29ASR2d

29ASR2d

Pacific Endeavors, Ltd. v. Nam's Island Grocery, Inc.


[29ASR2d213]

 

 

PACIFIC ENDEAVORS, LTD., Plaintiff

 

v.

 

NAM'S ISLAND GROCERY, INC., and NAM JUNG-GIL, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 97-95

 

March 12, 1996

 

[1]  A dissolved corporation ceases to exist as a legal entity, and therefore, has no capacity to be sued.

 

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

 

Counsel:    For Plaintiff, William H. Reardon

                   For Defendants, Afoa L. Su`esu`e Lutu

This action was brought to enforce an agreement to repay a debt and a continuing guaranty.  The trial was held on November 15, 1995, with counsel for both parties present.

 

Findings of Fact

 

The court, having heard testimony and considered the evidence, finds as follows:

 

1.  Defendant Nam's Island Grocery, Inc. ("Grocery") was incorporated in American Samoa in 1982.  Grocery was dissolved as a corporate entity on or about August 8, 1995.

 

2.  On April 25, 1994, Grocery entered a written agreement with plaintiff Pacific Endeavors, Ltd. ("Endeavors") to repay a debt in the principal amount of $39,634, plus interest at 12% per annum, payable in weekly installments of $500 until the debt and accrued interest was paid in full.[29ASR2d214]  The agreement also provided for Grocery's payment of actual attorney's fees and costs in the event of suit upon default to collect the amount then owed to Endeavors.

 

3.  On the same date, defendant Nam Jung-Gil ("Nam") signed a continuing guaranty to Endeavors to personally pay upon default the amount then owed to Endeavors.

 

4.  Grocery last paid Endeavors on December 19, 1994, in the amount of $350.  Endeavors commenced this action on August 28, 1995.

 

5.  As of June 30, 1995, Grocery owed Endeavors $36,860.60 as the unpaid balance of the principal amount of the agreement, plus $3,197.22 in accrued interest, a total amount of $42,057.82.

 

Conclusions of Law

 

From the foregoing facts, the court concludes:

 

[1]  1.  Grocery had ceased to exist as a legal entity and had no capacity to be sued when this action was commenced.  Walling v. James V. Reuben, Inc., 321 U.S. 671, 675-76 (1944);  Pendelton v. Russell, 144 U.S. 640 (1892).  Thus, this action against Nam must be dismissed.

 

2.  Nam is personally liable to Endeavors in the principal amount of $38,860.60, plus prejudgment interest in the amount of $3,197.22 through June 30, 1995, and at 12% per annum from July 1, 1995, until the date the clerk of courts enters the judgment, reasonable attorney's fees not to exceed $100 per hour or the equivalent, actual court costs, and post-judgment interest at 12% per annum upon the total amount of the principal, prejudgment interest, attorney's fees, and costs.

 

Order

 

1.  This action against Grocery is dismissed.

 

2.  Nam shall pay Endeavors the principal sum of $38,860.60, plus prejudgment interest in the amount of $3,197.22 through June 30, 1995, and at 12% per annum from July 1, 1995, until the date the clerk of courts enters the judgment, reasonable attorney's and actual court costs to be set forth by counsel's affidavit and approved by the court, and post-judgment interest at 12% per annum upon the total amount of the principal, prejudgment interest, and approved attorney's fees and court costs.

 

Judgment shall enter accordingly.  It is so ordered.

 

 

 

*********

 

Samoa Misc. Inc.; Shantilal Brothers, Ltd. v.


[29ASR2d207]

 

 

SHANTILAL BROTHERS LTD., Plaintiffs

 

v.

 

SAMOA MISCELLANEOUS, INC., Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 64-94

 

March 8, 1996

 

[1]  The legislative aims of the usury law are best satisfied by reading the ambiguous forfeiture provision as creating a defense for debtors in civil court.

 

[2]  A.S.C.A. § 28.1501(a), establishing an interest rate of 6% in the absence of a writing state otherwise, applies to business loans, and does not permit the imposition of a rate of 18% as otherwise allowed by A.S.C.A. § 28.1503.

 

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

 

Counsel:    For Plaintiff, Ellen A. Ryan

                   For Defendant, Marshall Ashley

Order Granting Motion for Summary Judgment:

FACTS

This case arises out of purchases made by the defendant on an open [29ASR2d208] account with plaintiff.  The defendant acknowledges the purchases, but disputes the balances owing, specifically with respect to 18 percent interest charges which plaintiff allegedly attempts to collect.  Defendant now moves for summary judgment, arguing that American Samoa's usury law requires the plaintiff to forfeit the entire amount of the debt as a penalty for charging interest in excess of the amount permitted by law. 

 

DISCUSSION

 

          1.      The Usury Defense in Civil Court

 

American Samoa's usury law, found at A.S.C.A. § 28.1510 (emphasis added), states:

 

Any person who loans money or extends credit in any manner whatsoever and takes, receives, reserves, or assesses interest, fees, or minimum charges thereon at a rate higher than that allowed by law shall upon conviction be sentenced as for a class A misdemeanor; and in addition, shall forfeit to the debtor the full amount of the debt or obligation upon which the unlawful interest, fee, or minimum was charged.

 

The threshold issue in this case is that question earlier posed, but left unanswered, in Shantilal Brothers v. K.M.S.T. Wholesale, 9 A.S.R.2d 62, 65 (Trial Div. 1988), and that is, "whether the penalty of forfeiture applies only after a criminal conviction or whether it can be invoked by a defendant in a civil action." 

 

The language of the statute is grammatically ambiguous.  It adds the forfeiture provision "in addition" to the sentencing provision.  This "in addition" language could be construed as creating a civil remedy "in addition" to the criminal sentence; or conversely, it might also be read as creating an additional feature of the criminal sentence "in addition" to those that are authorized for other class A misdemeanors.

 

The Appellate Division of the High Court of the former Trust Territory of the Pacific Islands considered a similar question and held that:

 

The imposition of criminal penalties clearly manifests an intent to protect the borrower and contracts to recover interest in excess of the 2% per month are void at least with respect to the interest in excess of 2% per month.[29ASR2d209]

 

Kingzio v. Bank of Hawaii, 7 T.T.R. 343, 346 (App. Div. 1975).133 T.T.C. § 253.   In making the foregoing ruling, the Kingzio Court considered a petition by a private debtor in civil court, which was founded on a purely criminal statute with no explicit forfeiture provision.  The court gave effect to a criminal statute to create a usury defense in a civil case, for the purpose of protecting the debtor from interest exceeding legal limits. 

 

[1]  The implicit rationale of Kingzio is that it would contravene public policy to permit a creditor to recover or retain criminally usurious interest, simply because no prosecution had taken place.  It would similarly contravene American Samoa's stated policy that usury be punished by absolute forfeiture, if we were to permit a creditor to use the courts to recover a usurious debt by denying the debtor the right to raise usury as a defense to liability.  In light of the foregoing analysis, the legislative aims of the usury law are best satisfied by reading the ambiguous forfeiture provision as creating a defense for debtors in civil court.2

 

          2.      Usury in the Present Case

 

Having concluded that the usury statute creates a defense in civil court, we next consider whether the debt disputed in the present case is in fact usurious, making that defense successful.  This question has a factual element and a legal element.  The legal aspect of the issue is the maximum interest rate permitted by law, the factual aspect is the interest rate plaintiff actually charged.

 

A.      The Maximum Interest Rate

 

Plaintiff claims that it was entitled to charge interest at a rate of 18 percent according to

A.S.C.A. § 28.1503 which reads, in relevant part:

 

It is lawful to charge, contract for, and receive any rate or amount of interest or other compensation, not to exceed 18 percent annually, with respect to any loan to any business or commercial organization or to a person owning . . . a business . . ., if the loan is transacted solely for the purpose of carrying on . . . a business or commercial investment.

 

Plaintiff argues that defendant is a business and assumed its debts in carrying on its business purposes, and that plaintiff was therefore justified in charging interest at a rate of 18 percent.  Defendant argues, however, that A.S.C.A. § 28.1501(a) applies:

 

Except as provided in this title, no person may charge more than 15 percent a year as interest on a debt or obligation, and no agreement to pay a rate of interest higher than 6 percent a year shall be enforceable unless the same is in writing and is signed by the party to be charged.  The rate of interest where there is no written agreement with respect thereto shall be 6 percent a year, and interest shall be presumed on overdue debts.

 

Defendant reasons that since there was no written and signed agreement to pay interest at a higher rate, 6 percent was the correct rate.  The foregoing language makes room for exceptions with the language, "Except as provided in this title . . . ."  The business loans described in A.S.C.A. § 28.1503 certainly fall into this category of exceptions.  The proper questions before this court are, first, whether the present case falls within the exception; and, second, whether the exception applies only to the 15 percent interest ceiling, or if it extends to nullify the requirement of a signed writing. [29ASR2d211]

 

In Trans United Marketing v. Haleck, CA No.2726-74, slip op. at 2, 4 (Trial Div. Feb. 23, 1977), the Trial Division of this court held that a credit arrangement between a supplier and a retailer was not a business loan within the meaning of A.S.C.A. § 28.1503 (at least if interest began accruing only after the payment due date), and therefore could not utilize 18 percent interest.  The Appellate Division, however, found this analysis to be unsound:

 

[W]e do not concur in so much of the Trial Judge's obiter dicta as relates to the non-applicability of [A.S.C.A. § 28.1503].  Analysis of the instant transaction would have led us to conclude that, even if the interest rate had been held . . . to be inconsistent with [A.S.C.A. 28.1501(a)], it would have been entirely permissible and legitimate under [A.S.C.A. § 28.1503] which statute, we conclude, is herein applicable.  The practice of the defendant was to use the plaintiff's money to carry on its business.  . . . the defendant had adopted a policy of fiscal delinquency to creditors in order to "keep the company afloat" . . . .  Clearly the use of plaintiff's funds to "keep the company afloat" falls well within the ambit of "carrying on a business" [A.S.C.A. § 28.1503].

 

Haleck v. Trans United Marketing, AP No. 15-77, slip. op. at 5 (App. Div. December 2, 1977).  Applying the foregoing analysis, it is clear that the credit arrangement in the present case falls within the business loan exception of A.S.C.A. § 28.1503, which permits an 18 percent interest rate to be charged, and is an exception to the generally applicable 15 percent ceiling imposed in A.S.C.A. § 28.1501(a).

 

[2]  The question remaining is, therefore, whether § 28.1503 operates as an exception to all of the requirements of § 28.1501(a), including the requirement that the debtor agree in writing to pay interest at a rate greater than 6 percent.  Although the Haleck court did not directly address this issue, its analysis assumed the necessity of an agreement between the parties:

 

The Trial Judge found, as a fact, that the corporate parties agreed on a rate of interest of 8% per annum upon the drafts here in question.

 

Id. at 4.  The Haleck Court also found that these interest payments and late fees were "the commercial choice of the defendant made with eyes `wide open'," and that the defendant "chose to incur it." Id.  It is also[29ASR2d212] worthy of note that the transactions involved in the Haleck case required the debtor to "execute" a written "acceptance" of draft documents with the language "plus interest at 8%" stamped on them.  Trans Union Marketing, supra at 4 (Trial Div.).  This analysis clearly supports the principle that § 28.1503 permits debtor and creditor to agree to an 18% interest rate, but not that the creditor may unilaterally charge this rate without agreement from the debtor.  It also seems to support the requirement of a writing evidencing assent by the debtor as a prerequisite to charging more than the standard 6 percent rate.  The alternative to these requirements is to permit creditors to charge interest up to the maximum business rate, without disclosing the interest rate to the debtor beforehand nor receiving his agreement to pay it.  In our view, this would be an unacceptable interpretation of the statute.

 

Furthermore, we find that the language of § 28.1501(a), which imposes requirements which are generally effective, "Except as provided in this title," textually requires that exceptions be incompatible with § 28.1501(a), otherwise no exception is "provided."  The 18 percent interest ceiling of § 28.1503 is in direct conflict with the 15 percent ceiling imposed by § 28.1501(a), and is therefore an exception to the general requirement.  There is no requirement in § 28.1503 which precludes us from applying the requirement of § 28.1501(a), that agreements for interest at a rate higher than 6 percent be documented by a writing signed by the party to be charged.  On the contrary, § 28.1503 makes it lawful to "contract for" interest at the 18 percent maximum rate, indicating that an agreement between the parties is necessary.  Defendant's affidavit gives unanswered assertions that defendant never agreed to interest charges either orally or in writing.  Even construing such evidence in favor of the non-moving party, there can be no dispute as to material facts that go unrefuted.  The proper rate of interest was, therefore, only 6 percent.

 

          B.      The Interest Rate Charged

 

Although this is a factual matter of considerable dispute, it is no longer material in light of our holding that 6 percent was the maximum allowable interest rate.  Resolving factual issues in favor of plaintiff, the interest charged was at least 14.74 percent, far above the 6 percent maximum rate, and was, therefore, usurious.   

 

ORDER

 

We enter summary judgment in favor of the defendant, dismissing this lawsuit with prejudice.

 

It is so ordered.

 

 



1  The applicable statute in this case stated:

 

Any person who directly or indirectly receives any interest, discount, or consideration for or upon the loan of forbearance to enforce the payment of money, goods and things in action, greater than two percent per month, shall be guilty of usury, and upon conviction thereof, shall be imprisoned for a period of not more than six months, or fined not more than one hundred dollars, or both.

 

 

2  Kingzio is not precisely on point, because it deals with the forfeiture of excessive interest, while the present case deals with the potential[29ASR2d210] forfeiture of the entire debt.  The principles of Kingzio can be extended with little difficulty, however, because the Kingzio Court held that the common law right to recover usurious interest "exists only if it is declared illegal to collect excess interest or the statute provides that a contract to collect excess interest above the stated rate is void in whole or in part."  Kingzio, supra at 347 (emphasis added).  In other words, the availability of the common law right to recover usurious interest, and the extent of the recovery depend upon the statutory scheme.  Whether the statute declares a usurious contract void as a whole or only to the extent of the usury, a personal right to use usury as a defense to a suit on the contract exists at common law.  See 45 Am Jur 2d Interest & Usury §§ 288, 311.  In the present case if usury is found, the contract must be declared "void in whole." 

Tulafono v. Semeatu


[29ASR2d193]

 

 

 SEQ CHAPTER \h \r 1MARYANN T. TULAFONO,  Plaintiff

 

v.

 

 

MUAMUA SEMEATU, SALA SEMEATU and DOES II-V, Defendants

_______________________________

    

MUAMUA AND SALA SEMEATU,  Plaintiffs

 

v.

 

ESTATE OF VINCENT AH SAN and   HEIRS OF VINCENT AH SAN, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 30-93

LT No. 11-91

 

March 6, 1996

 

[1]  A land title registration, completed according to proper statutory procedures, establishes good title against the world.  Absent evidence of fraud or non-compliance with statutory procedures, registration of title cannot later be questioned.

 

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

 

Counsel:    For Plaintiff, Togiola T. A. Tulafono

                   For Defendants/Plaintiffs Muamua and Sala Semeatu,

                   Charles V. Ala`ilima

For Defendants Estate and Heirs of Vincent Ah San, Afoa L. Su'esu'e Lutu

 

Opinion and Order:

This case concerns two registered parcels of land which overlap.[29ASR2d194]

 

 

PROCEDURAL HISTORY

 

Plaintiff Maryann T. Tulafono ("Tulafono") filed her action (LT No. 30-93) on July 20, 1993 to evict defendants Muamua Semeatu and Sala Semeatu1 (collectively "the Semeatus") from the land at issue.  Two years earlier, on March 21, 1991, the Semeatus had filed their action (LT No. 11-91) against the Estate and Heirs of Vincent Ah San ("the Estate"), asking for a declaration of the Semeatus’ title to a larger area encompassing the land at issue in this case.      

 

The court consolidated these actions on March 16, 1995, pursuant to T.C.R.C.P. 42(a).  However, the administrator of the Estate was unavailable at trial, and on the Estate's motion, we separated the trial on issues of the Estate's financial liability to the Semeatus, pursuant to T.C.R.C.P. 42(b).  Trial was held on the remaining issues, with counsel for all parties, including the Estate, present.

 

FACTUAL HISTORY

 

We will separately discuss the two overlapping parcels and a parcel of land to the south.

 

          1.  Leuluasi: the Semeatu Parcel

 

On March 17, 1972, after three objectors withdrew their objections before the end of the 60-day statutory notice period, the Territorial Registrar registered land named Leuluasi, located in the Village of Ili`ili, as individually owned land of Logotala Letulisgasenoa ("Logotala").  On October 20, 1975, the Registrar recorded a warranty deed by which Logotala conveyed a portion of Leuluasi to Vincent Ah San ("Ah San") as individually owned land.

 

On August 15, 1985, the Registrar registered a contract of sale of Ah San's portion of Leuluasi to the Semeatus for a purchase price of $15,000.  The contract, dated August 3, 1984, called for an immediate down payment of $8,000, with the balance payable in 35 payments of $200 per month, beginning in September, 1984.  Ah San was to deliver a deed to the Semeatus upon receipt of the down payment, and assurance that the balance would be paid.  Ah San did deliver a warranty deed to the Semeatus on September 10, 1984, but it was not registered.2   According to the contract, the Semeatus were entitled to possession of this parcel no later than September 2, 1984, and apparently took possession on or about that date.  Except for the relocation adjustment required by Lutu v. Semeatu, LT No. 9-87, slip op. (Dec. 14, 1989), the Semeatus have remained in possession of the land since that time. 

 

2.  Leuluesi: The Lutu Parcel

 

On December 18, 1981, the Registrar recorded a warranty deed by which Logotala transferred another portion of Leuluasi to Sinira Fuimaono Lutu ("Lutu") as individually owned land.3  Lutu, LT 9-87 was filed when Lutu went to clear her parcel in 1986 and found the Semeatu in possession.  The court in Lutu found that under their respective deeds, most of the northern boundary of Lutu's parcel was meant to share the southern boundary of Semeatus’ parcel.  Ruling in Lutu's favor, the court permanently enjoined the Semeatus from possession of Lutu's portion, and effectively moved the Semeatus’ parcel northward.  The Lutu court specifically left open the issues pertaining to the western boundary of Leuluasi and the eastern boundary of Lauofe, which in part is the subject of the present matter.

 

          3.  Lauofe: the Tulafono Parcel

 

Meanwhile, on March 18, 1981, the Registrar registered land named Lauofe in Ili`ili, as individually owned land of Lupelele Letuligasenoa ("Lupelele").  On August 14, 1986, the Registrar registered a warranty deed by which Pacific Industries, Inc. conveyed a portion of Lauofe to Tulafono as individually owned land.4  Most of Tulafono's claimed parcel in Lauofe overlaps with the Semeatus’ parcel in Leuluasi, as relocated by the Lutu court.

 

DISCUSSION

 

The evidence clearly shows that both Tulafono and the Semeatus possess chains of title to their overlapping, individually owned land descending from their respective land registrants.  Thus, as between Tulafono and the Semeatu, the sole issue to resolve is which chain of title will prevail with respect to the overlap.

 

[1]  American Samoa law is clear.  A land title registration, completed according to proper statutory procedures, establishes "good title against the world."  Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71, 72 (Land & Titles Div. 1990).  Absent evidence of fraud or non-compliance with statutory procedures, registration of title "cannot later be questioned."  Ifopo v. Siatu`u, 10 A.S.R.2d 66, 69 (Land & Titles Div. 1989) aff`d. 12 A.S.R.2d 24 (App. Div. 1989).

 

In the present case, we find no evidence of fraud or non-compliance with the registration statutes in connection with the registration of Leuluasi in Logotala's name in 1975.  Tulafono vigorously argues that the failure of anyone to pursue an objection within the 60-day period provided by A.S.C.A. § 37.0103 to the registration of Lauofe in Lupelele's name in 1981 invalidated Logotala's registration in 1975 and the registered titles of his successors, including the Semeatus.  This flawed argument completely overlooks the much stronger argument that the failure of anyone to pursue an objection within the 60-day statutory notice period to the registration of Leuluasi in Logotala's name in 1975 rendered any future claims to that land by Lupelele and his successors, including Tulafono, null and void. 

 

Since Logotala's earlier title registration of Leuluasi was good against the world, ownership of any portion of Lauofe lying within Leuluasi could not be later obtained by Lupelele, by title registration alone, or by his successors, Tulafono included, solely through conveyances.  Thus, the Semeatu's registered title prevails over Tulafono's title claim.  This rule is strict to establish finality in land titles.  "A later registration of the same land would therefore be of no legal effect."  Fa`aaua`a, 15 A.S.R.2d at 72; Lealaimatafao v. Misiata, 17 A.S.R.2d 110 (Land & Titles Div. 1990).

 

As between the Semeatus and the Estate, the Semeatus have continued to pay the purchase price of their portion of Leulausi and have reasonably assured the Estate that the full purchase price will be paid.  The administrator of the Estate has reasonably accepted the Semeatus’ assurance by executing a warranty deed conveying this portion of Leuluasi by the Estate to the Semeatus.  The Semeatus are now entitled to the Registrar's registration of that deed.

 

ORDER

 

1.  The disputed area within the overlap is a portion of the correctly registered Leuluasi, not the incorrectly registered part of Lauofe.

 

2.  The Semeatus are entitled to ownership of the parcel in Leuluasi, including the disputed area, sold to them by Ah San, subject only to any other conflicting conveyances Logotala or Ah San may have made.  The warranty deed conveying this parcel in Leuluasi by the Estate to the Semeatus shall now be registered by the Territorial Registrar.  The Semeatus shall completely perform their obligations under the contract of sale of this parcel to them.

 

3.  Tulafono retains any legally valid claims to ownership of portions of her claimed parcel which lie outside of the overlap. 

 

It is so ordered.

********

 



1  Since Sala Semeatu is a plaintiff in LT No. 11-91 and is a purchaser of record (with Muamua Semeatu) of the land at issue, we have, on our own motion, substituted her as a named defendant for Doe I in LT No. 30-93. [29ASR2d195]

 

2  Although witness signature lines and acknowledgement before the Territorial Registrar were included in the form, no witnesses signed this deed, and although dated September 10, 1984, the Registrar did not sign the acknowledgment.  Perhaps Ah San did not appear before the Registrar, because the purchase price had not yet been fully paid.  See Lutu v. Semeatu, LT No. 9-87, slip op. at 1 (Dec. 14, 1989).  However, as discussed supra, we are satisfied that at least by May 27, 1992, the Estate's administrator believed that she had sufficient assurance of payment of the entire balance, based on the Semeatus’ monthly payment record, to warrant delivery of a fully executed deed. 

 

Additionally, for purposes of deciding issues presently tried in LT No. 11-91, we take judicial notice of the Estate of Ah San, PR No. 12-91.  Ah San died intestate on June 30, 1990, and the administrator was appointed June 10, 1991.  On May 27, 1992, counsel for the Estate and the Semeatus submitted a stipulated settlement of the Semeatus’ claim against the Estate.  The Semeatus signed a promissory note, dated January 7, 1992, for the $4,000 remaining balance on the purchase price, to be paid in $200 monthly installments, beginning in February, 1992.  The administrator then signed a warranty deed, dated March 27, 1992.  This deed was offered for recordation on April 7, 1992, but the Registrar declined to record it without a court order.  The Estate of Ah San court questioned delivery of the deed without either full payment of the purchase price or a mortgage.  The Semeatus and administrator explained with a supplemental stipulation that they also intended to settle Semeatus’ claim (LT No. 11-91) against the Estate for the Semeatus’ costs in defending their boundaries.  However, neither the Semeatus nor the administrator followed up this explanation with the Estate of Ah San court, and that court has yet to act on the proposed settlement.[29ASR2d196]

 

3  Lutu Tenari S. Fuimaono and Sinira T. Fuimaono were listed as grantees in the deed.  However, the litigation that followed, Lutu, LT No. 9-87, was brought in Sinira's name alone, as Sinira Fuimaono Lutu, and the Court treated her as the sole titleholder.

 

4  Tulafono was the fourth recorded successor to Lupelele of this parcel in of Lauofe.  The preceding three successors were: Afano F. Blankenship, December 9, 1981; Gus Cordtz,December 5, 1984; and Pacific Industries, Inc., July 22, 1986.[29ASR2d197]

Taufetee; Purse Seine Services (Samoa), Inc. v.,


[29ASR2d158]

 

PURSE SEINER SERVICES (SAMOA), INC., Plaintiff       

                               

v.                             

                               

TAGALOA LANG TAUFETEE dba LOA'S TRAVEL, Defendant     

                               

High Court of American Samoa

Trial Division

 

CA No. 2-95

 

January 16, 1996

 

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

 

Counsel:    For Plaintiff, William H. Reardon

                    For Defendant, Afoafouvale Lutu

 

Opinion and Order:

 

Plaintiff owns and operates a travel agency with direct access to airline ticket stock.  Defendant also owns and operates a travel agency but has only had access to airline stock through plaintiff.  At all relevant times, defendant sold airline tickets for plaintiff at an agreed commission of 5% on cash receipts and 3% on American Samoa Government travel vouchers.  The latter was only payable upon plaintiff's receipt of payment from the government on its travel vouchers.  At the outset of the parties relationship, which began May 1994, plaintiff dealt with defendant on a cash basis.  A few months later, on or about August 1994, defendant sought and was extended credit.  It was the parties' management, or mismanagement, of that credit facility that subsequently resulted in the eventual dismissal of plaintiff's then sales manager, and the ensuing law suit now before the court.  According to plaintiff's reckoning of accounts, defendant owed it $50,041.06.

 

After exchanging accounts reconciliation efforts, at the urging of the court, defendant accepted, and accordingly stipulated in open court, to the extent of $23,422.21, of the amount claimed by plaintiff.  The issue then remaining for trial was whether defendant owed the difference, namely, $26,618.85.  Of this amount, plaintiff indicated its willingness to concede, as de minimis, defendant's claim of $870.50, said to be her commission share on unused ticket refunds.  On the basis of this concession, the court is prepared to give defendant the benefit of the doubt and apply the sum of $870.50 in her favor.[29ASR2d159]

 

As to the remaining $25,748.35 in contention, defendant claims that she had already turned in a substantial amount of money to Cecil Fairholt, plaintiff's sales manager at the time, who did not always give her a receipt for the cash that she gave him.  Fairholt, on the other hand, testified that while receipts were not always issued contemporaneously when cash was picked up from defendant, receipts were eventually issued for everything turned in by defendant.

 

We are satisfied that plaintiff's reconciliation of accounts, based on the extent of its records, was correctly compiled.  By comparison, we find defendant's submission to be on dubious footing.  She claims that she has turned over all funds that she had received for ticket sales but for approximately $15,000, which she seems to think is about what her account should be.  The principal basis of defendant's claim is a log which she testified she had kept for the purpose of recording cash payments, as she made them to either Fairholt or others of plaintiff's staff.  After careful review of this log, however, we are unable to accept plaintiff's claim that the log's holographic entries reflect a chronology of contemporaneous recordings of cash disbursements made from time to time.  Rather, the log appears more like a reconstruction exercise undertaken at one time, ostensibly in preparation for trial.  In our assessment, this log is hardly trustworthy evidence of defendant's claim.

 

We find that the evidence preponderates in favor of plaintiff's version of the accounts as presenting the more accurate picture of the accounts between the parties.  We, therefore, conclude that defendant is, in addition to the conceded indebtedness of $23,422.21, further indebted to plaintiff in the sum of $25,748.35.  The clerk will enter judgment accordingly in favor of plaintiff, and against defendant, in the total sum of $49,170.56.

 

It is so ordered.

 

Lutali; Senate v.


[29ASR2d165]

 

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

 

v.

 

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

 

High Court of American Samoa

Trial Division

 

CA No. 40-94

 

February 5, 1996

 

[1]  A court cannot, by injunction or mandamus, control executive branch officials in their legitimate exercise of discretion.  A court may, however, enjoin executive action when executive branch officials assume to act in contravention of the constitution or laws applicable in the jurisdiction.        

 

[2]  A court's authority extends to restraints on executive branch officials from overspending  legislative appropriations. 

 

[3]  If an executive branch official has authorized an improper expenditure of public funds, a declaratory judgment is appropriate.  If, however, the expenditure is threatened in the future, such as a governor’s announced intention to do business in a manner that would result in a violation of the law, injunctive relief is appropriate.  [29ASR2d166]

 

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

 

Counsel:    For Plaintiffs, Arthur Ripley, Jr., Counsel for the Senate, and Gata E. Gurr, Legislative Counsel

For Defendants, Jennifer L. Joneson, Assistant Attorney General, and Elvis R.P. Patea, Assistant Attorney General

 

We enjoined defendants in our decision of March 1, 1995 ("our first order"), from paying salary step increments to American Samoa Government ("ASG") employees or past debts to ASG vendors from funds not properly obligated from appropriations for the fiscal years in which the transactions were budgeted, without current appropriations by the Legislature for such purposes.  On March 13, 1995, defendants filed a motion for reconsideration or new trial.  On March 17, 1995, we addressed, without hearing, one issue in defendants' motion ("our tax order"), declaring that ASG has no ownership interest in income tax refund monies and consequently that payment of tax refunds need not be authorized by legislative appropriation.  We regularly heard the remainder of ASG's motion on October 18, 1995, with counsel for both parties present.       

 

Defendants' pending motion essentially seeks to amend the judgment and includes the following issues: (1) a request that we define the term "vendor" as used in our first order, for purposes of defining the reach of the order to ASG expenditures; (2) whether we should vacate our first order with respect to the Attorney General, since he personally threatened no illegal action; and (3) whether our first order should be amended to deny a permanent injunction, since the effect of the injunction may be unclear and unpredictable in some circumstances, effectively giving the court continuing oversight authority over ASG's executive branch.

 

          1.      Vendor

 

Defendants' request for a definition of the term "vendor" misses the point of both our first order and our tax order.  The point we intended to make in distinguishing taxpayers from vendors in our tax order is that the payment of tax refunds is not an ASG expenditure, which requires legislative approval.  It would be ludicrous to suggest that ASG could withhold funds from tax payments in excess of a taxpayer's tax liability, and then require a legislative appropriation before the taxpayer could receive a refund of money which ASG was never legally entitled to retain.  Tax refunds are simply not ASG expenditures.  [29ASR2d167]

 

We did not, however, intend to either designate a "vendor" as a special type of creature for which the law has a unique application, or to make the word "vendor" a term of art.  We merely said that the payment of debts to vendors falls within the category of expenditures to which the budget obligation rules of A.S.A.C. § 5.0103(16) apply.  Clearly, these rules apply to a broader class of ASG expenditures than merely the payment of debts to, for example, "procurement vendors" of goods, services, or construction.  This should have been evident in the fact that we also applied these rules to prevent the retroactive payment of salary step increments to ASG employees in our first order. 

 

For the foregoing reasons, we believe that providing a specialized definition of the word "vendor" for interpretation of our rulings would be unprincipled and, therefore, deny defendants' request that we do so.

 

          2.      The Attorney General

 

T.C.R.C.P. 21 assigns the power to drop defendants to the trial court's discretion.  United Stated v. Wyoming National Bank of Casper, 505 F.2d 1064, 1067 (10th Cir. 1974) (construing F.R.C.P. 21, which T.C.R.C.P. 21 precisely mirrors); see also 67A C.J.S. Parties § 65b.  The trial court's decision will not be disturbed unless an abuse of discretion is demonstrated.  Id.  We believe the Attorney General to be a proper party based on the fact that he is responsible to ensure, to the best of his ability, that the law is followed in ASG's executive branch.  Evidence in this case that he supported the Governor's intentions to make unauthorized expenditures of public funds, and that he made no effort to advise the Governor against such action, qualifies him as a proper party. 

 

          3.      The Permanent Injunction

 

Defendants argue that our permanent injunction permits us to retain continuing jurisdiction over administrative processes, and to impermissibly bind the defendants' successors in office.  Perhaps one could offer the same argument if we enjoined a public employee from embezzling money from the public treasury.  The fact is, however, that the law already enjoins such conduct.  A court injunction merely interprets the commands of the law, and strengthens them by ordering that the law not be violated in a specified case, or in a particular manner.  The true question is what the law requires, and our first order plainly answered that question. 

 

[1-3]  The law on these matters is clear.  A court cannot, by injunction or mandamus, control executive branch officials in their legitimate exercise of discretion.  Cooke v. Iverson, 122 N.W.2d 251, 253 (Minn. 1909).  A court may, however, enjoin executive action when executive branch [29ASR2d168] officials assume to act in contravention of the constitution or laws applicable in the jurisdiction.  Id.           Furthermore, a court's authority extends to restraints on executive branch officials from overspending  legislative appropriations.  See Webster v. DouglasCounty, 77 N.W. 885, 887 (Wis. 1899).  If an executive branch official has authorized an improper expenditure of public funds, a declaratory judgment is appropriate.  Central Valley Chapter v. Younger, 157 Cal.Rptr. 117, 128 (Cal. App. 1979).  If, however, the expenditure is "threatened in the future," injunctive relief is appropriate.  Id.  The action enjoined in the present case was prospective, and involved the Governor's announced intention to do business in a manner that would result in a violation of the law.  Injunctive relief was, therefore, appropriate. 

 

Additionally, we cannot neglect the factual finding of our first opinion, supported by a GAO Report, that ASG's mounting deficits were largely a result of ASG officials' unwillingness to keep expenditures within legislative appropriations, and to otherwise follow proper budgeting laws and procedures.  These factual findings leave little room for doubt that an injunction is appropriate to prevent such wilful neglect of these laws in the future.  We were within our legitimate powers to grant the injunction and, therefore, deny the motion to vacate it.

 

Defendants' motion for reconsideration or new trial is denied in every respect. 

 

It is so ordered.

 

 

Lavata`i v. Pu`efua


[29ASR2d107]

 

 

MALAKAI LAVATA`I, Plaintiff

 

v.

 

PELE PU`EFUA, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 43-95

 

December 4, 1995

 

[1]  Any lease of communal land not submitted to the governor for approval is void.

 

[2]  It is the policy of this court to encourage the submission of leases for communal land to the governor for approval.  The court will not imply validity of a lease of communal land not submitted to the governor for approval.

 

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

 

Counsel:    For Plaintiff, Afoa Moega Lutu

                   For Defendant, Asaua Fuimaono

Order Granting Petition for Summary Eviction:

On August 1, 1991, plaintiff Faima Lavata`i and defendant Pele Pu`efua entered into a lease agreement for a portion of Lavata`i communal land known as "Lepine" in Malaeimi.  Pu`efua was to lease the land for ten years at a rate rising over the term of the lease from $500 to $600 per month.  The lease document was never submitted to the Governor for approval.[29ASR2d108]

 

On April 13, 1995, Malakai Lavata`i, acting as his father Faima's representative, brought summary eviction proceedings, under A.S.C.A. §§ 43.1401 et seq., against Pu`efua for violating various provisions of the lease, including failure to pay rent.  Pu`efua filed an answer and counterclaim on April 25, 1995.  The matter case for hearing on September 14, 1995, with both parties represented by counsel. 

 

[1]  Regardless of any claims made under the lease by either party, the lease is void.  A.S.C.A. § 37.0221 provides that any lease of communal land "shall be submitted . . . to the Governor for approval, and it shall have no validity until such approval has been signified in writing."  Id. (emphasis added).  This lease was for communal land, but it was never submitted to the Governor for approval.  Therefore, the lease never had any effect.  Thus, regardless of the arguments defendant makes under the lease, he has no right to be on the land.  He is, therefore, subject to eviction by the rightful owner. 

 

[2]  It is the policy of this court to encourage the submission of leases for communal land to the governor for approval.  See, e.g., Sagapolutele v. Tala`i, 20 A.S.R. 2d 16 (Land & Titles Div. 1991).  The law is that leases not properly submitted shall have no validity.  We will not imply validity where it is explicitly denied by statute.  Thus, neither party has any right under the invalid lease.  Lavata`i's petition for summary eviction will, therefore, be granted.

 

The issues of unjust enrichment (compensation for the value of good faith improvements made to land) raised by the defendant will not be decided in this summary proceeding, but must be considered at trial.  We need not determine the unjust enrichment issue to rule on the petition to recover possession of premises by summary proceedings.  See A.S.C.A. § 43.1411.

 

For reasons given, judgment for possession, pursuant to A.S.C.A. § 43.1412, will enter in favor of plaintiff Lavata`i, without prejudice to any counterclaims that Pu`efua may have.

 

It is so ordered.

 

 

 

 

********

 

Kim; Pago Petoleum Products, Inc. v.


[29ASR2d218]

 

 

 SEQ CHAPTER \h \r 1PAGO PETROLEUM PRODUCTS, INC., Plaintiff

 

v.

 

SOO NAM KIM, DONG HEUI FISHERIES CO., LTD., and YOUNG CAYMAN CO., LTD., Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 39-94

 

March 18, 1996

 

 

[1]  A document may be under a party's control, even though he does not have a copy in his possession, if he has a legal right to obtain it.

 

[2]  The language of T.C.R.C.P. 37 is mandatory--if the court grants the motion to compel discovery, the court shall award costs and attorneys' fees.

 

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

 

Counsel:    For Plaintiff, Barry I. Rose

                   For Defendants, Togiola T.A. Tulafono

 

Order Compelling Discovery and Awarding Attorney's Fees:[29ASR2d219]

 

 

I.  Introduction

Plaintiff Pago Petroleum Products, Inc., ("PPP") has moved under Trial Court Rule of Civil Procedure 37 to compel the defendants to properly respond to PPP's Request for the Production of Documents, filed with this court October 4, 1995.  PPP alleges that the defendants' response, filed November 24, 1995, is incomplete and evasive.

 

II.  DISCUSSION

 

A.  Applicable Law

 

Rule 34 of the Trial Court Rules of Civil Procedure allows a party to serve a request on another party to produce and permit inspection and copying of any designated documents falling within the scope of Rule 26.  Rule 26, in turn, provides that:

 

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

 

T.C.R.C.P. 26(b)(1).  Thus, Rule 34 allows a party to make a broad request for document production, with which the served party must comply unless they have a valid objection on the grounds of privilege or irrelevance.

 

Rule 34 requires the party requested to produce documents to file a written response to that request.  T.C.R.C.P. 34(b); see also 8 Wright, Charles A. & Arthur R. Miller, Federal Practice and Procedure § 2213 at 639 (1970).  This response may assert the party's compliance with the request, may list objections to the request, or may otherwise list grounds why the production is not possible.

 

Rule 37 allows a party to bring a motion to compel production under Rule 34 if the served party fails to respond to the request for production.  Rule 37(a)(3) further provides that an incomplete or evasive answer can [29ASR2d220] be treated by the court as a failure to respond.  PPP seeks us to compel discovery under thirteen requests for production made upon the defendants.

 

B.  Alleged Failures

 

PPP's first request asks for the "stock book maintained by Dong Heui Fisheries, Ltd., including all transfers.  If no such book exists, submit a record of all shareholders, the date shares were acquired, the number of shares held and any transfers."  Pl.'s Req. Produc. Docs. at 2 [hereinafter Request].  The defendants respond that the stock books were destroyed in Korea, but fail to provide any further record as requested.  Although they list the distribution of shares, they give no information about the date stock was acquired, the number of shares acquired, or transfers.  One of PPP's main contentions in this case is that the court should pierce the corporate veil and hold defendant Soo Nam Kim personally liable for the debts of the corporate defendants.  Information about the distribution of shares in the defendant corporations is relevant to this argument.  Defendants have made no objection to producing this information.  Thus, defendants should have complied with PPP's request.  Their answer is incomplete, and we will compel discovery on this point.

 

PPP's second request asks for the same information about Young Cayman Company ("Young Cayman").  Defendants again respond that no stock book exists and provide the same incomplete information as they did to PPP's first request.  We will compel discovery on this point also.

 

PPP's third and fourth requests are for documents relating to the incorporation of Dong Heui Fisheries Company ("Dong Heui") and Young Cayman, respectively.  The defendants apparently do not have copies of these documents in their possession, but are attempting to get them from Korea and the Cayman Islands.  Defendants must make a good faith attempt to do so, but their answer on this point is not otherwise deficient.  Should PPP discover that the defendants have acted fraudulently or in bad faith, it should move for both compulsion of discovery and contempt of court.  In the absence of such information, the defendants appear to be attempting to comply with the request, and we will not further compel production as long as they continue to make a good faith effort at compliance.

 

Requests number five and six ask for the tax return documents filed by the two companies from 1986 to the present.  The defendants response to each request is merely "None."  See Defs.' Resp. Req. Produc. at 2 [hereinafter Response]. This response is incomplete because it does not indicate whether no tax returns were filed, whether defendants do not [29ASR2d221] have copies of such documents, or what else "none" could mean.  If defendants refuse to produce documents, they must provide a clear and precise explanation why. 

 

[1]  Furthermore, Rule 34 provides that a party must produce documents in his "possession, custody or control."  T.C.R.C.P. 34(a) (emphasis added).  A document may be under a party's control, even though he does not have a copy in his possession, if he has a legal right to obtain it.  See Wright & Miller, supra, § 2210, at 621; 10 Federal Procedure, L. Ed. § 26:222, at 427 (1982) ("The true test is control and not possession, the test being whether the party has a legal right to control or obtain the documents" (footnote omitted).  This includes tax returns in the possession of the government.  See Reeves v. Pennsylvania R.R. Co., 80 F. Supp. 107, 108-09 (D.C. Del. 1948).  Thus, the defendants in this case are required to obtain copies of their tax returns, even if they do not have copies in their possession.  We will compel discovery on these points also.

 

PPP's seventh request was for the personal income tax returns of defendant Kim.  Defendants objected on the grounds of irrelevance.  As we stated above, one of PPP's primary arguments is that the corporate entities involved in this suit were shams, and that the corporate veil should be pierced to hold Kim personally liable for the corporations' debts.  To develop this argument, PPP must be able to discover how the finances of the corporate defendants were handled and what assets Mr. Kim received from them.  Mr. Kim's tax returns are directly relevant to this line of inquiry.  This is even more true in light of the fact that the defendants have turned over so little information on the economic structures of the corporations themselves.  We will compel discovery on this point.  As we noted above, Mr. Kim must produce copies of his tax returns even if he does not have them in his possession.

 

Requests number eight, nine and ten ask for copies of the bank records of Dong Heui, Young Cayman and Kim, respectively, from 1986 to the present.  Defendants respond to the first inquiry by giving the account numbers for the corporation's accounts, but then stating:  "There are no records available on these accounts with the defendants."  See Response at 2.  As we stated above, however, the standard is not whether the defendants have the records with them, but whether they have control over them.  If copies of a party's bank records are easily obtainable by that party, we consider them to be under their control.  To hold otherwise would be to punish the diligent record keeper and award the party who has uncaringly disposed of records.[29ASR2d222]

 

The defendants respond to the ninth and tenth requests by again stating merely "None."1  See id.  As we stated above, such a response will almost always be incomplete because it does not give an adequate explanation why the documents are not being produced.  Surely the defendants do not mean that Young Cayman, a corporation, and Kim, a successful business man, do not and have not had bank accounts.  Such an assertion would be highly incredible, and certainly could not be adequately supported by the answer "none."  We will compel discovery of the bank documents for all three defendants.

         

Requests #11, 12, 13 and 14 ask for various business records showing transactions and communication between Kim and the corporate defendants.  Primarily, the defendants respond by again stating that there are "none" of these documents.  See id.  These answers are again ambiguous.  We cannot compel the production of nonexistent documents.  If that is what defendants meant--that these documents do not exist, either in or out of their control--we cannot make them produce them.  If, however, the documents are not in the defendants' possession, but are otherwise obtainable by them, and thus under their control, they must produce them as with the tax returns and bank records above.  If the records exist but are not under the defendants' control, they must indicate where the records are, who controls them, and why the defendants cannot easily gain control of them.  Additionally, if PPP discovers that the defendants have acted fraudulently or in bad faith, it can bring a contempt motion.  Thus, production will be compelled on these points to the extent that the defendants have control (or reasonable access) to the documents requested.

 

C.  Award of Costs and Attorneys' Fees

 

[2]  Rule 37 provides that

 

[i]f the motion [to compel discovery] is granted, the court shall . . . require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.[29ASR2d223]

 

T.C.R.C.P. 34(a)(4) (emphasis added).  The language of the Rule is mandatory--if we grant the motion, we "shall" award costs and attorneys' fees.

 

We have granted PPP's motion, almost in its entirety.  There is certainly nothing in the defendants incomplete answers which leads us to believe that their opposition to discovery was substantially justified.  Nor have they filed any other document claiming such.  Thus, we award PPP its reasonable costs in filing this motion, including attorneys' fees.

 

It is difficult to tell whether the defendants or their attorney is primarily at fault.  If the request was treated as many such requests are, the attorney probably played a large part in the preparation of their response.2  Still, the defendants themselves have failed to obtain copies of a number of requested documents over which they have control.  Therefore, one half of PPP's costs shall be paid by the defendants and one half shall be paid by their attorney.

 

III.  CONCLUSION

 

PPP's motion to compel the production of documents is granted to the extent stated above.  Furthermore, the defendants and their attorney are ordered to pay PPP's reasonable costs in obtaining this order, including attorneys' fees.

 

It is so ordered.

 

 

 

 



1   Defendants have not objected to the production of Kim's bank records as irrelevant, as they did with his tax returns.  Nevertheless, his bank records are relevant for the same reasons as his tax returns.

 

2   Our suspicion that the attorney aided in preparing the response is bolstered by the fact that the attorney himself answered and signed a later set of interrogatories directed to the defendants, although this is improper conduct.  See T.C.R.C.P. 33 ("Any party may serve . . . written interrogatories to be answered by the party served . . . ." (emphasis added)); see also Wright & Miller, supra, § 2172, at 535 & n.29 ("Interrogatories . . . must be answered by that party.  It is improper for his attorney to answer them . . . ." (footnote omitted)).  The interrogatory is not in issue under this motion, however.

Kent Samoa, Inc. v. Shimasaki,


 

[29ASR2d44]

 

 

KENT SAMOA INC., dba KENT  RENTAL & EQUIPMENT LEASING,  Plaintiff

 

v.

 

FINA L. SHIMASAKI, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 125-94

 

October 4, 1995

 

[1]  Ambiguous terms in a form contract will be construed most strongly against the party who framed and prepared them.

 

[2]   A strong presumption prevails against construction of contract terms in a way that permits one party to exercise unbridled discretion to the detriment of the other.

 

[3]  A vehicle owner is vicariously liable for accidents caused by the negligence of others driving the vehicle with permission, but has a right to indemnity from the principal tortfeaser when forced to pay damages.

 

[4]  The owner of a rental vehicle is vicariously liable as long as the offending driver operates the vehicle with the rental company's express or implied permission.  Foma`i v. Samana, 4 A.S.R.2d 102, 106-07 (Trial Div. 1987). 

 

[5]  A person must be at fault in the accident to be considered the principal tortfeaser, causing vicarious liability to attach to the vehicle's owner for third party claims, and for the owner to consequently have a right of indemnity against the driver.

 

[6]  An agent to whom the principal gives the appearance of authority may bind the principal regardless of whether actual authority exists.

 

[7]  If a genuine mistake results in an erroneous calculation of damages, such mistake provides an escape from an otherwise binding accord. [29ASR2d45]

 

[8]  When an agent settles a claim on behalf of its principal, which settlement is dependent upon facts known to be doubtful, the settlement is not voidable when the doubtful facts turn out to be incorrect.

 

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

 

Counsel:    For Plaintiff, Katopau Ainu`u

                   For Defendant, Barry I. Rose

Opinion and Order:

PROCEDURAL HISTORY

Plaintiff Kent Samoa, Inc., dba Kent Rental & Equipment Leasing ("Kent") filed this action against defendant Fina L. Shimasaki ("Shimasaki") seeking reimbursement for substantial repairs to a vehicle rented by Kent to Shimasaki and two other vehicles, loss of income while the rental vehicle was under repair, and punitive damages arising out of a multi-vehicle accident.

 

Kent moved for summary judgment, arguing that since the rental agreement imposed absolute liability, no issues of fact were triable.  On March 2, 1995, we denied this motion, holding that whether or not $1,000 already paid by Shimasaki to Kent constituted an accord and satisfaction was a genuine issue of fact.  Trial was held on August 25, 1995, with Shimasaki and counsel for both parties present.  

 

FACTS

 

On February 14, 1992, Shimasaki rented an automobile from plaintiff Kent, listing herself as the driver.  On February 18, 1992, Shimasaki's son, Andy Tafua ("Tafua"), drove the rental vehicle and was involved in an accident resulting in damage to the rental vehicle and four other vehicles.  Tafua was then under the age of 21 years and had no driver's license. 

 

The rental agreement required that the vehicle be operated only by duly licensed drivers over the age of 21.  The rental agreement also provided the option for the renter to purchase insurance for the vehicle and purported to make the renter absolutely liable otherwise for damage to the vehicle, "regardless of negligence."  Shimasaki did not exercise the insurance option, but also did not initial the box on the agreement taking "FULL RESPONSIBILITY . . . REGARDLESS OF NEGLIGENCE."  [29ASR2d46]

 

A short time after the accident, Shimasaki received a telephone call from a representative of Kent, who informed her that she was required to pay a $1,000 insurance deductible to relieve herself from liability.  Shimasaki met with the representative at Kent's offices and, after the representative assured her that $1,000 was all she would have to pay, paid that amount.  In due course, the insurance company refused to pay for the accident based on the fact that Tafua was underage and unlicensed. 

 

Kent paid for repairs to the rental vehicle and settled the claims of four other motorists in the accident with its own funds.  The fifth motorist was covered by collision insurance.  Kent then filed this action with respect to rental vehicle and two other vehicles which were extensively damaged. 

 

DISCUSSION

 

Kent denies the theory that the $1,000 paid by Shimasaki was an accord and satisfaction, claiming that its agent had no authority to settle claims on Kent's behalf, that $1,000 was never represented as fully satisfying the debt, and that $1,000 is a standard initial charge whenever an accident occurs, rather than an insurance deductible.  Shimasaki argues, in response, that she was told more than once that a $1,000 payment would discharge her liability to the company, that she never gave Kent authority to negotiate or settle third-party claims on her behalf, and that the absence of any evidence of fault in the accident clears her of any further liability.

 

          1.  Authority to Settle and Requirement of Fault

 

The rental agreement states, in relevant part:

 

Renter is responsible for and will reimburse KENT upon demand for all loss or damage whatsoever (regardless of negligence) to Vehicle and other equipment, but specified on the reverse side of this Agreement, per occurrence, unless vehicle was used, operated or driven in violation of any provision of this Agreement.1[29ASR2d46]

 

The foregoing language assigns the risk of damage to the "Vehicle and other equipment" to the renter, in this case Shimasaki, without regard to fault.  This point alone, however, does not end the argument.  Assuming for the sake of discussion that the term "other equipment" includes other vehicles in the accident (an improbable assumption), a strict interpretation of the agreement might provide Kent with authority to settle claims for any amount it desires and summarily bind the renter to "reimburse Kent upon demand" regardless of how outrageous the settlement, and regardless of fault. 

 

[1-2]  We are guided in our interpretation of the agreement by two principles.  First, ambiguous terms in a form contract will be construed "most strongly against the plaintiff who framed and prepared" them.  New Prague Flouring Mill v. Spears, 189 N.W. 815, 821 (Iowa 1922).  Second, a strong presumption prevails against construction of contract terms in a way that permits one party to exercise unbridled discretion to the detriment of the other.  Id. at 822.  Accordingly, we hold that the term "other equipment" does not refer to other vehicles which may be involved in accidents with Kent's vehicles. 

 

It is easily understood that an automobile rental company may well demand that the renter bear the risk of damage to the rental vehicle, even where the accident is the fault of a third party.  Any time a rental vehicle is driven, there is a real risk that a third party may damage it and an innocent party may end up bearing the cost.  A rental car company can reasonably protect itself against the loss or damage of its vehicle due to a third party's negligence by assigning the risk of such loss or damage to the renter. 

         

[3]  However, Kent's attempt to reserve the authority to settle non-adjudicated claims of third parties at the renter's expense is a different matter.  In this case, no language in the agreement purports to provide this authority.  Kent can only claim such authority on the basis that Kent is vicariously liable and may be directly sued by the drivers of other vehicles in an accident.  A vehicle owner is vicariously liable for accidents caused by the negligence of others driving the vehicle with permission, but has a right to indemnity from the principal tortfeaser when forced to pay damages.  Vaiti v. Tuiolemotu, 19 A.S.R.2d 71, 74 (Trial Div. 1991). 

         

[4]  The owner of a rental vehicle is vicariously liable as long as the offending driver operates the vehicle with the rental company's "express [29ASR2d47] or implied permission."  Foma`i v. Samana, 4 A.S.R.2d 102, 106-07 (Trial Div. 1987).  Statutory law requires the owner of a vehicle to maintain liability coverage on a vehicle for all potential drivers who use "the vehicle or vehicles with the express or implied permission of the named insured."  A.S.C.A. § 22.2003.  If Tafua drove the rental vehicle with Kent's express or implied permission, Kent is vicariously liable and was legally required to carry insurance covering Tafua's accident.  If this were the case, Shimasaki's payment of the $1,000 deductible should have been sufficient to cover Kent's liability to third parties.2  If, however, Tafua drove without Kent's express or implied permission, Kent was not vicariously liable for the accident and had no business settling or paying claims against Shimasaki.

         

[5]  Regardless of whether Tafua had express or implied permission to drive, he must be at fault in the accident to be considered the principal tortfeaser, causing vicarious liability to attach to the vehicle's owner, and for the owner to consequently have a right of indemnity against the driver.  Vaiti v. Tuiolemotu, 19 A.S.R.2d 71, 74 (Trial Div. 1991).  We will not consider Kent's settlement with the other drivers as conclusive proof that Tafua was at fault in the accident.  Settlement is not an admission of fault.   Litigants often settle for a variety of reasons unrelated to who was legally at fault.  Furthermore, it would be unfair for Kent to admit Tafua's fault for settlement purposes, and then to sue his mother for indemnity based on that admission.  Aside from Kent's settlement with the other drivers, we have no evidence tending to prove that Tafua was at fault in the accident.      

 

With respect to damage sustained by the rental vehicle, evidence of fault is immaterial, because the rental agreement assigns the risk of damage by third parties to the innocent renter.  Nothing in the rental agreement, however, can or should be construed to require the renter to indemnify Kent against the third parties' claims, where the renter is not shown to be at fault in the accident.  For the foregoing reasons, we hold that Kent has not established any right to indemnification against the third parties' claims.  Kent was clearly entitled only to compensation for the damage to its vehicle. 

 

The remaining question, therefore, is whether or not Shimasaki's payment of $1,000 satisfied this obligation as an accord and satisfaction.

 

          2.  Accord and Satisfaction

 

Despite Kent's assertion that $1,000 is a standard initial charge for every person renting a vehicle damaged in an accident, other testimony at trial and a notation on the receipt for payment convince us that the two parties shared the understanding that the payment was an insurance deductible.  We further find that during their meeting, Kent's representative advised Shimasaki that after the $1,000 remittance Shimasaki would not be required to make any additional payment, because insurance would cover the remainder of the damage. 

 

The issue before us is whether the foregoing factual findings support Shimasaki's contention that the $1,000 payment discharged her liability by accord and satisfaction.

 

          A.  Authority to Settle

 

[6]  Kent's primary argument is that its representative lacked authority under company policy to settle claims.  Textbook agency law, however, is that an agent, to whom the principal gives the appearance of authority, may bind the principal regardless of whether actual authority exists.  Warren A. Seavey, Agency § 8D.  As important public policy, a principal is prevented from hiding behind internal company policy when unsuspecting consumers detrimentally rely upon the representations of one cloaked with the principal's authority.  In the present case, we are satisfied that Kent's agent was cloaked with Kent's authority, and Kent will, therefore, not derive protection from any internal company policy that denied the agent the power to settle claims.

         

          B.  Payment of $1,000

         

With respect to our holding that the parties mutually understood Shimasaki's payment of $1,000 to be an insurance deductible, we take important note that this amount was charged under Kent's mistaken impression that the accident would be covered by the company's insurance policy.  In our order denying Kent's motion for summary judgment, we indicated our disfavor of the old common law rule that an accord and satisfaction may not result from partial payment of a liquidated amount.

 

[7]  The present dispute, however, does not result from a direct agreement to accept a partial payment in full satisfaction, but rather from the mistaken assumption that insurance would cover the remainder of the damages.  If a genuine mistake results in an erroneous calculation of damages, such mistake provides an escape from an otherwise binding accord.  Arthur L. Corbin, Corbin on Contracts § 1292; Charlie [29ASR2d50] Thomas Courtesy Ford v. Sid Murray Agency, 517 S.W.2d 869, 874 (Tex. App. 1975); Rhea v. Smith, 462 S.W.2d 78, 80 (Tex. App. 1970). 

 

[8]  The foregoing analysis is arguably applicable, since Kent's agreement to accept $1,000 in full satisfaction of Shimasaki's liability did not result from a genuine dispute about the amount of damages, but rather from a mistake of fact regarding the extent of insurance coverage that would be provided.  On the other hand, when a claim against an insurer depends upon facts known to be doubtful, a settlement of the claim is not voidable when the doubtful facts turn out to be incorrect.  New York Life v. Chittenden & Eastmen, 112 N.W. 96, 99 (Iowa 1907); Sears v. Grand Lodge A.O.U.W. of New York, 57 N.E. 618 (N.Y. 1900). 

 

In the present case, Kent's agent testified at trial that she knew Tafua was underage and lacked a driver's license before she accepted the $1,000 deductible.  Since the agent executed the rental agreement, we further find that the she was aware that Shimasaki had not initialed the insurance option on the contract.  Additionally, page 1 of the agreement states:

 

WARNING: Notwithstanding payment of collision waiver, if Vehicle is used in violation of any provision of this agreement . . . Renter shall be liable for all damages, as provided on the reverse side.

 

The foregoing facts indicate that it was doubtful whether Tafua's accident would be covered by the insurance policy.  Knowing the doubtful nature of the insurance claim, Kent's agent accepted the $1,000 deductible from Shimasaki, representing that she would not be required to pay any additional money. 

 

In an analogous Pennsylvania case, an insurance company was not absolved of its promise to cover the accident after payment of a negotiated sum of money, even though the liability insurance agreement was ultimately adjudicated voidable.  SeeRivers v. DelawareValley Mutual Casualty, 175 A.2d 87, 89-90 (Penn. 1961).  In the present case, although the insurance agreement ultimately provided no legal protection to Shimasaki, Kent's agent represented to Shimasaki that a $1,000 payment would relieve Shimasaki of liability.  Thus, we hold that Kent's acceptance of $1,000 from Shimasaki was an accord and satisfaction for the entire sum of damages.

 

CONCLUSIONS

 

Kent's rental contract imposed liability on the renter, Shimasaki, for all damages to the rental vehicle, regardless of negligence.  The agreement did not impose absolute liability upon Shimasaki with regard to other [29ASR2d51] vehicles.  Kent's right to indemnity against the third parties' claims is contingent upon proof that the driver of the rental car, Tafua, was negligent and, therefore, primarily liable in the accident.  Without proof of Tafua's fault, Kent has failed to make a prima facia case for indemnification against the third-party claims.

 

Shimasaki's liability for damages to Kent's vehicle is discharged by the $1,000 payment, because Kent's agent represented that Shimasaki would not be required to make any additional payment, despite understanding that the insurance claim was doubtful.  Shimasaki relied on this representation in making the payment.  Although the agent was not given actual authority to settle claims on Kent's behalf, the agent had apparent authority, which was sufficient to bind Kent as her principal. 

 

For these reasons, we deny Kent's claim for indemnification by Shimasaki, or any other recovery against her.

 

It is so ordered.

 

 

 

*********

 



1       This provision is so poorly written, convoluted and difficult to read that attorneys (let alone the average person renting a vehicle) would have a difficult time understanding it. This creates an inherent problem for Kent in demonstrating that there was any meeting of the minds regarding this clause.  In the present case there are other bases for our decision, but we find it useful to point out that provisions of a form contract may be voidable solely on the basis of incoherence.  John D. Calamari & Joseph M. Perillo, Contracts § 9-44 (2d ed. 1977).

2  This argument is not intended to deny the principle that the vehicle owner may collect indemnity from the negligent driver for any damages resulting from the accident without regard to insurance.  Vaiti v. Tuiolemotu, 19 A.S.R. 2d 71, 74 (Trial Div. 1991)[29ASR2d49]

Isaia; American Samoa Gov’t v.,


[29ASR2d224]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ROGER ISAIA and SAUFO'I ALOPEPE, Jr., Defendants

 

High Court of American Samoa

Trial Division

 

CR No. 66-95

 

March 28, 1996

                                               

[1]  T.C.R.Cr.P. 12(d)(2) implicitly allows a defendant to request that the government provide him with a list of the evidence it intends to use at trial for its case in chief.  However, Rule 12(d)(2) is not explicitly mandatory, except for a defendant's discovery of items listed in T.C.R.Cr.P. 16(a).  Nor is a sanction provided.

 

[2]  The government should normally provide notice of its intention to use evidence at trial, either on its own initiative, see T.C.R.Cr.P. 12(d)(1), or upon the request of defense counsel.  See T.C.R.Cr.P. 12(d)(2).  In appropriate cases, where the government has failed to comply with a defendant’s request, the court will compel compliance.

 

[3]  Photographs are discoverable, as they do not explicitly nor implicitly fall under the confines of T.C.R.Cr.P. 16(a)(2). 

 

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

 

Counsel:    For Plaintiff, Frederick J. O’Brien, Assistant Attorney General

                   For  Defendant Roger Isaia, David P. Vargas, Assistant Public Defender

                   For Defendant, Saufo`i Alopepe, Jr., Barry I. Rose

 

Order Granting Motion to exclude Evidence in Part and Requiring Notice of Intention to Use Evidence at Trial:

 

I.                   INTRODUCTION

 

Defendants Roger Isaia has been charged with two counts of criminal assault in the first degree, and defendant Saufo`i Alopepe, Jr. has been jointly charged with the first count.  The crime is alleged to have [29ASR2d225] occurred on October 20, 1995.  On November 6, 1995, the defendants were arraigned in this court.

 

On November 8, 1995, the defendants served on the government their request for discovery, favorable evidence, and intention to use evidence at trial.1  Plaintiff American Samoa Government has not filed any notice of its  intention to use evidence at trial.  On November 1, 1995, however, before the defendants’ request and before their arraignment, the government had presented the defendants with a copy of an investigation report prepared by the government's Department of Public Safety [“DPS”].  The government made no further responses to the defendants’ discovery request until February 6, 1996, when it provided the defendants with a number of alleged witness statements.

 

Trial had been scheduled for February 20, 1996, but on February 8, Isaia, believing that he needed more time to investigate the witness statements given him by the government, stipulated with the government to continue the case.  Alopepe claimed that he was prepared to proceed to trial, but on February 14, he also stipulated to the continuance, explicitly preserving his right to a speedy trial.  On February 15, we continued the trial until April 2, 1996.

 

The government conducted a number of interviews with witnesses after February 6, 1996.  Most of these interviews took place between February 12 and 15, although four of the interviews did not occur until March 19 and 20.  Along with the interviews, police apparently presented the witnesses with mug photographs, which included the defendants and other suspects, for identification purposes.  None of this information was given to the defendants until March 22, 11 days before trial, when the government presented the defendants with the “Criminal Investigation Follow-up: Country Club Case” [“the report”].  The report summarizes the statements of the 11 witnesses interviewed between February 12 and March 20, and includes the results of the witnesses' “photo identifications” of suspects.  On March 25, Alopepe, this time feeling he had inadequate time to prepare for trial in light of this information, filed a motion to exclude all evidence related to the report, and  to compel the government to provide notice of its intention to use evidence at trial.  Isaia joined in Alopepe’smotion on March 26.  The matter was brought for expedited hearing on March 27, with all counsel present, the defendants having waived their right to be present.

 

II.  DISCUSSION

 

A.  Notice of Intention to Use Evidence at Trial

 

[1]  T.C.R.Cr.P. 12(d)(2) implicitly allows a defendant to request that the government provide him with a list of the evidence it intends to use at trial for its case in chief.  However, Rule 12(d)(2) is not explicitly mandatory, except for a defendant's discovery of items listed in T.C.R.Cr.P. 16(a).  Nor is a sanction provided.

 

Rule 12(d)(2), as with all of our rules of procedure, is based upon the parallel federal rule.  Compare T.C.R.Cr.P. 12(d)(2), with F.R.Cr.P. 12(d)(2).  Thus, the history and interpretation of the federal rules are strongly persuasive in interpreting our own rules.  See A.S.C.A. § 46.0501 (stating that the criminal procedure in the High Court “shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure”); Fanene v. American Samoa Government, 4 A.S.R. 957 (1968) (same).  The notes of the Advisory Committee for the Federal Rules states that:

 

No sanction is provided for the government’s failure to comply . . . because the committee believes that attorneys for the government will in fact comply and that judges have a way of insuring compliance.

 

CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 197, at 736 n.1 (1982).  Thus, the court has discretion to determine whether and how to order the government to comply.

 

[2]  The purpose underlying Rule 12(d) is to allow a defendant to effectively prepare for trial.  Among other things, it allows the defendant to bring pre-trial motions under Rule 12(b)(3), to suppress evidence that will be entered at trial, and to avoid such motions for evidence the government does not intend to introduce.  Producing notice of intention to introduce evidence can potentially save the defense attorneys, the government, and this court time and money.  It is also in-line with the prosecutor’s duty to seek justice rather than mere victory.  See Berger v. United States, 295 U.S. 78, 88 (1935); see also ABA/BNA LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT § 61:602-03 (1986).  For all these reasons, we believe the government should normally provide notice of its intention to use evidence, either on its own initiative, see T.C.R.Cr.P. 12(d)(1), or upon the request of defense counsel.  See T.C.R.Cr.P. 12(d)(2). In appropriate cases, where the government has failed to comply with a defendant’s request, we will compel compliance.[29ASR2d227]

 

We will require the government to comply with the defendants’ request in this case.  Had it done so in a timely manner, the defendants would have a better idea how the government intends to use the information contained in the recently-disclosed report.  Although the government need not make known its trial strategies or other privileged matters, the defendants could not even know whether the present motion to exclude evidence was necessary, since they did not know which, if any, of the witnesses interviewed in the report the government intends to call at trial.  Such notice, even at this late date, can help to avoid such further confusion.  Because trial is set to commence in six days, the government shall serve its notice of intention to use evidence no later than Friday, March 29, 1996.2

 

B.  Motion to Exclude Evidence

 

1.  The Report

 

The crux of the defendants’ motion is to exclude the evidence contained in the report.  They make two arguments for its exclusion.  First, they argue that the statements and identifications contained in the report were acquired after Isaia and the government had agreed to a continuance.  Second, they argue that the government is “forcing” continuances in the trial, and could do so indefinitely.

 

The first argument is almost wholly without merit.  Although Isaia and the government stipulated to a continuance on February 8, and Alopepe agreed on February 14, this does not change the fact that the original trial was scheduled for February 20.  Thus, the statements and identifications which the government took between February 12 and 15 should not be characterized as having been “obtained by the government after the government . . . had agreed to continue the trial . . . .”  (Def.’s Mot. Exclude Evidence at 3).  Instead, the statements should be characterized as having been obtained two weeks prior to the initial trial date.  Even if these statements were obtained shortly before trial, there is no rule requiring the government to finish its investigation at an early date, let alone a date convenient to the defendant.  There is also no rule requiring the government to stop preparing for trial once a continuance has been granted.  Even the statements obtained on March 19 and 20 may merely reflect a shifting of priorities or deadlines by the government once the trial had been continued to April 2.

 

Defendants’ second argument focuses on the fact that the government, having failed to respond to the defendants’ discovery request, produced statements on February 6, only shortly before trial, in effect “forcing” the defendants to seek a continuance to investigate the new evidence.  The defendants claim that the production of the report on March 22 marks the second time that the government has produced evidence in the eleventh hour, apparently surprising the defendants and leaving them unprepared for trial on April 2.

 

What the defendants’ argument ignores, however, is that they had no right to the report in the first place.3  T.C.R.Cr.P. Rule 16(a)(1)(C) allows a defendant to discover any documents or tangible things within the possession custody or control of the government which may be material to the preparation of his defense or which the government intends to use in its case in chief.  However, Rule 16(a)(2) provides that

 

[T]his rule does not authorize the discovery or inspection of reports, memorandum [sic], or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses.

The report certainly qualifies as either statements made by government witnesses or, more likely, as a document made by a government agent in connection with the investigation of the case.  Thus, the defendants had no right to discover the report under Rule 16.4

The defendants also had no right to discover the report under Brady v. Maryland, 373 U.S. 83 (1963). Brady requires the government to disclose evidence favorable to a defendant upon request.  The defendants have not claimed that the report is favorable to them, and it does not appear to favor them.

 

Having been under no obligation to supply the report to the defendants, the government cannot be faulted for having done so at a late date.  Except as discussed below, the evidence identified in the report will not be suppressed.

 

2.  The photographs

 

One of the major areas of the defendants’ concern, as expressed during the hearing, is the use of the photo identifications, apparently obtained using DPS photographs, listed in the report.  Although the government has not prevented the defendants from viewing the photographs since they received the report on March 22, there have been problems obtaining useful copies for the defendants.

 

[3]  T.C.R.Cr.P. 16(a)(1)(C) allows the discovery of “books, papers, documents, photographs, tangible objects, buildings or places.”  Rule 16(a)(2) excludes the discovery of only “reports, memorandum [sic], or other internal documents.”  Rule 16(a)(2) does not explicitly exclude photographs from being discovered.  Photographs are neither reports nor memoranda.  Furthermore, because photographs and documents are listed separately in Rule 16(a)(1)(C), we must assume that they are mutually exclusive. Thus, photographs do not appear to implicitly fall under the confines of Rule 16(a)(2) either.

 

Were all categories of tangible objects in Rule 16(a)(1)(C) meant to be excluded, Rule 16(a)(2) could have parroted that list or said simply “all items discoverable under Rule 16(a)(1)(C).”  It does not, however, do this.  Furthermore, the purpose underlying Rule 16(a)(2) is to protect the work product of government attorneys.  See 2 WRIGHTsupra, § 254, at 70 n.33.  It is hard to imagine when photographs or other tangible objects, which are not reports, memoranda, or documents, would qualify as privileged work product.  Thus, photographs continue to be discoverable despite the prohibition of Rule 16(a)(2).

 

The defendants are still required to show that the photographs are either material to the preparation of their defense or are intended to be used in the government’s case in chief.  See Rule 16(a)(1)(C). However, we believe the defendants have met this burden.  Although it is unclear whether the government plans to introduce the photos during its case in chief, they have used them repeatedly to achieve identifications of the suspects from witnesses interviewed in the report.  These photographs should have been made available to the defendants so that they could prepare a defense to the identification evidence.  The lateness of their production is prejudicial to the defendants.[29ASR2d230]

 

Although the government's counsel turned over the report (although apparently not the photographs themselves) as soon as it was given to him by DPS, this does not excuse the tardiness.  “The government” which is required to disclose documents under Rule 16 is not limited to only the Attorney General’s office.  DPS is clearly part of the government, and tangible objects in its possession are discoverable.  When a defendant serves a discovery request upon the government, the Attorney General is responsible for ensuring that any material documents in DPS's possession, or any other relevant government agency, are disclosed promptly and properly.

 

Because the photographs should have been disclosed as early as February 12, 1996, but were not in fact disclosed until March 22--10 days before trial--we will suppress them.  The evidence suppressed includes not only the photographs but also any evidence relating to their use in making identifications of the defendants during the government’s investigation.

 

III.  CONCLUSION

The government is ordered to serve upon defendants a notice of evidence to be used at trial by Friday, March 29, 1996.  The photographs used by the government in its investigation and any related evidence will be suppressed. 

 

It is so ordered.

 

   

 

********

 



1  This date actually represents the date that Alopepe served his request on the government.  Isaia joined Alopepe’s present motion without filing a separate recitation of the facts for his case, and his original discovery request, if any, in not on file. However, we will assume for purposes of this motion that all dates applying to Alopepe also apply to Isaia.[29ASR2d226]

2  If the government and the defendants stipulate to continue the trial, or the court grants a continuance, the government may request additional time to serve it notice of intent to use evidence.  However, because the government is supposedly prepared to begin trial in six days, and Alopepe has not waived his right to a speedy trial, such an extension will be short.[29ASR2d228]

 

3 The same is probably also true of the statements which the government supplied to the defendants on February 6, 1996.

4  Under F.R.Cr.P. Rule 26.2, the defendants could have required the government to produce witnesses statements once those witnesses had testified on direct examination.  However, despite this rule’s obvious benefits regarding justice, there is no similar provision in our criminal rules.[29ASR2d229]

Interocean Ships, Inc . v. Samoa Gases;


[29ASR2d198]

 

 SEQ CHAPTER \h \r 1         

INTEROCEAN SHIPS, INC., a Delaware Corporation, Plaintiff

 

v.

 

SAMOA GASES, a Corporation, Defendant

 

High Court of American Samoa

Trial Division

 

CA 123-85

 

March 7, 1996

 

[1]  When the court directs parties to brief issues, it asks questions of real concern to them and expects timely and relevant answers.  Attorneys who inadvertently or willfully disregard such orders act unprofessionally, and contemptuously if the disobedience is willful.  The court will impose sanctions for such conduct. 

 

[2]  The court will impose fitting sanctions on counsel personally for transgressions of either new Rule 11 or the contempt rules.

 

[3]  Under the Federal Rules, the court, whether trial or appellate, is obliged to notice want of subject matter jurisdiction upon its own motion.

 

[4]  In the case of a corporate merger, one of the combining corporations continues in existence and absorbs the other.  The merged corporation is dissolved or ceases to exist.

 

[5]  Under the common law, when a corporation ceases to exist, it ceases to have any capacity to sue or be sued.

 

[6]  The common-law rule recognized that a chose in action to enforce a property right upon merger vests in the successor corporation and no right of action remains in the merging corporation.

 

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

 

Counsel:    For Plaintiff, William Reardon

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

Order Vacating Judgment and Discussing Personal Attorney Sanctions:[29ASR2d199]

[1]  The court intends by this order to send a message to the entire membership of the American Samoa Bar Association.  First, every attorney and legal practitioner should henceforth take T.C.R.C.P. Rule 11, as amended on March 1, 1996, seriously and meet the professional standards contemplated by the Rule.  Second, and specific to this action, when we direct parties to brief issues, we ask questions of real concern to us and expect timely and relevant answers.  Attorneys who inadvertently or willfully disregard such orders act unprofessionally, and contemptuously if the disobedience is willful.  We will impose sanctions for such conduct. 

 

[2]  The extensive discussion below shows that counsel in this action deserve personal sanctions.  However, we will withhold sanctions this time, in light of lengthy, historical leniency, see Lutu v. Semeatu, LT No. 9-87, slip op. at 3-6 (Land & Titles Div. Dec. 14, 1989), and the imprecise, complementary natures of T.C.R.C.P. 7(b)(2) and old Rule 11.1  We also fairly and emphatically warn counsel that we will impose fitting sanctions on counsel personally for future transgressions of either new Rule 11 or the contempt rules.2  

 

I.  BACKGROUND

 

On December 4, 1995, we issued an order contemplating vacation of an earlier judgment awarded to plaintiffInterocean Ships, Inc. ("Interocean") against defendant Samoa Gases ("Samoa Gases").  We were concerned with the question of whether Interocean had dissolved mid-trial, which would abate the case under the common law.  To ensure that the earlier judgment was legal and proper, we asked both parties to brief us on the following issues:

 

          1)  Was Interocean dissolved before judgment was rendered in this case?[29ASR2d200]

 

          2)  If so, does the common law apply to abate the proceeding?  Does the American Samoa statutory provision overrule the common law and allow the action to survive?

 

          3)  Should the Delaware corporations law apply to this proceeding?  If so, does that law allow the chose in action to survive Interocean's dissolution?

 

          4)  Was there an assignment of the chose in action before the dissolution of Interocean?  If so, does the assignment survive the dissolution?

 

Order Requiring Further Briefing at 4 [hereinafter Briefing Order].

 

Interocean responded to the Briefing Order by submitting a one-paragraph brief3 on December 14, 1995, citing only one legal authority.  Samoa Gases filed a two-page memorandum on January 5, 1996, two days after the January 3, 1996 due date, pointing out the deficiencies in Interocean’s brief, apparently taking issue with its integrity, but failing to address the substantive issues we raised or cite any legal authority.  On January 12, 1996, Interocean submitted a reply brief, containing a mere four paragraphs of argument and citing not a single legal authority.  On February 1, 1996, Samoa Gases submitted a brief and a supplemental brief finally addressing the issues.  On February 8, 1996, Interocean responded to Samoa Gases' briefs with a final reply still ignoring the issues and providing no legal authority.

 

We now address the arguments presented, concluding that Samoa Gases' brief and supplemental brief must be struck as untimely, and that, nevertheless, the judgment must be vacated and the money paid to Interocean by Samoa Gases must be returned.

 

II.  DISCUSSION

 

A.  Samoa Gases' briefs will be struck.

 

Samoa Gases submitted a very thorough and well-researched brief and supplemental brief.  It addressed each issue and made thoughtful arguments on how this court should interpret and apply the law in this case.  Unfortunately, Samoa Gases filed these briefs with the court nearly a month after their due date had passed.[29ASR2d201]

 

Although Samoa Gases' original memorandum, which it filed only two days late, stated that "the defendant SAMOAN GASES, INC., is unable to fully respond to the brief filed by the plaintiff, because it is not responsive to the court's order," Def.'s Mem. Opp'n Pl.'s Br. at 2, its brief was not, strictly speaking, a response brief.  We asked "[e]ach side" to brief us on the issues.  Furthermore, Samoa Gases was not impaired by having to anticipate issues not raised in Interocean's brief, because we had already outlined the issues we wanted to be briefed.  As its brief and supplemental brief total 22 pages, Samoa Gases seems to have found plenty to say on the issue despite Interocean’s deficient performance.

 

We gave Interocean 30 days to file its brief and Samoa Gases 20 days from the time Interocean filed to file its brief.  Twenty days (plus the initial 10 days before Interocean filed) was more than enough time for Samoa Gases to prepare a brief.  If Samoa Gases felt that time was insufficient, it could have properly moved for extra time.  Instead, it requested in its memorandum that we give Interocean additional time to file and Samoa Gases time to authenticate documents.  We believe this request was, at best, unnecessary or, at worst, intended to cause further delay.  Simply put, Samoa Gases should have met its deadline.

 

What bothers us most about Samoa Gases’ lateness is that we, as a court, experienced exactly the results which we try to avoid by imposing deadlines: an unnecessary waste of time and resources.  A 20-page opinion and order had been fully researched and written--without the aid of legal argument by either counsel, and was nearly ready to be signed on January 31, 1996.  The following day, Samoa Gases filed its brief and supplemental brief with the court.4  We had to spend additional time determining how to dispose of this case in light of Samoan Gases’ belatedly-filed briefs.  We actually redrafted much of our earlier opinion, spending more of the court's time and further delaying the disposition of this case, before deciding that the briefs should simply be struck as untimely.    

 

B.  The validity of the judgment must still be determined.

 

The fact that we are striking Samoa Gases’ briefs does not dispose of this matter.  In actuality, we are dealing with a question of subject matter jurisdiction--that is, a question of whether we properly should have continued this action to judgment. [29ASR2d202]

 

[3]  "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”  T.C.R.C.P. 12(h)(3) (emphasis added).  This rule, like the rest of our rules of civil procedure, parallels the federal rule.  Compare Rule 12(h)(3) with F.R.C.P. 12(h)(3).  Under the Federal Rules, the court, whether trial or appellate, is obliged to notice want of subject matter jurisdiction upon its own motion.  Sumner v. Mata, 449 U.S. 539 (1981).  Therefore, our obligation to undertake a sua sponte investigation into the question of subject matter jurisdiction where it may result in dismissal of all or part of a suit does not end simply because the briefs of one party have been struck.

 

C.  The judgment must be vacated.

 

As we stated above, Interocean presented us with a total of only five paragraphs of argument--just over 1 page--in its brief and reply brief combined.  It cited only one legal authority, a single section of American Jurisprudence 2d, a legal encyclopedia which is not controlling authority in this or any other jurisdiction.

 

Apparently, Interocean merged into another corporation rather than simply dissolving.  It asserts that "[m]ergers do not result in a loss of any rights or causes of action.  Just the opposite is the effect."5  Br. Pl. in Response to Ct. Order of Dec. 4, 1995, at 1 [hereinafter Pl.'s Br.] (it is at this point that Interocean cites, incorrectly we might add, 19 Am. Jur. 2d Corporations § 2632, at 446 (1986)).  Interocean next informs us, without citation or explanation, that "attached hereto is the statement of California law indicating that there is no loss of rights when a corporation merges with another corporation."  Id.

 

This is the entirety of Interocean’s response to our inquiries.  It does not attempt to explain how the fact that it merged into another corporation means that it was not dissolved.  It does not attempt to explain why the common law rule of abatement does not apply.  It does not attempt to explain where in the American Samoa Code Annotated this jurisdiction has adopted the statutory rule that pending actions may survive when a corporation is merged.  It does not attempt to explain how "the statement of California law" applies to save this case from abatement.  It does not attempt to address our concerns about assignment of a chose in action, even though this is what may occur when one corporation merges into another.  Nor does it attempt to explain why, even assuming every other factor fell in its favor, this court should require Samoa Gases to issue additional checks in the name of someone other than Interocean, the plaintiff in whose name this trial was brought and prosecuted.6  Nevertheless, Interocean's counsel has the impudence to state:  "Based on the foregoing it is clear that the checks should be made out to William H. Reardon and Interocean Industries, Inc., as the successor to Interocean Ships, Inc."  Pl.'s Br. at 1 (emphasis added).

 

This is not "clear" to us at all.  What is clear to us is that Interocean either has a complete misunderstanding of the law, or has taken a very risky gamble that its single argument that corporate actions survive mergers would satisfy us.  We are left to wonder if Interocean’s counsel even bothered to read the Briefing Order, let alone the appropriate legal texts or applicable cases.  Meanwhile, we made it clear in the Briefing Order why we were concerned with the viability of Interocean's judgment.  A meager investigation of the law would have shown Interocean where it went astray.

 

1.  Argument that a merger does not bring about a dissolution.

 

[4]  To begin with, Interocean's entire premise that a merger is different than a dissolution is just plain wrong.  Using the only source Interocean cited in its brief, we find that:  "In the case of a merger . . . one of the combining corporations continues in existence and absorbs the other.  In other words, the merged corporation is dissolved or ceases to exist."  19 Am. Jur. 2d Corporations § 2627, at 440 (1986) (emphasis added, footnote deleted).  This passage is found only six pages from the section cited by Interocean, under the heading "Status of Corporations Following Merger, Consolidation, or Exchange of Shares."  See id. at 437.  Had Interocean made a reasonable inquiry into the law, it could not have missed this section.

 

Interocean could have found the same information by looking at any of a number of other sources.  "The dissolution of a corporation is the termination of its existence as a body politic."  Black's Law Dictionary at 425 (5th ed. 1979) (emphasis added).  Corporate "merger" is defined as "[t]he absorption of one company by another . . . [with the] absorbed company ceasing to exist."  Id. at 891 (emphasis added).  One section of the California Corporate Code, attached to Interocean's brief without specific citation, states that "[u]pon merger . . . the separate existence of the disappearing corporation ceases."  See Cal. Corp. Code. § 1107(a) (West 1990) (emphasis added).  There is no difference between these definitions.  In both a merger and a straight dissolution, the old corporation ceases to exist.  We expressed precisely this concern, with regard to Interocean, in the Briefing Order:

 

[5]  If Interocean's exhibits are correct, it no longer exists.  We are not sure, then, who has filed this motion, since it is brought in Interocean's name.  Under the common law, when a corporation ceases to exist, it ceases to have any capacity to sue or be sued.  Briefing Order at 2 (emphasis added).  The inescapable conclusion, which Interocean has nevertheless tried to escape with no legal authority whatsoever, is that a merged corporation is dissolved at the moment of its merger.7

 

2.  Applicable law.

 

Interocean’s counsel also seems to have a marked misunderstanding for what law applies in American Samoa.  The law applicable here is that enacted by the Legislature of American Samoa and codified in the American Samoa Code Annotated ("A.S.C.A.").  A.S.C.A. § 1.0201(3).  Where the Legislature has not acted, the "common law of England" applies.  A.S.C.A. § 1.0201(4).  Except under a valid conflict of laws argument, the law of other jurisdictions does not control here, though we may consider it persuasive in interpreting our own law.

 

The summary of law in American Jurisprudence 2d is not controlling here.  Particularly when that summary is of statutory law from other[29ASR2d205] jurisdictions, and similar statutes have not been enacted in the Territory.  Nor is California law, attached to Interocean's brief without explication, controlling here.  If Interocean would have liked to make a conflict of laws argument that the law of California or another jurisdiction should apply in this case, we would have gladly welcomed it.  In fact, we explicitly asked for it in our Briefing Order.8  Interocean, however, chose not to make such an argument.  Thus, we must look first to the A.S.C.A., then to the common law to determine how to resolve this issue.

         

The A.S.C.A. has a corporations code, but no section explicitly deals with the question of pending lawsuits upon the dissolution (or merger) of a corporation which is party to the suit.  The code does inform us that a voluntarily dissolved corporation "may nevertheless continue to act for the purpose of winding up their affairs," A.S.C.A. § 30.0121, but it is unclear whether this includes continuing pending lawsuits.  Normally winding up of affairs refers to collection and distribution of assets along with payment of outstanding obligations.  See 19 Am. Jur. 2d Corporations §§ 2828-2830.  Though "winding up" statutes like ours may be interpreted to include the continued ability of a corporation to sue, be sued, or maintain an existing suit, they normally are not.  See id. at § 2842.  A.S.C.A. § 30.0121 has not been interpreted to allow such actions.  We explicitly invited counsel to brief us on the question of how the code should be interpreted, but Interocean failed to respond on this point.  Thus, we can assume that the common law rule of abatement continues to apply in American Samoa.

 

[6]  We stated the common law rule of abatement in the Briefing Order: when a corporation dissolves, any action being prosecuted in its name abates.  The very section in American Jurisprudence 2d, which Interocean cites as its only legal authority, states the common law rule as applied to a merger:  "[T]he common-law rule . . . recognized that a chose in action to enforce a property right upon merger vests in the successor corporation and no right of action remains in the merging corporation."9  19 Am. Jur. 2d Corporations § 2632 (emphasis added) (citing Sun Pipe Line Co. v. Altes, 511 F.2d 280, 283 (8th Cir. 1975)).  Interocean has apparently misread or misapplied the only legal source it bothered to cite.

 

Thus, upon a reasonable inquiry into the law, what is "clear" is that, following its merger, Interocean had no ability to prosecute this suit under the common law.  The case should have abated at that time, and the judgment in its favor must now be vacated.  If a judgment which was rendered after a corporations dissolution has been entered and collected, the money must be returned.  See 19 Am. Jur. 2d Corporations § 2906, at 684 (citing Ingraham v. Terry, 30 Tenn. 572). 

 

Therefore, Interocean must either return the checks to Samoa Gases, or if the checks have already been negotiated by Interocean Industries or some other person, the full amount of the checks.  A reasonable timeframe for this purpose is 30 days.  Because Samoa Gases has been deficient in its performance on this matter, no interest will be awarded to them if Interocean returns the checks or pays the full amount of the checks within 30 days.  However, should Interocean fail to return the checks or pay an equivalent amount within 30 days, interest at 6% per annum will begin to accrue, retroactively applied from the date of this order.

 

III.  ORDER

 

Our earlier judgment of May 2, 1994 awarding damages in favor of Interocean against Samoa Gases is vacated.  Interocean shall return the checks issued to it in satisfaction of the judgment, or pay an equivalent amount, to Samoan Gases within 30 days.  If it fails to do so, interest, retroactive to the date of this order, will accrue at 6% per annum.

 

It is so ordered.

 

 



1  F.R.C.P. 11 when read with F.R.C.P. 7(b) has always provided a basis for imposing disciplinary sanctions on attorneys.  See Notes of Advisory Committee on Rules, 1983 Amendment, Federal Civil Judicial Procedure and Rules, at 53 (West 1993).  When adopted, T.C.R.C.P. 11 (both before and after the present amendment) and Rule 7(b) mirrored their federal rule counterparts.  

 

2  Sanctions can include fining counsel; requiring him to pay costs, including the opposing party's attorney's fees; citing him for contempt; reprimand; or even disbarment.  See 5A Charles alan wright & Arthur R. Miller, Federal Practice and Procedure § 1336, at 97 (2d ed. 1990).

3  Not counting the introductory and conclusory sentences.

4  We also note that, initially, Samoa Gases filed only the supplemental brief.  That brief, however, makes numerous references to the initial brief.  During a call to counsel’s office, we expressed confusion at these references and achieved realization of the unfiled original brief.

 

5   We note that the opposite of "loss" is "gain" or "creation."  We assume that Interocean's poor choice of words is not meant to imply that rights or causes of action are created by a merger, but simply that they are not lost.[29ASR2d203]

 

6      The issue of Interocean's dissolution originally came to our attention when Interocean brought its motion in aid of judgment to have checks for the amount of the judgment issued in the name of Interocean Industries, Inc.  We are now led to believe that Interocean Industries is Interocean's successor, following two corporate mergers.  Still, Interocean has never presented, and does not now present, a valid legal argument for how or why the checks should be issued in the name of someone other than the plaintiff.  Indeed, if "[m]ergers do not result in a loss of any rights," Pl.'s Br. at 1, as Interocean would apparently have us believe, Interocean Industries should have the same right to cash checks made payable to Interocean as Interocean had, and the motion in aid of judgment should have been unnecessary.  This point is now moot, since the checks or their monetary equivalent must be returned to Samoa Gases.[29ASR2d204]]

 

7  We note that a merged corporation may be saved from dissolution if a state legislature passes a statute explicitly intending such a result.  See 19 Am. Jur. 2d Corporations § 2627, at 440-41.  There is nothing in the American Samoa Code Annotated to bring about such a result.  The California Corporations Code is directly and explicitly opposite.  See Cal. Corp. Code § 1007(a) (West 1990).  We have not yet been informed on what the Delaware Corporations Code says on this issue.

8  We stated very clearly that "[t]here is also an unaddressed conflicts of law issue."  Briefing Order at 3.  We mentioned that Delaware law might have applied, since Interocean was a Delaware corporation.  Id. at 3, 4.  We now know, however, that California law might also have applied, since Interocean Industries is aCalifornia corporation.

 

We also again note that Interocean has attempted to bring California law to our attention by attaching a photocopy of one page of the California Corporations Code to its brief, stating simply that "attached hereto is the statement of California law indicating that there is no loss of rights when a corporation merges with another corporation."  See Pl.'s Br. at 1, ex. B.  Even assuming Interocean had made a valid argument that California law is relevant, there are some 12 sections and subsections on the attached page.  Interocean has given us no citation to or explanation of which section or sections it feels are relevant or why.  It is not our job to cull through attorneys' photocopied references to find law which might or might not be relevant to their argument.  Cf. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989) (imposing F.R.C.P. Rule 11 sanctions, stating that "[c]ounsel may not drop papers into the hopper and insist that the court or opposing counsel undertake bothersome factual and legal investigation").[29ASR2d206] 

 

9  Thus, at common law, and apparently under most statutes, a merger functions much like an assignment with regard to a chose in action.  Thus, Interocean should at least have answered our fourth inquiry regarding assignment of the chose in action. 

 

On that point we note that a case must be brought in the name of the real party in interest, T.C.R.C.P. 17(a), and that an assignment, explicit or implicit, without more, does not give the assignee the right to prosecute an action in the assignor's name.  Cf. 26 Fed. Proc. L. Ed. § 59:35 (stating the same rule for F.R.C.P. 17(a), upon which T.C.R.C.P. 17(a) is based).[29ASR2d207]

Interocean Ships, Inc. v. Samoa Gases,


[29ASR2d109]

 

 

 

 SEQ CHAPTER \h \r 1INTEROCEAN SHIPS, INC., a Delaware Corporation, Plaintiff

 

v.

 

SAMOA GASES, a corporation, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 123-85

 

December 4, 1995

 

[1]  Under the common law, when a corporation ceases to exist, it ceases to have any capacity to sue or be sued.

 

[2]  In the absence of statutory provisions to the contrary, it is the rule that a judgment entered in favor of a corporation after its dissolution is invalid, regardless of whether the action was commenced before or after the dissolution; and it has been held that if a judgment in its favor is, after dissolution entered and collected, a return of the money to the debtor may be enforced.

 

[3]  Although the ability to sue or be sued may be extended beyond the corporation's date of dissolution by statute,  American Samoa's corporations code section dealing with dissolutions of corporations, A.S.C.A. § 30.0121, does not explicitly address the issue. 

 

Before RICHMOND, Associate Justice.

 

Counsel:    For Plaintiff, William Reardon

                   For Defendants, Roy J.D. Hall, Jr.

 

Order Requiring Further Briefing:

I.  INTRODUCTION

 

On May 2, 1994, we issued a decision finding defendant Samoa Gases ("Samoa Gases") liable in a products liability case arising out of an explosion on a ship.  Its liability was measured at $47,455.96 plus 6% post-judgment interest.  On June 21, 1995, Samoa Gases paid $51,963.69 to the court registry with the intention of satisfying this judgment.  A notice of satisfaction of judgment was filed on that same day.  Pursuant to the court order, Samoa Gases paid the $51,963.69 to the plaintiffInterocean Ships, Inc. ("Interocean") by way of cashier's checks.[29ASR2d110]

 

Interocean's on-island counsel forwarded the checks, which had been released to him, to off-island counsel, who then forwarded them to Interocean's former president.  The checks were later returned to Interocean's counsel.  According to Interocean's former president:

 

In December of 1993 the InterOcean Ships, Inc. corporation was closed in all respects.  I have therefore sought advice of our corporate counsel regarding how I could endorse these checks.  I've been advised that since the corporation is closed, there are no officers or directors and all bank accounts have been closed, no signature authority exists. 

 

Affidavit of William H. Reardon, Ex. A.

 

Subsequently, Interocean's on-island counsel contacted Samoa Gases' counsel asking that the checks be reissued in either his name as trustee, or in the name of another corporation, InterOcean Industries, Inc. and the agents for the underwriters, Rice, Fowler, Booth and Banning.  Neither InterOcean Industries nor Rice, Fowler, Booth and Banning was a party to the litigation.  Samoa Gases' counsel never responded to Interocean's requests, prompting Interocean to file the instant motion in aid of judgment.  The motion was heard on November 27, 1995, with counsel present.

 

II.  DISCUSSION

 

[1-2]  In reviewing this motion, we have discovered a potential problem with our earlier judgment.  If Interocean's exhibits are correct, it no longer exists.  We are not sure, then, who has filed this motion, since it is brought in Interocean's name.  Under the common law, when a corporation ceases to exist, it ceases to have any capacity to sue or be sued.  Walling v. James V. Reuter, Inc., 321 U.S. 671, 675-76 (1944); Pendleton v. Russell, 144 U.S. 640 (1892); 19 Am. Jur. 2d Corporations § 2896 (1986).  A dissolved corporation loses its ability to appeal or apply for a writ of certiorari.  19 Am. Jur. 2d Corporations at § 2905.  Furthermore, any pending cases are abated on the corporation's dissolution. 

 

[I]n the absence of statutory provisions to the contrary, it is the rule that a judgment entered in favor of a corporation after its dissolution is invalid, regardless of whether the action was commenced before or after the dissolution; and it has been held that if a judgment in its favor is, after dissolution entered and collected, a return of the money to the debtor may be enforced.[29ASR2d111]

 

19 Am. Jur. 2d Corporations at § 2906.  Interocean was apparently dissolved as of December 1993.  Affidavit of William H. Reardon, Ex. A.  This information was not made known at trial.  The judgment in this case was not rendered until May 1994.  Thus, we question whether the judgment was validly issued.

 

[3]  The ability to sue or be sued may be extended beyond the corporation's date of dissolution by statute.  See 19 Am. Jur. 2d Corporations § 2896.  Apparently, almost every U.S. jurisdiction has passed such a statute.  American Samoa's corporations code has a section dealing with dissolutions of corporations, A.S.C.A. § 30.0121, but it does not explicitly address the issue of dissolution during a lawsuit.  Interocean may also have an argument that the judgment persists under a valid pre-dissolution assignment.1  See, e.g., Gilmore v. Harpster, 133 P. 726 (Kan. 1913).  There is also an unaddressed conflicts of law issue, because Delaware corporate law may apply in this case.

 

Therefore, we will require further briefing on the present issues.  Each side will brief the court on the following issues:

 

1)  Was Interocean dissolved before judgment was rendered in this case?

 

2)  If so, does the common law apply to abate the proceeding?  Does the American Samoa statutory provision overrule the common law and allow the action to survive?

 

3)  Should the Deleware corporations law apply to this proceeding?  If so, does that law allow the chose in action to survive Interocean's dissolution?

 

4)  Was there an assignment of the chose in action before the dissolution of Interocean?  If so, does the assignment survive the dissolution?

 

Interocean Ships shall submit its brief within 30 days from the entry of this order.  Samoa Gases shall have 20 days from the submission of Interocean's brief to file its response.  Interocean shall then, at its option, have 10 days to submit a reply brief.   A hearing on the matter will be set if necessary.[29ASR2d112]

 

It is so ordered.

 

 

 



1  We note, however, that a chose in action arising ex delicto was not assignable under common law or equity.  6 Am. Jur. 2d Assignments § 34.  Statutes have changed this in many jurisdictions.  See id. 

In re Three Minor Chilren (JR Nos. 122-93, 123-94, 124-93),


[29ASR2d52]

 

 

 SEQ CHAPTER \h \r 1In the Matter of THREE MINOR CHILDREN

 

High Court of American Samoa

Trial Division

 

JR No. 122-93, JR No. 123-94, and JR No. 124-93

 

October 11, 1995

 

[1]  Formal adoptions based principally on impecunious circumstances are not in the children's best interests, the overriding concern.

 

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

 

Counsel:              For Petitioners, Robert A. Porter, L.P.

Opinion and Order:

 

Petitioners have three children, ages seven, four and two years.  They propose to relinquish their parental rights and obligations and have the children's paternal grandparents adopt them.  The hearing was held on August 18, 1995.

 

The grandparents brought up several natural children, who are now grown raising their own families and, except for this son, live outside American Samoa.  As the natural parents' children were born, the grandparents took each one to raise, and although the grandmother spends considerable time with her other children, they and their grandchildren are now significantly and strongly attached as a family unit.

 

[1]  The natural parents are unemployed and without any substantial income, a perennial situation prompting the decision to establish the present living arrangements.  The natural father now plans to continue his higher education.  The existing family order is surely permissible and is probably the most practical solution for the immediate future.  However, formal adoptions based principally on impecunious circumstances are not in the children's best interests, the overriding concern.

 

Sooner or later, the children and natural parents will likely face conditions in their lives in which they will realize that reunion in the usual family structure will be the most fitting, and perhaps necessary, resolution in the children's best interests.  

 

The petitions are denied for these reasons.

 

It is so ordered.

 

 

 

 

In re Proceedings to Compel the Attendance of May Fitiausi,


[29ASR2d71]

 

 

 SEQ CHAPTER \h \r 1IN THE MATTER OF THE PROCEEDINGS TO COMPEL THE ATTENDANCE OF MAY FITIAUSI AS A WITNESS IN CRIMINAL PROSECUTION IN THE

STATE OF HAWAII.                           

 

High Court of American Samoa

Trial Division

 

CA No. 140-95

 

November 6, 1995

 

[1]  Under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, Haw. Rev. Stat. ch. 836 (1993) (“Uniform Act”), there are two requirements for the extradition of a witness:  (1) the territory of which the request is made must have a reciprocal provision for "commanding persons within its borders to attend and testify in criminal prosecutions . . . in [Hawaii]"; and (2) the witness requested must be "material.” However, a witness may not be extradited from American Samoa because it has not adopted the Uniform Act.  It also has no analogous provision for extraditing material witnesses to other jurisdictions or for securing witnesses in foreign jurisdictions to testify here. 

 

[2] A.S.C.A. § 46.0501 does not make 18 U.S.C.S. § 3144 applicable to the Territory.  A.S.C.A. § 46.0501 brings our criminal procedure into conformance with the Federal Rules of Criminal Procedure, not with every rule of criminal procedure applicable in the federal courts.  The term "Federal Rules of Criminal Procedure" refers specifically to the 68 rules, which go by that title.  18 U.S.C.S. § 3144, while a rule of criminal procedure applicable to federal courts, is not part of the Federal Rules of Criminal Procedure.  

 

[3]  The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings seems to be an intelligent law, benefiting American Samoa, as well as other states and territories of the [29ASR2d72] UnitedState, should we adopt it as legislation.  However, we have not, and this court has stated repeatedly that it will not sit as a legislature.  Thus, although the Chief Justice would strongly recommend that the Legislature of American Samoa consider enacting the Uniform Act, he cannot proceed by judicial fiat as if the Legislature has already enacted it.

 

Before KRUSE, Chief Justice.

 

Order Denying Ex Parte Application for Order Directing May Fitiausi to Appear in High Court:

 

I.  Introduction

On November 3, 1995, Assistant Attorney General Frederick J. O'Brien filed an ex parte application with this court asking that we arrest May Fitiausi and compel her attendance as a material witness in a criminal trial in Hawaii.  His application was based upon an underlying certificate of request signed by Judge Marie N. Milks of the First Circuit Court of Hawaii dated October 18, 1995.  For the reasons stated below, I must deny the application.

 

II.  Facts

 

Robert Earl Garner has been charged with attempted murder in the second degree, attempted sexual assault in the first degree, place to keep pistol or revolver, and terroristic threatening in the first degree in the First Circuit Court of Hawaii.  He is scheduled to stand trial on November 13, 1995.  The following facts are set forth in the government's application to this court.

 

The charges against Garner have arisen from two incidents involving his former girlfriend, May Fitiausi.  Fitiausi and Garner lived together in Hawaii for over two years.  In June 1994, Fitiausi expressed her intention to end the relationship and reunite with her husband in American Samoa.

 

On September 9, 1994, Garner and Fitiausi met to discuss their breakup.  She stated that she wanted the relationship to end.  He indicated that he wanted to engage in sexual relations with her.  When she refused his advances, he brandished a .25 caliber semi-automatic firearm and threatened her.

 

On September 23, 1994, Fitiausi went to Garner's house to retrieve some of her belongings.  They discussed their relationship, and she again told him it was over.  Garner became angry with her, and, as before, stated his desire to engage in sexual relations with her.  She again refused his advances.  Garner forced her on the bed, where he attempted to sexually [29ASR2d73] assault her.  Fitiausi screamed and yelled for help.  Garner told her to stop screaming, but she did not comply.  Garner then grabbed a knife from a nearby table and slashed Fitiausi's throat.  The wound measured 5 to 6 inches in length and was 1-1/2 inches deep.  It narrowly missed the carotid artery.

 

Trial was set for October 16, 1995.  On October 2, 1995, Fitiausi was subpoenaed to appear at that trial.  She never appeared.  The Hawaiian investigator learned that she had fled Hawaii for American Samoa on the date she was served.  He also discovered her address and phone number and contacted her.  She indicated that she would not return to Hawaii to testify, even if the government paid her travel and per diem expenses.

 

A request has been made to this court to compel Fitiausi's attendance for the trial in Hawaii.

 

III.  Discussion

 

Hawaii has adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings ("Uniform Act").  See Haw. Rev. Stat. ch. 836 (1993).  The statute is meant to represent a reciprocal agreement between states and territories for the extradition of uncooperative witnesses to testify in criminal trials.  The relevant portion of the law reads as follows:

 

If a person in any [territory],[1] which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions . . . in this State [Hawaii], is a material witness in a prosecution pending in a court of record in this State, . . . a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.  The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this State to assure the witness' attendance in this State.  This certificate shall be presented to a judge of a court of record in the judicial district in which the witness is found.

 

Id. at § 836-3.  The statute goes on to provide that Hawaii will pay the witness' travel expenses, as well as per diem living expenses.  A person who fails to appear under an appropriate order is chargeable under Hawaii law.

 

[1]  A reading of the statute shows that there are two requirements for the extradition of a witness:  (1) the territory of which the request is made must have a reciprocal provision for "commanding persons within its borders to attend and testify in criminal prosecutions . . . in [Hawaii]"; and (2) the witness requested must be "material."  Id.; see Arizona v. Brady, 594 P.2d 94, 96 (1979) (interpreting the Uniform Act).  The second requirement, the materiality of the witness, is clearly met.  The first requirement, however, has not been met.

 

Hawaii acknowledges that American Samoa, unlike many of the states, has not adopted the Uniform Act.  It also acknowledges that American Samoa has no analogous provision for extraditing material witnesses to other jurisdictions or for securing witnesses in foreign jurisdictions to testify here.  Nevertheless, Hawaii has developed a complicated and circuitous argument that American Samoa is subject to federal law which satisfies the requirements of the Uniform Act.

 

The argument proceeds in two parts.  First, Hawaii argues that A.S.C.A. § 46.0501 makes the federal law concerning detention of material witnesses, 18 U.S.C.S. § 3144 (Law. Co-Op. 1993), applicable in American Samoa.  Second, Hawaii argues that 18 U.S.C.S. § 3144, applied in American Samoa, satisfies the first requirement of the Uniform Act.  Both of these contentions are flawed.

 

[2]  First, A.S.C.A. § 46.0501 does not make 18 U.S.C.S § 3144 applicable here.  Section 46.0501 reads:

 

Except as otherwise provided in this Code, or by rules adopted by the Chief Justice, the criminal procedure in the High Court and in the district courts shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure.

 

A.S.C.A. § 46.0501 (1992) (emphasis added).  Section 46.0501 brings our criminal procedure into conformance with the Federal Rules of Criminal Procedure, not with every rule of criminal procedure applicable in the federal courts.  The term "Federal Rules of Criminal Procedure" refers specifically to the 68 rules which go by that title.  See Fed. R. Crim. P. 60 ("These rules may be known and cited as the Federal Rules of Criminal Procedure.").  18 U.S.C.S. § 3144, while a rule of criminal procedure applicable to federal courts, is not part of the Federal Rules of [29ASR2d75] Criminal Procedure.  Therefore, § 46.0501 does not make 18 U.S.C.S. § 3144 applicable to the Territory.

 

Second, even if 18 U.S.C.S. § 3144 applied here, nothing in its terms satisfies the requirements of the Uniform Act.  The Uniform Act requires a reciprocal statute providing for the extradition of material witnesses to another jurisdiction.  18 U.S.C.S. § 3144 only provides for the taking of witnesses into custody who may not be practically compelled to testify by subpoena.  It reads, in full:

 

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title.  No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.  Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

 

18 U.S.C.S. § 3144 (Law. Co-Op. 1993).  There is nothing in the statute concerning extradition of witnesses, and Hawaii has cited no authority that the statute is to be interpreted to include such.  Thus, even if 18 U.S.C.S. § 3144 applied here, which it does not, it would not aid Hawaii in its request.

 

IV.  Conclusion

 

[3]  The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings seems to be an intelligent law.  American Samoa would benefit greatly, as would the other states and territories of the UnitedState, should we adopt it as legislation.[2]  However, we have not.  Nor have we adopted any similar provision.  This court has stated repeatedly that it will not sit as a legislature.  Thus, [29ASR2d76] although I would strongly recommend that the Legislature of American Samoa consider enacting the Uniform Act, I cannot proceed by judicial fiat as if the Legislature has already enacted it.

 

Because there is no law in place in American Samoa which satisfies the first of the requirements of the Uniform Act, as enacted in Hawaii, I am compelled to reject the Application for an Order Directing May Fitiausi to Appear.  I understand that this may cause serious problems for the Hawaiian government in prosecuting Garner.  Nevertheless, Ms. Fitiausi has rights which must be protected.  I am compelled to follow the law applicable here which protects those rights.

 

The application is DENIED.

 

It is so ordered.

 



[1]   The word "state," which has been replaced in this excerpt, is defined as "any state, territory, or possession of the United States."  Id. at § 836-1.  It is assumed for this order that this definition encompasses American Samoa.[29ASR2d74]

 

[2]  The Fono has in other contexts provided reciprocal enforcement legislation, as in the adoption of the Uniform Reciprocal Enforcement of Support Act, A.S.C.A. § 42.0401 et seq., the Uniform Enforcement of Foreign Judgments Act, § 43.1701 et seq.,and the Unifrom Criminal Extradition Act, A.S.C.A. § 46.0901 et seq.

In re Matai Title “Mulitauaopele”


[1] Matai titles are regulated by law.  A.S.C.A. §§ 1.0401-1.0414.  The territorial registrar maintains the title register, A.S.C.A. § 1.0401, and may register successors to vacant titles only after a specific administrative process, A.S.C.A. §§ 1.0405-1.0408, 1.0410.  The court must resolve disputed claims that remain unresolved by the administrative process.  A.S.C.A. § 1.0409.

 

[2]  The territorial registrar is prohibited from accepting counterclaims for the title or objections to the offer following the sixtieth day after the registrar posts notice of the original offeree's claim.  A.S.C.A. § 1.0407(a). 

 

[3]  A.S.C.A. § 1.0407(a) does not permit a substitute candidate after the sixtieth day under all circumstances, including a candidate's death. 

 

[4]  The death of one matai title candidate does not automatically entitle the solely remaining candidate to the title by default.  A fair and reasonable opportunity must be given to the contentious elements within the family, or those who supported the deceased candidate, to promote their title candidates and to the family to resolve their internal differences. 

 

[5]  Eligibility to succeed to a vacant matai title is set forth in A.S.C.A. § 1.0403.  Under § 1.0403(b), a person born on foreign soil is eligible to [29ASR2d170] hold an American Samoa matai title only if: (1) that person was born of parents who were inhabitants of American Samoa, but were temporarily residing outside of American Samoa or engaged in foreign travel at the time of his birth; and (2) while later residing in American Samoa that person either (a) renounces, under oath, his allegiance to the foreign country of his birth, within one year after reaching age 18 years, or (b) has continuously resided in American Samoa for at least 10 years prior to claiming registration as a matai titleholder.  To be eligible to succeed to a vacant matai title, each requirement of the A.S.C.A. § 1.0403(b) two-pronged test must be satisfied.

 

[6]  A bill of attainder and ex post facto law,  under Rev. Const. Am. Samoa, art. 1, § 13, apply only to criminal laws. 

 

[7]  A bill of attainder imposes punishment without judicial process.

 

[8]  An ex post facto law creates a crime out of an innocent act when it was committed or applies a harsher penalty than the one in force when a criminal act was committed. 

 

[9]  A.S.C.A. § 1.0403(b) is not a prohibited bill of attainder or ex post facto law because it is not a criminal law.

 

[10]  Equal protection does not prevent classifications which are reasonably related to the achievement of a legislative purpose. 

 

[11]  Age groupings have been consistently upheld for regulatory objectives such as voting, jury selection, military service, and receiving Social Security and other benefits.  In the context of matai title eligibility, the distinction between minority and majority is a logical differentiation.  

 

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

 

Counsel:    For Plaintiffs, Togiola T.A. Tulafono

For Defendant Agi Grohse, Henry W. Kappel, Assistant Attorney General

For Defendant Lei`ataua Peter Ah Ching, Tuana`itau F. Tuia, L.P.

 

Opinion and Order:

On May 4, 1994, plaintiffs brought this action to set aside the Territorial Registrar's registration of defendant Lei`ataua Peter Ah Ching ("Ah Ching") as the holder of one matai title Mulitauaopele in the Village of Laulii, American Samoa.  Trial was held on November 3, 1995, with all counsel present.  Having heard testimony and considered the evidence, including related actions by judicial notice, the court will void the title registration and issue certain consequential orders. [29ASR2d171]

 

BACKGROUND

 

Plaintiffs and Ah Ching are blood members of one of two Mulitauaopele families in Laulii.  Defendant Agi Grohse was the Acting Territorial Registrar at the time the Mulitauaopele title was registered in Ah Ching's name, and is now the Territorial Registrar.

 

Mulitauaopele Tamotu ("Pele Tamotu") was the sa`o, or senior titleholder, of his Mulitauaopele family.  After Pele Tamotu's death, Leaana L. Fuata ("Leaana") offered this Mulitauaopele title for registration.  Fofogaotuma Konelio Mulitauaopele ("Konelio") objected and counterclaimed for the title.  Mulitauaopele Ivi ("Pele Ivi") also objected.  His objective was to prevent any further registration of the title held by Pele Tamotu on the grounds that only one Mulitauaopele family and title exist in Laulii, and that Pele Tamotu's title was an aberration arising under ancient, special circumstances which no longer warranted recognition.  In the judicial action that followed, In re Matai Title Mulitauaopele, 16 A.S.R.2d 63 (Land & Titles Div. 1990), the trial court found that two distinct Mulitauaopele families and titles in Laulii existed and awarded the title of Pele Tamotu's family to Konelio.

 

Upon Konelio's death a short time later, Leaana again offered the title for registration.  This time Ah Ching objected and counterclaimed for the title.  Pele Ivi objected once more, raising the same issues.  While the dispute was still pending in the applicable administrative process, Leaana passed away, leaving only Ah Ching as a claimant.  When the appellate court upheld the trial court's finding that two Mulitauaopele families exist, Mulitauaopele v. Mulitauaopele, 25 A.S.R.2d 43 (App. Div. 1993), Grohse, acting on the Attorney General's advice, registered the title in Ah Ching's name.

 

After the title registration in Ah Ching's name, Alamoana S. Mulitauaopele ("Alamoana") filed an action, Mulitauaopele v. Togafau, CA No. 5-94 (Trial Div. 1994), in essence to declare the Attorney General's advice erroneous and void Ah Ching's title registration.  The trial court dismissed this action for several reasons.  Mulitauaopele v. Togafau, 26 A.S.R.2d 52 (Trial Div. 1994).  The one most pertinent to this action was Alamoana's lack of standing to maintain his action based on his status as either a member of the House of Representatives of the Legislature of American Samoa from the election district including Laulii, a voter, a resident, a taxpayer, or a member of Pele Ivi's Mulitauaopele family.1[29ASR2d172]

 

Finally, we note in passing that Grohse and Ah Ching defensively alleged that Pele Tamotu's Mulitauaopele family held the customary kava cup ceremony for Ah Ching and that the three named plaintiffs participated in this event.  Grohse and Ah Ching made arguments of mootness and estoppel, as legal consequences of this ceremony, in their motion to dismiss, which we denied July 14, 1994.  However, they offered no evidence of this ceremony at the trial.  Thus, we will not now address the occurrence and legal effect of any such ceremony.

 

DISCUSSION

 

We set aside Ah Ching's title registration for two fundamental reasons.

 

1.  Family members have been unduly deprived of participation in the selection of a successor matai.

 

[1]  Matai titles are regulated by law.  A.S.C.A. §§ 1.0401-1.0414.  The territorial registrar maintains the title register, A.S.C.A. § 1.0401, and may register successors to vacant titles only after a specific administrative process, A.S.C.A. §§ 1.0405-1.0408, 1.0410.  This court must resolve disputed claims that remain unresolved by the administrative process.  A.S.C.A. § 1.0409.

 

[2]  In the course of the administrative process, the territorial registrar is prohibited from accepting counterclaims for the title or objections to the offer following the sixtieth day after the registrar posts notice of the original offeree's claim.  A.S.C.A. § 1.0407(a).  The sixtieth day had long since past when Leaana died, leaving Ah Ching as the only candidate for the title.  Thus, in the absence of further candidates or opponents before the territorial registrar, the Attorney General advised Grohse to register the title in Ah Ching's name instead of returning the selection process to the family or referring the matter to this court for determination.

 

[3]  The law does not permit a substitute candidate after the sixtieth day.  See In re Matai Title "Leaeno", Bench Order Mot. Subst. (Land & Titles Div. May 6, 1991) (Court disallowed substitution of a younger, on-island [29ASR2d172] family member for an elderly, off-island candidate).  We believe that the only reasonable interpretation of § 1.0407(a) is to exclude substitutions after the sixtieth day under all circumstances, including a candidate's death, and so hold.  The Attorney General was correct to the extent his advice was premised on this reading of § 1.0407(a).

 

[4]  However, under the Attorney General's advice, Ah Ching became the titleholder essentially by default.  Clearly, Leaana had supporters within the family who were effectively and arbitrarily disenfranchised by his untimely death and the title registration in Ah Ching's name.  Surely, another family member was prepared to step forward to replace Leaana.  This candidate might even achieve an undisputed consensus among the family for selection as the next titleholder.  In any event, the process succeeds under the present circumstance only if fair and reasonable opportunity is given to contentious elements within the family to promote their title candidates and to the family to resolve their internal differences.

 

For this reason, we conclude that the registration of the matai title Mulitauaopele in Ah Ching's name is void and must be set aside.  The process must be returned to the family for further deliberations on choosing the successor to the Mulitauaopele title.

 

2.  Ah Ching is ineligible to hold the title.

 

[5]  Eligibility to succeed to a vacant matai title is set forth in A.S.C.A. § 1.0403.  Under § 1.0403(b), a person born on foreign soil is eligible to hold an American Samoa matai title only if: (1) that person was born of parents who were inhabitants of American Samoa, but were temporarily residing outside of American Samoa or engaged in foreign travel at the time of his birth; and (2) while later residing in American Samoa that person either (a) renounces, under oath, his allegiance to the foreign country of his birth, within one year after reaching age 18 years, or (b) has continuously resided in American Samoa for at least 10 years prior to claiming registration as a matai titleholder.

 

Ah Ching was born in Western Samoa.  His father was a Western Samoa citizen.  His mother was a U.S. national born in American Samoa and was a member of Pele Tamotu's Mulitauaopele family.  Shortly after Ah Ching's parents married in American Samoa, they moved to Western Samoa.  His father was in business in Western Samoa, and Ah Ching was raised to majority there.  While still a young adult, he was sent to American Samoa to serve as a lesser matai to Pele Tamotu.  Since then, Ah Ching has continuously resided in American Samoa for a period far in excess of 10 years, faithfully serving Pele Tamotu and pursuing career [29ASR2d174] employment with ASG.  In short, he became, and remains, an integrated member of his American Samoa family and this community.

 

Based on his continuous residence here for well beyond 10 years, Ah Ching has clearly met the second part of the two-pronged test for overcoming deficiencies as a foreign born person to hold a matai title in American Samoa.  However, Ah Ching cannot change the fact that he was born on foreign soil to parents who were not outside American Samoa for a temporary purpose but were inhabitants of that foreign country.2

 

Applying the plain construction of § 1.0403(b), we conclude that Ah Ching lacks the requisite qualifications to hold the Mulitauaopele title.  However, he has raised several constitutional arguments for rendering the statute invalid or, at least, inapplicable to him.  In general, Ah Ching argued that he has been denied equal protection of the laws and that his privileges and immunities have been abridged.  For the most part, he made the same points which we recently addressed in In re Matai Title "I`aulualo", 25 A.S.R.2d 155 (Land and Titles Div. 1994), aff'd, 29 A.S.R.2d ___ (App. Div. 1995).  In I`aulualo, we held that § 1.0403(b) passes constitutional muster.  Ah Ching has not offered anything in his arguments to overcome that holding.

 

[6-9]  We will only briefly comment on two additional points not specifically raised in I`aulualo.  First, Ah Ching characterized § 1.0403(b) as a prohibited bill of attainder and ex post facto law,  under Rev. Const. Am. Samoa, art. 1, § 13, pointing to its enactment as P.L. No. 7-38 in 1962 and his birth in 1938.  However, these forbidden legislative acts apply only to criminal laws.  A bill of attainder imposes punishment without judicial process.  Black's Law Dictionary 162 (4th ed. 1951).  An ex post facto law creates a crime out of an innocent act when it was committed or applies a harsher penalty than the one in force when a criminal act was committed.  Black's Law Dictionary 662-63.  Section 1.0403(b) is simply not a criminal law.

 

Second, Ah Ching attacked the provision in § 1.0403(b)(1), allowing a person to renounce allegiance to a foreign country of birth only while 18 years of age, as unconstitutional age discrimination.  Despite his protests to the contrary, this provision does not preclude Ah Ching, or anyone else who takes up residency in American Samoa when they are older than 18, from qualifying for a mataiship.  Section 1.0403(b)(2) qualifies any such person after 10 years of continuous residency.  Ah Ching met this standard, but even if he had not, we would not declare the renunciation provision unconstitutional.   

 

[10-11]      Equal protection does not prevent classifications which are reasonably related to the achievement of a legislative purpose.  Age groupings have been consistently upheld for regulatory objectives such as voting, jury selection, military service, and receiving Social Security and other benefits.  See 16A Am. Jur. 2d Constitutional Law § 770.  The distinction between minority and majority is a logical differentiation in the present context.  The Legislature could reasonably find that a resident declaring fidelity to American Samoa at age 18 is probably sincere, while in later years, his fealty is best gauged by a significant period of residency.  

 

Ah Ching's real problem is with the stigma he now suffers from his parents' circumstances at the time of his birth.  The purpose  underlying § 1.0403(b) appears to be that a foreign-born candidate for an American Samoa matai title have an enduring and informed relationship with the title and the territory.  Ah Ching's connections in American Samoa are ostensibly genuine.  However, as we pointed out in, I`aulualo, 25 A.S.R.2d 155 (Land and Titles Div. 1994), and In re Matai Title "Patea", 25 A.S.R.2d 139 (Land and Titles Div. 1994), the Legislature, not the court, has the responsibility to determine the policy of using the status of a candidate's parents at the time of his birth as an eligibility criterion.       

 

Thus, Ah Ching must be declared ineligible to hold this Mulitauaopele title, and for this reason as well, the registration of the title in Ah Ching's name is void and must be set aside.  This ruling also requires that the process must be returned to the family for further deliberations on selecting the next Mulitauaopele titleholder. 

 

ORDERS

 

1.  The registration of the matai title Mulitauaopele in Ah Ching's name is void and set aside.

         

2.  The registration process is returned to the Mulitauaopele family for further deliberations on the selection of the successor matai.

 

3.  Ah Ching is ineligible and is not a lawful candidate to hold the Mulitauaopele title.

 

It is so ordered.

 

 

 



1  The trial court based the dismissal on other grounds as well.  First, Alamoana asserted that the Attorney General's verbal advice to Grohse was in conflict with A.S.C.A. § 1.0405(a).  However, that statute only requires that claims to a title be filed in writing with the Territorial Registrar.  The Attorney General was not claiming the title, and, thus, his advice was not required to be in writing.  Second, Alamoana failed to meet the statutory prerequisite for declaratory relief by not raising any controversy pertaining to a written instrument, property, or rights or duties with respect to the Attorney General or any other person.  A.S.C.A. § 43.1102.

2  Ah Ching has not contested the meaning of "inhabitant," as applied to his parents' circumstances at this birth.  However, to complete our discussion to this point, "inhabitant" means a persons "who resides actually and permanently in a given place, and has his domicile there."  25 A.S.R.2d 155 (Land and Titles Div. 1995). [29ASR2d175]  

In re Matai Title "Leniu",


[29ASR2d126]

                     

 

In the matter of the Matai Title "LENIU" of the village of ASILI,

American Samoa.

 

High Court of American Samoa

Land and Titles Division

 

MT No. 3-95

 

December 12, 1995

 

[1]  The Territorial Registrar's discretion to rule on the legal sufficiency of a claim to a matai title is minimal.  The Registrar's authority is, essentially, limited to a determination that information in the claimant's petition is "valid," A.S.C.A. § 1.0405(c); see also Id. at § 1.0407(c), and that the "claim, certificate, and petition are in proper form.

 

[2]  The 60 day time period for filing objections to a claim of matai title, as required by A.S.C.A. § 1.0407(a), runs from the time the Territorial Registrar is satisfied that the claim is in proper form.

 

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

 

Counsel:    For Claimant Isapela Mailo Warren, Charles V. Ala`ilima

For Counter-claimant Matauaina Afui`a Leau`anae, Asaua Fuimaono

For Counter-claimant Maugaotega Savane T., Togiola T.A. Tulafono

 

Order Denying Motion for Summary Judgment:

 

The issue before us is whether a candidate for a matai title is entitled to the title as a matter of law when the original claimant was found to be ineligible by the Territorial Registrar, and other claimants made their claims only after notice that the remaining candidate's claim was re-issued.

 

HISTORY

 

Petelo Lealiie`e ("Lealiie`e") was the original claimant to the Leniu title, and Isapela Mailo Warren ("Warren") was the sole objector to file a counterclaim within 60 days after publication of Lealiie`e's claim, as required by A.S.C.A. § 1.0407(a).  The Territorial Registrar subsequently found Lealiie`e to be ineligible to hold the title, and Lealiie`e has made [29ASR2d127] no attempt, known to this court, to contest the Registrar's decision.  After this finding of ineligibility, the Registrar also refused to register the title in Warren's name, and instead posted notice of Warren's claim to the title, pursuant to A.S.C.A. § 1.0406.  Counter-claimants Matauaina Afui`a Leau`anae and Maugaotega Savane T. filed their claims within 60 days following notice of Warren's claim. 

 

Warren now moves for summary judgment, claiming that all counter-claims should have been filed within 60 days of Lealiie`e's original claim in order to satisfy A.S.C.A. § 1.0407(a).  Warren argues that she is the only counter-claimant to file within that period and is consequently the only lawful remaining candidate, and therefore claims that she is entitled to judgment as a matter of law.

 


DISCUSSION

 

[1-2]  The Territorial Registrar's discretion to rule on the legal sufficiency of a claim to a matai title is minimal.  The Registrar's authority is, essentially, limited to a determination that information in the claimant's petition is "valid," A.S.C.A. § 1.0405(c); see also Id. at § 1.0407(c), and that the "claim, certificate, and petition are in proper form . . . ."  A.S.C.A. § 1.0406.  The Territorial Registrar should make decisions regarding the form or validity of a claimant's petition prior to posting notice of the claim, which begins the 60 day notification period, in which others may object to the registration or make counter-claims.

 


If the territorial registrar is satisfied that the claim, certificate, and petition are in proper form, he must give notice of the filing of the claim . . . .


 

A.S.C.A. § 1.0406.  The foregoing language plainly requires the Registrar to be "satisfied" that a petition is in order before giving notice of it to the world.  The Registrar ignored this procedure in the present case by giving notice of the Lealiie`e's original claim before deciding that the said claim was not in order.  The proper time for the Registrar to give notice of a claim is after he is satisfied that it is in proper form.  We hold, therefore, that the 60 day time limit under A.S.C.A. § 1.0407(a) could not properly begin to run until some time after the decision regarding Lealiie`e's original claim, since notice of that claim should never have been published in the first place.  As a matter of law, time began to run on the day that the Registrar gave notice of Warren's claim, thereby indicating that Warren's claim was (at least presumptively) "in proper form."1 [29ASR2d128]

 

For the foregoing reasons, we find that the counter-claimants filed timely claims, and the motion for summary judgment is therefore DENIED.

 

It is so ordered.

 

 

 

*********

 



1  We need not decide whether notice of Lealiie`e's original claim represented a binding decision by the Registrar that the claim was in order, because the Registrar later refused the registration and Lealiie`e elected not to seek review of that rejection.  The Registrar should note, however, for the sake of procedural clarity in future cases, that he should publish notice of a claim only after he is "satisfied" that the claim is in order.  Otherwise, his publication itself may, in some future case, be taken as a binding decision that the claim is in order.

In re Estate of Fa'avi Sefuiva;


[29ASR2d76]

 

 

In the Matter of Estate of: FA`AVI SEFUIVA, Deceased

 

By: ANE SEFUIVA, Petitioner

     

High Court of American Samoa

Trial Division

 

PR No. 46-95

 

November 21, 1995

 

[1]  A surviving spouse is ordinarily entitled to issuance of letters of administration. 

 

[2]  A.S.C.A. § 40.0334 applies only to estates with personal property under $10,000.  A.S.C.A. § 40.0335(b) requires that a petition for the transferal of personal property, made under A.S.C.A. § 40.0334, state the total value of the personal property.  A petition requesting authority to negotiate all checks made payable to a decedent not to exceed $10,000 leaves undeclared the value of certain checks made payable to the decedent, and makes a mockery of A.S.C.A. § 40.0334, as it would admit estates with personal property in excess of $10,000 by simply limiting an order of transfer to an amount “not to exceed $10,000.

 

Before KRUSE, Chief Justice.[29ASR2d77]

 

Counsel:  For Petitioner, Cheryl A. Crenwelge

 

Order Denying Petition for Transferal of Personal Property:

 

[1]  The petitioner is the surviving spouse, ordinarily entitled to issuance of letters of administration.  She seeks the transferal of personal property of her husband's estate which includes a savings account of $3,200 with the Amerika Samoa Bank.  The petition, however, further seeks authorization for petitioner to negotiate "all checks made payable to decedent."

 

[2]  The petition as presented must be denied.  A.S.C.A. § 40.0334, under which relief is sought, applies only to estates with personal property under $10,000. See In re the Estate of Fuimaono7 A.S.R.2d 142 (Trial Div. 1988).  A.S.C.A. § 40.0335(b) requires the petition to state the total value of the personal property.  This petition does not do so, leaving undeclared the value of certain checks made payable to the decedent.

 

In an apparent attempt to get around this statutory limitation, petitioner proposes an order from the court that would effectively permit her to negotiate "all checks that are made payable to decedent . . . not to exceed $10,000."  Such an order would make mockery of A.S.C.A. § 40.0334, as it would admit estates with personal property in excess of $10,000 by simply limiting an order of transfer to an amount "not to exceed $10,000."  The petition is denied.  However, the court will allow the petitioner 30 days to amend the petition to state the value of the checks.  If the petition is properly amended and otherwise complies with the statutory provisions, it will be granted at that time.

 

It is so ordered.

 

 

 

 

In re Bar Ass’n Membership Residency Requirement,


 

[29ASR2d14]

 

In Re BAR ASSOCIATION MEMBERSHIP RESIDENCY REQUIREMENT

 

To: Roy J.D. Hall, Jr., Chairman[29ASR2d15]

Standing Committee on Bar Admissions

 

From:  F. Michael Kruse, Chief Justice

 

Copy: Janet L. Skeels, John D. Huff, William H. Reardon, Standing Committee Members, and

Marshall Ashley, President A.S.B.A.

 

Re: Bar Association Membership's Residency Requirement

In re the Application of Janette L. Skeels

In re the Application of John D. Shuff [sic.]

 

May 17, 1995

 

MEMORANDUM

 

This is to clarify the High Court Rule requiring applicants for admission to the American Samoa Bar Association to be residents of the territory.

 

Your committee has submitted, for my consideration, a split decision on the bar applications of Janette L. Skeels and John D. Shuff ("applicants").  Both applicants are currently active bar members and residents of the State of California.  They have applied for admission to the American Samoa Bar Association since their working relationship with the Law Offices of William H. Reardon will be bringing them to American Samoa periodically to practice law.1

 

Bar Admissions Committee member Charles V. Ala`ilima dissented to the applicants' admission on the grounds that the Rules of Admission regarding residency requirements should be rewritten to clarify the High Court Rule promulgated by Acting Chief Justice Thomas Murphy dated November 13, 1981.2  This Rule clearly requires that an individual must [29ASR2d16]  be a resident of American Samoa in order to qualify for admission to the bar.

 

The applicants urge that such a Rule violates the privileges and immunities clause of the United States Constitution, which provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."  U.S. Const. art. 4, § 2, cl. 1.  Applicants cite Thorsten v. Virgin Islands Bar Association, 489 U.S. 546 (1989), for the claim that the practice of law is a privilege protected by the privileges and immunities clause of the U.S. Constitution and that a nonresident of a territory who otherwise qualifies for bar admission has an interest protected by the clause.

 

In Thorsten, The Supreme Court found that a Virgin Islands Bar Association Rule requiring an applicant to be a resident in the territory for one year before applying for bar admission was unconstitutional under the privileges and immunities clause.  Id. at 559.  Although the privileges and immunities clause uses the term "citizens of each State," and not territories, the Court held that it applied to the Virgin Islands pursuant to 48 U.S.C. § 1561.  Id. (emphasis added).  In passing 48 U.S.C. § 1561, the U.S. Congress expressly stated that the privileges and immunities clause of the U.S. Constitution "hereby extend[s] to the Virgin Islands to the extent that they have not been previously extended to that territory and shall have the same force and effect there as in the United States or in any State of the United States."

 

Neither the U.S. Congress nor the Legislature of American Samoa have ever passed a law, such as 48 U.S.C. § 1561, that would extend the application of the privileges and immunities clause of the U.S. Constitution to American Samoa.  Without such a mandate, the privileges and immunities clause does not apply to a territory.  Anderson v. Scholes, 83 F.Supp. 681, 687 (D. Alaska 1949) (holding that the term "citizens" used in the privileges and immunities clause has the same meaning as in the fourteenth amendment, which does not apply to the territories of the United States).  American Samoans are recognized as nationals, and not citizens, of the United States.  In dicta, the High Court of American Samoa has also stated that the privileges and immunities clause of the U.S. Constitution "applies to the States on its face" and not to American Samoa.  Banks v. ASG, 4 A.S.R.2d 113, 128, f. 7 (Trial Div. 1987).

 

For these reasons, I am denying the admission of Janette L. Skeels and John D. Shuff to the Bar Association of American Samoa due to their failure to satisfy the High Court Rule requiring applicants to the Bar to be residents of American Samoa.  At this time, I see no compelling reason to amend this requirement.  Since the privileges and immunities clause does not apply to American Samoa, it offers no protection to the [29ASR2d17] applicants.  Furthermore, H.C.R. 145, which provides for Pro Hac Vice admission, has been liberally applied to off-island counsel, including practitioners from neighboring Western Samoa.  If either applicant has a matter pending with the High Court, they may request the Chief Justice to grant them Pro Hac Vice status.

 

By copy of this letter to the President of American Samoa Bar Association, I am inviting comment from the Bar as to the desirability of a continuing residency requirement for admission to Bar membership and practice before the High Court.  Some counsel, including yourself, have variously expressed the need to revisit the rule's residency premise, especially in those cases where off-island counsel intend to associate with local law offices.  There is merit to this view, because the court can then look to the local office to secure compliance with counsel's responsibilities to the court and American Samoa public.  As the High Court recently stated in American Samoa Government v. Wilson, CR No. 08-93, (Trial Div. 1993), slip op. at 2 (Order on Motion to Withdraw, issued Mar. 31, 1990), "[i]n reaping the benefits as a legal profession, an attorney accepts his office cum onere."  Among my concerns, are desire to ensure that the onus of the profession in a very small and very isolated Bar is fairly shouldered by all who seek admission and the benefits of practice in the territory.

 

 

 

 

********

 

 



1  Pursuant to A.S.C.A. § 31.0104, it is unlawful to practice law in American Samoa unless such person, or firm is licensed or authorized by the Chief Justice.  "All persons admitted to the practice of law on a regular basis before any division of the High Court of American Samoa shall be members of the [American Samoa] bar association."  A.S.C.A. § 31.0110

 

2  A.S.C.A. § 31.0101 states the "The Chief Justice of the High Court of American Samoa has the power to: (1)  examine, admit and reinstate attorneys and practitioners to practice law in American Samoa; (2) adopt reasonable rules and regulations to make effective the provisions of this chapter."

 

Harris v . Comm’r of the American Samoa Gov’t Workmen's Comp. Comm’n,


[29ASR2d184]

 

 

FA`ALUA HARRIS, Petitioner

 

v.

 

COMMISSIONER OF THE AMERICAN SAMOA GOVERNMENT

WORKMEN’S COMPENSATION COMMISSION, Respondents

____________________________

 

VCS SAMOA PACKING COMPANY, Real Party in Interest

 

High Court of American Samoa

Trial Division

 

CA 45-95

 

February 26, 1996

 

[1]  Where findings of fact are substantially supported by the record, and where those facts directly support the presumption that a worker’s injury has occurred as a result of employment, a conclusion by the Workmen’s Compensation Commission that the presumption has been overcome is plain error.

 

[2]  Conclusions of law must follow from the facts which are developed at trial or before the Workmen’s Compensation Commission.  It is for this reason that appellate courts review findings of fact for clear error but conclusions of law de novo.

 

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

 

Counsel:    For Petitioner, Marshall Ashley, Esq.

                   For Respondents, Henry W. Kappel, Assistant Attorney

                   General, William Kabeisman,

                   Assistant Attorney General

                   For Real Party in Interest, Roy J.D. Hall, Jr., Esq.[29ASR2d185]

 

Order Denying Motion for Reconsideration:

 

I.  INTRODUCTION

VCS Samoa Packing Co. ("Samoa Packing"), the real party in interest in this workermen's compensation case, has moved for reconsideration of our earlier review of the decision of the Workmen's Compensation Commission ("WCC").  Samoa Packing claims that we erred by improperly applying the presumption of A.S.C.A. § 32.0642(1), that we failed to review the record in light of the WCC's ultimate decision, and that we gave the improper remedy.  For the reasons listed below, we deny the motion.

 

II.  DISCUSSION

 

A.  Application of the Presumption

 

Samoa Packing claims, first, that we misapplied the presumption contained in A.S.C.A. § 32.0642(1).  Whatever arguments Samoa Packing would like to make about the correct application of presumptions in general, it cannot dispute that this court has repeatedly held with regard to this particular presumption that "[o]nce a claimant has shown the existence of an illness and an employment relationship, a presumption arises that the claim lies within the coverage of the workmen's compensation laws.  The presumption operates to shift to the employer the burden of proving by substantial evidence that the injury was not caused by the employment."  Star-Kist Samoa, Inc. v. Workmen's Compensation Commission, 7 A.S.R.2d 149, 151 (Trial Div. 1988) (citations omitted).  We examined the evidence and found that not only was there a lack of substantial evidence to overcome the presumption, but that much of the evidence, including the WCC's own findings of fact, was in direct conflict with its conclusions.

 

In the present case, the WCC made findings of fact which directly supported the presumption:  it found that Harris' illness arose during her employment, seeFindings Fact, Concls. & Order, WCC No. 29-91, at 2, 4 (Workmen's Compensation Comm'n Mar. 24, 1995) [hereinafter Findings], that the floor where Harris worked was always wet, see id. at 3, and that her shoes were sometimes wet from fish juices and water, see id. at 3.  Where there was equivocal evidence in the record, the WCC explicitly credited the evidence in Harris' favor.  See Order on Petition for Review at 5-7 [hereinafter Order].

 

The other considerations which Samoa Packing presented in its Motion for Review were either irrelevant or had no basis in evidence whatsoever.  For instance, the fact that Harris stated her reason for resigning was "to [29ASR2d186] take care of her sick husband," has no bearing on when she contracted her illness.  See id. at 4.  As another example, Samoa Packing's contention that Harris should have developed a rash on her hands has no support in the record, either factual or by expert testimony.  See id. at 7.

 

[1]  Despite the findings of the WCC--all working to support the presumption, not overcome it--it concluded that the presumption had been rebutted and that Harris' illness did not fall under the coverage of the workmen's compensation laws.  Where the findings of fact are substantially supported by the record, and where those facts directly support the presumption, a conclusion that the presumption has been overcome is plain error.  Despite our earlier holding about the effect of the presumption in Star-Kist, all of Samoa Packing's arguments about the proper application of the presumption in this case are all for naught, because the WCC's findings of fact support the presumption instead of contradicting it.

 

B.  Review of The Record

 

Samoa Packing next contends that we erred by considering only the findings of the WCC, rather than the entire record.  This was not the case, however.  We can only overturn a finding of fact by the WCC if we find that it was not supported by substantial evidence in the record.  Star-Kist, 7 A.S.R.2d at 151; Continental Insurance Co. v. Workmen's Compensation Commission, 7 A.S.R.2d 105, 107 (Trial Div. 1988).  We review those findings of fact based upon the entire record.

 

As a preliminary matter in conducting our earlier inquiry, we reviewed the WCC's findings of fact, finding that they were all supported by substantial evidence. See Order at 4.  Where the findings were disputed, we discussed them, see Order at 4-7, but in no instance did we find that any of the WCC's findings was not supported by substantial evidence based upon the entirety of the record.  Only after reviewing the findings of fact based upon the entire record, did we turn to our discussion of the WCC's conclusions of law as supported by those findings. 

 

In other words, we reviewed the entire record, in the first instance, to see if there was substantial evidence to support the commission's findings.  Having found that these findings were supported by the record as a whole, we need not later return to the entire record to now determine if the commission's conclusion is supported, completely ignoring their findings.  To do so would be to convert ourselves, as an appellate panel, into finders of fact--a role which is clearly inappropriate.  Cf., e.g., Suapilimai v. Faleafine, 9 A.S.R.2d 16 (App. Div. 1988).[29ASR2d187]

 

The WCC's findings were not "meager and ommissive," as Samoa Packing submits.  See Mem. Supp. Mot. Recons. at 8.  On the contrary, they were substantial and complete enough to support a determination of Ms. Harris claim--unfortunately, the conclusion they support was not the conclusion reached by the WCC. This is clear error, and we reversed the WCC based upon this.

 

C.  Improper Remedy

 

Finally, Samoa Packing contends that we applied the improper remedy.  Having found the WCC's findings of fact supported, but not its conclusions of law, Samoa Packing contends that we should remand the case to allow the WCC to supplement (or change) its findings.  In our view, this is not the way the law works.

 

[2]  Conclusions of law must follow from the facts which are developed at trial or before a commission.  To allow the finder of fact to sculpt facts which fit its ultimate legal conclusion is to allow the commission to pre-judge its cases.  It is for this very reason that appellate courts review findings of fact for clear error but conclusions of law de novo.  See, e.g., Anderson v. Vaivao, 21 A.S.R.2d 95 (App. Div. 1992).  The WCC made all the findings of fact that were necessary to reach the proper legal conclusion and nothing can be gained by remand.

 

III.  CONCLUSION

 

The Motion for Reconsideration must be denied.

 

It is so ordered.

 

 

 

Harris v. Comm’r of the American Samoa Gov’t Workmen's Comp. Comm’n,


[29ASR2d147]

 

 

FA`ALUA HARRIS, Petitioner

 

v.

 

COMMISSIONER OF THE AMERICAN SAMOA GOVERNMENT

WORKMEN'S COMPENSATION COMMISSION,  Respondents

____________________________

 

VCS SAMOA PACKING COMPANY,

Real Party in Interest.

 

High Court of American Samoa

Trial Division

 

CA No. 45-95

 

January 9, 1996

 

[1]  In order to prevail on a workmen's compensation claim, a claimant must show that her injury or illness "ar[ose] out of and in the course of employment." A.S.C.A. § 32.0520.  Once a claimant has shown the existence of an illness and an employment relationship, a presumption arises that the claim lies within the coverage of the workmen's compensation laws.  The employer then has the burden of showing by substantial evidence that the illness did not arise from employment.

 

[2]  Substantial evidence means more than a mere scintilla.  It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

 

[3]  In reviewing the Commission's order, we are required to look for substantial evidence supporting the order.  In this context, the substantial evidence test is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.  This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.

 

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

 

Counsel:    For Petitioner, Marshall Ashley

                   For Respondents, Henry W. Kappel, Assistant Attorney General, William Kabeisman, Assistant Attorney General

                   For Real Party in Interest, Roy J.D. Hall, Jr., Esq.[29ASR2d148]

 

Order on Petition for Review:

 


I.  INTRODUCTION

Petitioner Fa`alua Harris (hereafter "Harris") was employed as a fish cleaner by VCS Samoa Packing Company ("Samoa Packing") from April 1989 to February 1990.  She was one of many employees who processed the cooked fish for canning.  She resigned in February 1990, apparently to take care of her sick husband. Nearly two years later, she filed a claim with the Workmen's Compensation Commission ("the Commission") for dermatitis on her feet which she claimed she developed while employed at Samoa Packing.

 

The Commission issued an order on March 24, 1995, concluding that "[Harris'] illness was not related to her employment with [Samoa Packing]."  Findings Fact, Concls& Order, WCC No. 29-91, at 4 (Mar. 24, 1995) (hereinafter "Findings").  The Commission denied her workmen's compensation benefits.

 

We note jurisdiction to review orders of the Commission under A.S.C.A. § 32.0652.  The primary question upon review is whether the Commission appropriately applied the presumption of A.S.C.A. § 32.0642 that a claim falls within the coverage of the workmen's compensation laws.

 

II.  DISCUSSION

 

          A.  Presumption in Harris’ Favor

 

[1-2]  In order to prevail on a workmen's compensation claim, a claimant must show that her injury or illness "ar[ose] out of and in the course of employment." A.S.C.A. § 32.0520.  Once a claimant has shown the existence of an illness and an employment relationship, a presumption arises that the claim lies within the coverage of the workmen's compensation laws.  Star-Kist Samoa, Inc. v. Workmen's Compensation Commission, 7 A.S.R.2d 149, 151 (Trial Div. 1988); A.S.C.A. § 32.0642(1).  The employer then has the burden of showing by substantial evidence that the illness did not arise from employment.  Star Kist7 A.S.R.2d at 151.  Substantial evidence means "more than a mere scintilla.  It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  Richardson v. Perales, 402 U.S. 389, 401 (1971).

 

The Commission found the existence of an illness and an employment relationship at the time the illness arose.  See Findings at 2, 4.  Thus a [29ASR2d149] presumption arose, as a matter of law, that Harris’ illness is covered by workmen's compensation.  The Commission went on to find that there was substantial evidence presented to overcome this presumption.  See id. at 4.  Unfortunately, the Commission did not indicate what that substantial evidence was.

 

          B.  Standard of Review

 

[3]  In reviewing the Commission's order, we are required to look for substantial evidence supporting the order.  See Continental Ins. Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152, 155 (App. Div. 1988).  In this context, the substantial evidence test "is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.  This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment."  Id. (internal quotation marks omitted).

 

With this in mind, we are presented with two, not necessarily sequential, tasks.  First, we must review the Commission's findings of fact to ensure that they were supported by substantial evidence in the record.  Second, we must look to the record in light of these findings to see if there was substantial evidence to overcome the presumption in Harris’ favor.

 

          C.  Findings of Fact

 

Without need for present elaboration, we find that the Commission's findings of fact are all supported by substantial evidence in the record.  See Findings at 2, 4.  This does not end our inquiry, however.  We must also determine whether the findings constituted substantial evidence to overcome the presumption in Harris’ favor.  We refer to specific findings of fact below, when they are important.

 

D.  Substantial Evidence to Overcome the Presumption

 

The problem with the Commission's order is that its conclusion--that the presumption was overcome by substantial evidence--simply does not follow from its findings of fact.  Not only does the Commission fail to explicitly tell us what evidence overcomes the presumption, its findings of fact do not even intimate what evidence overcomes the presumption.  Samoa Packing contends that the record presents five sets of evidence which overcome the presumption.  See SamoaPacking's Resp. Br. at 10-12.  None of these is persuasive.

 

First, Samoa Packing contends that the presumption is overcome because, when Fa`alua resigned, she stated that she was resigning "to take care of a very sick husband."  Contrary to Samoa Packing's [29ASR2d150] assertion, this has absolutely no bearing on when or how Harris' illness arose.  Furthermore, the Commission explicitly found that Harris' illness arose during her employment at Samoa Packing.  See Findings at 2, 4.  This finding is substantially supported by the record.

 

Second, Samoa Packing points to the fact that Harris did not file her claim until 22 months after her resignation and that she continues to suffer from her illness 5 1/2 years after her resignation.  Her delay in filing is apparently offered to indicate that the illness arose after Harris’ resignation.  As we stated above, the Commission explicitly found otherwise. 

 

The long-term suffering is offered to show that, had Harris’ illness been caused by something at Samoa Packing, her long-term separation from her job should have caused her symptoms to subside.  Therefore, Samoa Packing argues, the cause must have been external to Samoa Packing.  The Commission made no explicit finding on what caused Harris’ illness, or whether long-term separation from the causal agent should have caused her illness to subside.  However, the only doctor testifying at the hearing, Dr. Tosi, stated that due to a bacterial infection afflicting Harris, she would continue to suffer from her illness indefinitely, regardless of her contact (or lack thereof) with the initial causal agent.  The medical records of Dr. Grekin from the Straub Clinic in Hawaii, offered to the Commission, do not clearly pinpoint the cause of Harris’ illness, although they indicate that it could be many things, including her shoes, fish juice, or ammonia.  The testimony of the doctors is, at best, equivocal on this issue.  The cause of an illness is often difficult to pinpoint in an employment context.  This is the precise reason why the legislature has enacted the presumption in favor of the worker.  Dr. Grekin's possible alternative causes is not substantial evidence which will overcome the presumption.

 

Third, Samoa Packing argues that Harris indicated that her illness existed prior to her employment.  While she made statements to this effect during her testimony, it appears that she misunderstood the questions being asked, as she had at other times during her testimony.  The Commission apparently agrees, and explicitly found that her illness arose during her employment.  See Findings at 2, 4.  As we stated above, this finding is supported by substantial evidence.

 

Fourth, Samoa Packing points to the testimony of Eteuini Augafa, the Land Sanitation Manager at Samoa Packing, to the effect that the floors were kept clean, that Harris stood on a platform off the floor, that her shoes didn't get wet, and that water and scraps didn't fall on the floor.  According to Samoa Packing, "The Commission was well within its discretion to favor [Augafa]'s testimony and discount [Harris’] on this[29ASR2d151] point."  Samoa Packing's Resp. Br. at 11.  We agree that the Commission would have been within its discretion to do so.  In fact, it did exactly the opposite, finding that "[t]he floor of the working area where [Harris] and other fish cleaners worked was always wet and that sometimes [her] shoes . . . were wet from fish juices and water, dripping onto their shoes, and also to the floor . . . ."  Findings at 3.  This finding does not overcome the presumption, it supports it.

 

Finally, Samoa Packing contends that because Harris continually contacted the fish with her hands, she should have developed dermatitis there also.  The Commission made no finding of fact in this regard.  There is no medical testimony on this issue in the record.  There is also no testimony on whether Harris wore gloves or how often she washed her hands.  Quite frankly, there is no evidence on this issue, and no evidence cannot be substantial enough to overcome the presumption.

 

Thus, none of Samoa Packing's arguments are persuasive.  Where there is evidence in the record to support Samoa Packing's contentions, the Commission often made findings in direct opposition to that evidence.  As we said, these findings are supported by substantial evidence at other places in the record, and must be upheld.  For other of Samoa Packing's contentions, there is no evidence in support or the evidence is equivocal.

 

It is unclear how the Commission reached its conclusion.  What is clear, however, is that the record, construed in light of the Commissions findings of fact, does not support that conclusion.  It appears that the Commission has either misunderstood the presumption's effect on the onus of proof or it has, intentionally or not, simply paid lip-service to the presumption, rather than giving it the full evidentiary weight which is required by law.


 

III.  CONCLUSION

 

The conclusions of the Commission that the presumption in Harris’ favor was overcome by substantial evidence and that her illness was not related to her employment are clearly in error.  Accordingly, we remanded this proceeding to the Commission with the mandate to change conclusions 4 and 5 of its order so that they are in Harris’ favor, in accordance with the requirements of A.S.C.A. § 32.0642.  The Commission shall then [29ASR2d152] proceed to make determinations concerning the time period and amount of workmen's compensation benefits to which Harris is entitled.

 

It is so ordered.

 

 

 

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


[29ASR2d54]

 

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

 

October 16, 1995

 

[1]  A motion for a stay pending appeal is evaluated according to four criteria: (1) the likelihood that appellant will prevail in the appeal; (2) irreparable harm to the appellant if the stay is not granted; (3) irreparable harm to appellees if the stay is granted; and (4) whether the public interest would be affected by the stay.

 

[2]  In considering the foregoing issues of prejudice in granting a stay pending appeal, great weight will be given to preserving the status quo, and a motion for a stay for that purpose generally ought to be granted if the appeal is not frivolous, nor taken for the purpose of delaying the inevitable.

 

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

 

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

                    For Defendant and Counterclaimant, William H.

Reardon

 

Order Granting Motion for Stay of Execution of Judgment Pending Appeal Effective Upon Posting Bond Approved by the Court:[29ASR2d55]

 

HISTORY

 

On May 26, 1995, this court awarded counterclaimant Blue Pacific Management Co. ("Blue Pacific") damages of $20,900 for Hurricane Ofa's destruction of the skylight at Pago Plaza, based on the professional malpractice of the architect, who designed the skylight and supervised its installation for counterdefendant G.M. Meredith and Associates ("GMA").  GMA's motion for a new trial or reconsideration was denied on September 13, 1995.  GMA appealed on September 20, 1995, and now moves for a stay to prevent enforcement of the judgment pending the appeal.  The hearing on the motion to stay was held on October 12, 1995, with counsel for both parties present. 

 

STANDARD OF REVIEW

 

[1-2]  A motion for a stay pending appeal is evaluated according to four criteria: (1) the likelihood that appellant will prevail in the appeal; (2) irreparable harm to the appellant if the stay is not granted; (3) irreparable harm to appellees if the stay is granted; and (4) whether the public interest would be affected by the stay. Asifoa v. Faoa, 17 A.S.R.2d 100, 102 (App. Div. 1990).  In considering the foregoing issues of prejudice, great weight will be given to preserving the status quo pending appeal, and a motion for a stay for that purpose generally ought to be granted if the appeal is not frivolous, nor taken for the purpose of delaying the inevitable.  Id. at 102-103.

 

DISCUSSION

 

Our opinion in the present case is the first in this jurisdiction involving an architect's professional malpractice, and applies the doctrine of res ipsa loquitur to damages resulting from a hurricane.  Although we are comfortable that our holdings are correct, we acknowledge the fact that they present legal issues which are debatable and which are not settled in this jurisdiction.  For this reason, we conclude that the appeal is not taken either frivolously or solely for the purpose of delaying the inevitable. 

 

Blue Pacific does not object to the stay, provided that GMA posts a bond to secure the judgment in case the appeal is unsuccessful.  In light of this general agreement that a stay is appropriate, we are further determined to exercise our discretion to preserve the status quo pending appeal, if we can do so without undue prejudice to either party. 

 

The applicable rule governing a bond as security for a stay on appeal is found in T.C.R.C.P. 62(d), which states:[29ASR2d56]

 

Subject to the discretion of the court, when an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the conditions of subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal.  The stay is effective when the supersedeas bond is approved by the court.

 

We are required, under this rule, to use our discretion and determine whether to impose security in exchange of a stay of a money judgment pending an appeal. Asifoa17 A.S.R.2d at 103. 

 

In the present case, the appeal has not been calendared for the upcoming appellate session and will, therefore, be tied up in appellate litigation for quite some time.  Blue Pacific will also be required to expend resources to defend the judgment.  Thus, Blue Pacific has a legitimate interest in making sure that the judgment remains recoverable during the substantial period of the appeal.    

 

For these reasons, and exercising our discretion, we grant the motion to stay enforcement of the judgment pending the appeal, but require that GMA post a bond approved by the court to effectuate the stay.  The principal amount of the bond shall be the amount of the judgment, $20,900, less any amount already secured by execution of the judgment, and shall provide surety for post-judgment interest at the rate of 6% per annum on the principal amount of the bond. 

         

It is so ordered.

 

 

 

*********

 

Faumuina; Alai’asa v.


[29ASR2d138]

 

ALAI'ASA FILIFILI, Plaintiff

 

v.

 

LEPOPOLE FAUMUINA, Defendant

 

High Court of American Samoa

Land and Titles Division

 

LT No. 12-90

 

December 21, 1995

 

[1]  A certificate of irreconcilable dispute from the Secretary of Samoan affairs is plainly a jurisdictional requirement in the sense that the court cannot determine a controversy over communal land unless a certificate is filed.  A.S.C.A. 43.0302(a); Moeisogi v. Falefine, 5 A.S.R. 2d 131, 132-33 (Land & Titles Div. 1987).  The only specific exception to this requirement is that a certificate "may not be required prior to the issuance of a temporary restraining order . . . to prevent the occurring of irreparable harm."  A.S.C.A. § 43.0302(b); Moeisogi, 5 A.S.R.2d at 133.  However, the court may also make other interlocutory orders as the court thinks appropriate, A.S.C.A. § 43.0304, particularly when "strict compliance with any rule of practice or procedure may be inequitable or inconvenient."  A.S.C.A. § 3.0242(b); Moeisogi, 5 A.S.R.2d at 133.  

 

[2]  Where the requirement of a certificate of irreconcilable dispute has not been satisfied, it is not necessary to dismiss the case

 

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

 

Counsel:    For Plaintiff, Tautai A.F. Faalevao

                   For Defendant, Togiola T.A. Tulafono

Order to Stay Proceedings:[29ASR2d139]

This order concerns the issue of whether we should grant a motion to dismiss for failure to prosecute, because a plaintiff has moved for a continuance based on the absence of a certificate of irreconcilable dispute from the Secretary of Samoan Affairs as required by A.S.C.A. § 43.0302.

 

FACTS

 

Plaintiff Alai`asa Filifili Mailei ("Alai`asa") is the senior matai of the Alai`asa family of Faleniu.  Defendant Lepopole Faumuina ("Faumuina") resides onFanene family land adjoining Alai`asa family land.  This matter is, essentially, a boundary dispute in which Alai`asa claims that Faumuina has encroached upon his family land by clearing a portion of the disputed area.  The complaint was filed on April 18, 1990.  Although Faumuina has meaningfully participated in the action, he has not filed either answer or motion to dismiss under T.C.R.C.P. 12(b).  On May 25, 1990, this court issued a preliminary injunction, pursuant to the parties' stipulation, prohibiting the planting of crops on the disputed area, and permitting Faumuina to construct a house thereon, on the condition that the house should be removed at Faumuina's expense if Alai`asa prevails in the lawsuit. 

 

On November 14, 1991, also pursuant to the parties' stipulation, this court requested that the Land and Survey Division of the American Samoa Government retrace the land and indicate the location of the newly constructed house on the survey.  The Land and Survey Division had not completed this survey byNovember 24, 1993, and on that date Alai`asa moved that the Manager of the Land and Survey Division be held in contempt of court.  This motion was denied. On October 25, 1994Alai`asa moved for a continuance of trial in order to complete a survey of the relevant land, which had already begun.  This continuance was granted.  A later continuance, based on other grounds, moved the trial date to June 29, 1995. 

 

On June 29, 1995, the parties appeared, but Alai`asa' orally moved for a continuance based on the absence of a certificate of irreconcilable dispute from the Secretary of Samoan Affairs.  Faumuina then orally moved to dismiss either for failure to prosecute or based on res judicata, citing earlier decisions of this court.

DISCUSSION

 

[1]  A certificate of irreconcilable dispute from the Secretary of Samoan affairs is plainly a jurisdictional requirement in the sense that this court cannot determine a controversy over communal land unless a certificate is filed.  A.S.C.A. 43.0302(a); Moeisogi v. Falefine, 5 A.S.R. 2d 131, 132-33 (Land & Titles Div. 1987).  The only specific exception to this requirement is that a certificate "may not be required prior to the issuance [29ASR2d140] of a temporary restraining order . . . to prevent the occurring of irreparable harm."  A.S.C.A. § 43.0302(b); Moeisogi, 5 A.S.R.2d at 133.  However, we may also make other interlocutory orders as we think appropriate, A.S.C.A. § 43.0304, particularly when "strict compliance with any rule of practice or procedure may be inequitable or inconvenient."  A.S.C.A. § 3.0242(b); Moeisogi, 5 A.S.R.2d at 133.  

 

[2]  Where the requirement of a certificate of irreconcilable dispute has not been satisfied, it is not necessary to dismiss the case.  Id. at 133.  As a matter of equity and convenience, we will take this course of action rather than an outright dismissal because of the protracted nature of this dispute, and the amount of time and resources it has already consumed. 

 

It does strike us as a bit odd, however, that Alai`asa moved for a continuance on the day scheduled for trial, based on his own failure to comply with jurisdictional prerequisites which he has had five years to satisfy.  While Alai`asa changed counsel in 1993, his new counsel had some 18 months to correct this oversight before the June trial date.  In addition, a prior motion for a continuance was founded on Alai`asa's desire to complete a survey of the relevant property, and we have no indication that he has used the extra time which he was granted to secure the survey.  In light of the foregoing facts, we are inclined to grant the motion to dismiss for failure to prosecute if we see any evidence of further procrastination on Alai`asa's part.  See T.C.R.C.P. 41(b).

 

We will not address the motion to dismiss based on res judicata at this time.

 

ORDER

 

1.  Proceedings in this action are stayed for a period of four months from the entry of this order, except to obtain orders as may be necessary to prevent irreparable damage, to enforce any existing order, or to achieve other appropriate, interim objectives.

 

2.  Alai`asa shall, if the dispute before the Secretary of Samoan Affairs remains unresolved, obtain and file with the court a certificate of irreconcilable dispute, as required by A.S.C.A. § 43.0302, before the end of the stay.  If Alai`asa fails to satisfy this condition within the prescribed period, this action shall be automatically dismissed for failure to prosecute.

 

3.  If a certificate of irreconcilable dispute is filed before the end of the stay, Faumuina shall have 10 days to file a written answer to the complaint or a written motion to dismiss to the complaint, pursuant to T.C.R.C.P. 12(b).[29ASR2d141]          

 

4.  Alai`asa shall also be afforded four months from the entry of this order to complete, at his initial expense, a survey of the relevant land, sufficient for use at trial.  If he fails to do so, trial shall proceed without benefit of the survey, even if the survey is later completed.  Faumuina may also move, in writing, to dismiss this action based on Alai`asa's failure to complete the survey. 

 

5.  Faumuina, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, are enjoined from interfering in any manner whatsoever with the surveyor and his crew performing Alai`asa's survey.

 

6.  The preliminary injunction of May 25, 1990, shall remain in force and effect until a final order issues, or until dismissal of this case.

 

It is so ordered.

 

 

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


[29ASR2d114]

 

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 DOES 1-10,

 Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 30-94

 

December 6, 1995

 

[1]  A good faith possessor must have a reasonable belief that he holds valid title to the property, and when he learns that he has no title or that the title is defective, he is no longer acting in good faith.

 

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

 

Counsel:    For Plaintiff, Henry W. Kappel, Assistant Attorney General[29ASR2d115]

For Defendants Estate of Isumu Leapaga, Tui Tulimasealii, and Matiua Tulimasealii, Afoa L. Su`esu`e Lutu 

 

Order Denying Motion for Reconsideration or New Trial:

 

BACKGROUND

 

On September 5, 1995, this court granted summary judgment to plaintiff American Samoa Government ("ASG") and, inter alia, evicting defendants from a parcel of land known as Plot 3, which had been condemned for development of the Pago Pago International Airport.  Defendants Estate of Isumu Leapaga, Tui Tulimasealii and Matiua Tulimasealii ("the defendants") have challenged that judgment by this motion for reconsideration or new trial.  The motion was heard on November 1, 1995, with counsel present.

 

The defendants' motion for reconsideration or new trial simply reiterates arguments which were already made in their opposition to summary judgment.  First, they claim that they have not been justly compensated for Isumu Leapaga's land which was incorrectly adjudged as belonging to the Fagaima family, not to Isumu.  As we stated in granting summary judgment, however, this issue was decided in American Samoa Government v. Isumu, 4 A.S.R. 141 (Land & Titles Div. 1974), and is barred by res judicata.

 

[1]  Second, the defendants assert that they are entitled to compensation for their improvements to their land.  Again, we stated the legal rule in granting summary judgment.  A party is not entitled to compensation for improvements to land unless they are a good faith possessor.  Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988).  A good faith possessor must have a reasonable belief that he holds valid title to the property.  See id.  When he learns that he has no title or that the title is defective, he is no longer acting in good faith.  Isumu Leapaga knew at least since the date of the Isumu judgment in 1974, and probably much longer, when the condemnation judgment was affirmed on appeal, AP No. 11-1960, that he had no title to the land in question.

 

Even if the defendants made improvements with the permission of the government, as they claim, the most this does is preserve the improvements as chattel rather than as fixtures.  See 35 AMJUR. 2D Fixtures § 80 (2d ed. 1967).  As chattel owners, the defendants have the right to dispose of their property as they see fit.  See id. § 79.  They may not, however, force a sale of the property upon ASG, the landowner.  In granting summary judgment, we gave the defendants 60 days to remove from the land any improvements, fixtures or other possessions which[29ASR2d116] they own.  ASG will acquire title to any such property not removed within this time.   We reaffirm that order now.

 

Thus, the defendants have presented no grounds for granting reconsideration or a new trial.  Their motion is denied.

 

It is so ordered.

 

 

 

 

 

American Samoa Gov’t. v. Adams.


[29ASR2d160]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff/Respondent

 

v.

 

MICHAEL F. ADAMS, Defendant/Petitioner

 

High Court of American Samoa

Trial Division

 

CR No. 06-86

 

January 17, 1996

 

[1]  The writ of habeas corpus or "the great writ" is to provide "immediate relief from illegal detention."  Suisala v. Moaali`itele, 6 A.S.R 2d 15, 18 (Trial Div. 1987).  Habeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless "exceptional circumstances" rise to the level of "constitutional deprivation."

 

[2]  Although A.S.C.A. § 46.2072(b) does not create strict time parameters for considering or acting upon a parole application, it does plainly indicate that the application must be evaluated "[u]pon receipt."  This language clearly does not permit the Parole Board to unduly delay consideration of a parole application in order to get several hearings out of the way at the same time, or for other reasons of convenience

 

Before KRUSE, Chief Justice.

 

Order Denying Petition for Writ of Habeas Corpus:

 

On January 9, 1986, defendant Michael F. Adams ("Adams") killed Katherine and Edward Sedlack, and on August 13, 1986, was adjudged guilty on two counts of second-degree murder, pursuant to a plea agreement.  Adams was accordingly sentenced to two 30-year prison terms, which were to run concurrently.  Adamshas served more than 10 years of this sentence, and now petitions pro se for a writ of habeas corpus, alleging that the Parole Board refuses to consider his application for parole, despite his requesting it three times in advance of his eligibility.1

 

[29ASR2d161]The statute is plain on its face that a prisoner may apply for parole only after he has served the minimum prison term, and not in advance.

 

A prisoner . . . wherever confined, and serving a term or terms of over 6 months, who has served the minimum prison term under 46.2304 may apply to the board for parole.

 

A.S.C.A. § 46.2702(a) (emphasis added).  Although Adams applied for parole three different times, the last application he alleges was on December 6, 1995, or more than a month prior to the 10 year anniversary of his arrest for the murders.  He was, therefore, not eligible to apply for parole when he applied.  Without a valid application for parole, the petition for judicial review is premature and should, therefore, be denied.

 

[1]  Regardless, habeas corpus is hardly appropriate in this case.  The writ of habeas corpus or "the great writ" is to provide "immediate relief from illegal detention."  Suisala v. Moaali`itele, 6 A.S.R 2d 15, 18 (Trial Div. 1987).  Habeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless "exceptional circumstances" rise to the level of "constitutional deprivation."  American Samoa Government v. Agasiva, 6 A.S.R. 2d 32, 38 (Trial Div. 1987). 

 

The Ninth Circuit has held that the courts have jurisdiction to invoke the writ of habeas corpus only when detainment is unlawful, and on that basis refused to consider the validity of two out of three consecutive sentences (in order to determine parole eligibility) until after the admittedly valid sentence had been served. Dunlap v. Swope, 103 F.2d 19 (9th Cir. 1939).  The rationale behind this decision is simply that the prisoner is not unlawfully detained during the course of an admittedly valid sentence, and the court is, therefore, without jurisdiction to grant the writ.  In the present matter, Adams asks the court to declare his detainment unlawful during the course of a valid sentence.  His right is not to be granted parole, but rather to apply for it, and to have his application duly and fairly considered without indeterminate delay.  If, after Adams applies for parole, the Parole Board refuses to consider his application in a timely fashion, perhaps the appropriate remedy is mandamus, to compel the Board to timely consider the merits of his parole application, and not habeus corpus, to effectively circumvent parole proceedings altogether. [29ASR2d162]

 

Since Adams has not heretofore filed a valid parole application, he is entitled to no claim for relief respecting the Parole Board.  His petition is, therefore, denied.2

 

The Clerk of Courts is directed to serve a copy of this order upon the government/respondent via the Attorney General's Office and upon the defendant/petitioner at the Tafuna Correctional Facility.

 

It is so ordered.

 

*********



1       A criminal becomes eligible to apply for parole after serving 1/3 of his sentence.  A.S.C.A. § 46.2304(a).

2  Although Adams' petition is denied, it is helpful to address his concern that the Parole Board intends to delay a hearing on his parole application until there are a number of other prisoners who may be considered for parole at the same time.  The intention which Adams attributes to the Parole Board would be plainly  illegal.  The parole statute states, in relevant part:

 

Upon receipt of an application for parole by an eligible prisoner, the board considers all pertinent information regarding the prisoner . . . .

 

A.S.C.A. § 46.2072(b) (emphasis added).  The aforementioned deliberation must include an interview of the prisoner and oral testimony.  A.S.C.A. § 46.2072(c).  [2]  Although the statute does not create strict time parameters for considering or acting upon a parole application, it does plainly indicate that the application must be evaluated "[u]pon receipt."  This language clearly does not permit the Parole Board to unduly delay consideration of a parole application in order to get several hearings out of the way at the same time, or for other reasons of convenience.  If this is the Parole Board's policy, it is repugnant to the terms of the statute and should be changed.

In re a Minor Child (JR No. 09-95);


[29ASR2d53]

 

IN THE MATTER OF A MINOR CHILD

 

High Court of American Samoa

Trial Division

 

JR 9-95

 

October 11, 1995

 

[1]  In determining the divestiture of parental rights for the purpose of subsequent adoption, a child's best interests come first.  A child’s interests are not best served by legally severing the parent-child relationship when the child is living with her natural parents, who provide her support.

 

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

 

Counsel:              For Petitioners, Robert A. Porter, L.P.

Opinion and Order:

Petitioners are requesting that their parental rights and obligations to their daughter, age two years, be divested so that the paternal grandmother can adopt the child.  The hearing was held on August 18, 1995.

 

The grandmother cares for this only child on a daily basis, while the natural parents are at work.  The other children of her former marriage are grown and have their own homes.  The natural parents live with her and the child, and are the breadwinners of the family.  The grandmother has combined income from Social Security and retirement of less than $400 per month.  We do not question her love and affection for the child.  Certainly, she has, and can continue to have, a significant and regular role in the child's upbringing. 

 

[1]  However, the child's best interests come first.  The child's interests are not best served by legally severing the parent-child relationship when  she is living with her natural parents, who provide her support.  It is inappropriate to change family norms at this time.  If they have more children, and in any event, when the grandmother passes on, the natural [29ASR2d54] parents will understand this observation.  Now is the time that they and the grandmother should recognize and accept this reality.

 

The petition is denied for these reasons.  It is so ordered. 

 

 

 

 

In re a Minor Child (AD No. 51-95),


[29ASR2d20]

 

IN RE A MINOR CHILD

 

District Court of American Samoa

 

AD No. 51-95

 

June 23, 1995

 

[1]  A.S.C.A. § 45.0420 (a) requires a petition for adoption to be filed not later that 30 days after the child is placed in the home of the adoptive applicants for the purpose of adoption, unless the court finds that there was reasonable causes or excusable neglect for not timely filing the petition.  If the court does so find, “[t]he court then fixes a date for the hearing.”  A.S..C.A. § 45.0420(a).

 

[2]  A.S.C.A. § 45.0420(d) requires that a petition for adoption be accompanied by a statement of any fee charged relative to the adoption.  [29ASR2d21] That statement must also include a clause that no additional fees are to be charged.

 

[3]  Under the statutory scheme whereby the High Court hears relinquishment and termination of parental rights actions and the District Court separately hears the subsequent adoption actions, the only way for the government to monitor the minor child's best interests throughout this process is to appoint a Guardian of the person of the minor child.  See A.S.C.A. § 45.0103(16).  The logical choice for any such appointment would be the Child Protective Services Agency, Department of Human Resources, which could then actively monitor the minor child and his home environment until the decree of adoption is finally issued.

 

[4]  The rigid statutory adoption procedures of the Juvenile Justice Act of 1980, A.S.C.A. § 45.0101 et seq., has little effective application to relinquishment or termination of parental rights or adoptions in Samoa.   When compared with traditional child rearing and child placement practices in Samoa, at almost no point can the statutes be bent to fit the local situation, as required of the court under the legislature's policy declarations set forth under A.S.C.A. § 45.0102.

 

[5]  By statute, parents who place their children with relatives in accordance with local customs are technically subjecting themselves to potential criminal prosecution under A.S.C.A. § 45.0370(2) which provides that "[a]ny adult who ..... neglects, or abandons a child is guilty of a Class A Misdemeanor" punishable by up to one year imprisonment or a $1,000.00 fine or both.

 

[6]  Although the pre - 1980 adoption statutes were subject to some abuses, they at least provided a more culturally compatible and economical statutory scheme than the present statutes.  While the Juvenile Justice Act of 1980 contains several workable chapters dealing with child shelter, care, support, and juvenile delinquency adjudications, the legislature may wish to reexamine those chapters dealing with adoption proceedings, including relinquishment or termination of parental rights for purposes of adoptions, and amend these statutes to work more effectively within the unique local context of the Samoan extended family child rearing practices.  In the interim, however, all petitions for adoption must be timely filed and address all of the statutory requirements of A.S.C.A. § 45.0420(a), (b), (c), and (d). 

 

Before WARD, District Court Judge.

 

Counsel:    For Petitioners, Robert A. Porter, L.P.

 

Order on Motion to Set:[29ASR2d22]

 

This matter came regularly before the court upon a petition for adoption being filed on June 9, 1995, and "a Motion to Set a date of Adoption Hearing" being filed on the same date.  The petition is captioned for a single petitioner while the motion is captioned for joint petitioners.

 

[1]  Although the petition generally follows the statutory requirements of A.S.C.A. § 45.0420, neither subsection (a) nor subsection (d) of that statute was addressed in these filings.  Subsection (a) requires a petition for adoption to be filed not later that 30 days after the child is placed in the home of the adoptive applicants for the purpose of adoption unless the court finds that there was reasonable causes or excusable neglect for not timely filing the petition.  If the court does so find, "[t]he court then fixes a date for the hearing."  A.S..C.A. § 45.0420(a).

 

The instant petition states that the petitioner(s) have raised the child since birth, some eight years ago.  The petition does not address A.S.C.A. § 45.0420(a) on its face and no separate motion for a pre-adoption hearing supported by legal memorandum has been filed.

 

Even if the court were to engage in the legal fiction that the 8 year old child raised by petitioner(s) was technically  "first placed in the home of the adoptive applicants for the purpose of adoption" as of the date of the order of relinquishment by the High Court, that order was dated April 12, 1995, well over 30 days before the "Petition for Adoption" was filed with this court on June 9, 1995.

 

[2]  The petition for adoption also fails to be a accompanied by a statement of any fee charged relative to the adoption as required by A.S.C.A. § 45.0420(d).  That statement must also include a clause that no additional fees are to be charged.

 

[3]  On page two, line 10 of the petition appears the statement:  "There are no guardians appointed in this matter".  This phrase is always disturbing to the court and all the more so when included in adoption petitions that are filed weeks, months, or even years after the mandatory 30 day period after placement.  Under the statutory scheme whereby the High Court hears relinquishment and termination of parental rights actions and the District Court separately hears the subsequent adoption actions, the only way for the government to monitor the minor child's best interests throughout this process is to appoint a Guardian of the person of the minor child.  See A.S.C.A. § 45.0103(16).  The logical choice for any such appointment would be the Child Protective Services Agency, Department of Human Resources, which could then actively monitor the minor child and his home environment until the decree of adoption is finally issued.[29ASR2d23]

 

[4]  There are several other problems facing the High Court, the District Court, and especially citizens seeking to adopt children in the Territory under the cumbersome, costly, and mostly cumulative procedures mandated by the Juvenile Justice Act of 1980, A.S.C.A. § 45.0101 et seq., (“Juvenile Justice Act of 1980”) to perfect a child's adoption.  For years the High Court and District Court have struggled to fashion a Samoan "silk purse" out of this stateside "sow's ear" of a statute.  Although this Act may work fine in Colorado, it has little effective application to relinquishment or termination of parental rights or adoptions in Samoa.  This Act was designed to work in states where, in a typical case, the following statutory procedures would be followed.  Using the example of an unwed mother desiring to give up the rights to her child, in the several states the procedures to be followed would be:

 

          (a)  The unwed mother would be counseled by hospital social service personnel as to her options of keeping the child, suing the natural father for child support, or having the state bring suit on her behalf, or giving up the child for adoption;

 

          (b)  If the unwed mother, after counseling, decided to put the child up for adoption, the social services agency would petition the appropriate court for relinquishment of parental rights;

 

          (c)  That court would hold a hearing, generally before or immediately after the unwed mother gave up custody of the child to the state social services agency.  The court would also determine if the natural father had acquired any parental rights which required relinquishment or termination pursuant to Lehr v. Robertson, 463 U.S. 248 (1983), and the court would decide if the best interests of the parent(s) and child required the parental rights be relinquished or terminated;

         

(d)  The custody and guardianship of the child in cases where parental rights were relinquished or terminated, would then be granted by the court to the state social services agency.  That agency, usually with prior court approval would effect a child placement with pre-approved couples desiring to adopt a child;

 

          (e)  As soon as possible after the placement of the child with the prospective adoptive parents, a petition for adoption would be filed with the court and set for a hearing; and

 

          (f) At the adoption hearing the court would hear testimony from the state social services personnel who had been monitoring the child's [29ASR2d24] placement and determine, with the consent of that agency, whether the best interest of the child would be served by granting the adoption.

         

Yet when these rigid statutory procedures are compared with traditional child rearing and child placement practices in Samoa, at almost no point can the statutes be bent to fit the local situation, as required of the court under the legislature's policy declarations set forth under A.S.C.A. § 45.0102.

         

[5]  The typical relinquishment or termination of parental rights action does not come before the court until months, or more, usually years, after the natural parent or parents have placed the child with their parents, childless brothers or sisters, cousins, close friends, fellow church members, etc.  Such traditional placements by the natural parent or parents serve a vital cultural interest in strengthening extended family ties and, in certain circumstances, creating new family ties and alliances.  The problem is, by statute, parents who follow such local customs are technically subjecting themselves to potential criminal prosecution under A.S.C.A. § 45.0370(2) which provides that "[a]ny adult who ..... neglects, or abandons a child is guilty of a Class A Misdemeanor" punishable by up to one year imprisonment or a $1,000.00 fine or both.

 

It is also difficult for the courts to meet the legislative mandates of preserving aiga ties and maintaining the child/parent relationship except when the child's welfare or safety would otherwise be endangered.  See A.S.C.A. § 45.0102.  Most cases never come before the court until years after the child has been given to the prospective adoptive parents.  Of what real value is counseling to the unwed mother years after she voluntarily surrendered the child?  How does the court preserve the parent/child relationship after the child had already bonded with the prospective adoptive parents?  And where do the best interests of the child lie, when, after the child had been raised by the prospective adoptive parents for years, the court must consider whether the natural parents should regain custody of the child?  And finally, why are local citizens who desire to adopt a child put to the expense, time, and difficulty of two separate petitions and two court hearings to receive official approval of a years old parent/child relationship?

 

[6]  Although the pre - 1980 adoption statutes were subject to some abuses, at least they provided a more culturally compatible and economical statutory scheme than the present statutes.  The District Court hears well over 100 adoption actions each year and an equal or greater number of relinquishment or termination of parental rights actions are separately heard by the High Court.  Child Protective Services conducts well over 100 investigations and home studies per year after petitions for relinquishment or termination of parental rights are filed in the High [29ASR2d25] Court.  All of this considerable effort usually occurs well after the fact and serves no real purpose save to legitimize the longstanding relationships between the minor child and its adoptive parents.

 

The instant case, involving an eight year old child who has been raised since birth by the prospective adoptive parents now seeking to adopt the child, is reflective of the problems outlined above.  Although the Juvenile Justice Act of 1980 contains several workable chapters dealing with child shelter, care, support, and juvenile delinquency adjudications, the legislature may wish to reexamine those chapters dealing with adoption proceedings, including relinquishment or termination of parental rights for purposes of adoptions, and amend these statutes to work more effectively within the unique local context of the Samoan extended family child rearing practices.  The present statutes undoubtedly work well in the several states but are difficult to apply to the bulk of the local adoption proceedings processed by the court.

 

In the interim, however, this court must enforce the statutory requirements as enacted by the legislature.  All petitions for adoption must be timely filed and address all of the statutory requirements of A.S.C.A. § 45.0420(a), (b), (c), and (d).  The Clerk of Courts shall serve all members of the Bar with a copy of this order so that all future petitions for adoption filed with the court fully comply with statutory mandates.  The motion to set is denied.

 

It is so ordered.

 

 

 

********

  SEQ CHAPTER \h \r 1

 

In re a Minor Child (AD No. 48-94);


[29ASR2d18]

 

 

IN RE A MINOR CHILD

 

District Court of American Samoa

 

AD No. 048-94

 

June 23, 1995

 

[1]  The provisions of Title 45, A.S.C.A. § 45.0102 et seq., must be liberally construed to effectuate, in part, "the preserv[ation] and strengthen[ing of] aiga ties whenever possible," A.S.C.A. § 45.0102(2), and "secur[ing] for any child removed from the custody of his parents, the necessary care, guidance, and discipline to assist him in becoming a responsible and productive member of society." A.S.C.A § 45.0102(4). 

 

[2]  Generally, joint petitions for adoption can only be filed by married couples.

 

[3]  While mature consenting single adults can pretty much do whatever they want with respect to their relationships, there are some legal drawbacks to consensual cohabitation.  Children of consensually cohabitating unions are not legally legitimate until and unless that couple eventually marries.  See A.S.C.A § 42.0501.

 

[4]  Under the facts of the particular case, wherein the best interests of the child are at stake, the court may accept a joint petition filed by a couple with a long standing stable relationship that closely approximates common law marriage. 

 

Before WARD, District Court Judge

 

Counsel:              Robert L. Porter

 

Order of Adoption:

 

This matter came on regularly before the court on May 18,1995 on a motion to set for hearing.  By previous order, the court entertained arguments of counsel as to the availability of the child for adoption and the legality of the joint petition filed in this matter.  The court also heard testimony from the prospective adoptive parents as to their statutory eligibility and qualifications to provide this minor child with parental guidance and care, as well as meeting the financial needs of the child.

 

As to the latter, based upon the testimony, observations of the child and petitioners by the court during the hearing, and the Child Protective Services reports, the court finds that this nearly 2 year old toddler has [29ASR2d19] closely bonded with petitioners and they to her.  Petitioners have a stable relationship, their home is suitable for raising the child, their educational background and professional achievements assure the child sound financial support, and in all aspects the best interests of this child argue in favor of legitimizing the parent-child relationship that has formed since petitioners took custody of the child at or near her birth.  The court further notes that this child's parental rights have been terminated with respect to her biological parents, and until this court approves a decree of adoption she remains, under present statutes, in legal limbo.

 

[1]  Having found that the best interests of the child would be served if the court can, under existing statutes, grant the joint petition for adoption in this matter, the court will now consider the legal difficulties presented by this case.  First, the court notes that the Fono has expressed the provisions of Title 45, A.S.C.A. § 45.0102 et seq., be liberally construed to effectuate, in part, "the preserv[ation] and strengthen[ing of] aiga ties whenever possible," A.S.C.A. § 45.0102(2), and "secur[ing] for any child removed from the custody of his parents, the necessary care, guidance, and discipline to assist him in becoming a responsible and productive member of society." A.S.C.A § 45.0102(4).  Given the blood relationship between the female petitioner and the child, coupled with the obvious benefits to the child the stable relationship between the petitioners will provide, the court will liberally construe the statutes in this case as directed by the Fono.

 

[2]  Although this court is generally of the opinion that joint petitions for adoption can only be filed by married couples, see A.S.C.A. § 45.0411, and there is considerable state case law to support this opinion with respect to this statutory language, a liberal construction of the statutes requires this court to consider the clause under A.S.C.A. § 45.0420, Petition for Adoption, at paragraph (b) (1) requiring that the petition contain: "the date of marriage, if any, of the petitioners." (emphasis added).  The court must also consider, however, the statutory legal effect of the final decree under A.S.C.A. §§ 45.0423 and 45.0424, both of which mandate that the child so adopted will achieve the legal status of a legitimate child born in lawful wedlock to the petitioners.

 

[3]  Although this court has perceived that petitioners feel their case has been somehow singled out for more rigorous examination than undertaken in the bulk of adoption proceedings heard by this court, the court's concerns extend far beyond the instant matter.  Blanket approval of joint petitions filed by unmarried cohabitating couples would establish a precedent whereby brothers and sisters, engaged couples, or even same-gender couples may routinely jointly petition the court for adoptions.  Further, the petitioners in the instant case are asking the court, via adoption proceedings, to issue a decree stating that, as a matter of law, [29ASR2d20] this child is their naturally born child and is legitimate, despite the fact that petitioners are not married.  While mature consenting single adults can pretty much do whatever they want with respect to their relationships, there are some legal drawbacks to consensual cohabitation.  Children of such unions are not legally legitimate until and unless that couple eventually marries.  See A.S.C.A § 42.0501.

 

[4]  As earlier stated, however, this court's legal analysis must be tempered by the best interests of the child and limited to the facts of this particular case.  Therefore, the court finds that the long standing stable relationship of petitioners, solely for the purposes of these proceedings, so closely approximates common law marriage that the court finds petitioners, both presently and prior to the birth of the minor child, to have achieved the status of husband and wife at common law.  The natural issue of any such union thereby being legally considered legitimate, the court will grant the joint petition for adoption filed by petitioners and decree the child, inter alia, to be their legal, natural and legitimate issue.

 

Counsel for petitioners shall prepare and submit the proposed decree of adoption.

 

So ordered.

 

 

 

 

In re Matai Title "I'aulualo"


[1]  A.S.C.A. § 1.0407(d) only applies to a family with fewer than 25 qualified members.

 

[2]   A.S.C.A. § 1.0407 has no provision for the transfer of signatures. 

 

[3]  A.S.C.A. § 1.0407 functions like a jurisdictional limit on the Land and Titles Division.  If a candidate does not submit a petition with 25 signatures, the court simply cannot consider his claim.[29ASR2d129] 

 

[4]  For a matai title claimant to qualify under A.S.C.A. § 1.0403(b)(2), he still must show both that a parent was an inhabitant of American Samoa, and that the parent's residence outside of the territory was temporary.

 

[5]  An inhabitant is one who resides actually and permanently in a given place, and has his domicile there.

 

Before RICHMOND, Associate Justice, ALARCON,* Acting Associate Justice, UNPINGCO,** Acting Associate Justice, and ATIULAGI, Associate Judge.

 

Counsel:    For Folau I`aulualo, Tautai A.F. Fa`alevao

                   For Mataiumu SiofagaGata E. Gurr

Opinion:

RICHMOND, J.:

I.  Introduction

Tipisone Manu Aoelua ("Tipisone") filed with the Territorial Registrar his claim to succession to the matai title I`aulualo of the Village of AfonoAppellee/appellant Folau I`aulualo ("Folau"), appellant/appellee Mataiumu Siofaga ("Mataiumu") and Naiuli L. Ma`ileoi ("Naiuli") filed objections to Tipisone's claim as counterclaimants to succession.  Following the requisite hearings before the Secretary of Samoan Affairs, the Secretary certified an irreconcilable dispute to the court, in accordance with A.S.C.A. § 43.0302.  The matter came for trial on December 29, 1993, before the Land and Titles Division ("trial court").

 

Prior to trial, Tipisone and Naiuli withdrew their respective claims to succession, leaving Mataiumu and Folau as the remaining candidates.  On January 26, 1994, the trial court dismissed Folau's objection and counterclaim on the grounds that his petition lacked the requisite 25 supporting family signatures as required by A.S.C.A. § 1.0407.  The trial court also dismissed Mataiumu's objection and counterclaim on the grounds that he was ineligible for mataisuccession under A.S.C.A. § [29ASR2d130] 1.0403.  With no candidates remaining, the court remanded the matter of selection of a titleholder to the I`aulualo family.

 

Each party moved for a new trial or reconsideration pursuant to A.S.C.A. § 43.0802(a).  The trial court denied both motions on March 17, 1994.  Each party filed a timely appeal to this court.  The appeals were consolidated, and we now issue our decision in the matter.

 

II.  Folau's Appeal

 

The trial court dismissed Folau's claim for failing to meet the requirements of A.S.C.A. § 1.0407, which provides in pertinent part:

 

          (b)  A counterclaim or objection [to succession to a matai title] must be supported by a petition signed by no less than 25 persons related by blood to the title in question.  The petitioners must be at least 18 years of age and residents of American Samoa at the time the petition is filed.

 

                   . . . .

 

          (d)  In the event the family does not have the number of members qualified as required to support the counterclaim or the objection, the counterclaimant or objector shall so state in a signed affidavit. 

 

Folau testified that he was off-island when Tipisone offered the title for registration.  By the time he returned, the 60-day statutory period for the filing of counterclaims or objections, see § 1.0407(a), had nearly expired.  During the time remaining, he was able to garner only 10 signatures, instead of the required 25.  Because he did not have enough signatures, he filed an affidavit, attempting to comply with the provisions of § 1.0407(d).

 

Section 1.0407 clearly requires a minimum of 25 qualified, supporting family signatures on an objection or counterclaim.  We find absolutely no ambiguity or discretion in this requirement.  The apparent reasoning behind this requisite is to ensure that a candidate has sufficient support from the family.

 

[1]  Section 1.0407(d) gives counterclaimants respite from the requirements of 1.0407(b) in only one circumstance:  when "the family does not have the number of members qualified as required  . . . ."  A.S.C.A. § 1.0407(d).  We agree with the trial court that this provision applies to families of fewer than 25 members. "Does not have" does not [29ASR2d131] mean "does not have remaining" or "can not be found" or some similar interpretation which Folau would have us place upon it.  Thus, § 1.0407(d) only applies to a family with fewer than 25 qualified members.1

 

Folau's objection that such a rule precludes small minorities in a large family from blocking a candidate with more support seems to be precisely the point.  If a candidate can not find 25 family members who support his claim as matai, the court cannot support it either.  That is, if a claimant is only supported by 10 family members in his bid to be matai, the Fono (or Legislature of American Samoa) has deemed that we should not bestow the title upon that claimant.  A candidate can not get around the 25 signature requirement simply by filing an affidavit under § 1.0407(d) claiming no one was left to sign his petition.2

 

Folau's reliance on Asuega v. Manuma, 4 A.S.R. 616 (Trial Div. 1965), is unavailing.  In that case, the court dealt with a predecessor statute to § 1.0407, which read: "Every person claiming succession to a matai title shall file with the Clerk of the High Court a written claim . . . accompanied by . . . a petition signed by three-fourths of the members of the claimant's family . . . ."  Id. at 620 (quoting Revised Code of American Samoa § 6.0104 (1961) (superseded by A.S.C.A. § 1.0405)) (emphasis in original).  The court found it was mathematically impossible3 for "two, much less 16, candidates [to] get three-fourths of the members of said family to sign his application."  Id. at 622.  The Fono changed the requirement to 25 signatures to avoid such mathematical futility.  In Asuega, estimates of family size ranged from [29ASR2d132] 300 to 5,000.  Id. at 623.  There is no mathematical problem with numerous candidates garnering 25 signatures of support in a family this size.

 

[2]  Folau's final argument has to do with the withdrawal of two of the four candidates for the title.  Tipisone, the original claimant under A.S.C.A. § 1.0405, withdrew his petition for candidacy on the day of the trial, proclaiming his support for Naiuli.  Naiuli also withdrew his candidacy on that day, throwing his support behind Folau.  Folau now argues that the support, and thus the signatures, of those candidates should transfer to him.  This argument lacks any foundation.  Section 1.0407 has no provision for the transfer of signatures.  The people who signed the petitions of the withdrawn candidates had given their support to those candidates, not Folau.  If it is true that "[Folau]'s claim is substantially supported by more than 25 qualified members of his family," as he argues, see Appellant Folau's Br. at 11, he should have no problem being selected matai by the I`aulualo family when this matter is remanded.

 

[3]  In practice, § 1.0407 functions like a jurisdictional limit on the Land and Titles Division.  If a candidate does not submit a petition with 25 signatures, the court simply cannot consider his claim.  Cf. In re Matai Title "Patea", 25 A.S.R.2d 139 (Land & Titles Div. 1994) (dismissing claims of two candidates whose petitions had 17 and 24 signatures each).   Perhaps the Fono enacted such a provision in the spirit of the age-old adage "de minimis non curat lex" (the law does not concern itself with trifles).  A person with fewer than 25 family members supporting his petition has a de minimis claim to the title. 

         

In any account, the Fono has plainly set forth the requirements for filing a counterclaim in § 1.0407.  It is not our function to rewrite the law but merely to interpret it.  We have no question about the interpretation of § 1.0407.  Thus, we affirm the trial court's dismissal of Folau's claim because his petition did not have the requisite number of signatures.

 

III.  Mataiumu's Appeal

 

A.  Construction of A.S.C.A. § 1.0403

 

Mataiumu was born in Faleasi`uWestern Samoa, in 1930.  On this basis, unless excepted, he is ineligible to succeed to the I`aulualo title under A.S.C.A. § 1.0403(b).  Section 1.0403 provides in relevant part:

 

          A person not possessing all of the following qualifications is ineligible to succeed to a matai title:[29ASR2d133]

 

                   . . . .

 

          (b)  He must have been born on American soil; provided that a person born of parents who were inhabitants of American Samoa, but temporarily residing outside of American Samoa or engaged in foreign travel, at the date of birth of such child, may, for purposes of this subsection, be considered as having been born on American soil if:

 

          (1) while actually residing in American Samoa, and at any time within one year after he attains the age of 18 years, he files with the territorial registrar a renunciation, under oath, of allegiance to the country of his birth; or

 

          (2) he has resided in American Samoa for a continuous period of not less than 10 years prior to the time of filing his application to be registered as the holder of a matai title.

 

Mataiumu clearly does not meet the requirement of § 1.0403(b) that he be born on American soil.  The trial court found that he also does not meet the exception to this requirement by being born of inhabitants of American Samoa who were temporarily residing outside of American Samoa or engaged in foreign travel. 

 

Mataiumu's father was American Samoan, but his mother's village was in Faleasi`uWestern Samoa.  His parents lived in Faleasi`u, and Mataiumu was born there.  Mataiumu first travelled to American Samoa at age 27.  He moved here permanently in 1966, at 36 years of age. 

 

[4]  Mataiumu makes no claim to come under the exception set forth in § 1.0403(b)(1), but he has met the continuous, 10-year residency requirement of § 1.0403(b)(2).  However, for Mataiumu to qualify under § 1.0403(b)(2), he still must show both that a parent was an "inhabitant[]"4 of American Samoa, and that the parent's residence outside of the territory was temporary.  [29ASR2d134]

 

[5]  Since the Code does not define "inhabitant," we must look elsewhere to determine the word's meaning.  Black's defines "inhabitant" as "[o]ne who residesactually and permanently in a given place, and has his domicile there."  BLACK'S LAW DICTIONARY 703 (5th ed. 1979) (citing Ex Parte Shaw, 145 U.S. 444 (1892)) (emphasis added).  Based on the evidence presented to the trial court, Mataiumu's father was not an inhabitant of American Samoa under this definition.  Residing outside of a place for more than 30 years cannot constitute "actually and permanently" living there.

 

Mataiumu's contention that his father is an inhabitant of American Samoa based on his status as a U.S. national is not persuasive.  Numerous courts have found that the terms "inhabitant" and "citizen" are not synonymous.  See, e.g.Piquet v. Swan, 19 F. Cas609, 613 (C.C. Mass. 1828); Harris v. Harris, 215 N.W. 661, 663 (Iowa 1927); Opinion of the Justices to the House of Representatives, 122 Mass. 594, 599 (Mass. 1877).  We hold that "inhabitant" and "national" also are not synonymous.  Furthermore, Mataiumu's father was a U.S. national, but § 1.0403 requires him to be an inhabitant of American Samoa.  Being a U.S.national does not automatically make him an inhabitant of American Samoa any more than it makes him an inhabitant of Maine or Alaska.  Thus, the fact thatMataiumu's father was a U.S. national, without more, does not make him an inhabitant of American Samoa within the terms of § 1.0403.

 

Mataiumu has also failed to convince us that his parents' residence outside the territory was "temporary."  We agree with the trial court that "his parents were not just living [in Western Samoa] on a transitory, short-term basis at the time of his birth."  Trial court's Order on Motsto Dismiss at 5.  At the time ofMataiumu's birth, it appears his parents had every intention of remaining in Western Samoa.  Indeed, his father apparently did so until 1961, more than three decades.  We need not put a precise time limit on what constitutes "temporarily residing outside American Samoa" to find that three decades is too long to qualify.

 

Thus, Mataiumu has failed to satisfy the requirements of the exception under § 1.0403(b)(2).5[29ASR2d135]

 

B.  Conflict with Federal Law

 

Mataiumu has claimed that § 1.0403 conflicts with federal law.  However, his brief is so poorly drafted that we have trouble ascertaining precisely what he is alleging.  As near as we can tell, there are three potential claims:  (1) that 8 U.S.C. § 1408 directly supersedes A.S.C.A. § 1.0403; (2) that Mataiumu, as a U.S.national, is entitled to candidacy as a matai; and (3) that § 1.0403 violates federal equal protection principles.  We will briefly discuss each.

 

The first claim, that federal law supersedes § 1.0403, has no foundation.  8 U.S.C. § 1408 grants U.S. national status to various individuals.  See 8 U.S.C.S. § 1408 (West 1987 & Supp. 1994).  It does not explicitly supersede A.S.C.A. § 1.0403 or any other local law.  There is no interpretive law to this effect.  We fail to see how 8 U.S.C. § 1408 has any effect on § 1.0403 or any other provision of American Samoa's laws.

 

The second claim, that Mataiumu is entitled to seek a matai title because he is a U.S. national, also has no foundation.  Mataiumu's status as a U.S. national no more entitles him to claim a matai title than it made his father an inhabitant of American Samoa.  There is simply no connection between the two.  We see no need to discuss this issue further.

 

Finally, Mataiumu appears to allege a violation of equal protection.  If this is the case, he has failed to carry his burden.  Mataiumu's argument goes no farther than citing Craddick v. Territorial Registrar, 1 A.S.R.2d 10, 12 (Appellate Div. 1980), for the proposition that the Fifth Amendment guarantee of equal protection applies in American Samoa.  He does not tell us upon what basis he is alleging discrimination or what standard we are to apply in examining whether the discrimination survives constitutional scrutiny.6[29ASR2d136]

 

Folau also has made no arguments concerning these important questions.  Thus, we have virtually no briefing on an issue we are not even sure Mataiumu meant to raise.  We find that Mataiumu, as appellant on this issue, has failed to carry his burden.

 

C.  Privileges and Immunities

 

Mataiumu next claims that § 1.0403(b) abridges his privileges and immunities.  He does not tell us whence his right to be free from such an abridgement arises. We assume it must be from the Privileges and Immunities Clause of the Revised Constitution of American Samoa, Rev. Const. Am. Sam. art. I, § 16, since the Privileges and Immunities Clause of the United States Constitution, U.S. Const. art. IV, § 2, has no application here.  See Banks v. American Samoa Gov't., 4 A.S.R.2d 113, 128 n.7 (Trial Div. 1987).  Even if this assumption is correct, however, Mataiumu gives us insufficient guidance as to how we should apply the clause to his case.

         

The Privileges and Immunities Clause of the Revised Constitution of American Samoa, reads:  "No law shall be made or enforced which shall abridge the privileges and immunities of the citizens of American Samoa."  Rev. Const. Am. Sam. art. I, § 16.  This clause cannot be taken literally, since nearly every law passed by the Fono abridges some privilege or immunity7 of the American Samoan population.  The question, then, is what the clause is supposed to mean.

 

We cannot look to the United States Constitution for guidance, since that clause offers us no parallel here.  Although the language of the clauses is similar, the Privileges and Immunities Clause of the United States Constitution was particularly enacted to restrain states from extending privileges and immunities to its own citizens which it did not extend to citizens of other states.  See 16A AM. JUR. 2D Constitutional Law § 713 et seq. (1979).  The intent was to protect citizens in the new union of states from discrimination as they traveled from jurisdiction to jurisdiction.  Id.

 

We have nothing paralleling the federal system in American Samoa.  All of American Samoa falls under a single legislature, which passes laws for the entirety. Thus, we have no need for a law protecting citizens from disparate treatment as they travel from jurisdiction to jurisdiction.[29ASR2d137]

 

Furthermore, we are unsure who comprises a "citizen[] of American Samoa."  There is no provision in the Constitution or the laws of American Samoa defining the term "citizen."  Indeed, it has been stated that "[t]here is no separate citizenship of a territory, and the only citizenship its inhabitants and residents have, or which Congress can confer on them, is national as citizens of the United States."  Id. at § 719.  The terms "citizen" and "resident" are essentially interchangeable in most cases brought under the Privileges and Immunities Clause of the Federal Constitution.  United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208 (1984) (emphasis added).  However, states and territories can both discriminate against nonresidents, if the discrimination is truly based upon residency and not citizenship.  See Haavik v. Alaska Packers Ass'n., 263 U.S. 510 (1924); Maxwell v. Bugbee, 250 U.S. 525 (1919); La Tourette v. McMaster, 248 U.S. 465 (1919).

 

Thus, we are faced with an important question:  To whom does the Privileges and Immunities Clause apply?  The section of the American Samoa Code dealing with citizenship has been explicitly reserved.  See A.S.C.A. § 41.01.  Do we apply the clause to "American Samoan[s]" as defined by the Code?  See A.S.C.A. § 41.0202.  Do we apply it to "[p]ermanent resident[s]"?  See id.  Maybe it should apply to "[n]ational[s] of the United States."  See id.  We have received absolutely no guidance on the issue from counsel.

 

Even if we determine to whom the clause applies, counsel has not informed us how it should be applied.  We are not convinced that the clause is meant to eliminate discrimination against nonresidents or non-citizens, since it does not even mention these people.  Mataiumu seems to argue that the Privileges and Immunities Clause is actually a guarantee of equal protection.  See Appellant Mataiumu's Br. at 10-14.  He gives us absolutely no guidance, however, on how we should make the intellectual or legal leap from the concept of privileges and immunities to that of equal protection.  While this approach might be tempting in a jurisdiction with no constitutional equal protection provision, we simply will not make such an interpretation given no supporting authority or policy arguments from counsel.

 

Thus, as with the equal protection claim above, we are forced to dismiss Mataiumu's privileges and immunities claim because he has not carried his burden of proving the issue.

 

IV.  Conclusion

 

Thus, neither Folau nor Mataiumu has convinced us that the trial court erred.  The judgment of the lower court is affirmed, and the matter of [29ASR2d138] selection of a titleholder to the matai title I`aulualo of the village of Afono is remanded to the I`aulualo family.

         

It is so ordered.

 

 



*       Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

**       Honorable John S. Unpingco, Chief Judge, United States District Court of Guam, serving by designation of the Secretary of the Interior.

1  To the extent that In re Matai Title "Fagaima", 4 A.S.R. 83 (Land & Titles Div. 1973), is inconsistent with this opinion, we overrule it.  We do not express an opinion at this time, however, as to whether the word "family" in § 1.0407 refers only to a full extended family or may, under appropriate circumstances, refer to clans of an extended family or other different grouping.

2  Additionally, Folau's affidavit seems to have been false.  It does not appear that there were too few family members remaining to sign his petition, but rather that he did not have enough time to garner the signatures.  Clearly, not having enough time does not satisfy § 1.0407(d).

3  Nothing in § 1.0407 prohibits a qualified family member from signing more than one candidate's petition.  Thus, it may have merely been mathematically improbable that more than one candidate could get three-fourths of the family members to sign a petition.  No issue has been raised in this case as to whether a family member can sign more than one candidate's petition under § 1.0407.

4  A.S.C.A. § 1.0103 informs us that "the plural includes the singular" in interpreting provisions of the Code.  Thus, presumably, Mataiumu need only have one parent who was an inhabitant of American Samoa temporarily residing elsewhere.  We need not decide this issue, however, since Mataiumu fails to meet even this requirement.

 

5  We agree with the concurring opinion in the trial court below that the Fono should reassess the purpose behind requiring a claimant to a matai title to be born on American soil or be born to inhabitants of American Samoa who are temporarily residing outside the territory.  See also In re Matai Title "Patea", 25 A.S.R.2d at 141 n.1.  "The underlying policy appears to be assurance of a lasting, stable and knowledgeable relationship with American Samoa and Samoan customs and traditions." Id.  Under the current rule, however, a person born in Hawaii and residing there the majority of his life could validly claim a title, while a person born in Western Samoa who moved here at a young age might have no claim.  The law could be redrafted to fit its purpose much more closely.

6  The trial court measured Mataiumu's claim of equal protection violation under a rational basis standard.  See trial court's Order on Motsfor New Trial at 5.  Without explicitly endorsing that standard of review, we note that Mataiumu has not argued that any more stringent standard should apply.  We agree with the trial court that § 1.0403 is rationally related to a legitimate purpose, and thus satisfies the rational basis test.

7  The words "privilege" and "immunity" have been taken to be nearly synonymous.  16A AM. JUR. 2D Constitutional Law § 724 (1979) (citing Connor v. Elliott, 59 U.S. 591 (1856)).  A "privilege" is a peculiar advantage, exemption, or immunity;while an "immunity" is an exemption or privilege.  Id.

Ye Ahn Moolsoan, Ltd.; Pago Petroleum Products, Inc. v.


[29ASR2d34]

 

 

PAGO PETROLEUM PRODUCTS, INC., Plaintiff

 

v.

 

YE AHN MOOLSOAN, LTD., dba POLYNESIAN TRADING COMPANY and RALPH TUIA, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 70-93

 

October 2, 1995

 

[1]  Acceleration clauses, which make payment of an entire debt payable upon the debtor’s default in making installment payments, are not uncommon, and they normally create an option in the creditor whether to demand payment in full upon the debtor's default. 

 

[2]  A party may exercise its option on an acceleration clause by bringing suit.  The ability to demand payment by bringing suit, however, is limited by the statute of limitations, and must otherwise occur within a reasonable time.  Filing suit within two years of default, where the statute of limitations is 10 years, is reasonable.

 

[3]  Attorney's fees can be validly granted in a written promissory note. 

t

[4]  Court costs are allowed to the prevailing party as of course unless the court otherwise directs.   T.C.R.C.P. 54(d). 

 

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

 

Counsel:    For Plaintiff, Tate J. Eldridge

                   For Defendant Ralph Tuia, William H. Reardon

BACKGROUND

 

At issue in this case is the question of who will pay the bill for products purchased from plaintiff Pago Petroleum Products, Inc. ("PPP") by defendant Ye Ahn Moolsoan, Ltd. ("YAM").

 

The following facts are undisputed.  Defendant Ralph Tuia ("Tuia") and YAM, represented by Kyu Won Kim ("Kim"), formulated together some type of unincorporated business association, known as Polynesian Trading Company ("PTC").  PTC encountered various business [29ASR2d35] difficulties, and eventually folded.1  As the business was experiencing problems, Kim left American Samoa and has not been present in the Territory since September 1991.  One of PTC's remaining debts was owed to PPP.  Because of this debt, Tuia signed a promissory note and a personal guaranty on that note.2

 

The promissory note in question, signed September 6, 1991, states that the principal sum owed PPP is $102,982.60, plus accrued and unpaid interest and attorneys fees and costs, for a total of $115,409.67.  This money was to be paid in four installments, with the first payment of $45,000.00 due September 6, 1991, and the second payment of $5,000.00 due September 18, 1991.  The due dates of the third and fourth payments, of $32,704.84 each, depended  upon the return to Pago Pago port of two longliners belonging to YAM.  These boats, the Han Gil No. 12 and the Han Gil No. 1, were scheduled to arrive in port after what was hoped would be profitable fishing voyages.3

 

PPP now asserts that Tuia has defaulted on the debt.  Although Tuia initially claimed that he had paid PPP $50,000.00--the sum of the first two installments--at trial, he apparently accepted PPP's contention that he has paid only $45,000 and has made no effort to pay the second, third or fourth installments.

 

DISCUSSION

 

Tuia does not dispute that he owes PPP the amount of the second installment, $5,000.  The dispute between the parties centers around the payment of the third and fourth installments, totalling $65,409.67 plus any accrued interest on the note.  Tuia correctly asserts that his payment of the third and fourth installments is subject to a condition precedent, namely, the arrival of the longliners in Pago Pago port.  Tuia claims that [29ASR2d36] this condition never occurred, which PPP does not dispute.4  Thus, Tuia has a valid argument that the third and fourth installments have not become payable under their literal terms.

 

PPP, however, contends that, regardless of the occurrence of the conditions precedent, the full balance of the note has become payable under the note's acceleration clause.  The acceleration clause reads:

 

If default is made in the payment when due of any part of [any] installment or any part of interest, then the entire amount of the indebtedness shall become immediately due and payable at the option of the holder of this note, without notice.

 

By failing to pay the $5,000 due in the second installment, Tuia defaulted on the note, allowing PPP to invoke the terms of the acceleration clause.

 

[1]  Acceleration clauses such as the one at issue in this case are not uncommon, particularly in contracts involving money debts.  Tuia has made no argument, and the court can see none, for the invalidity of the acceleration clause in the PTC note.  Normally, an acceleration clause creates an option in the creditor whether to demand payment in full upon the debtor's default.  See, e.g., United States v. Rich, 853 F. Supp. 341, 347 (E.D. Cal. 1994); Carmichael v. Rice, 158 P.2d 290 (1945); Arthur L. Corbin, Corbin on Contracts § 265.  Although the note does not accelerate automatically upon nonpayment, the creditor can exercise its option by taking action.  Rich, 853 F. Supp. at 347; Curry v. United States Small Business Admin., 679 F. Supp. 966, 970 (N.D. Cal. 1987).

 

[2]  In this instance, PPP has exercised its option on the acceleration clause by bringing this suit.  The ability to demand payment by bringing suit is limited by the statute of limitations, cf. Rich, 853 F. Supp. at 347-48, and must otherwise occur within a reasonable time.  See id. at 347; Curry, 679 F. Supp. at 970.  Here, PPP served its complaint within two years of Tuia's default--well within the ten years limitations period, see  [29ASR2d37] A.S.C.A. § 43.0120(5), and an otherwise reasonable time.  With the note validly accelerated and full payment demanded, the conditions precedent for the third and fourth payments are no longer required.  Tuia has failed to cite any authority to the contrary.

 

CONCLUSION

 

Accordingly, we hold that Tuia is liable for the remaining balance due on the face of the note, in the amount of $70,409.67, and accumulated interest since the date of the note in the amount of $41,328.35 through October 2, 1995.5  The total amount currently owed on the note is $111,738.02. 

 

[3-4]  In addition, the terms of the note call for the payment of attorney's fees and court costs in the event that suit is filed to collect.  The purpose of attorney fee clauses in security agreements is to make the holder whole in the event he must go to court to enforce his rights.  See, e.g., Motor Dispatch, Inc. v. Buggie, 379 N.E.2d 543 (Ind. App. 1978).  This jurisdiction has recognized that attorney's fees can be validly granted in a written promissory note.  See, e.g., Development Bank of American Samoa v. Lava, 5 A.S.R.2d 24 (1987).  Additionally, court costs are allowed to the prevailing party as of course unless the court otherwise directs.  TCRCP 54(d).  We find it appropriate to award attorney's fees and court costs in this case, and will do so upon a properly submitted affidavit from plaintiff's counsel.

 

Post-judgment interest on the total judgment amount, consisting of the principal, pre-judgment interest, attorney's fees and costs, will continue to accrue at 12% per annum.

 

It is so ordered.

 

 

 

 

********

 



1  There is no evidence in the record to indicate that PTC declared bankruptcy or had its debts otherwise discharged.  Therefore, the company, although defunct, remains liable for the debts it has incurred.

 

2  In his affidavit of June 8, 1994, Tuia admits to executing the proffered promissory note and personal guaranty.  There is no dispute over the legitimacy of these documents.

 

3 The Han Gil No. 12 was expected back in port on the second week of October, 1991.  The Han Gil No. 1 was due to arrive "[i]n approximately five months of its departure date."

 

4 At trial, PPP presented evidence that the Han Gil No. 12 had, in fact, returned to Pago Pago port in February 1995 under the name Dae Hae No. 1, and possibly under new ownership.  However, PPP has placed little emphasis on this fact, since it is relying on the argument that the acceleration clause in the promissory note has acted to excuse the conditions precedent.  Because we agree with PPP that the acceleration clause excused the occurrence of the conditions precedent, there is little need to consider whether the condition precedent was satisfied by the Han Gil No. 12's return to port under a different name.

 

5  In documents submitted to this court, plaintiff's counsel has calculated interest using a simple interest formula on the 12% per annum amount required by the note.  We see no reason to deviate from this formula in determining accumulated interest to date.

High Court of American Samoa, Trial Div. ; Voyager, Inc. v.


[29ASR2d187]

 

 

VOYAGER, INC., Appellant

 

v.

 

HIGH COURT OF AMERICAN SAMOA, TRIAL DIVISION, Appellee

_______________________

 

BRIAN BLOCKER, Intervenor

 

High Court of American Samoa[29ASR2d188]

Appellate Division

 

AP No. 28-92

 

March 3, 1995

 

[1]   Regardless of whether the appellate court vacates its decision, an appellant is  not entitled to vacatur of the decision of the trial division.

 

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

 

Counsel:    For Appellant, William H. Reardon and William Banning

                   For Intervenor, Roy J.D. Hall, Jr.

Order Denying Appellant's Petition for Rehearing:  

This court, having reviewed appellant's petition for rehearing and finding no points of law or fact which were overlooked or misapprehended by this court when reaching its decision after oral argument, hereby denies the petition for rehearing.

 

[1]  Appellant has suggested that our decision and that of the trial division must be vacated because the case was finally settled days before we rendered our decision.  It is now clear that, regardless of whether we vacated our decision, appellant would not be entitled to vacatur of the decision of the trial division.  U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994).  We therefore decline to order vacatur of the decision of the trial division.

 

In the unique circumstances of this case, we also decline to vacate our Appellate Division decision.  We were not notified of the settlement until after we had filed our decision.  As we stated in our opinion, we were not exercising jurisdiction pursuant to Article III of the United States [29ASR2d189] Constitution.  Our decision went no further than to determine that the High Court of American Samoa had no jurisdiction over this case.  To leave our decision in place implicates none of the separation-of-powers concerns underlying the "case or controversy" requirement.

         

It is so ordered.

 

 

 



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

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

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

High Court of American Samoa, Trial Div.; Voyager, Inc. v.


[29ASR2d10]

 

VOYAGER, INC., Appellant

 

v.

 

HIGH COURT OF AMERICAN SAMOA, TRIAL DIVISION, Appellee

_______________________

 

BRIAN BLOCKER, Intervenor

 

High Court of American Samoa

Appellate Division

 

AP No. 28-92

 

March 3, 1995

 

[1]   Regardless of whether the appellate court vacates its decision, an appellant is  not entitled to vacatur of the decision of the trial division.[29ASR2d11]

 

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

 

Counsel:    For Appellant, William H. Reardon and William Banning

                   For Intervenor, Roy J.D. Hall, Jr.

Order Denying Appellant's Petition for Rehearing:  

This court, having reviewed appellant's petition for rehearing and finding no points of law or fact which were overlooked or misapprehended by this court when reaching its decision after oral argument, hereby denies the petition for rehearing.

 

[1]  Appellant has suggested that our decision and that of the trial division must be vacated because the case was finally settled days before we rendered our decision.  It is now clear that, regardless of whether we vacated our decision, appellant would not be entitled to vacatur of the decision of the trial division.  U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994).  We therefore decline to order vacatur of the decision of the trial division.

 

In the unique circumstances of this case, we also decline to vacate our Appellate Division decision.  We were not notified of the settlement until after we had filed our decision.  As we stated in our opinion, we were not exercising jurisdiction pursuant to Article III of the United States Constitution.  Our decision went no further than to determine that the High Court of American Samoa had no jurisdiction over this case.  To leave our decision in place implicates none of the separation-of-powers concerns underlying the "case or controversy" requirement.

         

It is so ordered.

 

 

 

*********

 



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

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

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

Garrett ; Pita v.


[29ASR2d141]

 

 SEQ CHAPTER \h \r 1V1`I PITA, Plaintiff/Counterdefendant

 

v.

 

MIRIAMA GARRETT, and RICHARD GARRETT, Defendants/Counterclaimants/Cross-Claimants

 

v.

 

TERRITORIAL REGISTRAR, and

SURVEY MANAGER OF THE DEPARTMENT OF PUBLIC WORKS, MEKO AIUMU, Cross-Defendants

___________________________

 

TIMU LEVALE, by and on behalf of the TIMU FAMILY, Plaintiffs

 

v.

 

RAY McMOORE, SESE McMOORE, and IOANE FE`AFE`AGA ENE, Defendants[29ASR2d142]

_____________________________

 

HEIRS OF IOANE FE`AFE`AGA ENE, aka MAUGA FE`A ENE, TOLANI TELESO FUGA, ELETISE MATAGI WOLMAN, SENEUEFA PRITT, TIMU LEVALE, on behalf of the TIMU FAMILY, RAY McMOORE, SESE McMOORE, aka SESE PEKO SAGAPOLU, VI`I PITA, PERALITA CANDY FUAVAI, TAUINAOLA LAUAMA, FIALE NIKO, aka SOVITA SUAFO`A, SOVITA LIVING TRUST, MIRIAMA  GARRETT, AMERIKA SAMOA BANK, and DOES 1-10, Defendants                 

 

High Court of American Samoa

Land and Titles Division

 

LT No. 14-93

LT No. 20-93

LT No. 10-95

 

December 21, 1995

                  

[1]  The presumption that land has been validly registered arising from the Territorial Registrar’s issuance of a certificate of registration is not conclusive, and can be overcome by a presentation of compelling evidence. 

 

[2]  Upon a motion for summary judgment, the court is required to view the evidence and the inferences that can be drawn therefrom in the light most favorable to the opposing party.  The burden is upon the moving party to show that there is no genuine issue of material fact in dispute, and all doubts must be resolved against the movant. 

 

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

 

Counsel:    For Plaintiff/Counterdefendant Vi`i Pita, Marshall Ashley

For Defendants/Counterclaimants/cross-Claimants Miriama Garrett and Richard Garrett, Charles V. Ala`ilima

For Cross-Defendants Territorial Registrar and Survey Manager of the Department of Public Works, Meko Aiumu, Cherie Shelton Norman, Assistant Attorney General, and Henry W. Kappel, Assistant Attorney General

For Plaintiff/Defendant Timu Levale on behalf of the Timu Family, Asaua Fuimaono

For Defendants Ray McMoore and Sese McMoore, aka Sese Peko Sagapolu, Togiola T.A. Tulafono[29ASR2d143]

For Defendants Ioane Fe`afe`aga Ene, aka Mauga Ione Fe`a Ene, and Heirs of Ioane Fe`afe`aga Ene, aka Mauga  Ione Fe`a Ene, Albert Mailo

For Plaintiff American Samoa Government, Cherie Shelton Norman, Assistant Attorney General, and Henry W. Kappel, Assistant Attorney General

For Defendants Tolani Teleso Fuga, Eletise Matagi Wolman, Senovefa Pritt, Pearlita Candy Fuavai, Tauinaola Lauama, Fiale Niko, aka Sovita Suafo`a, Sovita Living Trust, and Amerika Samoa Bank, no appearances

 

Order Denying Motion for Relief from Order and/or Partial Summary Judgment, and Compelling Land Title Registration Process:

 

I.  HISTORY

 

On September 1, 1995, plaintiff/counterdefendant/defendant Vi`i Pita, in LT No. 14-93 and LT No. 10-95, and defendants Tolani Teleso Fuga, Eletise Matagi Wolman, Senouefa Pritt, Tauinaola Lauama, Fiale Niko, and Sovita Living Trust, in LT No. 10-95, have moved for relief from this court's order, entered on July 6, 1993, in LT No. 20-93, denying a preliminary injunction and staying the action, and/or for partial summary judgment, in LT No. 10-95, upholding the validity of the title registration of the land at issue, approximately 8.37 acres in the Village of Ili`ili, by defendant Ioane Fe`afe`aga Ene, in LT No. 20-93, as his individually owned land. 

 

Most of the individual parties to the three actions claim individually owned land interests in various portions of this land, derived from Ioane Fe`afe`afa Ene's title.  Plaintiff/defendant Timu Levale, in LT No. 20-93 and LT No. 10-95, however, claims a portion of the land as the Timu family's communal land.  We consolidated LT No. 14-93, LT No. 20-93 and LT No. 10-95 on March 14, 1995. 

 

The motions were regularly heard on November 1, 1995.  At the hearing, defendants/counterclaimants/cross-claimants Miriama Garrett and Richard Garrett, in LT No. 14-93 and LT No. 10-95, plaintiff American Samoa Government, in LT 10-95, cross-defendants Territorial Registrar and Survey Manager Meko Aiumu, in LT No. 14-93, and defendant Pearlita Candy Fuavai, in LT No. 10-95, joined in support of the motions.  The original moving parties and those joining their cause are referenced below as the "movants."

 

Timu Levale opposed the motions.  Counsel for defendant Amerika Samoa Bank, in LT No. 10-95, was present, but did not receive the [29ASR2d144] motions and merely suggested that all parties should be heard.  Counsel for defendants Ray McMoore and Sese McMoore, in LT No. 20-93 and LT No. 10-95, was not present.  Counsel for defendant Heirs of Ioane Fe`efa`aga, in LT No. 10-95, and Ioane Fe`afe`aga was also not present.

 

II.  MOTION FOR RELIEF

 

The movants were not parties to LT No. 20-93 at the time the order of July 6, 1993, was entered.  That order, therefore, does not apply to them, as it cannot apply to strangers to that action when it was entered.  The order has no res judicata effect on the movants.  Thus, there is nothing from which to grant them relief.

 

III.  MOTION FOR PARTIAL SUMMARY JUDGMENT

 

The movants have also asked us to grant partial summary judgment on the issue of the validity of Ioane Fe`afe`aga Ene's title registration of the land.  They rely primarily upon the argument that the Territorial Registrar's issuance of a certificate of registration created a presumption that the land has been validly registered with all procedural requirements having been met.

 

[1]  This presumption is not conclusive, however.  As the movants correctly point out in the memorandum supporting their motion, the presumption can be overcome by a presentation of "compelling evidence."  See Ifopo v. Siatu`u, 12 A.S.R.2d 24, 28 (App. Div. 1989).  In order for us to grant a motion for summary judgment, the moving party must be entitled to judgment as a matter of law.  T.C.R.C.P. 56(c); Celotex Corp. v. Cattretts, 477 U.S. 317, 322-23 (1986).  There must be no genuine issue of material fact.  T.C.R.C.P. 56(c); Celotex, 477 U.S. at 322-23.  The presumption, being rebuttable, does not entitle the movants to summary judgment as a matter of law unless they also show that there is no genuine issue of material fact.

 

However, the very order from which movants seek relief shows that there is a genuine issue of material fact.  In that order, we found that the procedures for registering the land title in question were not properly followed.  See Orders Den. Prelim. Inj. & Staying Action, LT No. 20-93 (July 6, 1993).  Specifically, the notice of the proposed title registration was not published in a local newspaper, as required by A.S.C.A. § 37.0103(a).  Also, the Territorial Registrar's record is facially deficient in the absence of certificates of notice by the pulenu`u, newspaper, and clerk of courts, as required by A.S.C.A. § 37.0103(c).  The Registrar's certificate of posting is also facially defective in that it was completed before the end of the 60-day notice period and that the affiant stated that notice was posted at only one public place in the village instead of the [29ASR2d145] required two places.1         If non-compliance is indeed extensive, the Legislature may want to enact, with retroactive effect, a moratorium on the effective date of the new laws and a declaration of validity for all title registrations completed in compliance with the old laws during a defined problem period.  Of course, if the Legislature takes up this corrective call, such legislation needs to be enacted twice by a two-thirds majority in both houses and have the Governor's approval, at two successive legislatures.  Rev. Const. Am. Samoa, art. I, § 3, and art. II, §§ 9 and 19.  The present Legislature could first pass such legislation when it convenes in January or July 1996, and the next Legislature could pass it the second time when it convenes in January 1997.  The legislative solution cannot be put in place more expeditiously.        When the face of title registration documents clearly show registration was not performed in accordance with statutory procedure, the registration is void.  Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988).  This finding  precludes the movants from receiving summary judgment.

 

[2]  Upon a motion for summary judgment, we are required to "view[] the evidence and the inferences that can be drawn therefrom in the light most favorable to the opposing party."  Program Engineer v. Triangle Publications, 634 F.2d 1188, 1192-93 (9th Cir. 1980).  "The burden is upon the moving party to show that there is no genuine issue of material fact in dispute, . . . and all doubts . . . must be resolved against the movant."  Dreher v. Sielaff, 636 F.2d 1141, 1143 n.4 (7th Cir. 1980).  Viewing the evidence in the light most favorable to the plaintiff/defendant Timu Levale and resolving all doubts against the movants, we must assume the registration procedures were not properly[29ASR2d146] followed, as we concluded in our earlier order.  The summary judgment motion must be denied.

 

IV.           COMPELLING LAND REGISTRATION PROCESS

 

Ioane Fe`afe`aga Ene died before the order of July 6, 1993, was entered.  To our knowledge, the Heirs of Ioane Fe`afe`aga Ene have not yet renewed the title registration process to undertake the correct procedures.  The court can resolve the issues in all three of the consolidated cases only when the title registration process is properly completed.  Assuming Timu Levale timely objects and the dispute resolution proceedings under A.S.C.A. § 43.0302 are unsuccessful, the Secretary of Samoan Affairs must also issue a certificate of irreconcilable dispute in order to proceed in LT No. 20-93.  Others may, of course, object during any new 60-day notice period.

 

Therefore, in order to move these actions along in a more expeditious manner, we now direct the Territorial Registrar to commence the title registration process in the name of the Estate of Ioane Fe`afe`aga Ene within 30 days of the entry of this order and in due course complete the registration process in full compliance with all applicable procedures.

 

Because the Territorial Registrar and American Samoa Government were substantially responsible for the failure of the earlier title registration, the Territorial Registrar's Office will initially bear all normal costs of the title registration procedure, including, but not limited to, the newspaper publication costs.  The Registrar or Government may later attempt, if desired, to retrieve some or all of these costs from the Heirs of Ioane Fe`afe`aga Ene.

 

We further direct the Territorial Registrar and Secretary of Samoan Affairs to promptly undertake and complete any § 43.0302 dispute resolution procedure that may arise out of the new registration process.

It is so ordered.

 

 

 



1  In addition to the facially defective title registration documents, we point out to counsel in LT No. 14-93 and LT No. 10-95 that the Acting Territorial Registrar clearly admitted to non-compliance with the new procedural requirements when she testified at the June 10, 1993, hearing in LT No. 20-93.  The transcript of her testimony in the LT No. 20-93 file is recommended reading.

 

Other cases show the same or similar deficiencies, and we are gaining the impression that there was wholesale failure to comply with the newly enacted procedures in A.S.C.A. § 37.0103 for a significant period of time after their effective date on May 22, 1989.  If this impression is correct, the Attorney General then in office may have been more at fault than the Acting Territorial Registrar by failing to adequately advise and instruct the Registrar, his departmental subordinate, on the requirements of the new law.  We recommend to the present Attorney General that he assign a staff attorney to review the title registration files in the Territorial Registrar's Office to determine the extent of non-compliance with the 1989 changes in the law.  

Garrett; Pita v.


[29ASR2d12]

 

 SEQ CHAPTER \h \r 1V1`I PITA, Plaintiff/Counterdefendant

 

v.

 

MIRIAMA GARRETT, and RICHARD GARRETT, Defendants/Counterclaimants/Cross-Claimants

 

v.

 

TERRITORIAL REGISTRAR, and

SURVEY MANAGER OF THE DEPARTMENT OF PUBLIC WORKS,

MEKO AIUMU, Cross-Defendants

___________________________

 

TIMU LEVALE, by and on behalf of the TIMU FAMILY, Plaintiffs

 

v.

 

RAY McMOORE, SESE McMOORE, and IOANE FE`AFE`AGA ENE, Defendants

_____________________________

 

HEIRS OF IOANE FE`AFE`AGA ENE, aka MAUGA FE`A ENE, TOLANI TELESO FUGA, ELETISE MATAGI WOLMAN, SENEUEFA PRITT, TIMU LEVALE, on behalf of the TIMU FAMILY, RAY McMOORE, SESE McMOORE, aka SESE PEKO SAGAPOLU, VI`I PITA, PERALITA CANDY FUAVAI, TAUINAOLA LAUAMA, FIALE NIKO, aka SOVITA SUAFO`A, SOVITA LIVING TRUST, MIRIAMA  GARRETT, AMERIKA SAMOA BANK, and DOES 1-10, Defendants                                  

 

High Court of American Samoa

Land and Titles Division

 

LT No. 14-93

LT No. 20-93

LT No. 10-95

 

March 14, 1995

                  

[1]  Consolidation is appropriate when actions having “a common question of law or fact are pending before the court."  T.C.R.C.P. 42(a).[29ASR2d13]

 

[2]  With a common question of law or fact present, the court is permitted to order consolidation, with or without the parties' consent, to serve the purpose of convenience and economy of administration, and is given broad discretion to decide whether consolidation is desirable. 

 

[3]  The court may exercise discretion and on its own motion order consolidation as soon as the common issues become apparent in concurrently pending cases. 

 

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

 

Counsel:      For Plaintiff/Counterdefendant Vi`i Pita, Marshall Ashley

For Defendants/Counterclaimants/cross-Claimants Miriama Garrett and Richard Garrett, Charles V. Ala`ilima

For Cross-Defendants Territorial Registrar and Survey Manager of the Department of Public Works, Meko Aiumu, Cherie Shelton Norman, Assistant Attorney General, and Henry W. Kappel, Assistant Attorney General

For Plaintiff/Defendant Timu Levale on behalf of the Timu Family, Asaua Fuimaono

For Defendants Ray McMoore and Sese McMoore, aka Sese Peko Sagapolu, Togiola T.A. Tulafono

For Defendants Ioane Fe`afe`aga Ene, aka Mauga Ione Fe`a Ene, and Heirs of Ioane Fe`afe`aga Ene, aka Mauga  Ione Fe`a Ene, Albert Mailo

For Plaintiff American Samoa Government, Cherie Shelton Norman, Assistant Attorney General, and Henry W. Kappel, Assistant Attorney General

For Defendants Tolani Teleso Fuga, Eletise Matagi Wolman, Senovefa Pritt, Pearlita Candy Fuavai, Tauinaola Lauama, Fiale Niko, aka Sovita Suafo`a, Sovita Living Trust, and Amerika Samoa Bank, no appearances

 

Order Consolidating Actions:

 

The hearing on the order to show cause, initiated by the cross-defendants in LT 14-93, why LT 14-93 and LT 20-93 should not be consolidated came regularly for hearing on March 9, 1995.  Counsel listed above for the various parties were present, except for counsel for defendants/counterclaimants/cross-claimants Miriama Garrett and[29ASR2d14]  Richard Garrett.  Their counsel, however, was given timely notice of the hearing. 

 

[1-2]  Consolidation is appropriate when actions having "a common question of law or fact are pending before the court."  T.C.R.C.P. 42(a), which mirrors F.R.C.P. 42(a).  With a common question of law or fact present, the court is permitted to order consolidation, with or without the parties' consent, to serve the purpose of convenience and economy of administration, and is given broad discretion to decide whether consolidation is desirable.  9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2383 at 259 (West 1971).

 

LT 14-93, LT 20-93, and LT 10-95 involve sales of land parcels from the same tract of land.  At the heart of all of these transactions is the question of the validity of the transferor's title as individually owned land.  While the issue in LT 14-93 also concerns sales of the same parcel to two different parties, the transferor's title is still a central issue. 

 

The number of transactions, along with the family's claim in LT 20-93 of communal land ownership to a portion of the tract, may complicate the trial some, but determination of all of the title issues is still key to the final adjudication of all three actions.  We find no basis to conclude that consolidation will lead to confusion or prejudice, or would cause unjustifiable delay or undue additional expense to the parties.            

 

[3]  LT 10-95 was only commenced on March 8, 1995, and the time for the defendants to answer or otherwise appear had not run at the time of the hearing.  Hence, for that reason, several of these defendants did not appear by counsel at the hearing.  However, the court may exercise discretion and on its own motion and order consolidation as soon as the common issues become apparent.  Swacker v. Interstate R. Co., 32 F.R.D. 234, 237 (D.C. Va. 1962); Cass v. Sonnenblick-Goldman Corp., 287 F. Supp. 815, 237 (D.C. Pa. 1968); Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973).  Any of these presently unrepresented parties, or any of the presently represented parties for that matter, may still move for separate trials, under T.C.R.C.P. 42(b).

 

LT 14-93, LT 20-93, and LT 10-95 are now consolidated.  It is so ordered.

 

 

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


[29ASR2d163]

 

 

AMERICAN SAMOA GOVERNMENT EMPLOYEES FEDERAL CREDIT UNION, Plaintiff

 

v.

 

ATONIO MAILO, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 128-95

 

January 26, 1996

 

[1]  An assignment passes title from the assignor to the assignee, so that the latter is normally the real party in interest for purposes of T.C.R.C.P. 17(a).

 

[2]  The corporate existence of a federal credit union continues for a period of three years from the date of such cancellation of its charter, during which period the liquidating agent, or his duly appointed successor, or such persons as its board shall designate, may act on behalf of a federal credit union for the purpose of collecting and distributing its assets, and it may sue and be sued in its corporate name.  12 U.S.C. § 1766(b)(5).

 

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge

 

Counsel:    For Plaintiff, Ellen A. Ryan

                    For Defendant, Afoa L. Su`esu`e Lutu

Order Denying Motion to Dismiss:

At issue in this case is a loan made by plaintiff American Samoa Government Employees Federal Credit Union ("ASGEFCU") to defendant Atonio Mailo. ASGEFCU has filed this case to collect on the loan, claiming Mailo has defaulted.  Before this case arose, ASGEFCU was closed and liquidated, with the National Credit Union Administration ("NCUA") acting as the liquidating agent.  NCUA assigned all of ASGEFCU's outstanding loans at the time of its liquidation to National Collection Services, Inc. ("NCS").

 

Currently before the court is Mailo's motion to dismiss.  Mailo bases the motion primarily upon the fact that the ASGEFCU has been liquidated.  Unfortunately, neither party has presented a valid argument to support its [29ASR2d164] position.  This does not change the conclusion that, under the law controlling federal credit unions, the motion to dismiss must be denied.

 

Mailo argues that ASGEFCU cannot bring this suit, because it has been "liquidated."  Under the common law, when a corporation ceases to exist, it loses its capacity to sue or be sued.  Walling v. James V. Reuter, Inc., 321 U.S. 671, 675-76 (1944); Pendleton v. Russell, 144 U.S. 640 (1892); 19 AM. JUR. 2DCorporations § 2896 (1986).  However, this rule can be and has been abolished by statute in nearly every U.S. jurisdiction.

 

[1]  ASGEFCU answers Mailo's motion with two assertions:  first, that as assignee, NCS has a legal right to pursue the loans originally made by ASGEFCU; and second, that this court has allowed NCS to pursue collection efforts in the past.  Both of these arguments miss the legal point.  First and most importantly, in gaining legal title to the loans, NCS did not gain, without more, a right to pursue actions in ASGEFCU's name.  T.C.R.C.P. 17(a) requires an action to be brought in the name of the real party in interest.  An assignment passes title from the assignor to the assignee, so that the latter is normally the real party in interest for purposes of Rule 17(a).  Cf. 26 FED. PROC. L. ED. § 59:35 (stating the same rule for F.R.C.P. 17(a), upon which T.C.R.C.P. 17(a) is based). Thus, the assignment allows NCS to bring suit in its own name not ASGEFCU's name.  Additionally, the simple fact that a plaintiff has been allowed to bring suit in the past, in his own name or that of another, does not grant him an absolute right to continue bringing suits.  Whether a party is properly involved in a suit must be decided on a case-by-case basis.

 

[2]  Both parties have clearly missed the pertinent legal point.  A federal credit union is a creation of federal law, and the federal law adequately provides for its existence following liquidation:

 


Upon certification by the liquidating agent in the case of an involuntary liquidation, and upon such proof as shall be satisfactory to the Board in the case of a voluntary liquidation, that distribution has been made and that liquidation has been completed, as provided herein, the Board shall cancel the charter of such Federal credit union; but the corporate existence of the Federal credit union shall continue for a period of three years from the date of such cancellation of its charter, during which period the liquidating agent, or his duly appointed successor, or such persons as the Board shall designate, may act on behalf of the Federal credit union for the purpose of . . . collecting and distributing its assets, . . . and it may sue and be sued in its corporate name.

 

12 U.S.C. § 1766(b)(5) (emphasis added). [29ASR2d165]

 

Mailo has made no allegation that this statute does not apply or is not satisfied in this case.  Thus, NCS possesses the ability to sue in ASGEFCU's name for three years following the cancellation of ASGEFCU's charter. 

 

The motion to dismiss is denied.  It is so ordered.

 

 

 

 

American Samoa Gov’t; Tuufuli v.


[29ASR2d56]

 

 

JAYLEEN TUUFULI, a minor by Mrs. Molia Tuufuli, her Guardian Ad Litem, Plaintiff

 

v.

 

AMERICAN SAMOA GOVERNMENT and  TASIMANI ATUATASI, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 93-90[29ASR2d57]

 

October 18, 1995

 

[1]  Private individuals are subject to payment of post judgment interest on judgments--at the rate of 6% per annum unless a contract calls for a lawful different rate.

 

[2]  Interest accrues on judgments in tort as well as in contract. 

 

[3]  Judgments in tort against the government are subject to interest at the rate of 6% per annum from the entry date of the judgment.     

 

 

Before RICHMOND, Associate Justice.

 

Counsel:    For Plaintiff, Afoa L. Su`esu`e Lutu

                   For Defendants, Henry W. Kappel

The motion by plaintiff Jayleen Tuufuli ("Jayleen") for court approval of interest on her judgment against defendant American Samoa Government ("ASG") was regularly heard on October 16, 1995.  Counsel for both parties were present.

 

Jayleen proceeded in this personal injury action under the Government Tort Liability Act.  A.S.C.A. §§ 43.1201-43.1213.  Judgment in the amount of $60,370.50 was entered in her favor on November 5, 1993.  However, when a judgment for personal injuries exceeds $15,000, the ASG's Treasurer cannot pay the judgment until the Governor submits legislation to the Legislature of American Samoa for a special appropriation of funds for payment of the judgment.  A.S.C.A. § 43.1212(a) and (c).  The appropriation to pay this judgment was finally enacted in P.L. No. 24-4, which became immediately effective as emergency legislation on September 29, 1995.  

 

A.S.C.A. § 43.1203(a) provides:

 

The government is liable, except as otherwise provided in this chapter, in the same manner and to the same extent as a private individual under like circumstances, but is not liable for interest prior to judgment or for punitive damages . . . (emphasis added). 

 

[1-3]  Private individuals are subject to payment of interest on judgments against them--at the rate of 6% per annum unless a contract calls for a lawful different rate.  A.S.C.A. § 28.1501(a); see Samoa Products, Inc. v. A`asa, 17 A.S.R. 66, 68, 70 (Trial Div. 1990).  Interest accrues on judgments in tort as well as in contract.  See 45 Am. Jur. 2d Interest & [29ASR2d58] Usury § 73 (1969).  Accordingly, since interest accrues against private parties for judgments in tort and, unlike prejudgment interest, is not excepted from government tort claims, Jayleen is entitled to interest on her judgment at the rate of 6% per annum from the entry date of the judgment.     

 

Jayleen has calculated the accrued post-judgment interest at $7,141.79 as of October 5, 1995.  This substantial amount is due to the improvident delay in appropriating the necessary funds and is increasing every day.  The Treasurer and Attorney General would do well by ASG to promptly check Jayleen's calculation of the post-judgment interest, determine whether the currently appropriated funds are available to pay post-judgment interest along with the principal of the judgment, and if so, pay the up-dated amount of the judgment in full.

 

In any event, ASG shall pay the principal amount of the judgment, plus interest accruing on this amount at 6% per annum until the principal amount is paid in full.  Payment shall be made to the clerk of the courts and deposited in the registry of the High Court.

 

It is so ordered.

 

 

 

American Samoa Gov’t v. Isaia,


[29ASR2d224]

 

 

 SEQ CHAPTER \h \r 1AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ROGER ISAIA and SAUFO'I ALOPEPE, Jr., Defendants

 

High Court of American Samoa

Trial Division

 

CR No. 66-95

 

March 28, 1996

                                               

[1]  T.C.R.Cr.P. 12(d)(2) implicitly allows a defendant to request that the government provide him with a list of the evidence it intends to use at trial for its case in chief.  However, Rule 12(d)(2) is not explicitly mandatory, except for a defendant's discovery of items listed in T.C.R.Cr.P. 16(a).  Nor is a sanction provided.

 

[2]  The government should normally provide notice of its intention to use evidence at trial, either on its own initiative, see T.C.R.Cr.P. 12(d)(1), or upon the request of defense counsel.  See T.C.R.Cr.P. 12(d)(2).  In appropriate cases, where the government has failed to comply with a defendant’s request, the court will compel compliance.

 

[3]  Photographs are discoverable, as they do not explicitly nor implicitly fall under the confines of T.C.R.Cr.P. 16(a)(2). 

 

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

 

Counsel:    For Plaintiff, Frederick J. O’Brien, Assistant Attorney General

                   For  Defendant Roger Isaia, David P. Vargas, Assistant Public Defender

                   For Defendant, Saufo`i Alopepe, Jr., Barry I. Rose

 

Order Granting Motion to exclude Evidence in Part and Requiring Notice of Intention to Use Evidence at Trial:

 

I.                   INTRODUCTION

 

Defendants Roger Isaia has been charged with two counts of criminal assault in the first degree, and defendant Saufo`i Alopepe, Jr. has been jointly charged with the first count.  The crime is alleged to have [29ASR2d225] occurred on October 20, 1995.  On November 6, 1995, the defendants were arraigned in this court.

 

On November 8, 1995, the defendants served on the government their request for discovery, favorable evidence, and intention to use evidence at trial.1  Plaintiff American Samoa Government has not filed any notice of its  intention to use evidence at trial.  On November 1, 1995, however, before the defendants’ request and before their arraignment, the government had presented the defendants with a copy of an investigation report prepared by the government's Department of Public Safety [“DPS”].  The government made no further responses to the defendants’ discovery request until February 6, 1996, when it provided the defendants with a number of alleged witness statements.

 

Trial had been scheduled for February 20, 1996, but on February 8, Isaia, believing that he needed more time to investigate the witness statements given him by the government, stipulated with the government to continue the case.  Alopepe claimed that he was prepared to proceed to trial, but on February 14, he also stipulated to the continuance, explicitly preserving his right to a speedy trial.  On February 15, we continued the trial until April 2, 1996.

 

The government conducted a number of interviews with witnesses after February 6, 1996.  Most of these interviews took place between February 12 and 15, although four of the interviews did not occur until March 19 and 20.  Along with the interviews, police apparently presented the witnesses with mug photographs, which included the defendants and other suspects, for identification purposes.  None of this information was given to the defendants until March 22, 11 days before trial, when the government presented the defendants with the “Criminal Investigation Follow-up: Country Club Case” [“the report”].  The report summarizes the statements of the 11 witnesses interviewed between February 12 and March 20, and includes the results of the witnesses' “photo identifications” of suspects.  On March 25, Alopepe, this time feeling he had inadequate time to prepare for trial in light of this information, filed a motion to exclude all evidence related to the report, and  to compel the government to provide notice of its intention to use evidence at trial.  Isaia joined in Alopepe’s motion on March 26.  The matter was brought for expedited hearing on March 27, with all counsel present, the defendants having waived their right to be present.

 

II.  DISCUSSION

 

A.  Notice of Intention to Use Evidence at Trial

 

[1]  T.C.R.Cr.P. 12(d)(2) implicitly allows a defendant to request that the government provide him with a list of the evidence it intends to use at trial for its case in chief.  However, Rule 12(d)(2) is not explicitly mandatory, except for a defendant's discovery of items listed in T.C.R.Cr.P. 16(a).  Nor is a sanction provided.

 

Rule 12(d)(2), as with all of our rules of procedure, is based upon the parallel federal rule.  Compare T.C.R.Cr.P. 12(d)(2), with F.R.Cr.P. 12(d)(2).  Thus, the history and interpretation of the federal rules are strongly persuasive in interpreting our own rules.  See A.S.C.A. § 46.0501 (stating that the criminal procedure in the High Court “shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure”); Fanene v. American Samoa Government, 4 A.S.R. 957 (1968) (same).  The notes of the Advisory Committee for the Federal Rules states that:

 

No sanction is provided for the government’s failure to comply . . . because the committee believes that attorneys for the government will in fact comply and that judges have a way of insuring compliance.

 

1 Charles A. Wright, Federal Practice and Procedure § 197, at 736 n.1 (1982).  Thus, the court has discretion to determine whether and how to order the government to comply.

 

[2]  The purpose underlying Rule 12(d) is to allow a defendant to effectively prepare for trial.  Among other things, it allows the defendant to bring pre-trial motions under Rule 12(b)(3), to suppress evidence that will be entered at trial, and to avoid such motions for evidence the government does not intend to introduce.  Producing notice of intention to introduce evidence can potentially save the defense attorneys, the government, and this court time and money.  It is also in-line with the prosecutor’s duty to seek justice rather than mere victory.  See Berger v. United States, 295 U.S. 78, 88 (1935); see also ABA/BNA Lawyers’ Manual on Professional Conduct § 61:602-03 (1986).  For all these reasons, we believe the government should normally provide notice of its intention to use evidence, either on its own initiative, see T.C.R.Cr.P. 12(d)(1), or upon the request of defense counsel.  See T.C.R.Cr.P. 12(d)(2).  In appropriate cases, where the government has failed to comply with a defendant’s request, we will compel compliance.[29ASR2d227]

 

We will require the government to comply with the defendants’ request in this case.  Had it done so in a timely manner, the defendants would have a better idea how the government intends to use the information contained in the recently-disclosed report.  Although the government need not make known its trial strategies or other privileged matters, the defendants could not even know whether the present motion to exclude evidence was necessary, since they did not know which, if any, of the witnesses interviewed in the report the government intends to call at trial.  Such notice, even at this late date, can help to avoid such further confusion.  Because trial is set to commence in six days, the government shall serve its notice of intention to use evidence no later than Friday, March 29, 1996.2

 

B.  Motion to Exclude Evidence

 

1.  The Report

 

The crux of the defendants’ motion is to exclude the evidence contained in the report.  They make two arguments for its exclusion.  First, they argue that the statements and identifications contained in the report were acquired after Isaia and the government had agreed to a continuance.  Second, they argue that the government is “forcing” continuances in the trial, and could do so indefinitely.

 

The first argument is almost wholly without merit.  Although Isaia and the government stipulated to a continuance on February 8, and Alopepe agreed on February 14, this does not change the fact that the original trial was scheduled for February 20.  Thus, the statements and identifications which the government took between February 12 and 15 should not be characterized as having been “obtained by the government after the government . . . had agreed to continue the trial . . . .”  (Def.’s Mot. Exclude Evidence at 3).  Instead, the statements should be characterized as having been obtained two weeks prior to the initial trial date.  Even if these statements were obtained shortly before trial, there is no rule requiring the government to finish its investigation at an early date, let alone a date convenient to the defendant.  There is also no rule requiring the government to stop preparing for trial once a continuance has been granted.  Even the statements obtained on March 19 and 20 may merely reflect a shifting of priorities or deadlines by the government once the trial had been continued to April 2.

 

Defendants’ second argument focuses on the fact that the government, having failed to respond to the defendants’ discovery request, produced statements on February 6, only shortly before trial, in effect “forcing” the defendants to seek a continuance to investigate the new evidence.  The defendants claim that the production of the report on March 22 marks the second time that the government has produced evidence in the eleventh hour, apparently surprising the defendants and leaving them unprepared for trial on April 2.

 

What the defendants’ argument ignores, however, is that they had no right to the report in the first place.3  T.C.R.Cr.P. Rule 16(a)(1)(C) allows a defendant to discover any documents or tangible things within the possession custody or control of the government which may be material to the preparation of his defense or which the government intends to use in its case in chief.  However, Rule 16(a)(2) provides that

 

[T]his rule does not authorize the discovery or inspection of reports, memorandum [sic], or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses.

The report certainly qualifies as either statements made by government witnesses or, more likely, as a document made by a government agent in connection with the investigation of the case.  Thus, the defendants had no right to discover the report under Rule 16.4

The defendants also had no right to discover the report under Brady v. Maryland, 373 U.S. 83 (1963).  Brady requires the government to disclose evidence favorable to a defendant upon request.  The defendants have not claimed that the report is favorable to them, and it does not appear to favor them.

 

Having been under no obligation to supply the report to the defendants, the government cannot be faulted for having done so at a late date.  Except as discussed below, the evidence identified in the report will not be suppressed.

 

2.  The photographs

 

One of the major areas of the defendants’ concern, as expressed during the hearing, is the use of the photo identifications, apparently obtained using DPS photographs, listed in the report.  Although the government has not prevented the defendants from viewing the photographs since they received the report on March 22, there have been problems obtaining useful copies for the defendants.

 

[3]  T.C.R.Cr.P. 16(a)(1)(C) allows the discovery of “books, papers, documents, photographs, tangible objects, buildings or places.”  Rule 16(a)(2) excludes the discovery of only “reports, memorandum [sic], or other internal documents.”  Rule 16(a)(2) does not explicitly exclude photographs from being discovered.  Photographs are neither reports nor memoranda.  Furthermore, because photographs and documents are listed separately in Rule 16(a)(1)(C), we must assume that they are mutually exclusive.  Thus, photographs do not appear to implicitly fall under the confines of Rule 16(a)(2) either.

 

Were all categories of tangible objects in Rule 16(a)(1)(C) meant to be excluded, Rule 16(a)(2) could have parroted that list or said simply “all items discoverable under Rule 16(a)(1)(C).”  It does not, however, do this.  Furthermore, the purpose underlying Rule 16(a)(2) is to protect the work product of government attorneys.  See 2 Wright, supra, § 254, at 70 n.33.  It is hard to imagine when photographs or other tangible objects, which are not reports, memoranda, or documents, would qualify as privileged work product.  Thus, photographs continue to be discoverable despite the prohibition of Rule 16(a)(2).

 

The defendants are still required to show that the photographs are either material to the preparation of their defense or are intended to be used in the government’s case in chief.  See Rule 16(a)(1)(C).  However, we believe the defendants have met this burden.  Although it is unclear whether the government plans to introduce the photos during its case in chief, they have used them repeatedly to achieve identifications of the suspects from witnesses interviewed in the report.  These photographs should have been made available to the defendants so that they could prepare a defense to the identification evidence.  The lateness of their production is prejudicial to the defendants.[29ASR2d230]

 

Although the government's counsel turned over the report (although apparently not the photographs themselves) as soon as it was given to him by DPS, this does not excuse the tardiness.  “The government” which is required to disclose documents under Rule 16 is not limited to only the Attorney General’s office.  DPS is clearly part of the government, and tangible objects in its possession are discoverable.  When a defendant serves a discovery request upon the government, the Attorney General is responsible for ensuring that any material documents in DPS's possession, or any other relevant government agency, are disclosed promptly and properly.

 

Because the photographs should have been disclosed as early as February 12, 1996, but were not in fact disclosed until March 22--10 days before trial--we will suppress them.  The evidence suppressed includes not only the photographs but also any evidence relating to their use in making identifications of the defendants during the government’s investigation.

 

III.  CONCLUSION

The government is ordered to serve upon defendants a notice of evidence to be used at trial by Friday, March 29, 1996.  The photographs used by the government in its investigation and any related evidence will be suppressed. 

 

It is so ordered.

 

   

 

********

 



1  This date actually represents the date that Alopepe served his request on the government.  Isaia joined Alopepe’s present motion without filing a separate recitation of the facts for his case, and his original discovery request, if any, in not on file.  However, we will assume for purposes of this motion that all dates applying to Alopepe also apply to Isaia.[29ASR2d226]

2  If the government and the defendants stipulate to continue the trial, or the court grants a continuance, the government may request additional time to serve it notice of intent to use evidence.  However, because the government is supposedly prepared to begin trial in six days, and Alopepe has not waived his right to a speedy trial, such an extension will be short.[29ASR2d228]

 

3 The same is probably also true of the statements which the government supplied to the defendants on February 6, 1996.

4  Under F.R.Cr.P. Rule 26.2, the defendants could have required the government to produce witnesses statements once those witnesses had testified on direct examination.  However, despite this rule’s obvious benefits regarding justice, there is no similar provision in our criminal rules.[29ASR2d229]

American Samoa Gov’t v. Tauai,


 

 

[29ASR2d105]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

OPETAIA  TAUAI, Defendant

 

CR No. 30-95

                                                         

December 1, 1995

 

[1]  The presence of an alternate juror in the jury room is a per se violation of T.R.Cr.P. 24(c).  Reversible error does not occur unless there is persuasive evidence that the jury was "actually prejudiced."  The burden of showing actual prejudice is with the defendant. 

 

[2]   If an alternate juror deliberates with the jury on the question of guilt a reasonable possibility of prejudice exists, making reversal mandatory.

 

Before KRUSE, Chief Justice, TAUAN`U, Associate Judge, and BETHAM, Associate Judge

 

Counsel:    For Plaintiff, Frederick J. O’Brien, Assistant Attorney General

                   For Defendant, Reginald E. Gates, Public Defender

 

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR MISTRIAL

 

Following trial in this matter the jury returned a guilty verdict against the defendant on the charge of assault in the 2d degree.  Subsequent to the discharge of jury, it came to the attention of the presiding justice that the alternate juror was inadvertently permitted into the jury room.  Counsels [29ASR2d106] were alerted, and the presiding justice placed the matter on the court's November 17, 1995, calendar for hearing of any appropriate motions as the parties may desire to make.

 

The defendant consequently filed a motion seeking an order declaring a mistrial; on the grounds that the jury was improperly influenced in its deliberations by the alternate juror, who had participated in the deliberations and further signed off on the verdict.  At the same time, one of the jurors, who had also voted guilty, did not sign the verdict form, because, as she had explained, there was no place provided for to sign--after the alternate had already done so, and there were only six signatory blocks on the verdict form.  The prosecution argued among other things that jury as subsequently polled was nonetheless unanimous, and accordingly no prejudice to the defendant.

 

We ordered briefing in the matter.  Upon due consideration of the submissions of counsel, and the record herein, we are prepared to make and announce our ruling at this time in open court.

 

In this case the defendant essentially adopted the Tenth Circuit's ruling in United States v. Beasley, 464 F.2d 468 (10th Cir 1972), which held that the presence of an alternate juror in the jury room violated the F.R.Cr.P. 24(c) requirement that alternate jurors be "discharged after the jury retires to consider its verdict," and therefore required a mistrial as a matter of law.  Predictably, the prosecution adopted the opposing position advanced by the Eleventh Circuit in United States v. Watson, 669 F.2d 1374 (11th Cir. 1982), which held that the presence of an alternate juror in the jury room was reversible error only when there was a "reasonable possibility that the alternate in any manner affected the verdict." 

         

[1-2]  The U.S. Supreme Court has since resolved this split of authority in United States v. Olano, 123 L.Ed 2d 508, 521-524 (1993), citing Watson approvingly, and stating that the presence of an alternate juror in the jury room is a per se violation of F.R.Cr.P. 24(c), but holding that the error was not reversible unless there is persuasive evidence that the jury was "actually prejudiced."  The burden of showing actual prejudice is with the defendant.  In Olano, although the alternate jurors were sworn and were indistinguishable from the regular jurors, they were specifically instructed by the trial judge not to participate in deliberations, and no evidence indicated that the alternates violated this instruction.  In the present case, we find a reasonable possibility of prejudice, based on the fact that the alternate participated in deliberations without restriction, and ultimately signed the verdict to the exclusion of one of the regular jurors.  In Watson, the Eleventh Circuit held that if an alternate deliberated with[29ASR2d107] the jury on the question of guilt, then reversal would be mandatory.  669 F.2d at 1391.  We agree and therefore order a mistrial in the present case.  

 

 

 

 

American Samoa Gov’t v . Suani,


[29ASR2d38]

 

 

 SEQ CHAPTER \h \r 1AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

NUUSILA SUANI, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 21-95

 

October 3, 1995

 

[1]  The general rule governing the execution of search warrants is that only items named in the warrant may be seized. 

 

[2]  The "plain view" doctrine  is a recognized exception to the requirement of a warrant in American Samoa, and permits a warrantless seizure of private property when three conditions are satisfied: (1) the police officer's presence in the area must be lawful; (2) the discovery of the evidence must be inadvertent; and (3) the incriminating nature of the evidence must be immediately apparent.  American Samoa Gov’t v. Loia, 16 A.S.R.2d 1, 3 (Trial Div. 1990).

 

[3]  When there is an ambiguity on the face of a search warrant, the court may look to the circumstances surrounding the issuance of the warrant to discover its meaning.

 

[4]  A warrant that anticipated a search for marijuana plants at least three feet tall, whether growing or harvested, provided authority to search only those containers and other spaces, which are large enough to conceal such plants.

 

[5]  The plain view doctrine does not authorize search and seizure of items contained within objects like attache cases, file cabinets, and luggage that are themselves in plain view.  A plain view seizure is limited to items that are clearly incriminating and that are inadvertently encountered in the course of a justifiable intrusion.

 

[6]  The contents of a container may not be discovered under the plain view exception unless it is "immediately apparent" that the container probably holds incriminating evidence (such as a weapon case might), or is of itself somewhat incriminating. 

 

[7]  A search undertaken pursuant to a warrant must be directed in good faith toward the objects specified in the warrant.  If the warrant has been [29ASR2d39] allowed to become an object for a general search and it is not possible for the court to identify after the fact the discrete items of evidence which would have been discovered had the agents kept their search within the bounds permitted by the warrant, all seized evidence must be suppressed.

 

[8]  Generally, the exclusionary rule does not require the suppression of evidence within the scope of a warrant simply because other items outside the scope of the warrant were unlawfully taken as well.  The threshold question for suppressing all evidence obtained in a search is whether or not the behavior of the police officers is so unconscionable as to rise to the level of a due process violation. 

 

[9]  Due process is violated only where there is flagrant disregard for the limitations of the search warrant, transforming the particularized warrant into a general search. 

 

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

 

Counsel:    For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

For Defendant, Reginald E. Gates, Public Defender

 

Order Partially Granting Motion To Suppress:

         

This order concerns the admissibility of evidence found inside a container, where the container was too small to contain the items mentioned in a search warrant.

 

FACTS

 

On April 4, 1995, officers of the Department of Public Safety of plaintiff American Samoa Government ("ASG") executed a search warrant for the home and property of defendant Nuusila Suani ("Suani").  In commencing this search, the officers first met Suani outside of his home, and explained that they had come to search the premises for marijuana, under the authority of a search warrant.  An argument regarding the officers' authority to search the premises ensued, and, for security reasons, the officers placed Suani in handcuffs.  At some time during this encounter, Suani was presented with papers and told that a search warrant was among them.  Although there is some dispute as to whether the warrant was among these documents, we are persuaded by the evidence that Suani received a copy of the warrant. 

 

At some time during this initial encounter, the police officers also began searching the premises for marijuana, and ultimately found and seized [29ASR2d40] two growing marijuana plants.  Having found these two plants, the officers formally placed Suani under arrest and, because he resisted, physically took Suani inside the home where the search continued.  The officers found a marijuana joint sitting on top of a cardboard barrel in the living room and a briefcase containing: a .38 revolver, 462 marijuana seeds, a glass smoking pipe, three packets of cigarette rolling papers, and other drug paraphenalia.