the traditional manner of assessing blood right, direct descent to the nearest titleholder, or the Sotoa formulation, direct descent to the original titleholder, using candidate Samoa's version of family history as to the original Laulusa, we find Tuailemau's bloodline is closer connected to the title. Tuailemau prevails on this consideration.

2. Wish of the Clans

The testimony on the issue of clans was thoroughly conflicting. Tuailemau testified that the family had nine traditional clans, while Samoa's evidence pointed to either four or five customary clans within the family. Added to this confusion of positions on family custom, High Chief Atiumaletavai testified that while there are four clans of the family, the Atiumaletavai titleholder has traditionally held the power of appointment to the Laulusa titleholder. Be that as it may, the court need not at this time sort out the conflicting positions taken by the witnesses for the simple reason that evidence pointed to the absence of a family decision--whether family decision making be defined in terms of clan preference, as contemplated by statute, or Atiumaletavai's claimed power of appointment--on the appointment of a successor matai. Rather, we find on the evidence that the only attempt at family resolution was a meeting which terminated abruptly in a fist fight between Tuailemau and one of his immediate relatives. We find that no one prevails on this issue.

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

In our evaluation of the parties, we find from our observation of the candidates and from our review of personal background and achievements, that Samoa prevails on the issue of forcefulness, character and personalty, with neither candidate surpassing the other on the consideration of knowledge of Samoan customs.

In terms of personal achievement, both candidates now enjoy retirement incomes from the American Samoa Government. Tuailemau has faithfully served the government for many years in various janitorial roles, earning his retirement in 1992. Samoa retired one year earlier, after 30 years of service with the government's motor pool division. Samoa's choice of occupation, however, has provided him with relatively more in-service training opportunities than has been afforded Tuailemau with his choice of work. At the same time, Samoa was, subsequent to retirement, appointed by Governor A.P. Lutali to the position of pulenu`u for Utulei and Gataivai, which position he has creditably held since January 1, 1993. The Governor, in making his selection of pulenu`u, is statutorily directed to consider, among other things, the views of the village council. See A.S.C.A. § 5.0301. Samoa's appointment to pulenu`u reflects the regard he enjoys within the village council. Finally, Samoa's service to the village through the Congregational Christian Church at Gataivai culminated in his ordination as deacon on January 4, 1968. He has similarly rendered service to the Church at Gataivai for almost 30 years. We find that Samoa's achievements by comparison speak a little more strongly for him in terms of forcefulness, character traits and personality.

4. Value to Family, Village, and Country

We find that both claimants have responsibly rendered tautua, traditional service, to past matai and family. Samoa, however, impresses us as having the better rapport with family and village, as well as with High Chief Atiumaletavai. The latter testified that Tuailemau's coming to blows with his own kinsman was precipitated by the former's display of haughtiness before the assembled family. Tuailemau having thus demonstrated that he and his own immediate side the family are unable to get along, it goes without saying that his leadership potential within the Laulusa extended family remains very questionable. Additionally, Samoa, as alluded to above, has been more actively involved with village concerns not only through his service to the Church at Gataivai, but through his pulenu`u duties to liaise between the village and government. Finally, in terms of value to the government, Samoa not only has the stronger background in training and work experience, he also continues to enjoy the confidence of the government in his being appointed pulenu`u.

We rate Samoa ahead of Tuailemau on this last criterion and accordingly find him better suited in terms of value to family, village, and country.

CONCLUSION & ORDER

Based on the foregoing, we hold that Samoa is qualified to hold the matai title Laulusa. Although Tuailemau prevails on the consideration of blood, Samoa prevails on the third and fourth criteria, with neither able to claim the weight of clan support. The Territorial Registrar shall accordingly register the Laulusa title of Utulei in candidate Samoa Osoimalo, in accordance with the requirements of A.S.C.A. § 1.0409(b). Judgment will enter accordingly.

It is so ordered.

*********

1Unless we are missing something, the petition of Tuailemau, as referred to the court, does not seem to contain the requisite twenty five (25) supporting family signatories as prescribed by A.S.C.A. § 1.0405(b). Because no issue has been taken with this seeming omission, we presume that the petition, as presented to the Territorial Registrar, would not have been accepted for filing by the Registrar if the same was not in accordance with statutorily mandated procedure. See A.S.C.A. §§ 1.0405(c) and 1.0406.

Lacambra; Lacambra v.


ERVING LACAMBRA, Petitioner

v.

MANUIA LACAMBRA, Respondent

High Court of American Samoa
Trial Division

DR No. 30-95

June 20, 1995

__________

[1] The defense of recrimination is no longer available.

[2] In determining whether matter is scandalous such that the court should strike it from a motion, it is not enough that the matters complained of merely offend the complainor's sensibilities if they relate to issues relevant to the defense. T.C.R.C.P. 12(f).

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

Counsel: For Petitioner, Barry I. Rose
For Respondent, Afoa Moega Lutu

Order on Motion to Amend Answer:

The petition filed herein alleges, among other things, the physical beatings of petitioner ("husband") by respondent, ("wife") as constituting habitual cruelty and ill usage warranting a decree of divorce under A.S.C.A. § 42.0202(2). Wife's answer, on the other hand, while containing allegations of marital misconduct on the part of husband, fails to pray for divorce. Counsel for wife advised the court that his client was not seeking a divorce and opposed the petition.

This matter came on regularly for hearing on June 19, 1995, upon wife's motion for leave to amend her answer on file with the Clerk pursuant to T.C.R.C.P. 15(a). The proposed amendment seeks to further allege that husband's marital misconduct was the root of "fist fights and arguments between the parties."

Husband's response is that any defenses alluding to his alleged marital misconduct, are either "immaterial, impertinent, or scandalous," warranting not only a denial of the motion to amend, but also the striking of such allegations from the original answer, pursuant to the provisions of T.C.R.C.P. 12(f). Because wife is not seeking a divorce, husband argues that her allegations of misconduct can have no bearing whatsoever on the subject matter of the action, a divorce.

In reply, counsel for wife argues that husband's marital misconduct does have a bearing on the very grounds for the divorce sought, as husband's misconduct was in actuality the cause of "fights and arguments between the parties."

DISCUSSION

[1] At first blush, we are inclined to agree with husband's argument in light of the fact that the defense of recrimination is no longer available in American Samoa. See Pub. L. No. 23-04 (1993). (1)

It would seem arguable, therefore, that any evidence of marital misconduct on the part of husband would be entirely irrelevant, since wife does not herself seek a divorce.

While this argument certainly has appeal within context of the original answer, the proposed amended answer alleging husband's marital misconduct as being the source of fist fights and arguments between the parties may be viewed as sufficiently noticing a defense of provocation to the charge of habitual cruelty and ill usage. (2) Under T.C.R.C.P. 15, "leave [to amend pleadings] shall be freely given when justice so requires." A Rule 12(f) motion to strike in this case seems to go contrary to the policy of notice pleading and liberal construction underlying the Trial Court's Rules Civil Procedure.

[2] One test that has been advanced for determining whether an allegation is immaterial and impertinent, within the meaning of Rule 12(f), is whether proof concerning that allegation could be received at trial. 5A Wright & Miller, Federal Practice and Procedure, Civil 2d § 1382, 711-12. As we alluded to above, we believe that such proofs may be received on the issue of provocation, and that the challenged allegations may thus be considered and passed upon by the court. In this regard, we must also reject husband's "scandalous" based challenge. For purposes of Rule 12(f), it is not enough that the matters complained of merely offend the husband's sensibilities if they relate to issues relevant to the defense. Id. at 714. At the same time, any concerns that husband may harbor about undue prejudice arising from the derogatory nature of the allegations he finds offensive are not compelling in light of the fact that this matter will not be submitted to a jury but tried to the court.

For reasons given, the motion to amend is granted.

It is so ordered.

*********

1. Public Law 23-04 repealed A.S.C.A. § 42.0206(a)(5), which required the court to dismiss a petition for divorce if the petitioner was found guilty of any of the grounds for divorce or separation.

2. The defense of provocation in divorce law prevents a complaining party from asserting a cause of action based upon cruelty when that cruelty is provoked and brought on by the complainant, provided that the provoked response was not out of proportion to the provocation. Miller v. Miller, 82 S.E.2d 119 (S.C. 1954); see generally 24 Am. Jur. 2d, Divorce & Separation, § 168.

As to whether provocation is available in the territory as a defense to cruelty, this issue should be appropriately presented and briefed as a ruling thereon could be dispositive of the case. At this time, we are not disposed to take up this issue sua sponte.

Lacambra v. Lacambra,


ERVING LACAMBRA, Petitioner

v.

MANUIA LACAMBRA, Respondent

High Court of American Samoa
Trial Division

DR No. 30-95

June 20, 1995

__________

[1] The defense of recrimination is no longer available.

[2] In determining whether matter is scandalous such that the court should strike it from a motion, it is not enough that the matters complained of merely offend the complainor's sensibilities if they relate to issues relevant to the defense. T.C.R.C.P. 12(f).

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

Counsel: For Petitioner, Barry I. Rose
For Respondent, Afoa Moega Lutu

Order on Motion to Amend Answer:

The petition filed herein alleges, among other things, the physical beatings of petitioner ("husband") by respondent, ("wife") as constituting habitual cruelty and ill usage warranting a decree of divorce under A.S.C.A. § 42.0202(2). Wife's answer, on the other hand, while containing allegations of marital misconduct on the part of husband, fails to pray for divorce. Counsel for wife advised the court that his client was not seeking a divorce and opposed the petition.

This matter came on regularly for hearing on June 19, 1995, upon wife's motion for leave to amend her answer on file with the Clerk pursuant to T.C.R.C.P. 15(a). The proposed amendment seeks to further allege that husband's marital misconduct was the root of "fist fights and arguments between the parties."

Husband's response is that any defenses alluding to his alleged marital misconduct, are either "immaterial, impertinent, or scandalous," warranting not only a denial of the motion to amend, but also the striking of such allegations from the original answer, pursuant to the provisions of T.C.R.C.P. 12(f). Because wife is not seeking a divorce, husband argues that her allegations of misconduct can have no bearing whatsoever on the subject matter of the action, a divorce.

In reply, counsel for wife argues that husband's marital misconduct does have a bearing on the very grounds for the divorce sought, as husband's misconduct was in actuality the cause of "fights and arguments between the parties."

DISCUSSION

[1] At first blush, we are inclined to agree with husband's argument in light of the fact that the defense of recrimination is no longer available in American Samoa. See Pub. L. No. 23-04 (1993). (1)

It would seem arguable, therefore, that any evidence of marital misconduct on the part of husband would be entirely irrelevant, since wife does not herself seek a divorce.

While this argument certainly has appeal within context of the original answer, the proposed amended answer alleging husband's marital misconduct as being the source of fist fights and arguments between the parties may be viewed as sufficiently noticing a defense of provocation to the charge of habitual cruelty and ill usage. (2) Under T.C.R.C.P. 15, "leave [to amend pleadings] shall be freely given when justice so requires." A Rule 12(f) motion to strike in this case seems to go contrary to the policy of notice pleading and liberal construction underlying the Trial Court's Rules Civil Procedure.

[2] One test that has been advanced for determining whether an allegation is immaterial and impertinent, within the meaning of Rule 12(f), is whether proof concerning that allegation could be received at trial. 5A Wright & Miller, Federal Practice and Procedure, Civil 2d § 1382, 711-12. As we alluded to above, we believe that such proofs may be received on the issue of provocation, and that the challenged allegations may thus be considered and passed upon by the court. In this regard, we must also reject husband's "scandalous" based challenge. For purposes of Rule 12(f), it is not enough that the matters complained of merely offend the husband's sensibilities if they relate to issues relevant to the defense. Id. at 714. At the same time, any concerns that husband may harbor about undue prejudice arising from the derogatory nature of the allegations he finds offensive are not compelling in light of the fact that this matter will not be submitted to a jury but tried to the court.

For reasons given, the motion to amend is granted.

It is so ordered.

*********

1. Public Law 23-04 repealed A.S.C.A. § 42.0206(a)(5), which required the court to dismiss a petition for divorce if the petitioner was found guilty of any of the grounds for divorce or separation.

2. The defense of provocation in divorce law prevents a complaining party from asserting a cause of action based upon cruelty when that cruelty is provoked and brought on by the complainant, provided that the provoked response was not out of proportion to the provocation. Miller v. Miller, 82 S.E.2d 119 (S.C. 1954); see generally 24 Am. Jur. 2d, Divorce & Separation, § 168.

As to whether provocation is available in the territory as a defense to cruelty, this issue should be appropriately presented and briefed as a ruling thereon could be dispositive of the case. At this time, we are not disposed to take up this issue sua sponte.

Koko; Meredith v.,


LAFINNE MEREDITH, Plaintiff

v.

DICK TULUTULU KOKO and MEMBERS
OF HIS FAMILY, Defendants.

High Court of American Samoa
Trial Division

CA No. 47-95

August 2, 1995

__________

[1] Controversies relating to land are under the exclusive jurisdiction of the Land and Titles Division. A.S.C.A. § 3.0208(b)(2).

[2] A defendant's claim of communal land, even though in defense, invokes the prerequisite filing of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs or his deputy.

[3] It is appropriate to stay proceedings pending completion of the dispute resolution process before the Secretary of Samoan Affairs.

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

Counsel: For Plaintiff, Ellen A. Ryan
For Defendants, Afoa L. Su`esu`e Lutu

Order Staying Action Until Filing of Certificate of Irreconcilable Dispute and Transferring Action to Land and Title Division:

On April 24, 1995, pursuant to A.S.C.A. §§ 43.1402 and 43.1405(4), plaintiff commenced this action for summary proceedings to repossess land in the Trial Division, alleging that defendants were trespassing on her individually owned land. On May 3, 1995, defendants answered, alleging that the land was communal land of their family. This defense necessarily placed ownership of the land at issue. Other than continuances, the action next came regularly before the court for trial on August 1, 1995.

[1-3] At the onset, the court raised the fundamental issue of jurisdiction on its own motion. With title to the land at issue, the court expressed the view that this action on the merits became a controversy relating to land under the exclusive jurisdiction of the Land and Titles Division. A.S.C.A. § 3.0208(b)(2). The court also took the position that the defendants' claim of communal land, even though in defense, invoked the prerequisite filing of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs or his deputy as an additional jurisdictional requirement. A.S.C.A. § 43.0302(a). Lastly, the court proposed to follow the procedural precedent of staying the proceedings, pending completion of the dispute resolution process before the Secretary of Samoan Affairs. See Tupua v. Faleafine, 5 A.S.R.2d 131, 132-133 (Land & Titles Div. 1987).

The parties did not interject any viewpoint contrary to the court's opinions. Accordingly, for good cause shown:

ORDER

1. This action is referred to the Secretary of Samoan Affairs for completion of the administrative dispute resolution proceedings under A.S.C.A. § 43.0302(a). The parties shall participate in those proceedings.

2. Further proceedings on the merits in this action are stayed, pending completion of the administrative dispute resolution process and until a certificate of irreconcilable dispute, issued by the Secretary of Samoan Affairs or his deputy, is filed in this action.

3. In order to maintain the status quo with respect to use of the land at issue, the parties shall not enlarge or modify the nature of the present activities carried out on the land, or take any other action materially changing or otherwise affecting those activities or the land.

4. This action is transferred to the Land and Titles Division for all further proceedings.

5. The Clerk of Courts shall deliver a certified copy of this order to the Secretary of Samoan Affairs.

It is so ordered.

*********

In re Two Minor Children (JR Nos. 127-94, 128-94),


In the Matter of TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JR No. 127-94
JR No. 128-94

August 22, 1995

__________

[1] It is not in the children's best interests to divest the natural parents of their parental rights and obligations based on immediate financial pressures.

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

Counsel: For Petitioners, Robert A. Porter

Opinion and Order:

Petitioners in these two matters seek to relinquish their parental rights and obligations to their two children, a girl age five years and a boy age 3 years, to enable the children's adoption by their maternal grandfather. The court heard the petitions on June 30, 1995.

The natural father has undertaken theological education and will shortly be continuing his studies stateside. He does not presently have any income. The natural mother has been teaching, but plans to accompany her husband abroad.

The grandfather is a retired doctor. His natural children by a former marriage are adults living in their own homes. He is financially stable and has essentially provided for these two children most of their young lives. He and the children are bonded, but the children know their natural parents.

[1] The grandfather is clearly able to support the children better than the natural parents at this time. The present living arrangements in this family are suitable. However, it is not in the children's best interests, the paramount issue, to divest the natural parents of their parental rights and obligations for, in essence, immediate financial pressures. In the long-term, the innate family unit will likely resume, whether that reunion occurs when the natural father is ordained or the grandfather passes on. The parents and grandfather appear to recognize this probable course of events.

The grandfather expressed concern for the children's medical, educational and perhaps other needs while the parents are overseas. However, he and the parents can make arrangements better suited than legal adoptions to take care of these matters.

For these reasons, the petitions are denied.

It is so ordered.

*********

In re Two Minor Children (JR Nos. 13-95, 14-95),


In the Matter of TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JR No. 13-95
JR No. 14-95

June 14, 1995

__________

[1] Relinquishment of parental rights must be based on the best interests of all concerned, but the child's best interests are paramount.

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

Counsel: Robert A. Porter

Opinion and Order:

This matter came regularly for hearing on April 28, 1995, on the natural parents' petition to relinquish their parental rights to two of their five children and enable the maternal grandparents to adopt these two children.

[1] Relinquishment of parental rights must be based on the best interests of all concerned, A.S.C.A. § 45.0402(e), but the child's best interests are paramount. In re a Minor Child, 12 A.S.R.2d 87 (Trial Div. 1989); In re Two Minor Children, 11 A.S.R.2d 91, 92 (Trial Div. 1989).

In this case, the natural parents and maternal grandparents agreed before each child's birth that the grandparents would raise these two children, and this arrangement was carried out. The two children are now ages eight and three years. The natural parents were apparently motivated by the grandparents' wishes and the financial constraints of raising their three other children. We do not question the genuineness of the parents' decision to relinquish their parental rights to these two children.

We do question the wisdom of their decision in the context of the two children's long-term best interests. The maternal grandparents are now ages 65 and 71 years. Currently, both have serious health problems. In due course, the two children will, in all probability, be reunited with their three siblings. Under these circumstances, no good purpose is served by presently giving the two children different status in the family.

The extended family members immediately involved live in the same village and appear to be closely united. They can readily leave the existing living arrangements undisturbed without inviting the disruption that will inevitably result from a legal adoption.

These petitions should be and are denied.

It is so ordered.

*********

In re Matai Title “Tuaolo”,


PUNEFUOLEMOTU M. TUAOLO, Claimant

v.

SAELUA FA`ATE`A, MANUTAFEA E. MEREDITH, and
MANAIA E.T. VAIVAO FRUEAN, Counterclaimants

__________________________

In the Matter of the Matai Title "TUAOLO"

High Court of American Samoa
Land and Titles Division

MT No. 3-94

June 30, 1995

__________

[1] Arguments that could have been made at trial may not be made for the first time either on a motion for new trial or on appeal.

[2] If a majority of the four associate judges make a decision, the justice need not participate in the four associate judges' deliberations

[3] The "Sotoa rule" is inappropriate where the candidates do not agree on the identity of the original titleholder or any common ancestor.

[4] Age is a factor to consider in determining knowledge of Samoan customs but is no guarantee of supremacy.

[5] The comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness.

[6] A motion for a stay pending appeal is premature in the absence of an appeal. T.C.R.C.P. 62(b)

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

Counsel: For Claimant Punefuolemotu M. Tuaolo, Lutu T.S. Fuimaono and Tautai A.F. Fa`alevao
For Counterclaimant Saelua Fa`ate`a, Romero Solomona Toailoa and Albert Mailo
For Counterclaimant Manaia E.T. Vaivao Fruean, Afoa L. Su`esu`e Lutu

Order Denying Motions for Reconsideration or New Trial and for Stay Pending Appeal:

The motions by claimant Punefuolemotu M. Tuaolo ("Punefu") and counterclaimant Saelua Fa`ate`a ("Tutuvanu") for reconsideration or new trial of the court's decision entered on January 30, 1995, came regularly for hearing on March 16, 1995. All parties were represented by counsel.

Punefu and Tutuvanu presented several issues by their written motions and oral arguments. Counterclaimant Manaia E.T. Vaivao Fruean ("Vaivao") responded to those issues in writing and by oral argument. The issues raised by Punefu and Tutuvanu are succinctly identified by the titles of the subparts in the discussion below.DISCUSSION

I. Tribunal Lacked Impartiality

Punefu and Tutuvanu allege impropriety in trial of this matter based on the fact that Vaivao is an Associate Judge and colleague to the panel of judges deciding the case, and that one of Punefu's counsel overheard an Associate Judge, who was on the panel trying this case, make a statement at a local restaurant, on January 3, 1995, two days before the trial started, to the effect that the party who moves "to disqualify the Associate Judges from the case will be the first one shot down." Punefu did not cite to the court the Associate Judge's alleged statement at any time before his present motion was filed.

On December 12, 1994, in a chambers conference, unreported with counsel's concurrence, after the court discussed the proposed continuance of the trial with counsel, Tutuvanu orally moved to recuse the Associate Judges based on the appearances of partiality and unfairness based on Vaivao's relationship with them. The court instructed Tutuvanu's counsel to submit the motion in writing and serve it on the other counsel to provide adequate opportunity for the court and counsel to consider and act on the motion. Then, in open court, the court continued the trial to January 5, 1995, and Tutuvanu's oral recusal motion and court's instructions regarding it were put on the record. No written motion on this issue was filed before the present motions.

On January 5, 1995, in a chambers conference before the trial began, also unreported with counsel's concurrence, the court inquired about Tutuvanu's intentions regarding the recusal motion. Punefu was prepared to join in this motion, but when Tutuvanu indicated that he would not pursue the motion, Punefu withdrew as well. Then, when the trial started, the court stated on the record that the recusal motion would not be pursued.

[1] We note the well settled principle that arguments that could have been made at trial may not be made for the first time either on a motion for new trial or on appeal. In Manuma v. Bartley, 3 A.S.R.2d 21, 22 (Land & Titles Div. 1986), this court held:

Counsel raises an interesting and possibly important argument in his motion . . . . The Court has, however, carefully scrutinized the transcript of counsel's argument at trial and can find no trace of this argument . . . . Since counsel had every opportunity at trial to argue that the land was communal land and failed to do so, the argument must be regarded as waived and cannot be raised at any future stage of the litigation.

In keeping with the foregoing principle, we hold that Punefu's and Tutuvanu's failure to pursue the recusal issue on the record before or during the trial, and Punefu's failure to appraise the court in any way whatsoever of the Associate Judge's alleged statement before the trial and, in fact, known to Punefu's counsel, results in a waiver of those arguments at future stages, including the present motions for reconsideration or new trial, of this proceeding.

II. The Court Failed To Follow A.S.C.A. § 3.0241(b) Procedures

Punefu claims that the court failed to follow the procedures required under A.S.C.A. § 3.0241(b). Since he did not specify any reasons for this claim, we could disregard it. However, we will affirmatively state that we fully complied with the procedures set forth in this statute. The statute reads:

(b) In cases or controversies relating to matai titles in the land and
titles division of the High Court, if there remains, after conference,
any difference of opinion among the judges, the justice shall abstain
and the opinion of the majority of the 4 associate judges shall prevail
and shall be recorded by the clerk as the opinion and decision of the
court. In the event of a tie vote among the 4 associate judges, the
justice shall cast the deciding vote.

Implicitly at least, if no difference remains among the associate judges after conference, the presiding justice still abstains, and the four make the decision unanimously.

[2] This procedure was followed precisely. After the associate judges considered the evidence, the majority of three of the four judges made the decision and signed the court's opinion and order to reflect their decision. The justice did not participate in the four associate judges' deliberations. He only presided at the trial and prepared and signed the opinion and order. The court has sanctioned this manner of the justice's participation in matai title proceedings. In re Matai Title "La`apui", 4 A.S.R.2d 7, 9 (App. Div. 1987). The clerk then recorded the associate judges' majority decision and the single judge's dissent.

The court followed the same procedure in deciding on the rulings in this order on the present motions.

III. Vaivao's Genealogy Was Incorrect

Punefu and Tutuvanu dispute the genealogy presented by Vaivao to establish his blood relationship to the Tuaolo title. This is an issue of particular importance to these two candidates. First, if Vaivao is not blood-related to the Tuaolo title, he simply cannot qualify to hold the title. Second, Vaivao's genealogy identifies an earlier, original titleholder, whose children created clans of the Tuaolo title, which impacts the findings on clan support.

This is also an issue of fact that must be proven by a preponderance of the evidence, that is, evidence having more convincing force than that opposed to it. The court was and is persuaded that the genealogy introduced by Vaivao is correct by a preponderance of the evidence. Further, the court found and still finds, by a preponderance of the evidence, that despite Punefu's and Tutuvanu's contrary claims, Vaivao's genealogy is consistent with the complex blood and title interrelationships in the Tuaolo, Leaoa and Lago families, as recited during the trial of this proceeding and in prior proceedings before this court.

IV. Tutuvanu Is the Only True Tuaolo Heir

[3] Tutuvanu correctly points out that the court applied the traditional rule, which he asserts is fictitious, to determine the candidate with the best hereditary right. We would add that the later rule of measuring the best hereditary right from the original titleholder or a common ancestor cannot be applied in this case. The three candidates simply do not agree on the identity of the original titleholder or any common ancestor. Punefu necessarily disagrees, since he is a descendent of a non-blood related titleholder.

Tutuvanu would disqualify Vaivao as having no blood connection to the Tuaolo title, rather than, as the court found, a seventh generation or 1/128th blood relationship to a previous titleholder. He would disqualify Punefu as also having no true blood relationship, despite the court's finding that Punefu had one-half Tuaolo blood through his father Tuaolo Maliuga II, because his ancestor who first held the Tuaolo title was from the non-blood related Fano family of Faga`alu and became the titleholder only by invitation when his predecessor fell ill.

The court found and still finds, by a preponderance of the evidence, that Vaivao's genealogy is correct and that the Fealofani clan has long-recognized acceptance as a Tuaolo clan.

V. Recognized Clans Are Only Now Emerging

Punefu and Tutuvanu also take exception to the court's findings recognizing two of the Tuaolo clans, based on the two children of the original titleholder identified in Vaivao's genealogy. They profess lack of knowledge of the existence of these two clans in the Tuaolo family's history. Their unawareness, however, does not equate with non-existence of these clans. The last five Tuaolo titleholders came from the Fealofani clan. This list includes Tuaolo Fealofani's successor, Tuaolo Maliuga I, who on October 30, 1906, some 80 years ago, became the first Tuaolo of record in the Territorial Registrar's files.

In any event, after resolving the supporting evidence in favor of Vaivao's genealogy, the court correctly applied the long and well established rule for the determination of clans and found, by a preponderance of the evidence, the consensus support of two of the three Tuaolo clans for Vaivao.

VI. Faulty Emphasis Was Placed on Personal Traits

The criterion of the candidates' forcefulness, character and personality, and knowledge of Samoan customs is again a fact issue, which the court resolved, and still resolves, by the preponderance of the evidence in Vaivao's favor. We would comment further only on several argued aspects about the evidence submitted on this criterion.

Punefu discredits Vaivao's character because he gambles. He also argues, incidentally, that this is a weakness of character effectively destroying Vaivao's potential value as the titleholder. Gambling may detract from a person's character and is illegal for private gain in American Samoa. The evidence does not, however, show that Vaivao gambles habitually or in any other way so as to seriously diminish his character or leadership qualities.

Tutuvanu faults the court's findings as overly stressing physical prowess. In fact, the court introduced this discussion by explicitly recognizing that this criterion accounts for all human attributes, mental and emotional, as well as physical. The court's references to Vaivao's prime, vigor and forcefulness, and to Tutuvanu's declining vitality were intended to, and in fact do, describe mental and emotional qualities far more than physical strength.

[4] Tutuvanu also erroneously equates age with wisdom, ipso facto assuring his superior knowledge of Samoan customs vis-a-vis Vaivao. Age is a factor, but no guarantee of supremacy. Vaivao is at least as equally qualified as Tutuvanu in matters of Samoan customs.

On his third point, we concurred, in general, with Tutuvanu's observations about Punefu's strengths and weaknesses, based on his youth and inexperience.

VII. Higher Titleholder Value Cannot Prevail over Best Hereditary Right

The criterion of the candidates' prospective value as the titileholder is also a fact issue. The court decided and still decides, by a preponderance of the evidence, that Vaivao is the candidate with the strongest potential value as the titleholder.

[5] Tutuvanu proffered a rather novel argument concerning this criterion. He seems to say that in light of this criterion's least importance in the statutory scheme of priorities, the winner in this category can never prevail over the candidate with the best hereditary right to the title. He suggested that this criterion of first and highest priority ought to be weighted in the neighborhood of 70% in the final evaluation. As this court has previously observed, the comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness. In re Matai Title "Tauala", 15 A.S.R. 2d 65, 69 (Land & Titles Div. 1990). Furthermore, under Tutuvanu's suggested 70% rule, it would be impossible for a candidate to be awarded a title unless he prevailed on the claim of best hereditary right. By precedent, a candidate can be awarded a title when he prevails only on the least important factors instead of the claim for best hereditary right. In re Matai Title "Iuli", 14 A.S.R. 116 (Land & Titles Div. 1990). Moreover, based on the court's supported finding that Punefu has one-half Tuaolo blood compared, under the evidence, to Tutuvanu's 1/16th blood relationship, presumably, under this approach, we must award the title to Punefu, regardless of any of the other three considerations.

SUMMARY

Vaivao is best qualified among the three candidates before the court. In our evaluation, his superiority in the second, third and fourth criteria outweighs Punefu's and Tutuvanu's better hereditary rights to the Tuaolo title.

ORDER

For the reasons set forth above, both motions for reconsideration or new trial are denied.

[6] Punefu's motion for a stay pending appeal is, under T.C.R.C.P. 62(b), premature in the absence of an appeal. For this reason, this motion is also denied. It may be renewed, in the first instance, before the Lands and Titles Division as A.C.R. 18 contemplates, only in the event of an appeal.

It is so ordered.

ATIULAGI, J., dissenting:

I would grant the motions for reconsideration or new trial for the reasons stated in my dissent to the court's opinion and order entered on January 30, 1995.

*********

In re Matai Title “Misaalefua”,


FELEI P. MISAALEFUA, Claimant

v.

LEMAGA FA`ATUI FAOA, SUA PUTAGA POTASI,
MANU MA`ATIFA ELESARO, MALAE TITO,
TAUILIILI J. HUDSON, POTO U. MISAALEFUA,

Objectors/Counter-claimants.

_____________________

[In the matter of the Matai Title "MISAALEFUA"]

High Court of American Samoa
Land and Titles Division

MT No. 06-94

June 13, 1995

__________

[1] There are four customary clans of the Misaalefua family, namely: Agafala, Vaepala, Tuimalie, and Faliu.

[2] A tally of signatures does not provide proof of clan support for a matai candidate.

[3] Samoan families traditionally make decisions not by pure majoritarian democracy but by consensus.

[4] The matai title Misaalefua is a title of paramount stature in the territory.

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

Counsel: For Felei P. Misaalefua, Afoa Moega Lutu
For Lemaga F. Faoa, Aviata F. Fa`alevao
For Sua P. Potasi, Togiola T.A. Tulafono
For Ma`atifa Elesaro, Lutu T. Fuimaono
For Malae Tito, Albert Mailo
For Tauiliili J. Hudson, Tuana`itau Tuia

Opinion and Order:

On August 6, 1993, Felei P. Misaalefua ("Felei") filed his succession claim to the Misaalefua title with the Territorial Registrar. This was done immediately after the conclusion of the Misaalefua family's very first, and inconclusive, meeting convened at Togalei (the site of the family's meeting house in Ofu, Manu`a) to address the issue of a successor matai. Felei's claim attracted the objections and counter-claims of a number of others including, Lemaga F. Faoa ("Lemaga"), Sua P. Potasi ("Sua"), Ma`atifa Elesaro ("Ma`atifa"), Malae Tito ("Malae"), and Tauiliili J. Hudson ("Tauiliili"). (1)

After the prerequisite administrative proceeding before the Office of Samoan Affairs, and the Secretary of Samoan Affairs having certified an irreconcilable dispute pursuant to the provisions of A.S.C.A. § 43.0302, the matter was duly referred to the Land and Titles Division of the High Court. Trial herein commenced May 8, 1995, and concluded on May 16, 1995. The matter was then submitted for the Court's deliberation on May 29, 1995, following the filing post-trial briefs.

DISCUSSION

In matai title disputes, the Court is 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.

1. Best Hereditary Right

In construing the customary and statutory requirement of "hereditary right" to matai titles, the Court has generally employed two formulas to calculate such right: direct descent from the original title holder and direct descent from the nearest title holder. See In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, 80 (Trial Div. 1990). The first, which has become known as the "Sotoa rule," calculates the blood relationship of the matai candidate to the original titleholder. See In re Matai Title Sotoa, 2 A.S.R.2d 15 (Land & Titles Div. 1984). The rationale for the rule is that "[every new title holder does not start a new line of heredity." Id. The second formula, the "traditional rule," measures blood relationship to the nearest titleholder in a candidate's genealogy.

The Sotoa rule, while less arbitrary than the traditional rule, presents its own set of problems. For example, the Sotoa rule does not lend itself to the situation where the identity of the original titleholder has become unclear over the passage of time and thus disputed within the family. See In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987). The Sotoa rule, however, while criticized and not often used, is nevertheless appropriate in certain cases. In re Matai Title Tuiteleleapaga, 15 A.S.R.2d 90, 91 (Land & Titles Div. 1990). It has been suggested, for instance, that the Sotoa rule may sometimes be appropriate for clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title. See In re Matai Title Laie, 18 A.S.R.2d 35, 37 (Land & Titles Div. 1991). And more recently in In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles Div. 1994), the Court held that "[i]n . . . circumstances [where] family history is by and large harmonious . . . the "Sotoa rule" is the less arbitrary method of assessing hereditary entitlement."

In the matter before us, we are satisfied on the evidence that the six remaining candidates before the Court are all blood related to the Misaalefua title. Further, in our review of the testimony and the various gafa (genealogy) presented, we find that the Misaalefua title, albeit the ranking title in Ofu, is of relatively recent origin. Accordingly, we were able to find unanimity on family history, rarely seen in cases involving matai titles of more ancient origin, regarding the historical origin of the Misaalefua title as well as the identity of the very first titleholder. In these circumstances, given the consensus on family history, we conclude that the less arbitrary Sotoa rule is the appropriate formula for calculating hereditary entitlement in this matter.

In our review of the evidence and genealogical charts submitted, we find that the original titleholder, simply known on the evidence as "Misaalefua," was the son of Sua Fulufulu; that the parties' genealogical roots to the original titleholder are as follows: Ma`atifa is 6th generation descendant--through his father's line, that Felei and Sua are 7th generation, that Lemaga is 8th generation, and that Malae and Tauiliili are 9th.

On the foregoing, we find, and so hold, that Ma`atifa prevails on the issue of blood entitlement and best heredity right.

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." A.S.C.A. § 1.0409(c)(2). On this issue, the parties employed varying interpretations of the term "clan." Some candidates used the familiar definition of descent lines from the issue of the original title holder, (2) another defined clans in terms of descent groups from selected titleholders, while yet another attempted to define clans according to the manner in which the family recently convened to assemble fine mats and goods for an intended presentation. At the same time, a few of the candidates further proved quite flexible with the notion of clans, thus readily varying position between the time of filing answers to questionnaire to the time of taking the witness stand.

[1] We are satisfied that the evidence preponderates in favor of descent groups stemming from the issue of the first titleholder, and find that there are four customary clans of the Misaalefua family, namely; Agafala, Vaepala, Tuimalie, and Faliu. On the other hand, the evidence failed to show that any one candidate commands the support of the majority of the family's four customary clans. Rather, the evidence clearly revealed that the Misaalefua family was never really afforded the opportunity to meaningfully pursue the issue of a matai successor. The family assembled for one meeting only that merely resulted in a decision to table the issue of matai succession for further discussion. Before that opportunity arose, candidate Felei triggered the intervention of the legal process by offering the title for registration. This in turn compelled the other candidates to file counter-claims in order to preserve their own rights, because of the sixty (60) days limitation period contained in A.S.C.A. § 1.0407. Consequently, there were no more family meetings as such. (3) In lieu thereof, each candidate, as brought out upon cross-examination, had essentially convened, invariably at his own private residence on the island of Tutuila, a private meeting of his own known supporters in anticipation of litigation. Without exception, each candidate thus felt able to claim on the basis of these private meetings that he was duly chosen by his clan.

[2-3] Absent evidence regarding a family position on the question of matai succession, some of the candidates suggested that family support could be alternatively gauged according to the number of signatures on a given candidate's petition, filed with the Territorial Registrar. While these petitions are sometimes useful for corroborative purposes, they can hardly be taken as conclusive proofs of the clan support criterion. First, a simple tally of signatures contained in matai succession petitions does not necessarily establish the weight of clan support, as mandated by A.S.C.A. § 1.0409(c)(2). For example, Clan A with ten family members would statutorily have just as much say as Clan B with 100 members, and Clan C with 1000 members. Thus, the candidate with the full support of Clans A and B's total of 110 members prevails over the candidate with Clan C's 1000 members. Second, the Court in applying statutory criteria for matai titles is mindful of the statute's overarching purpose which is to preserve Samoan culture, rather than destroy it, and minimize the extent to which customary law is modified or overridden by the imported procedural framework. In re Matai Title Ma`ae, 6 A.S.R.2d 75, 77 (Land & Titles Div. 1987). In our view, the suggested tally of signatures, as an alternative manner to assessing clan support, is hardly consistent with the statutory purpose of preserving Samoan culture, which reflects decision making by consensus rather than by poll. In re Matai Title Tauala, 14 A.S.R.2d 83, 88 (Land & Titles Div. 1990) ("Samoan families traditionally make decisions not by pure majoritarian democracy but by consensus"); see also Fagasoia v. Fanene, 17 A.S.R.2d 91, 94 (Land & Titles Div. 1990)

We find that the Misaalefua family had never really meaningfully addressed the selection of a successor matai, and, therefore, conclude that no candidate prevails on this consideration.

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

With regard to knowledge of Samoan custom, we find no one candidate standing out ahead of his fellow contenders. We encountered with certain candidates the recurrently emerging defense to one's inability to recite from memory appropriate honorifics pertaining to a given occasion, that fa`alupega books and other recorded material were readily available for immediate reference. Each candidate, however, was able to demonstrate knowledge of family history and some familiarity with the customs and traditions of the Misaalefua family.

Under forcefulness, character and personality, each candidate has demonstrated his relative strengths with evidence of personal history and achievements. On balance, however, we find that candidate Tauiliili more than anyone else reflects a greater aggregate of those various strengths which the candidates have emphasized.

After a relatively late start in life, owing in large part to his sense of family obligation, Tauiliili has risen from his humble beginnings in Ofu to prominence as an astute businessman and as a leading matai and longstanding member of the Village Council of Ofu. His assumption of the title Tauiliili at a comparatively early stage in life impressed us as being in keeping with the old Samoan adage that speaks of the path to leadership in terms of traditional service to matai and family.

While on his way to becoming a self-made man, Tauiliili managed to acquit himself admirably, in demonstrated action and deed, as holder of the matai title Tauiliili. Notwithstanding his earlier off-island residency, while in pursuit of education and foundation career goals, he remained faithful to his service obligations to his family and in his matai responsibilities to the village. Despite material success, which he often shared with his communal family, village, church, and even government, Tauiliili does not seem to have lost site of his humble origins, as well as the sense of family obligation that gave rise to his investiture with the Tauiliili family's title.

In short, we find that all candidates are approximately on par with regard to the consideration of knowledge of Samoan custom, but that Tauiliili is superior on the issue of forcefulness, character and personality. We accordingly conclude that Tauiliili prevails on this criterion.

4. Value to Family, Village, and Country

On this issue, we also find in favor of Tauiliili. In terms of youth, active and longstanding matai experience within the village of Ofu, as well as demonstrated service to family, village, church, and government, together with proven leadership ability, we find that Tauiliili best projects potential value to the Misaalefua family, village, and country.

[4] As we alluded to above, certain family lines have dominated the family's title for many generations. This has resulted in certain family members' unreasonable assertion of dominion and control over communal assets, as witnessed by the recent division of National Parks' lease income by the descendants of Misaalefua Potosi`i, during the pending matai vacancy, to the exclusion of the rest of the family. In turn, this state of affairs has bred factionalism, rivalry, and discord within the family as manifested by the number of candidates in this title dispute and the summary manner in which this matai succession issue was rushed to the legal process. At the same time, the matai title Misaalefua is a title of paramount stature in the territory. The Misaalefua family thus requires a strong and dynamic titleholder who will not only promote the title's stature but, more importantly, restore harmony and cohesion within the family. We find that candidate Tauiliili exhibits those qualities best suited to that task.

ORDER

Since Ma`atifa prevails in blood only, and Tauiliili prevails in considerations third and fourth, with no one prevailing on the issue of clan support, Tauiliili is, therefore, adjudged to be best qualified to hold the title Misaalefua. The Territorial Registrar shall, in accordance with the requirements of A.S.C.A. § 1.0409(b), register the matai title Misaalefua from the village of Ofu in candidate Tauiliili J. Hudson.

Judgment shall enter accordingly.

It is so ordered.

*********

1. By the time of trial, Poto U. Misaalefua had effectively abandoned his claim.

2. This definition of "clan" was recognized in In the Matai Title Sotoa, 2 A.S.R.2d at 16, "as more in accordance with Samoan custom."

3. The only other concerted efforts to meet on the issue of matai succession was the statutorily mandated meetings of the candidates before the office of Samoan Affairs and their ensuing last ditch effort at Togalei to resolve things extra-judicially. These efforts of the candidates merely resulted in the consensus to refer the matter to court.

In re Matai Title “Laulusa”,


TUAILEMAU TAVAI, Claimant

v.

SAMOA OSOIMALO, Objector/Counter-claimant

In Re the Matai Title "LAULUSA" of the village of Utulei

High Court of American Samoa
Land and Titles Division

MT No. 05-93

June 27, 1995

__________

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

Counsel: For Petitioner, Gata Edwin Gurr
For Objector, Asaua Fuimaono

Decision and Order:

On July 23, 1991, Tuailemau Tavai ("Tuailemau") offered for registration with the Territorial Registrar the matai title "Laulusa" of Gataivai, Utulei. (1) On September 17, 1991, Samoa Osoimalo ("Samoa") filed his objection to the offer and asserted his own counter-claim to succession. Subsequent attempts to resolve the matter before the Office of Samoan Affairs proved unsuccessful. On March 10, 1993, the Secretary of Samoan Affairs certified the dispute as "irreconcilable" and referred the matter for resolution to the Lands & Titles Division.

On the evidence received, the court makes the following findings and conclusions on the four criteria set out in A.S.C.A. § 1.0409(c):

FINDINGS

1. Hereditary Right

We find that both candidates are blood related to the Laulusa title. Regardless of whether we employ the traditional manner of assessing blood right, direct descent to the nearest titleholder, or the Sotoa formulation, direct descent to the original titleholder, using candidate Samoa's version of family history as to the original Laulusa, we find Tuailemau's bloodline is closer connected to the title. Tuailemau prevails on this consideration.

2. Wish of the Clans

The testimony on the issue of clans was thoroughly conflicting. Tuailemau testified that the family had nine traditional clans, while Samoa's evidence pointed to either four or five customary clans within the family. Added to this confusion of positions on family custom, High Chief Atiumaletavai testified that while there are four clans of the family, the Atiumaletavai titleholder has traditionally held the power of appointment to the Laulusa titleholder. Be that as it may, the court need not at this time sort out the conflicting positions taken by the witnesses for the simple reason that evidence pointed to the absence of a family decision--whether family decision making be defined in terms of clan preference, as contemplated by statute, or Atiumaletavai's claimed power of appointment--on the appointment of a successor matai. Rather, we find on the evidence that the only attempt at family resolution was a meeting which terminated abruptly in a fist fight between Tuailemau and one of his immediate relatives. We find that no one prevails on this issue.

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

In our evaluation of the parties, we find from our observation of the candidates and from our review of personal background and achievements, that Samoa prevails on the issue of forcefulness, character and personalty, with neither candidate surpassing the other on the consideration of knowledge of Samoan customs.

In terms of personal achievement, both candidates now enjoy retirement incomes from the American Samoa Government. Tuailemau has faithfully served the government for many years in various janitorial roles, earning his retirement in 1992. Samoa retired one year earlier, after 30 years of service with the government's motor pool division. Samoa's choice of occupation, however, has provided him with relatively more in-service training opportunities than has been afforded Tuailemau with his choice of work. At the same time, Samoa was, subsequent to retirement, appointed by Governor A.P. Lutali to the position of pulenu`u for Utulei and Gataivai, which position he has creditably held since January 1, 1993. The Governor, in making his selection of pulenu`u, is statutorily directed to consider, among other things, the views of the village council. See A.S.C.A. § 5.0301. Samoa's appointment to pulenu`u reflects the regard he enjoys within the village council. Finally, Samoa's service to the village through the Congregational Christian Church at Gataivai culminated in his ordination as deacon on January 4, 1968. He has similarly rendered service to the Church at Gataivai for almost 30 years. We find that Samoa's achievements by comparison speak a little more strongly for him in terms of forcefulness, character traits and personality.

4. Value to Family, Village, and Country

We find that both claimants have responsibly rendered tautua, traditional service, to past matai and family. Samoa, however, impresses us as having the better rapport with family and village, as well as with High Chief Atiumaletavai. The latter testified that Tuailemau's coming to blows with his own kinsman was precipitated by the former's display of haughtiness before the assembled family. Tuailemau having thus demonstrated that he and his own immediate side the family are unable to get along, it goes without saying that his leadership potential within the Laulusa extended family remains very questionable. Additionally, Samoa, as alluded to above, has been more actively involved with village concerns not only through his service to the Church at Gataivai, but through his pulenu`u duties to liaise between the village and government. Finally, in terms of value to the government, Samoa not only has the stronger background in training and work experience, he also continues to enjoy the confidence of the government in his being appointed pulenu`u.

We rate Samoa ahead of Tuailemau on this last criterion and accordingly find him better suited in terms of value to family, village, and country.

CONCLUSION & ORDER

Based on the foregoing, we hold that Samoa is qualified to hold the matai title Laulusa. Although Tuailemau prevails on the consideration of blood, Samoa prevails on the third and fourth criteria, with neither able to claim the weight of clan support. The Territorial Registrar shall accordingly register the Laulusa title of Utulei in candidate Samoa Osoimalo, in accordance with the requirements of A.S.C.A. § 1.0409(b). Judgment will enter accordingly.

It is so ordered.

*********

1. Unless we are missing something, the petition of Tuailemau, as referred to the court, does not seem to contain the requisite twenty five (25) supporting family signatories as prescribed by A.S.C.A. § 1.0405(b). Because no issue has been taken with this seeming omission, we presume that the petition, as presented to the Territorial Registrar, would not have been accepted for filing by the Registrar if the same was not in accordance with statutorily mandated procedure. See A.S.C.A. §§ 1.0405(c) and 1.0406.

In re Matai Title “Fau”,


ENELE FAU, Claimant

v.

TE`O L. TAVAI, Objector/Counter-claimant

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

High Court of American Samoa
Land and Titles Division

MT No. 05-94

June 1, 1995

__________

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

Counsel: For Claimant, Levaula Kamu Pro Hac Vice
For Objector, Asaua Fuimaono

Order on Motion to Dismiss Claim:

On October 29, 1992, Enele Fau ("Fau") filed his claim to succession with the Territorial Registrar to the matai title Fau, attached to the village of Vailoatai. On November 17, 1992, Te`o L. Tavai ("Te`o") filed his objection and counterclaim to succession.

This matter came on regularly for hearing on May 26, 1995, upon Te`o's motion to dismiss Fau's claim to succession, on the grounds that the latter was ineligible to file his succession claim, not having resided in American Samoa for one calendar year immediately preceding the filing of his claim, as proscribed by A.S.C.A. § 1.0404(a). (1) Te`o appeared with his counsel Asaua Fuimaono, while neither Fau nor his counsel of record, Levaula Kamu, appeared. The court having been satisfied that claimant's counsel was given actual notice of this motion and hearing date, the motion was duly considered.

On the evidence received, we find that Fau was at all relevant times a resident of Hawaii, and that he had not resided in American Samoa for at least one calendar year immediately preceding the filing of his succession claim to the matai title Fau.

On the foregoing, we conclude that claimant Fau was ineligible to file for succession to the matai title Fau, attached to the village of Vailoatai, since he did not meet the statutory residency requirement set out in A.S.C.A. § 1.0404(a). The motion to dismiss is, therefore, granted.

It is so ordered.

*********

1. A.S.C.A. § 1.0404(a) states in relevant part: "[N]o one is eligible to claim or object to the succession of to the matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim of objection.

Johnson v. Coulter,


RICHARD JOHNSON, Plaintiff

v.

ROBERT B. COULTER dba SOUTH PACIFIC ENGINE & REPAIR, 
and SOUTH PACIFIC ENGINE & REPAIR INC. a corporation 
and SAMOA NAPA INC. a corporation, Defendants

High Court of American Samoa
Trial Division

CA No. 22-91

September 20, 1995

__________

[1] When there is no written partnership agreement between the parties the court may look to circumstantial evidence offered by each party to back his oral claim of the presence or absence of a partnership.

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

Counsel: For Plaintiff, Marshall Ashley
For Defendants, Roy J.D. Hall, Jr. and Brian M. Thompson

Opinion and Order:

Plaintiff Richard Johnson seeks the dissolution of a partnership, which he claims was formed with defendant Robert B. Coulter, and the distribution of partnership assets. To this end, he further seeks the award of a constructive trust and an accounting of partnership assets. Coulter, on the other hand, denies the formation of any partnership with Johnson.

[1] Upon joint motion of the parties, trial of the issues herein was bifurcated to consider, first, the issue of whether or not Johnson and Coulter had entered into a partnership. There is no written partnership agreement between Johnson and Coulter. Accordingly, the court is invited to look to circumstantial evidence offered by each party to back his oral claim of the presence or absence of a partnership.

The parties initially met when Johnson was employed as the accountant for South West Marine, the operator of the local dry dock facility, and Coulter was a salesman for Pacific Machinery Inc., a dealer in equipment and machinery which was one of South West Marine's trade vendors. Johnson and Coulter got to know each other socially and subsequently became friends. Johnson later left South West Marine and temporarily departed the territory. Coulter went on to set up shop for himself, essentially assuming Pacific Machinery's business niche after the latter's withdrawal from the territory.

Coulter then began to receive various things in the mail for Johnson, who had apparently given Coulter's mail box as a forwarding address. Coulter stored Johnson's mail until Johnson returned to the territory in the early part of 1989 to participate in a joint venture involving the hauling and dumping of cannery sludge at sea. Subsequently, Johnson sold his interest in the sludge hauling business and extended his accounting expertise to Coulter, who had started South Pacific Engine & Repair ("SPEAR") as a sole proprietor. As SPEAR began to grow, acquiring a NAPA Auto Parts agency for the territory, Coulter found himself becoming overwhelmed with work, requiring him to put in long hours. He needed help. He sought Johnson's accounting expertise and Johnson agreed to help him out. At the outset, both parties recognized that SPEAR was not in a position to appropriately compensate Johnson, but this did not deter Johnson's desire to help out.

While the evidence does not suggest that Johnson had agreed to work for nothing, we find that there was no attempt by the parties to define their intentions at the outset. Johnson initially instituted various control systems, but he became increasingly involved with the retail side of the business, beyond accounting work. He loaned $5,000 to the business, which was later repaid. Subsequently, he made additional advances to the business, during certain "crisis" times when there was no money to lift various bank drafts for specific orders which became due and payable. These "crisis" times occurred on six occasions, between July 8, 1989, and January 2, 1990; Johnson, from his own pocket, paid SPEAR's suppliers a total of $66,029.41. He claims that these cash injections were in the way of capital contributions.

On the one hand, Johnson saw his relationship with Coulter as one of partnership. In support of his contention, Johnson testified that, around July 1989, he and Coulter had met concerning the business' capital needs and that as a result of that meeting, they agreed to put in capital of $65,000 each.

Johnson also offered the corroborating testimony of Douglas Harrington, a mutual friend of the parties, who testified about a conversation that he had with Coulter one afternoon around October or November 1989. Harrington testified that he and Coulter were conversing through the fence at the Satala Power Plant, where he was working at the time, and that Coulter had mentioned that he and Johnson were going in together on a deal with SPEAR, and that Johnson was going to invest some money. He further recalled Coulter saying that it would be a "good marriage," given Johnson's accounting background, but that neither Coulter nor Johnson had said anything to him about the exact nature of Johnson's investment.

Coulter, on the other hand, flatly denies the formation of a partnership with Johnson. While acknowledging that Johnson had advanced funds to SPEAR, he claims that these were simply loans, not capital contributions. He testified that in other times of need, he had received loans from other friends as well. Coulter further testified that he had always run his business as a sole proprietor, that the business license was under his name alone, that he alone did the hiring and firing, that he alone established the business's credit rating with suppliers and the bank, that he alone signed on the bank loans, and that he alone had the final word on the placing of orders. In corroboration, Coulter tendered his tax returns, financial statements, certain correspondence with Bank of Hawaii, and the testimony of a former employee to the effect that Johnson was introduced as, and was always understood to be, merely the accountant and not a co-owner.

We find the evidence insufficient to establish a partnership between Johnson and Coulter. Harrington's testimony is at best equivocal on the issue of partnership. As a corroborative witness, Harrington is not particularly reassuring. His articulation is prone not only to inexactness but also a certain degree of embellishment. For instance, he testified that, at the time, he was a heavy equipment mechanic seeking to sublease space behind the Faganeanea premises from SPEAR. This, he considered, would also be a "good marriage." Additionally, he alluded to his being invited to participate on a SPEAR "board of directors," in what was then, however, a non-corporate business. Finally, we note an early affidavit Harrington had given in support of a Johnson motion to dismiss. Harrington stated in this affidavit that Johnson was a "co-owner" of SPEAR. He later attempted to retract that statement, not wanting to "perger" himself.

On the other hand, the documentary exhibits received into evidence lend some objective support to Coulter's claim that SPEAR was not only run as a sole proprietorship, but also held out as such to third parties, including the government and other creditors. For instance, the promissory notes issued pursuant to a revolving line of credit from the Bank of Hawaii objectively demonstrate that Coulter alone was liable on the indebtedness evidenced by them. There was nothing to suggest that the Bank of Hawaii could hold Johnson jointly liable on those notes. The same may be said of SPEAR's other trade obligations.

The nature of the advances by Johnson is also unclear. The context in which they were made does not lend more credence to Johnson's position than Coulter's. Indeed, the advances arose in response to "crisis" situations, albeit recurring, which demanded the immediate payment for goods shipped on SPEAR's account, rather than as the product of a contemporaneous or preceding agreement of partnership. In our assessment of the evidence, the resultant figure of $65,000, claimed as partnership capital by Johnson, had more to do with the fortuitous value of the invoices for "crisis" shipments than any predefined partnership terms. Again, while we find no suggestion on the evidence that Johnson had simply donated these funds out of the goodness of his heart, we also find nothing in the evidence suggesting anything but ill-defined intentions at these particular times of "crisis."

The resulting situation had, in our view, simply arisen upon a mutual friendship premise, that one party will do good by the other, and vice versa. In this same vein, Johnson was permitted to live on the SPEAR shop premises rent-free, after Coulter had made rudimentary alterations to the premises for that purpose. That relationship between the parties was fine so long as the friendship was alive and well. When the relationship deteriorated, and the friendship began to sour, each party's interpretation of their business relationship had, in our view, more to do with hindsight than any concluded agreements.

While counsel for Johnson earnestly submits that no-one works for nothing nor advances great sums of money without a sensibly underlying explanation--e.g., a joint venture--it might equally be said that business people operating in a business relationship, as opposed to relationship based on friendship, do not in the normal course commit themselves to lay out time and money until they reduce their agreements to more objective foundation than the ill-defined agreement suggested by plaintiff.

Because we find the evidence insufficient to establish the formation of a partnership between the parties, and because plaintiff has the burden of proof, we conclude that judgment on this issue must be entered in favor of the defendant Coulter.

It is so ordered.

*********

G.M. Meredith and Assoc. v . Blue Pacific Mgmt. Corp.,


G.M. MEREDITH AND ASSOCIATES, 
Plaintiff and Counterdefendant

v.

BLUE PACIFIC MANAGEMENT CORP., 
Agent for Pago Plaza, Defendant and Counterclaimant

High Court of American Samoa
Trial Division

September 13, 1995

CA No. 108-90

__________

[1] Hurricanes are a fact of life in American Samoa and architects are expected to design structures to withstand hurricanes of normal strength, knowing that such structures will likely be required to withstand one or more hurricanes during their normal life span.

[2] A party moving for reconsideration or new trial must do more than reiterate the trial court's reasons for a decision and then make a blind assertion that we were incorrect. It is the attorney's, not the court's, job to advocate, do legal research, and construct the legal theory upon which a losing party might oppose our decision.

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

Counsel: For Plaintiff and Counterdefendant, Roy J.D. Hall, Jr. and Katopau T. Ainu`u
For Defendant and Counterclaimant, William H. Reardon

Order Denying Motion for Reconsideration or a New Trial

On May 26, 1995, this court awarded counterclaimant Blue Pacific Management Corp. damages of $20,900 for Hurricane Ofa's destruction of the skylight at Pago Plaza, based on the professional malpractice of architect Richard Frey, who designed the skylight and supervised its installation while he was employed by counterdefendant G. M. Meredith and Associates ("GMA"). GMA now moves for reconsideration or new trial, alleging that we improperly applied the doctrines of res ipsa loquitur and negligence and improperly took judicial notice that Hurricane Val was of greater force than Hurricane Ofa in the Pago Plaza area.

DISCUSSION

GMA's written motion listed grounds for reconsideration or new trial, but did not provide any analysis or legal precedent in support of its general conclusions. GMA also failed to expand significantly on its assertions during oral argument.

[1] GMA's single noteworthy argument at the hearing was that hurricanes are inherently violent, and the destruction of a structure by a hurricane should not give rise to a presumption of negligence. In an area which is not generally prone to hurricanes, this argument may hold. But in American Samoa, hurricanes are a fact of life and architects are expected to design structures to withstand hurricanes of normal strength, knowing that such structures will likely be required to withstand one or more hurricanes during their normal life span. In fact, GMA was expressly instructed and undertook to meet this standard in this case. The failure of a structure to withstand a hurricane is, therefore, generally a good indicator that either the design or construction of the structure was defective, unless the hurricane is of exceptional volatility. We have no evidence that Hurricane Ofa was in this category.

One only need read GMA's motion to see that it is conclusionary and completely devoid of any caselaw, analysis or explanation to support its assertions. This is unacceptable lawyering. T.C.R.C.P. 7(b) requires that motions, "unless made during a hearing or trial, shall be made in writing, [and] state with particularity the grounds therefor . . . ." This court has previously articulated that this rule is especially important in motions for new trial to "put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal" and "to avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways." Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 175 (1987).

[2] The generality adopted by GMA in stating the grounds for reconsideration or new trial in this motion comes very close to rendering the motion a nullity. See United States v. 64.88 Acres of Land, 25 F.R.D. 88 (1980). In any event, we believe that we adequately addressed the issues raised in the motion in our original order and will, without having the benefit of any further elaboration by GMA, deny the motion. The party moving for reconsideration or new trial must do more than reiterate our reasons for a decision and then make a blind assertion that we were incorrect. Our decision was fortified by citations of treatises and case law, which is more than we can say for GMA's motion. This court is not paid to be an advocate for either side, nor to do legal research that should be done by the attorneys, nor to guess at or construct the legal theory upon which a losing party might oppose our decision.

ORDER

For all of the foregoing reasons, we deny GMA's motion for reconsideration or new trial.

It is so ordered.

*********

G.M. Meredith and Assoc. v. Blue Pacific Mgmt. Corp.,


G.M. MEREDITH AND ASSOCIATES, 
Plaintiff and Counterdefendant

v.

BLUE PACIFIC MANAGEMENT CORP., 
Agent for Pago Plaza, Defendant and Counterclaimant

High Court of American Samoa
Trial Division

CA No. 108-90

May 26, 1995

___________

[1] An architect is liable for a failure to exercise the reasonable care and diligence exercised by one in the profession.

[2] An architect must be evaluated on the basis of technology available at the time he or she performed the work.

[3] The existence and scope of an architect's duty to supervise the implementation of plans or work methods must be determined from contractual terms, or, in their absence, from the architect's actual conduct.

[4] The distinction between the supervision of design implementation and the supervision of work method is a not a meaningful one and is therefore not legally recognized.

[5] The burden to establish the scope of supervision demanded by a profession rests upon the party alleging a breach of the professional's duty.

[6] The standard of care is ordinarily provided by expert witnesses who testify to the customs or prevailing standards of the profession.

[7] The court may take judicial notice of the generally known fact that in the Territory of American Samoa, Hurricane Val was stronger and more destructive than Hurricane Ofa in the harbor area where Pago Plaza is located.

[8] Expectation damages are the proper measure of damages for an architect's malpractice.

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

Counsel: For Plaintiff and Counterdefendant, Roy J.D. Hall, Jr. and Katopau T. Ainu`u
For Defendant and Counterclaimant, William H. Reardon

Opinion and Order:

Plaintiff G.M. Meredith and Associates ("GMA") commenced this action on December 7, 1990, to recover unpaid compensation for professional services rendered to defendant Blue Pacific Management Corp. ("Blue Pacific"), as the agent of Pago Plaza ("Plaza"). Blue Pacific counterclaimed for damages related to the installation of a skylight at the office building owned by Plaza. GMA was granted partial summary judgments, entered on April 27, 1992, and October 20, 1992, for its claim. Those judgments were paid, leaving only Blue Pacific's counterclaim at issue. Trial on the counterclaim was held on September 15, 1994. The parties' principals, GMA's George M. Meredith ("Meredith") and Blue Pacific's James L. McGuire ("McGuire"), and their counsel were present.

FACTS

On December 1, 1986, McGuire, as Plaza's agent, and Peter G. Morley ("Morley"), then in immediate charge of GMA's office and operations in American Samoa, negotiated an agreement for GMA's professional services to Plaza. They agreed to charges on an hourly basis for various services performed. They contemplated using GMA's services for several specific projects, including a skylight over the interior courtyard, at Plaza's office building in Pago Pago, American Samoa. McGuire memorialized this agreement by his letter, dated December 3, 1986, to Morley. No formal owner-architect agreement was entered.

GMA assigned Richard Frey ("Frey"), an architect at its American Samoa office, to the skylight project. McGuire and Frey discussed the project, including but not limited to a requirement that the skylight would be built to withstand hurricane-strength winds. By October 1987, Frey had completed the skylight's design, and GMA had prepared the procurement package, consisting of instructions to bidders, a bid form, and an owner-contractor agreement, for its installation. Hawkeye Construction ("Hawkeye") was awarded the contract to do the installation work. Frey supervised the ordering of the specified materials, and during a 10-day period in 1988, Hawkeye performed the work, in accordance with GMA's design and under Frey's architectural oversight.

During the evening of February 2, 1990, Plaza's office building was struck by Hurricane Ofa's rain and heavy winds. The skylight was blown from its mountings, starting at 8:00 to 9:00 p.m. The plastic panels were ripped from their fastening bolts. Some were gone completely. Others remained dangling from the roof.

Later Plaza replaced the skylight with one of substantially superior strength. It survived Hurricane Val's winds in December 1991. The replacement costs were:

Roof repairs $ 700
Skylight design 3,000
Skylight materials 13,700
Excise taxes 558
Labor 3,500
Total $ 21,458

STANDARD OF CARE

[1-2] The standard of care for an architect is set forth with clarity in First Nat. Bank of Akron v. Cann, 503 F. Supp 419, 439 (N.D. Ohio 1980).

An architect is under a duty to his employer to use the skill and 
diligence that is ordinarily exercised by architects. Thus, an architect 
does not guarantee a perfect plan, but is liable only for a failure to 
exercise reasonable care and diligence exercised by one in the in 
the profession.

See also Noble v. Worthy, 378 A.2d 674, 676-77 (D.C. 1977). This standard may be breached, notwithstanding the fact that the type of injury is "commonplace," where the injury was within "the realm of foreseeability." Mead v. Kings Supermarket, 366 A.2d 979 (N.J. 1976). Whether the standard of care is determined on the basis of standard practice in the industry or upon foreseeability of the harm, an architect must be evaluated on the basis of technology available at the time he/she performed the work. Cann, 503 F. Supp. at 439.

[3-4] The existence and scope of an architect's duty to supervise the implementation of plans or work methods must be determined from contractual terms, or, in their absence, from the architect's actual conduct. Walters v. Kellam & Foley, 360 N.E. 2d 199, 206 (Ind. 1977). The conventional rule for determining an architect's duty to supervise the implementation of his/her design is that an architect's supervisory duty is limited to the implementation of the architectural plan, and does not include supervising the contractor's method of doing the work unless otherwise specified by the parties. Lukowski v. Vecta Educational, 401 N.E. 2d 781, 785 (Ind. 1980) (construing Day v. National United States Radiator, 360 N.E. 2d 210-11). We do not believe that the distinction between the supervision of design implementation and the supervision of work method is a meaningful one, and we decline to adopt it in this jurisdiction.

[5-6] We do hold, however, that the burden to establish the scope of supervision demanded by the profession rests upon the counterclaimant. Id.

No evidence was presented, however, establishing what scope of supervision the professional standard demanded. Thus, it is not possible to conclude that GMA was under a positive legal duty imposed by law to supervise the project in such a manner that the problems would have been discovered. Cann, 503 F. Supp. at 439. The standard of care is ordinarily provided by expert witnesses who testify to the customs or prevailing standards of the profession. Noble, 378 A.2d at 676-77.

DISCUSSION

We decide this case on a theory of res ipsa loquitur. The Restatement (Second) Of Torts, § 328(D)(1) outlines the prima facie elements of a case for res ipsa loquitur:

It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.

[7] The fact that a rebuilt structure survived a second hurricane is evidence that due care was not used in building the original structure that was destroyed by a prior hurricane. See Watt v. United States, 444 F. Supp. 1191, 1194-95 (D.D.C. 1978) (the fact that millions of museum patrons had safely climbed the stairs where plaintiff was injured does not give rise to a conclusive presumption of the architect's due care); Hecht v. Harrison, 137 F.2d 687 (D.C. Cir. 1943) (the fact that thousands of customers had walked safely through aisle where plaintiff was injured does not prevent a jury from finding lack of due care by store owners).

To strengthen this conclusion, we note T.C.R.Ev. 201(b) which reads:

A judicially noticed fact must be one not subject to reasonable 
dispute in that it is either (1) generally known within the territorial 
jurisdiction of the trial court or (2) capable of accurate and ready 
determination by resort to sources whose accuracy cannot 
reasonable be questioned.

It is generally known in the Territory of American Samoa that Hurricane Val was stronger and more destructive than Hurricane Ofa in the harbor area where Pago Plaza is located. It is also generally known that Hurricane Ofa was more damaging in the Tafuna area, some distance away from Pago Plaza. Accordingly, we take judicial notice of the fact that Hurricane Val struck Pago Plaza with greater force than Hurricane Ofa.

The skylight in question was destroyed by Hurricane Ofa, but the skylight which replaced it survived Hurricane Val. Since we have taken judicial notice of the fact that Hurricane Val struck Pago Plaza with greater force than hurricane Ofa, there is a strong presumption that the skylight destroyed by Hurricane Ofa suffered from a design defect.

Although we have no expert testimony as to the standards of the architectural profession, we find, on grounds of foreseeability, that GMA had a duty to design a skylight to survive hurricanes of ordinary strength. See A.S.C.A. § 26.1002 (this section anticipates hurricane strength winds, and implicitly requires that those designing buildings plan for the inevitable hurricanes in our region). Since the threat of hurricanes is an important consideration in any building project in our region, destruction of a skylight by hurricane is something which would not ordinarily happen unless the designer was negligent in his/her duty to plan for a hurricane of ordinary strength.

Further, we find from the context of GMA's relationship with Blue Pacific that GMA was responsible to supervise the installation of the skylight in accordance with its plan. The fact that GMA had sole supervisory control of the design and installation of the skylight compels the conclusion that explanations for the destruction of the skylight, other than GMA's negligence, are sufficiently eliminated.

In summary: (1) GMA had a duty to design and supervise installation of the skylight to withstand hurricane strength winds; (2) failure of a skylight to survive a hurricane of ordinary strength normally indicates a neglect of this duty; (3) GMA was responsible for both the design and the supervision of the skylight's installation; (4) a subsequent skylight withstood a hurricane of substantially greater force than the one that destroyed the skylight designed by GMA; and (5) the destruction of a skylight by hurricane is directly within the scope of potential injuries giving rise to the duty to design the skylight to withstand such disasters. Based on a theory of res ipsa loquitur, we find that GMA was negligent with respect to its duty to design and adequately supervise the construction of Plaza's skylight which was destroyed by Hurricane Ofa.

THE MEASURE OF DAMAGES

[8] Expectation damages are the proper measure of damages for an architect's malpractice.

The appropriate measure of damage [for professional malpractice by an architect] is the reasonable cost of material and labor required to place the building in the condition contemplated by the parties at the time they entered the contract. The Bank is entitled to "the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste." Cann, 503 F. Supp. at 441 (quoting Restatement (first) Of Contracts, § 346(1)(a)(i) (1932); citation omitted).

With respect to the replacement costs for the skylight, we are not persuaded that the payment of excise taxes by Blue Pacific in the amount of $558.00 was legally required. Any remedy for payment of such taxes is against the American Samoa Government and not GMA. We therefore decrease Blue Pacific's requested damage award by that amount, but require GMA to pay Blue Pacific $20,900 in damages for negligence in the design and construction supervision of the original skylight at Plaza's office building.

Judgment shall enter accordingly.

It is so ordered.

*********

Fairholt; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ROBERT FAIRHOLT, Defendant

High Court of American Samoa
Trial Division

CR No. 4-95

May 9, 1995

__________

[1] In the interest of judicial economy, we place the burden on defendants to give the court sufficient reason to continue trial.

[2] The court will grant severance only if there is a serious risk that a joint trial would compromise a specific trial right to one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence.

[3] T.C.R.Cr.P. 14 does not give one co-defendant the standing to raise the issue of prejudice due to joinder on behalf of his co-defendants. If one co-defendant's testimony might prejudice others, it is their decision whether or not to move for a severance.

[4] The most important consideration in assessing prejudice due to joinder is whether the court can reasonably expect a jury to differentiate between the evidence against each defendant.

[5] In a joint trial, co-defendants have the right to refuse to testify based on their privilege against self-incrimination.

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

Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant, Brian M. Thompson

Order Denying Motions for Continuance and Severance:

PROCEDURAL HISTORY

On March 6, 1995, plaintiff American Samoa Government ("ASG") filed an information charging Samoa Alefosio, Raymond Schwenke, Asuele Tiumalu, and Robert Fairholt ("Fairholt") each with one count of assault in the first degree (1) in connection with the beating of Taga`imamao Masaniai ("Masaniai") on or about February 26, 1995. At the arraignment on March 7, 1995, Fairholt and his co-defendants, each represented by counsel, pleaded not guilty and requested a jury trial. Trial by jury was set on May 16, 1995.

On April 28, 1995, and May 3, 1995, respectively, Fairholt filed a motion for continuance of his trial and a motion for severance pursuant to T.C.R.Cr.P. 14. On May 4, 1995, ASG filed its opposition to Fairholt's motions. That same day, the motion for continuance and the motion for severance came regularly for hearing and all parties were represented by counsel.

DISCUSSION

I. Motion for Continuance

Fairholt requests this court to continue the trial date for 90 days for two reasons. First, Fairholt initially claimed that Masaniai is currently off-island and a continuance is necessary in order to obtain his statement. This is now factually incorrect. As ASG points out, Masaniai has returned to American Samoa and may be contacted by Fairholt at any time prior to trial. Moreover, Masaniai's present inability to offer much information, due to his current medical condition and unconscious and intoxicated state on the night of the incident, further diminishes the importance of this issue.

Second, Fairholt argued for a continuance in order to carry forward the services being rendered by his part-time investigator. This reason is not compelling. Fairholt has failed to point out to the court any specific leads he is currently following that would require additional time. Without this information, we cannot find that his request for additional time is meritorious. If this court granted a motion for continuance every time a defendant simply alleged an ongoing investigation, without offering a sound basis, defendants would be able to postpone trials indefinitely.

[1] In the interest of judicial economy, we place the burden on defendants to give the court sufficient reason to continue trial. Fairholt has failed to meet this burden, and we therefore deny his motion.

II. Motion for Severance

[2] Fairholt requested this court to sever his trial from that of the three co-defendants. T.C.R.Cr.P. 14 provides:

If it appears that a defendant or the government is prejudiced by a joinder of . . . defendants in a complaint or an information or by such joinder for trial together, the court may . . . grant severance of defendants or provide whatever other relief justice requires.

According to the foregoing language, we should grant severance of defendants "only if there is a serious risk that a joint trial would compromise a specific trial right to one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534 (1993) (construing F.R.Cr.P. 14, which essentially mirrors T.C.R.Cr.P. 14).

[3] The first ground Fairholt offered in support of severing his case from that of the co-defendants is the likelihood that joint defendants will raise antagonistic defenses. Fairholt plans to argue at trial that he attempted to protect the victim from the attack of the co-defendants. Fairholt submitted that mutually exclusive defenses exist when acquittal of one co-defendant necessarily calls for the conviction of others. United States v. Tootick, 925 F.2d 1078, 1081 (9th Cir. 1991) (citing United States v. Adler, 879 F.2d 491, 497 (9th Cir. 1988)). In applying this standard, Fairholt's anticipated testimony that he did not physically attack Masaniai and attempted to prevent the fight, neither automatically compels the conviction of any of the co-defendants nor deprives them of their defenses. Furthermore, we do not interpret Rule 14 to give Fairholt the standing to raise this argument on behalf of his co-defendants. If Fairholt's testimony might prejudice them, it is their decision whether or not to move for a severance. Additionally, in the co-defendants' statements given to the police, at least one of them admits to striking the victim, tending to corroborate Fairholt's anticipated testimony. Accordingly, we do not find a serious risk of antagonistic defenses at trial.

[4] Fairholt further argued for a severance of his case due to the varying degrees of culpability of the co-defendants. Fairholt claims that he will be prejudiced if tried with more culpable defendants. The most important consideration in assessing such prejudice is whether the court can reasonably expect a jury to differentiate between the evidence against each defendant. United States v. Sherlock, 962 F.2d 1349, 1360 (9th Cir. 1989). We expect the jury in this case to easily differentiate between the evidence against Fairholt versus the other evidence in the case. This case consists of only one victim, one count, and all the relevant facts occurred out of the same sequence of events at a single location.

The United States Supreme Court has recognized a "pragmatic" rule that "juries are presumed to follow their instructions." Richardson v. Marsh, 481 U.S. 299 (1987). In light of the simplicity of the circumstances in the present case, we hold that any potential problems with joinder of defendants in this case would be better cured with a jury instruction than with outright severance.

[5] Finally, Fairholt contended that he needs a separate trial in order to subpoena his co-defendants to elicit exculpatory evidence. In a joint trial, co-defendants have the right to refuse to testify based on their privilege against self-incrimination. Rev. Const. Am. Samoa, Art. I, § 6; U.S. Const. Amend. V. We find that the co-defendants' written statements to the police describing their version of the incident is sufficient to satisfy Fairholt's interest in the co-defendants' testimony.

ORDER

For the above reasons, we hereby deny Fairholt's motion for continuance and motion for severance.

It is so ordered.

*********

1A.S.C.A. § 46.3520(a) states in part that a person commits the crime of assault in the first degree, a class B felony, if "he knowingly or purposely causes serious physical injury to another person."

Estate of Fuimaono Tuinanau; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ESTATE OF FUIMAONO TUINANAU, SAPATI FUIMAONO, 
ESTATE OF ISUMU LEAPAGA, TUI TULIMASEALII, 
MATIUA TULIMASEALII, TAPUOLO TANIELU, IONA LAINEI, 
ETI LEFEILOAI, FEAGI LEFEILOAI, and JOHN DOES 1-10, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 30-94

September 5, 1995

___________

[1] A collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective.

[2] A.S.C.A. § 37.2001(b), which requires the government to return condemned land if not used for its stated purpose within five years after condemnation, does not have retrospective effect.

[3] Whether a statute operates retrospectively or prospectively only is one of legislative intent.

[4] Title to public premises cannot be acquired by adverse possession.

[5] After eviction, former possessors of land are entitled to remove fixtures and possessions, but they are not entitled to gain compensation for the value of their improvements, unless they are good faith possessors.

[6] A good faith possessor is one who makes improvements on land in the honest belief that he is the owner, whereas knowledge of an adverse claim usually prevents someone from being a good faith possessor.

[7] A prevailing plaintiff in an action for trespass to real property is always entitled at least to nominal damages, even in the absence of harm or plaintiff's failure to prove compensatory damages.

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendants Estate of Fuimaono Tuinanau, Sapati Fuimaono, Tapuolo Tanielu, Eti Lefeiloai, and Feagi Lefeiloai, Charles V. Ala`ilima 
For Defendants Estate of Isumu Leapaga, Tui Tulimasealii, and Matiua Tulimasealii, Afoa L.S. Lutu

Order Granting Motion for Summary Judgment:

BACKGROUND

This action was brought by plaintiff American Samoa Government ("ASG") to evict defendants from a 74.25 acre plot of land known as Plot 3 ("the premises") located in Tafuna, American Samoa.

ASG now plans to construct several public facilities on the premises in the area where defendants have constructed houses and other improvements. ASG notified defendants to vacate this area and remove their houses, but they continue to occupy the premises, contending that ASG does not have legal title to the premises.

The premises were included in the eminent domain proceedings to acquire land for development of the Pago Pago International Airport in Tafuna. First, in land ownership proceedings, LT 16-1957 (Apr. 11, 1958), this court determined that the Fagaima family, who is not a party to this action, owned the premises. Then, in the condemnation proceedings, LT 15-1959 (Dec. 28, 1959), ASG obtained fee simple title to approximately 550.83 acres, which included the premises. This condemnation, which had the legal effect of transferring title to ASG, was affirmed on appeal in AP No. 11-1960 (May 31, 1960). On January 12, 1960, ASG paid Punefu Siania $13,476.86, on behalf of the Fagaima family, as compensation for the premises.

Defendant Isumu Leapaga ("Isumu") challenged the condemnation in this court, which confirmed the validity of the condemnation proceeding and granted summary judgment on behalf of ASG. American Samoa Gov't v. Isumu, 4 A.S.R. 141 (Land & Titles Div. 1974). (1)

PROCEDURAL HISTORY

On November 23, 1994, ASG filed a complaint for trespass and injunctive relief with this court naming Sapati Fuimaono ("Sapati"), Tapuolo Tanielu ("Tanielu"), Tui and Matiua Tulimasealii (collectively "Tulimasealii"), Isumu, Iona Lainei ("Lainei"), Eti and Feagi Lefeiloai (collectively "Lefeiloai"), and John Does 1-10 as defendants. On December 28, 1994, Isumu and Tulimasealii filed an answer. On December 30, 1994, Sapati, Tanielu, and Lefeiloai moved for joinder of the Estate of Fuimaono Tuinanau ("the Fuimaono Estate") as a necessary party defendant, pursuant to T.C.R.C.P. 19(a). On February 24, 1995, we granted this motion and issued the written order on April 18, 1995, the same day counsel submitted it. On May 12, 1995, the Fuimaono Estate, Sapati, Tanielu, and Lefeiloai filed an answer.

On May 18, 1995, ASG filed a motion for summary judgment with accompanying affidavits against all defendants other than Lainei, who has not yet filed an answer or otherwise appeared in this action. Lainei is not included when defendants are generically referenced below. On July 26, 1995, Isumu and Tulimasealii filed a motion in opposition to summary judgment. Two days later, the motion came regularly for hearing, and all parties concerned were represented by counsel.

During this hearing, the court pointed out that Isumu is also deceased and his Estate should be joined as party defendant in lieu of Isumu. No counsel objected to this procedural step. Thus, on the court's own motion, we will now join the Estate of Isumu Leapaga ("the Isumu Estate") as a necessary party defendant in substitution of Isumu.

STANDARD OF REVIEW

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(c), which mirrors F.R.C.P. 56(c). In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, 369 U.S. 654 (1952)), 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, 46 (Trial Div. 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).

DISCUSSION

I. ASG is Fee Simple Title Holder

Defendants claim that the premises were never conveyed to ASG and since they have cultivated crops, built structures, and otherwise occupied the premises continually for over 50 years, they should not be removed from the premises. This is incorrect.

This court, in the L.T. No. 15-1959 condemnation judgment, decreed that the land involved, including the premises, was "condemned in fee simple and the ownership thereof in fee simple vested in the Government of American Samoa." This judgment was affirmed in A.P. No. 11-1960 and was further upheld in Isumu, 4 A.S.R. 141 (granting summary judgment on behalf of ASG in an action to evict Isumu, Fuimaono, and others from the premises), Meredith v. American Samoa Gov't, 2 A.S.R.2d 66 (Land & Titles Div. 1985), aff'd, AP 23-85 (1986), and American Samoa Gov't v. Meredith, supra, 28 A.S.R. 10 (Land & Titles Div. 1995). "[O]nce land is condemned for a public purpose, title vests in the government in fee simple." Meredith, 2 A.S.R.2d at 67.

Even if defendants have occupied the premises for many years, they have been trespassers, and their refusal to accept these judgments does not give them any interest in the premises.

II. Res Judicata

Defendants' assertion that they have a legal interest in the premises is barred by res judicata. "The sum and substance of the whole doctrine [of res judicata] is that a matter once judicially decided is finally decided." Massie v. Paul, 92 S.W.2d 11, 14 (Ky. 1936). As discussed above, several cases over the past 35 years have established ASG as fee simple title holder of the premises. Specifically, AP No. 11-1960 affirmed the condemnation judgment and barred any further action by res judicata.

The Isumu Estate and Tulimasealii argue that they deserve to have a day in court since Isumu, 4 A.S.R. 141, which in part evicted Isumu from the premises, was decided on summary judgment. The purpose of summary judgment is to determine whether or not any genuine issues exist and "not to cut litigants off from their right of trial if they really have issues to try." Sartor v. Arkansas Gas Corp., 321 U.S. 621, 627 (1943). In Isumu, this court granted summary judgment because no genuine issues of material fact existed, and for the court to conduct a trial without such issues would only hinder judicial economy and prejudice ASG.

[1] The Fuimaono Estate, Sapati, and Lefeiloa`i argue that the LT No. 15-1959 condemnation proceeding was inadequate because it lacked notice and failed to follow proper procedures. This claim is identical to the issue raised in Isumu, where the court held that the claim is not only unsupported by facts or law, but is also improper because "a collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective." Id. at 143.

III. Use of Land for Stated Purpose

The Isumu Estate and Tulimasealii assert that even if ASG legally condemned the premises in 1959, it should revert back to the original owner since ASG did not utilize the premises for the stated purpose in accordance with A.S.C.A. § 37.2001(b). This assertion is legally incorrect.

Although A.S.C.A. § 37.2001(b) forces ASG to return condemned land if not used for the stated public purpose within five years after condemnation, it is not applicable in this matter because it was not enacted until 1988, when § 37.2001 was amended to include this requirement. Previous to this amendment, neither the American Samoa Code nor the original Constitution of American Samoa nor the Revised Constitution of American Samoa contained any language that required the ASG to use condemned land within a specific term of years.

[2-3] Moreover, A.S.C.A. § 37.2001(b) does not have retrospective effect. Whether a statute operates retrospectively or prospectively only is one of legislative intent. Poston v. Clinton, 406 P.2d 623, 626 (Wash. 1965) (court applied a strict rule of construction against a retrospective operation). Because A.S.C.A. § 37.2001(b) has no controlling effect over the 1959 condemnation judgment, ASG is not required to return the land to the original owners. For the sake of discussion, even if section 37.2001(b) applied, the premises would revert back to the Fagaima family and not the defendants.

IV. Adverse Possession

Defendants assert that even if the prior court decisions are valid, title to the premises has transferred to them by adverse possession. This claim is without merit.

[4] It is a generally recognized principal of law that title to public premises cannot be acquired by adverse possession. Kempner v. Aetna Hose, Hook & Ladder Co., 394 A.2d 238, 239 (Del. 1978). A.S.C.A. § 37.0120(a) permits title to confer by adverse possession to a party who has had "actual, open, notorious, hostile, exclusive and continuous occupancy" for 30 years, but this statute does not apply to land owned by ASG, because the statute of limitations for adverse possession does not run against the government. Anderson v. Vaivao, 21 A.S.R. 2d 95, 105 (App. Div. 1992).

V. Verbal Promises

An affidavit by Emma Randall, Isumu's daughter, accompanied the opposition to a summary judgment by the Isumu Estate and Tulimasealii and claimed that Governor A.P. Lutali, on three separate occasions, promised to return the premises to Isumu or his heirs as the rightful owner. These promises are not based on valid consideration and are unenforceable.

"[A] promise made without supporting consideration is unenforceable." American Samoa Gov't v. Meredith, supra, 28 A.S.R. 92, 99 (Land & Titles Div. 1995) (quoting Powers Restaurants, Inc. v. Garrison, 465 P.2d 761, 763 (Okl. 1970)). Without valid consideration, these promises are at most offers to make a gift and "[a] mere promise to make a gift is not enforceable." Id. (quoting Oman v. Yates, 422 P.2d 489, 494 (Wash. 1967)). The mere expression of an intention or desire is not an enforceable promise, unless there is an undertaking to carry out the intention into effect. Id. (citing E.I. Dupont De Numours & Co. v. Claiborne-Reno Co., 64 F.2d 224, 233 (8th Cir. 1933)).

Governor Lutali never carried out any of the alleged promises to give the premises to Isumu or his heirs. Therefore, if made, these promises are merely offers to make a gift and unenforceable. Furthermore, governors are not authorized to unilaterally give away public lands.

VI. Lack of Just Compensation

The Isumu Estate and Tulimasealii contend that they deserve just compensation because the Fagaima family never owned the premises. This claim is also without merit.

Prior to the condemnation proceeding, the court, in LT 16-1957, determined that the Fagaima family held title to the premises and as a result, on January 12, 1960, ASG paid this family $13,476.86 as compensation for the premises. Isumu failed to assert a claim at that time. The Fonoti family was the only other claimant to the premises, and defendants' attempt to assert such a claim, either in 1974 or now, is barred by res judicata. Isumu, 4 A.S.R. at 143.

VII. Improvements to Land

[5] Defendants contend that if they are evicted from the premises because ASG is legal title holder, that they should be entitled to compensation for improvements they have made on the premises during their years of occupancy. "After eviction, former possessors of land are entitled to remove fixtures and possessions," Leomiti v. Pu`efua, LT No. 5-94, slip op. at 6 (Land & Titles Div. 1995), but they are not entitled to gain compensation for the value of their improvements, unless they are good faith possessors. Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988).

[6] "A good faith possessor is one who makes improvements on land in the honest belief that he is the owner," whereas knowledge of an adverse claim usually prevents someone from being a good faith possessor. Id. Defendants have known that ASG is the legal owner of the premises since 1974 at the latest, and most likely since 1960. Thus, they are not good faith possessors and are not entitled to any compensation.

[7] ASG additionally prays for damages as the result of defendants' trespass on the premises. A prevailing plaintiff in an action for trespass to real property is always entitled to at least to nominal damages, even in the absence of harm or plaintiff's failure to prove compensatory damages. Longenecker v. Zimmerman, 267 P.2d 543, 545 (Kan. 1954);Nappe v. Anschelewitz, 477 A.2d 1224, 1228 (N.J. 1984) (in a trespass action, proof of actual damage is not required because the invasion of the plaintiff's property rights is regarded as a tort in itself). Accordingly, ASG is entitled to recover nominal damages in the amount of $1 from the defendants.

ORDER

1. It is established that there is no genuine issue as to any material fact and that ASG is entitled to judgment as a matter of law. Therefore, summary judgment shall be entered in favor of ASG and against defendants.

2. Defendants are evicted from the premises, effective immediately.

3. Defendants are permitted to enter the premises for a period not exceeding 60 days after the entry of this order for the sole purpose of removing any structures, fixtures, and other improvements or possessions belonging to them. If such items are not removed within that time, they shall become ASG's property, Leomiti v. Pu`efua, LT No. 5-94, slip op. at 7 (Land & Titles Div. 1995); Laulu v. Taaseu, 23 A.S.R.2d 1, 6 (Land & Titles Div. 1992), and ASG will be entitled to recover any reasonable cost it incurs in the removal of the structures, fixtures, and possessions. Anchorage Yacht Haven Inc., v. Robertson, 264 So. 2d 57, 61 (Fla. 1972); see Restatement (Second) Of Torts, § 160 (1965).

4. Each of the defendants shall pay to ASG nominal damages in the amount of $1.00 within 30 days of the entry of this order.

5. Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are also permanently enjoined to immediately leave the premises and from entering, except as allowed above, or remaining on the premises, or at any time undertaking any construction thereon, or directly or indirectly interfering with ASG's construction of improvements upon or any other use of, and quiet enjoyment of, the premises.

It is so ordered.

*********

1In Isumu, the court granted summary judgment on behalf of ASG in its action to evict Isumu from Plot 3, and Fuimaono Tuinanau ("Fuimaono") from Plot 3 and Plot 6, as well as four other parties not involved in this action.

Bradcock v . American Samoa Gov’t,


GARY W. BRADCOCK, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa
Trial Division

CA No. 184-94

August 31, 1995

__________

[1] It is not the intent of the Government Tort Liability Act, A.S.C.A. § 43.1202 et seq., to create a four-year limitation period in which the government can be sued in tort. A party may not wait two years to file an administrative clam and then two more years to file a court case.

[2] In cases under the Government Tort Liability Act, laches analysis should take into account the overall delay in bringing the action into court, and not merely the delay in bringing the administrative claim.

[3] The statute of limitations in a suit against the government may begin to run before the filing of an administrative claim if the prospective plaintiff unreasonably delays the administrative filing.

[4] In suits against the government, the court should ordinarily limit litigants to some overall period resembling the two-year statute of limitations imposed upon litigants suing private defendants, while taking into account the extra time required for exhausting administrative remedies.

[5] If the delay in perfecting a right to sue is out of the plaintiff's control, the cause of action will accrue when the right is perfected, but if the plaintiff controls the condition, plaintiff must perfect the right within a reasonable time, which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay.

[6] When deciding whether the plaintiff perfected the right to sue within a reasonable time the court may consider not only when the administrative claim was filed, but when it could have been filed. The express purpose of this rule is to prevent the frustration of legislative intent by allowing a plaintiff to unilaterally extend the limitation period.

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

Counsel: For Plaintiff, Cheryl Crenwelge
For Defendant, Henry W. Kappel, Assistant Attorney General

Order Denying Motion for Reconsideration:

On May 30, 1995, this court denied plaintiff Gary W. Bradcock's claim for relief under the Government Tort Liability Act on the basis of laches. Bradcock now moves for reconsideration, arguing that we should strictly follow our holding in Mataipule v. Tifaimoana, 16 A.S.R.2d 48 (Trial Div. 1990) ("Mataipule"). Bradcock further argues that our decision is erroneous because we did not hear evidence regarding the reasonableness of his delay in filing his case.

DISCUSSION

This well-reasoned motion to reconsider presents an excellent illustration of our concern that, without legislative line-drawing, interpretation of the statute of limitations for government tort claims is inherently hazardous business. Bradcock v. American Samoa Gov't, supra, 28 A.S.R.2d 66, 68 n. 1 (Trial Div. 1995). Until the legislature creates separate limitation periods for filing the administrative claim and the subsequent lawsuit, it will remain difficult for the courts to vindicate legislative intent.

I. The Mataipule Rule

According to Bradcock, Mataipule stands for the principle that a tort claim against the government accrues at the time the administrative claim is denied, and the timeliness of the administrative claim is governed by common law laches doctrine. Contrary to Bradcock's contention, we did in fact apply Mataipule, although questioning its validity. For this reason, the continuing vitality of Mataipule is not an issue which would change our decision. Our application of the "laches" segment of Mataipule, however, merits additional discussion.

II. Laches

[1] In Bradcock's case, we pointed to the fact that Bradcock waited almost 10 months after denial of the administrative claim to file his court action, unlike the Mataipule plaintiff, who had the court case ready and waiting as soon as the administrative claim was denied. We made this point only to illustrate the practical absurdity of allowing a laches period of almost two years prior to the filing of the administrative claim, and then an automatic fresh two year period following the denial of the administrative claim. That interpretation of Mataipule could effectively create an unacceptable four year limitation period in which the government could be sued. This very problem was the basis for this court's later criticism of Mataipule. . . . a separate two-year limit for bringing the administrative claim could be imposed by analogy, the effect would be to give people injured by government employees four and one-half years to sue, in curious contrast to the two years given those who have been sued by private persons.

Randall v. American Samoa Gov't, 19 A.S.R.2d 111, 116 (Trial Div. 1991). The intent of the Government Tort Liability Act (A.S.C.A. § 43.1202 et seq.) is most certainly not to create a four-year limitation period in which the government can be sued in tort.

There are two rules which could potentially be used to interpret the laches analysis in Mataipule. One possibility provides a reasonable time within which the administrative claim must be filed or else the statute will accrue anyway, in effect an extension of the statute of limitations to allow for the filing of the administrative claim. The second possibility is to apply the statute of limitations by analogy.

A. Reasonable Time

[2-4] In light of the Randall court's persuasive criticism of Mataipule, laches analysis should take into account the overall delay in bringing the action into court, and not merely the delay in bringing the administrative claim. Additionally, the Mataipule court approvingly quoted language of the California Court of Appeals:

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

Mataipule, 16 A.S.R.2d at 53 (quoting Valvo v. University of Southern California, 136 Cal Rptr. 865, 869 (1977) (emphasis added)); See also Scates v. State, 383 N.E.2d 491, 493 (Ind. 1978) (cited in Mataipule, 16 A.S.R.2d at 54). The foregoing language indicates that the statute of limitations may begin to run before the filing of an administrative claim if the prospective plaintiff unreasonably delays the administrative filing. (1)

In the present case, the plaintiff delayed filing his court action for almost 10 months after denial of the administrative claim, which was too long a period in light of his 21 month delay prior to filing the administrative claim. In light of the Randall court's criticism of Mataipule, we should ordinarily limit litigants to some overall period resembling the two-year statute of limitations imposed upon litigants suing private defendants, while taking into account the extra time required for exhausting administrative remedies. (2)

B. The Statute of Limitations Applied by Analogy

[5-6] Of the eight authorities cited by the Mataipule court in support of a "reasonable time" limitation for the filing of the administrative claim, only two directly utilize the term "laches." In one of those two cases the statutory limitation period was applied by analogy without resort to equitable considerations, because the plaintiff had unilaterally delayed (for longer than the limitations period) the filing of a claim with the Commissioner, which, if denied, would have perfected his right to sue, causing the statute of limitations to accrue. Jackson v. Tom Green County, 208 S.W.2d 115 (Tex. 1948). In the other case, the relevant court recognized an exception to the rule that a statute of limitations accrues when the right to sue is perfected, where the prospective plaintiff controls a condition necessary to perfect the right and unreasonably delays the fulfillment of the condition. Wade v. Jackson County, 547 S.W.2d 371, 374 (Tex. 1977). In the present case, Bradcock's obligation to exhaust his administrative remedies before filing suit was under his control. It is intuitive from a reading of both of the aforementioned cases that when the limitation period is applied by analogy, it should not later be applied literally, effectively doubling the limitation period. The statute of limitations may be applied by analogy to guide laches analysis where the prospective plaintiff has the power to perfect his right to sue, and he/she unreasonably delays perfecting the right. If the delay in perfecting a right to sue is out of the plaintiff's control, the cause of action will unquestionably accrue when the right is perfected, but if the plaintiff controls the condition, he must perfect the right within a "reasonable time" which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay. Hamrick v. Indianapolis Humane Society, 174 F.Supp. 403, 408-09 (S.D. Ind. 1959) (cited in Mataipule, 16 A.S.R.2d at 54). When deciding whether the plaintiff perfected his right to sue within a "reasonable time" the court may consider not only when the administrative claim was filed, but when it "could have been" filed. See id. at 408. The express purpose of this rule is to prevent the frustration of legislative intent by allowing a plaintiff to unilaterally extend his/her own limitation period. Jackson at 117-18; Wade at 374.

The underlying purpose behind the Mataipule rule was not to give litigants suing the government an extended limitation period based on non-sequitur equitable considerations as Bradcock implicitly contends. Rather, it was intended to prevent the "mauling of the statute" which would result if the government were permitted to sit idly by at its option, and watch the statute of limitations run on a tort claim which was filed with the Attorney General in a timely manner. Mataipule, 16 A.S.R.2d at 50, 55.

III. Mataipule's Alternative Holding

Our alternative holding in Mataipule tolls the statute of limitations during the pendency of the administrative claim on the theory that "filing an administrative claim with the Attorney General constituted the beginning of an action within A.S.C.A. § 43.1204, as the administrative claim was not an independent action but was the first and mandatory step in plaintiff's recourse to the courts." Mataipule, 16 A.S.R.2d at 56. It is clear that Bradcock's case is further barred by a strict application of the alternative holding of Mataipule, which, in our view, is clearly valid law and takes into account the extra time required for a litigant to exhaust administrative remedies.

CONCLUSION

Mataipule essentially stands for the principle that the government may not simply delay decisions regarding timely filed tort claims while the statute of limitations runs to the detriment of the claimant. Mataipule should not be read to permit the claimant to purposely avoid the statute of limitations by failing to file his/her administrative claim until the eleventh hour, and then expect a fresh limitation period when the claim is denied. In the present case, allowing a fresh two-year period following the denial of the administrative claim would amount to judicially creating a statute of limitations of almost four years. To do so would defeat legislative intent. We therefore deny the plaintiff's motion to reconsider.

It is so ordered.

*********

1. Under the facts of the Mataipule case, the statute could have begun to run at some time prior to the filing of the administrative claim, but clearly did not expire since the administrative claim was filed within two years following the injury, and the court action was effectively filed immediately following denial of the administrative claim.

2. "The government's position effectively [and incorrectly] implies that the limitations period is not always two years but that in certain cases it is one year and nine months." Mataipule, 16 A.S.R.2d at 50.

Bradcock v. American Samoa Gov’t,


GARY W. BRADCOCK, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa
Trial Division

CA No. 184-94

May 26, 1995

__________

[1] Plaintiffs have a legal duty to file administrative claims within a reasonable time or they will be barred by the doctrine of laches.

[2] The statute of limitations is tolled during the period that a timely filed administrative claim is before the Attorney General.

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

Counsel: For Plaintiff, Tate J. Eldridge
For Defendant, Henry W. Kappel, Assistant Attorney General

Order Granting Motion for Summary Judgment:

FACTS

Plaintiff Gary W. Bradcock ("Bradcock") was injured on January 7, 1992, while returning to the vessel where he was employed as Chief Engineer, and alleges that the injury resulted from an attack by an unknown assailant wielding a golf club. Bradcock claims that defendant, American Samoa Government ("ASG"), was negligent in the duty to provide adequate security for the waterfront area.

On September 30, 1993 Bradcock filed a government tort claim with ASG pursuant to A.S.C.A. § 43.1202 et seq. This claim was effectively denied on December 30, 1993, because three months had elapsed since the filing of the claim with no reply by ASG. A.S.C.A. § 43.1205(a). On October 25, 1994, Bradcock filed this action. On January 6, 1995, ASG moved for summary judgment on the ground that the two-year limitation period prescribed in A.S.C.A. § 43.1204 had expired.

STANDARD OF REVIEW

Summary judgment is appropriate where there is no issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. T.C.R.C.P., Rule 56. It may be invoked only when "no genuine issue as to any material fact" exists. Anderson v. Liberty Lobby, 477 U.S. 242, 247-250 (1986); Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material are presumed to be true, and that all inferences are construed in a light most favorable to the non-moving party. Ah Mai v. American Samoa Gov't, 11 A.S.R. 2d 133, 136 (Trial Div. 1989); see also Lokan v. Lokan, 6 A.S.R. 2d 44, 46 (Trial Div. 1987); U.S. v. Diebold, 369 U.S. 654 (1952)

DISCUSSION

The issue of whether Bradcock's petition is barred by the statute of limitations is determined by the date his claim accrued, and whether the filing of his prerequisite administrative claim with ASG under A.S.C.A. § 43.1205 constituted the commencement of an action within the meaning of A.S.C.A. § 43.1204, thereby tolling the statute of limitations. In support of his opposition to ASG's motion, Bradcock cites Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 55 (Trial Div. 1990), for the proposition that for purposes of A.S.C.A. § 43.1204, his claim only accrued when his administrative claim was denied, on December 30, 1993.

I. Claim Accrual

In Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 49 (Trial Div. 1990), plaintiffs filed an administrative claim within two years of plaintiff's injury, but at a time when less than three months of the two-year period remained. The Attorney General denied the claim after the two-year period following the injury had lapsed. Id. at 49.

[1] These facts presented the issue of whether a government tort claim accrues at the time of injury or on the date that the administrative claim is denied. On this question, "we [held] that for purposes of A.S.C.A. § 43.1204 a claim accrues when the administrative claim is denied." Id. at 55. The continuing vitality of this holding, however, has been questioned in dicta in Randall v. American Samoa Government, 19 A.S.R.2d 111, 116 (Trial Div. 1991), pointing out that it could "have the odd effect of giving injured persons an indefinite amount of time in which to sue, since the Government Tort Liability Act does not specify a time limit for bringing administrative claims." While making its ruling the Mataipule court also expressed concern that such a ruling might allow a plaintiff to "dawdle indefinitely" without worrying about the limitations period. Mataipule, 16 A.S.R.2d at 53. To answer this concern, the Mataipule court declared that plaintiffs carry a legal duty to file administrative claims within a "reasonable time" or they will be barred by the doctrine of laches. Id. at 55. The Randall Court pointed out that, even if "a separate two-year limit for bringing the administrative claim could be imposed by analogy, the effect would be to give people injured by government employees four and one-half years to sue, in curious contrast to the two years given those who have been injured by private persons." Randall, 19 A.S.R.2d at 116. This scenario may well be the practical result of the Mataipule rule, which may someday need to be revisited. (1) In the present case, the suit was filed two years, nine months and seventeen days following the accident. Bradcock waited almost twenty-one months before filing his administrative claim, and after it was denied, waited almost 10 months to file this lawsuit. If we permit Bradcock to file his claim twenty-one months after the injury, and then allow him a fresh two years after the claim's denial to file his lawsuit, the result would, indeed, be to provide a four-year statute of limitations as feared in Randall, at 116. We need not reach the question of overruling Mataipule since Bradcock's claim is barred by the doctrine of laches, regardless of whether we hold that it accrued at the time he knew the essential facts about his injury, as suggested in Randall.

II. Tolling

[2] Mataipule's "alternative holding," which was embraced in Randall, 19 A.S.R.2d at 117, is clearly valid law, and was a sufficient basis in itself for the decision in Mataipule.

The administrative claim was required by statute as part and parcel of plaintiff's remedial course, which would culminate in a lawsuit upon an unfavorable administrative decision. We hold that filing the claim with the Attorney General constituted the beginning of an action within A.S.C.A. § 43.1204, as the administrative claim was not an independent action but was the first and mandatory step in plaintiff's recourse to the courts.

Id. at 56. The foregoing rule operates to toll the statute of limitations during the period that a timely filed claim is before the Attorney General. Randall, 19 A.S.R.2d at 117; Mataipule 16 A.S.R.2d at 56. Since one year, eight months and 23 days passed between Bradcock's injury and his administrative claim, and more than nine months passed between denial of the administrative claim and this lawsuit, we hold that the two-year limitation period had expired when Bradcock filed the action and is, therefore, legally barred. Finding that Bradcock's claim is barred by laches regardless of its accrual date, and that he is late in filing this action even if the limitation period is tolled during the pendency of the administrative claim, the motion for summary judgment is granted.

It is so ordered.

1If the Fono made a plain legislative pronouncement creating a limitation period for the filing of an administrative claim under the G.T.L.A., and indicating the time period after denial of the administrative claim within which a lawsuit must be commenced, this conjecture and confusion about how to apply the statute of limitations, in light of the mandatory administrative claim, would be eliminated. As we stated in Mataipule:

The G.T.L.A. is apparently wanting and requires fixing, but that is a 
task constitutionally assigned to the Fono. Congress has clarified the 
enactments dealing with government tort liability at the federal level. 
The G.T.L.A. only partly reflects its federal counterpart in that the 
imposition of an administrative review requirement was not accompanied 
by a corresponding change in the limitations period.

Mataipule was decided almost five years ago, but the Fono has apparently not picked up our cue. We believe, however, that until the legislature exercises its line-drawing function, the exercise of enforcing the statute of limitations in light of G.T.L.A.'s administrative review requirement will remain a hazardous one.

American Samoa Gov’t v. Antonion,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

LEO TOGIA ANTONIO, Defendant

High Court of American Samoa
Trial Division

CR No. 36-95
CR No. 39-95

August 10, 1995

__________

[1] Judicial economy and legitimate public interests favor a joinder of all offenses against the accused.

[2] Whether joinder of offenses or defendants is appropriate is determined on a case by case basis.

[3] Counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they are of the same or similar character, even if the offenses are distinct and unrelated. Rule 8(a) recognizes the adverse effect on defendants of having evidence of multiple unrelated crimes presented in one proceeding, but this negative effect is outweighed by gains in trial economy when one of the criteria of the rule are met. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to demonstrate an abuse of discretion by a trial court.

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

Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General 
For Defendant, Reginald E. Gates, Public Defender

Order of Joinder:

The government moves to join these two cases relating to various offenses charged which were allegedly committed by the same defendant in two separate and unrelated incidents. The government alleges that on March 27, 1995, the defendant severely beat his mother-in-law and father-in-law with a rock following a surprise attack on his father-in-law, and amid the confusion created by the assault, he stole his mother-in-law's purse containing money and identification documents. On this basis, the defendant is charged with Burglary in the First Degree, Assault in the Second Degree, Assault in the Third Degree, and four counts of Stealing. (CR No. 36-95).

In a separate action, the government alleges that on July 14, 1995, the defendant, armed with a rock, forcibly stole money from the KS Amusement Center and that in the course of this theft he utilized a rock to inflict serious physical injury upon the night clerk in a surprise attack. On this basis, the defendant is charged with Robbery in the First Degree, and Assault in the First Degree. (CR No. 39-95). The Government seeks to join all these offenses resulting from the aforementioned incidents, pursuant to T.C.R.Cr.P Rule 8(a).

DISCUSSION

T.C.R.Cr.P. 8(a) permits joinder of offenses:

Two or more offenses may be charged in the same information in 
a separate count for each offense if the offenses charged, whether 
felonies or misdemeanors, are of the same or similar character or 
are based on the same act or transaction or on two or more acts 
or transactions connected together or constituting parts of a common 
scheme or plan.

[1-2] Broad interpretation of this rule is encouraged in the interest of efficiency. Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966). "Judicial economy and legitimate public interests favor a joinder of all offenses against the accused." United States v. Dennis, 625 F.2d 782, 801 (8th Cir. 1980). Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. Haggard, 369 F.2d at 974.

[3] In the joinder of counts pertaining to separate defendants under T.C.R.Cr.P. 8(b), "[m]ere factual similarity of events will not suffice," but "[rather there must be some greater 'logical relationship' between the occurrences" in order for joinder to be proper. United States v. Ford, 632 F.2d 1354, 1372 (9th Cir. 1980) (construing F.R.Cr.P. 8(b), which T.C.R.Cr.P. 8(b) mirrors). Nevertheless, counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they "are of the same or similar character." This is true, even if the offenses are "distinct," and unrelated. United States v. Werner, 620 F.2d 922, 927 (2d Cir. 1980). Rule 8(a) recognizes the adverse effect on the defendant of having evidence of multiple unrelated crimes presented in one proceeding, but "considers this to be outweighed by gains in trial economy when one of the criteria of the rule are met." Id. at 929. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to demonstrate an abuse of discretion by a trial court. Id. at 928.

In the matter at hand, the defendant is accused of two unrelated incidents. Both incidents involve surprise attacks, violent assaults using rocks, and the theft of money. The two events are strikingly similar, to the point that it may be persuasively argued that they are of precisely the "same . . . character," satisfying T.C.R.Cr.P. 8(a). In view of these factors, joinder appears proper and in the public interest. The government's motion to CR No. 36-95 and CR No. 39-95 is, therefore, granted.

It is so ordered.

*********

Antonion; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

LEO TOGIA ANTONIO, Defendant

High Court of American Samoa
Trial Division

CR No. 36-95
CR No. 39-95

August 10, 1995

__________

[1] Judicial economy and legitimate public interests favor a joinder of all offenses against the accused.

[2] Whether joinder of offenses or defendants is appropriate is determined on a case by case basis.

[3] Counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they are of the same or similar character, even if the offenses are distinct and unrelated. Rule 8(a) recognizes the adverse effect on defendants of having evidence of multiple unrelated crimes presented in one proceeding, but this negative effect is outweighed by gains in trial economy when one of the criteria of the rule are met. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to demonstrate an abuse of discretion by a trial court.

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

Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General 
For Defendant, Reginald E. Gates, Public Defender

Order of Joinder:

The government moves to join these two cases relating to various offenses charged which were allegedly committed by the same defendant in two separate and unrelated incidents. The government alleges that on March 27, 1995, the defendant severely beat his mother-in-law and father-in-law with a rock following a surprise attack on his father-in-law, and amid the confusion created by the assault, he stole his mother-in-law's purse containing money and identification documents. On this basis, the defendant is charged with Burglary in the First Degree, Assault in the Second Degree, Assault in the Third Degree, and four counts of Stealing. (CR No. 36-95).

In a separate action, the government alleges that on July 14, 1995, the defendant, armed with a rock, forcibly stole money from the KS Amusement Center and that in the course of this theft he utilized a rock to inflict serious physical injury upon the night clerk in a surprise attack. On this basis, the defendant is charged with Robbery in the First Degree, and Assault in the First Degree. (CR No. 39-95). The Government seeks to join all these offenses resulting from the aforementioned incidents, pursuant to T.C.R.Cr.P Rule 8(a).

DISCUSSION

T.C.R.Cr.P. 8(a) permits joinder of offenses:

Two or more offenses may be charged in the same information in 
a separate count for each offense if the offenses charged, whether 
felonies or misdemeanors, are of the same or similar character or 
are based on the same act or transaction or on two or more acts 
or transactions connected together or constituting parts of a common 
scheme or plan.

[1-2] Broad interpretation of this rule is encouraged in the interest of efficiency. Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966). "Judicial economy and legitimate public interests favor a joinder of all offenses against the accused." United States v. Dennis, 625 F.2d 782, 801 (8th Cir. 1980). Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. Haggard, 369 F.2d at 974.

[3] In the joinder of counts pertaining to separate defendants under T.C.R.Cr.P. 8(b), "[m]ere factual similarity of events will not suffice," but "[rather there must be some greater 'logical relationship' between the occurrences" in order for joinder to be proper. United States v. Ford, 632 F.2d 1354, 1372 (9th Cir. 1980) (construing F.R.Cr.P. 8(b), which T.C.R.Cr.P. 8(b) mirrors). Nevertheless, counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they "are of the same or similar character." This is true, even if the offenses are "distinct," and unrelated. United States v. Werner, 620 F.2d 922, 927 (2d Cir. 1980). Rule 8(a) recognizes the adverse effect on the defendant of having evidence of multiple unrelated crimes presented in one proceeding, but "considers this to be outweighed by gains in trial economy when one of the criteria of the rule are met." Id. at 929. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to demonstrate an abuse of discretion by a trial court. Id. at 928.

In the matter at hand, the defendant is accused of two unrelated incidents. Both incidents involve surprise attacks, violent assaults using rocks, and the theft of money. The two events are strikingly similar, to the point that it may be persuasively argued that they are of precisely the "same . . . character," satisfying T.C.R.Cr.P. 8(a). In view of these factors, joinder appears proper and in the public interest. The government's motion to CR No. 36-95 and CR No. 39-95 is, therefore, granted.

It is so ordered.

*********

In re a Minor Child (JR No. 18-95),


In the Matter of A MINOR CHILD (1)

High Court of American Samoa

Trial Division

JR No. 18-95

May 11, 1995

__________

[1] Full faith and credit requires that a forum should respect an earlier judgment to the extent that issues presented therein received a res judicata determination. U.S. Const., Art. IV, § 1.

[2] Under the full faith and credit clause, a forum state has as much leeway to modify or depart from a foreign judgment as does the state in which it was rendered. U.S. Const., Art. IV, § 1.

[3] When a court obtains jurisdiction over a minor, its power to modify the custody arrangements in the interest of that child are equal to those of the state issuing the original decree.

[4] In a state where the welfare of the child is the primary consideration in shaping a custody decree and where the custody decree is not irrevocable or unchangeable, the custody decrees of that state's courts are ordinarily not res judicata in that state or elsewhere, except as to the facts before the court at the time of judgment.

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

Counsel: For the child, Reginald E. Gates, Assistant Public Defender
For petitioner, Albert Mailo
For respondent, William H. Reardon

Order Awarding Child Custody:

HISTORY

This case concerns the physical custody of a minor child. Petitioner is the child's maternal grandfather. Respondent is the child's father.

The child's father and mother were divorced in 1986 in the State of Oklahoma, with custody awarded to the mother. Although the father had physical custody of the child for periods of time after the divorce, the child was in his mother's custody in California when he engaged in illegal conduct and was adjudged a delinquent. The Superior Court of California, City and County of San Francisco, Juvenile Division ("California court"), issued an order November 18, 1994, declaring the child a ward of the California court for a period of five years and eight months and requiring him to reside with his grandfather in American Samoa. The child's father was unaware of these proceedings and was therefore not involved in them.

After finding out that the child was residing with his grandfather in American Samoa, his father took him from a Boy Scout meeting and refused to return him to his grandfather. On March 7, 1995, this court issued an order to show cause and temporary restraining order requiring the father to return custody of the child to the grandfather, pending the hearing scheduled on March 14, 1995, on the grandfather's application for a temporary injunction.
On March 14, 1995, this court appointed the Public Defender to represent the child, continued the hearing until March 15, 1995, and set aside the temporary restraining order to permit the child to stay with his father until the next day.

On March 15, 1995, this court directed the preparation of a social services report on the child's present circumstances, set an evidentiary hearing for April 12, 1995, returned custody of the child to his grandfather in deference to the California court's order, pending the evidentiary hearing, and mutually enjoined the father and grandfather from removing the child from American Samoa. (2)

Because the child was in school and not the courthouse at the scheduled time on April 12, 1995, we postponed the evidentiary hearing until April 13, 1995. On April 13, 1995, a hearing was held with all parties present with counsel. At that hearing, which included consideration with the parties of the findings of the social services report and a private consultation between the judges and the child, we awarded custody of the child to his father, and reasonable visitation rights to the grandfather, mother, and other family members.

Our custody determination was based on three principal factors. First, the child's past relationship with his father has been positive and beneficial. Second, the child's father has remarried, adding a measure of stability to the family environment. Circumstances indicate a good relationship between the child and his stepmother and his stepsiblings. Third, the child has a strong preference to live with his father, although he appreciates his grandfather's efforts in his behalf.

DISCUSSION

When we awarded custody of the child to the father, we stated our intention to issue a written decision explaining our order in the light of the California court's order placing custody with the grandfather.

[1] The U.S. Constitution, Article IV, section 1 requires that "[f]ull faith and credit shall be given in each state to the . . . judicial proceedings of every other state." Despite the fact that American Samoa is a territory, rather than a state, the full faith and credit requirement is applicable here. A.S.C.A. § 43.1702 et seq.; Southwest Marine of Samoa v. S & S Contracting, 6 A.S.R.2d 62, 64 (App. Div. 1987).

[2] According to the U.S. Supreme Court, a judgment is not more conclusive (or deserving of "faith and credit") in any state than it is in the state in which it was rendered. New York v. Halvey, 330 U.S. 610, 614 (1946). In other words, the forum state has as much leeway to modify or depart from a foreign judgment as does the state in which it was rendered. Id. at 615; Kovacs v. Brewer, 356 U.S. 604, 607 (1958).

[3] When a court obtains jurisdiction over a minor, its power to modify the custody arrangements in the interest of that child are equal to those of the state issuing the original decree. Brown v. Stevens, 331 F.2d 803, 805 (D.C. Cir. 1964). The forum should respect the earlier judgment to the extent that issues presented therein received a res judicata determination. Id.

[4] In a case factually very similar to the present case, the U.S. Supreme Court held that a custody decree is not res judicata where circumstances call for a different arrangement to protect the child's welfare. Kovacs, 356 U.S. at 608. Under California law, the primary consideration in a child custody determination is "the best interest and welfare of the child," and the trial court is given "broad discretion in awarding custody or in modifying a prior award." Schlumpf v. Super. Ct., 145 Cal. Rptr. 190, 195 (1978); In re Marriage of Popenhager, 160 Cal. Rptr., 379, 383 (1979). In a state where the welfare of the child is the primary consideration in shaping a custody decree and where the custody decree is not irrevocable or unchangeable, "the result is that the custody decrees of [California] courts are ordinarily not res judicata in [California] or elsewhere, except as to the facts before the court at the time of judgment." Halvey, 330 U.S. at 613. The D.C. Circuit similarly found that "[i]n California as in the District, the paramount consideration is the welfare of the child, and it is the duty of the court to which the question is presented, to change the custody if the best interests of the child require it." Langan v. Langan, 150 F.2d 979, 983 (D.C. Cir. 1945). The D.C. Circuit further found that courts act not as arbiters determining adversary rights in human chattels, but as parens patriae, making awards solely on the basis of the child's welfare. Id. at 980. When the California court awarded custody to the grandfather, it adjudicated the fitness of the child's grandfather to serve as his guardian as compared to the mother, not as compared to the father. The facts about the father's fitness to serve as the child's natural guardian were neither before the California court, nor were his parental rights adjudicated in the California proceeding. There was no res judicata determination of the father's fitness as a parent to the child.

While there is a presumption in favor of preserving a child's existing custody arrangement in order to prevent disruptions in a child's life, we find that the combination of circumstances, including the child's clearly stated preference, make it advantageous for him to live with his father at this time. Hence, we continue in effect the bench order of April 13, 1995, awarding the child's custody to his father, subject to reasonable visitation rights by his grandfather, mother, and other family members.

It is so ordered.

1.

2. The court also imposed a curfew on the child from 6:00 p.m. until 6:00 a.m., required him to attend school, and allowed the father to liberally exercise visitation rights, including during after-school hours before the curfew and on weekends.

Gurr v. Scratch,


DOROTHY GURR and STANLEY GURR, Plaintiffs

v.

NEIL SCRATCH and SALA SCRATCH, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 26-94

April 26, 1995

__________

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

Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendants, Afoa L. Su`esu`e Lutu

Opinion and Order:

The parties to this action disagree as to the boundary line between a parcel of land (Lot "G"), currently owned by plaintiffs Dorothy and Stanley Gurr ("the Gurrs"), and its adjacent parcel ("Lot S") to the southeast, presently occupied by defendants Neil and Sala Scratch ("the Scratches") and owned by Sala Scratch ("Sala"). This boundary dispute was tried on February 23 and 24, 1995. The parties were represented by counsel.

FACTS

By warranty deed, dated May 23, 1977, and recorded May 25, 1977, the original owner conveyed Lot S to Manu`a Dewees ("Dewees"). By warranty deed, dated and recorded April 12, 1979, Dewees conveyed Lot S to Roy J.D. and Koroseta V. Hall, Jr. ("the Halls"). By warranty deed, dated and recorded July 25, 1990, the Halls conveyed Lot S to Sala.

When the Halls acquired Lot S in 1979, they had the land resurveyed. This survey work was done by Meko L. Aiumu ("Aiumu"), a registered surveyor in American Samoa and Manager of the Survey Branch, Department of Public Works, American Samoa Government. Aiumu determined that the legal description of Lot S contained in the original owner's deed to Dewees and Dewees' deed to the Halls incorrectly located most of Lot S within the northeasterly portion of a different, adjacent lot to the southeast of Lot S, also owned by Sala. Aiumu then drafted a new legal description for Lot S, using concrete monuments he found on site. This new survey was used in Sala's deed from the Halls in 1990.

Aiumu plotted Lot S, using the northeast corner ("N.E. Cor.") as a starting point. He found a concrete monument at this corner. Aiumu then developed metes and bounds clockwise from the N.E. Cor. He ran the first boundary line to another existing concrete monument and continued at a slightly different angle to the southeast corner ("S.E. Cor."), where he discovered another concrete monument. He continued the next boundary line to the southwest corner ("S.W. Cor."), where he found another concrete monument. Then, Aiumu used two boundary lines to connect with a concrete monument at the northwest corner ("N.W. Cor."). Aiumu attempted to run the boundary line from the S.W. Cor. to the N.W. Cor. at the approximate angle described in Dewees' deed. This angle would not permit a straight boundary line between the two points. He, therefore, created a separate point ("Pt X") 17.29 feet from the N.W. Cor. and connected the S.W. Cor. to Pt X. Aiumu drove a galvanized pipe at Pt X. He then continued on to the N.W. Cor. Finally, Aiumu continued the angles of the eastern and western boundaries beyond the northern boundary of Lot S, and into the Aoloau paved road, and inserted surveyor nails into the center of the road on those lines.

Subsequent to the conveyance of Lot S to Sala, events obliterated the monuments at the N.E Cor., N.W. Cor., and Pt X. Using excavating equipment, the American Samoa Power Authority installed a pipeline near the boundary between Lot G and Lot S to provide water to a neighboring lot. A concrete slab was constructed on most of Lot S. Finally, the Scratches installed a chain-link fence running from the S.W. Cor. towards Pt. X and the N.W. Cor. This fence provoked the controversy now before the court about the exact location of the boundary line separating Lot G and Lot S.

The Scratches engaged Lawrence P. French ("French"), also a licensed surveyor in American Samoa, to resurvey Lot S for purposes of this action. Unquestionably, French undertook this task with thorough research and calculations. His work renders the precise location of the N.W. Cor. and Pt X uncertain, but also provides the best basis for the court's ultimate resolution of the location of the common boundary between Lot G and Lot S.

Using known corners of various surveyed lots within the tract of land named Mapuga," (1) French determined that the now unmarked point of beginning at the N.E. Cor. used by Aiumu was probably located either at the corner designated as D-1 or at the corner designated as D-1:2 as shown on Exhibit 23, which French prepared to illustrate his findings. Looking at a straight line between the still existing monument at the S.E. Cor. and the surveyor's nail in the road beyond the N.E. Cor. and, only noting the slight bend of 2 minutes 30 seconds in Aiumu's survey, we are satisfied that the N.E. Cor. was originally located at either point D-1, point D-1:2, or between these two points.

French also plotted Aiumu's metes and bounds clearly locating the disputed fence on Lot G, but failing to tie into the monuments presently existing at the S.E. Cor. and S.W. Cor.

Since the evidence does not indicate movement of the monuments at the S.E. Cor. and S.W. Cor. after Aiumu's discovery of them, we will reconstruct the boundary between Lot G and Lot S from the S.W. Cor. using the existing surveyor's nail beyond the N.W. Cor. as a reference point at the north end. (2) A straight line between the S.W. Cor. and the nail in the road beyond the N.W. Cor. closely resembles the original locations of both Pt. X and the N.W. Cor.

French found an orange surveyor's ribbon below the ground surface on the fence post closest to Pt. X. This post appears, however, to be at least three feet northwest of the boundary now being drawn by the court. Due to past excavations in this immediate area, we do not find the presence of this ribbon to be persuasive evidence of the original location of the boundary line.

On the evidence before us, we believe that the boundary line now being drawn by the court is fair and reasonable, especially in light of its proximity to the original locations of Pt. X and the N.W. Cor. This new straight line does not, and cannot, coincide with Aiumu's metes and bounds. However, we find that Aiumu's errors, if any, were negligible. The variance between the line now drawn by this court and Aiumu's line is slight and tolerable. The new line does not interfere with the concrete slab, or any other existing use of Lot S by the Scratches. Their detriment is limited to relocating any encroaching portions of the fence from Lot G to Lot S.

CONCLUSIONS AND ORDERS

The boundary between Lot G and Lot S is reestablished as a straight line from the S.W. Cor. to the surveyor's nail in the road beyond the N.W. Cor. Within the next 60 days, the parties' shall have this line resurveyed, with a new N.W. Cor. identified at the closest possible point along this line to the original N.W. Cor. and monumented in the field, and recorded with the Territorial Registrar. The parties shall share the cost of this resurvey, monumentation, and recordation equally. Within 60 days after the resurvey is recorded, the Scratches shall remove any portion of the encroaching fence from Lot G. If they choose to erect a fence along the new boundary, the Scratches shall ensure that this fence is located entirely within Lot S. The Scratches shall bear the cost of removing the existing fence and erecting any replacement fence.

It is so ordered.

*********

1. Ane Pili originally owned the 4.753 acre surveyed tract named "Mapuga." She subdivided and conveyed several lots within this tract, including Lot G and Lot S.

2. We note the moderate bend of 1 degree 9 minutes 14 seconds at Pt X in Aiumu's survey, but it has no bearing on our decision due to the meager difference it makes in the boundary line.

American Samoa Gov’t v. Masaniai,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

UATISONE MASANIAI, Defendant

High Court of American Samoa
Trial Division

CR No. 33-94

April 25, 1995

__________

[1] The High Court generally rejects plea agreements under T.C.R.Cr.P. 11 (e)(1)(C) that remove the court's discretion in sentencing except in very rare occasions where the interests of justice were found to be better served by their acceptance.

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

Counsel: For Plaintiff, Fainu`ulelei F. Ala`ilima Utu, Assistant Attorney General
For Defendant, Reginald Gates, Assistant Public Defender

Order Rejecting Second Plea Agreement:

The information filed in this matter on July 21, 1994, charges the defendant with: Count I: Unlawful use of a weapon, in violation of A.S.C.A. § 46.4203(a)(4), a Class D felony, punishable by a term of imprisonment not to exceed five years and/or a fine of $5,000, or both; Count II: Assault in the Second Degree, in violation of A.S.C.A. § 46.3521(a)(1), also a Class D felony, punishable by a term of imprisonment not to exceed five years and/or a fine of $5,000, or both; and Count III: Unlawful Possession of Arms without a License, a Class A Misdemeanor, punishable by a term of imprisonment not exceed one year, and/or a fine of $1,000, and/or confiscation of said arm, or all of the above. The matter was initially set for trial on November 15, 1994.

On the date of trial, the parties submitted a plea agreement, under the provisions of T.C.R.Cr.P. Rule 11(e)(1)(B), (1)for the court's consideration. The court, pursuant to Rule 11(e)(B)(2), deferred its decision on whether to accept or reject the plea agreement until it had the opportunity to consider a presentence report. The matter was then continued to December 2, 1994, while a presentence report was prepared by the High Court's Probation Office.

On December 2, 1994, the court again asked the defendant a series of questions to ensure that he understood the nature of the agreement and that he was in complete agreement with its terms. Upon questioning, however, the defendant balked at the suggestion that the sentencing parties' sentencing recommendation, of "no jail," under a subdivision 11(e)(1)(B) type agreement was not binding on the court, and that the defendant had no right to withdraw his plea of guilt if the court did not accept the sentencing recommendation. As there seemed to be some confusion between counsel and his client, the court then continued further consideration of the plea agreement to allow the defendant to confer with counsel.

On December 5, 1994, the plea agreement was again taken up. Since the defendant remained hesitant in leaving the matter of sentencing up to the court, the court rejected the plea agreement and set the matter for jury trial on January 24, 1995. Subsequently, the trial date was postponed until April 25, 1995, upon stipulation of the parties, and upon defendant's written waiver of his right to a speedy trial.

On April 25, 1995, the court convened for trial, but neither party was ready for trial; the court was advised of yet another plea agreement, this time pursuant to T.C.R.Cr.P. Rule 11 (e)(1)(C). The plea agreement under this subdivision would essentially permit the defendant to withdraw his plea if the court did not accept the parties' sentencing recommendation of "no jail."

DISCUSSION

[1] A subdivision (e)(1)(C) type plea agreement, which essentially attempts to remove the court's discretion in the sentencing process, goes against the grain. The rule, which was adopted from the Federal Rules of Criminal Procedure, is especially useful in those jurisdictions which are confronted regularly with a congested criminal docket. See F.R.Cr.P., 11(e) Notes of Committee on the Judiciary, House Report No. 94-247(B). In those circumstances, the procedure provided under subdivision (e)(1)(C) effectively assists in clearing an otherwise clogged docket. Fortunately, this is not the situation in the local courts. With its relatively manageable caseload, the demands of judicial economy are hardly pressing factors in the equation. In short, the territorial courts have the time to hear criminal cases. Consequently, the High Court has in practice consistently rejected subdivision (e)(1)(C) type plea agreements, save in those very rare occasions where the interests of justice were found to be better served by their acceptance. This is not one of those very rare occasions. We fail to see the logic in the government's attempt to rationalize the plea agreement, on the argument that a "no jail" sentence would somehow diffuse family tension, which has supposedly arisen as a result of the incident between the defendant and the complainant, giving rise to these proceedings. These are exactly the sort of considerations that ought to be left to the sentencing court, and not the prosecutor. At the same time, while the defendant has the unquestionable right to a trial, he does not have the right to proceed on his terms.

We conclude that justice would not be served by the acceptance of this plea agreement, and accordingly reset this matter for jury trial on May 2, 1995.

It is so ordered.

*********

1. A plea agreement under this subdivision of the rule permits a sentencing recommendation from the parties which is not binding on the court, and the defendant may not withdraw his plea of guilt if the court does not follow the parties' sentencing recommendation. Cf. T.C.R.Cr.P. 11 (e)(1)(A) and (C).

American Samoa Gov’t; Motu v.


ELIA MOTU for himself and on behalf of WAYNE MOTU,
a minor, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and
PISA TIVAO, Defendants

High Court of American Samoa
Trial Division

CA No. 38-91

April 25, 1995

__________

[1] A T.C.R.C.P. 15(b) motion can be made at any time, even after judgment, and such requests shall be freely granted when the presentation of the merits of the action will be subserved and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.

[2] Constant and unremitting scrutiny of students on school premises in order to prevent injury is not expected of school officials and teachers.

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

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendants, Henry W. Kappel, Assistant Attorney General

Decision and Order:

Plaintiff Wayne Motu is today a 14 year old freshmen of Leone High School. Six years earlier, while he was a student at Midkiff Elementary School, Wayne fractured his elbow after a number of his fellow students fell on him in the playground during a physical education ("PE") period. Wayne claimed, and testified accordingly, that he had heard his teacher, defendant Pisa Tivao ("Tivao"), shout out to a group of his fellow students to tackle and have a pileup on him as he was not participating in PE; that his classmates did so while he was sitting on the cement cricket pitch in the middle of the playing field--the cricket pitch for the local version of this game is typically a cement slab in the middle of a field. Wayne further testified that Tivao was standing next to one of the nearby school buildings, off the playground, when he called out the pile-upon-him instruction.

Tivao on the other hand flatly denied giving such an instruction, claiming that he was not even aware that Wayne was on the playing field, since he had previously excused Wayne from PE when the latter had earlier claimed illness. Tivao further testified that when Wayne sought to be excused, he instructed him to join another teacher, Ms. Pua Te`o, and her group (of those in the class athletically less inclined) who were gathered near one of the school buildings. Tivao also testified that he was actually on one extreme of the playground supervising the boys of the class in their football game, while yet another fellow teacher, Anette Solomona, supervised the girls on the other extreme of the field. He first learned of Wayne on the playground, when two students came to tell him that Wayne was hurt.

Mr. Tivao's testimony was corroborated by Ms. Te`o, who has since retired from teaching. She recalled the day of the injury and testified to overhearing Tivao's instructions to Wayne to join her group, who engaged in a "telling message" game. She further testified that for a while Wayne was with her, but she did not notice when he left, nor when he was injured.

Three of Wayne's classmates also confirmed Tivao's version of the facts. They each testified that they were part of a group that was congregating in mid-field when Wayne joined them, and that they had fallen on Wayne when a group of eighth graders, who were also playing on the field, ran into them. Contrary to Wayne's testimony, they placed Tivao on the playground when the accident occurred; two of the group ran across the field to Tivao to alert him of Wayne's injury.

DISCUSSION

On the evidence, we find Tivao's version of the facts to be more credible. Despite corroboration, even by Wayne's own peers, Wayne's singularly maintained version of the facts bears some signs of early coaching at an impressionable age. First, Wayne's contradicted testimony about Tivao's location when he was said to have called out the pile-upon-him instruction is simply not believable. After viewing the site of the accident, taking into account the distance between the school buildings situated across the road from the playing field and the cricket pitch in mid-field, together with the level of noise that would have been generated by several groups of youngsters on the playground, we find it highly unlikely that Tivao could have even been audible, if he was in fact where Wayne had placed him. Second, the claimed extent of Wayne's disability as a result of his injury simply does not correspond with his fellow students' accounts of his regular display of basketball prowess at Leone High School; nor does it square with his startling in-court demonstration when he twice thumped heavily on the witness box with his affected arm, while marking out his reference to a momentary time span. Third, when two of the teaching staff took Wayne home after the accident, they were confronted by his distraught father who immediately began to talk of lawsuits at the very outset.

We find on the evidence that Tivao did not give an instruction prompting other children to pile on Wayne and, thus, find plaintiff's negligence claim in this regard to be unsubstantiated.

Alternatively, counsel submitted at final argument that the evidence was consistent with a conclusion of negligent omission on the part of Tivao in failure to adequately supervise his minor client. Counsel accordingly moved to amend the pleadings to conform to the evidence. Defendants objected to the motion arguing untimeliness and prejudice.

[1] The relevant rule is T.C.R.C.P. 15(b), which provides for the amendment of pleadings to conform to the issues actually tried on the evidence. A Rule 15(b) motion can be made "at any time, even after judgment," and such requests "shall [be] freely [granted] when the presentation of the merits of the action will be subserved . . . and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits." T.C.R.C.P. 15(b). Clearly, the amendment sought by plaintiff relates to matters that were within the scope of the proof, and while the defendants claim surprise and lack of opportunity to prepare to meet the unpleaded issue, we note in the context of an earlier motion by the government to dismiss, that plaintiff had in his opposition papers articulated the "basis [of his action as] the failure of the ASG employee [Pisa Tivao] to properly supervise physical education period for his class, which failure resulted proximately in the injuries and damage to the minor." Plaintiff's Memorandum in Opposition to Motion for Dismissal, at page 1. (1) Under the liberal spirit of the Trial Court Rules of Civil Procedure, a negligence claim based on an allegation of an omission was, in our view, clearly noticed and, therefore, the defendants not unduly prejudiced in their defense.

[2] We turn to the question of whether the evidence establishes a want in supervision on the part of Tivao, rising to the level of negligence. We think not. Tivao had, in our view, done all that he could reasonably be expected to do in the circumstances. On Wayne's request to be excused from PE on account of illness, he instructed Wayne to join Ms. Te`o's group off the playing field. After attending to Wayne's situation, he then concentrated on the remainder of the class's PE activities. If, on the other hand, Tivao was then required to keep a continuous eye on Wayne at all times to ensure that he was not hurt, then it would be nigh impossible for him, or any other teacher in his circumstances, to accomplish very much relating to the rest of the class. Consequently, "the constant and unremitting scrutiny" of students on school premises in order to prevent injury has not been expected of school officials and teachers. Fagan v. Summers, 498 P.2d 1227, 1228 (Wyo. 1972); Kos v. Catholic Bishop of Chicago, 45 N.E.2d 1006 (Ill. 1942). (Intervening action of fellow students mitigates the teacher's duty to take every possible precaution.) At the same time, we are satisfied on the evidence that the proximate cause of Wayne's injury was not the absence of supervision, but the combination of his not following Tivao's instruction to stay off the playground and his being run down on the playground by other children involved in play.

On the foregoing, we conclude in favor of the defendants and direct that judgment be entered accordingly.

It is so ordered.

*********

1. The grounds asserted by the government for its motion to dismiss was that the complaint in actuality alleged facts describing assault and battery and that notwithstanding plaintiff's labeling of his complaint as one for "negligence and damages," the government had not waived its sovereign immunity, under the Government Tort Liability Act, A.S.C.A. § 43.1201 et seq., to assault and battery based claims.
Because of the case's early posture at the time of the motion, we denied the same favoring plaintiff's position that his complaint had also sufficiently noticed a claim based on inadequate supervision.

Amerika Samoa Bank; Passi v.


DENNY PASSI and MAGDALEN D. PASSI, Plaintiffs

v.

AMERIKA SAMOA BANK, Defendant.

High Court of American Samoa
Trial Division

CA No. 139-94

June 28, 1995

__________

[1] The relationship of a bank to its general depositors is that of debtor to creditor.

[2] In order for a depositor to recover deposited funds against a bank, he must make a prima facie showing that he deposited the money in question with the bank and demanded the same from it. If a depositor has met this burden or if no controversy between the parties exists over the fact that a depositor placed funds to his credit with the bank, then the bank, seeking to avoid recovery by the depositor, is charged with the burden of proving payment to the depositor by a preponderance of the evidence.

[3] The Federal Depositor's Insurance Act requires federally insured banks to retain records since the information may be valuable in litigation. It is not a mandate to banks to destroy records in order to avoid liability or relax a burden of proof.

[4] Actions to recover bank deposits evidenced by entries in a depositor's account passbook are governed by statutes relating to actions on oral contracts, and not on written contracts, unless the passbook is signed by an authorized bank employee and contains a definite promise to pay.

[5] In actions by depositors to recover funds from a bank, the statute of limitations does not accrue until the depositor has made a demand and the bank has refused to pay.

[6] When the limit within which a plaintiff might bring an action against a defendant is fixed by a statute of limitations, the doctrine of laches is inapplicable.

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

Counsel: For Plaintiff, Tautai A.F. Faalevao
For Defendant, William H. Reardon

Opinion and Order:

INTRODUCTION

This matter involves a dispute between depositors and their bank regarding the status of funds deposited in a savings account more than 12 years ago. The depositors have demanded the return of their initial deposit, but the bank claims that the funds have been withdrawn.

BACKGROUND FACTS

On July 5, 1983, plaintiffs Denny Passi ("Denny") and Magdalene Passi set up savings account No. 10851 with defendant Amerika Samoa Bank ("ASB") with an initial deposit of $4,271.27. (1) ASB issued plaintiffs a savings account passbook reflecting the initial deposit. Neither the passbook nor plaintiffs' savings account application listed their P.O. box address. Sometime later in 1984, ASB relocated its offices to its current location and switched from a manual to a computer banking system. In so doing, ASB changed plaintiffs' savings account number to 171-308178. Since then, the only account activity has been quarterly service charges due to the account being less than the minimum amount required.

On January 25, 1993, and February 24, 1994, ASB sent plaintiffs notices that, according to ASB records, plaintiffs' savings account had been inactive first for almost and then for more than 10 years, and that unless contacted, ASB would transfer the unclaimed account funds to the Treasurer of the American Samoa Government, as escheated under A.S.C.A. §§ 28.1601-28.1615. Neither of these notices stated the account balance. ASB never sent plaintiffs any savings account statements.

On March 1, 1994, Denny presented ASB with the original savings account passbook reflecting the $4,271.27 initial deposit and sought to withdraw that amount, plus accumulated interest. ASB informed Denny that he was only entitled to the current balance of $10.24. Denny requested an account statement and demanded that ASB offer proof that the remaining funds had been withdrawn from the account. Since the account had been dormant for longer than ASB retains account records, ASB was unable to produce proof of any withdrawal. On March 25, 1994, Denny again attempted to receive the initial deposit, plus interest, and refused to accept the offered amount of $10.24.

On July 27, 1994, plaintiffs filed this action against ASB seeking $4,271.27, plus interest, punitive damages, and attorney's fees and costs. On August 8, 1994, ASB filed an answer alleging that plaintiffs withdrew the funds in 1983 or 1984 and that their claim is barred by statute of limitations and laches. Trial was held on April 21 and May 4, 1995. Both parties were represented by counsel.

BURDEN OF PROOF

[1-2] The relationship of a bank to its general depositors is that of debtor to creditor. Sears v. Continental Bank & Trust Co., 562 S.W.2d 843, 844 (Tex. 1978). In order for a depositor to recover deposited funds against a bank, he must make a prima facie showing that he deposited the money in question with the bank and demanded the same from it. O'Neil v. New England Trust Co., 67 A. 63 (R.I. 1907). If a depositor has met this burden, or if no controversy between the parties exists over the fact that a depositor placed funds to his credit with the bank, then the bank, seeking to avoid recovery by the depositor, is charged with the burden of proving payment to the depositor by a preponderance of the evidence. First Natl. Bank v. Ketchum, 172 P. 81, 82 (Okla. 1918); Mesquite State Bank v. Professional Investment Corp., 488 S.W.2d 73, 75 (Tex. 1972). In a depositor's action for return of deposit, where the bank alleges payment as a defense, the burden is on the bank to show that such payment was made. Goddard v. Citizens-First Nat'l Bank of Independence, 224 P. 59 (Kan. 1924) (court held that once the bank admitted to receiving the deposit, it could not be relieved of liability without showing that payment had been made).

DISCUSSION

I. Plaintiffs' Prima Facie Case

It is undisputed that plaintiffs made the initial deposit of $4,127.21 with ASB. The parties further agree that on March 1 and 25, 1994, Denny made demands for the initial deposit, plus interest, and that ASB refused payment. Plaintiffs have sufficiently proven their prima facie case and, therefore, the burden shifts to ASB to prove that plaintiffs withdrew the funds or that their claim is not valid for other reasons.

II. ASB's Burden To Show Funds Were Withdrawn

ASB alleges that plaintiffs withdrew the funds from the savings account in either 1983 or 1984. Michael Leiden ("Leiden"), ASB's Chief Financial Officer, testified that according to ASB's oldest entry of record, June 28, 1985, the balance in the savings account was $30.40. Although this entry may imply that the funds were withdrawn before that date, ASB was unable to offer any proof that a withdrawal occurred.

[3] Leiden testified that ASB is unable to offer proof of payment due to its policy to destroy all written records for savings accounts after five years, as permitted by 12 U.S.C.A. § 1829(b)(g). ASB's attempt to use this legislation as an excuse for not having records is in direct conflict with the intent of Congress in passing 12 U.S.C.A. § 1829(b)(g). This legislation, entitled the Federal Depositor's Insurance Act, requires federally insured banks to retain records since the information may be valuable in litigation. It is not a mandate to banks to destroy records in order to avoid liability or relax a burden of proof. Furthermore, other evidence, such as the fact that ASB moved its location, shifted from a manual to a computer system, and renumbered plaintiffs' account, support a finding that ASB has failed to show by a preponderance of the evidence that plaintiffs' withdrew the funds.

III. Statute of Limitations

[4] Actions to recover bank deposits evidenced by entries in a depositor's account passbook are governed by statutes relating to actions on oral contracts, and not on written contracts, unless the passbook is signed by an authorized bank employee and contains a definite promise to pay. Stark v. Long, 270 S.W. 1095, 1097 (Tex. 1925). Plaintiffs' passbook lists their names, the account number, the date and the amount of initial deposit. It is also signed by an ASB employee, but there is no evidence that the employee is an authorized officer of ASB. The passbook is merely evidence of a transaction and not a written contract.

[5] A.S.C.A. § 43.0120(3) requires that actions founded on unwritten contracts must be brought within three years after their causes accrue. In most cases the accrual date for the three-year limitation is when the injured party "knows or should have known the essential facts about his injury and its probable cause" Randall v. American Samoa Gov't, 19 A.S.R.2d 111, 116 (Trial Div. 1991) (citing American Samoa Gov't v. Utu, 9 A.S.R.2d 88, 91 (Trial Div. 1988)), but in actions by depositors to recover funds from a bank, it is well established that the statute of limitations does not accrue until the depositor has made a demand and the bank has refused to pay. Missouri Pac. Ry. Co. v. Continental Nat'l Bank in St. Louis, 111 S.W. 574, 577-578 (Miss. 1908); Pierce v. State Nat'l Bank of Boston, 101 N.E. 1060 (Mass. 1913).

However, whether the accrual date is when plaintiffs discovered their account balance of record, on March 1, 1994, (2) or whether it is when ASB denied Danny's demand to return the initial deposit, also on March 1, 1994, and again on March 25, 1994, both events occurred within three years of the filing of this action. Either way, this action is not barred by A.S.C.A. § 43.0120(3).

IV. Laches

[6] ASB's contention that plaintiffs claim is barred by laches is without merit. When the limit within which a plaintiff might bring an action against a defendant is fixed by a statute of limitations, then the doctrine of laches is inapplicable. Livingston, Inc. v. Bank of America Nat'l Trust & Sav. Ass'n, 46 P.2d 195, 197 (Ca.1935) (court did not apply laches since action by the depositor against the bank over account balance was filed within a governing two-year statute of limitation period).

The doctrine of laches is determined on a case by case basis and will usually bar recovery only if a party has voluntarily delayed asserting a right, and due to the delay, the opposing party's as well as the court's ability to ascertain the truth are harmed. Stiefel v. Farmer's State Bank, 168 N.E. 30, 33 (Ind. 1929).

Although we recognize that it is not common practice to fail to check the balance of a savings account for over 10 years, we find that under the circumstances, it is reasonable that Denny did not discover amount of record in the savings account until March 1, 1994. Denny testified that after the initial deposit, he stored the passbook in his files at home and intended to allow the account to sit and earn interest. Since this is the nature of a savings account, it reasonable that Denny left the account dormant without checking the balance, even for 10 years. It is also reasonable that Denny could have forgotten about the account.

In any event, we believe that the obligation to keep records weighs more heavily on a sophisticated business than on an individual depositing money. Plaintiffs never received any documentation from ASB regarding the savings account until ASB's notice letter of January 25, 1993, which was sent via general delivery, not to Denny's P.O. box or work address. After Denny received this letter, he located the passbook and made demand to ASB for the account balance. The period of time between plaintiffs receipt of this letter and the filing of the complaint in this action, approximately 18 months, does not constitute laches. Denny testified that he never received the notice letter of February 24, 1994, which ASB mailed to plaintiffs via Denny's employment address. Even Leiden testified that although ASB mailed periodic statements to plaintiffs for their checking accounts, they never sent them a statement pertaining to the savings account. Denny has repaid his loans to ASB and currently banks with the Bank of Hawaii.

CONCLUSION

It is undisputed that plaintiffs deposited $4,271.27 in a savings account with ASB on July 5, 1983, and that ASB refused payment to Danny upon his demands in March 1994. ASB has failed to show by a preponderance of the evidence that plaintiffs withdrew the funds or that a presumption for payment should apply. Furthermore, this action is not barred by the applicable statute of limitations or laches.

Accordingly, we hereby order ASB to make payment to plaintiffs of the initial deposit of $4,271.27, plus accrued interest from July 5, 1983, until date of the entry of judgment at the effective rate used by ASB during this period for similar accounts in the course of its banking business. We deny plaintiffs' request for punitive damages and attorney fees.

It is so ordered.

*********

1. In 1983, Denny received three loans from ASB for $15,000 each and set up three savings accounts for approximately $4,000 to $5,000 each. Two of the accounts were transferred to checking accounts, whereas, the third remained a savings account and is the subject of this dispute.

2. Since both Denny and Leiden testified that ASB never mailed plaintiffs a savings account statement, we find it reasonable that Denny did not discover his account balance of record until he went to the bank on March 1, 1994.

American Samoa Gov’t Employees Fed. Credit Union v. Sele,


AMERICAN SAMOA GOVERNMENT EMPLOYEES
FEDERAL CREDIT UNION, Plaintiff

v.

TUMA F. SELE, Defendant

High Court of American Samoa
Trial Division

CA No. 115-94

May 8, 1995

__________

[1] Under A.S.C.A. § 27.1530, a writing sufficient to satisfy the statute of frauds in the sale of goods need not be in the contract itself, but may be merely a memorial sufficient to indicate that a contract for sale has been made.

[2] The fact that an instrument was signed after the contract was entered into does not operate to nullify the contract under the statute of frauds.

[3] Fraud is generally defined as anything calculated to deceive. It may be a single act or combination of circumstances, the suppression of truth or the suggestion of what is false, direct falsehood or innuendo, by speech or by silence.

[4] To constitute fraud, the false or misleading act or omission must be designed to induce another party to act in reliance on the truth of the statement.

[5] An implied-in-law condition of a contract between a bank and a depositor is that the bank will refrain from charging the depositor's account without authority from the depositor. Any payments which are not authorized by the depositor as a creditor of the bank are made with the bank's own funds, and not with those of the depositor.

[6] When a depositor is indebted to a bank, the bank is justified in using a self-help set-off against the depositor's account in order to extinguish the debt.

[7] A court is generally required to grant partial summary judgment deciding certain factual issues, even when a complete disposition of the case is not possible.

[8] T.C.R.C.P. 56(d) demands that we establish uncontroverted facts only if practicable, not whenever possible.

[9] The underlying purpose of T.C.R.C.P. 56(d) is to speed up litigation by eliminating matters before trial when there is no genuine issue of fact.

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

Counsel: For Plaintiff, Cheryl Crenwelge
For Defendant, Asaua Fuimaono

Order Denying Motion for Summary Judgment:

HISTORY

This case involves a loan granted to defendant Tuma Sele by plaintiff American Samoa Government Employees Federal Credit Union, in the principal amount of $28,069.45, with interest at a rate of 18 percent annually. Plaintiff alleges default on this loan. Defendant alleges that she has received approximately $10,000.00 of the principal rather than the full amount, and fraud, since she had been receiving proceeds of the loan since 1990, although the agreement was not signed until September 16, 1992.

STANDARD OF REVIEW

Summary judgment is appropriate where there is no issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56. It may be invoked only when "no genuine issue as to any material fact" exists. Anderson v. Liberty Lobby, 477 U.S. 242, 247-250 (1986); Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material are presumed to be true, and that all inferences are construed in a light most favorable to the non-moving party. Ah Mai v. American Samoa Government, 11 A.S.R. 2d 133, 136 (Trial Div. 1989); see also Lokan v. Lokan, 6 A.S.R. 2d 44, 46 (Trial Div. 1987); U.S. v. Diebold, 369 U.S. 654 (1952).

DISCUSSION

On the issue of liability, defendant alleges that the loan agreement violated the statute of frauds, since defendant was receiving loan proceeds after the agreement was entered, but prior to signing the written contract.

[1] One of American Samoa's statute of frauds, A.S.C.A. § 27.1530, reads, in relevant part:

Except as otherwise provided . . . a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker . . . .

A loan from a credit union probably does not qualify as "a contract for the sale of goods," but even if it does, a writing is present to sufficiently indicate that a contract was made between the two parties. The language of the statute indicates that the writing need not be the contract itself, but merely a memorial "sufficient to indicate that a contract for sale has been made . . . ."

[2] The fact that the instrument was signed after the contract was entered into does not operate to nullify the contract under the statute of frauds.

A memorandum sufficient to satisfy the Statute may be made or signed at any time before or after the formation of the contract. . . .

b. Subsequent memorandum. There is no requirement that the memorandum be made contemporaneously with the contract. It may be made even after breach or repudiation . . . .

Restatement (Second) Of Contracts, § 136 (1979). In this case, the 1992 instrument qualifies as the requisite evidence that a contract was made, notwithstanding the fact that it may have been made in 1990.

Additionally, the defendant alleges fraud, based on the fact that plaintiff induced defendant to sign the loan agreement long after defendant began receiving the proceeds of the loan. Defendant claims that plaintiff took this action in anticipation of being audited.

[3-4] Fraud is generally defined as:

. . . anything calculated to deceive, whether it be a single act
or combination of circumstances, whether the suppression of
truth or the suggestion of what is false, whether it be by direct
falsehood or by innuendo, by speech or by silence.

Hale v. Hale, 373 N.E.2d 431, 436 (Ill. 1978). To constitute fraud, the false or misleading act or omission must be designed ". . . to induce another party to act in reliance on the truth of the statement." Id. Fraud is a deliberate act of "trickery or deceit; an act of deluding; or an intentional misrepresentation for the purpose of inducing another in reliance upon it to part with some valuable thing." State v. Galioto, 613 P.2d 852, 856 (Ariz. 1980).

[5-6] Signing a loan agreement a considerable time after it was contracted seems irregular, but not of itself an act of trickery, deceit or misrepresentation. Even if the late signing was taken in anticipation of an audit, this circumstance standing alone does not necessarily suggest trickery or deceit. Plaintiff might procure a signed agreement to document the loan in order to facilitate the audit. Defendant's assertions provide no theory or explanation for negating plaintiff's right to be repaid for sums which defendant acknowledges receiving.

Defendant further argues that plaintiff made unauthorized transfers and withdrawals from defendant's account without defendant's knowledge. An implied-in-law condition of a contract between a bank and a depositor is that the bank will refrain from charging the depositor's account without authority from the depositor. W.R. Grimshaw v. First National Bank, 563 P.2d 117, 120 (Okla. 1977). Any payments which are not authorized by the depositor as a creditor of the bank are made with the bank's own funds, and not with those of the depositor. Id.; Citizens Nat. Bank v. Mid-States Dev., 380 N.E.2d 1243, 1248 n. 8 (Ind. 1978). However, when a depositor is indebted to the bank, the bank is justified in using a self-help set-off against the depositor's account in order to extinguish the debt. Citizens Nat. Bank, 380 N.E.2d at 1248-49 n. 8.

Whether plaintiff made transfers in the present case, whether such transfers were unauthorized, or whether the alleged transfers were set-offs against defendant's obligations to plaintiff cannot be ascertained on the information before us. Clearly, defendant received some amount of money from plaintiff, but how much, when in relation to signing the formal agreement, and whether it was entirely a loan in character are uncertain.

[7] We are generally required to grant partial summary judgment deciding certain factual issues, even when a complete disposition of the case is not possible.

If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion if practicable, by examining the pleadings and evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

T.C.R.C.P. 56 (d) (emphasis added).

[8-9] While it may be possible to establish the existence of liability, limiting the issue at trial to the amount of damages, Rule 56(d) does not demand that we establish facts whenever possible. Rather, the rule demands that we establish uncontroverted facts "if practicable." The underlying purpose of rule 56(d) is "speeding up litigation by elimination before trial matters wherein there is no genuine issue of fact." F.R.C.P. 56(d), Advisory Committee Notes, 1937 Adoption.

In this case, we will likely be required to hear all of the evidence tending to prove or disprove the existence of underlying liability as we make factual findings regarding the amount of damages. For this reason, it does not improve judicial economy for us to decide the issue of underlying liability prior to trial. Instead, it is more in the interest of justice to hear the evidence at trial, even though the defendant has provided no factual information which is legally sufficient to challenge the plaintiff's assertions of liability.

ORDER

Although defendant has not specifically shown any issue of material fact as to her liability to repay her debt to plaintiff, she has established a genuine dispute over the amount of damages which will be resolved by the same evidence that is required to determine the existence of the underlying liability of the defendant. Accordingly we deny plaintiff's motion for summary judgment.

It is so ordered.

*******

American Samoa Gov’t; Reid v.


EUGENE REID, TUPUTAUSI REID, FELETI
VILIAMU and SENUEFA VILIAMU, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, ATTORNEY GENERAL,
and TERRITORIAL REGISTRAR, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 22-95

August 8, 1995

__________

[1] A conveyancing instrument such as a deed does not certify ownership of land but merely publicly attests to the fact that one person's interest in land, whatever that may be, has been conveyed to another.

[2] A deed of conveyance may be registered without meeting the notice requirements of A.S.C.A. § 37.0103.

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

Counsel: For Plaintiff, Afoa L. Su`esu`e Lutu
For Defendants, Cherie Shelton Norman, Assistant Attorney General.

Opinion and Order on Petition for Declaratory Relief:

FINDINGS

The parties have presented the following stipulation:

Eugene Reid and Tuputausi Reid are residents of the village of Tafuna, County of Tualauta, American Samoa. They are legal owners of land "Taileau" located in Tafuna, duly registered as individually owned land, and recorded in the Office of the Territorial Registrar in Land Transfers, Volume 3, at page 202. On March 23, 1995, Eugene and Tuputausi Reid executed a Deed of Conveyance containing an area of approximately 0.30 acre more or less of the portion of land "Taileau" above-referenced to Feleti and Senuefa Viliamu. When Feleti and Senuefa Viliamu tried to register their Deed of Conveyance they were told by the Territorial Registrar's Office that they would have to go through a notice of registration process in which they would have to submit affidavits from the village major (pulenu'u), newspaper, and clerk of court verifying that the posting requirements have been satisfied for sixty (60) days before the deeds would be registered.

The Territorial Registrar was acting pursuant to a legal opinion issued by the Attorney General dated April 24, 1995, marked Exhibit "A", filed herewith and incorporated hereto as part of this stipulation by its reference. The Territorial Registrar is requiring all applicants for registration and transfers of any land to Notice the proposed registration and/or transfer of land and to provide affidavits of the notices from the pulenu'u, newspaper, and clerk of court stating that notice has been given.

The Reids have brought this complaint for a Declaratory Relief action regarding the Legal Opinion of the Attorney General. The plaintiffs state that the opinion of the Attorney General misinterprets the laws and statutes regarding registration of lands, and in particular, A.S.C.A. § 37.0103(c).

The referenced Attorney General's opinion ("AG Opinion") effectively holds, and accordingly instructs the Territorial Registrar, that the notice requirements of A.S.C.A. § 37.0103(c) apply not only to the initial registration of title to previously unregistered land, but also to every recorded transfer or conveyance of title to that land. The Reids bring this action, asking this court to declare that the AG Opinion misinterprets the requirements of the notice provisions, and to declare whether or not they are required to comply with the said provisions.

CONCLUSIONS

The AG Opinion is inconsistent with Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991). There the Appellate Division distinguished between registering title to land, pursuant to Chapter 1, of Title 37, and registering aninstrument to alienate title to land, pursuant to the succeeding Chapter 2 of Title 37, as separate and distinct processes with separate and distinct purposes and consequences.

The title registration process is essentially a quiet title mechanism which provides all rival claimants to land an opportunity to resolve once and for all the issue of title or ownership to that land. Id. at 94-95. It applies only to land "not previously registered," A.S.C.A. § 37.0101(a), and once this registration process is complete, the registered owner is conclusively presumed to be the owner of the land to the preclusion of every one else. Ifopo v. Siatu`u, 12 A.S.R.2d 24 (App. Div. 1989). In the context of title registration, a one-time occurrence, the dictates of due process are readily apparent and, hence, the notice requirements of Chapter 01.

[1] On the other hand, the registration process pertaining to instruments alienating title to land, covered by the succeeding Chapter 02 of Title 37, is merely in effect a "recording" procedure. Vaimaona, at 94. A conveyancing instrument, such as a deed, does not certify ownership of the land but merely publicly attests to the fact that one person's interest in land, whatever that may be, has been conveyed to another. The requirements of procedural due process are hardly apparent in this context; however, in order for title to pass, according to the land alienation law, a deed of conveyance must be registered. A.S.C.A. § 37.0210. The registration process covered by Chapter 2, of Title 37 does not entail a notice requirement inviting the world to again contest title to previously registered land on each occasion that title is conveyed. This would effectively render the Chapter 1 registration process nugatory, and its 60 day limitations period meaningless. A deed of conveyance may, therefore, be registered without meeting the notice requirements of A.S.C.A. § 37.0103. (1)

DECLARATION AND ORDER

The Reids are entitled to have their deed to the land "Taileau," given and delivered to the Viliamus, registered with the Territorial Registrar pursuant to A.S.C.A. § 37.0210, without being required to go through the notice requirements set forth in A.S.C.A. § 37.0103. The Territorial Registrar is directed to accept for registration the said Reid-to-Viliamu deed. (2)

Judgment shall enter accordingly.

It is so ordered.

*********

1. On the other hand, the issue of the Reids' title to "Taileau" is not before us and we intimate no opinion whatsoever on that issue.

2. One practice of the Territorial Registrar's office that can be cause for public confusion is its issuance of "Certificates of Registration" to subsequent grantees, following a transfer of title. These "Certificates of Registration" misleadingly project title certification in and to the grantee, whereas the deed registration process under Chapter 2, Title 37, A.S.C.A. § 37.0210, amounts to nothing more than a "recording" exercise, antecedent to a valid alienation.

American Samoa Gov’t; Randall v.


EMMA RANDALL, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, DOES 1 & 2, Defendants

High Court of American Samoa
Trial Division

CA No. 170-94

May 30, 1995

__________

[1] Filing a complaint before administrative remedies have been exhausted fails to invoke the court's jurisdiction, but such a filing is sufficient to toll the statute, on the theory that filing an administrative claim constituted the beginning of an action.

[2] The relation back of amendments is a legal fiction designed to allow the correction of technical mistakes in pleading by amendment without violating the statute of limitations.

[3] The court will not retroactively dismiss a lawsuit for lack of jurisdiction when it presently has jurisdiction. The time for the motion to dismiss for lack of jurisdiction was during the time that the court did not have jurisdiction.

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

Counsel: For Plaintiff, Cheryl A. Crenwelge
For Defendant, Henry W. Kappel, Assistant Attorney General

Order Denying Motion for Summary Judgment:

HISTORY

Plaintiff Emma Randall ("Plaintiff") claims injuries to her person allegedly resulting from an assault by an inmate at the Tafuna Correctional Facility on or about September 28, 1992. Plaintiff claims that defendants, American Samoa Government and Does 1 & 2 (together "ASG"), were negligent in the duty to provide adequate security for her visit to an inmate at the facility.

Plaintiff filed a government tort claim with ASG pursuant to A.S.C.A. § 43.1202 et seq. by registered mail September 21, 1994. The Attorney General received the complaint September 29, 1994. We are guided by T.C.R.C.P. 5(b) which provides that "[s]ervice by mail is complete upon mailing." Accordingly, the day upon which the complaint is considered to be filed with ASG is September 21, 1994. Whenever service is by mail, six days are added to any deadline running from the service date which affects the rights or responsibilities of the party served. T.C.R.C.P. 6(e). Plaintiff's claim was, therefore, effectively denied December 27, 1994, because three months and six days had elapsed since the filing of the claim with no reply by ASG. A.S.C.A. § 43.1205(a). On September 27, 1994, Plaintiff filed this action. On January 6, 1995, ASG moved for summary judgment on the ground that this lawsuit was filed before administrative remedies were exhausted under A.S.C.A. § 43.1204(a) requiring its dismissal, and asserting that the two-year limitation period prescribed in A.S.C.A. § 43.1204 prevents the refiling of the lawsuit.

DISCUSSION

We refer the reader to our opinion in Bradcock v. American Samoa Gov't, supra, 28 A.S.R.2d 66 (Trial Div. 1995), announced contemporaneously with this decision, for our analysis regarding the date a claim or cause of action accrues for purposes of A.S.C.A. § 43.1204. (1) Plaintiff filed both her administrative claim and her claim in this Court prior to the two-year anniversary of her injury, and on that basis we need not consider whether or not her claim accrued on the date of injury, as considered in Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 49 (Trial Div. 1990).

We further refer the reader to our analysis in Bradcock, supra, 28 A.S.R.2d at 69, holding that the statute of limitations is tolled during the pendency of the administrative claim. One year, eleven months and three weeks passed between Plaintiff's injury and the filing of her administrative claim. These facts potentially left Plaintiff with three months and one week to file her lawsuit after denial of her administrative claim. In actual fact, Plaintiff filed her lawsuit before the denial of her administrative claim.

ASG raises the issue of whether Plaintiff's filing of the lawsuit before exhaustion of administrative remedies requires us to dismiss the case for want of jurisdiction. We hold that it does not. Regardless of whether we had jurisdiction to hear the case when it was filed, we clearly have jurisdiction over it now, and to require that it be dismissed at this time for lack of jurisdiction would amount to placing formality over substance. Mataipule, made it clear that filing a complaint before administrative remedies have been exhausted, "failed to invoke the court's jurisdiction," but decided that such a filing "was sufficient to toll the statute," on the theory that filing an administrative claim constituted the "beginning of an action." Id. at 56.

[1-2] In Gobrait v. Americana Hotels, 1 A.S.R.2d 1, 1 (Trial Div. 1978), we held that a complaint which was jurisdictionally deficient for failure to exhaust administrative remedies could be made sufficient by amending the complaint to indicate compliance with the Government Tort Liability Act. A dismissal for failure to indicate such compliance would be without prejudice to file another complaint. Id. at 2. In the present case, ASG contends that filing a new action would be barred by the statute of limitations, since the second anniversary of the injury occurred a week after the administrative claim was denied. See Randall v. American Samoa Gov't, 19 A.S.R.2d at 118. Under similar circumstances, it was argued in Randall I that if the Plaintiff attempted to amend the complaint, her amendment would relate back to the date of filing when the court could not properly exercise jurisdiction, and would thus be invalid. Id. Again, we think that this creative argument elevates form over substance. The relation back of amendments is a legal fiction designed to allow the correction of technical mistakes in pleading by amendment without violating the statute of limitations. Charles Alan Wright, Law of Federal Courts, 429-30 (4th ed. 1983). Accordingly, it would be improper for us to allow a questionable technicality about the relation back of amendments to deny a substantive right.

[4] If ASG had moved for dismissal while the administrative claim was still pending, and if the motion had been granted, Plaintiff would be on notice that she needed to re-file her lawsuit again after denial of the administrative claim. We will not retroactively dismiss a lawsuit for lack of jurisdiction where we presently have jurisdiction. The time for the motion to dismiss for lack of jurisdiction was during the time that we did not have jurisdiction. T.C.R.C.P. 12(h)(3) requires, "Whenever it appears by the suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." In the present case, it does not appear that the court presently "lacks jurisdiction of the subject matter."

Plaintiff is hereby ordered to amend her complaint to indicate an exhaustion of administrative remedies within seven (7) days of the entry of this order. At the time of such amendment, the motion for summary judgment is denied.

It is so ordered.

*********

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

American Samoa Gov’t; Rakhshan v.


DAVOUD RAKSHAN, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT and A.P. LUTALI, as
GOVERNOR & CHIEF EXECUTIVE and as an INDIVIDUAL, Defendants

High Court of American Samoa
Trial Division

CA No. 34-95

August 7, 1995

__________

[1] Filing a motion to dismiss for failure to state a claim under T.C.R.C.P. 12(b)(6) in lieu of an answer satisfies a defendant's procedural requirement under the law.

[2] A default judgment is not a matter of right. It is a drastic remedy that should only be granted in extreme situations and a trial court has sound discretion to determine whether default judgment is appropriate.

[3] A promise to perform an illegal act is unenforceable.

[4] A contract entered into by a government official lacking authority, or failing to follow proper procedures, is void.

[5] The Director of Manpower Resources, not the Governor, has the statutory authority to administer the personnel laws of American Samoa.

[6] The Government Tort Liability Act does not apply to any claim arising out of assault or battery.

[7] T.C.R.C.P. 12(f) only permits the court to strike scandalous material from a "pleading" and not from a motion.

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

Counsel: For Plaintiff, pro se
For Defendants, Henry W. Kappel, Assistant Attorney General

Order Denying Motion for Default Judgment and Granting Motion to Dismiss:

BACKGROUND

This matter arises out of, first, two contracts allegedly entered into on or about January 7, 1993, between plaintiff Davoud Rakshan ("Rakshan") and defendant American Samoa Government ("ASG"), represented by defendant Governor A.P. Lutali ("the Governor"), and, second, a tort allegedly committed on or about October 28, 1993, against Rakshan by an ASG employee.

On November 14, 1994, Rakshan filed an administrative claim under A.S.C.A. § 43.1205(a) of the Government Tort Liability Act with the Attorney General for $5,000 as damages for the physical harm and mental suffering as a result of the alleged tort. The Attorney General did not respond to the claim within three months, and on March 14, 1995, as permitted by Section 43.1205(a), Rakshan filed the complaint in this action against ASG and the Governor, in both his official and individual capacities. Rakshan seeks specific performance of the alleged contracts or damages for breach of those contracts, or both. He also now seeks $500,000 in damages for the alleged tort. ASG and the Governor were served with the summons and complaint on March 15, 1995.

On April 4, 1995, 20 days after service of the complaint, ASG and the Governor filed a motion to dismiss pursuant to T.C.R.C.P. 12(b)(6). A copy of this motion was delivered on April 4, 1995, to ASG's mailroom for mailing to Rakshan and was postmarked as mailed on April 7, 1995. Rakshan claims not to have received the motion until April 17, 1995.

On April 12, 1995, since ASG and the Governor did not serve an answer on him within 20 days after service of the summons and complaint, Rakshan filed a motion for default judgment. On April 24, 1995, Rakshan supplemented this motion, pointing out that the motion to dismiss was postmarked on April 7, 1995, and reasserting that an answer was not filed within the 20-day period.

On April 26, 1995, Rakshan personally served or attempted to serve subpoenas duces tecum on the Attorney General, Postmaster of the U.S. Post Office, and counsel for ASG and the Governor.

On April 28, 1995, Rakshan filed a memorandum in opposition to the motion to dismiss and, added alternatively to his motion for default judgment, a motion for summary judgment.

On May 3, 1995, ASG and the Governor moved to quash the subpoenas on the Attorney General and their counsel, to strike, pursuant to T.C.R.C.P. 12(f), a portion of Rakshan's response to the motion to dismiss as scandalous, and for sanctions against Rakshan for processing unreasonable and specious subpoenas and bad faith allegations. Rakshan filed a response to this motion the following day.

On May 8, 1995, the several pending motions came regularly for hearing. Rakshan appeared pro se and defendants were represented by counsel. Arguments were heard, and the court granted the motion to quash the subpoenas and took the other motions under advisement.

DISCUSSION

I. Motion for Default Judgment

T.C.R.C.P. 55 states in part:

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . the clerk shall enter his default.
(b) . . . Judgment by default may be entered upon motion of the party entitled to the judgment . . . .

Rakshan asserts that he is entitled to a default judgment because ASG and the Governor failed to serve an answer upon him within the 20 days as required by T.C.R.C.P. 12(a). This is incorrect for two reasons.

[1] First, filing a motion to dismiss for failure to state a claim, under T.C.R.C.P. 12(b)(6), in lieu of an answer satisfies a defendant's procedural requirement under the law. Rule 12(b) states in relevant part that "[e]very defense . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted."

[2] Second, even if the motion to dismiss was served on Rakshan a few days late, (1) we find that the delay is not a compelling reason to grant default judgment. A default judgment is not a matter of right. Appleton Electric v. Graves Truck Line, 635 F.2d 603, 611 (7th Cir. 1980). It is a drastic remedy that should only be granted in extreme situations. Charlton L. Davis & Co. v. Fedder Data Center, 556 F.2d 308, 309 (5th Cir. 1977) (the court may weigh whether or not the moving party indicated that "time was of the essence"); Affanato v. Merrill Brothers, 547 F.2d 138, 140 (1st Cir. 1976). A trial court has sound discretion to determine whether default judgment is appropriate. FTC v. Packers Brand Meats, 562 F.2d 9, 10 (8th Cir. 1977). For these reasons, we exercise our discretion and hereby deny Rakshan's motion for default judgment.

II. Motion to Dismiss

ASG and the Governor move, pursuant to Rule 12(b)(6), to dismiss Rakshan's complaint for failure to state a claim. Rakshan's complaint alleges three causes of action: (1) ASG and the Governor failed to perform on a written contract to pay Rakshan a 2% commission of the total financial aid received by ASG through the Barkley Banking Corporation of Sydney, Australia ("Barkley Bank"); (2) ASG and the Governor failed to perform on a verbal promise to give Rakshan immigration resident and work status in American Samoa, and employment with ASG, if Rakshan assisted in providing medical supplies to ASG; and (3) Rakshan was willfully assaulted by an ASG employee with the intent to cause serious bodily harm.

A. Written Contract

Although we recognize the fact that a written contract was executed by the Governor, promising Rakshan a 2% commission if he procured financial aid for ASG from the Barkley Bank, the contract does not support relief in this case. (2) It is important to note at the outset that Rakshan does not allege that he procured any financial aid according to the terms of the agreement, nor does he pray for monetary relief based on a commission for such procurement. Rakshan claims, however, that he is unable to perform the services contemplated by the contract without immigration status to reside and work in American Samoa to enable his representation of ASG.

In the first place, this document contains neither an express nor an implied promise to provide Rakshan with immigration status to reside and work here. The document represents, if anything, an option contract which promises Rakshan compensation under specified conditions. The contract in no way anticipated that ASG would be responsible for making these conditions possible. Furthermore, Rakshan gives no indication as to why he would be unable to negotiate with the Barkley Bank without such immigration status, despite the Governor's written authorization.

Most important of all, Rakshan harbors the illusion that the Governor is above the law and has unilateral or overriding authority to promise him such immigration status without complying with the immigration laws and administrative rules of American Samoa. The Governor may direct immigration officials to process applications concerning immigration status, but the Immigration Board exclusively makes status determinations, and the Attorney General is responsible for the overall administration and enforcement of the immigration laws of American Samoa. A.S.C.A. §§  41.0205 and 41.0206.

[3-4] It is basic contract law that a promise to perform an illegal act is unenforceable. Furthermore, it is long established that a contract entered into by a government official lacking authority, or failing to follow proper procedures, is void. Whiteside v. United States, 93 U.S. 882, 884 (1876); State v. Cleveland Trinidad Paving, 171 N.E. 837, 840 (Ohio 1829); State v. L.W. Eaton, 392 So. 2d 477, 479-80 (La. 1980). The Governor may not circumvent orderly procedures for government operations, because such procedures are designed to safeguard the public interest. (3) Id. Private parties' contract claims cannot be allowed to compromise the public interest because of unauthorized actions of government officials, governors included. See id. When public officials circumvent orderly procedures, they defeat the basic purpose of those procedures.

For these reasons, we must dismiss this aspect of Rakshan's complaint.

B. Verbal Promise

Rakshan also claims that the Governor reneged on a verbal promise to give Rakshan immigration status to reside and work in American Samoa, and employment with ASG, if Rakshan assisted in providing medical supplies to ASG. The foregoing discussion of the Governor's inability to promise such immigration status is equally applicable to these claims.

[5] In addition, the Governor lacked authority to promise Rakshan employment with ASG. The Director of Manpower Resources, not the Governor, has the statutory authority to administer the personnel laws of American Samoa. A.S.C.A. §§ 4.0335 and 7.0110; A.S.A.C. § 4.0102. The Director generally makes permanent, initial appointments to classified and excepted positions in the civil service system known as the "career service," based as a matter of public policy on merit and fitness, ascertained by competitive examination when practicable, and accounting for the length and quality of previous service. A.S.C.A. §§ 7.0207(a)(1) and (2), 7.0204, 7.0205, and 7.0206; A.S.A.C. §§ 4.0101 and 4.0301-4.0311(a). Employees hired by initial appointments outside of the career service but also under prescribed procedures include: (1) persons in temporary positions needed for periods not exceeding one year; (2) nonresident contract specialists for specified periods; (3) persons in emergency positions for 30 to 60 days; and (4) persons in disaster emergency positions up to 10 days. A.S.C.A. § 7.0207(a)(4); A.S.A.C. §§ 4.0311(b) and (c), and 4.1001-4.1002. The only other recognized ASG officials are judges and occupants of elected or appointed political positions. A.S.C.A. §§ 4.0112 and 7.0203.

Based on the laws and administrative rules of American Samoa, any promise for employment made by the Governor is not binding or enforceable. Therefore, this portion of Rakshan's complaint must also be dismissed.

C. Assault

[6] A.S.C.A. § 43.1203 states in part that the Government Tort Liability Act does not apply to "(5) any claim arising out of assault, battery . . . ." Although the court might well sympathize with the defenseless victim of this alleged vicious beating by a female nurse with a stethoscope, we must comply with the plain language of this statute. It is clearly dispositive of this issue, and therefore, we must also dismiss this element of Rakshan's complaint.

III. Motion for Summary Judgment

If Rakshan fails to meet the threshold test for avoiding dismissal of his complaint, then his motion for summary judgment is plainly inappropriate. In other words, if Rakshan has not shown a basis for any legal claim upon which relief can be granted, then he has failed to show that he is entitled to judgment as a matter of law.

IV. Motion to Strike and Impose Sanctions

ASG and the Governor moved to strike and impose sanctions on Rakshan for his "scandalous" allegation that the file stamp on the motion to dismiss was back-dated, placing the motion within the deadline for response to Rakshan's complaint. Rakshan alleges that he was told by court personnel that no response had been entered by ASG and the Governor as of April 11, 1995, and became alarmed when the motion to dismiss appeared file-stamped with the date April 4, 1995. In light of these circumstances, Rakshan's belief that an impropriety may have occurred in relation to the dating of this motion has some reasonable basis and does not indicate bad faith.

[7] Furthermore, T.C.R.C.P. 12(f) only permits the court to strike scandalous material from a pleading and not from a motion. Since the alleged scandalous statement by Rakshan is not included in a pleading, we cannot grant the motion to strike it. It is also unimportant whether we strike the scandalous allegation or not, because in dismissing the complaint, we effectively strike all allegations.

ASG and the Governor also seek sanctions against Rakshan for personally serving subpoenas upon the Attorney General and counsel for ASG and the Governor in light of T.C.R.C.P. 45(c), which requires that subpoenas be served by someone who is not a party to the litigation. The subpoenas were quashed by this court from the bench. To award sanctions for a procedural mistake by a pro se litigant would be unduly harsh, and would discourage impoverished persons with potentially valid claims from seeking relief in the judicial system.

ORDER

We deny Rakshan's motions for default judgment and summary judgment. We grant the motion by ASG and the Governor to dismiss Rakshan's complaint, pursuant to T.C.R.C.P. 12(b)(6). We also deny the motion by ASG and the Governor to strike and impose sanctions.

It is so ordered.

*********

1. ASG and the Governor argue that default judgment is inappropriate because they filed the motion within the 20 day requirement, but Rule 12(a) states that "the defendant shall serve his answer within 20 days . . ." (emphasis added). Although service of the motion by mail was commenced on April 4. 1995, as properly certified by counsel for ASG and the Governor, actual mailing was not completed until April 7, 1995.

2. It is doubtful whether the Governor had authority to procure financial aid under this arrangement, since the Chief Procurement Officer holds centralized procurement authority. A.S.A.C. § 10.0210. Although the foregoing administrative rule permits the Governor to grant authority to other persons by "executive order," it is doubtful that there was any valid executive order under the requirements of A.S.C.A. § 4.1001 et seq.

3. Procedures controlling the bestowal of immigration status are designed to protect the Samoan people against alienation of their limited land and resources, and to promote business enterprises by American Samoans. A.S.C.A. § 41.0201.

American Samoa Gov’t v. Tiumalu,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ASUELU TIUMALU, Defendant

High Court of American Samoa
Trial Division

CR No. 6-95

June 29, 1995

__________

[1] The 10-day time period mandated by A.S.C.A. § 46.2402(a) for filing a motion for new trial does not begin to accrue until the defendant is sentenced.

[2] The court will treat a motion for new trial, which was filed after verdict but before sentencing, as being timely filed.

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

Counsel: For Plaintiff, Frederick J. O`Brien, Assistant Attorney General
For Defendant, Reginald E. Gates, Assistant Public Defender

Order Denying Motion for New Trial:

[1-2] On May 22, 1995, the defendant was found guilty by jury verdict of the crime of assault in the first degree, as a Class B felony. Defendant prematurely filed a motion for new trial on June 1, 1995. The 10-day time period mandated by A.S.C.A. § 46.2402(a) for filing a motion for new trial did not begin to accrue until the defendant was sentenced on June 12, 1995. The motion came regularly for hearing on June 26, 1995. Defendant and both counsel were present. We considered the motion to have been properly filed as of June 12, 1995.

Defendant argues that the evidence was insufficient because his conviction was inconsistent with the acquittal of one of his three co-defendants, and that he was prejudiced by the late availability of a Hawaii hospital report containing information which may have been relevant to impeach the victim and the causes and seriousness of his injuries. Both arguments are without merit.

The motion for a new trial is denied.

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

August 17, 1995

__________

[1] A motion for new trial or rehearing in a non jury case should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons. The burden is on the moving party to show substantial reasons that such relief should be granted.

[2] On a motion for new trial or rehearing the moving party must state with particularity the grounds for the motion.

[3] A lease that was not recorded or registered pursuant to the statutory requirements is invalid and ineffectual.

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

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

Order Denying Motion for New Trial:

INTRODUCTION

In our opinion and order, entered on June 5, 1995, we declared, among other things, that neither South Pacific Island Airways ("SPIA") nor South Pacific Island Airsystems ("Airsystems") has any remaining right, title, or interest in and to certain land ("hangar property") located at the Tafuna Airport and that the American Samoan Government ("ASG") as owner is free to negotiate with the hangar property as it sees fit. On June 15, 1995, Airsystems moved for a new trial and on June 30, 1995, ASG filed its response. The motion came regularly for hearing on August 14, 1995, but since a quorum of judges was not present, the parties instead agreed to submit the matter on the briefs filed. With the return of Associate Judge Vaivao to the territory, the matter was then taken up for consideration.

BURDEN OF PROOF

[1-2] A motion for new trial or rehearing in a non jury case should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons. Hager v. Paul Revere Life Ins. Co., 489 F.Supp. 317, 321 (E.D. Tenn. 1977), aff'd without opinion, 615 F.2d 1360 (6th Cir. 1980). The burden on the moving party is to show substantial reasons that such relief should be granted. Id. Also, the requirement of T.C.R.C.P. 7(b)(1), that a party must state with particularity the grounds of a motion is especially important in the case of a motion for new trial, since the purpose of requiring such a motion before an appeal is to avoid unnecessary appeals by giving the trial judge a chance to see the error of his ways. Although a motion for new trial will obviously not be as well researched as the appeal which may follow, it should put the trial judge and the opposing party on fair notice of the particular errors that will be alleged in the appeal. Craddick Dev. Inc. v. Craddick, supra, 28 A.S.R.2d 167, 168 (Trial Div. 1995) (citing Judicial Memorandum No. 2-87, 4 A.S.R. 2d 172, 174 (1987)).

DISCUSSION

Airsystems alleges, in its motion for new trial, that every finding and declaration in the opinion consists of either an error of fact or law. Airsystems laboriously lists 33 of the findings nearly verbatim and asserts that they are incorrect or without factual or legal basis, but does not offer any legal analysis, with appropriate authority, nor substantial reasons to support its claims. Instead, the motion merely contains a brief assertion that six of the findings are incorrect. We will address each of these.

I. SPIA's Reasons for Assignment of Rights

Airsystems disagrees with an observation of the court's contained in footnote 1 of the opinion to the effect that SPIA transferred its rights to the hangar property to Airsystems "in apparent contemplation of inevitable SPIA bankruptcy proceedings." Airsystems claims, in its motion for new trial, that SPIA had to file bankruptcy because it lost money due to a change in FAA regulations which forced SPIA to ground aircraft. This fact, which was not in evidence at trial, has no bearing on this case. The reasons why SPIA filed bankruptcy are hardly germane to the result reached by the court. The only material fact is that SPIA did file, and as a result, the tenancy at will relationship between SPIA and ASG was effectively terminated. In the opinion, we did not attempt to explain why SPIA filed for bankruptcy, but merely stated that SPIA assigned its rights and property to Airsystems in consideration for only $10, through a Quitclaim Deed, immediately before the impending bankruptcy. Whether or not the inference contained in footnote 1 is correct has no bearing on the merits of this case and, therefore, this assignment of error provides no basis for new trial or for reconsideration.

II. SamAir's Month to Month Lease

Airsystems disagrees with this court's finding that SamAir's five year lease for the hangar property with ASG was extended on a month to month basis upon its expiration on December 29, 1993. Airsystems claims that this finding is inconsistent with the testimony of the Attorney General, but fails to state any specific portion of the testimony or any reason why the finding is contrary to this testimony or any other evidence. We find no inconsistency. Furthermore, whether or not SamAir's current month to month lease with ASG for the hangar property is an extension of the five year lease or the result of another agreement is neither here nor there for purposes of this motion. ASG and SamAir do not dispute that a month to month lease currently exists and has existed since the expiration of the five lease in 1993. Accordingly, we find that this objection is not a valid basis for a new trial or for reconsideration.

III. Lease Renewal

Airsystems disagrees with this court's conclusion that the term "renewal" in the SPIA lease meant that a new lease had to be negotiated when the original lease terminated. Airsystems claims that the SPIA lease allowed for extension, but does not cite any provision of the lease nor any legal authority pertaining to the meaning of "renewal." As we stated in the opinion, Article II of the SPIA lease provided that the lessee could opt to "renew" the lease for an additional fifteen year term, if agreed upon by the parties three months prior to its expiration, which, under its own terms, was on June 30, 1992. Also, "where a lease uses the term 'renewal' it means that the original lease expires at its term and upon agreement of the parties, it may be renewed through the execution of a new lease." Felder v. Hall Bros. Co., 235 S.W. 789, 790 (Ark. 1921) (the stipulation in a new lease to renew requires the making of a new lease, whereas one to extend does not). Airsystems failed to offer any evidence at trial that such an agreement was executed prior to the expiration of the SPIA lease or that one has been executed since. This objection is not a valid basis for a new trial or for reconsideration.

IV. SPIA Lease

Airsystems disagrees with this court's conclusion that the SPIA lease is "invalid and ineffectual" because it was not registered or recorded with the Territorial Registrar. Airsystems claims that even though the SPIA lease was never registered or recorded, it is still valid because of a prior ruling of this court. We reiterate that in American Samoa Government v. South Pacific Island Airways, Inc., CA No. 91-82, (Trial Div. 1984), this court recognized that SPIA had taken possession of the hangar property and owed $21,624.33 in unpaid rent for its use, but the court did not address the issue of whether or not the SPIA lease itself had been executed in accordance with the law. The claimed holding of CA No. 91-82 asserted by Airsystems is non-existent. The validity of the SPIA lease was not an issue before the court then as it is before us today. Since Airsystems has failed to even attempt support its contention, we find no reason to change our previous holding that the lease is "invalid and ineffectual," and merely created a tenancy at will relationship between ASG and SPIA.

[3] Airsystems further claims that even if the SPIA lease is invalid, ASG should be estopped from claiming a benefit from the lease since, as a party to the lease, it had an equal duty to record and register it with the Territorial Registrar. This point is puzzling since ASG is not claiming any benefit from the SPIA lease. Also, the fact remains that the lease was not recorded or registered and the legal reality of non-registration is a lease that is "invalid and ineffectual." A.S.C.A. §§ 30.0131 and 37.0120(a). For these reasons, this claim is not a valid basis for a new trial or for reconsideration.

V. Settlement Agreement

Airsystems disagrees with this court's finding that the 1989 Settlement Agreement between ASG and SPIA "was a self serving declaration on the part of Airsystems." Airsystems claims that Arthur Ripley's testimony shows that the Settlement Agreement was properly negotiated and approved by the Attorney General. In actuality, the Settlement Agreement was only executed by Wray on behalf of himself and merely "witnessed" by Assistant Attorney General Arthur Ripley. This is what the document says, it does not purport to commit ASG to anything, and if the parol evidence was indeed contradictory, the court simply opted for the unambiguous document.

VI. Settlement Agreement Funds

Airsystems credits the court with a finding that the funds used to pay SPIA as a result of the Settlement Agreement was a misuse of tax dollars, (1) because under the terms of the SPIA lease, SPIA was not entitled to reimbursement for the destruction of the hangar. Airsystems claims, in its motion for new trial, that the funds were not tax dollars, but were received by ASG from an insurance settlement. So what? Apart from the fact that there is no evidence on the record to support this allegation, even if the funds were derived from an insurance settlement, such funds would still remain public funds to make good public losses, not pay a private party on the basis of an "astonishing recital" that deliberately ignored prior court holdings, favorable to ASG's General Fund and, hence, the taxpayer.

CONCLUSION & ORDER

Airsystem's motion for new trial or for reconsideration is denied.

It is so ordered.

*********

1. The court did not say this; rather, the court observed that the action of the Attorney General's office, in committing ASG to pay Airsystems public funds, was deferentially pro-Airsystems and anti-taxpayer.

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

June 5, 1995

__________

[1] A lease between the American Samoa Government and a private party must be in accordance with certain statutory requirements.

[2] One may become a tenant at will or a periodic tenant under an invalid lease, or without a lease at all, by occupancy with consent.

[3] A tenancy at will relationship is subject to termination at will by either party to the agreement.

[4] The term "renewal" in a lease means that the original lease expires at its term and that upon agreement of the parties, it may be renewed through the execution of a new lease.

[5] Any renewal or extension of a lease for a term 10 years or more requires Fono approval. A.S.C.A. §  37.2030.

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

Counsel: For Plaintiff, Cherie Shelton Norman, Assistant Attorney General
For Defendant South Pacific Airsystems, Inc., Togiola T.A. Tulafono
For Defendant Samoa Aviation, Inc., d.b.a. Samoa Air, Marshall Ashley
For Defendant George Wray, pro se

Opinion and Order:

INTRODUCTION

This case concerns competing claims over an interest in a parcel of American Samoa Government ("ASG") owned land ("hangar property") at the Pago Pago International Airport located in Tafuna, American Samoa. In this matter, ASG requests this Court to declare the respective rights and duties of the parties regarding the hangar property and the agreements made pertaining thereto. At the present time, both Samoa Aviation, dba Samoa Air ("SamAir"), and South Pacific Island Airsystems ("Airsystems") claim an interest in the hangar property. SamAir currently leases the hangar property from ASG on a month to month basis and intends to enter into long term lease negotiations with ASG, whereas Airsystems claims an interest in the hangar property as the result of a preexisting lease between South Pacific Island Airways ("SPIA") and ASG, which was later allegedly transferred by SPIA to Airsystems. (1) In other words, the essential issue is whether Airsystems has a present interest in the hangar property that would interfere in SamAir's attempt to negotiate and execute a long term lease with ASG.

FACTS

On June 10, 1977, ASG leased the hangar property to SPIA for a fifteen year term. This lease ("SPIA lease") was signed by the president of SPIA, George Wray ("Wray") and acting Governor Lyle L. Richmond, but for reasons unknown it was not registered with the Territorial Registrar. Sometime thereafter, SPIA took possession of the hangar property, constructed a portable aircraft hangar structure, and began paying rent to ASG until 1985. (2)

In March, 1985, shortly before SPIA filed for bankruptcy, Wray devised a scheme to protect SPIA's assets from becoming property of the bankruptcy estate. First, on March 11, 1985, Wray incorporated Airsystems under the laws of American Samoa. Two days later, Wray, as president of both SPIA and Airsystems, attempted to assign SPIA's rights to the hangar property to Airsystems through a "Quitclaim Deed and Use Agreement" ("Quitclaim Deed") in consideration of $10. (3) The Quitclaim Deed was executed without ASG's acquiescence and it was not filed with the Territorial Registrar.

On June 19, 1985, SPIA filed for Chapter 11 bankruptcy in United States Bankruptcy Court, District of Hawaii. Despite Wray's attempt to transfer the SPIA lease to Airsystems, the lease along with SPIA's other assets, became property of the bankruptcy proceeding. ASG filed a claim in the bankruptcy proceeding to collect unpaid rent owed by SPIA for use of the hangar property. (4)

On February 28, 1987, SPIA's Chapter 11 bankruptcy was changed to a Chapter 7 and its operations and assets were transferred to Trustee Richard Kennedy ("Trustee"). The Trustee assumed SPIA's obligations under the SPIA lease and surrendered possession of the hangar property to ASG. ASG operated SPIA's business out of the hangar property until October 28, 1988, when SamAir obtained most of SPIA's assets, excluding the hangar structure and SPIA lease, as a result of the bankruptcy proceedings.

On December 30, 1988, ASG leased the hangar property to SamAir for a five-year term. The lease was signed by then Governor A.P. Lutali and was filed with the Territorial Registrar on January 5, 1989. A few days later, the Deputy Territorial Registrar incorrectly attempted to void the lease, citing certain irregularities. On the basis of this purported retroactive rejection by the Territorial Registrar's office, ASG filed an action, docketed CA No. 56-89, with this Court against SamAir for recovery of the hangar property. In response, SamAir filed an action, docketed CA No. 49-89, claiming that ASG, Wray, and Airsystems had entered onto the hangar property in violation of SamAir's lease.

In the first matter, CA No. 56-89, this Court on June 30, 1989, held that the five-year lease between ASG and SamAir was valid and enforceable. (5) See American Samoa Gov't v. Samoa Aviation, Inc., 11 A.S.R. 2d 144, 153 (Trial Div. 1989), rehearing denied 13 A.S.R. 2d 65 (1989). In CA 49-89, we issued a preliminary injunction on October 25, 1990, restraining ASG, Wray, and Airsystems from interfering with SamAir's lease of the hangar property. (6) See Samoa Aviation, Inc., v. American Samoa Gov't, George Wray, Airsystems, Inc., Does I-X, CA No. 49-89, slip op. (Trial Div. Oct. 25, 1990) (Order Granting Injunctive Relief). SamAir's five-year lease expired on its own terms on December 29, 1993, and has been extended on a month to month basis.

Despite our decision in CA No. 56-89, entered June 30, 1989, that SamAir had a valid lease, the following events raised questions about the current status of the hangar property: 1) Airsystems, in a letter dated March 10, 1992, notified ASG that it wished to exercise the option to extend the SPIA lease; (7) 2) On March 18, 1992, the Attorney General rejected Airsystems' request and notified them that the SPIA lease would terminate on March 31, 1992; 3) On December 29, 1992, and three days before leaving office, Governor Peter T. Coleman signed a letter to Airsystems purporting to cancel the Attorney General's earlier March 18 letter.

On January 12, 1994, ASG filed this action seeking declaratory relief on the respective rights and duties of the parties in this action regarding the hangar property and pertinent agreements thereto. The action against Wray was subsequently dismissed after he declared in court that he no longer had any further interest in the entity Airsystems.

DISCUSSION

I. SPIA Lease

Airsystems alleges the execution of a valid ground lease with ASG, on June 30, 1977, of the hangar property for a fifteen year term. While ASG does not contest the validity of the SPIA lease prior to SPIA's bankruptcy in 1985, SamAir argues that this lease was never properly executed in the first place. We agree.

[1] In American Samoa, a lease between ASG and a private party must be in accordance with certain statutory requirements. For example, A.S.C.A. § 30.0131 provides that no corporation "may buy or acquire any interest in land unless the transaction is approved in writing by the Governor and recorded by the Territorial Registrar, and no such acquisition or transfer may be of any effect until so approved and recorded" (emphasis added). In addition, A.S.C.A. § 37.0210(a) states that "[n]o instrument shall be effectual to pass the title to any land or any interest therein. . . until such instrument has been duly registered with the territorial registrar" (emphasis added).

Airsystems argues that §§ 30.0131 and 37.0210(a) did not become effective in American Samoa until 1982, and therefore do not apply to the SPIA lease, which was executed in 1977. This claim is not only factually incorrect, but a misinterpretation of the legislative history of these statutes. Even a cursory reading of the annotations to these enactments reveal that they were enacted into law in 1962 and readopted in 1982. See also XI Code Am. Samoa, 1961 Ed. § 11.0121, 14 A.S.C.A. § 202; and X Code Am. Samoa, 1961 Ed. § 10.0102, 27 A.S.C.A. § 601, respectively. The SPIA lease was never registered with the Territorial Registrar; it is, therefore, invalid and ineffectual. A.S.C.A. §§ 30.0131 and 37.0210(a).

[2] Airsystems claims that this Court, in American Samoa Government v. South Pacific Island Airways, Inc., CA No. 91-82, slip op. (Trial Div. May 11, 1984) (Findings, Conclusions and Order, entered), held that the SPIA lease was valid. We recognize the fact that in CA No. 91-82, we entered a finding that SPIA had valid leases for office space, a ticket counter, and a hangar tie down and service area with ASG. This finding, however, was entered on SPIA's stipulation that rent in the amount of $21,624.33 was due and owing to ASG at the time. See id. at 5. This finding was intended to show that SPIA had taken possession of the hangar property and owed ASG $21,624.33 in unpaid May 11, 1984, rent for use of the premises. Our decision in CA No. 91-82 did not address the question of whether or not the SPIA lease itself was executed in accordance with the law. We do take notice that SPIA took possession of the hangar property and that ASG accepted rental payments from SPIA during this term, but that does not change the fact that the parties had failed to properly execute the SPIA lease in accordance with applicable statutory mandate. Instead, the consensual agreement between ASG and SPIA merely created a tenancy at will relationship. Case law abounds that a lessor's failure to execute a lease results in a tenancy at will. Kehoe v. Schneider, 378 N.E.2d 1000, 1001 (Mass. 1978). "One may become a tenant at will or a periodic tenant under an invalid lease, or without a lease at all, by occupancy with consent." Ellingson v. Walsh O'Connor & Barneson, 104 P.2d 507, 509 (Cal. 1940); Barbee v. Lamb, 34 S.E.2d 65, 66 (N.C. 1945).

Where, in addition to entry into possession under an invalid lease,
rent is paid and accepted under the lease, a periodic tenancy is
created. By the payment and acceptance of such rent, the parties
have given further indication of their intention to be bound by the
invalid lease, and the period tenancy provides a measure of security
to their expectations. The initial period is determined by the interval
between the rent payments specified in the invalid lease.

Kent v. Humphries, 281 S.E.2d 43, 46 (N.C. 1981) (quoting Restatement (Second) Of Property, Landlord and Tenant § 2.3(d) (1977). In other words, when a tenant enters into possession under an invalid lease and tenders rent which is accepted by the landlord, a periodic tenancy is created. This is the rule in most jurisdictions. Id.

[3] Accordingly, we hold that the SPIA lease was never executed in accordance with applicable law, but since SPIA took possession of the hangar property and ASG collected rent, a tenancy at will relationship was created by the parties and was subject to termination at will by either party to the agreement. Barbee v. Lamb, at 66.

II. Termination of SPIA Leasehold Interest

Since 1977, several events have occurred which effectively terminated SPIA's tenancy at will, as well as any right or interest claimed by SPIA or Airsystems in the hangar property. We will address these issues one at a time.

A. Termination By Bankruptcy

On June 19, 1985, SPIA filed for a Chapter 11 bankruptcy in the U.S. District Court of Hawaii. The bankruptcy was later converted to a Chapter 7 proceeding and SPIA's operations and assets were transferred to the bankruptcy Trustee on February 28, 1987. ASG argues that even if the SPIA Lease was valid according to law, it was terminated by the bankruptcy Trustee's failure to assume or reject the SPIA lease within 60 days as required by 11 U.S.C. § 365(4). This statute governs the actions of a Trustee in dealing with unexpired leases and executory contracts, which are contracts that have yet been fully performed or completed. Wagstaff v. Peters, 453 P.2d 120, 124 (Kan. 1969); seeBlack's Law Dictionary 512 (5th ed. 1979). 11 U.S.C. § 365(4) provides in part:

if the trustee does not assume or reject an unexpired lease of
nonresidential real property under which the debtor is the lessee
within 60 days after the date of the order for relief . . . then such
lease is deemed rejected, and the trustee shall immediately
surrender such nonresidential real property to the lessor.

See also American Samoa Gov't v. Samoa Aviation, Inc., 11 A.S.R.2d at 145 (the SPIA lease was terminated automatically during the bankruptcy). Since the Trustee did not assume the SPIA lease within the necessary time limit, he was required to release the hangar property to ASG. As a result, ASG took possession of the hangar property, in July 1987, and began to operate the airline, effectively terminating SPIA's tenancy at will. Accordingly, we conclude that the bankruptcy proceeding itself terminated SPIA's tenancy at will, as well as, any other alleged interest in the hangar property.

B. Termination By SamAir Lease

On October 28, 1988, the Bankruptcy Court issued an order, which became effective on December 20, 1988, transferring SPIA's operations and assets, excluding the SPIA lease and the hangar structure, to SamAir. As a result, ASG was able to lease the hangar property to SamAir on December 30, 1988, for a five-year term. The lease was duly signed by the Governor and registered with the Territorial Registrar in accordance with A.S.C.A. §§ 30.0131 and 37.0210(a). Although the Territorial Registrar later attempted to reject the lease, this Court, in American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R. at 153, rehearing denied 13 A.S.R. 2d 65 (1989), held that the five-year lease between ASG and SamAir was valid and enforceable. (8) This decision effectively recognized the termination of SPIA's tenancy at will and, therefore, any remaining right or interest claimed by Airsystems in the hangar property.

C. Termination By Emergency

On March 18, 1992, the Attorney General wrote and notified Airsystems that the SPIA lease was terminated effective March 31, 1992, due to an emergency. Article X of the SPIA lease provided that ASG may unilaterally terminate the lease if, in the sole opinion of the lessor, a state of emergency requires the use of the premises. We find that the Attorney General's letter dated March 18, 1992, would have been sufficient to terminate the SPIA lease, had it been valid, as well as terminating SPIA's tenancy at will or any interest thereby claimed by Airsystems in the hangar property.

D. Termination In Accordance With Law

Even if the SPIA lease was valid, it would have terminated under its own terms on June 30, 1992. Article II of the SPIA lease provided that the lease "shall expire and terminate on June 30, 1992," unless it was renewed. It was not renewed. SPIA's tenancy at will, as well as any interest Airsystems alleges to have in the hangar property would have terminated, at the latest, on June 30, 1992.

III. Airsystems' Interest

Airsystems claims a current interest in the hangar property arising from the Quitclaim Deed and the December 29, 1992, letter signed by Governor Coleman. Airsystems argues that the Quitclaim Deed assigned to it SPIA's rights to the lease, which was then extended by Governor Coleman's letter. We hold that Airsystems never had an interest in the hangar property.

A. Quitclaim Deed

Airsystems alleges that on March 10, 1985, SPIA legally conveyed title to the hangar structure and assigned its rights under the SPIA lease to Airsystems through the execution of a Quitclaim Deed. First, since the SPIA lease was invalid, SPIA did not have any rights under the lease to assign. Second, even if the SPIA lease was properly executed, the Quitclaim Deed would nonetheless be invalid and of no legal effect for two reasons: 1) it was not executed with the approval of ASG as required by the SPIA lease; and, 2) it was not filed with the Territorial Registrar as required by §§ 30.0131 and 37.0210(a).

Article V of the SPIA lease stated that SPIA may not "at any time assign this lease or any part thereof without thewritten consent of lessor" (emphasis added). SPIA's attempt to assign its rights to the hangar property was done without ASG's written consent. The Quitclaim Deed contained only Wray's signature as the Chairman of the Board of Directors of both SPIA and Airsystems, but this instrument was never approved in writing by anyone on behalf of ASG. Second, the Quitclaim Deed was never registered with the Territorial Registrar. In fact, the evidence shows that ASG was not even aware that the Quitclaim Deed existed. From April 8, 1985, one month after the Quitclaim Deed was signed by Wray, until December 4, 1988, ASG continued to invoice SPIA $400 a month for use of the hangar property. In return, SPIA paid $4,000 of rent for that period of time and the remaining balance was paid by the bankruptcy Trustee. ASG never invoiced nor collected rent from Airsystems on the hangar property.

Accordingly, and even assuming for purposes of discussion that the SPIA lease was valid, we find that the Quitclaim Deed was neither executed with the written approval of ASG nor in accordance with A.S.C.A. §§ 30.0210 and 37.0131, and, therefore, hold that it is invalid and of no legal effect. (9)

B. Lease Renewal

Article II of the SPIA lease provided that the lessee could opt to "renew" the lease for an additional fifteen year term, if agreed upon by the parties three months prior to its expiration, which, under its terms, was on June 30, 1992.

While Airsystems alleges that it sent Governor Coleman a letter, dated March 10, 1992, timely notifying ASG of its intent to renew the SPIA lease, such a letter was never tendered into evidence at trial. ASG did, however, offer into evidence a letter signed by the Attorney General on March 18, 1992, which acknowledged receipt of a March 2, 1992, letter from Wray. This letter, which was copied to Governor Coleman, the Treasurer, and Director of Port Administration, notified Airsystems that the SPIA lease was terminated as of March 31, 1992.

Airsystems, on the other hand, argues that the Attorney General's March 18 notice of termination letter had no legal effect since it was not signed by Governor Coleman; that as a result, ASG's final position on the SPIA lease was that stated in Governor Coleman's letter of December 29, 1992, that annulled the Attorney General's earlier cancellation notice. Airsystems maintains that this gubernatorial correspondence not only rescinded the Attorney General's emergency cancellation of the SPIA lease, but also extended its leasehold interest for another fifteen year term.

[4] We find no merit to this analysis. Where a lease uses the term "renewal" it means that the original lease expires at its term and upon agreement of the parties, it may be renewed through the execution of a new lease." Felder v. Hall Bros. Co., 235 S.W. 789, 790 (Ark. 1921) (the stipulation in a lease to renew requires the making of a new lease, whereas, one to extend does not). Governor Coleman's December 29, 1992 letter neither evidences a renegotiation of a renewal of the lease nor could it have amounted to a lease agreement, since it further fails to evidence necessary terms. At the same time, the letter, if it can be construed as a renewal of the lease, was never filed with the Territorial Registrar. Accordingly, Governor Coleman's letter did not constitute a renewal of the SPIA lease nor did it effectively result in a nunc pro tunc rescission of the lease's termination nine months earlier by the Attorney General.

[5] In addition, any renewal or extension of the lease for a term 10 years or more requires the Fono's approval. See A.S.C.A. § 37.2030. Since this statute was enacted in 1978, it did not apply to the original SPIA lease executed in 1977. (10) It did, however, apply to any leasehold of ASG property executed after 1978. The Fono never approved an extension of the SPIA lease. It was, therefore, not renewed for a further term of fifteen years. Thus, even if we could hold that the SPIA lease was valid, it would have terminated under its own terms since Airsystems had not only failed to renew the SPIA lease but it also failed to properly conclude a new one in accordance with statutory mandate.

IV. General Release and Settlement Agreement

ASG agreed to pay Airsystems $280,000 as the result of two separate settlement instruments. The first, dated September 7, 1989, and styled "General Release of All Claims and Settlement Agreement," is nothing more than a self serving declaration on the part of Airsystems,(11) stipulating, among other things, to the release of ASG from any and all "claims and actions" which Airsystems may have against ASG for "mistakenly enter[ing] into and execut[ing] a 5-year lease of [the hangar property] to [SamAir] without [Airsystems'] consent." This document further recites ASG's acknowledgment of the continuing validity of Airsystems' claims to the hangar property, as SPIA's assignee.

The second settlement instrument, styled "Agreement In Settlement," dated March 7, 1991, reflects an agreement by ASG to pay Airsystems the sum of $280,797 for the hangar structure which was destroyed by Hurricane Ofa on February 2, 1990.

ASG's negotiation of this settlement is highly suspect and even irresponsible in the light of this Court's prior judicial pronouncements in Samoa Aviation, 11 A.S.R.2d 144, that the SPIA lease, upon which Airsystems based its claims to the hangar property, was terminated automatically during the bankruptcy proceeding, id. at 145; and that the SamAir lease was valid and enforceable, id. at 153. Given these holdings, the deferential and generous posture taken by the Attorney General's office in favor of Airsystems, and against the tax payer, thereby committing ASG to the payment of public funds, is bewildering to say the least. Notwithstanding an unambiguous declaration by the High Court of American Samoa that the SamAir lease on the hangar property was valid and enforceable, the Attorney General's office nonetheless committed ASG to concede and agree to the payment of damages upon the astonishing recital that "[ASG had] mistakenly entered into and executed a 5-year lease . . . to [SamAir]," and that Airsystems as "owner" of the hangar property was to be paid the sum of $280,797 for, among other things, "[ASG's] conversion and use of the [hangar property]."

Furthermore, these settlements are also highly questionable in view of the fact that Article VII of the SPIA lease provided that "[a]ll permanent improvements [which would include the hangar] to the premises shall become the property of [ASG] the Lessor." Now given the destruction of the hangar structure by what was essentially an intervening act of God, we were not able to find anything whatsoever in the language of the SPIA lease obligating ASG to either restore or to be liable for damage and destruction to any permanent improvements on the premises, attributable to vis major.

We conclude that Airsystems' claim to the hangar property, based on the assignment of the invalid and ineffectual SPIA lease, is equally invalid and ineffectual. Accordingly, the resulting settlement instruments premised on Airsystems' groundless claims to the hangar property are equally found to be invalid and ineffectual, and thus present no impediment whatsoever to ASG's rights as owner, to deal with the hangar property as it sees fit.

CONCLUSIONS AND ORDER

On the foregoing, we hereby declare the following:

1) That the SPIA lease is invalid and of no effect;

2) That SPIA's taking possession of the hangar property and ASG's acceptance of rental payments from SPIA created a tenancy at will relationship;

3) That the tenancy at will, along with any right, interest, or title SPIA may have to the hangar property, has terminated;

4) That the Quitclaim Deed, assigning the SPIA lease to Airsystems, is itself invalid and of no legal effect;

5) That neither SPIA nor Airsystems has any remaining right, title, or interest in and to the hangar property, nor in and to any improvements made thereon; and,

6) That ASG as owner of the hangar property is otherwise free to deal with the said property as it sees fit.

Judgment shall enter accordingly.

It is so ordered.

*********

1. George Wray, who was the president of both SPIA and Airsystems, incorporated Airsystems in an attempt to transfer SPIA's lease of the hangar property to Airsystems in apparent contemplation of inevitable SPIA bankruptcy proceedings.

2. On February 2, 1990, the hangar structure was destroyed by Hurricane Ofa. SamAir, who had a valid lease at that time, was permitted by ASG to remove the wreckage from the hangar building.

3. Airsystems, who did not receive a business license in American Samoa until 1991, has never paid rent to ASG for the hangar property.

4. According to the evidence offered at trial, SPIA owed $2,337,883.43 in rent to ASG as of July 30, 1988, for use of the hangar property.

5. Neither SPIA nor George Wray were parties to this action.

6. This matter remains pending.

7. Article II of the SPIA lease stated that the lease "shall expire and terminate on June 30, 1992," and that SPIA "shall have the option of renewing the lease for an additional fifteen year term" if agreed upon "by the parties three (3) months prior to the expiration of this lease."

8. Neither SPIA nor Wray were parties to this action. The SamAir lease expired under its own terms on January 5, 1994, however, SamAir continues to lease the premises from ASG on a month to month basis pending the outcome of this case.

9. The Quitclaim Deed, even if properly executed, was an executory contract that was never assumed by the bankruptcy trustee, and was, therefore, rejected by operation of law. 11 U.S.C. § 365(d)(4).

10. The SPIA lease was executed one year prior to the passage of A.S.C.A. § 37.2030 in 1978, which requires that any lease of government land for a period of ten years or more be submitted to the Fono before it may become effective.

11. The General Release of All Claims and Settlement Agreement was executed by Wray on behalf of Airsystems and merely "witnessed" by Assistant Attorney General Arthur Ripley "for the Attorney General."

Fau; In re Matai Title


ENELE FAU, Claimant

v.

TE`O L. TAVAI, Objector/Counter-claimant

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

High Court of American Samoa
Land and Titles Division

MT No. 05-94

June 1, 1995

__________

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

Counsel: For Claimant, Levaula Kamu Pro Hac Vice
For Objector, Asaua Fuimaono

Order on Motion to Dismiss Claim:

On October 29, 1992, Enele Fau ("Fau") filed his claim to succession with the Territorial Registrar to the matai title Fau, attached to the village of Vailoatai. On November 17, 1992, Te`o L. Tavai ("Te`o") filed his objection and counterclaim to succession.

This matter came on regularly for hearing on May 26, 1995, upon Te`o's motion to dismiss Fau's claim to succession, on the grounds that the latter was ineligible to file his succession claim, not having resided in American Samoa for one calendar year immediately preceding the filing of his claim, as proscribed by A.S.C.A. § 1.0404(a). (1) Te`o appeared with his counsel Asaua Fuimaono, while neither Fau nor his counsel of record, Levaula Kamu, appeared. The court having been satisfied that claimant's counsel was given actual notice of this motion and hearing date, the motion was duly considered.

On the evidence received, we find that Fau was at all relevant times a resident of Hawaii, and that he had not resided in American Samoa for at least one calendar year immediately preceding the filing of his succession claim to the matai title Fau.

On the foregoing, we conclude that claimant Fau was ineligible to file for succession to the matai title Fau, attached to the village of Vailoatai, since he did not meet the statutory residency requirement set out in A.S.C.A. § 1.0404(a). The motion to dismiss is, therefore, granted.

It is so ordered.

*********

1. A.S.C.A. § 1.0404(a) states in relevant part: "[N]o one is eligible to claim or object to the succession of to the matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim of objection.

Estate of Sotoa v. Te'o,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

LEO TOGIA ANTONIO, Defendant

High Court of American Samoa
Trial Division

CR No. 36-95
CR No. 39-95

August 10, 1995

__________

[1] Judicial economy and legitimate public interests favor a joinder of all offenses against the accused.

[2] Whether joinder of offenses or defendants is appropriate is determined on a case by case basis.

[3] Counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they are of the same or similar character, even if the offenses are distinct and unrelated. Rule 8(a) recognizes the adverse effect on defendants of having evidence of multiple unrelated crimes presented in one proceeding, but this negative effect is outweighed by gains in trial economy when one of the criteria of the rule are met. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to demonstrate an abuse of discretion by a trial court.

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

Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant, Reginald E. Gates, Public Defender

Order of Joinder:

The government moves to join these two cases relating to various offenses charged which were allegedly committed by the same defendant in two separate and unrelated incidents. The government alleges that on March 27, 1995, the defendant severely beat his mother-in-law and father-in-law with a rock following a surprise attack on his father-in-law, and amid the confusion created by the assault, he stole his mother-in-law's purse containing money and identification documents. On this basis, the defendant is charged with Burglary in the First Degree, Assault in the Second Degree, Assault in the Third Degree, and four counts of Stealing. (CR No. 36-95).

In a separate action, the government alleges that on July 14, 1995, the defendant, armed with a rock, forcibly stole money from the KS Amusement Center and that in the course of this theft he utilized a rock to inflict serious physical injury upon the night clerk in a surprise attack. On this basis, the defendant is charged with Robbery in the First Degree, and Assault in the First Degree. (CR No. 39-95). The Government seeks to join all these offenses resulting from the aforementioned incidents, pursuant to T.C.R.Cr.P Rule 8(a).

DISCUSSION

T.C.R.Cr.P. 8(a) permits joinder of offenses:

Two or more offenses may be charged in the same information in
a separate count for each offense if the offenses charged, whether
felonies or misdemeanors, are of the same or similar character or
are based on the same act or transaction or on two or more acts
or transactions connected together or constituting parts of a common
scheme or plan.

[1-2] Broad interpretation of this rule is encouraged in the interest of efficiency. Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966). "Judicial economy and legitimate public interests favor a joinder of all offenses against the accused." United States v. Dennis, 625 F.2d 782, 801 (8th Cir. 1980). Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. Haggard, 369 F.2d at 974.

[3] In the joinder of counts pertaining to separate defendants under T.C.R.Cr.P. 8(b), "[m]ere factual similarity of events will not suffice," but "[rather there must be some greater 'logical relationship' between the occurrences" in order for joinder to be proper. United States v. Ford, 632 F.2d 1354, 1372 (9th Cir. 1980) (construing F.R.Cr.P. 8(b), which T.C.R.Cr.P. 8(b) mirrors). Nevertheless, counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they "are of the same or similar character." This is true, even if the offenses are "distinct," and unrelated. United States v. Werner, 620 F.2d 922, 927 (2d Cir. 1980). Rule 8(a) recognizes the adverse effect on the defendant of having evidence of multiple unrelated crimes presented in one proceeding, but "considers this to be outweighed by gains in trial economy when one of the criteria of the rule are met." Id. at 929. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to demonstrate an abuse of discretion by a trial court. Id. at 928.

In the matter at hand, the defendant is accused of two unrelated incidents. Both incidents involve surprise attacks, violent assaults using rocks, and the theft of money. The two events are strikingly similar, to the point that it may be persuasively argued that they are of precisely the "same . . . character," satisfying T.C.R.Cr.P. 8(a). In view of these factors, joinder appears proper and in the public interest. The government's motion to CR No. 36-95 and CR No. 39-95 is, therefore, granted.

It is so ordered.

*********

Development Bank of American Samoa v. Scanlan, Inc. ,


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

SAM SCANLAN, INC., H.C. FANENE SCANLAN,
and LALOIFI E. SCANLAN, Defendants

High Court of American Samoa
Trial Division

CA No. 69-88

May 26, 1995

__________

[1] Where an original ground lease does not contain a clause allowing for a second option or a right to extend the lease, a letter extending the lease does not constitute a new lease.

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

Counsel: For Plaintiffs, Katopau T. Ainuu
For Defendants, Afoa L. Su`esu`e Lutu

Order Granting Motion for Relief From Order Staying Execution Upon Judgment:

PROCEDURAL HISTORY

Plaintiff Development Bank of American Samoa ("DBAS") obtained a writ of execution on October 18, 1994, and several writs of garnishment on October 31, 1994, against defendants. (1) This court issued the writs on the belief that defendants' ground lease with the American Samoa Government ("ASG") for land ("ground lease"), upon which the premises known as the "Seaside Garden Club" were located, had expired.

On November 18, 1994, defendants filed a motion to stay execution of the writs on the basis that their ground lease with ASG was still in existence. At the hearing on the motion, both parties stipulated to having previously made a mistake about the existence of the ground lease. On the basis of this stipulation that the ground lease was still in existence, we issued an order on March 18, 1995, which granted defendants' motion, quashed the existing writ of execution and writs of garnishment, and stayed any further execution upon the judgment except by further order of this court.

On March 31, 1995, DBAS filed a motion for relief from the order staying further execution upon judgment claiming that defendants' ground lease had terminated and that the stipulation was incorrect. On April 28, 1995, defendants filed their opposition to DBAS's motion for relief. On May 1, 1995, the motion came regularly for hearing, and all parties were represented by counsel.

DISCUSSION

The sole issue before us today is whether or not defendants' ground lease with ASG still exists. Despite this court's previous belief and the confusion among the parties themselves, we find that defendants' ground lease expired on its own terms on September 29, 1991, and was at no time extended or renewed in accordance with the law.

Defendants assert that in a letter dated January 3, 1990, then Acting Governor Galea`i Poumele ("Acting Governor") extended the ground lease for 10 years, until 2001. (2) Defendants argue that this letter is a valid extension of the ground lease and enforceable under the law.

[1] DBAS asserts that in a letter dated February 17, 1995, the Chairman of the Real Property Management Board, who is also the Attorney General of American Samoa, stated that the Acting Governor's letter did not give rise to a contract and that the ground lease expired on its own terms in 1991. This position is correct. The original ground lease did not contain a clause allowing for a second option or a right to extend the lease. Therefore, defendants would have needed to execute a new lease with ASG. The Acting Governor's letter does not constitute a new lease, but is merely a letter written in response to an alleged request by defendant HC Fanene Scanlan to extend the lease. This request has not been submitted into evidence by any of the parties. In fact, the expired ground lease has been neither extended nor renewed, and no new lease has been signed by the parties and registered with the territorial registrar.

ORDER

On these facts, our order of March 18, 1995, which quashed the writ of execution, writs of garnishment and stayed any further execution upon the judgment, was based on a false premise and a mistaken stipulation by the parties. Accordingly, we hereby grant DBAS's motion for relief from order limiting further execution upon judgment. The writs obtained by DBAS are no longer quashed and the stay limiting further execution upon judgment is removed.

It is so ordered.

*********

1. The writs were issued upon the judgment entered in this action on December 6, 1988, in favor of DBAS against defendants for debts incurred.

2. According to the original ground lease filed with the Territorial Registrar, the lease was executed by ASG, lessor, and Sam Scanlan, lessee, for a 20-year term beginning on September 29, 1971, and ending on September 29, 1991.

Craddick Development Inc. v. Craddick


[1] T.C.R.C.P. 7(b) requires that motions, unless made during a hearing or trial, shall be made in writing and state with particularity the grounds therefore. This rule is especially important in motions for a new trial to put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal and to avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways.

[2] When the grounds in a motion for new trial are stated too generally, the motion may be rendered null.

[3] A party has no standing to sue without an injury-in-fact, or a direct stake in the controversy. Plaintiff must have a substantial, direct, and immediate interest in the suit.

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

Counsel: For Plaintiff, William H. Reardon
For Defendant, Togiola T.A. Tulafono

Order Denying Motion for New Trial:

In our opinion and order entered on June 27, 1995, in this case, we held void two trusts which vested the legal title to individually owned land in a Samoan and the beneficial interest in non-Samoans. On July 7, 1995, plaintiffs moved for a new trial. The hearing on the motion was held on August 9, 1995, with counsel for all parties present.

DISCUSSION

I. Written Grounds

Plaintiffs written motion listed four grounds for a new trial. In each ground, plaintiffs stated that the court erred in making certain decisions, but they did not provide any written reasoning for their general conclusions. They also failed to expand on their assertions during oral argument.

[1] T.C.R.C.P. 7(b) requires that motions, "unless made during a hearing or trial, shall be made in writing, [and] state with particularity the grounds therefor. . . ." The court has previously articulated that this rule is especially important in motions for a new trial to "put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal" and "to avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways." Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 175 (1987).

[2] The generality adopted by plaintiffs in stating the grounds for a new trial in this motion comes very close to rendering the motion a nullity. See United States v. 64.88 Acres of Land, 25 F.R.D. 88 (1980). In any event, however, we believe that we adequately addressed the four topics raised in the motion in the opinion and order and will, without having the benefit of any further elaboration by plaintiffs, deny the motion as to the four grounds stated in the written motion.

II. Oral Grounds

At the hearing, plaintiffs orally claimed that given the voidance of the trusts under the opinion and order, the court should have ordered the reversion of the individually owned lands held in the trusts to the original owners rather than to defendant Magdalene Vaivao Craddick ("Magdalene"), who held the legal title to these lands under the two trust arrangements.

Plaintiffs are not entitled to consideration of this argument under the mandates of Rule 7(b). However, despite plaintiffs' cavalier approach, this point deserves present comment.

[3] A party has no standing to sue without an "injury-in-fact," or a "direct stake in the controversy." See Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11, 13 (Land & Titles Div. 1993); Solomona v. Governor, 17 A.S.R.2d 186, 192 (Land & Titles Div. 1990); Harrington v. Bush, 553 F.2d 190, 197, 204-06 (D.C. Cir. 1977). The purpose of this rule is "to protect against improper plaintiffs," by requiring the plaintiff to prove an interest in the suit which "surpasses the common interest of all citizens in procuring obedience to the law." In re Biester, 409 A.2d 848, 851 (Pa. 1979). "To surpass the common interest, the interest is required to be, at least, substantial, direct, and immediate." Id.

At the hearing, plaintiffs essentially conceded that they had no standing to challenge our decision invalidating the trusts with respect to the rights of the original grantors of the lands. They pursued this argument, however, because of alleged economic impact of the decision on persons who are not parties to this action.

Plaintiffs' idea of furthering public policy goals by resort to the courts is misplaced, and is in fact one of the principal reasons for placing limitations on standing to sue.

Demonstrating personal harm of some sort is crucial because this "gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 699, 687 (1973). As such "a mere 'interest in a problem,' no matter how qualified the organization is in evaluating the problem, is not sufficient to establish standing." Sierra Club v. Morton, 405 U.S. 727, 739 (1972).

Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11, 13 (Land & Titles Div. 1993).

Furthermore, our decision only adjudicated plaintiffs' claims against Magdalene and her counterclaims against plaintiffs. We found, by virtue of the land alienation laws, that the trusts were void, and that the non-Samoan trust beneficiaries consequently have no interest in the trust lands. The decision was not intended to adjudicate Magdalene's rights against anyone other than the trust beneficiaries who were parties to this action. We did not foreclose the possibility that other third parties may have potentially valid claims against her. It would, therefore, be inappropriate for us to presage any adjudication of the rights of the original grantors or others who are not parties and cannot present their own interests in this action.

The motion for a new trial is denied.

It is so ordered.

*********

Craddick Development Inc. v. Craddick


[1] The Revised Constitution of American Samoa envisions vigorous constitutional and statutory protection for Samoan ownership of land.

[2] The Revised Constitution of American Samoa requires that the land alienation laws be changed by specific political procedures, and not by judicial fiat. Rev. Const. Am. Samoa, Art. I, § 3.

[3] The alienation restriction of A.S.C.A. § 37.0204(b) applies to individually owned land by its language encompassing "any lands except freehold lands."

[4] The provisions permitting certain leases and trusts are narrowly tailored exceptions to the general rule of A.S.C.A. § 37.0204(b) that land acquisition by non-Samoans is prohibited.

[5] Alienation, as defined by A.S.C.A. § 37.0201(a), includes conveyance of a beneficial interest in trust or the conveyance of other partial interests in land.

[6] While A.S.C.A. § 37.0205 allows trusts for individually owned land, a Samoan proprietor must create the trust for the benefit of a son or daughter married to a nonnative, or for grandchildren arising from the mixed-race marriage. 

[7] In light of its constitutional authority to "protect the lands," the Legislature has a legitimate interest in the oversight and regulation of any land development projects by non-Samoans. This interest is legitimately furthered by requiring that detailed plans be submitted and approved by the Governor before a lease arrangement can go forward.

[8] It is inappropriate for the Trial Division to revisit a principle settled by the Appellate Division.

[9] The land alienation laws were not written for the benefit of the individual Samoan proprietor of land, and therefore do not depend on his/her good faith for reversion to occur. A.S.C.A. § 37.0204(a) exists for the preservation of the land and culture of Samoa for the Samoan people collectively.

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

Counsel: For Plaintiff, William H. Reardon
For Defendant, Togiola T.A. Tulafono

Opinion and Order:

This case tests the legality of two trusts which, for a limited time, vested legal title to individually owned land in a Samoan with equitable title in non-Samoan beneficiaries.

FACTS

The two trusts attempted to comply with American Samoa's law prohibiting the alienation of land to non-Samoans by vesting legal title in a Samoan trustee for the benefit of non-Samoans.

In 1980, the Appellate Division of this court upheld a decision of the Territorial Registrar, refusing to register individually owned land to Douglas Craddick ("Douglas") and defendant Magdalene Craddick ("Magdalene") for the reason that Douglas is a non-Samoan and, therefore, prohibited from acquiring an interest in land. Craddick v. Territorial Registrar, 1 A.S.R.2d 10 (App. Div. 1980) ("Craddick I").

In 1981, responding to Craddick I, Douglas, Magdalene and L. Su`eseu`e Lutu ("Lutu") formed Craddick Development Inc. ("CDI"). Douglas provided funds to purchase in Magdalene's name individually owned land in Tafuna and place these lands in trust ("CDI trust"). Lutu, a Samoan, and eventually Magdalene, also a Samoan, as his successor, held the title to these lands as the trustee initially for the benefit of either Douglas alone or Douglas and CDI's other original directors and Robert Anderson collectively and later CDI. A second trust ("the Anderson trust") named Magdalene trustee for the benefit of CDI and Robert Kerley in his capacity as trustee for Anderson's Employee Benefit Plan. These two trusts were limited to a 20-year period.

Although Douglas died on February 18, 1986, the trusts continued to operate until February 12, 1988, when Magdalene attempted to cancel the trusts and claim clear title to all remaining trust lands. Plaintiffs brought this action in 1989, asking this court to order Magdalene to reimburse misappropriated trust funds, and to either remove Magdalene as trustee or compel her performance of the trusteeship according to its terms. Magdalene counterclaimed, asking the court to declare the trusts void, award her clear title to all remaining trust property, and require plaintiffs to pay her for trust lands already sold, or if the trusts are declared valid, to pay her for outstanding trustee's fees.

DISCUSSION

[1] The result in this case is determined by the reach of American Samoa law restricting transfers in land. The Revised Constitution of American Samoa envisions vigorous constitutional and statutory protection for Samoan ownership of land.

It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor.

Rev. Const. Am. Samoa, art. I § 3 (emphasis added); see also id. at art. II § 9. The foregoing section of the Constitution contains three sentences. One sentence is directive, one is permissive, and one is prohibitive. All three sentences contain language protecting Samoan lands from alienation.

The first sentence directs that the policy of the government shall be the protection of Samoans against alienation of their lands among other things. This directive language is useful as a rule of statutory construction. We may apply it to interpret the intent of existing policy as vigorously protective of Samoan lands and culture, or to strike down legislation that manifests an intention which is plainly contrary to this purpose. The second sentence is permissive, giving the Legislature the authority to enact legislation to protect Samoan lands and other elements of Samoan culture.

[2] The third sentence is prohibitive, preventing the alteration of land alienation laws until overwhelming political tests have been satisfied. By providing substantial constitutional protection to the existing land alienation laws, the framers elevated the language of those laws near to the level of the Constitution itself. Legislatively reversing any court decision which interprets the land alienation laws would require consensus similar to that required for a constitutional amendment. For this reason, we must be extraordinarily careful to avoid subjugating the language of the statute to our own wisdom through expansive interpretations or judicially created exceptions to the law. Put simply, the prohibitive clause of section 3 requires that the land alienation laws be changed by specific political procedures, and not by judicial fiat.

I. Validity of the Trusts

[3] The ultimate result in this case depends on the interpretation of American Samoa's land alienation laws. (1) A.S.C.A. § 37.0204(b) sets forth the relevant prohibition as follows: "It is prohibited to alienate any lands except freehold lands to any person that has less than one-half native blood . . . ."

The foregoing restriction applies to individually owned land by its language encompassing "any lands except freehold lands." Id. This application was judicially recognized in Craddick I.

The question of whether trust arrangements constitute an illegal "alienation," is one of first impression in this court. Black's Law Dictionary, 5th ed., p. 66 (1979), provides a common law definition of "alienation": "In real property law, the transfer of property and possession of lands, tenements, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another . . ." (emphasis added; citations omitted).

According to a narrow common law reading, "alienation" means an absolute or complete conveyance. In this jurisdiction, however, a statutory definition supplants the common law. "Alienation" means the sale, gifts, exchange, or any other method of disposal of property. A.S.C.A. § 37.0201(a) (emphasis added).

[4] We hold that "any other method" includes conveyance of a beneficial interest in trust or the conveyance of other partial interests in land. This view is strengthened by A.S.C.A. § 37.0205, which explicitly provides that "[t]his regulation [restricting the alienation of land] shall not apply . . ." to a trust for mixed-race couples or descendants as beneficiaries. This language exempts one specific type of trust, from the general prohibition. The statement that the restriction "does not apply" to one type of trust indicates that the restriction does apply to other trusts.

Judge Learned Hand, writing for the Second Circuit, held that an inalienable property interest cannot be made the res of a trust, because the creation of a trust involves a transfer of an equitable interest from the settlor to the beneficiary. In re M.J. Hoey, 19 F.2d 764, 764-66 (2d. Cir. 1927) (holding that a seat on the New York Stock Exchange could not be made the res of a trust since the rules of the exchange required that members own their seats free and clear); see also George G. Bogert & George T. Bogert, Law of Trusts 71 (5th ed. 1973). In the present case, the property was inalienable as to non-Samoans and, therefore, could not be made the subject of a trust for their benefit.

[5] The trust beneficiaries contend that the Legislature did not intend to prohibit non-Samoans from holding partial interests in land, since the law permits the leasing of native land for periods of up to 55 years, (2) as well as approving trusts for the benefit of children with one Samoan parent. (3)

If acquisition of a partial interest in land by a non-Samoan were not generally prohibited, however, it would have been unnecessary to outline exceptions permitting non-Samoans to acquire specific limited interests. It is apparent that these provisions permitting certain leases and trusts are narrowly tailored exceptions to the general rule of A.S.C.A. § 37.0204(b) that land acquisition by non-Samoans is prohibited.

To hold that those exceptions constituted general permission for non-Samoans to acquire other partial interests in property would defeat the general prohibition of the statute, as well as the constitutional policy directive protecting the Samoan people "against alienation of their lands." Revised Constitution of American Samoa, art. I § 3. Accordingly, if the trust arrangements do not meet the specific conditions of a statutory exception, they are subject to the general prohibition against alienation and are void. (4)

A. Trusts for the Benefit of Children or Grandchildren

[6] Although the beneficiaries cite A.S.C.A. § 37.0205 as one justification for the trust arrangement, it cannot provide a serious legal basis for the trusts at issue. While section 37.0205 does allow trusts for individually owned land, a Samoan proprietor must create the trust for the benefit of a son or daughter married to a nonnative, or for grandchildren arising from the mixed-race marriage. Although Douglas was married to a Samoan, the trust lands were not granted to that Samoan by a parent who was attempting to provide for his/her children or grandchildren. The lands were purchased by Magdalene with Douglas's money, and therefore do not meet the requirements of a permissible trust for the benefit of mixed race descendants, or Samoan children married to non-Samoans. Further, it is inescapable that the Legislature could just as easily have approved trusts for unrelated, non-Samoan beneficiaries. The Legislature created no such provision, and we will not do so as a court.

B. Trusts as Leases of Native Land

The beneficiaries contend that the trusts are valid because they are in harmony with the spirit of the restrictions on alienation. "Native land may, with approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the working of minerals and the cutting of timber. " A.S.C.A. § 37.0221(a). The beneficiaries suggest that the foregoing provision is designed to permit non-Samoans to obtain short-term interests in land with title remaining in the Samoan owners, and an eventual reversion of the beneficial interest to the Samoan owners. The beneficiaries further contend that the trust arrangement fosters this objective by placing beneficial title for improvement of the land in non-Samoans for a period of less than 55 years, while ultimately returning full title to the improved land into Samoan hands.

While we may agree that the trust arrangement would be sound public policy for orderly land development in American Samoa, that question is not before us. The pertinent legal question is whether the trusts meet statutory criteria for an exception to A.S.C.A. § 37.0204(b), which prevents land acquisition by non-Samoans. They clearly do not.

The language of A.S.C.A. § 37.0221(a) permitting non-Samoans to obtain leasehold interests in land applies, by its terms, to "[n]ative land" only. Because A.S.C.A. 37.0201(d) provides that "[n]ative land means communal land," we are forced to conclude that the relevant trusts, which affected individually owned land, could not receive protection as leasehold interests.

This contention is strengthened by the fact that the forerunner to A.S.C.A. § 37.0221(a) allowed the leasing of "[a]ny communally owned or individually owned land." R.C.A.S. § 9.0108 (1961 code as amended through 1970). (5) When the Legislature revised the code they had the opportunity to retain the language of the 1962 statute, or alternatively to define "[n]ative land" in a way that would include individually owned land. The Legislature did neither of these things, and we therefore conclude that it intended to provide the lease option to communal land only.

The language of A.S.C.A. § 37.0221 requires "approval of the Governor" for the leasing of "[n]ative land," which must be obtained in accordance with specific formalities:

(b) . . . Every such provisional agreement, stating in full its terms and conditions, shall be submitted with the plan showing the situation of the land to the Governor for approval, and it shall have no validity until such approval has been signified in writing . . . .

(c) The lessee must, within 2 calendar months after any provisional agreement to lease has been approved by the Governor, deposit in the office of the Governor a properly drawn and legally attested lease for confirmation under the hand and seal of the Governor, and such lease shall be registered in a book to be styled registrar of titles.

To our knowledge, CDI did not comply with any of the foregoing formalities to obtain a proper leasehold interest in land. While some may argue that these are mere formalities, and that the general intention of the trusts was in line with the policy objectives of the statute, we elect not to second-guess the Legislature.

[7] In light of its constitutional authority to "protect the lands," the Legislature has a legitimate interest in the oversight and regulation of any land development projects by non-Samoans. This interest is legitimately furthered by requiring that detailed plans be submitted and approved by the Governor before a lease arrangement can go forward. Although the trusts may have been consistent with good public policy, they receive no protection as leasehold interests, (6) because they did not affect native land and because they sidestepped the requirement of the Governor's approval in accordance with the requisite formalities.

II. Equal Protection

[8] We note the delicate constitutional dimensions of the racial classification in A.S.C.A. § 37.0204(a). CDI has asserted that Craddick I was an aberrational decision, and that constitutionally suspect classifications, such as racially exclusive laws, must be carefully examined. However, it would be wholly inappropriate for the Trial Division in this case to revisit a principle settled by the Appellate Division in Craddick I, and we therefore decline to do so.

III. Remedies

A.S.C.A. § 37.0230 provides that "Any alienation in violation of this chapter shall be void." The conveyance of a beneficial interest in land is alienation of land, and alienation of land to non-Samoans violates the relevant chapter. Finding that the trusts did not come within any statutory exception to that general rule, we hold the trusts illegal and, therefore, void. Magdalene receives clear title to remaining, unsold trust lands.

The statute further provides that:

. . . any nonnative failing to conform to this chapter, except 37.0120 
and 37.0211, shall be liable to the forfeiture, to the owner of the land, 
of all improvements he may have erected or made . . . on the land and 
no action shall lie for recovery of any payment he may have made or 
other expenditure he may have incurred in respect thereof.

A.S.C.A. § 37.0230. The foregoing language compels the conclusion that CDI is required to forfeit all improvements on the land and investments made therein. This result seems unfair in light of the fact that Magdalene plainly assented to the trust arrangement, participated in it, and now disavows its validity. Further, Magdalene appropriated trust funds for her personal use, badly abusing her position as trustee.

In light of such circumstances, it is tempting to employ a common law estoppel theory or some other method to find that Magdalene cannot disclaim the validity of a trust that she openly participated in creating and administering. This argument, however, could be made any time property reverted back to a Samoan owner after he/she knowingly conveyed it to a non-Samoan. If we applied this estoppel theory, it would effectively destroy the enforcement mechanism of the statute, and we therefore decline to do so.

[9] The land alienation laws are not written for the benefit of the individual Samoan proprietor of land, and therefore do not depend on his/her good faith for reversion to occur. A.S.C.A. § 37.0204(a) is written for the preservation of the land and culture of Samoa for the Samoan people collectively. If the Legislature has erred in crafting the law, then it should provide the corrective revision, if so inclined. As Justice Iredell said, only six years after the U.S. Constitutional Convention:

It is [the legislative branch's] duty to legislate so far as it is necessary 
to carry the Constitution into effect. It is ours only to judge. We 
have no reason, nor any more right to distrust their doing their duty, 
than they have to distrust that we all do ours. There is no part of the 
Constitution that I know of, that authorizes this Court to take up any 
business where they left it . . . .

Chisolm v. Georgia, 2. U.S. 419, 433 (1793). We will not circumvent or modify plainly written and democratically enacted law.

The two trusts, and their predecessor trusts, are declared void ab initio. At all times, Magdalene owned all lands acquired in her name and transferred to these trusts as her individually owned land. She must honor the transfer of title to any of these lands sold to other Samoans by the trustee, including herself, effectively as her agent. She may deal with the remaining lands as her property.

Under the present state of the evidence, we are unable to fashion any monetary remedies as may be in order. Magdalene is clearly entitled to the funds she retained from sales of the lands.

She is also entitled to the profits CDI or others retained from the sales of the lands. Her final entitlement to these funds from both sources is subject to reduction by the amount of trustee fees paid to her. We cannot determine her final entitlement with reasonable certainty without plaintiffs and Magdalene accounting for receipts and disbursements related to all land transactions within their respective knowledge. Thus, we direct both CDI, by and through its agents, including but not limited to plaintiff David Craddick, and Magdalene to submit accountings of these receipts and disbursements no later than 120 days after entry of the judgment in this action. After the 120-day period, the court will schedule an evidentiary hearing to consider further the appropriate monetary remedies in this action.

Judgment shall enter accordingly.

It is so ordered.

*********

1. Neither party asserts that the trusts fail because they do not meet the traditional requirements of a valid trust. A trust is still invalid, however, when it contravenes law or public policy. Shelley v. Shelley, 354 P.2d 282, 285 (Or. 1960).

2. A.S.C.A. §§  37.0221-0222.

3. A.S.C.A. § 37.0205.

4. The Court of Appeals of New York made a similar analysis with regard to voting trusts entered into by stockholders:

In New York voting trusts do not stand or fall on common-law theories of public policy. They are recognized and regulated by statute. Whether they would be valid at common law in the absence of a statute defining and regulating them is immaterial. Public policy in regard thereto is defined by the Legislature. Between the conflicting rules at common law a choice has been made. No voting trust not within the terms of the statute is legal, and any such trust, so long as its purpose is legitimate, coming within its terms, is legal. The test of validity is the rule of the statute. When the field was entered by the legislature it was fully occupied and no place was left for other voting trusts.

In re Morse, 160 N.E. 374, 376 (N.Y. 1928) (emphasis added). In the present case, when the Legislature legalized a specific type of trust for non-Samoan beneficiaries, against the background of a general prohibition against alienation of non-freehold lands to non-Samoans, it left no room for other trusts not found within the statute.

5. It is doubtful whether or not this provision was ever approved in a constitutionally proper way, and thus it may never have become law in the first place. Regardless of this fact, it is clear that the Legislature could have subsequently employed language providing for the lease of individually owned land similar to the 1961 Code, but made the decision not to do so.

6. A.S.C.A.§ 37.0222 presents another option for protecting a leasehold interest for schools, which also requires permission from the Governor and plainly does not apply.

Coulter; Johnson v.


RICHARD JOHNSON, Plaintiff

v.

ROBERT B. COULTER dba SOUTH PACIFIC ENGINE & REPAIR,
and SOUTH PACIFIC ENGINE & REPAIR INC. a corporation
and SAMOA NAPA INC. a corporation, Defendants

High Court of American Samoa
Trial Division

CA No. 22-91

September 20, 1995

__________

[1] When there is no written partnership agreement between the parties the court may look to circumstantial evidence offered by each party to back his oral claim of the presence or absence of a partnership.

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

Counsel: For Plaintiff, Marshall Ashley
For Defendants, Roy J.D. Hall, Jr. and Brian M. Thompson

Opinion and Order:

Plaintiff Richard Johnson seeks the dissolution of a partnership, which he claims was formed with defendant Robert B. Coulter, and the distribution of partnership assets. To this end, he further seeks the award of a constructive trust and an accounting of partnership assets. Coulter, on the other hand, denies the formation of any partnership with Johnson.

[1] Upon joint motion of the parties, trial of the issues herein was bifurcated to consider, first, the issue of whether or not Johnson and Coulter had entered into a partnership. There is no written partnership agreement between Johnson and Coulter. Accordingly, the court is invited to look to circumstantial evidence offered by each party to back his oral claim of the presence or absence of a partnership.

The parties initially met when Johnson was employed as the accountant for South West Marine, the operator of the local dry dock facility, and Coulter was a salesman for Pacific Machinery Inc., a dealer in equipment and machinery which was one of South West Marine's trade vendors. Johnson and Coulter got to know each other socially and subsequently became friends. Johnson later left South West Marine and temporarily departed the territory. Coulter went on to set up shop for himself, essentially assuming Pacific Machinery's business niche after the latter's withdrawal from the territory.

Coulter then began to receive various things in the mail for Johnson, who had apparently given Coulter's mail box as a forwarding address. Coulter stored Johnson's mail until Johnson returned to the territory in the early part of 1989 to participate in a joint venture involving the hauling and dumping of cannery sludge at sea. Subsequently, Johnson sold his interest in the sludge hauling business and extended his accounting expertise to Coulter, who had started South Pacific Engine & Repair ("SPEAR") as a sole proprietor. As SPEAR began to grow, acquiring a NAPA Auto Parts agency for the territory, Coulter found himself becoming overwhelmed with work, requiring him to put in long hours. He needed help. He sought Johnson's accounting expertise and Johnson agreed to help him out. At the outset, both parties recognized that SPEAR was not in a position to appropriately compensate Johnson, but this did not deter Johnson's desire to help out.

While the evidence does not suggest that Johnson had agreed to work for nothing, we find that there was no attempt by the parties to define their intentions at the outset. Johnson initially instituted various control systems, but he became increasingly involved with the retail side of the business, beyond accounting work. He loaned $5,000 to the business, which was later repaid. Subsequently, he made additional advances to the business, during certain "crisis" times when there was no money to lift various bank drafts for specific orders which became due and payable. These "crisis" times occurred on six occasions, between July 8, 1989, and January 2, 1990; Johnson, from his own pocket, paid SPEAR's suppliers a total of $66,029.41. He claims that these cash injections were in the way of capital contributions.

On the one hand, Johnson saw his relationship with Coulter as one of partnership. In support of his contention, Johnson testified that, around July 1989, he and Coulter had met concerning the business' capital needs and that as a result of that meeting, they agreed to put in capital of $65,000 each.

Johnson also offered the corroborating testimony of Douglas Harrington, a mutual friend of the parties, who testified about a conversation that he had with Coulter one afternoon around October or November 1989. Harrington testified that he and Coulter were conversing through the fence at the Satala Power Plant, where he was working at the time, and that Coulter had mentioned that he and Johnson were going in together on a deal with SPEAR, and that Johnson was going to invest some money. He further recalled Coulter saying that it would be a "good marriage," given Johnson's accounting background, but that neither Coulter nor Johnson had said anything to him about the exact nature of Johnson's investment.

Coulter, on the other hand, flatly denies the formation of a partnership with Johnson. While acknowledging that Johnson had advanced funds to SPEAR, he claims that these were simply loans, not capital contributions. He testified that in other times of need, he had received loans from other friends as well. Coulter further testified that he had always run his business as a sole proprietor, that the business license was under his name alone, that he alone did the hiring and firing, that he alone established the business's credit rating with suppliers and the bank, that he alone signed on the bank loans, and that he alone had the final word on the placing of orders. In corroboration, Coulter tendered his tax returns, financial statements, certain correspondence with Bank of Hawaii, and the testimony of a former employee to the effect that Johnson was introduced as, and was always understood to be, merely the accountant and not a co-owner.

We find the evidence insufficient to establish a partnership between Johnson and Coulter. Harrington's testimony is at best equivocal on the issue of partnership. As a corroborative witness, Harrington is not particularly reassuring. His articulation is prone not only to inexactness but also a certain degree of embellishment. For instance, he testified that, at the time, he was a heavy equipment mechanic seeking to sublease space behind the Faganeanea premises from SPEAR. This, he considered, would also be a "good marriage." Additionally, he alluded to his being invited to participate on a SPEAR "board of directors," in what was then, however, a non-corporate business. Finally, we note an early affidavit Harrington had given in support of a Johnson motion to dismiss. Harrington stated in this affidavit that Johnson was a "co-owner" of SPEAR. He later attempted to retract that statement, not wanting to "perger" himself.

On the other hand, the documentary exhibits received into evidence lend some objective support to Coulter's claim that SPEAR was not only run as a sole proprietorship, but also held out as such to third parties, including the government and other creditors. For instance, the promissory notes issued pursuant to a revolving line of credit from the Bank of Hawaii objectively demonstrate that Coulter alone was liable on the indebtedness evidenced by them. There was nothing to suggest that the Bank of Hawaii could hold Johnson jointly liable on those notes. The same may be said of SPEAR's other trade obligations.

The nature of the advances by Johnson is also unclear. The context in which they were made does not lend more credence to Johnson's position than Coulter's. Indeed, the advances arose in response to "crisis" situations, albeit recurring, which demanded the immediate payment for goods shipped on SPEAR's account, rather than as the product of a contemporaneous or preceding agreement of partnership. In our assessment of the evidence, the resultant figure of $65,000, claimed as partnership capital by Johnson, had more to do with the fortuitous value of the invoices for "crisis" shipments than any predefined partnership terms. Again, while we find no suggestion on the evidence that Johnson had simply donated these funds out of the goodness of his heart, we also find nothing in the evidence suggesting anything but ill-defined intentions at these particular times of "crisis."

The resulting situation had, in our view, simply arisen upon a mutual friendship premise, that one party will do good by the other, and vice versa. In this same vein, Johnson was permitted to live on the SPEAR shop premises rent-free, after Coulter had made rudimentary alterations to the premises for that purpose. That relationship between the parties was fine so long as the friendship was alive and well. When the relationship deteriorated, and the friendship began to sour, each party's interpretation of their business relationship had, in our view, more to do with hindsight than any concluded agreements.

While counsel for Johnson earnestly submits that no-one works for nothing nor advances great sums of money without a sensibly underlying explanation--e.g., a joint venture--it might equally be said that business people operating in a business relationship, as opposed to relationship based on friendship, do not in the normal course commit themselves to lay out time and money until they reduce their agreements to more objective foundation than the ill-defined agreement suggested by plaintiff.

Because we find the evidence insufficient to establish the formation of a partnership between the parties, and because plaintiff has the burden of proof, we conclude that judgment on this issue must be entered in favor of the defendant Coulter.

It is so ordered.

*********

Blue Pacific Mgmt. Corp. ; G.M. Meredith and Associates v.


G.M. MEREDITH AND ASSOCIATES,
Plaintiff and Counterdefendant

v.

BLUE PACIFIC MANAGEMENT CORP.,
Agent for Pago Plaza, Defendant and Counterclaimant

High Court of American Samoa
Trial Division

September 13, 1995

CA No. 108-90

__________

[1] Hurricanes are a fact of life in American Samoa and architects are expected to design structures to withstand hurricanes of normal strength, knowing that such structures will likely be required to withstand one or more hurricanes during their normal life span.

[2] A party moving for reconsideration or new trial must do more than reiterate the trial court's reasons for a decision and then make a blind assertion that we were incorrect. It is the attorney's, not the court's, job to advocate, do legal research, and construct the legal theory upon which a losing party might oppose our decision.

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

Counsel: For Plaintiff and Counterdefendant, Roy J.D. Hall, Jr. and Katopau T. Ainu`u
For Defendant and Counterclaimant, William H. Reardon

Order Denying Motion for Reconsideration or a New Trial

On May 26, 1995, this court awarded counterclaimant Blue Pacific Management Corp. damages of $20,900 for Hurricane Ofa's destruction of the skylight at Pago Plaza, based on the professional malpractice of architect Richard Frey, who designed the skylight and supervised its installation while he was employed by counterdefendant G. M. Meredith and Associates ("GMA"). GMA now moves for reconsideration or new trial, alleging that we improperly applied the doctrines of res ipsa loquitur and negligence and improperly took judicial notice that Hurricane Val was of greater force than Hurricane Ofa in the Pago Plaza area.

DISCUSSION

GMA's written motion listed grounds for reconsideration or new trial, but did not provide any analysis or legal precedent in support of its general conclusions. GMA also failed to expand significantly on its assertions during oral argument.

[1] GMA's single noteworthy argument at the hearing was that hurricanes are inherently violent, and the destruction of a structure by a hurricane should not give rise to a presumption of negligence. In an area which is not generally prone to hurricanes, this argument may hold. But in American Samoa, hurricanes are a fact of life and architects are expected to design structures to withstand hurricanes of normal strength, knowing that such structures will likely be required to withstand one or more hurricanes during their normal life span. In fact, GMA was expressly instructed and undertook to meet this standard in this case. The failure of a structure to withstand a hurricane is, therefore, generally a good indicator that either the design or construction of the structure was defective, unless the hurricane is of exceptional volatility. We have no evidence that Hurricane Ofa was in this category.

One only need read GMA's motion to see that it is conclusionary and completely devoid of any caselaw, analysis or explanation to support its assertions. This is unacceptable lawyering. T.C.R.C.P. 7(b) requires that motions, "unless made during a hearing or trial, shall be made in writing, [and] state with particularity the grounds therefor . . . ." This court has previously articulated that this rule is especially important in motions for new trial to "put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal" and "to avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways." Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 175 (1987).

[2] The generality adopted by GMA in stating the grounds for reconsideration or new trial in this motion comes very close to rendering the motion a nullity. See United States v. 64.88 Acres of Land, 25 F.R.D. 88 (1980). In any event, we believe that we adequately addressed the issues raised in the motion in our original order and will, without having the benefit of any further elaboration by GMA, deny the motion. The party moving for reconsideration or new trial must do more than reiterate our reasons for a decision and then make a blind assertion that we were incorrect. Our decision was fortified by citations of treatises and case law, which is more than we can say for GMA's motion. This court is not paid to be an advocate for either side, nor to do legal research that should be done by the attorneys, nor to guess at or construct the legal theory upon which a losing party might oppose our decision.

ORDER

For all of the foregoing reasons, we deny GMA's motion for reconsideration or new trial.

It is so ordered.

*********

Blue Pacific Mgmt. Corp.; G.M. Meredith and Associates v.


G.M. MEREDITH AND ASSOCIATES,
Plaintiff and Counterdefendant

v.

BLUE PACIFIC MANAGEMENT CORP.,
Agent for Pago Plaza, Defendant and Counterclaimant

High Court of American Samoa
Trial Division

CA No. 108-90

May 26, 1995

___________

[1] An architect is liable for a failure to exercise the reasonable care and diligence exercised by one in the profession.

[2] An architect must be evaluated on the basis of technology available at the time he or she performed the work.

[3] The existence and scope of an architect's duty to supervise the implementation of plans or work methods must be determined from contractual terms, or, in their absence, from the architect's actual conduct.

[4] The distinction between the supervision of design implementation and the supervision of work method is a not a meaningful one and is therefore not legally recognized.

[5] The burden to establish the scope of supervision demanded by a profession rests upon the party alleging a breach of the professional's duty.

[6] The standard of care is ordinarily provided by expert witnesses who testify to the customs or prevailing standards of the profession.

[7] The court may take judicial notice of the generally known fact that in the Territory of American Samoa, Hurricane Val was stronger and more destructive than Hurricane Ofa in the harbor area where Pago Plaza is located.

[8] Expectation damages are the proper measure of damages for an architect's malpractice.

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

Counsel: For Plaintiff and Counterdefendant, Roy J.D. Hall, Jr. and Katopau T. Ainu`u
For Defendant and Counterclaimant, William H. Reardon

Opinion and Order:

Plaintiff G.M. Meredith and Associates ("GMA") commenced this action on December 7, 1990, to recover unpaid compensation for professional services rendered to defendant Blue Pacific Management Corp. ("Blue Pacific"), as the agent of Pago Plaza ("Plaza"). Blue Pacific counterclaimed for damages related to the installation of a skylight at the office building owned by Plaza. GMA was granted partial summary judgments, entered on April 27, 1992, and October 20, 1992, for its claim. Those judgments were paid, leaving only Blue Pacific's counterclaim at issue. Trial on the counterclaim was held on September 15, 1994. The parties' principals, GMA's George M. Meredith ("Meredith") and Blue Pacific's James L. McGuire ("McGuire"), and their counsel were present.

FACTS

On December 1, 1986, McGuire, as Plaza's agent, and Peter G. Morley ("Morley"), then in immediate charge of GMA's office and operations in American Samoa, negotiated an agreement for GMA's professional services to Plaza. They agreed to charges on an hourly basis for various services performed. They contemplated using GMA's services for several specific projects, including a skylight over the interior courtyard, at Plaza's office building in Pago Pago, American Samoa. McGuire memorialized this agreement by his letter, dated December 3, 1986, to Morley. No formal owner-architect agreement was entered.

GMA assigned Richard Frey ("Frey"), an architect at its American Samoa office, to the skylight project. McGuire and Frey discussed the project, including but not limited to a requirement that the skylight would be built to withstand hurricane-strength winds. By October 1987, Frey had completed the skylight's design, and GMA had prepared the procurement package, consisting of instructions to bidders, a bid form, and an owner-contractor agreement, for its installation. Hawkeye Construction ("Hawkeye") was awarded the contract to do the installation work. Frey supervised the ordering of the specified materials, and during a 10-day period in 1988, Hawkeye performed the work, in accordance with GMA's design and under Frey's architectural oversight.

During the evening of February 2, 1990, Plaza's office building was struck by Hurricane Ofa's rain and heavy winds. The skylight was blown from its mountings, starting at 8:00 to 9:00 p.m. The plastic panels were ripped from their fastening bolts. Some were gone completely. Others remained dangling from the roof.

Later Plaza replaced the skylight with one of substantially superior strength. It survived Hurricane Val's winds in December 1991. The replacement costs were:

Roof repairs $ 700
Skylight design 3,000
Skylight materials 13,700
Excise taxes 558
Labor 3,500
Total $ 21,458

STANDARD OF CARE

[1-2] The standard of care for an architect is set forth with clarity in First Nat. Bank of Akron v. Cann, 503 F. Supp 419, 439 (N.D. Ohio 1980).

An architect is under a duty to his employer to use the skill and
diligence that is ordinarily exercised by architects. Thus, an architect
does not guarantee a perfect plan, but is liable only for a failure to
exercise reasonable care and diligence exercised by one in the in
the profession.

See also Noble v. Worthy, 378 A.2d 674, 676-77 (D.C. 1977). This standard may be breached, notwithstanding the fact that the type of injury is "commonplace," where the injury was within "the realm of foreseeability." Mead v. Kings Supermarket, 366 A.2d 979 (N.J. 1976). Whether the standard of care is determined on the basis of standard practice in the industry or upon foreseeability of the harm, an architect must be evaluated on the basis of technology available at the time he/she performed the work. Cann, 503 F. Supp. at 439.

[3-4] The existence and scope of an architect's duty to supervise the implementation of plans or work methods must be determined from contractual terms, or, in their absence, from the architect's actual conduct. Walters v. Kellam & Foley, 360 N.E. 2d 199, 206 (Ind. 1977). The conventional rule for determining an architect's duty to supervise the implementation of his/her design is that an architect's supervisory duty is limited to the implementation of the architectural plan, and does not include supervising the contractor's method of doing the work unless otherwise specified by the parties. Lukowski v. Vecta Educational, 401 N.E. 2d 781, 785 (Ind. 1980) (construing Day v. National United States Radiator, 360 N.E. 2d 210-11). We do not believe that the distinction between the supervision of design implementation and the supervision of work method is a meaningful one, and we decline to adopt it in this jurisdiction.

[5-6] We do hold, however, that the burden to establish the scope of supervision demanded by the profession rests upon the counterclaimant. Id.

No evidence was presented, however, establishing what scope of supervision the professional standard demanded. Thus, it is not possible to conclude that GMA was under a positive legal duty imposed by law to supervise the project in such a manner that the problems would have been discovered. Cann, 503 F. Supp. at 439. The standard of care is ordinarily provided by expert witnesses who testify to the customs or prevailing standards of the profession. Noble, 378 A.2d at 676-77.

DISCUSSION

We decide this case on a theory of res ipsa loquitur. The Restatement (Second) Of Torts, § 328(D)(1) outlines the prima facie elements of a case for res ipsa loquitur:

It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.

[7] The fact that a rebuilt structure survived a second hurricane is evidence that due care was not used in building the original structure that was destroyed by a prior hurricane. See Watt v. United States, 444 F. Supp. 1191, 1194-95 (D.D.C. 1978) (the fact that millions of museum patrons had safely climbed the stairs where plaintiff was injured does not give rise to a conclusive presumption of the architect's due care); Hecht v. Harrison, 137 F.2d 687 (D.C. Cir. 1943) (the fact that thousands of customers had walked safely through aisle where plaintiff was injured does not prevent a jury from finding lack of due care by store owners).

To strengthen this conclusion, we note T.C.R.Ev. 201(b) which reads:

A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonable be questioned.

It is generally known in the Territory of American Samoa that Hurricane Val was stronger and more destructive than Hurricane Ofa in the harbor area where Pago Plaza is located. It is also generally known that Hurricane Ofa was more damaging in the Tafuna area, some distance away from Pago Plaza. Accordingly, we take judicial notice of the fact that Hurricane Val struck Pago Plaza with greater force than Hurricane Ofa.

The skylight in question was destroyed by Hurricane Ofa, but the skylight which replaced it survived Hurricane Val. Since we have taken judicial notice of the fact that Hurricane Val struck Pago Plaza with greater force than hurricane Ofa, there is a strong presumption that the skylight destroyed by Hurricane Ofa suffered from a design defect.

Although we have no expert testimony as to the standards of the architectural profession, we find, on grounds of foreseeability, that GMA had a duty to design a skylight to survive hurricanes of ordinary strength. See A.S.C.A. § 26.1002 (this section anticipates hurricane strength winds, and implicitly requires that those designing buildings plan for the inevitable hurricanes in our region). Since the threat of hurricanes is an important consideration in any building project in our region, destruction of a skylight by hurricane is something which would not ordinarily happen unless the designer was negligent in his/her duty to plan for a hurricane of ordinary strength.

Further, we find from the context of GMA's relationship with Blue Pacific that GMA was responsible to supervise the installation of the skylight in accordance with its plan. The fact that GMA had sole supervisory control of the design and installation of the skylight compels the conclusion that explanations for the destruction of the skylight, other than GMA's negligence, are sufficiently eliminated.

In summary: (1) GMA had a duty to design and supervise installation of the skylight to withstand hurricane strength winds; (2) failure of a skylight to survive a hurricane of ordinary strength normally indicates a neglect of this duty; (3) GMA was responsible for both the design and the supervision of the skylight's installation; (4) a subsequent skylight withstood a hurricane of substantially greater force than the one that destroyed the skylight designed by GMA; and (5) the destruction of a skylight by hurricane is directly within the scope of potential injuries giving rise to the duty to design the skylight to withstand such disasters. Based on a theory of res ipsa loquitur, we find that GMA was negligent with respect to its duty to design and adequately supervise the construction of Plaza's skylight which was destroyed by Hurricane Ofa.

THE MEASURE OF DAMAGES

[8] Expectation damages are the proper measure of damages for an architect's malpractice.

The appropriate measure of damage [for professional malpractice by an architect] is the reasonable cost of material and labor required to place the building in the condition contemplated by the parties at the time they entered the contract. The Bank is entitled to "the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste." Cann, 503 F. Supp. at 441 (quoting Restatement (first) Of Contracts, § 346(1)(a)(i) (1932); citation omitted).

With respect to the replacement costs for the skylight, we are not persuaded that the payment of excise taxes by Blue Pacific in the amount of $558.00 was legally required. Any remedy for payment of such taxes is against the American Samoa Government and not GMA. We therefore decrease Blue Pacific's requested damage award by that amount, but require GMA to pay Blue Pacific $20,900 in damages for negligence in the design and construction supervision of the original skylight at Plaza's office building.

Judgment shall enter accordingly.

It is so ordered.

*********

Carpenters Fiji, Ltd. v. Pen ,


CARPENTERS FIJI, LTD., Plaintiff

v.

JOEL F.C. PEN, JOHN'S GENERAL CONSTRUCTION CO., dba
J.G.C. LUMBER AND HARDWARE, and KYOWA SHIPPING CO.,
jointly and severally, Defendants

High Court of American Samoa
Trial Division

CA No. 111-94

September 8, 1995

__________

[1] The purpose of T.C.R.C.P. 56(e) is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.

[2] A party opposing another's motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.

[3] Receipt and free acceptance of goods, and partial payment for them, may constitute the incurrence of a debt.

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

Counsel: For Plaintiff, Marshall Ashley
For Defendants Joel F.C. Pen and John's General Construction Co., Togiola T.A. Tulafono
For Defendant Kyowa Shipping Co., Ellen A. Ryan

Order Granting Motion for Partial Summary Judgment:

This matter relates to four transactions in which defendant John's General Construction ("JGC") ordered construction materials from plaintiff Carpenters Fiji, Ltd. ("Carpenters"). JGC has made some payments against this debt but, according to Carpenters, the principal sum of $70,176.26 remains owing. Carpenters has provided an affidavit, invoices and other materials tending to establish that the foregoing facts are true, and now moves for summary judgment based on these materials. See T.C.R.C.P. 56(e). JGC has presented no contrary evidence since this summary judgment motion was filed, and was not represented at the hearing held on August 22, 1995. Additionally, Carpenters has made formal requests for admissions, which essentially ask JGC to stipulate to the occurrence of the relevant transactions. These requests have gone unaddressed by JGC for more than 30 days, and are therefore deemed admitted under T.C.R.C.P. 36(a).

T.C.R.C.P. 56(e) states, in relevant part: The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

[1-2] The purpose of the foregoing rule is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." F.R.C.P. 56(e), Advisory Committee Notes. In Utu v. Nat'l Pacific Ins., 9 A.S.R.2d 88, 93 n.4 (Trial Div. 1988), this court admonished "the Bar of American Samoa . . . that henceforth a party opposing another's motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts."

[3] JGC appears to have thrown in the proverbial towel by having failed to respond either on paper or in court to Carpenters' motion for summary judgment. Although JGC's president filed sworn answers to interrogatories on November 11, 1994 (prior to the motion for summary judgment), at best these constitute a denial that the relevant construction materials were ordered by facsimile. This assertion is not particularly persuasive, however, in light of JGC's subsequent failure to reference this denial in reply to the summary judgment motion, or to respond in any other way. Furthermore, in Carpenter's request for admissions filed on January 26, 1995, JGC was asked to admit that the orders were faxed, but has neither given "written answer or objection addressed to the matter," nor referenced the prior answers to interrogatories, nor made any other attempt to reply as required under T.C.R.C.P. 36(a). Furthermore, there is nothing in the answers to interrogatories which denies that JGC received and freely accepted the goods and made partial payment for them, thus incurring a debt to Carpenters. See John D. Calamari & Joseph M. Perillo, Contracts § 2-21 (1977); Robert J. Nordstrom, Law of Sales § 142 (1970).

For the foregoing reasons, Carpenters' motion for summary judgment is granted and judgment shall accordingly enter in favor of Carpenters against JGC in the amount of $70,176.26.

It is so ordered.

*********

Bendall; Samoa Aviation Inc . v.


SAMOA AVIATION, INC., dba SAMOA AIR, Plaintiff

v.

ROBERT G. BENDALL, PACE AVIATION LTD. and
PAL AIR INTERNATIONAL, INC., Defendants

High Court of American Samoa
Trial Division

CA No. 50-95
CA No. 70-95

September 29, 1995

__________

[1] Although 14 C.F.R. § 47.7(c) does not state how one might come to hold legal title to an aircraft in trust, neither does it limit such a prospect.

[2] Legal title to an aircraft in trust can arise by judicial order under 14 C.F.R. § 47.11(h). Furthermore, this section places no limitations on the situations in which this might occur.

[3] 14 C.F.R. § 47.5(d) does not limit the definition of owner, but instead provides that, in addition to those persons holding legal title, the term shall include enumerated persons not normally thought of as owners.

[4] Under 14 C.F.R. § 47, a trustee can be an owner for registration purposes.

[5] The power of a court of equity to appoint a trustee is part and parcel of its general jurisdiction and control over trust estates. The court can exercise this power very broadly. The court may also make necessary orders to protect the property of such trust.

[6] A constructive trust is one created by operation of law and imposed by a court in equity to prevent a fraud. Facts giving rise to a constructive trust in themselves give rise to an action to enforce such trust.

[7] A court in equity will not be bound by an unyielding formula, but must shape its relief to match the nature of the transaction, considering all of the circumstances bearing on the matter.

[8] A receiver is a ministerial officer, agent, creature, hand, or arm of, and a temporary occupant and caretaker of the property for the court, and represents the appointing court, and is the medium through which the court acts.

[9] An interlocutory order during the course of a trial or other judicial proceeding is generally not a "final decision" within the meaning of A.S.C.A. § 3.0309 and similar statutes.

[10] An interlocutory order falling within the collateral order exception can be appealed. To fall within the exception, an order must (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case.

[11] A collateral order is generally regarded as unreviewable where substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated.

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

Counsel: For Plaintiff, Marshall Ashley
For Defendants, Togiola T.A. Tulafono

Order Denying Motion for Reconsideration:

BACKGROUND

On September 7, 1995, this court issued an order appointing Marshall Ashley, a United States citizen, as defined by 14 C.F.R. § 47.2, Trustee on behalf of plaintiff Samoa Aviation, Inc. and defendants Robert G. Bendall, Pace Aviation Ltd., and Pal Air International, Inc. as beneficiaries ("order"). We appointed Ashley Trustee, holding title to the aircraft known as N28SP and N711AS, both DeHavilland Twin Otters, solely for the purpose of registering such title with the Federal Aviation Administration ("FAA") pending adjudication of the rightful ownership of the planes. Title was transferred to the Trustee, and possession and operation of the aircraft were left with plaintiff.

On September 11, 1995, defendants filed a motion for reconsideration, or, in the alternative, for certification of our order for interlocutory appeal on the issue of the appointment of the Trustee and transfer of title. The hearing on the motion was expedited and came before the court on September 27, 1995. The parties were represented by counsel.

DISCUSSION

I. Motion for Reconsideration

Defendants give great weight to the fact that "no statutory authority nor a rule of court" was cited by plaintiff in arguing for the appointment of a trustee. Def.'s Mem. Supp. Mots. at 3. Much to our disappointment, defendants also have chosen to cite no statutory authority nor a rule of court. Without any guiding authority, and apparently expected to proceed strictly on gut instinct, we choose to stick with our initial instinct, as articulated in our order, and deny defendants' motion for reconsideration.

A. Interpretation of the Code of Federal Regulations

Defendants claim that the portion of the Code of Federal Regulations dealing with airplane ownership and registration, See Aircraft Registration, 14 C.F.R., Pt. 47, Subpt. A (1984), does not authorize this court to appoint a trustee and transfer title to the aircraft in question. Defendants, however, merely point us to the language of Part 47, itself, without citing any authority interpreting that language.

[1] Nowhere does Part 47 state that a court may not appoint a trustee to hold title in the interest of justice. To the contrary, Section 47.7(c)(1) sets forth the citizenship requirements for a trustee seeking to register an aircraft at some length. In so doing, Section 47.7(c) refers to a trustee as "[a]n applicant for aircraft registration under section 501(b)(1)(A)(i) of the [Federal Aviation] Act [of 1958, 49 U.S.C. §§ 1301 et seq.] that holds legal title to an aircraft in trust." 14 C.F.R. § 47.7(c) (1984). Although the section does not tell us how one might come to hold legal title to an aircraft in trust, neither does it limit such a prospect.

[2] Even more telling, Section 47.11(h) deals with the documentation of ownership required from an applicant for registration. "The trustee of property that includes an aircraft . . . must submit either a certified copy of the order of the court appointing the trustee, or a complete and true copy of the instrument creating the trust." 14 C.F.R. § 47.11(h) (1984) (emphasis added). Thus, § 47.11(h) definitely recognizes that legal title to an aircraft in trust can arise by judicial order. Furthermore, this section places no limitations on the situations in which this might occur.

[3] Defendants' bald assertion that "[t]he 'Trustee' created by this Court does not qualify as [an] owner under the definition of CFR § 47.5(d)," misinterprets that section. Section 47.5 provides that "[a]n aircraft may be registered only by and in the legal name of its owner." 14 C.F.R. § 47.5(b) (1984). Section 47.5(d) provides that the term "'owner' includes a buyer in possession, a bailee, or a lessee of an aircraft under a contract of conditional sale, and the assignee of that person." 14 C.F.R. § 47.5(d) (1984) (emphasis added). Section 47.5(d) does not limit the definition of "owner," as defendants apparently contends, but instead provides that, in addition to those persons holding legal title, the term shall include the enumerated persons, not normally thought of as owners. (2)

[4] Section 47.11, dealing with evidence of ownership, further shows that § 47.5(d) is not meant to limit the definition of "owner." Section 47.11 lists the documentary proof of ownership needed not only by a buyer in possession, a bailee, a lessee, or their assignees, see 14 C.F.R. § 47.11(a), but also by a repossessor, a buyer at a judicial sale, the owner of a title that has been in controversy and determined by a court, the executor or administrator of an estate, a buyer of an aircraft from an estate, the guardian of another person's property, and, of course, a trustee. See 14 C.F.R. § 47.11(b)-(h). Since all of these fall under the heading "Evidence of ownership," we find it difficult to conceive that each cannot be an owner for purposes of the same Part. Thus, a trustee can clearly be an owner for registration purposes.

Therefore, while agreeing with defendants that Title 14, Part 47 of the Code of Federal Regulation does not explicitly grant this court the authority to appoint a trustee to hold title to the aircraft in this controversy, neither does it limit our ability to do so. The only question, then, is under what circumstances this court may validly appoint a trustee.

B. Courts of Equity May Appoint A Trustee Where The Interests Of Justice So Require.

[5] The power of a court of equity to appoint a trustee in a proper case is part and parcel of its general jurisdiction and control over trust estates. 76 Am. Jur. 2d, Trusts § 248 (1992); see also Citizens Bldg. & Loan Ass'n v. Knox, 146 Kan. 734, 74 P.2d 161 (1937). The court can exercise this power very broadly. See Wertin v. Wertin, 217 51, 13 N.W.2d 749 (Minn. 1944). The court may also make necessary orders to protect the property of such trust. McKee v. Lamon, 159 U.S. 317 (1895).

[6] A constructive trust is one "created by operation of law and imposed by a court in equity to prevent a fraud." 76 Am. Jur. 2d Trusts § 11 (1992); see also Black's Law Dictionary 285 (5th ed. 1979). Facts giving rise to a constructive trust in themselves give rise to an action to enforce such trust. Brainard v. Buck, 184 U.S. 99 (1902). Plaintiff alleged such facts before this court and properly pursued an action to impose a constructive trust on the aircraft.

[7] A court in equity will not be bound by an unyielding formula, but must shape its relief to match the nature of the transaction. To do this, a court should consider all of the circumstances bearing on the matter. Wertin, 13 N.W.2d 749. We have done this in establishing the present Trust, and defendants have failed to present us with any evidence to the contrary.

C. Appointment of a Receiver

Plaintiff has urged upon us that, as an alternative to appointing a trustee, we might also appoint a receiver in this matter "to protect and preserve the property pending the outcome of the litigation." Pl.'s Resp. to Def.'s Mot. for Recons. at 2. Although it is not necessary for us to reach this issue now, having decided to affirm our earlier decision in the matter, we would like briefly to address our reason for appointing a trustee instead of a receiver in the first place, having felt it unnecessary to do so in our order.

[8] A receiver is a "ministerial officer, agent, creature, hand, or arm of, and a temporary occupant and caretaker of the property for, the court, and he represents the court appointing him, and he is the medium through which the court acts." Black's Law Dictionary 1140 (5th ed. 1979).

The ultimate end of a receivership is to enable the court to accomplish, so far as practicable, complete justice between the parties before it. To this ultimate end it is the purpose of a receivership to prevent injury to the thing in controversy and to preserve it, pendente lite or after judgment, for the security of all parties in interest, to be finally disposed of as the court may direct. . . . The appointment of a receiver certainly is not made for the purpose of destroying the rights of persons, but rather, that their rights may be made more secure.

65 Am. Jur. 2d, Receivers § 3 (1972) (footnotes omitted). We articulated this end and purpose in making the order.

In the normal course of a trial where the court is concerned about the improper disposition of property by one of the parties, a receivership would be our selected form of protection for that property. However,

[t]he general rule is that the appointment of a receiver does not in
and of itself operate to change any title, right, or interest, or to vest
any title or estate in the receiver; on the contrary, the title to the
property in receivership continues in the defendant . . . until he is
divested of it by a receiver's sale, or act of his own.

Id. at § 160 (footnotes omitted).

Before this Trust was ordered, defendants had allowed the certificates of registration with the FAA to lapse. See Pl.'s Mem. Supp. Am. Prelim. Inj. ex. A (letter from FAA). The FAA denied plaintiff's attempts to register the aircraft in its own name, and plaintiff justifiably feared that the aircraft would be grounded. Thus, we instituted this Trust to allow registration of the planes and to allow plaintiff to continue flying.

We find no provision in Title 14, Part 47 of the Code of Federal Regulations allowing registration of aircraft in the name of a receiver. On our reading of the regulations, the applicant for registration must hold title to the aircraft he wishes to register. Setting up a normal receivership would have left plaintiff in the same position as if this court had taken no action whatsoever. For these reasons, we created this Trust, and it is the creation of that Trust which we now reaffirm.

II. Motion To Certify Order For Interlocutory Appeal

[9] Defendants have requested that, upon denying the motion for reconsideration, we certify the order creating the Trust for interlocutory appeal. Generally, an interlocutory order during the course of a trial or other judicial proceeding is not a "final decision" within the meaning of A.S.C.A. § 3.0309 and similar statutes. Kim v. American Samoa Gov't, 17 A.S.R.2d 193, 195 (App. Div. 1990). Such orders, even though they may be "fully consummated decisions" with respect to the issues they address, "are but steps towards final judgment in which they will merge," and are therefore reviewable only by means of appeal from an adverse judgment in the main proceeding. Id.; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see Deaver v. United States, 483 U.S. 1301 (1987).

[10] An interlocutory order falling within the "collateral order exception," however, can be appealed. Kim, 17 A.S.R.2d at 195. This exception describes "that small class [of interlocutory orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate considerations be deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546. To fall within the collateral order exception, an order must (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case. Kim, 17 A.S.R.2d at 195; Van Cauwenberghe v. Biard, 486 U.S. 517 (1988); Coopers & Lybrand v. Livesay, 458 U.S. 263 (1978).

The order challenged is clearly collateral, in that it determines a question separate and distinct from the merits of the action. The appointment of the Trustee to hold title and register the planes will in no way effect the ultimate determination of ownership. Furthermore, we have conclusively resolved the issue of the Trustee's appointment, both in our original order and in this order denying the motion for reconsideration.

[11] Finally, normal appeal will not present an effective review of this issue. A collateral order is generally regarded as "effectively unreviewable" where "substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated." Kim, 17 A.S.R.2d at 196 (quoting Kowalski v. Holden, 276 F.2d 359 (6th Cir. 1960)). Defendant urges upon this court that the order of the court has effectively taken away legal title from Pace Aviation Ltd. without a full adjudication on the merits and has thus changed the status quo of Pace Aviation Ltd. as it will be forced, even if it is temporary, to show a deduction of valuable assets from its financial statements and condition.

Def.'s Aff. Supp. Mot. at 4. We agree.

We, therefore, hold that the order appointing the Trustee to take title and register the aircraft is within the small class of pre-judgment orders which are final decisions immediately appealable under A.S.C.A. § 3.0309.

CONCLUSION

In conclusion, we reaffirm today our earlier order appointing Marshall Ashley Trustee for the aircraft--to take title and to register them with the FAA. We, therefore, deny defendants' motion to reconsider.

However, we agree with defendants that this order is a final decision, and certify it for immediate appeal in accordance with the appropriate procedural provisions.

It is so ordered.

*********

1 All references are to 14 C.F.R., unless otherwise noted.

2 "Owner" can be commonly defined as "[t]he person in whom is vested the ownership, dominion, or title of property." Black's Law Dictionary 996 (5th ed. 1979). None of the terms listed in Section 47.5(d) would fit this definition.

Bendall ; Samoa Aviation Inc. v.


SAMOA AVIATION, INC., dba SAMOA AIR, Plaintiff

v.

ROBERT G. BENDALL, PACE AVIATION, LTD.
and PAL AIR INTERNATIONAL, INC., Defendants

High Court of American Samoa
Trial Division

CA No. 50-95

August 25, 1995

__________

[1] A.S.C.A. § 1309(a) requires, prior to the issuance of a preliminary injunction, a written undertaking with sufficient sureties to assure that enjoined parties will receive the costs and damages that they may sustain by reason of the injunction, if the court decides that the applicant should not have been entitled to the injunction or should pay damages as the court may determine.

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

Counsel: For Plaintiff, Marshall Ashley
For Defendants, Togiola T.A. Tulafono

Order Directing Plaintiff to Secure Surety Bond or to Deposit Funds:

PROCEDURAL HISTORY

On June 13, 1995, this court issued a preliminary injunction, enjoining defendants, together with their officers, servants, employees, and attorneys, and those persons acting in concert or participation with them, from selling, transferring, encumbering, attempting to sell, transfer, or encumber, from taking possession of, attempting to take possession of, removing, or attempting to remove from American Samoa or elsewhere, any of the aircraft, including two DeHavilland Twin Otter aircraft ("N711AS" and "N28SP"), currently possessed by plaintiff Samoa Aviation Inc. ("Samoa Air").

Defendants were preliminarily enjoined as long as the written undertaking, required by A.S.C.A. § 43.1309(a) and previously filed by Samoa Air, in the sum not to exceed $500,000 with James A. Porter and Constance Marie Porter ("the Porters") as personal sureties, remained in full force and effect. Samoa Air filed this undertaking on May 11, 1995, as the court the directed, to maintain the preliminary restraining order then in effect pending the hearing on the application for a preliminary injunction. (1)

On July 14, 1995, defendants moved this court either to dissolve the injunction on the ground that the present undertaking is not secured by sufficient sureties, or to require Samoa Air and the Porters to secure the undertaking by depositing with the court funds or pledges of property in American Samoa equal in value to the undertaking or $8,500 per week as the required amounts payable by Samoa Air to defendants under their various agreements. The motion came regularly for hearing on August 17, 1995. Both parties were represented by counsel.

DISCUSSION

[1] A.S.C.A. § 43.1309(a) requires, prior to the issuance of a preliminary injunction, a written undertaking with sufficient sureties to assure that enjoined parties will receive the costs and damages that they may sustain by reason of the injunction, if the court decides that the applicant should not have been entitled to the injunction or should pay damages as the court may determine.

Defendants contend that the preliminary injunction should be dissolved because the undertaking is legally inadequate with the Porters, in their individual capacities, as personal sureties. They claim that the Porters have not shown that they are able to pay up to $500,000 in the event the defendants prevail on the merits. A trial date has not yet been scheduled, and the parties may not be ready for trial for several months. Therefore, if the defendants then prevail, plaintiff could owe a substantial amount to them. However, at this juncture, dissolving the injunction is inappropriate as a drastic and unnecessary option.

Under this scenario, defendants suggest two alternatives. First, either Samoa Air files a corporate surety bond in the amount of $500,000, or Samoa Air and the Porters deposit with the court funds in this amount or property locally situated of this value. Second, Samoa Air pays into the court registry $8,500 per week. Requiring either a corporate surety bond or a deposit of funds or property is appropriate in view of the prospective lapse of time before trial and defendants' potential recovery. The weekly payment proposal is likewise reasonable.

The weekly payment suggested is approximately the combined amount that Samoa Air was paying defendants under their several agreements until February 1994. At that time, Samoa Air lowered the weekly payments, unilaterally, from $8,555 to $5,100. It then paid the lower amount until either February or April 1995, at which time Samoa Air stopped making payments altogether. This action arose out of defendants' immediate reaction to the payment stoppage.

Since the legal status of N711AS and N43SP is the main remaining issue in this matter, the payment schedules for them may be appropriately used to calculate an equitable weekly amount to pay into the court registry. Under the agreements, the amounts payable were $7,395 per month for N711AS and $8,874 per month for N43SP, which together equal $3,754.39 per week, based on a 52 week payment program.

ORDER

We deny defendants' motion to dissolve the preliminary injunction, but will require Samoa Air to provide additional surety for the undertaking.

The undertaking of $500,000 with the Porters as personal sureties will remain in place. In addition, no later than October 2, 1995, and pending final disposition of this matter or until further order of the court, Samoa Air shall:

(1) file with the clerk of courts a corporate surety bond in the amount of $500,000; or

(2) deposit, or cause either or both of the Porters to deposit, with the clerk of court cash in the sum of $500,000 or one or more pledges of property within American Samoa having a total value of $500,000, or a combination of cash or pledges totaling $500,000; or

(3) file a corporate surety bond and deposit cash and/or pledges of property in the aggregate amount of $500,000 with the clerk of courts; or

(4) pay into court registry $3,750 in cash and the same amount on Monday of each week thereafter.

It is so ordered.

*********

1. In addition to the undertaking, Samoa Air also filed a copy of its certificate of insurance with defendants Pace Aviation, Ltd. and Pal Air, Inc. listed as added loss payees. On May 10, 1995, in chambers, the parties agreed that the continued existence of the temporary restraining order was contingent on Samoa Air's filing of these two documents.

Bendall; Samoa Aviation Inc. v.


SAMOA AVIATION, INC., dba SAMOA AIR, Plaintiff

v.

ROBERT G. BENDALL, PACE AVIATION, LTD. and PAL AIR INTERNATIONAL, INC., Defendants

High Court of American Samoa
Trial Division

CA No. 50-95

June 13, 1995

__________

[1] The court may issue a preliminary injunction only after a hearing in which sufficient grounds have been established by a preponderance of the evidence.

[2] A party seeking preliminary injunction need not show with absolute certainty that he will prevail on the merits, nor is a movant required to prove a greater than fifty percent likelihood that they will prevail on the merits. A movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation.

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

Counsel: For Plaintiff, Marshall Ashley
For Defendants, Togiola T.A. Tulafono

Preliminary Injunction:

INTRODUCTION

This matter arises out of two agreements in 1988, whereby plaintiff Samoa Aviation, Inc., dba Samoa Air ("Samoa Air") gained possession of two DeHavilland Twin Otter aircraft ("N711AS") and ("N28SP"), from defendants Robert G. Bendall ("Bendall"), Pace Aviation, Ltd. ("Pace Aviation"), and Pal Air International, Inc. ("Pal Air").

Samoa Air is incorporated and licensed to do business in American Samoa that provides exclusive air service to the Manu`a Islands, as well as scheduled flights to Western Samoa and Tonga. Bendall is the president and sole shareholder of Pace Aviation and Pal Air, both Nevada corporations, that purchase, lease, and sell aircraft and aircraft parts and equipment. Bendall is also a shareholder in Samoa Air. As between defendants, it appears that Pace Aviation acquired Pal Air's interests in N711AS in 1992 and in N28SP in 1993.

The original and a copy of the agreement for N711AS is in evidence. At this point, however, neither the original nor a copy of the agreement for N28AS has been produced. Samoa Air alleges that the parties entered into lease purchase agreements for the aircraft and since the agreements have performed under their own terms, Samoa Air now demands title to the aircraft. Defendants contend that the aircraft were merely leased to Samoa Air and, therefore, now demand the return of the aircraft.

On April 28, 1995, Samoa Air filed a complaint seeking injunctive relief, declaratory judgment and money damages against defendants. That same day, upon Samoa Air's application, we issued a temporary restraining order enjoining defendants from interfering in any way with the aircraft and equipment operated by Samoa Air, thereby preserving the status quo pending a hearing on a preliminary injunction. Samoa Air's application for preliminary injunction came regularly for hearing on June 1 and 2, 1995. All parties were present and represented by counsel.

STANDARD OF REVIEW

[1] The court may issue a preliminary injunction only after a hearing in which "sufficient grounds . . . has been established by a preponderance of the evidence adduced." A.S.C.A. § 43.1301(g). In order for this court to find sufficient grounds for the issuance of a preliminary injunction, we must conclude that:

(1) there is a substantial likelihood that the applicant will prevail on
the merits and that a permanent injunction will be issued against the
opposing party; and
(2) great or irreparable injury will result to the applicant before a full
and fair trial can be fairly held on whether a permanent injunction
should issue.

A.S.C.A. § 1301(j). See Le Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11, 15 (Land & Titles Div. 1992). Although neither of these factors is decisive, "likelihood of success on the merits is often considered a threshold requirement for the granting of a preliminary injunction." Reinders Bros., Inc. v. Rain Bird E. Sales Corp., 627 F.2d 44, 49 (7th Cir. 1980).

DISCUSSION

I. Substantial Likelihood of Success on Merits

[2] A preliminary injunction "will not be granted unless upon a showing of probable success . . . ." Societe Comptoir De L'indus. v. Alexander's Dept. Store, 299 F.2d 33, 35 (2d Cir. 1962) (the court has the discretion to issue a preliminary injunction if it finds that the movant has made a sufficient factual showing that he will prevail at trial). "A party seeking preliminary injunction need not show with absolute certainty that he will prevail on the merits," Gartrell v. Knight, 546 F. Supp. 449, 455 (N.D. Al. 1982), nor is a movant "required to prove a greater than fifty percent likelihood that they will prevail on the merits." Doe v. Secret Service Sys., 557 F. Supp. 937, 941 (D. Minn. 1983) (citing Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (court rejected the application of a mathematical equation for probability of success in favor of an approach flexible enough to encompass the particular circumstances of each case).

A movant merely needs to raise "questions so serious and difficult as to call for more deliberate consideration," id.; "or at least demonstrate a fair question for litigation." Miami Gold Prod., Inc. v. Gannett Co., 593 F. Supp. 672, 675 (S.D.N.Y. 1984); Ohio-Sealy Mattress Mfg. Co. v. Duncan, 486 F. Supp. 1047, 1057 (N.D. Ill. 1980) (a "good chance" of success was sufficient to satisfy this test).

Samoa Air, to demonstrate a "good chance" that Bendall and Pal Air intended to sell the aircraft to Samoa Air at the time of the agreements, entered into evidence Bendall's letter of July 28, 1988, to the bankruptcy receiver, accompanying a bid to purchase the assets of South Pacific International Airways, including N711AS and N28SP, and expressing intention to lease and later transfer ownership of those assets to Samoa Air. It also submitted an amortization schedule, attached to original agreement Samoa Air and Pal Air, for N711AS, and a copy of a bill of sale to Samoa Air in 1994 for that aircraft, and a copy of an amortization schedule for N28SP. The amortization schedules name a "price," an "interest rate," and list the amount payable each month for the aircraft. Samoa Air argues that the amortization schedules are written evidence that the parties intended to enter into lease purchase agreements rather than lease agreements.

Bendall claims that the amortization schedules were only drafted as part of his "open book policy" to show Samoa Air how the lease payments were calculated. Samoa Air acknowledges that the document signed by the parties for N711AS was entitled "Lease Agreement," and not "lease purchase agreement," but it declares that this was required by Bendall and Pal Air in order to satisfy creditors if Samoa Air happened to become insolvent. Instead, Samoa Air alleges that Bendall and Pal Air must have consented to a lease purchase agreement since Bendall stapled, in his usual manner, the amortization schedule to the original agreement for N711AS at the time of execution.

Samoa Air asserts that the bill of sale for N711AS, executed by Bendall and Pace Aviation at Samoa Air's request, was issued because the parties agreed that the payments for the aircraft were complete and that Samoa Air should receive title. Defendants, on the other hand, contend that Samoa Air requested the aircraft bill of sale since Samoa Air was seeking credit financing and needed to show Amerika Samoa Bank, inexperienced in such matters, the appearance of an appropriate bill of sale. Steve Watson, vice president of Amerika Samoa Bank, testified that the bank has vast experience in dealing with bills of sale and did not need an example, but instead had requested an original bill of sale from Samoa Air to secure a loan to Samoa Air. Bendall testified that when he discovered an attempt to file the copy of the bill of sale with the Federal Aviation Administration, he destroyed the original.

We find that Samoa Air has sufficiently justified a more deliberate investigation into the merits of its claim. Although there is no conclusive evidence that the parties consented to lease purchase agreements, the evidence at this point preponderates in favor of finding that is what the parties intended.

II. Great or Irreparable Injury

On the question of irreparable injury, we find that Samoa Air has made a sufficient showing of harm to itself, as well as to the people and Territory of American Samoa if a preliminary injunction is not issued. If defendants gain possession of the two aircraft in dispute, Samoa Air may be out of business. Samoa Air has testified that it provides exclusive air service to the Manu`a Islands of Ofu and Tau, as well as substantial scheduled flights to Western Samoa and Tonga, and that no other carrier is prepared to immediately begin service to the Manu`a Islands. Canceling these flights would hinder the ability of American Samoans to ship goods, conduct business, and visit family.

At the least Samoa Air would lose the large equity it alleges to have in the aircraft if the they are repossessed, transferred, or sold by defendants before the trial is completed. Bendall testified that defendants would not repossess the aircraft if a preliminary injunction was not issued, but the court does not find this persuasive since there is no guarantee that he may not change his mind. Bendall also requested that the court name a trustee to oversee Samoa Air's matters and order the execution of a short term lease between defendants and Samoa Air. It is not the court's role to become experts in the airline business or to force any of the parties to enter into a contract. Instead, our role is to maintain the status quo until this action is properly decided on its merits.

ORDER

For good cause shown, Samoa Air's application for a preliminary injunction is granted. Accordingly, during the pendency of this action or until further order of the court, defendants, together with their officers, servants, employees, and attorneys, and those persons acting in concert or participation with them, are hereby enjoined from selling, transferring, or encumbering, or attempting to sell, transfer, or encumber, or from taking possession of, attempting to take possession of, removing, or attempting to remove from American Samoa or elsewhere, any of the aircraft, including but not limited to N711AS and N28SP, equipment or parts, currently owned or possessed by Samoa Air, so long as the undertaking, as required by law, and presently filed by Samoa Air in the sum not to exceed $500,000, with James A. Porter and Constance Marie Porter as personal sureties, remains in full force and effect.

It is so ordered.

*********

Bank of Hawaii; Thomsen v.


HERMAN THOMSEN, dba BLUE ANGEL
OCEANIC TRANSFERS, Plaintiff

v.

BANK OF HAWAII, Defendant

High Court of American Samoa
Trial Division

CA No. 48-93

June 6, 1995

__________

[1] T.C.R.C.P. 15(a) gives the court wide latitude to permit amendment of a pleading. The court will permit amendment of a pleading if it finds that the ends of justice and fairness are legitimately furthered by the amendment.

[2] A trial court may not deny leave to amend without justification.

[3] The court will not prevent amendment of a pleading regarding matters which are material to the case unless there is actual prejudice to the defendant or, perhaps, concrete evidence of bad faith.

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

Counsel: For Plaintiff, Aviata F. Fa`alevao
For Defendant, Brian M. Thompson

Order Permitting Amendment of Complaint:

FACTS

Plaintiff Herman Thomsen ("Thomsen") seeks to amend his complaint in this action against defendant Bank of Hawaii ("BOH") for honoring forged checks. The original complaint was filed on April 14, 1993, and the present motion was filed on March 15, 1995. BOH claims that amendment would be unjust because: (1) it follows the original complaint by almost two years; (2) it adds a damage claim three times greater than that alleged in the original complaint; and (3) it is beyond the scope of the original complaint.

STANDARD OF REVIEW

[1] T.C.R.C.P. 15(a) gives the court wide latitude to permit amendment. The relevant language in the rule states: "[A] party may amend his pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires . . . ." T.C.R.C.P. 15(a).

Accordingly, if we find that the ends of justice and fairness are legitimately furthered by amendment, we will permit it.

DISCUSSION

[2] In McKenzie v. Le`iato, CA No. 113-94, slip op. at 2 (Trial Div. Dec. 14, 1994), we interpreted the U.S. Supreme Court's holding in Foman v. Davis, 371 U.S. 178 (1962), to support the principle that a trial court may not deny leave to amend without justification. In McKenzie, we further held that the fact that a trial has not been scheduled weighs heavily in favor of permitting amendment. Other considerations utilized by the McKenzie court were whether the proposed amendments restate, in expanded form, the allegations of the original complaint, and whether amendment would give the plaintiff an unfair advantage in proceedings.

[3] In the present case, the trial date has not been set. This factor weighs heavily in favor of permitting amendment. BOH uses prior discovery sanctions against Thomsen as evidence that Thomsen's present request is an abuse of the discovery process. In Foman, the U. S. Supreme Court made it quite clear that the Federal Rules of Civil Procedure, which American Samoa's rules mirror, were created to facilitate a proper decision on the merits of the case, and to avoid a game of technicalities about pleading. Foman, 371 U.S. at 181-82. Accordingly, we will not prevent amendment of a pleading regarding matters which are material to the case unless we see actual prejudice to the defendant or, perhaps, concrete evidence of bad faith.

BOH's assertion that it will be prejudiced by the necessity of conducting additional discovery is unpersuasive. Discovery regarding the amendments would have been required at some point regardless of whether such claims were made at the outset, or whether they are added now as amendments. We have no analysis from BOH as to how its additional hardship from a less efficient discovery process should outweigh the desirability of having all relevant, triable issues on the table at once. We similarly have no claim by BOH alleging that the amended information was available or known to Thomsen at the time of the original pleadings, or any reason why we should assume that Thomsen purposely delayed the amendment process for strategic advantage.

Accordingly, the amended complaint will be accepted according to our discretion. Thomsen's motion to amend his complaint is granted.

It is so ordered.

*********

American Samoa Gov’t; Sea v.


SUALEVAI SEA and TAUFUSI LEASAU, for themselves
and on behalf of the ATOE FAMILY, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT
and SOLA LAGAI, Defendants

____________________

AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SOLA LAGAI, SUALEVAI SEA, TAUFUSI LEASAU,
and SA`O or LEGAL REPRESENTATIVE of the ATOE FAMILY
of Village of Fitiuta, Manu`a, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 49-91
LT No. 53-91

May 10, 1995

__________

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

Counsel: For Plaintiffs/Defendants Sualevai Sea, Taufusi Leasau, on behalf of the Atoe Family, Gata E. Gurr
For Defendant/Plaintiff American Samoa Government, Elvis R.P. Patea, Assistant Attorney General
For Defendant Sola Lagai, Arthur Ripley, Jr.

Opinion and Order:

In LT No. 49-91, plaintiffs Sualevai Sea ("Sualevai") and Taufusi Leasau ("Taufusi"), on behalf of the Atoe family, and defendant Sola Lagai ("Sola") are vying to receive the rental compensation for the use of certain land within the Fitiuta airport operated by defendant American Samoa Government ("ASG"). In LT No. 53-91, ASG as stakeholder interpleaded Sualevai, Taufusi, and the principal chief ("sa`o") or other legal representative of the Atoe family, and Sola as defendants for the purpose of depositing the rental compensation with the High Court pending the court's decision on entitlement to it. After consolidation, the two cases were tried on March 9 and 10, 1995. The individually named parties were present with their counsel, along with ASG's counsel.

FINDINGS OF FACT

Several years ago, ASG programmed the construction and operation of a public airport to be located in the Village of Fitiuta, Manu`a Islands, American Samoa. As a major process in the program, ASG negotiated lease agreements with the owners of the land on which the airport was to be constructed. ASG reached an agreement with Sola for the use of one parcel, named "Tiafala" and designated Lot 17 on ASG's survey of the airport area. On January 5, 1988, ASG and Sola signed a lease of Lot 17 to ASG for 55 years, with a monthly rental of $100 per acre for the first five years of the lease term. As amended on March 8, 1991, Lot 17 consisted of 5.572 acres, which generated a monthly rental of $557.20. The rental is subject to a renegotiated amount for each five-year period of the lease.

By stipulation, ASG had deposited $44,575.60 with the court and inadvertently released to Sola $3,343.20, representing the rental payments for the months of January 1988 through February 1995. ASG is obligated to continue monthly deposits of $557.20, subject to any readjustment in the rent for the second five-year period of the lease, which began in January 1993.

The evidence submitted by Sualevai and Taufusi in this case was diametrically opposed to the evidence presented by Sola in virtually every significant aspect. We can resolve the ultimate fact of the ownership of Lot 17 from another perspective without setting forth these conflicts in elaborate detail. Unquestionably, while each family is distinct, the Lagai and Atoe families' histories are intertwined. They still interact frequently and occupy neighboring land not far from Lot 17. Furthermore, they are blood related.

While they are Atoe family members, Sualevai and Taufusi have their genuine roots and essential interests outside of Fitiuta. As outsiders, their evidenced motivation in this matter was the substantial financial stake at issue. The meeting held in the Village of Nu`uuli on the Island of Tutuila one Saturday evening in 1992 or 1993 was devised to induce Sola as an Atoe family member to agree to a course of action, later recanted, for the release of the rental funds.

The Atoe family members, who are Fitiuta residents and who testified in support of Sualevai and Taufusi, were not persuasive. One in particular had other self-interests. He is a matai in yet another family. He leased land to ASG, identified as Atoe family land and designated as Lot 3 in the airport survey, and had reason to protect his claim to individual ownership of this land as opposed to communal ownership by any family.

Moreover, we find the testimony of Sola, the present sa`o of the Lagai family and a lifelong Fitiuta resident, and his witnesses, also Fitiuta residents, substantially more compelling on the land ownership issue. In short, we find that the land named "Tiafala" and portion of it designated Lot 17 is communal land of the Lagai family.

CONCLUSIONS OF LAW AND ORDER

Since Lot 17 within the land named "Tiafala" is communal land of the Lagai family, Sola, as the sa`o and on behalf of his family, is entitled to receive the rental funds held by the court for the lease of this land by ASG for the Fitiuta airport. The clerk of the court shall deliver these funds to Sola when this order becomes a final decision. Until then, ASG shall continue to deposit the monthly rental payments with the court. ASG shall thereafter make the monthly rental payments directly to Sola.

It is so ordered.

********

American Samoa Gov’ t v. Meredith,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ATUALEVAO MEREDITH, TOAONO KELEMETE,
and JOHN DOES 1-10, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 19-94

June 27, 1995

__________

[1] The plain language of A.S.C.A. § 37.2001(b) restricts it from applying to a condemnation proceeding that occurred before its passage into law.

[2] ASG has the authority to alter or modify the public purpose of a condemnation in order to satisfy some other public use.

[3] The sum and substance of the whole doctrine of res judicata is that a matter once judicially decided is finally decided.

[4] A campaign promise, made when the promisor was not acting on the government's behalf but merely as a private citizen seeking elected office, is unenforceable.

[5] Without valid consideration, a verbal promise is at most an offer to make a gift and a mere promise to make a gift is not enforceable.

[6] Despite its broad language, granting relief from a final judgment is generally only available upon a showing of extraordinary circumstances. The movant must allege and prove such extraordinary circumstances as will be sufficient to overcome the overriding interest in the finality of judgments, especially where the reopening of a judgment could unfairly prejudice the opposing party. T.C.R.C.P 60(b)(6).

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendants, Solomona Toailoa and Albert Mailo

Order Denying Motion for Reconsideration, New Trial, or Relief from Judgment:

BACKGROUND

This action was brought by plaintiff American Samoa Government ("ASG") to evict defendants from a 72.72 acre plot of land ("the property") located within the original boundaries of the Pago Pago International Airport in Tafuna.

ASG plans to construct a stadium in time for the 1997 South Pacific Mini Games on a 16-acre, more or less, portion of the property, north of the public road between the airport terminal and Ili`ili. Defendants have cultivated and made other use of the 16-acre portion, apparently at least since ASG's lease of this portion to the Federal Aviation Administration ("FAA") was terminated in 1984, and claim, among other issues raised, that title to the property, or at least the 16-acre portion, was always vested in the Atualevao family as communal land or should revert to this family.

Originally, this court, in Fonoti Lalau v. G.A.S., LT 16-1957, slip op. (Apr. 11, 1958), determined that the Lemeana`i family owned this property. In a condemnation proceeding, In the matter of the Acquisition of Land for the Construction of Airport at Tafuna, LT 15-1959, slip op. (Dec. 28, 1959), ASG obtained fee simple title to approximately 550.83 acres, which included this property. This decision, which had the legal effect of transferring title to ASG, was affirmed by the Appellate Division of the High Court on May 31, 1960. On July 21, 1960, ASG paid the former title holder of the Lemeana`i family $18,856.61 as compensation.

In a failed attempt by defendant Atualevao Meredith to reclaim the 16-acre portion of the property, this court, inMeredith v. American Samoa Gov't, 2 A.S.R.2d 66, 68 (Land & Titles Div. 1985), aff'd AP 23-85, slip op. (1986), confirmed that once ASG condemned the land for a public purpose, it gained title in fee simple.

PROCEDURAL HISTORY

On May 25, 1994, ASG filed a complaint for trespass and injunctive relief with this court naming Meredith, Toaono Kelemete ("Kelemete"), and John Does 1-10 as defendants. That same day, ASG, in addition to the complaint, applied for a temporary restraining order, which was not issued, and preliminary injunction. On June 15, 1994, Kelemete filed a pro se answer and counterclaim. On June 22, 1994, at the hearing on the order to show cause, the court issued a stipulated temporary restraining order and associated orders.

The temporary restraining order prevented defendants from any new construction or farming where the stadium was to be built and allowed ASG to peaceably proceed with the stadium plans. On June 30, 1994, pursuant to one of those orders, Meredith and Kelemete filed a second answer by counsel. On July 7, 1994, at a further hearing on the order to show cause, a stipulated preliminary injunction, retaining the status quo, replaced the temporary restraining order.

On January 27, 1995, ASG filed a reply to Kelemete's counterclaim and moved for summary judgment. On January 18, 1995, we issued an order granting ASG's motion for summary judgment. On May 4, 1995, defendants filed a motion for reconsideration or new trial with respect to the summary judgment, and apparently for relief from the 1959 condemnation judgment. On June 13, 1995, the motion came regularly for hearing. Both parties were represented by counsel.

DISCUSSION

I. Reversionary Right Under Constitution

In granting summary judgment, we held that the original Constitution of American Samoa did not contain a reversion provision. See Rev. Const. Am. Samoa art. I, § 2 (1960). Defendants still contend that the original Constitution contained such a provision whereby condemned land would revert to a prior owner if ASG failed to use the land within three years after condemnation. Defendants base their belief that such a provision existed on a footnote to article I, section 2, of the Revised Constitution of American Samoa, which states:

Section [article I, section 2] formerly provided for payment "before" the taking of property and for reversion to owner after 3 years of non-user. H.C.R. No. 45, 10th Leg. 1st Spec. Sess., requested Secty. of Int. to revise the section to its present form. This was done at the time of ratification and approval on June 2, 1967.

This footnote mentions the existence of a reversion provision in the proposed Revised Constitution. If defendants would have researched the footnote further, they would have discovered that the reversion provision never became effective. The proposed Revised Constitution, which was approved by the Constitutional Convention, convened on September 26, 1966, and by a majority of the voters at the general election in 1966, included the reversion provision. However, before it was signed by the Secretary of the Interior, the Tenth Legislature of American Samoa passed H.C.R. No. 45, (1) requesting the Secretary of the Interior to delete the reversion provision. On July 1, 1967, the Secretary of the Interior signed the Revised Constitution, subject to the deletion of the reversion provision in article I, section 2. (2) Thus, the reversion provision never took legal effect.

II. Reversionary Right Under Statute

Defendants also claim a reversionary right under A.S.C.A. § 37.2001(b), which amended § 37.2001. It states in relevant part: "[i]f the subject land is not used for the stated public purpose within five years after condemnation it must be returned to the prior owner with all improvements." Prior to the effective date of this amendment in 1989, the laws of American Samoa, in the 1949 Code of Laws of the Government of American Samoa and all following codes, did not contain a provision that required ASG to use condemned land within a specific term of years.

In granting summary judgment, we held that this statute had no retrospective effect and did not apply to LT 15-1959. Defendants concede that A.S.C.A. § 37.2001(b) has no retrospective effect, but now seem to argue that it prospectively applies to ASG's failure to use the condemned land from 1988 to 1994. We disagree. Defendants' understanding of A.S.C.A. § 37.2001(b) is legally and factually incorrect.

[1] First, the plain language of A.S.C.A. § 37.2001(b) restricts it from applying to a condemnation proceeding that occurred before its passage into law. It states that ASG must specify the public purpose in the "proposed condemnation" and use the land "within five years after condemnation" (emphasis added). The condemnation proceeding at issue in this matter was completed about 30 years prior to the enactment of A.S.C.A. § 37.2001(b). For the statute to apply in this case, it would have to state that "ASG must use condemned land within five years of the passage of the statute." This is not the case.

Second, defendants' belief that A.S.C.A. § 37.2001(b) became effective in 1988 is factually incorrect. The legislative history of A.S.C.A. § 37.2001(b) clearly shows that its second enactment, as is constitutionally required, Rev. Const. Am. Samoa, art. I, § 3 and art. II § 9, by Pub. L. 21-24, was approved by the Governor of American Samoa on October 24, 1989, and became effective on November 19, 1989. Since ASG began clearing the condemned land for construction of the stadium in January 1994, less than five years from the date A.S.C.A. § 37.2001(b) became effective, the statute would not be applicable even if it had prospective effect.

III. Public Purpose

[2] Defendants claim that the property should revert to them since ASG's plan to construct a stadium on the property is inconsistent with the stated public purpose for which the property was condemned. We disagree. ASG has the authority to alter or modify the public purpose in order to satisfy some other public use, as required by ASG's needs. Meredith, 2 A.S.R.2d at 67 (court held that use of the property for rock crushing operations did not revert title back to the original owners); Arechiga v. Housing Authority, 324 P.2d 976 (Cal. 1958) (court upheld the right to sell condemned land to another); Seattle Land & Improvement Co. v. City of Seattle, 79 P. 780, 781 (Wash. 1905) (court held that the city of Seattle had the authority to modify the public use of land it condemned, unless the property was donated by a private party for a specific restrictive use).

ASG has used the property for the original stated public purpose, and for both related (3) and unrelated purposes, for a number of years, and may use the property for another public purpose it now deems necessary.

IV. Unjust Compensation Claim

[3] Defendants claim that the $18,857.61 the Lemeana`i family received from ASG as compensation for the property was unjust. In granting summary judgment, we held that this argument was untimely since defendants' appeal rights regarding the issue of just compensation were exhausted and forever barred by res judicata. "The sum and substance of the whole doctrine [of res judicata] is that a matter once judicially decided is finally decided." Massie v. Paul, 92 S.W.2d 11, 14 (Ky. 1936).

Throughout these proceedings, defendants have failed to understand why their appeal rights regarding the issue of just compensation are barred by res judicata. In granting summary judgment, we pointed out the fact that defendants did not raise the issue of just compensation in Meredith. In turn, defendants misinterpreted this statement to mean that they must retain such a right of appeal. This is incorrect. During the condemnation proceeding, LT 15-1959, slip op. (Dec. 28, 1959), the parties were allowed to submit evidence on the actual location and monetary value of the Lemeana`i family land. Upon review of this evidence, the court awarded the Lemeana`i family $18,856.61 in compensation, which the former titleholder received shortly after the decision was affirmed. This decision was affirmed by the Appellate Division of the High Court on May 31, 1960. From this date forward, defendants' appeal rights regarding the issue of just compensation were barred by res judicata.

Even if defendants had raised the issue of just compensation in Meredith, it would have been barred by res judicata. Meredith involved separate and distinct issues arising out of events occurring after LT 15-1959 was decided, which were therefore appropriate for the court to determine. However, the issue of just compensation was directly related to the essential issue originally decided by the court in LT 15-1959. Therefore, it was barred by res judicata at the time Meredith was decided.

Defendants further argue that even if their appeal rights regarding the issue of just compensation are exhausted, the court should ignore its previous judgments and award them more compensation. (4) Defendants reason that ASG should follow the example of democratic governments that have recently atoned for past errors by returning land taken without just compensation to its native peoples. This argument is legally unfounded in this case. There is no rational legal basis for defendants to analogize LT 15-1959, which provided fair proceedings and payment of just compensation, to illegal takings by other governments who failed to ensure due process protection. ASG legally gained title to the property and intends to continue to use it for public benefit. No reason is given to ignore previous court judgments in order to award more compensation to defendants.

V. Promises to Return the Property

Defendants assert that at various times, the recent Governors of American Samoa have made promises to convey or lease the 16-acre portion of the property, or part of it, to defendants. They claim that after the final Meredith decision in 1986, Governor A.P. Lutali promised on several occasions, while in office, to return to them at least part of the 16-acre portion. They further declare that Governor Lutali made the same promises to them during the gubernatorial election campaigns in 1988 and again in 1992. They also state that during his 1989-1993 administration, Governor Peter T. Coleman committed ASG to leasing to them part of the property. They also contend that in January 1994, after ASG began to clear part of the 16-acre portion for the proposed stadium, Governor Lutali assured defendants that they would receive a "perpetual lease" of another part of the 16-acre portion. Finally, defendants allege that in February 1994, the Secretary of Samoan Affairs affirmed Governor Lutali's intentions, and they agreed with the area for the lease, which the Secretary identified to them on a map. In granting summary judgment, we held that the Governors' verbal promises for the "sale of real property or any interest therein" were not legally binding in American Samoa under the statute of frauds found in A.S.C.A. § 37.0221(a). Defendants contend that this statute is inapplicable since the Governors' verbal promises to return the 16-acre portion, or a part of it, were not equivalent to a "sale." For purposes of this action at least, we agree.

We also concluded that the Governors' verbal promises to lease the 16-acre portion, or part of it, were unenforceable since they did not comply with the requirements of a valid lease pursuant to A.S.C.A. § 37.0221(a). Defendants correctly point out that this statute is inapplicable since it regulates communal land, not public land. Nonetheless, we still conclude that the Governors' verbal promises to convey or lease a portion of the property are unenforceable for other reasons.

A. Campaign Verbal Promises

[4] Governor Lutali's campaign promise in 1988 was made when he was not acting on ASG's behalf but merely as a private citizen seeking elected office. Such a promise is unenforceable, especially against the government. Imagine how much money it would cost the Internal Revenue Service if George Bush's verbal campaign promise, "Read my lips--no new taxes," was enforceable by United States taxpayers.

B. Verbal Promises Made While in Office

[5] The verbal promises to convey or lease made by the Governors while in office were not based on valid consideration and are unenforceable. It is a well established legal principle that "a promise made without supporting consideration is unenforceable." Powers Restaurants, Inc. v. Garrison, 465 P.2d 761, 763 (Okl. 1970). Without valid consideration, these verbal promises are at most offers to make a gift and "[a] mere promise to make a gift is not enforceable." Oman v. Yates, 422 P.2d 489, 494 (Wash. 1967). The mere expression of an intention or desire is not an enforceable promise, unless there is an undertaking to carry the intention into effect. E.I. DuPont De Nemours & Co. v. Clairborne-Reno Co., 64 F.2d 224, 233 (8th Cir. 1933).

Governor Lutali and Governor Coleman never carried out any of the alleged verbal promises to return the 16-acre portion, or any part of it, to defendants. Defendants even admit that discussions regarding return of any portion of the property never reached the stage of genuine mutual understanding.

Accordingly, we hold that the Governors' verbal promises while in office to return, by either conveyance or lease, the 16-acre portion of the property, or any part of that portion, to defendants are merely offers to make a gift and not enforceable.

VI. Relief From Judgment

Defendants further request the court to grant relief from the 98, 101, 102judgment in the 1959 condemnation proceeding. Although not stated by defendants in their motion, this request is apparently made pursuant to T.C.R.C.P. 60(b). Since defendants have filed this motion more than one year after the 1959 condemnation judgment, clause (6) is the only subsection of Rule 60(b) that could apply.

T.C.R.C.P. 60(b), which mirrors F.R.C.P. 60(b), permits the court "to relieve a party from a final judgment" for "(6) any other reason justifying relief from the operation of the judgment." The court, in its discretion, may grant the motion, provided that it is not premised on one of the grounds enumerated in clauses (b)(1) through (b)(5), Nouata of Nu`uuli v. Pasene of Nu`uuli, 1 A.S.R.2d 25, 34 (App. Div. 1980) (citing United States v. Cirami, 535 F.2d 736, 738 (2nd Cir. 1977)), and that it is filed "within a reasonable time." U.S. v. Demjanjuk, 103 F.R.D. 1, 3 (E.D. Ohio 1983).

[6] Despite its broad language, granting relief under Rule 60(b)(6) is generally only available upon a showing of "extraordinary circumstances." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988) (quotingAckermann v. United States, 340 U.S. 193, 202 (1950)). Defendants must "allege and prove such extraordinary circumstances as will be sufficient to overcome the overriding interest in the finality of judgments," Wilson v. Fenton, 684 F.2d 249, 251 (3d Cir. 1982) (quoting Mayberry v. Maroney, 529 F.2d 332, 337 (3d Cir. 1976)), especially where the reopening of a judgment could unfairly prejudice the opposing party. Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977).

Defendants have failed to establish any extraordinary circumstances which create any questions of fact that would require granting of relief under Rule 60(b)(6). Defendants have failed to bring this motion in a reasonable time period. In Nouata of Nu`uuli, 1 A.S.R.2d at 34, this court held that the time period is not open ended and that a 47 year delay was unreasonable. Relief after the passage of 35 years in this case is likewise unreasonable. Finally, granting relief would unduly prejudice ASG, as holders of legal title to the property, and would contravene the principle of reaching finality of judgments in the administration of justice. "There must be an end to litigation someday . . . ." Id. at 35 (citing Ackerman v. United States, 340 U.S. at 202).

We exercise our discretion under Rule 60(b)(6) and will deny defendants relief from final judgment in LT 15-1959.

ORDER

We deny defendants' motion for reconsideration, new trial, or relief from judgment and affirm our order granting plaintiff's motion for summary judgment.

It is so ordered.

*********

1. The Tenth Legislature of American Samoa, in passing H.C.R. No. 45 on May 22, 1967, proposed to amend article I, section 2 of the Revised Constitution by deleting the reversion provision which is "unduly restrictive of eminent domain procedures in American Samoa and which will make condemnation of land for public purposes virtually unworkable."

2. The following language is inserted above the Secretary of the Interior's signature on the Revised Constitution of American Samoa: "Subject to the deletion from Article I, section 2 of all after the title and the insertion in lieu thereof of the text of Article I, section 2 of the Constitution of American Samoa effective October 17, 1960, to wit: 'No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.'"

3. The lease of the said property by ASG to the FAA in 1963 was found by this court to be consistent with the stated purpose for which the land was originally condemned. Meredith, 2 A.S.R.2d at 67.

4. Defendants have apparently requested this court, pursuant to T.C.R.C.P. 60(b)(6), for relief from final judgment in LT 15-1959. We address this issuesupra, 28 A.S.R. at 100.

American Samoa Gov’t v. Meredith,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ATUALEVAO MEREDITH, TOAONO KELEMETE,
and JOHN DOES 1-10, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 19-94

April 26, 1995

__________

[1] A.S.C.A. § 37.2001(b) does not have retrospective effect.

[2] Whether a statute operates retrospectively or prospectively only is a question of legislative intent.

[3] The sum and substance of the whole doctrine of res judicata is that a matter once judicially decided is finally decided.

[4] A verbal promise to convey any interest in land is not legally binding.

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General, and Cherie S. Norman, Assistant Attorney General
For Defendants, Solomona Toailoa and Albert Mailo

Order Granting Summary Judgment:

BACKGROUND

This matter arises out of a dispute over ownership of a 72.72 acre lot of land located near the Tafuna airport. Originally, this court, in LT 16-1957, determined that the Lemeana`i family owned this property. In a condemnation proceeding, LT 15-1959 (Dec. 28, 1959), plaintiff American Samoa Government ("ASG") obtained fee simple title to approximately 550.83 acres, which included the land belonging to the Lemeana`i family. On July 21, 1960, ASG paid the former title holder of the Lemeana`i family $18,856.61 as compensation. In a failed attempt by defendant Atualevao Meredith ("Meredith") to reclaim the land, this court, in Meredith v. American Samoa Gov't., 2 A.S.R.2d 66, 68 (Land & Titles Div. 1985), aff'd, AP 23-85 (1986), confirmed that once ASG condemned the land for a public purpose, it gained title in fee simple.

PROCEDURAL HISTORY

On May 25, 1994, ASG filed a complaint for trespass and injunctive relief with this court naming Meredith, Toaono Kelemete ("Kelemete"), and John Does 1-10 as defendants. That same day, ASG, in addition to the complaint, applied for a temporary restraining order, which was not issued, and preliminary injunction. On June 15, 1994, Kelemete filed a pro se answer and counterclaim. On June 22, 1994, at the hearing on the order to show cause, the court issued a stipulated temporary restraining and associated orders. On June 30, 1994, pursuant to one of those orders, Meredith and Kelemete filed a second answer by counsel.

On January 27, 1995, ASG filed a reply to Kelemete's counterclaim and moved for summary judgment. On March 1, 1995, defendants filed their opposition to summary judgment, with three supporting affidavits. On March 2, 1995, the court first granted defendants leave to file a first amended answer and several counterclaims and then heard the motion for summary judgment. The court also gave ASG the opportunity to file a further written response to issues raised by defendants' opposition to summary judgment filed the day before the hearing. On March 20, 1995, ASG filed this response.

On April 11, 1995, at the hearing on defendants' motion to continue the trial beyond April 18, 1995, defendants questioned whether this response adequately served as ASG's reply to the amended counterclaims, and the court indicated it was more than sufficient. The trial is now scheduled to begin on May 31, 1995.

SUMMARY JUDGMENT

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(c), which mirrors F.R.C.P. 56(c). In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, 369 U.S. 654 (1952)), 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, 46 (Trial Div.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 Samoan Gov't. (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).

DISCUSSION

ASG seeks an entry of summary judgment for two reasons. First, ASG asserts that there are no material facts in dispute, and second, that no legal issue exists since this court, in Meredith, 2 A.S.R.2d 66, held that title to the property vests in ASG in fee simple.

In support of their opposition to the motion for summary judgment, defendants filed the affidavits of Kelemete, Meredith, and Mafutau Kelemete.

First, defendants assert that the property ASG condemned in 1959 was not utilized until 1963, and therefore, according to the original Constitution of American Samoa, the land should revert back to the Lemeana`i family as original title holders. This assertion is legally incorrect.

A.S.C.A. § 37.2001(b), which amended § 37.2001 in 1988, states in relevant part: "If the subject land is not used for the stated public purpose within five years after condemnation it must be returned to the prior owner with all improvements." Previous to this amendment, neither the American Samoa Code nor original Constitution or the Revised Constitution contained any language that required the ASG to use condemned land within a specific term of years.

[1-2] A.S.C.A. § 37.2001(b) does not have retrospective effect. Whether a statute operates retrospectively, or prospectively only is one of legislative intent. Poston v. Clinton, 406 P.2d 623, 626 (Wa. 1965) (court applied a strict rule of construction against a retrospective operation). Even if A.S.C.A. § 37.2001(b) had retrospective effect, ASG utilized the property for the stated purpose (1) within five years after condemnation.

Second, defendants claim that the land was never conveyed to ASG and since the Lemeana`i family has cultivated crops, built structures, and otherwise occupied the property continually from before 1959 until the present, they should not be removed from the land. This is incorrect. This court in the L.T. No. 15-1959 condemnation judgment decreed that the land was "condemned in fee simple and the ownership thereof in fee simple vested in the Government of American Samoa." This judgment was upheld in Meredith, 2 A.S.R.2d at 67. Even if it is true that the Lemeana`i family has been occupying the land since 1959, it has been in trespass. ASG could have brought an action for eviction at any time and by waiting until now to do so does not give defendants any interest in the property.

Third, defendants declare that the $18,857.61 the Lemeana`i family received from ASG as compensation for the condemned portion of their land was unjust and inadequate. They claim the compensation was accepted under protest, because numerous factors were ignored in the assessment of the value of the property. Defendants, therefore, contend that the condemnation proceeding, LT-1959, was unconscionable and in violation of their constitutional right to just compensation. This argument is untimely. This court, in Meredith, 2 A.S.R.2d at 67, confirmed the condemnation judgment, which vested fee simple title to the property in ASG and awarded the Lemeana`i family $18,857.61 in compensation. This decision was affirmed on appeal in LT 23-85. Therefore, defendants' appeal rights were exhausted in Meredith.

[3] Furthermore, defendants failed to raise the issue of inadequate compensation in Meredith, and even if they had, it would be barred by res judicata. "The sum and substance of the whole doctrine [of res judicata] is that a matter once judicially decided is finally decided." Massie v. Paul, 92 S.W.2d 11, 14 (Ky. Ct. App. 1936).

Finally, defendants assert that during the 1988 gubernatorial election, Governor A.P. Lutali verbally promised to return a portion of the property to them if he was reelected. Defendants further assert that Governor Peter T. Coleman, during his term succeeding Governor Lutali, and Governor Lutali, during his present term, promised to convey a portion of the property to the Lemeana`i family under a perpetual lease. Even if these claims are factually correct, they have no legal bearing on this case.

[4] A verbal promise to convey any interest in land is not legally binding in American Samoa. A.S.C.A. § 37.0211 states in relevant part: " No agreement for the sale of real property or any interest therein is valid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged . . . ."

In addition, A.S.C.A. § 37.0210 requires that before an instrument can effectuate to pass title to any land it must first be registered with the Territorial Registrar. In this case, neither of these requirements were satisfied, and ASG is not under any legal obligation to return the land to defendants.

The Governor, pursuant to A.S.C.A. § 37.0221(a), does have the authority to approve a lease of communal land for any term not to exceed 55 years, but for such a lease to be valid, it must be, within two months of the agreement, placed in writing, approved by the Governor, confirmed under the hand and seal of the Governor, and duly registered. A.S.C.A. § 37.0221(d). In this case, none of these requirements were satisfied. Defendants do not have a valid lease executed by the Governor, and ASG is not under any legal obligation to lease the land to defendants.

CONCLUSION

Because defendants' affidavits fail to support that any genuine issues of material fact are in dispute or that any valid legal issues exist, ASG's motion for summary judgment is granted.

It is so ordered.

*********

1. The lease of said property by ASG to the Federal Aviation Administration in 1963 was found by this court to be consistent with the stated purpose for which the land was condemned in 1959. Meredith, 2 A.S.R.2d at 67.

American Samoa Gov’ t; Bradcock v.


GARY W. BRADCOCK, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa
Trial Division

CA No. 184-94

August 31, 1995

__________

[1] It is not the intent of the Government Tort Liability Act, A.S.C.A. § 43.1202 et seq., to create a four-year limitation period in which the government can be sued in tort. A party may not wait two years to file an administrative clam and then two more years to file a court case.

[2] In cases under the Government Tort Liability Act, laches analysis should take into account the overall delay in bringing the action into court, and not merely the delay in bringing the administrative claim.

[3] The statute of limitations in a suit against the government may begin to run before the filing of an administrative claim if the prospective plaintiff unreasonably delays the administrative filing.

[4] In suits against the government, the court should ordinarily limit litigants to some overall period resembling the two-year statute of limitations imposed upon litigants suing private defendants, while taking into account the extra time required for exhausting administrative remedies.

[5] If the delay in perfecting a right to sue is out of the plaintiff's control, the cause of action will accrue when the right is perfected, but if the plaintiff controls the condition, plaintiff must perfect the right within a reasonable time, which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay.

[6] When deciding whether the plaintiff perfected the right to sue within a reasonable time the court may consider not only when the administrative claim was filed, but when it could have been filed. The express purpose of this rule is to prevent the frustration of legislative intent by allowing a plaintiff to unilaterally extend the limitation period.

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

Counsel: For Plaintiff, Cheryl Crenwelge
For Defendant, Henry W. Kappel, Assistant Attorney General

Order Denying Motion for Reconsideration:

On May 30, 1995, this court denied plaintiff Gary W. Bradcock's claim for relief under the Government Tort Liability Act on the basis of laches. Bradcock now moves for reconsideration, arguing that we should strictly follow our holding in Mataipule v. Tifaimoana, 16 A.S.R.2d 48 (Trial Div. 1990) ("Mataipule"). Bradcock further argues that our decision is erroneous because we did not hear evidence regarding the reasonableness of his delay in filing his case.

DISCUSSION

This well-reasoned motion to reconsider presents an excellent illustration of our concern that, without legislative line-drawing, interpretation of the statute of limitations for government tort claims is inherently hazardous business. Bradcock v. American Samoa Gov't, supra, 28 A.S.R.2d 66, 68 n. 1 (Trial Div. 1995). Until the legislature creates separate limitation periods for filing the administrative claim and the subsequent lawsuit, it will remain difficult for the courts to vindicate legislative intent.

I. The Mataipule Rule

According to Bradcock, Mataipule stands for the principle that a tort claim against the government accrues at the time the administrative claim is denied, and the timeliness of the administrative claim is governed by common law laches doctrine. Contrary to Bradcock's contention, we did in fact apply Mataipule, although questioning its validity. For this reason, the continuing vitality of Mataipule is not an issue which would change our decision. Our application of the "laches" segment of Mataipule, however, merits additional discussion.

II. Laches

[1] In Bradcock's case, we pointed to the fact that Bradcock waited almost 10 months after denial of the administrative claim to file his court action, unlike the Mataipule plaintiff, who had the court case ready and waiting as soon as the administrative claim was denied. We made this point only to illustrate the practical absurdity of allowing a laches period of almost two years prior to the filing of the administrative claim, and then an automatic fresh two year period following the denial of the administrative claim. That interpretation of Mataipule could effectively create an unacceptable four year limitation period in which the government could be sued. This very problem was the basis for this court's later criticism of Mataipule. . . . a separate two-year limit for bringing the administrative claim could be imposed by analogy, the effect would be to give people injured by government employees four and one-half years to sue, in curious contrast to the two years given those who have been sued by private persons.

Randall v. American Samoa Gov't, 19 A.S.R.2d 111, 116 (Trial Div. 1991). The intent of the Government Tort Liability Act (A.S.C.A. § 43.1202 et seq.) is most certainly not to create a four-year limitation period in which the government can be sued in tort.

There are two rules which could potentially be used to interpret the laches analysis in Mataipule. One possibility provides a reasonable time within which the administrative claim must be filed or else the statute will accrue anyway, in effect an extension of the statute of limitations to allow for the filing of the administrative claim. The second possibility is to apply the statute of limitations by analogy.

A. Reasonable Time

[2-4] In light of the Randall court's persuasive criticism of Mataipule, laches analysis should take into account the overall delay in bringing the action into court, and not merely the delay in bringing the administrative claim. Additionally, the Mataipule court approvingly quoted language of the California Court of Appeals:

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

Mataipule, 16 A.S.R.2d at 53 (quoting Valvo v. University of Southern California, 136 Cal Rptr. 865, 869 (1977) (emphasis added)); See also Scates v. State, 383 N.E.2d 491, 493 (Ind. 1978) (cited in Mataipule, 16 A.S.R.2d at 54). The foregoing language indicates that the statute of limitations may begin to run before the filing of an administrative claim if the prospective plaintiff unreasonably delays the administrative filing. (1)

In the present case, the plaintiff delayed filing his court action for almost 10 months after denial of the administrative claim, which was too long a period in light of his 21 month delay prior to filing the administrative claim. In light of the Randall court's criticism of Mataipule, we should ordinarily limit litigants to some overall period resembling the two-year statute of limitations imposed upon litigants suing private defendants, while taking into account the extra time required for exhausting administrative remedies. (2)

B. The Statute of Limitations Applied by Analogy

[5-6] Of the eight authorities cited by the Mataipule court in support of a "reasonable time" limitation for the filing of the administrative claim, only two directly utilize the term "laches." In one of those two cases the statutory limitation period was applied by analogy without resort to equitable considerations, because the plaintiff had unilaterally delayed (for longer than the limitations period) the filing of a claim with the Commissioner, which, if denied, would have perfected his right to sue, causing the statute of limitations to accrue. Jackson v. Tom Green County, 208 S.W.2d 115 (Tex. 1948). In the other case, the relevant court recognized an exception to the rule that a statute of limitations accrues when the right to sue is perfected, where the prospective plaintiff controls a condition necessary to perfect the right and unreasonably delays the fulfillment of the condition. Wade v. Jackson County, 547 S.W.2d 371, 374 (Tex. 1977). In the present case, Bradcock's obligation to exhaust his administrative remedies before filing suit was under his control. It is intuitive from a reading of both of the aforementioned cases that when the limitation period is applied by analogy, it should not later be applied literally, effectively doubling the limitation period. The statute of limitations may be applied by analogy to guide laches analysis where the prospective plaintiff has the power to perfect his right to sue, and he/she unreasonably delays perfecting the right. If the delay in perfecting a right to sue is out of the plaintiff's control, the cause of action will unquestionably accrue when the right is perfected, but if the plaintiff controls the condition, he must perfect the right within a "reasonable time" which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay. Hamrick v. Indianapolis Humane Society, 174 F.Supp. 403, 408-09 (S.D. Ind. 1959) (cited in Mataipule, 16 A.S.R.2d at 54). When deciding whether the plaintiff perfected his right to sue within a "reasonable time" the court may consider not only when the administrative claim was filed, but when it "could have been" filed. See id. at 408. The express purpose of this rule is to prevent the frustration of legislative intent by allowing a plaintiff to unilaterally extend his/her own limitation period. Jackson at 117-18; Wade at 374.

The underlying purpose behind the Mataipule rule was not to give litigants suing the government an extended limitation period based on non-sequitur equitable considerations as Bradcock implicitly contends. Rather, it was intended to prevent the "mauling of the statute" which would result if the government were permitted to sit idly by at its option, and watch the statute of limitations run on a tort claim which was filed with the Attorney General in a timely manner. Mataipule, 16 A.S.R.2d at 50, 55.

III. Mataipule's Alternative Holding

Our alternative holding in Mataipule tolls the statute of limitations during the pendency of the administrative claim on the theory that "filing an administrative claim with the Attorney General constituted the beginning of an action within A.S.C.A. § 43.1204, as the administrative claim was not an independent action but was the first and mandatory step in plaintiff's recourse to the courts." Mataipule, 16 A.S.R.2d at 56. It is clear that Bradcock's case is further barred by a strict application of the alternative holding of Mataipule, which, in our view, is clearly valid law and takes into account the extra time required for a litigant to exhaust administrative remedies.

CONCLUSION

Mataipule essentially stands for the principle that the government may not simply delay decisions regarding timely filed tort claims while the statute of limitations runs to the detriment of the claimant. Mataipule should not be read to permit the claimant to purposely avoid the statute of limitations by failing to file his/her administrative claim until the eleventh hour, and then expect a fresh limitation period when the claim is denied. In the present case, allowing a fresh two-year period following the denial of the administrative claim would amount to judicially creating a statute of limitations of almost four years. To do so would defeat legislative intent. We therefore deny the plaintiff's motion to reconsider.

It is so ordered.

*********

1. Under the facts of the Mataipule case, the statute could have begun to run at some time prior to the filing of the administrative claim, but clearly did not expire since the administrative claim was filed within two years following the injury, and the court action was effectively filed immediately following denial of the administrative claim.

2. "The government's position effectively [and incorrectly] implies that the limitations period is not always two years but that in certain cases it is one year and nine months." Mataipule, 16 A.S.R.2d at 50.

American Samoa Gov’t v. Leiataua,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

THERESA FANUAEA GURR LEIATAUA, Defendant

High Court of American Samoa
Trial Division

CR No. 9-94
CR No. 44-94

September 18, 1995

__________

[1] In a criminal case involving fraud on a bank, the government has the burden to show that the defendant acted with the intent to injure or defraud the bank.

[2] Intent to injure or defraud a bank exists when the defendant acts knowingly and the natural result of this conduct would be to injure or defraud the bank, regardless of motive. It is not required that the bank suffer a loss or injury, since the intent of the law is to protect the bank's right to make its own decisions regarding the use of its funds. Furthermore, there exists an inherently fraudulent nature to bank loans made by officers for their own benefit.

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendant, Afoa L. Su`esu`e Lutu

Opinion and Order:

In this criminal prosecution, plaintiff American Samoa Government ("ASG") charged defendant Theresa Fanuaea Gurr Leiataua ("Leiataua") with two counts of larceny or fraud, in violation of A.S.C.A. § 28.0111. These acts were allegedly committed from September to October 1992, and in January 1993, when Leiataua was an officer of the Development Bank of American Samoa ("DBAS"). The lengthy bench trial commenced on May 23 and concluded on June 5, 1995. Leiataua and counsel for both parties were present throughout the trial. The court, having heard testimony and considered the evidence, and pursuant to T.C.R.Cr.P. 23(c), makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Leiataua was employed as the Vice President for Loans at DBAS in July 1988. In January 1993, in accordance with A.S.C.A. § 28.0103(b), Leiataua was appointed President of DBAS by the Governor of American Samoa and confirmed by the Senate. Prior to her employment by DBAS, she worked for the American Savings and Loan in California for about 13 years, including experience as an assistant branch manager for several years and as a branch manager for the final two years, 1985-1987.

DBAS makes direct home loans, whereby it pays the invoices submitted by the suppliers of the building materials and the contractors performing the construction. DBAS further guarantees the payment of direct home loans made in this manner for residential construction by the local commercial banks, either the Amerika Samoa Bank ("ASB") or the Bank of Hawaii ("BOH").

On December 27, 1990, while Leiataua was still the Vice President for Loans, she submitted a request to DBAS for a direct loan of $75,000 for the construction of a residence on the Gurr family's land in the area known as Maloata on the north shore near the western end of Tutuila Island, American Samoa. This amount is the maximum for both direct home loans and guaranteed home loans under DBAS' loan policies.

Leiataua's loan file at DBAS contains a letter, dated June 12, 1991, to Leiataua, stating that on March 27, 1991, DBAS' Board of Directors had approved her "application for a guaranteed home loan," subject to providing adequate security by a mortgage of the land and residence and to obtaining credit approval by either ASB or BOH. This form letter calls for Leiataua's signature as the Vice President for Loans and, perhaps for that reason, is unsigned either by her or anyone else.

More importantly, the minutes in evidence of DBAS's Lending Committee and Board of Directors for 1991 do not show any action taken by either body on Leiataua's loan application. Both sets of DBAS's bylaws in effect during this period require the Lending Committee to examine loan applications, make recommendations to the Board for action on the applications, and require the Board to examine and record in minutes the action it takes on all loan applications.

Leiataua claims that during May through July 1991, the Board imposed a freeze on disbursing funds for direct home loans, but the minutes in evidence of the Board for 1991 do not record that the Board either imposed or lifted any freeze on such disbursements. In any event, for that or some other reason, Leiataua decided to apply for a separate direct home loan of $75,000 from ASB. She submitted this application on July 15, 1991, more than six months after her loan application to DBAS. ASB's Lending Committee approved the loan in this amount on July 24, 1991, with terms at 11.5% interest per annum and 120 monthly installment payments of $1,054.46.

On the following day, July 25, 1991, Leiataua signed a "Master Note for Multiple Advances" with ASB in the principal amount not to exceed $75,000, maturing on January 21, 1992, and end-of-month interest payments at the rate of 11.5% per annum on the unpaid balance of the amounts advanced. (1)

Inexplicably under the evidence, an ASB real estate lending officer then permitted Leiataua to draw down the entire loan amount within seven weeks, without any underlying invoices or other documentation of actual construction expenses for the house.

On July 25, 1991, Leiataua was allowed to draw $61,190 from the ASB loan, of which $1,190 was used to pay the loan fee and attorney's fee and the remaining $60,000 went directly by cashier's check to Leiataua. (2) This same day, Leiataua endorsed the $60,000 check and gave it for safekeeping to her brother Bernard Gurr ("B. Gurr"), who was then the chief executive officer of the American Samoa Government Employees Federal Credit Union ("ASGEFCU"). B. Gurr deposited the check proceeds in a share account in his name at ASGEFCU and withdrew $2,000 from the account for Leiataua's immediate use and was to hold the $58,000 balance for her. That night, she departed American Samoa on a trip to Los Angeles.

Apparently Leiataua gave the $2,000 to a cousin in California to purchase furniture. Despite telling H.G. Flores ("Flores"), Executive Vice President of ASB, in a February 4, 1992, meeting, that during this trip, she purchased building materials for her house and stored them with her brother, she actually merely priced the materials. She also told Flores that the two $500 draws were also used to purchase materials, and that the last draw was used for interest payments during the construction phase of the loan, shipment of building materials to American Samoa, and land grading. She further told him that the grading was not yet completed, because only one operator would take the needed heavy duty equipment to her remote village, but in actuality his equipment had broken down and then was still in disrepair.

Meanwhile, B. Gurr, instead of safeguarding Leiataua's loan funds, rapidly depleted the $58,000 to his personal ends. By September 30, 1991, just two months after receipt of the funds, he had spent the entire amount, except for a $148.86 share dividend credited to the account on that date. On October 31, 1991, he withdrew this meager remaining amount, leaving the account with a zero balance.

Leiataua deposited the proceeds of the remaining three cashier's checks in her personal checking account at BOH. These funds were commingled with funds from her paychecks and other sources. She spent some of these funds on loan payments to ASB, and for furniture and cabinets for her house, but most of these funds were spent on personal transactions unrelated to the construction of her house, and none of the funds were spent on building materials. By February 13, 1992, the balance in this personal account was reduced to $156.94.

On October 23, 1991, Leiataua submitted an application to ASG's Development Planning Office ("DPO") for a land use and building permit for her proposed residence. (3)

DPO issued the permit on November 1, 1991, but the original was never entered into evidence. Despite the issuance of the permit, no residence or other structure has been constructed on the site. The work done was limited to excavating an access road from the main road and some site clearing and grading. On July 9, 1993, DPO inspectors noted that the site has since become revegetated. Leiataua cites the 1991 DPO permit's fourth condition as the reason for the lack of further construction. This condition, which appears in DPO's official copies, postponed construction for two years after leveling the site. (4)

In January 1992, Leiataua resolved to order the building materials and enlisted the assistance of her brother Peter Gurr ("P. Gurr"). She explained that despite the construction delay condition, and her mother's reluctance, she was still hopeful that with the concurrence of her brothers and sister, she could persuade her mother to allow construction of her residence elsewhere on the family's land at Maloata.

At her request, B. Gurr provided $50,000. (5)

Cloaked with his chief executive officer's position, B. Gurr either directly or in some manner indirectly used the ASGEFCU savings account of Lisona Leiataua, Leiataua's husband, to fund this purpose. (6) In addition, P. Gurr contributed $40,000, $25,000 for Leiataua's order due to loans she had previously made to him and $15,000 for his own order. He obtained these funds from an insurance settlement paid for storm damages occurring during Hurricane Val in December 1991.

Recruiting Jack Yamaguchi, a stateside friend of P. Gurr, an order for building materials, totaling $85,141.89, including freight and other charges, was processed by a Washington state supplier on or about February 26, 1992. The materials were consigned to T & T, Inc. ("T & T"), to the attention of P. Gurr, who was then this company's general manager. They arrived in American Samoa on April 14, 1992, and upon payment of the import excise tax by T & T, were released to P. Gurr on or about April 24, 1992.

P. Gurr stored Leiataua's materials at T & T's premises and took his materials elsewhere. Later, due to Leiataua's inability to proceed with construction of her residence, the decision was made to sell her materials before they deteriorated and in light of the demand for them created by Hurricane Val. Most, if not all of these materials were sold by the end of February 1993 to several local building materials suppliers and some buyers who passed by T & T's premises. Specifically, Tasi Asuega, T & T's principal owner and a Gurr relative, stated that he bought a large amount, paying about $10,000 in cash and still owing about $20,000, which he intended to pay by allowing Leiataua to use his heavy equipment when she started construction. (7)

On June 7, 1993, Leiataua told DBAS' auditors that prior to ASB's contacts with her in July 1992 concerning her loan with ASB, she sold the materials purchased off-island back to suppliers before they rotted and deposited the proceeds in a six-month certificate of deposit. On the same day, however, she told the attendees at DBAS' Executive Committee meeting that she sold the materials to local suppliers, at a profit, and the funds were deposited in a savings account at the American Savings and Loan in Buena Park, California. In actuality, Leiataua received little, if any, of the sales proceeds.

On February 6, 1992, Flores, in his capacity as Vice President of ASB, and concerned about the absence of construction or building materials, and lack of insurance covering loss of the materials, advised Leiataua in writing that ASB required her: (1) to provide an insurance policy of at least $63,000 covering loss of the materials she had purchased for the residence, naming ASB as the loss payee, and to state the exact location of the materials; and (2) to open a savings account at ASB in the minimum amount of $30,356.18, representing the $11,862.18 loan advance she received on September 12, 1991, plus $18,494, the difference between the loan amount and total estimated construction cost. The funds were to be transferred immediately from an existing savings account or later when an existing certificate of deposit matured, if she advised ASB of that maturity date.

Leiataua disclaimed receipt of this letter, even though it was correctly addressed. In any event, she admits to receipt of a later letter, dated July 21, 1992, in which Flores notified Leiataua that she had not complied with the February 6, 1992, directions and was also delinquent in her loan payments, and had until August 6, 1992, to comply with the requests and bring her loan payments current. Leiataua, in response to receipt of this notice, contacted Flores and told him that her loan payments to ASB were current through July 1992. (8)

In September 1992, Flores once more notified Leiataua that the loan was still in default, but she again refuted the delinquency. Frustrated by ASB's stance, Leiataua decided to free herself from this loan. Other factors, however, were surely involved. Her residence was not constructed or under construction. Her land use and building permit would expire on October 31, 1992, and perhaps, in any event, she was stalled from construction by government officialdom until November 1, 1993. More important still, she did not have any building materials. Thus, she could not comply with ASB's demand to know the location and be insured against loss of the materials, and she realized that her good standing with ASB was in serious jeopardy and coming to an end. However, she was without immediate means to repay ASB. She did not have in savings or elsewhere sufficient proceeds, if any at all, from her brother P. Gurr's sale of any building materials she may have purchased in early 1992. She knew that she had spent a substantial portion of the ASB loan proceeds on items unassociated with construction of her proposed residence. Most important, she knew that she had insufficient funds at ASGEFCU to buy out her ASB loan. She either knew that her brother B. Gurr had embezzled most of her ASB loan proceeds, or at the very least she truly believed that these purchase funds came from her ASB loan proceeds still in B. Gurr's hands for safekeeping. She could also obtain more advantageous loan terms from DBAS--a term of 20 years, with 11% interest and monthly payments of approximately $774, compared to 10 years, with 11.5% interest and monthly payments of approximately $1,054 under her ASB loan.

Shortly after her contact with Flores in September 1992 regarding the status of her ASB loan, Leiataua asked Manu Meredith ("Meredith"), who was then DBAS's President, to approve and direct purchase of her ASB loan by DBAS. Apparently, on the strength of the loan approval letter of June 12, 1991, or his knowledge or belief that by then that Leiataua's application for a direct DBAS loan had been properly approved, Meredith sent written directions on September 30, 1992, to DBAS's legal secretary for preparation of the documents needed to purchase Leiataua's loan from ASB.

DBAS's personnel completed the purchase of the ASB loan on October 2, 1992, as Meredith had instructed, for a purchase price of $72,308.95. Leiataua signed an installment note in the principal amount of $75,000 and a payroll deduction authorization, both dated October 2, 1992, a mortgage of the land and improvements as collateral, dated December 21, 1992, and various other related documents.(9)

DBAS's purchase of the ASB loan is questionable because Leiataua did not submit an application specifically for the loan purchase and a large amount of time had elapsed since her earlier 1991 application. Meredith either ignored the lapse of time because the apparent loan approval of Leiataua's earlier 1990 loan application or did not consider it necessary to update the customary support documentation. (10) Also, neither DBAS's Lending Committee nor Board of Directors reviewed and approved the loan purchase. (11) The 1991 loan approval, assuming it was actually granted, was for a different purpose, a guaranteed home loan, and was inherently flawed, as the application was for a direct home loan and the unsigned record of the approval was for a guaranteed home loan.

On January 22, 1993, Bernadette Fruean ("Fruean"), a loan interviewer and processor at DBAS, prepared a check to reimburse Leiataua in the amount of the remaining balance of Leiataua's loan from DBAS. One of Fruean's duties is to prepare checks in payment of invoices issued for materials and labor provided to DBAS's direct home loan borrowers. Fruean found a disbursement record in Leiataua's loan file showing the undisbursed balance to be $2,691.05 and prepared the check in the amount of the balance, even though she did not have a supporting invoice.

On the same day, Leiataua and another authorized official of DBAS signed the check, as was necessary to negotiate the check, and Leiataua endorsed and deposited the proceeds of the check in an account at ASB, which she apparently maintained despite her dissatisfaction with ASB's management.

On January 26, 1993, Fruean obtained from Makisi's Home Improvement Center, with the help of a friend employed there, a so-called "pro-forma invoice--quotation only" for Leiataua's purchase of building materials. The amount of this invoice, $2,701.45, exceeded the loan balance which was disbursed by the January 22, 1993, check. The invoice form was designed to permit customers to obtain advances from their home construction loans and would be replaced by a payment receipt when the customer made actual payment and took delivery of the materials. However, at some point during this transaction, someone noted "Paid Cash" on this pro-forma invoice and enabled its use in back-up support of loan balance disbursement. Although Makisi's did not in fact sell or deliver materials to Leiataua, the pro-forma invoice was used for this purpose.

Contradicting Fruean's testimony, Leiataua denied instigating either the loan balance check or false invoice, or participating in the latter in any manner. Fruean was not a strong witness. She was hesitant and uncertain at times, made partially inconsistent prior statements, and may have committed some acts which bring her truthfulness into question. On this basis, we will give Leiataua the benefit of any doubts. She may not have initiated either of these transactions. However, she admitted that the same legal secretary who prepared the loan purchase documents asked her if she wanted to be reimbursed for the amount of the loan balance, and that she did not purchase any materials justifying reimbursement. Unquestionably, Leiataua signed the loan balance check and received the proceeds and knew that the false invoice was used to support the disbursement. This disbursement is on the same footing as the purchase of the loan from ASB.

CONCLUSIONS OF LAW

Appropriate to this case, the elements of the offense charged in CR No. 44-94 are:

1. on or about September and October 1992,
2. in American Samoa,
3. the defendant,
4. then an officer of DBAS,
5. with intent to injure or defraud DBAS, or any other person,
6. embezzled or misapplied moneys or funds of DBAS, to wit: disbursement of DBAS's funds, without proper authorization, to purchase her direct construction loan from ASB.

The elements of the offense charged in CR No. 9-94 are:

1. on or about January 1993,
2. in American Samoa,
3. the defendant,
4. then an officer of DBAS,
5. with intent to injure or defraud DBAS,
6. embezzled or misapplied moneys or funds of DBAS, to wit: disbursement of DBAS's funds, without proper authorization, as a reimbursement to her, or made a false entry in DBAS's records or performed another fraudulent act, to wit: use of a false invoice for the purchase of building materials.

Indisputably, as to both charges, ASG has proven the first four elements beyond a reasonable doubt. The court is equally satisfied that ASG has proven the sixth element of each offense beyond a reasonable doubt.

Undeniably, Leiataua caused DBAS to expend its funds as a direct loan to her to purchase her direct home loan from ASB. DBAS' Lending Committee and Board of Directors are required to approve this loan, under DBAS's bylaws and did not do so. This disbursement was clearly a misapplication of DBAS's funds.

Undoubtedly, Leiataua participated in the disbursement of DBAS' funds reimbursing her for a purchase of building materials, which she did not in fact buy, and supported by placing in DBAS's records a fictitious invoice. This, too, was a misapplied expenditure of DBAS's funds.

The only genuine issue before the court, with respect to both counts, is whether or not Leiataua acted with the requisite intent to injure or defraud DBAS.

[1-2] In addition to proving that Leiataua committed the act of larceny, fraud, or misapplication of funds, ASG has the burden to show that she acted "with the intent to injure or defraud the bank." A.S.C.A. § 28.0111, which mirrors 18 U.S.C. §§ 656, 657. Intent to injure or defraud a bank exists when the defendant acts knowingly and the natural result of this conduct would be to injure or defraud the bank, regardless of motive. United States v. Krepps, 605 F.2d 101, 104 (3rd. Cir. 1979). It is not required that the bank suffer a loss or injury, since the intent of the law is to protect the bank's right to make its own decisions regarding the use of its funds. United States v. Cauble, 706 F.2d 1322, 1355 (5th Cir. 1983). Furthermore, there exists an inherently fraudulent nature to bank loans made by officers for their own benefit. United States v. Krepps, 605 F.2d at 106.

Considering Leiataua's position as the Vice President for Loans with DBAS at the time of the loan purchase, in addition to her actions in securing the loan and the misapplication of the funds for purposes other than construction of a residence, we conclude that the evidence shows beyond a reasonable doubt that she committed these acts with the requisite intent to injure or defraud, as required by A.S.C.A. § 28.0111.

The people of American Samoa are entitled to have their development bank, as a public financial institution, managed with impeccable integrity. The events underlying the instant charges show a decided failure to meet this standard. These events are marked by improper procedures and faulty documentation, by the lack of exercising effective internal controls, and above all by a bank official's intolerable use of insider advantage.

DECISION

Leiataua is guilty of both counts of larceny and fraud in violation of A.S.C.A. § 28.0111, as charged in the consolidated informations.

Leiataua is continued on bail in the sum of $10,000, pending sentencing, on the condition that she is present before the court whenever required. The Attorney General shall retain her travel documents. ASG's stop order prohibiting her departure from American Samoa, unless by prior court order, remains in effect.

Leiataua shall be present before the court for sentencing on October 20, 1995, at 9:00 a.m. The presentence report will be completed and made available to the court and counsel not later than October 18, 1995.

It is so ordered.

*********

1. This multiple advances note was apparently replaced on September 12, 1991, the day of the final draw completing the advances of the entire $75,000, when Leiataua signed a promissory note to ASB and a mortgage of the land and anticipated residence to secure payment of the note. This promissory note was in the principal amount of $75,000, with interest at 11.5% per annum, and provided for 120 monthly installment payments of $1,054.46, commencing October 1, 1991.

2. Leiataua also received cashier's checks from ASB for $500 on August 30, 1991, $500 on September 5, 1991, and $11,862.18, apparently the remaining balance with earned interest, on September 12, 1991.

3. On July 18, 1994, Leiataua submitted an application to DPO for a renewed land use and building permit. This application is on hold, pending clarification of the record titleholder of the building site. Although not recorded in DPO's official file in evidence, Leiataua claimed that she first sought a permit in June 1991, but DPO never responded. Hence, she filed again in October 1991. She further claimed that she resubmitted an application in 1993. Again, this application is not reflected as such in the DPO file, except possibly by inference from a DPO inspection site visit in July 1993. These three applications are not significant to our decision, except to illustrate Leiataua's continuing desire throughout the time frame involved to construct a residence in Maloata, an intention we do not question.

4. The inclusion of the fourth condition in the permit is suspect. The original permit, which is usually given to the applicant, is not in evidence, and the DPO official who issued the permit does not recall whether the fourth condition was initially included. The first three special conditions are regularly included in permits, while the substance of the fourth condition is within the expertise of structural engineers and not DPO planners. The permit routinely required construction to begin within 120 days and expired in one year, on October 31, 1992, which is inherently inconsistent with the two-year postponement in the fourth condition. Also, the type used for the fourth condition is different and not aligned with the first three conditions. These circumstances suggest that the fourth condition was added later. However, no evidence shows that Leiataua or anyone acting on her behalf had surreptitious access to her DPO file at any relevant time. Thus, although worth mentioning, the suspicion is not persuasively established, and it is not a factor in our decision.

5. In essence, Leiataua claimed that in January 1992, she thought the $50,000 came out of the $58,000, which she believed B. Gurr was still holding for her, and that although she asked him about the $58,000 at various times, she did not learn about his expenditure of these funds until after this prosecution was commenced. We do not find her testimony on this late discovery credible, and while she may still have been in the dark at the beginning of 1992, we are convinced that she knew or should have known about B. Gurr's waste of the $58,000 by the summer of 1992.

6. Leiataua claimed that she was unaware of the source of the $50,000 until 1994, but it appears that she may have learned about this source about or after September or October 1992 when her husband applied for a loan of $90,939.46 from ASGEFCU, apparently to consolidate existing loans. In the application, he listed his present occupation as a Vice President of DBAS, for the previous six years, with a salary approximating Leiataua's recompense. During the trial, she still disclaimed any prior actual knowledge of this loan. ASGEFCU gave Leiataua's husband final notice of his default of this new loan in July 1993.

7. P. Gurr denied that he owned and operated a business under the name "Pete Gurr Lumber Company." The documentation in evidence, however, apparently related to the sales of Leiataua's materials at T & T bears references to this business. The total amount of sales shown in these documents is $31,868.82. Tasi Asuega's purchases account for $11,868.82 of this amount.

8. ASB also notified Leiataua, by letter dated January 13, 1992, that her loan was delinquent due to nonpayments in October and November 1991. Leiataua returned ASB's letter with her note appended, denying the delinquency, and enclosing her payment book. According to Leiataua, ASB did not respond to her note, and she assumed that ASB corrected its records. Apparently, other than her meeting with Flores on February 4, 1992, Leiataua next received communication from ASB about the loan when she received Flores letter of July 21, 1992.

9. She apparently made loan payments until at least June 7, 1993, when DBAS placed her on administrative leave with pay, and probably made payments until she left DBAS's employment at a later date.

10. As pointed out by DBAS's independent auditors as a result of their inspection of Leiataua's loan file in 1993, the file lacked current credit information when DBAS purchased the ASB loan, such as verification of deposits from other banks, documentation of hazard and life insurance, copies of last paid utilities bills, and a copy of her last pay stub.

11. On June 7, 1993, Leiataua told the independent auditors and later members of the DBAS's Board of Directors attending an Executive Committee meeting, which was called to review, among other matters, Leiataua's loan file with her, in essence, that she thought it unnecessary to go through the loan underwriting process again. She also told the auditors that she thought the DBAS loan was adequately secured by the site for her residence and her life insurance benefit provided by DBAS.

American Samoa Gov’t v. Fairholt,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ROBERT FAIRHOLT, Defendant

High Court of American Samoa
Trial Division

CR No. 4-95

May 9, 1995

__________

[1] In the interest of judicial economy, we place the burden on defendants to give the court sufficient reason to continue trial.

[2] The court will grant severance only if there is a serious risk that a joint trial would compromise a specific trial right to one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence.

[3] T.C.R.Cr.P. 14 does not give one co-defendant the standing to raise the issue of prejudice due to joinder on behalf of his co-defendants. If one co-defendant's testimony might prejudice others, it is their decision whether or not to move for a severance.

[4] The most important consideration in assessing prejudice due to joinder is whether the court can reasonably expect a jury to differentiate between the evidence against each defendant.

[5] In a joint trial, co-defendants have the right to refuse to testify based on their privilege against self-incrimination.

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

Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant, Brian M. Thompson

Order Denying Motions for Continuance and Severance:

PROCEDURAL HISTORY

On March 6, 1995, plaintiff American Samoa Government ("ASG") filed an information charging Samoa Alefosio, Raymond Schwenke, Asuele Tiumalu, and Robert Fairholt ("Fairholt") each with one count of assault in the first degree (1) in connection with the beating of Taga`imamao Masaniai ("Masaniai") on or about February 26, 1995. At the arraignment on March 7, 1995, Fairholt and his co-defendants, each represented by counsel, pleaded not guilty and requested a jury trial. Trial by jury was set on May 16, 1995.

On April 28, 1995, and May 3, 1995, respectively, Fairholt filed a motion for continuance of his trial and a motion for severance pursuant to T.C.R.Cr.P. 14. On May 4, 1995, ASG filed its opposition to Fairholt's motions. That same day, the motion for continuance and the motion for severance came regularly for hearing and all parties were represented by counsel.

DISCUSSION

I. Motion for Continuance

Fairholt requests this court to continue the trial date for 90 days for two reasons. First, Fairholt initially claimed that Masaniai is currently off-island and a continuance is necessary in order to obtain his statement. This is now factually incorrect. As ASG points out, Masaniai has returned to American Samoa and may be contacted by Fairholt at any time prior to trial. Moreover, Masaniai's present inability to offer much information, due to his current medical condition and unconscious and intoxicated state on the night of the incident, further diminishes the importance of this issue.

Second, Fairholt argued for a continuance in order to carry forward the services being rendered by his part-time investigator. This reason is not compelling. Fairholt has failed to point out to the court any specific leads he is currently following that would require additional time. Without this information, we cannot find that his request for additional time is meritorious. If this court granted a motion for continuance every time a defendant simply alleged an ongoing investigation, without offering a sound basis, defendants would be able to postpone trials indefinitely.

[1] In the interest of judicial economy, we place the burden on defendants to give the court sufficient reason to continue trial. Fairholt has failed to meet this burden, and we therefore deny his motion.

II. Motion for Severance

[2] Fairholt requested this court to sever his trial from that of the three co-defendants. T.C.R.Cr.P. 14 provides:

If it appears that a defendant or the government is prejudiced by a joinder of . . . defendants in a complaint or an information or by such joinder for trial together, the court may . . . grant severance of defendants or provide whatever other relief justice requires.

According to the foregoing language, we should grant severance of defendants "only if there is a serious risk that a joint trial would compromise a specific trial right to one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534 (1993) (construing F.R.Cr.P. 14, which essentially mirrors T.C.R.Cr.P. 14).

[3] The first ground Fairholt offered in support of severing his case from that of the co-defendants is the likelihood that joint defendants will raise antagonistic defenses. Fairholt plans to argue at trial that he attempted to protect the victim from the attack of the co-defendants. Fairholt submitted that mutually exclusive defenses exist when acquittal of one co-defendant necessarily calls for the conviction of others. United States v. Tootick, 925 F.2d 1078, 1081 (9th Cir. 1991) (citing United States v. Adler, 879 F.2d 491, 497 (9th Cir. 1988)). In applying this standard, Fairholt's anticipated testimony that he did not physically attack Masaniai and attempted to prevent the fight, neither automatically compels the conviction of any of the co-defendants nor deprives them of their defenses. Furthermore, we do not interpret Rule 14 to give Fairholt the standing to raise this argument on behalf of his co-defendants. If Fairholt's testimony might prejudice them, it is their decision whether or not to move for a severance. Additionally, in the co-defendants' statements given to the police, at least one of them admits to striking the victim, tending to corroborate Fairholt's anticipated testimony. Accordingly, we do not find a serious risk of antagonistic defenses at trial.

[4] Fairholt further argued for a severance of his case due to the varying degrees of culpability of the co-defendants. Fairholt claims that he will be prejudiced if tried with more culpable defendants. The most important consideration in assessing such prejudice is whether the court can reasonably expect a jury to differentiate between the evidence against each defendant. United States v. Sherlock, 962 F.2d 1349, 1360 (9th Cir. 1989). We expect the jury in this case to easily differentiate between the evidence against Fairholt versus the other evidence in the case. This case consists of only one victim, one count, and all the relevant facts occurred out of the same sequence of events at a single location.

The United States Supreme Court has recognized a "pragmatic" rule that "juries are presumed to follow their instructions." Richardson v. Marsh, 481 U.S. 299 (1987). In light of the simplicity of the circumstances in the present case, we hold that any potential problems with joinder of defendants in this case would be better cured with a jury instruction than with outright severance.

[5] Finally, Fairholt contended that he needs a separate trial in order to subpoena his co-defendants to elicit exculpatory evidence. In a joint trial, co-defendants have the right to refuse to testify based on their privilege against self-incrimination. Rev. Const. Am. Samoa, Art. I, § 6; U.S. Const. Amend. V. We find that the co-defendants' written statements to the police describing their version of the incident is sufficient to satisfy Fairholt's interest in the co-defendants' testimony.

ORDER

For the above reasons, we hereby deny Fairholt's motion for continuance and motion for severance.

It is so ordered.

*********

1. A.S.C.A. § 46.3520(a) states in part that a person commits the crime of assault in the first degree, a class B felony, if "he knowingly or purposely causes serious physical injury to another person."

American Samoa Gov’t v. Estate of Fuimaono Tuinanau,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ESTATE OF FUIMAONO TUINANAU, SAPATI FUIMAONO,
ESTATE OF ISUMU LEAPAGA, TUI TULIMASEALII,
MATIUA TULIMASEALII, TAPUOLO TANIELU, IONA LAINEI,
ETI LEFEILOAI, FEAGI LEFEILOAI, and JOHN DOES 1-10, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 30-94

September 5, 1995

___________

[1] A collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective.

[2] A.S.C.A. § 37.2001(b), which requires the government to return condemned land if not used for its stated purpose within five years after condemnation, does not have retrospective effect.

[3] Whether a statute operates retrospectively or prospectively only is one of legislative intent.

[4] Title to public premises cannot be acquired by adverse possession.

[5] After eviction, former possessors of land are entitled to remove fixtures and possessions, but they are not entitled to gain compensation for the value of their improvements, unless they are good faith possessors.

[6] A good faith possessor is one who makes improvements on land in the honest belief that he is the owner, whereas knowledge of an adverse claim usually prevents someone from being a good faith possessor.

[7] A prevailing plaintiff in an action for trespass to real property is always entitled at least to nominal damages, even in the absence of harm or plaintiff's failure to prove compensatory damages.

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendants Estate of Fuimaono Tuinanau, Sapati Fuimaono, Tapuolo Tanielu, Eti Lefeiloai, and Feagi Lefeiloai, Charles V. Ala`ilima
For Defendants Estate of Isumu Leapaga, Tui Tulimasealii, and Matiua Tulimasealii, Afoa L.S. Lutu

Order Granting Motion for Summary Judgment:

BACKGROUND

This action was brought by plaintiff American Samoa Government ("ASG") to evict defendants from a 74.25 acre plot of land known as Plot 3 ("the premises") located in Tafuna, American Samoa.

ASG now plans to construct several public facilities on the premises in the area where defendants have constructed houses and other improvements. ASG notified defendants to vacate this area and remove their houses, but they continue to occupy the premises, contending that ASG does not have legal title to the premises.

The premises were included in the eminent domain proceedings to acquire land for development of the Pago Pago International Airport in Tafuna. First, in land ownership proceedings, LT 16-1957 (Apr. 11, 1958), this court determined that the Fagaima family, who is not a party to this action, owned the premises. Then, in the condemnation proceedings, LT 15-1959 (Dec. 28, 1959), ASG obtained fee simple title to approximately 550.83 acres, which included the premises. This condemnation, which had the legal effect of transferring title to ASG, was affirmed on appeal in AP No. 11-1960 (May 31, 1960). On January 12, 1960, ASG paid Punefu Siania $13,476.86, on behalf of the Fagaima family, as compensation for the premises.

Defendant Isumu Leapaga ("Isumu") challenged the condemnation in this court, which confirmed the validity of the condemnation proceeding and granted summary judgment on behalf of ASG. American Samoa Gov't v. Isumu, 4 A.S.R. 141 (Land & Titles Div. 1974). (1)

PROCEDURAL HISTORY

On November 23, 1994, ASG filed a complaint for trespass and injunctive relief with this court naming Sapati Fuimaono ("Sapati"), Tapuolo Tanielu ("Tanielu"), Tui and Matiua Tulimasealii (collectively "Tulimasealii"), Isumu, Iona Lainei ("Lainei"), Eti and Feagi Lefeiloai (collectively "Lefeiloai"), and John Does 1-10 as defendants. On December 28, 1994, Isumu and Tulimasealii filed an answer. On December 30, 1994, Sapati, Tanielu, and Lefeiloai moved for joinder of the Estate of Fuimaono Tuinanau ("the Fuimaono Estate") as a necessary party defendant, pursuant to T.C.R.C.P. 19(a). On February 24, 1995, we granted this motion and issued the written order on April 18, 1995, the same day counsel submitted it. On May 12, 1995, the Fuimaono Estate, Sapati, Tanielu, and Lefeiloai filed an answer.

On May 18, 1995, ASG filed a motion for summary judgment with accompanying affidavits against all defendants other than Lainei, who has not yet filed an answer or otherwise appeared in this action. Lainei is not included when defendants are generically referenced below. On July 26, 1995, Isumu and Tulimasealii filed a motion in opposition to summary judgment. Two days later, the motion came regularly for hearing, and all parties concerned were represented by counsel.

During this hearing, the court pointed out that Isumu is also deceased and his Estate should be joined as party defendant in lieu of Isumu. No counsel objected to this procedural step. Thus, on the court's own motion, we will now join the Estate of Isumu Leapaga ("the Isumu Estate") as a necessary party defendant in substitution of Isumu.

STANDARD OF REVIEW

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(c), which mirrors F.R.C.P. 56(c). In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, 369 U.S. 654 (1952)), 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, 46 (Trial Div. 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).

DISCUSSION

I. ASG is Fee Simple Title Holder

Defendants claim that the premises were never conveyed to ASG and since they have cultivated crops, built structures, and otherwise occupied the premises continually for over 50 years, they should not be removed from the premises. This is incorrect.

This court, in the L.T. No. 15-1959 condemnation judgment, decreed that the land involved, including the premises, was "condemned in fee simple and the ownership thereof in fee simple vested in the Government of American Samoa." This judgment was affirmed in A.P. No. 11-1960 and was further upheld in Isumu, 4 A.S.R. 141 (granting summary judgment on behalf of ASG in an action to evict Isumu, Fuimaono, and others from the premises), Meredith v. American Samoa Gov't, 2 A.S.R.2d 66 (Land & Titles Div. 1985), aff'd, AP 23-85 (1986), and American Samoa Gov't v. Meredith, supra, 28 A.S.R. 10 (Land & Titles Div. 1995). "[O]nce land is condemned for a public purpose, title vests in the government in fee simple." Meredith, 2 A.S.R.2d at 67.

Even if defendants have occupied the premises for many years, they have been trespassers, and their refusal to accept these judgments does not give them any interest in the premises.

II. Res Judicata

Defendants' assertion that they have a legal interest in the premises is barred by res judicata. "The sum and substance of the whole doctrine [of res judicata] is that a matter once judicially decided is finally decided." Massie v. Paul, 92 S.W.2d 11, 14 (Ky. 1936). As discussed above, several cases over the past 35 years have established ASG as fee simple title holder of the premises. Specifically, AP No. 11-1960 affirmed the condemnation judgment and barred any further action by res judicata.

The Isumu Estate and Tulimasealii argue that they deserve to have a day in court since Isumu, 4 A.S.R. 141, which in part evicted Isumu from the premises, was decided on summary judgment. The purpose of summary judgment is to determine whether or not any genuine issues exist and "not to cut litigants off from their right of trial if they really have issues to try." Sartor v. Arkansas Gas Corp., 321 U.S. 621, 627 (1943). In Isumu, this court granted summary judgment because no genuine issues of material fact existed, and for the court to conduct a trial without such issues would only hinder judicial economy and prejudice ASG.

[1] The Fuimaono Estate, Sapati, and Lefeiloa`i argue that the LT No. 15-1959 condemnation proceeding was inadequate because it lacked notice and failed to follow proper procedures. This claim is identical to the issue raised in Isumu, where the court held that the claim is not only unsupported by facts or law, but is also improper because "a collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective." Id. at 143.

III. Use of Land for Stated Purpose

The Isumu Estate and Tulimasealii assert that even if ASG legally condemned the premises in 1959, it should revert back to the original owner since ASG did not utilize the premises for the stated purpose in accordance with A.S.C.A. § 37.2001(b). This assertion is legally incorrect.

Although A.S.C.A. § 37.2001(b) forces ASG to return condemned land if not used for the stated public purpose within five years after condemnation, it is not applicable in this matter because it was not enacted until 1988, when § 37.2001 was amended to include this requirement. Previous to this amendment, neither the American Samoa Code nor the original Constitution of American Samoa nor the Revised Constitution of American Samoa contained any language that required the ASG to use condemned land within a specific term of years.

[2-3] Moreover, A.S.C.A. § 37.2001(b) does not have retrospective effect. Whether a statute operates retrospectively or prospectively only is one of legislative intent. Poston v. Clinton, 406 P.2d 623, 626 (Wash. 1965) (court applied a strict rule of construction against a retrospective operation). Because A.S.C.A. § 37.2001(b) has no controlling effect over the 1959 condemnation judgment, ASG is not required to return the land to the original owners. For the sake of discussion, even if section 37.2001(b) applied, the premises would revert back to the Fagaima family and not the defendants.

IV. Adverse Possession

Defendants assert that even if the prior court decisions are valid, title to the premises has transferred to them by adverse possession. This claim is without merit.

[4] It is a generally recognized principal of law that title to public premises cannot be acquired by adverse possession. Kempner v. Aetna Hose, Hook & Ladder Co., 394 A.2d 238, 239 (Del. 1978). A.S.C.A. § 37.0120(a) permits title to confer by adverse possession to a party who has had "actual, open, notorious, hostile, exclusive and continuous occupancy" for 30 years, but this statute does not apply to land owned by ASG, because the statute of limitations for adverse possession does not run against the government. Anderson v. Vaivao, 21 A.S.R. 2d 95, 105 (App. Div. 1992).

V. Verbal Promises

An affidavit by Emma Randall, Isumu's daughter, accompanied the opposition to a summary judgment by the Isumu Estate and Tulimasealii and claimed that Governor A.P. Lutali, on three separate occasions, promised to return the premises to Isumu or his heirs as the rightful owner. These promises are not based on valid consideration and are unenforceable.

"[A] promise made without supporting consideration is unenforceable." American Samoa Gov't v. Meredith, supra, 28 A.S.R. 92, 99 (Land & Titles Div. 1995) (quoting Powers Restaurants, Inc. v. Garrison, 465 P.2d 761, 763 (Okl. 1970)). Without valid consideration, these promises are at most offers to make a gift and "[a] mere promise to make a gift is not enforceable." Id. (quoting Oman v. Yates, 422 P.2d 489, 494 (Wash. 1967)). The mere expression of an intention or desire is not an enforceable promise, unless there is an undertaking to carry out the intention into effect. Id. (citing E.I. Dupont De Numours & Co. v. Claiborne-Reno Co., 64 F.2d 224, 233 (8th Cir. 1933)).

Governor Lutali never carried out any of the alleged promises to give the premises to Isumu or his heirs. Therefore, if made, these promises are merely offers to make a gift and unenforceable. Furthermore, governors are not authorized to unilaterally give away public lands.

VI. Lack of Just Compensation

The Isumu Estate and Tulimasealii contend that they deserve just compensation because the Fagaima family never owned the premises. This claim is also without merit.

Prior to the condemnation proceeding, the court, in LT 16-1957, determined that the Fagaima family held title to the premises and as a result, on January 12, 1960, ASG paid this family $13,476.86 as compensation for the premises. Isumu failed to assert a claim at that time. The Fonoti family was the only other claimant to the premises, and defendants' attempt to assert such a claim, either in 1974 or now, is barred by res judicata. Isumu, 4 A.S.R. at 143.

VII. Improvements to Land

[5] Defendants contend that if they are evicted from the premises because ASG is legal title holder, that they should be entitled to compensation for improvements they have made on the premises during their years of occupancy. "After eviction, former possessors of land are entitled to remove fixtures and possessions," Leomiti v. Pu`efua, LT No. 5-94, slip op. at 6 (Land & Titles Div. 1995), but they are not entitled to gain compensation for the value of their improvements, unless they are good faith possessors. Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988).

[6] "A good faith possessor is one who makes improvements on land in the honest belief that he is the owner," whereas knowledge of an adverse claim usually prevents someone from being a good faith possessor. Id. Defendants have known that ASG is the legal owner of the premises since 1974 at the latest, and most likely since 1960. Thus, they are not good faith possessors and are not entitled to any compensation.

[7] ASG additionally prays for damages as the result of defendants' trespass on the premises. A prevailing plaintiff in an action for trespass to real property is always entitled to at least to nominal damages, even in the absence of harm or plaintiff's failure to prove compensatory damages. Longenecker v. Zimmerman, 267 P.2d 543, 545 (Kan. 1954);Nappe v. Anschelewitz, 477 A.2d 1224, 1228 (N.J. 1984) (in a trespass action, proof of actual damage is not required because the invasion of the plaintiff's property rights is regarded as a tort in itself). Accordingly, ASG is entitled to recover nominal damages in the amount of $1 from the defendants.

ORDER

1. It is established that there is no genuine issue as to any material fact and that ASG is entitled to judgment as a matter of law. Therefore, summary judgment shall be entered in favor of ASG and against defendants.

2. Defendants are evicted from the premises, effective immediately.

3. Defendants are permitted to enter the premises for a period not exceeding 60 days after the entry of this order for the sole purpose of removing any structures, fixtures, and other improvements or possessions belonging to them. If such items are not removed within that time, they shall become ASG's property, Leomiti v. Pu`efua, LT No. 5-94, slip op. at 7 (Land & Titles Div. 1995); Laulu v. Taaseu, 23 A.S.R.2d 1, 6 (Land & Titles Div. 1992), and ASG will be entitled to recover any reasonable cost it incurs in the removal of the structures, fixtures, and possessions. Anchorage Yacht Haven Inc., v. Robertson, 264 So. 2d 57, 61 (Fla. 1972); see Restatement (Second) Of Torts, § 160 (1965).

4. Each of the defendants shall pay to ASG nominal damages in the amount of $1.00 within 30 days of the entry of this order.

5. Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are also permanently enjoined to immediately leave the premises and from entering, except as allowed above, or remaining on the premises, or at any time undertaking any construction thereon, or directly or indirectly interfering with ASG's construction of improvements upon or any other use of, and quiet enjoyment of, the premises.

It is so ordered.

*********

1. In Isumu, the court granted summary judgment on behalf of ASG in its action to evict Isumu from Plot 3, and Fuimaono Tuinanau ("Fuimaono") from Plot 3 and Plot 6, as well as four other parties not involved in this action.

American Samoa Gov’t; Bradcock v.


GARY W. BRADCOCK, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa
Trial Division

CA No. 184-94

May 26, 1995

__________

[1] Plaintiffs have a legal duty to file administrative claims within a reasonable time or they will be barred by the doctrine of laches.

[2] The statute of limitations is tolled during the period that a timely filed administrative claim is before the Attorney General.

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

Counsel: For Plaintiff, Tate J. Eldridge
For Defendant, Henry W. Kappel, Assistant Attorney General

Order Granting Motion for Summary Judgment:

FACTS

Plaintiff Gary W. Bradcock ("Bradcock") was injured on January 7, 1992, while returning to the vessel where he was employed as Chief Engineer, and alleges that the injury resulted from an attack by an unknown assailant wielding a golf club. Bradcock claims that defendant, American Samoa Government ("ASG"), was negligent in the duty to provide adequate security for the waterfront area.

On September 30, 1993 Bradcock filed a government tort claim with ASG pursuant to A.S.C.A. § 43.1202 et seq. This claim was effectively denied on December 30, 1993, because three months had elapsed since the filing of the claim with no reply by ASG. A.S.C.A. § 43.1205(a). On October 25, 1994, Bradcock filed this action. On January 6, 1995, ASG moved for summary judgment on the ground that the two-year limitation period prescribed in A.S.C.A. § 43.1204 had expired.

STANDARD OF REVIEW

Summary judgment is appropriate where there is no issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. T.C.R.C.P., Rule 56. It may be invoked only when "no genuine issue as to any material fact" exists. Anderson v. Liberty Lobby, 477 U.S. 242, 247-250 (1986); Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material are presumed to be true, and that all inferences are construed in a light most favorable to the non-moving party. Ah Mai v. American Samoa Gov't, 11 A.S.R. 2d 133, 136 (Trial Div. 1989); see also Lokan v. Lokan, 6 A.S.R. 2d 44, 46 (Trial Div. 1987); U.S. v. Diebold, 369 U.S. 654 (1952)

DISCUSSION

The issue of whether Bradcock's petition is barred by the statute of limitations is determined by the date his claim accrued, and whether the filing of his prerequisite administrative claim with ASG under A.S.C.A. § 43.1205 constituted the commencement of an action within the meaning of A.S.C.A. § 43.1204, thereby tolling the statute of limitations. In support of his opposition to ASG's motion, Bradcock cites Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 55 (Trial Div. 1990), for the proposition that for purposes of A.S.C.A. § 43.1204, his claim only accrued when his administrative claim was denied, on December 30, 1993.

I. Claim Accrual

In Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 49 (Trial Div. 1990), plaintiffs filed an administrative claim within two years of plaintiff's injury, but at a time when less than three months of the two-year period remained. The Attorney General denied the claim after the two-year period following the injury had lapsed. Id. at 49.

[1] These facts presented the issue of whether a government tort claim accrues at the time of injury or on the date that the administrative claim is denied. On this question, "we [held] that for purposes of A.S.C.A. § 43.1204 a claim accrues when the administrative claim is denied." Id. at 55. The continuing vitality of this holding, however, has been questioned in dicta in Randall v. American Samoa Government, 19 A.S.R.2d 111, 116 (Trial Div. 1991), pointing out that it could "have the odd effect of giving injured persons an indefinite amount of time in which to sue, since the Government Tort Liability Act does not specify a time limit for bringing administrative claims." While making its ruling the Mataipule court also expressed concern that such a ruling might allow a plaintiff to "dawdle indefinitely" without worrying about the limitations period. Mataipule, 16 A.S.R.2d at 53. To answer this concern, the Mataipule court declared that plaintiffs carry a legal duty to file administrative claims within a "reasonable time" or they will be barred by the doctrine of laches. Id. at 55. The Randall Court pointed out that, even if "a separate two-year limit for bringing the administrative claim could be imposed by analogy, the effect would be to give people injured by government employees four and one-half years to sue, in curious contrast to the two years given those who have been injured by private persons." Randall, 19 A.S.R.2d at 116. This scenario may well be the practical result of the Mataipule rule, which may someday need to be revisited. (1) In the present case, the suit was filed two years, nine months and seventeen days following the accident. Bradcock waited almost twenty-one months before filing his administrative claim, and after it was denied, waited almost 10 months to file this lawsuit. If we permit Bradcock to file his claim twenty-one months after the injury, and then allow him a fresh two years after the claim's denial to file his lawsuit, the result would, indeed, be to provide a four-year statute of limitations as feared in Randall, at 116. We need not reach the question of overruling Mataipule since Bradcock's claim is barred by the doctrine of laches, regardless of whether we hold that it accrued at the time he knew the essential facts about his injury, as suggested in Randall.

II. Tolling

[2] Mataipule's "alternative holding," which was embraced in Randall, 19 A.S.R.2d at 117, is clearly valid law, and was a sufficient basis in itself for the decision in Mataipule.

The administrative claim was required by statute as part and parcel of plaintiff's remedial course, which would culminate in a lawsuit upon an unfavorable administrative decision. We hold that filing the claim with the Attorney General constituted the beginning of an action within A.S.C.A. § 43.1204, as the administrative claim was not an independent action but was the first and mandatory step in plaintiff's recourse to the courts.

Id. at 56. The foregoing rule operates to toll the statute of limitations during the period that a timely filed claim is before the Attorney General. Randall, 19 A.S.R.2d at 117; Mataipule 16 A.S.R.2d at 56. Since one year, eight months and 23 days passed between Bradcock's injury and his administrative claim, and more than nine months passed between denial of the administrative claim and this lawsuit, we hold that the two-year limitation period had expired when Bradcock filed the action and is, therefore, legally barred. Finding that Bradcock's claim is barred by laches regardless of its accrual date, and that he is late in filing this action even if the limitation period is tolled during the pendency of the administrative claim, the motion for summary judgment is granted.

It is so ordered.

1. If the Fono made a plain legislative pronouncement creating a limitation period for the filing of an administrative claim under the G.T.L.A., and indicating the time period after denial of the administrative claim within which a lawsuit must be commenced, this conjecture and confusion about how to apply the statute of limitations, in light of the mandatory administrative claim, would be eliminated. As we stated in Mataipule:

The G.T.L.A. is apparently wanting and requires fixing, but that is a
task constitutionally assigned to the Fono. Congress has clarified the
enactments dealing with government tort liability at the federal level.
The G.T.L.A. only partly reflects its federal counterpart in that the
imposition of an administrative review requirement was not accompanied
by a corresponding change in the limitations period.

Mataipule was decided almost five years ago, but the Fono has apparently not picked up our cue. We believe, however, that until the legislature exercises its line-drawing function, the exercise of enforcing the statute of limitations in light of G.T.L.A.'s administrative review requirement will remain a hazardous one.

Alepeni; Vivao v.


TULI VIVAO, Plaintiff

v.

PENI ALEPENI AND MEMBERS OF HIS FAMILY, Defendants

High Court of American Samoa
Trial Division

CA No. 57-95

July 24, 1995

__________

[1] Counsel's inability to keep track of his calendar is not excusable neglect.

[2] Relief with regard to an inexcusable mistake of an attorney lies against the attorney, not relief from judgment.

[3] Summary eviction from a mobile structure is available without eviction from the land on which the mobile premises are located.

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

Counsel: For Plaintiff, Ellen A. Ryan
For Defendants, Albert Mailo

Order Denying Motion For Relief From Judgment:

HISTORY

This matter came on regularly for hearing on July 14, 1995, upon defendants' motion for relief from judgment entered by this court on June 5, 1995. In that judgment, we granted plaintiff summary relief, pursuant to A.S.C.A. §§ 43.1401 et seq., and ordered the eviction of defendant from plaintiff's lunch wagon; plaintiff was also awarded $1,200 from defendant in rent arrearage. We further noted the absence of defendant or any representing attorney at trial. In the motion for relief from judgment, filed June 19, 1995, defense counsel, Albert Mailo, claimed "excusable neglect," and further argued that the judgment was "void" under T.C.R.C.P. 60(b). Counsel Mailo excused himself for neglecting to look at the court's amended summons and therefore failing to notice that trial of the matter had been set for the appointed day. Counsel contends that the judgment is void because defendant holds a lease obtained from the American Samoa Government ("ASG") for the property upon which the lunch wagon is located, and is therefore entitled to some type of relief from an absolute eviction. Subsequent to the hearing of defendant's motion, ASG filed a motion to intervene on June 30, 1995, citing its leasehold agreement with defendant for the land on which the lunch wagon has been located.

DISCUSSION

I. Excusable Neglect

[1-2] Counsel Mailo's inability to keep track of his calendar is hardly an excusable neglect. This court has previously held that an attorney's inexplicable failure to move for a continuance when the attorney and client were off-island was not excusable within the meaning of T.C.R.C.P. 60(b). Scratch v. Sua, 23 A.S.R. 2d 20, 21-22 (Land & Titles Div. 1992); Scratch v. Sua , 22 A.S.R.2d 53, 54 (Land & Titles Div. 1992). In the aforementioned case the attorney was off-island for a family emergency and the client was off-island seeking medical attention, but the failure of counsel to properly seek a continuance made the neglect inexcusable. Id. If medical and family emergencies are not excusable reasons to give relief from a judgment, we are certainly not persuaded that counsel Mailo's overlooking the amended summons is "excusable." On the authority of the U.S. Supreme Court we also rejected substituted counsel's argument that the client should not suffer because of a former attorney's incompetence. Scratch, 23 A.S.R.2d at 21-22 (quoting Smith v. Ayer, 101 U.S. 320, 326 (1879)). Relief with regard to an inexcusable mistake of an attorney lies against the attorney, not relief from judgment. Cf. Davis v. Damrell, 174 Cal.Rptr. 257, 259 (1981).

II. Judgment Void

Defendants assert that their lease of the property on which the lunch wagon rests should prevent an eviction from the lunch wagon itself, rendering the existing judgment void. The question presented by this fact is whether the courts of American Samoa may evict a tenant from a mobile structure without evicting the tenant from the underlying property.

[3] Summary eviction to "recover the premises" for failure to pay rent is taken under A.S.C.A. § 43.1405. The word "premises," as defined by A.S.C.A. § 43.1401(b) includes ". . . structures fixed or mobile, temporary or permanent, vessels, mobile trailer homes and vehicles which are used or intended for use primarily as a dwelling or as a place for commercial or industrial operations or storage." In the present case we are concerned with a "mobile" structure which is used for "commercial . . . operations". It is therefore "premises" within the meaning of the summary eviction law, regardless of the ground upon which it may be resting at a given time. In other words, we can evict defendants from the "premises" without evicting them from the ground on which the mobile "premises" is located. Defendants may wish to evict plaintiff's lunch wagon from the leased ground, and may attempt to do so in a future action.

In our opinion granting summary eviction, we ordered that "[p]laintiff shall be restored to possession of the said lunch wagon forthwith." Vivao v. Alenepi, CA No. 57-95, slip op. at 3 (Trial Div. 1995). We see no reason to modify this order, but we clarify that the said eviction pertains only to the mobile lunch wagon, and not necessarily to the underlying land which is the subject of the alleged lease. We deny the defendants' motion for relief from judgment.

It is so ordered.

*********

Ale v. Peter E. Reid Stevedoring, Inc.,


SANELE ALE, Plaintiff

v.

PETER E. REID STEVEDORING, INC., SIATU`U FA`ASIU and
NATIONAL PACIFIC INSURANCE CO., LTD, Defendants

High Court of American Samoa
Trial Division

AP No. 10-93

(CA No. 95-91)

August 9, 1995

__________

[1] Plaintiff has the burden of proof to establish a reasonable basis for the conclusion that the accident was, more probably than not, the proximate cause of his symptoms. Mere possibilities are not enough.

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

Counsel: For Plaintiff, Cheryl Crenwlege
For Defendants, Brian M. Thompson

Opinion on Remand:

BACKGROUND

On December 19, 1989, plaintiff Sanele Ale ("Ale") was struck by a vehicle while at work on the American Samoa Government's dock area. The vehicle was driven by defendant Siatu`u Fa`asiu ("Fa`asiu") in the scope of his employment as an employee of defendant Peter E. Reid Stevedoring, Inc. ("Reid Stevedoring"). On May 7, 1993, this court found Reid Stevedoring vicariously liable for damages arising out Fa`asiu's negligent operation of a truck and awarded Ale $25,000 in damages as the result of three broken ribs and lung contusion. However, we did not award Ale damages for his claim of accident-related progressive weakness and sensory loss on his left side. Ale moved for appeal on this issue.

On March 1, 1994, the Appellate Division of the High Court affirmed the following trial court findings: 1) Fa`asiu was negligent in operating the vehicle; 2) Reid Stevedoring was vicariously liable, under the doctrine of respondeat superior; and 3) the accident was the proximate cause of Ale's three broken ribs and lung contusion. The Appellant Division additionally concluded on review of the record and the lower court's discussion of the evidence that Ale did suffer weakness and sensory loss to his left side, but found that the issue of causation "needs to be examined at greater depth." The appellate court, therefore, remanded the case to the trial division with the mandate to allow the parties "the opportunity to submit further evidence and briefs on the extent of Ale's symptoms and the possible causal connection between the accident and Ale's symptoms of weakness and sensory loss on his left side."

ISSUE ON REMAND

[1] In our decision of May 7, 1993, we held that Ale had failed to submit sufficient evidence at trial to prove that it was more probable than not that the symptoms of weakness and sensory loss on his left side were caused by the accident. The sole issue on remand is whether or not the accident was the proximate cause of the symptoms. We reiterate at the outset that Ale has the burden of proof to establish a reasonable basis for the conclusion that the accident was, more probable than not, the proximate cause of his symptoms of weakness and sensory loss on his left side. Prosser & Keeton on Torts, § 41 at 269 (5th ed. 1984). Mere possibilities are not enough.

DISCUSSION

On remand, Ale subpoenaed one expert witness, Dr. Aloiamoa Anesi, an internist with the LBJ Medical Tropical Center, who also testified at trial. Dr. Anesi's testimony at the remand hearing was essentially a restatement of his prior testimony, the force of which we considered at trial. He testified that Ale's symptoms "must be" related to the accident. This conclusion is the same reached by Dr. Anesi at trial and offers nothing new to his prior testimony. His testimony is not based on any additional medical reports, tests, and/or explanations, except for an examination of Ale that Dr. Anesi had performed one month before the day of the remand hearing. This examination did not offer anything new regarding the issue of causation, although Dr. Anesi did note that the strength in Ale's left leg had "somewhat" improved. Dr. Anesi further testified that neither a CAT SCAN nor any other objective medical test was ever performed on Ale even though a CAT SCAN would have conclusively shown whether or not there was cerebral injury. Ale was not examined by any other doctors in anticipation of the remand hearing.

Dr. Anesi's testimony that Ale's symptoms were caused by an injury to his brain, an organic pathology, (1) was not based on any definitive medical testing. His conclusion was essentially grounded on the assumption that Ale was concussed by the accident, which resulted in oxygen loss to the brain, and which in turn gave rise to Ale's symptoms of progressive weakness to his left side. At trial, Dr. Anesi had explained that his concussion premise was in part based on an entry in Ale's medical report stating that he was "knocked out," and in part on what the patient himself had told him. However, we seriously doubted, on the strength of the sworn testimony before us at the time, that Ale had at all lost consciousness immediately after the accident, as he has claimed. Again without a CAT SCAN or any other objective test, Dr. Anesi's conclusion of concussion can be, in our view, no more than a medical guess based alone on the fact that certain symptoms exist. On the other hand, evidence received at trial in the way of reports from other doctors who had examined Ale, alluded to alternative causative possibilities--that Ale's symptoms might be inorganic in pathology, or even trumped up altogether. At the same time, at least one consulting physician was unwilling to hazard a guess on cerebral injury, an organic pathology, without conclusive testing. (2) It is also significant to note that when apprised of a beating which Ale had received in Pago Pago earlier in 1989, which according to Ale had rendered him unconscious, Dr. Anesi at the remand hearing allowed the possibility that Ale's current physical condition could be medically related to the 1989 beating, if Ale had lost consciousness after the incident. While this is also inconclusive evidence that admits no more than possibilities, the possibility that the Pago Pago beating is causally related to Ale's symptoms only adds to our uncertainty as to the proximate cause of those symptoms, given the weight of available medical opinion. In any case, the burden is on Ale to demonstrate that it is more probable than not that the accident was the cause his symptoms rather than the defendants' burden to prove that something else was the more probable cause of plaintiff's symptoms. For the reasons stated above, we find that Dr. Anesi's testimony at the remand hearing is insufficient to sustain a finding that the accident was more probable than not the cause of Ale's symptoms of left side weakness.

CONCLUSION

Ale has failed to offer sufficient evidence for the court to conclude that it is more probable than not that his symptoms of weakness and sensory loss on his left side are a direct result of the accident. Therefore, judgment shall enter in favor of defendants on the issue remanded.

It is so ordered.

*********

1. Dr. Anesi's position is antithetical to a conclusion of conversion reaction, which is an inorganic psychological pathology.

2. Such testing while available off-island and sought by local physicians, was inexplicably omitted when Ale was referred off-island.

Ale; Lutu v.


AFOA L. SU`ESU`E LUTU, Petitioner

v.

SAVALI TALAVOU ALE, Speaker of the House of Representatives,
and SAVALI SAVALI, JR., Legislative Financial Officer, Respondents

High Court of American Samoa
Trial Division

CA No. 25-95

May 19, 1995

__________

[1] The extraordinary writ of mandamus will not be issued unless: (1) the plaintiff has a plain right to have the act performed; (2) the defendant has a plain duty to perform it; and (3) there is no other adequate remedy available to the plaintiff.

[2] The language of A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the "plain duty" and "plain right" required for the issuance of a writ of mandamus.

[3] A Legislator has the right to request work from the Legislative Financial Officer, and the Legislative Financial Officer may not disclose the request or the resulting information to anyone else before the Legislator making the request has an opportunity to review the resulting work product.

[4] An individual Legislator has the authority of the entire Legislature for purposes of gathering information from the Legislative Financial Officer.

[5] The House rule requiring that the Speaker review materials prepared by the Legislative Financial Officer before their submission to the Legislator requesting the work offends the plain language of the statute and exceeds the constitutional power of a single house to make rules of procedure for itself, and is therefore invalid insofar as it purports to countermand statutory mandate.

[6] A constitutionally authorized rule of procedure loses its procedural character when it determines the status of substantive legal rights.

[7] The office of the Speaker is an agency of government within the meaning of A.S.C.A. §  2.0602, and the Speaker therefore has a plain duty to cooperate with the Legislative Financial Officer by opening records to the Legislative Financial Officer within normal working hours and times.

[8] The writ of mandamus is meant to provide a remedy for a plaintiff only if the plaintiff has exhausted all other avenues of relief, and if the defendant owes the plaintiff a clear, indisputable, and non-discretionary duty.

[9] A writ of mandamus will not issue to enforce rights which are common to everyone and enjoyed by the public at large.

[10] A record is a public record if it is required to be kept by law, or is kept in furtherance of some other duty required by law, or which is meant to serve as a memorial of something done by a person in his/her capacity as a public official.

[11] The right to review public records is not absolute. The law requires that the interests of the individual seeking the record be weighed against the public interest in confidentiality.

[12] Private individuals cannot assert priority over public officials in the use of public documents for purposes such as auditing.

[13] Where a record contains some private information, mingled with public information, mandamus may compel an official to allow supervised copying of the public portions of the record while omitting the private.

[14] A duty to disclose information exists when: (1) the information is public record; and (2) petitioner's interest in the information outweighs any public interest in preventing disclosure of the information; or (3) the Constitution or a statute requires disclosure.

[15] Where the right to view a public record is established, mandamus may compel disclosure of the record by whomever is preventing such disclosure.

[16] A writ of mandamus may not compel the reversal of a decision of a legislative leader, exercising the proper discretion of his legislative capacity, but where the required act of a legislative leader is purely ministerial, mandamus may lie to compel it.

[17] A declaratory judgment is a judgment that calls for a broad adjudication of rights other than those on which the immediate relief is dependent. A judgment is not declaratory if it declares no more than is necessary to sustain the immediate relief prayed for.

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

Counsel: For Petitioner, Marshall Ashley
For Respondents, Aitofele T. Sunia

Opinion and Order on Petition for Writ of Mandamus:

This case concerns the right of a Legislator in his legislative capacity, or in his capacity as a private citizen, to obtain information regarding the financial affairs of the Legislative body in which he serves.

HISTORY

Representative Afoa L. Su`esu`e Lutu ("Petitioner") brought this action seeking a writ of mandamus to compel Savali Talavou Ale, Speaker of the American Samoa House of Representatives ("the Speaker") and Savali Savali, Jr., Legislative Financial Officer ("LFO") to allow Petitioner to review and receive copies of House expenditures and overruns for the year 1994. This court action followed a series of verbal and written communications by Petitioner, addressed to both respondents, requesting "a breakdown of the 1994 House expenditures." In a letter dated February 17, 1995, the LFO indicated that the Speaker had not yet given his approval, and that the LFO did not have authority to release the information without such approval. At the hearing held April 19, 1995, Petitioner indicated his desire to inspect House records concerning travel authorization, hiring and termination of employees, and other personnel records and expenses.

STANDARD OF REVIEW

[1] The standard for granting the peremptory writ of mandamus, as set forth in T.C.R.C.P. 90, is interpreted by the High Court as follows:

The extraordinary writ of mandamus will not be issued unless: (1) the plaintiff has a plain right to have the act performed; (2) the defendant has a plain duty to perform it; and (3) there is no other adequate remedy available to the plaintiff.

Mulitauaopele v. Maiava, 24 A.S.R.2d 97, 98 (Trial Div. 1993) (citing Gifford Pinchot Alliance v. Butruille, 742 F. Supp. 1077, 1082-83 (D. Ore. 1990); see Siofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988); Beckless v. Heckler, 622 F. Supp. 715, 720 (N.D. Ill. 1985) (citing Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); City of New York v. Heckler, 742 F.2d 729 (2d Cir. 1984), aff'd sub nom. Bowen v. City of New York, 476 U.S. 467 (1986))).

DISCUSSION

Petitioner claims authority to examine the relevant documents based on his status as a Legislator and on the theory that the documents are public records.

I. Petitioner's Right as a Legislator

Petitioner claims a special right to review the requested documents, arising from his status as a member of the American Samoa House of Representatives pursuant to A.S.C.A. § 10.0603, which states: "Except as otherwise limited by law, the Legislature shall have full authority and control the request, approval, and disbursement of funds in its budget. The Legislature shall be fully responsible for maintaining proper record-keeping and management over the expenditure of funds."

Petitioner claims that the duties of the Legislature also belong to him as one of its members, and that he is unable to adequately perform those duties without access to relevant information. This analysis begs the question of whether either Petitioner or the Speaker is "the Legislature" within the meaning of the foregoing language.

[2] The Revised Constitution of American Samoa, art. II § 1 provides the most plain definition of "Legislature" available, stating: "There shall be a Legislature which shall consist of a Senate and House of Representatives." Accordingly, neither Petitioner nor the Speaker is "the Legislature" within the meaning of A.S.C.A. § 10.0603, and it is doubtful whether Petitioner is justified in bootstrapping himself individually to the rights and responsibilities of the Legislature as a whole. The language of the statute itself suggests the intention of giving the Legislature control over its own budget instead of having its budget managed by an agency within the executive branch. We conclude that the language of A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the "plain duty" and "plain right" required for the issuance of a writ of mandamus. This conclusion, however, does not end the argument.

[3] Petitioner further claims the right to review the relevant documents pursuant to A.S.C.A. § 2.0601(b), which gives direction to the LFO regarding how information is to be distributed: "Unless otherwise directed by a Legislator making [a] request for information, the request and the resulting work product shall first be submitted to the Legislator who requested it before it is distributed" (emphasis added). Petitioner contends that the foregoing language entitles him to receive the information he requests before it is distributed to anyone else, including the Speaker. The question of who receives information first does not directly resolve the question of what information is accessible to Petitioner in the first place, but the foregoing statute does clearly imply that an individual "Legislator" has the right to make a "request for information" to review the resulting work product.

[4] In turn, the LFO has very broad authority to gather the requested information pursuant to A.S.C.A. § 2.0602. This enactment provides:

The agencies of the government shall cooperate with the Legislative
Financial Officer in order that he may carry out the investigations,
studies, analyses, and reports so directed to him by the Legislature,
by opening their records to the officer during normal working hours
and times (emphasis added).

Reading the foregoing language together with A.S.C.A. § 2.0601(b), an individual Legislator seems to have the authority of the entire Legislature for purposes of gathering information through LFO. The words "directed to him by the Legislature" cannot mean that a majority in both houses of the Fono must approve work requests for LFO, since individual Legislators have the right to make confidential work requests, and to review the results of such requests prior to their distribution to others. It would be similarly absurd to read the foregoing statute as requiring approval from the Speaker for the same reason. This contention is strengthened by the language of A.S.C.A. § 2.0601(a) which reads, in relevant part:

There is created a Legislative Financial Office. The Head of the Office is the Legislative Financial Officer, who is appointed by the President of the Senate and the Speaker of the House and compensated by the Legislature. The office is directly responsible to the Legislature . . . .

In drafting the foregoing language, the Fono had the opportunity to make the LFO directly responsible to the President of the Senate ("the President") and to the Speaker. Instead of doing so, the Fono placed language in the statute making the office "directly responsible to the Legislature" immediately following its instruction that LFO be "appointed" by the President and the Speaker. This language indicates that, despite being appointed by Fono leaders, the LFO is "directly responsible to the Legislature," rather than being indirectly responsible to it via the leadership.

[5] The Speaker contends that House Rule I § 11(C) permits him to refuse requests for House documents, and to prevent LFO from releasing information concerning the House. The rule reads, in relevant part:

All requests for information or documents from the House must be
referred to the Speaker's office for approval. . . . The Legislative
Financial Office may not release any information concerning the
House without prior approval of the Speaker.

Each house in the Legislature has the constitutional right to "determine its rules of procedure." Rev. Const. Am. Samoa, art. II § 11. The LFO, however, is not a committee of the House of Representatives nor in any other way a part of that House. The LFO is responsible to the Legislature, not to rules enacted through one house only. A House rule using language that "The Legislative Financial Office may not . . ." exceeds the constitutional power of a single house to make rules of procedure for itself. Furthermore, regardless of whether the requested information concerns the House, A.S.C.A. § 2.0601(b) requires that ". . . the request and the resulting work product shall first be submitted to the Legislator who requested it before it is distributed." The House rule requiring that the Speaker review materials prepared by LFO before their submission to the Legislator requesting the work offends the plain language of the statute, and is therefore invalid insofar as it purports to countermand statutory mandate.

[6] The rule that "[a]ll requests for information or documents from the House must be referred to the Speaker's office for approval," is perhaps an acceptable procedural rule, but it cannot be used by the Speaker to circumvent codified law and displace substantive rights. A constitutionally authorized rule of "procedure" loses its procedural character when it determines the status of substantive legal rights. (1) In this case, House Rule I § 11(C) was used to defeat A.S.C.A. § 2.0602, which reads:

The agencies of the government shall cooperate with the Legislative Financial Officer in order that he may carry out the investigations, studies, analyses, and reports so directed to him by the Legislature, by opening their records to the officer during normal working hours and times.

In other words, when the LFO presents an agency of government with a request, no approval is necessary. The agency is legally required to cooperate during normal working hours and times.

This analysis, however, begs the question of whether or not the House of Representatives, or perhaps the Speaker's office, is considered an "agency" within the meaning of the statute. In the narrow sense of the word, "agency" probably means an organization within the executive branch. We think that a broader definition is appropriate in this case. The chapter creating LFO is preceded by a chapter creating the Legislative Reference Bureau with the language, "There is, as an agency within the Legislature, a legislative reference bureau for the use of the members of the Legislature." A.S.C.A. § 2.0501 (emphasis added). The common sense meaning of A.S.C.A. § 2.0602 is that "agencies of government" include organs of government within all three branches, including "an agency within the Legislature" such as the Legislative Reference Bureau, the House of Representatives itself, or the office of the Speaker.

[7] We find that the office of the Speaker is an "agency" within the meaning of A.S.C.A. § 2.0602, and therefore the Speaker has a plain duty to cooperate with LFO by opening his records to LFO within normal working hours and times. LFO in turn has a plain duty to make its work product available to the Legislator requesting it, prior to distributing it to anyone else, including the Speaker. Accompanying these duties the Legislator has a plain right pursuant to A.S.C.A. § 2.0601(b) to request information from the LFO, and to review the work product before it is distributed to anyone else.

II. Petitioner's Right as a Private Citizen

[8] The writ of mandamus is meant to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief, and if the defendant owes him a clear, indisputable, and non-discretionary duty.

A. Individual Right or Held in Common with the Public?

Petitioner claims a right to the sought information because it is public record. This argument gives rise to the question of whether petitioner impermissibly seeks to enforce a right which he holds in common with the public.

The Supreme Court of Maine granted a writ of mandamus in Robbins v. Bangor Ry., 62 A. 136, 139 (Me. 1905), holding that each and every building owner had an individual right to utility service at a reasonable rate, and that this right was individual, and not held in common with the public. The Robbins court further explained that the petition may not be granted to enforce rights which are common to everyone and enjoyed by the public at large.

A similar issue arose in Mellinger v. Khun, 130 A.2d 154 (Pa. 1957). In that case, the appellant was incensed at receiving a citation after the parking meter adjoining his vehicle had expired, when he saw that a lunch wagon parked in the same lot for 39 hours continuously had not been cited. Id. at 155. The appellant sought a writ of mandamus to compel prosecution of the owner of the lunch wagon. The Mellinger court held that the benefit of open parking spaces (protected by the enforcement of time limitations) was a right which appellant held in common with the public at large and not an individual right which he was entitled to enforce on a particular occasion. The petition was therefore denied.

[9] The question arises whether Petitioner's petition is closer to the Robbins case, where petitioner's "personal and particular rights have been invaded beyond those that he enjoys as part of the public, and that are common to everyone," Robbins, 62 A. at 139, or whether it is closer to the facts in Mellinger, where the petitioner sought to enforce the rights of the public in general. We find the facts closer to Robbins.

Public policy may be in place to make it more likely that one can find a parking space, but a writ of mandamus may not compel that the policy be enforced whenever a particular individual is frustrated at being unable to find a space on any given occasion. A parking space is not an individual guarantee. One may compel a utility to deliver service because, unlike a parking space, he/she has an individual right to that service.

If the information Petitioner seeks is public record, it may be argued that each and every member of the public has an individual right to review it, subject to the balancing principle discussed below, just as every building owner has an individual right to utility service in Robbins.(2)

B. Financial Reports of the Legislature Public Record

[10] Any record which is required by law to be kept, or is kept in furtherance of some other duty required by law, or which is meant to serve as a memorial of something done by a person in his/her capacity as a public official, is a public record. Nero v. Hyland, 386 A.2d 846, 851 (N.J. 1978); Mathews v. Pyle, 251 P.2d 893, 895 (Ariz. 1952). It is arguable that an "official record" is one kept pursuant to the official duty of a particular officer, even if not specifically mandated by statute. Fargnolli v. Cianci, 397 A.2d 68, 76 n. 9 (R.I. 1979).

A.S.C.A. 10.0603 states:

Except as otherwise limited by law, the Legislature shall have full
authority and control the request, approval, and disbursement of
funds in its budget. The Legislature shall be fully responsible for
maintaining proper record-keeping and management over the
expenditure of funds (emphasis added).

The foregoing language is an explicit requirement that the Fono keep the records requested by Petitioner. Since the Fono is required by law to keep financial records, such information is "public record." (3)

C. The Effect of Public Record Status

[11] Under the common law of access to public documents, the right to review public records is not absolute. Nero,386 A.2d at 851. The law requires that the interests of the individual seeking the record be weighed against the public interest in confidentiality. Nero, 386 A.2d at 851-52. This balancing principle is very important in this proceeding, since mandamus requires that the petitioner's right to the relief be clear and indisputable. Mulitauaopele, 24 A.S.R.2d at 99. This standard therefore requires that the balance of interests be so clearly in Petitioner's favor as to be beyond dispute.

[12] The Speaker contends that he initially withheld the requested information from Petitioner because the Inspector General of the U.S. Department of the Interior ("IG") was preparing to audit the Fono, and would need the records for that purpose. Private individuals cannot assert priority over public officials in the use of public documents for purposes such as auditing. Bruce v. Gregory, 423 P.2d 193, 197 (Cal. 1967). In the present case, however, the audit is now complete and the Speaker persists in his refusal to release the information prior to the issuance of the IG's report, on the ground that he wishes to prevent public misinformation about the contents of the records. The Speaker declines to decide whether he is willing to release the records after the IG's report is issued. We find the Speaker's argument to be wanting in merit. While we readily acknowledge that the public has an interest in receiving accurate information, it is positively dangerous to allow high ranking government officials to act as the supreme umpires of truth by arbitrarily withholding information regarding the expenditure of public funds.

[13] A second consideration which the Speaker asks the court to weigh against Petitioner's right to view the records is that personnel records contain social security numbers, birth dates, and other personal data. Where a record contains some private information, mingled with public information, mandamus may compel an official to allow supervised copying of the public portions of the record while omitting the private. Gleaves v. Terry, 25 S.E. 552, 553-554 (Va. 1896). Accordingly, this argument is not conclusive in the Speaker's favor.

III. The Respondent's Duty to Disclose the Information

A. Does the Duty Exist? Who Performs it?

[14] A duty to disclose the information exists if: (1) the information is public record; and (2) Petitioner's interest in the information outweighs any public interest in preventing disclosure of the information; or (3) the Constitution or statute is read to require disclosure.

Having established the existence of the duty, the question remains as to whom the duty is upon. The duty to distribute information to Legislators is upon the LFO pursuant to A.S.C.A. § 2.0601(b). In turn, the Speaker has a duty to disclose information requested by the LFO pursuant to A.S.C.A. § 2.0602.

[15] Where the right to view a public record is established, mandamus may compel disclosure of the record by whomever is preventing such disclosure. Ex Parte Uppercu, 239 U.S. 435, 440 (1915).

B. Is the Duty Ministerial?

[16] A writ of mandamus may not compel the reversal of a decision of a legislative leader, exercising the proper discretion of his legislative capacity. State v. Bolte, 52 S.W. 262 (Mo. 1899) (court refused to grant the writ where presiding officer of senate refused to sign a bill certifying its passage, after he ruled that it lacked a constitutional majority). Where the required act of a legislative leader is purely ministerial mandamus may lie to compel it. Kavanaugh v. Chandler, 72 S.W.2d 1003, 1005 (Ky. 1934) (writ should issue where Constitution directed president of the senate to sign a bill under specified conditions, and he failed to do so in the presence of such conditions); State v. Osburn, 147 S.W.2d 1065, 1068 (Mo. 1941) (Speaker of the House did not have discretion to refuse to declare the presumptively correct result of an election, even where there was a potentially valid dispute and protest to be filed). A duty is purely ministerial when it is mandatory and the officer has no discretion in the matter. Id. It is abuse of judicial discretion to direct performance of an action when an officer's duty requires the exercise of discretion. Cartwright v. Sharpe, 162 N.W.2d 5 (Wis. 1968). The same rule applies to legislative clerks regarding management of legislative records. Stewart v. Wilson Printing, 99 So. 92, 95 (Al. 1924).

The Speaker has discretion to subject the right to inspect public documents to reasonable rules and regulations. Bruce,423 P.2d at 199. The speaker clearly has no discretion to refuse to cooperate with LFO; nor to deny a request for public documents in his custody, absent a legitimate public interest in confidentiality which outweighs the individual's right to inspect the documents. The Speaker's duty to allow inspection of public documents by Petitioner in accordance with common law, and by the LFO as a matter of statutory law, is therefore ministerial.

C. Separation of Powers

Any action by the judicial branch of government to compel action by a legislative leader must be undertaken with pause and reflection in order to prevent judicial encroachment into legislative affairs. The cloak of immunity shielding the legislative branch of government from judicial intervention does not, however, extend to duties of a purely ministerial character. State v. Osburn, 147 S.W.2d 1065, 1070 (Mo. 1941).

In Clough v. Curtis, 134 U.S. 361 (1890), the United States Supreme Court considered whether a writ of mandamus should issue to compel the Secretary of the Territory of Idaho to release and amend documents purporting to be the record of proceedings of the territorial legislature. According to the plaintiffs, several members of the Territorial Legislature remained in chambers after the session had adjourned one evening, elected a Speaker of the House and a President of the Council, and passed 17 bills. Id. at 574. All of these proceedings were duly recorded by the Clerk of the House and transmitted to the Secretary of the Territory. Id. at 574.

A unanimous court held that it was not necessary to correct the record, or to decide whether the relevant body was a lawful legislative assembly. The Court found that judicial intervention into legislative record-keeping would violate separation of powers principles where there was no actual suit pending to adjudicate the rights of private parties which hinged upon the questionable legislation. Id. at 577.

Although the present case is arguably analogous and that issuance of the writ would amount to meddling in legislative record-keeping, there are some important differences. First, Petitioner is not asking that the records be modified, only that he be allowed to examine them. Second, the present matter does call for an adjudication of rights, since Petitioner is attempting to adjudicate an individual right to view the documents, and not merely to settle a legal question about the powers of the Speaker. Furthermore, the old English rule that a person's right to examine public records is contingent upon the prospective use of those records in a legal proceeding, has been replaced by the balancing test which weighs the interest of the individual in seeing the records against the interest of the community in keeping them confidential. Nero, 386 A.2d at 851-52.

IV. Other Avenues of Relief

House Rule VI § 1 provides, "Any ruling by the Chair may be appealed to the entire membership and overruled by a majority of the members elected and serving." At first glance, this rule may seem to provide a means of appealing the Speaker's decisions regarding the distribution of financial information. On further reflection the rule appears to be a means of appealing a committee chair's rulings or rulings by the Speaker regarding matters of parliamentary procedure and conducting legislative business, not a means of enforcing the Speaker's ministerial duties. Furthermore, evidence at the hearing seemed to indicate that efforts to compel the Speaker to release the records were somehow blocked by the Speaker's silence.

[17] The question has also been raised whether declaratory relief is an adequate alternative remedy. American Samoa's declaratory relief statute, set forth in A.S.C.A. § 43.1101, reads in relevant part:

Any person . . . who desires a declaration of his rights or duties
with respect to another . . . may, in cases of actual controversy
relating to the legal rights and duties of the respective parties,
bring an action in the trial division of the High Court for a
declaration of his rights and duties . . . . The court may make a
binding declaration of such rights or duties, whether or not further
relief is or could be claimed at the time. The declaration may be
either affirmative or negative in form and effect, and such
declaration shall have the force of a final judgment.

Accordingly, this court could potentially make a formal declaration of Petitioner's rights and Respondents' duties relative to those rights instead of issuing a writ of mandamus. The Second Circuit, lead by the venerable Judge Learned Hand, held that all judgments are in a sense, "declaratory" of the rights of the litigants, but a "declaratory judgment" in the legal sense is a judgment that calls for a broad "adjudication of rights other than those on which the immediate relief is dependent." Corcoran v. Royal Dev., 121 F.2d 957, 958-59 (2d Cir. 1941). A judgment is not "declaratory" if it declares no more than is necessary to sustain the immediate relief prayed for. Id. As Respondents' concede, a declaratory judgment in this case would have the same effect as a writ of mandamus, in compelling the Speaker and the LFO to release House financial records. Petitioner does not ask for a declaration of his rights beyond what is necessary to decide this particular cause of action. Therefore a declaratory judgment is not an available remedy. Furthermore, a judicial declaration as to the powers of the Speaker without regard to underlying private rights affected by those powers, would surely be tantamount to judicial intervention repugnant to the separation of powers doctrine. See Clough v. Curtis, 134 U.S. 361 (1890).

CONCLUSIONS

The Petitioner has a right to gain information regarding the financial affairs of the House of Representatives through the LFO, and the Speaker has a duty to cooperate with the LFO in its investigation. The Petitioner has a right to have his request for information and resulting work product kept confidential until he has reviewed the work product.

House of Representatives financial records are public record documents, and Petitioner has a common law right to review them since his interest in viewing them is not outweighed by a public policy interest in their confidentiality. If private information such as social security numbers and birth dates appear within these documents, the Speaker has the right to demand that the inspection be supervised to see that such private information is not copied.

ORDER

On the foregoing, Mandamus shall issue directed to respondents, commanding:

1) the Speaker and his office to provide the LFO with a "breakdown of information concerning the 1994 House budget expenditures," as originally requested by Petitioner if such a breakdown exists. If a breakdown of expenditures does not exist, the Speaker and his office must make such information available as will be required for the LFO to create such a breakdown;

2) the LFO to present the results of its investigation to Petitioner within a reasonable time, not to exceed thirty (30) days, unless otherwise extended by the court; and,

3) the Speaker and his office to allow Petitioner to examine and copy any existing "breakdown of information" concerning House expenditures for 1994. (4) The Speaker may, if he chooses, require that the review be supervised in order to secure the integrity of the House's records and to prevent the copying of confidential personal data of House personnel such as birth dates and social security numbers, or to see that such information is blocked out on the copies.

It is so ordered.

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1. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. United States v. Ballin, 144 U.S. 5 (1892); see by analogy 28 U.S.C.A. § 2072 ("Such [procedural] rules shall not abridge, enlarge, or modify any substantive right . . . .").

2. This position was rejected in Nowack v. Fuller, 219 N.W. 749, 751 (Mich. 1928):

[I]n the instant case, the plaintiff as a citizen and taxpayer has a common-law right to inspect the public records in the auditor general's office, to determine if the public money is being properly expended. It is a right which belongs to his citizenship. It is a right which he holds in common with all other citizens, a public right, which can be enforced only by mandamus proceedings brought by the Attorney General. It is not and never has been the policy of the law to permit private individuals to the use of the writ of mandamus against public officers, except in cases where they had some special interest not possessed by the citizens generally.

(Citations omitted.) The Nowack Court, however, granted the writ to a private citizen, based on a "special interest" arising from facts very similar to those in the present case:

The plaintiff has not sought to enforce his rights through the office of the Attorney General. He has begun this suit in his own name. In order to maintain it, he must show that he has a special interest, not possessed by the citizens generally. Apart from his public interest, his petition shows that he has been hampered and injured in his business by the refusal of defendant to allow him to inspect the records in his office. Is it a sufficient interest to entitle him to the aid of the court by this writ of mandamus? We think so. He is the manager and editor of a newspaper. It is published and circulated in Michigan. He sells news to the people through the medium of his paper. In a proper and lawful manner, he has a right to publish matters of public interest. The citizens and taxpayers of this state are interested in knowing whether the public business is being properly managed. By denying him access to the public records for the purpose of securing such information, he is deprived of legal rights for which he is entitled to redress by the writ of mandamus.

Id. at 451-52. Certainly, if publishing a newspaper to inform citizens regarding "public business" creates a "special interest" enforceable by a writ of mandamus, serving as a Representative and performing "public business" must also be a "special interest."

3. Legislative journals are public record. Amos v. Moseley, 77 So. 619, 621 (Fla. 1917).

4. In Petitioner's letters to the Speaker and to the LFO he requests a "breakdown of information concerning the 1994 House budget expenditures," which seemed to indicate that he desired an accounting of expenses. At the hearing, Petitioner surprised the Speaker by asking for travel and expense receipts, personnel records and other such documents not specifically demanded prior to the hearing. Frankly, we are not entirely sure that we understand the particulars of Petitioner's request. Since the Speaker has not had an opportunity to respond to these requests, they are not properly the subject of judicial inquiry at this time. If Petitioner wishes to pursue a request for such documents, he should request them from the Speaker with sufficient specificity that the Speaker knows precisely what information is being requested.

28ASR2d90


In re TUILEISUIJEFIATAGATA HALL,

A Minor Child, and concerning SOPI SOPI Jr.

JUV No. 92-85
AD No. 80-85

High Court of American Samoa
Trial Division

Jan 3, 1986

__________

A natural parent's rights to his child can only be terminated against his will if there is a showing that the parent has abandoned or abused the child .

A child cannot be adopted unless the rights of the natural parents to the child have been terminated.

Before MURPHY, Acting Chief Justice, Presiding, AFUOLA, Associate Judge, and VAIVAO,Associate Judge.

Counsel: For Kupa, Asaua Fuimaono
For Sopi Sopi Jr., Isalei. Iuli
For interest of child, Amoeualogo Soli, Public Defender

This is a case which imposes an almost intolerable burden upon any judge who has normal sympathies arid emotions. It is an irreconcilable dispute between good people over the custody of a little girl who is now nearly one year old. Whatever decision we reach must result in undeserved heartbreak for someone.

FACTS

Millie and Sopi were living as husband and wife with Sopi's family. Millie became pregnant. In August of 1984 Sopi left the Territory to obtain employment in Hawaii. Millie remained in American Samoa with Sopi's fami]y. On February 20, 1985 the little girl, Tuileisulefiatagata, was born. Millie did not want the responsibility of motherhood. She told Sopi's mother she was going to Western Samoa to visit her mother. Instead she turned the baby over to her cousin Nancy Kupa, relinquished parental rights, and consented that Nancy and Samasoni Kupa could adopt the child. Sam and Nancy employed attorney Asaua Fuimaono to represent the in the adoption proceedings. On May 23, 1985 Mr. Fuimaono obtained a decree, of relinquishment, apparently without notice to Sopi. No petition of adoption was filed. In the meantime, Sopi found out what was going on and came to American Samoa, obtained counsel and petitioned for custody.

Belatedly, a petition for adoption was filed by the Kupa's on October 17, 1985. Both Sopi the Kupas [sic] are fit and proper [2ASR2d91] parents. Naturally the Kupas have become attached to and deeply love the child.

DISCUSSION OF THE LAW

Before the Kupas can adopt the child the rights of the natural parents must be terminated. A.S.C.A. sec. 45.0412.

The natural mother relinquished her rights (A.S.C.A. sec. 45.0402) but the rights of the natural father were never dealt with. Clearly, Sopi never consented to relinquishment. Therefore, his parental rights can only be terminated under A.S.C.A. section 45.0401, which refers us to A.S.C.A. section 45.0115 and A.S.C.A. section 45.0103, which in turn tell us that Sopi's rights can be terminated if the child is "neglected or dependent." In other words Sopi must have abandoned or abused the child in order for the court to terminate his parental rights. The facts do not support such a conclusion. He left the Territory for a rational reason and thought that Millie was properly cared for by his mother. His conduct throughout this case demonstrates his determination not to abandon the child.

CONCLUSION

Sopi's parental rights are not terminated and as the natural/ father he is entitled to custody of his child.

It is so ordered, adjudged and decreed.

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