31ASR2d

31ASR2d

Mata’utia; Mulitauaopele v.,


[31 ASR2d 175]

 

 SEQ CHAPTER \h \r 1IVI S. MULITAUAOPELE, Plaintiff

 

v.

 

MATA`UTIA P. TUIAFONO, LUTU FUIMAONO, SAVEA TAUFAO, and THE SENATE of the LEGISLATURE OF AMERICAN SAMOA, Defendants

 

CA No. 04-97

 

March 3, 1997

 

[1]  Under the Revised Constitution of American Samoa, the High Court does not have jurisdiction to resolve disputes concerning the outcome of a Senate election conducted according to the law, nor does the Court possess the authority to determine which of many candidates is the most qualified to represent a county in the Senate.  art. II, §  22.  However, the court's jurisdiction does extend to review the question of whether a county council followed proper election procedure when electing its Senator.

 

[2]  Any lawful claim of right to a Senate seat from Sua County must stem from a final decision of the entire Sua County Council.

 

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

 

Counsel:           For Plaintiff, Pro se

For Defendant, Gata Edwin W. Gurr

 

Opinion and Order:[31 ASR2d 176]

 

Introduction

On January 9, 1997, plaintiff Ivi S. Mulitauaopele ("Pele") filed a complaint against defendants Mata`utia P. Tuiafono ("Mata`utia"), Savea Taufao ("Savea"), Lutu Fuimaono, and the Senate of the American Samoa Legislature.  In his complaint, Pele alleges that defendants collectively conspired to commit civil and criminal fraud, and that Savea had assumed via unconstitutional means one of Sua County's two Senate seats in the American Samoa Legislature.  He further claims that he, not Savea, is a duly elected Senator forSuaCounty.

 

On January 31, 1997, we entertained Pele's motion for a preliminary injunction to enjoin Savea from serving as Senator, and heard testimony from both parties.  Despite clear instructions from the court in its show cause order as to the subject matter for the preliminary injunction hearing, Pele failed to address the grounds for granting a preliminary injunction.  We denied the motion for a preliminary injunction, and ordered a trial on the merits of his claims.  That order expressly stated that evidence at trial should not be duplicative, as the court had, pursuant to T.C.R.C.P. 65(a)(2), incorporated testimony from the preliminary injunction hearing in the record for the trial on the merits.  Notwithstanding, we primarily listened to cumulative testimony at the trial on the merits held February 28, 1997.  Now that the court is satisfied that all parties have had more than ample opportunity to make their respective cases, we issue the following opinion and order:

 

Jurisdiction

[1]  Under the Revised Constitution of American Samoa ("Revised Constitution"), the High Court does not have jurisdiction to resolve disputes concerning the outcome of a Senate election conducted according to the law, nor does the Court possess the authority to determine which of many candidates is the most qualified to represent a county in the Senate.  art. II, § 22.  However, the Court's jurisdiction does extend to review the question of whether a county council followed proper election procedure when electing its Senator.  See Mauga v. Lutu, 10 A.S.R.2d 115, 118 (Trial Div. 1989) (citing Meredith v. Mola, 4 A.S.R. 773, 776-77 (1973)); see also Leasau v. Paopao,  SEQ CHAPTER \h \r 1CA No. 5-97 at 4-5 (Trial Div. Feb. 27, 1997).  Therefore, the question of whether Sua County had elected its second Senator according to Article II, § 4 of the Revised Constitution, is an issue on which the High Court may properly rule.[31 ASR2d 177]

 

 

Relevant Facts

Sua County, or Senate District No. 5, includes the eastern district villages of Afono, Faga`itua, Lauli`i, Amaua, Masefau, Masausi, and Sailele.  Pele is a matai from Lauli`i, while Savea is a matai from Amaua.  On December 11, 1996, the Sua County Council convened to elect its two Senate representatives.  At the meeting, the Council followed its relatively recent practice, established by the late Paramount Chief Leiato Tupua, of allocating one of the senate seats to the matai of Fagaitua, Lauli`i, and Amaua ("Sua 1"), and the other to the matai of Afono, Masefau, Sailele, and Masausi ("Sua 2").  In effect, this meant that the matai of Sua 1 would pick one Senator from among its ranks, while the matai of Sua 2 would pick the other.  In accordance with this understanding, Mata`utia's name was promptly presented before the entire County Council for Sua 2's allotted senate seat.1

 

On the other hand, the County Council did not arrive at a final decision with respect to the second senator from Sua 1.  The three nominees involved from Sua 1, namely Pele, Savea, and Paleafei, were each unrelenting in their respective positions taken; while Paleafei was prepared to yield in favor of Savea, neither Savea nor Pele was prepared to yield to the other.  After considerable discussion, Pele requested the Council for an opportunity for the three candidates to privately discuss the issue.  The request was granted and the issue withdrawn from the entire County Council's consideration.  As time went by, and without the apparent prospect of a resolution from the candidates on that day, the County Chief, Uto`ofili Vaimauga ("Uto`ofili"), adjourned the Council meeting and directed Pele, Savea, and Paleafei to continue to meet and decide among themselves who would take the county's second Senate seat.  Uto`ofili further instructed them to have a decision by the week's end.

 

As it turned out, the three candidates failed to reach agreement.  After four days, following the County Council's meeting, Savea and Paleafei reported to Uto`ofili and informed him that they were resolute in their position that Savea should assume the Senate seat.  On the basis of their 2-1 majority reasoning, they persuaded Uto`ofili that Savea was the rightful second Senator.  Uto`ofili thereupon notified the then Secretary of Samoan Affairs, Mata`utia, who sent Savea's name to Senate.

 

Following his unsuccessful efforts to win over Savea and Paleafei, Pele secured the backing of a number of Lauli`i matai who signed a letter of[31 ASR2d 178] support, endorsing the Pele for the Senate.  This letter, which was prepared by Pele, also contained a signature block for the County Chief, which, if signed, would purport to certify Pele's election to the Senate.  As it happened, this document was also signed by Uto`ofili, who explained his inconsistent actions, testifying that he had only signed the Pele certification at the direction of Sala Samiu, the Deputy Secretary Samoan Affairs.  The latter in turn sent over Pele's name to the Senate as well.  The Senate, however, acted on the certification from Mata`utia and accepted Savea.

 

Neither Savea nor Uto`ofili presented the results of the three candidates' private meetings to the entire Sua County Council for its review and ratification.  At the same time, the action taken by the Lauli`i matai, resulting in their letter of support for Pele, was never presented to the County Council for its consideration and any action it might deem appropriate.

 

Legal Analysis

 

[2]  The Revised Constitution states that "Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent. . . ."  art. II, § 4.  Although there is no rigid "rule as to exactly how a county council must decide upon the person it selects to be a Senator," Mauga v. Lutu, 10 A.S.R.2d at 119-20 (quoting Faiivae v. Mola, 4 A.S.R. 834, 836 (1975)), the customary decision-making process referenced in the Revised Constitution does not involve complete delegation of the decision "to a mere sub-division of the county."  Id. at 120; see also Leasau v. Paopao, Leasau v. Paopao,  SEQ CHAPTER \h \r 1CA No. 5-97 at 4-5 (Trial Div. Feb. 27, 1997).  Thus, in the case at hand, any lawful claim of right to a Senate seat from Sua County must stem from a final decision of the entire Sua County Council.

 

The process by which Savea was purportedly elected is patently unconstitutional.  In Mauga, the court rejected the attempt of three village councils from a ten-village county to select a Senator outside the presence of the other seven villages; accordingly, we can not accept the attempt of three individuals from a political subdivision of a multiparty county council to select a Senator outside the presence of the other county council members.  Defendants argue that the present case is distinguishable from Mauga because the Sua County Council "pre-approved" the delegation.  However, in Mauga, the court's ruling was quite clearly based on the premise that the entire Maoputasi county council had ex ante agreed to the division of labor among the villages.  Id. at 119 (describing the Maoputasi County delegation procedures as "recurring[]").  Thus, the fact that a county council pre-approves the results of a delegation does not make the delegation of decision-making power constitutional.  A delegation of decision-making power to a[31 ASR2d 179] subdivision of the county council is only harmless when the entire county council subsequently gives its "stamp of approval . . . by ratification or confirmation or some other process where it may be clearly understood that the final decision in the election of a senator rested in the County Council."  Id. at 119.  In the instant case, there is no evidence whatsoever that the whole Sua County Council reviewed, ratified, or finalized ex post the selection of Savea by a subdivision of a subdivision.  Therefore, we must declare that Savea has not been elected according to the Revised Constitution.

 

At the same time, because the entire Sua County council did not elect Pele as their Senator2, we must also reject Pele's claim that he was duly elected Senator according to the Revised Constitution.3

 

With respect to Pele's other claims, we find no basis in law or in fact for criminal and civil conspiracy charges.

 

Conclusion and Order

On the foregoing, we conclude that neither Savea nor Pele has been elected to the Senate, Legislature of American Samoa, by Sua County, pursuant to Article II, § 4 of the Revised Constitution.  Accordingly, the second Senate seat in the Legislature of American Samoa, for Sua County, District 5, heretofore assumed by Savea, is vacant, and we so declare.

 

The matter of the vacant senate seat in the Legislature of American Samoa, for the County of Sua, District 5, must be, and is hereby, remanded to the entire Sua County Council, for their election of a second representative to the Senate, Legislature of American Samoa, consistent with this opinion and the Revised Constitution.[31 ASR2d 180]

 

It is so ordered.

 



1       The matai of Sua 2 were able to quickly decide on Mata`utia, because the only other contender from among its ranks withdrew his candidacy and conceded in favor of Mata`utia.

2  Pele's claim to the Senate Seat based on the letter of support from some of the Lauli`i matai is even more tenuous than Savea's, as the Lauli`i matai had no claim whatsoever to any sort of mandate from the County Council.

3  All of the purported "certifications" from various individuals at the Office of Samoan Affairs are completely worthless.  According to the Revised Constitution, only county chiefs may certify "[t]he decisions of the members of the county councils."  art. II, § 4.  Of course, in the instant case, there was no decision of the members of the Sua County Council with respect to the Senate seat Savea assumed, so even Sua County Chief Uto`ofili could not validly certify anyone to fill that vacancy.

Patea S. of Vatia, Maresala v.


[31 ASR2d 52]

 

TAULAGA MARESALA, Plaintiff

 

v.

 

PATEA S. of Vatia, PATEA FAMILY of Vatia, and MASANIAI TE`E, Defendants

 

High Court ofAmerican Samoa

Land and Titles Division

 

LT No. 02-96

 

October 30, 1996

 

[1]  The court recognizes finality in Land and Titles decisions as an especially significant public policy interest, and even under its equitable powers, will refuse to entertain the merits of a claim raised thirty years after the court has issued a final order.

 

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

 

Counsel:           For Plaintiff, Aviata F. Fa`alevao.

For Defendants, Asaua Fuimaono.

 

Order Granting Defendants’ Motion for Summary Judgment:

 

I.  Introduction

 

On September 9, 1965, defendant Patea S. of Vatia ("Patea") filed an application with the Office of the Territorial Registrar ("Registrar") to register real property entitled "Laloulu," approximately .581 acres of land in Vatia, as communal land of the Patea family.  Taulaga of Vatia ("Taulaga, Sr.,), the father of the present plaintiff, Taulaga Maresala Masaniai (hereafter "plaintiff") and Masaniai of Vatia filed objections to the title registration, and the matter was subsequently tried before the High Court of American Samoa.

 

On September 2, 1966, the High Court granted Patea's application and directed the Registrar to register the land Laloulu as the communal land of the Patea family.  Patea v. Taulaga, 4 A.S.R. 739 (1966).

 

In 1987, and again in 1989, the High Court rejected plaintiff's attempts to reopen the litigation, granted the Patea family's motion for summary judgment, and awarded the latter their attorney's fees.  Taulaga v. Patea, [31 ASR2d 53] 4 A.S.R.2d 186 (1987); Taulaga v. Patea, 12 A.S.R.2d 64 (1989).  In 1990, the High Court's Appellate Division upheld the 1989 decision of the High Court's Land and Titles Division.  Taulaga v. Patea, 17 A.S.R.2d 34 (1990).

 

Plaintiff now files an "Action for Declaratory Judgment and Equitable Reliefs," and requests this court to revisit the issue of title to Laloulu on the following grounds:  (a) that Taulaga, Sr., died prior to the date of the original trial, and that a formal successor to his matai title did not represent the Taulaga family's interests at trial; (b) that fraud and collusion occurred at the first trial, obviating the defense of res judicata and warranting a new trial on the merits.

 

II.  Discussion

 

In the instant case, plaintiff is seeking to set aside and vacate the High Court's decision and judgment in Case No. 270-1965, and to reset the matter for a new trial.  In the 1989 Land and Titles Division decision, the High Court dismissed plaintiff's action for a new trial because plaintiff failed to request relief from the 1966 judgment within a reasonable time.  Taulaga v. Patea, 12 A.S.R.2d 64, 65-66 (1989).  While in 1987 plaintiff requested relief under T.C.R.C.P. 60, yet in the instant case he requests relief under the "court's power of equity pursuant to provisions of Chapter 11 of Title 43 of the American Samoa Code Annotate[d] (ASCA)."

 

[1]  We find that a reasonable limitations period must again apply.  Plaintiff is requesting a new trial, and cannot evade Rule 60 consequences by simply omitting reference to the Rules.  The High Court has recognized finality in Land and Titles decisions as an especially significant public policy interest, and even under our equitable powers, we refuse to entertain the merits of a claim raised thirty years after we have issued a final order.

 

We hold that plaintiff's cause of action is time barred.

 

III.  Order

 

As there are no triable issues of fact for determination, Etimani v. Samoa Packing, 19 A.S.R.2d 1, 4 (1991); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 276 (1986), Defendant's motion for summary judgment is granted and the above entitled matter is DISMISSED.

 

The defendants are awarded reasonable attorney's fees and litigation costs against plaintiff in an amount to be approved by the court upon verified application by defendants. [31 ASR2d 54]

 

It is so ordered.

 

 

 

*********

 

Pal Air Int’l Incorporated v. Porter,


[31 ASR2d 54]

 

PAL AIR INTERNATIONAL, INC., Plaintiff

 

v.

 

JAMES PORTER, CONSTANCE PORTER, and SAMOA AVIATION, INC., Defendants

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 70-95

 

November 1, 1996

 

BeforeRICHMOND, Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Justice.

 

Counsel:           For Plaintiff, Togiola T.A. Tulafono, James W. Hardesty, pro hac vice, and Edward A. McConwell, pro hac vice

For Defendant, Robert A. Dennison and Marshall L. Ashley

 

Opinion and Order:

 

PROCEDURAL HISTORY

 

Originally this case arose from a discovery dispute in Samoa Aviation, Inc. v. Robert G. Bendall, Pace Aviation, Ltd., and Pal Air International, Inc., CA No. 50-95.  In a separate effort to gain access to documents which defendants in this action, James Porter ("James"), Constance Porter ("Constance"), and Samoa Aviation, Inc. ("Samoa Air"), were purportedly withholding, plaintiff Pal Air International, Inc. ("Pal Air")1 [31 ASR2d 55] brought the present action to inspect those documents as a shareholder, rather than as an opposing litigant.  Since both actions were related this court initially consolidated them.  However, it later became apparent that the present action needed resolution prior to proceeding to trial in CA No. 50-95.  The Court thus separated the cases and set the present action for trial.  Plaintiff moved for summary judgment, which was denied on July 15, 1996. Trial on the merits began on September 5th and was concluded on September 6, 1996.

 

THE ISSUE

 

As stated above, Pal Air brought this shareholder action to inspect documents which were being purportedly withheld in CA No. 50-95.  Undisputedly, Pal Air was at one time a shareholder in Samoa Air.  Indeed, the parties stipulated that as of November 28, 1988, Pal Air owned 25% of Samoa Air.2

 

The core issue, however, is the current ownership of the 25% interest which Pal Air once owned.  Pal Air contends that it still owns these shares.  James and Constance contend that they purchased the shares from Pal Air.  Specifically, James and Constance contend that, in February 1992, they entered into an oral agreement in Reno, Nevada, with Bendall to purchase these shares.  They assert that the oral agreement was consummated by the payment of $25,000 pursuant to that agreement.

 

DISCUSSION

 

[31 ASR2d 56] The central question is whether there was indeed an oral agreement for the purchase of the Samoa Air stock from Pal Air.  Both parties agree that James and Constance discussed with Bendall purchase by James and Constance of the Samoa Air stock owned by Pal Air.  Bendall, however, testified that the discussion concerned a stock swap whereby James and Constance would purchase shares of Sierra Pacific Aviation, another corporation owned by Bendall, and trade some of these shares for the shares of Samoa Air.  Bendall stated that this agreement, although discussed, was never consummated.3  Pal Air does, however, admit that the James and Constance transferred $25,000 to Pace Aviation soon after the February meeting.

 

James and Constance testified that the oral agreement was for the purchase of Samoa Air stock and the subsequent payment of $25,000 to Pace Aviation, by Bendall's direction, consummated that agreement.  In support of their contention, James and Constance produced copies of a wire transfer receipt for $25,000, issued on February 26, 1996. 

 

Bendall does not dispute the receipt of this $25,000 wire transfer.  Instead he testified that this money was not made pursuant to a stock purchase because such an agreement was never reached.  Bendall claims that this money was simply credited to Samoa Air's account and later applied toward the purchase of an airplane engine.

 

Constance, however, produced copies of the checks which were used to purchase that airplane engine.  Specifically, the engine was ordered on or about August 12, 1992 for $49,500.  Prior to the order Samoa Air made a $20,000 down payment on the engine.  This down payment was made by a check for $10,000 dated August, 1992 and a wire transfer for $10,000 dated August 7, 1992.  Samoa Air agreed to pay the balance of roughly $30,000 in four monthly installments of $7,500.

 

[31 ASR2d 57] On September 8, 1992, Samoa Air made the first $7,500 payment.  Samoa Air made the second $7,500 payment on October 7, 1992,4 and a third payment of $5,000 on November 18, 1992.5  The final installment was paid for with a portion of an insurance claim check.  Thus, Samoa Air has, separately and apart from the February 26 wire transfer, accounted for the entire purchase price of the airplane engine.

 

We find the evidence presented by James, Constance and Samoa Air persuasive on this issue.  Pal Air countered the assertion by James, Constance and Samoa Air that the $25,000 wire transfer was for the purchase of stock by contending that this money was applied to the purchase of the engine.6  This contention is adequately rebutted by reliable evidence of separate payments for the airplane engine.

 

As discussed in our "Order Denying Motion for Summary Judgment," issued on July 15, 1996, under Nevada law an oral contract for the sale of securities can be enforced where "payment has been made."  Id. at p.6 (citing Nev. Rev. Stat. § 104.8319(2)).  We believe that James, Constance and Samoa Air have adequately shown that, pursuant to the oral agreement, the payment for the shares "has been made."  Thus, under Nevada law we find that there was an enforceable oral contract for the sale of 25,000 shares of Samoa Air stock owned by Pal Air for the purchase price of $25,000, which was consummated when James and Constance paid this amount to Pace Aviation, as directed by Bendall.7

 

[31 ASR2d 58] Pal Air had the burden to prove, by a preponderance of the evidence, that it is a present shareholder in Samoa Air, with the attendant inspection rights of corporate records.  Pal Air has failed to meet its burden.

 

ORDER

 

Judgment shall be entered in favor of Samoa Air, James and Constance, and against Pal Air.  

 

Trial in CA No. 50-95 is scheduled on Tuesday, February 4, 1997, at 9:00 a.m.

 

It is so ordered.

 



1  Although Pal Air is the formal plaintiff in this action, Pal Air's owner, Robert G. Bendall ("Bendall"), was the sole owner, director and president of both Pal Air and Pace Aviation, Inc. at all times relevant to this action.  Both companies were quite similar and seemed to perform overlapping functions on behalf of their owner.  During the trial there was some issue as to which company owned the shares, which company the oral contract at issue was with, and which company received payment for the shares.  These distinctions, however, are unimportant.  Both companies were corporate veils for Bendall.  Under both American Samoa and Nevada law, the court may disregard the corporate fiction in circumstances such as those in this case.  See E.W. Truck & Equipment Co. v. Coulter, 19 A.S.R.2d 61, 66 (Trial Div. 1991); McCleary Cattle Co, v. Sewell, 317 P.2d 957, 959 (Nev. 1957).  We will overlook the fiction of separate corporate identities for purpose of this case.

 

2  Bendall put these shares in the physical possession of the DuQuoin State Bank in Illinois, as part of a loan security arrangement, after Pal Air acquired ownership of them.  Bendall testified that the loan or loans are currently paid in full, but the bank still has possession of the Samoa Air shares.  He stated that he did not retake possession of the shares in anticipation of possible future credit transactions.  We have in evidence only copies of the share certificates made in 1988.

 

3  Sandy Cox ("Cox") also held 25% of Samoa Air's stock in 1988.  Cox would have transferred his Samoa Air shares to Bendall or one of his corporations in exchange for Sierra Pacific stock, as part of the proposed Sierra Pacific transaction.  However, since this transaction was never completed, Cox retained ownership of his Samoa Air shares.  Apparently, James and Constance learned that Cox still owned these shares after this action was filed and, on August 2, 1995, they purchased the Cox shares.

 

4  This payment actually ended up being for $7,440 due to the fact that Constance failed to include the $60 processing fee with there check to the bank.  Pal Air later wrote off this $60 shortfall.

 

5  James A. Riske ("Riske") paid the $2,500 balance on this installment directly to Pal Air.  Riske was also involved in Samoa Air stock transactions.  See n.6 infra.

 

6   Pal Air seemed to argue that, even if there was a valid oral agreement for the sale of the stock, the sale was not unanimously approved by Samoa Air's stockholders, as required by Samoa Air's original bylaws, and is therefore invalid.  The sale restrictions in the bylaws were adopted for the stockholders' benefit.  As such the stockholders may waive them.  Here we believe that the stockholders' continual disregard of these sales restrictions effectively waived them, and Pal Air is estopped from now asserting this restriction.  See 18A Am. Jur. 2d Corporation § 695.

 

7  In yet another but separate transaction involving Samoa Air's stock, Riske testified regarding Bendall's pledge of two and one-half percent of outstanding Samoa Air shares as security for a loan of $7,500.  When Bendall defaulted on the loan, these shares presumably became Riske's property.  James and Constance purchased these shares from Riske on June 25, 1995.  The evidence does not clearly show which Samoa Air shares Bendall intended to pledge for the Riske loan.  However, under our findings, Bendall did not own or control any Samoa Air shares to pledge on the date of the loan agreement, April 14, 1994.  It appears, therefore, that James and Constance needlessly bought Samoa Air shares from Riske, at least for purposes of the issue before us.   

 

Salualo; Pene v.


[31 ASR2d 58]

 

SEIGAFOLAVA R. PENE, Plaintiff

 

v.

 

PETI SALUALO and SALUALO APAISA, Defendants

 

High Court ofAmerican Samoa

Land and Titles Division

 

LT No. 21-96

 

November 4, 1996

 

[1]  Eviction of a family from family land is a matter properly within the senior matai's competence; it is the matai who has primary jurisdiction over intra-family disputes involving use of family land.[31 ASR2d 59]

 

[2]  The senior matai responsible for resolving intra-family disputes involving the use of family land, must have been bestowed the matai title in compliance with, among other things, the requirements of Title 1, Chapter 4, American Samoa Code Annotated, A.S.C.A. § 1.0401 et seq.

 

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

 

Counsel:           For Plaintiff, Pro Se

                        For Defendants, Asaua Fuimaono

 

Order on Motion for Preliminary Injunction:

 

This is an intra-family dispute over a boundary.  The parties are members of the Uso family of Faga`alu and are both occupants of Uso family land known as "Fusitele."  Defendants recently erected a picket fence which plaintiff claims has encroached onto his area of use.  The latter seeks injunctive relief against the defendants' continuing maintenance of the picket fence, claiming that the fence has, among other things, affected his ability to maneuver his motor car for entry onto the highway.  Plaintiff further seeks ouster of the defendants from Fusitele altogether, claiming matai authority to evict, or to seek the eviction of, the defendants.

 

[1]  This is a matter properly within the senior matai's competence; it is the matai who has primary jurisdiction over intra-family disputes involving use of family land.  Uso Lago`o, the current registered holder of the Uso title testified that the dispute was never referred to him and that he has never had the opportunity to address the matter.

 

Plaintiff, however, questions Uso Lago`o's legitimacy as titleholder, claiming that Uso Sasagi, who had previously registered the title in January 12, 1953, is still alive and the legitimate title holder, albeit resident off-island.  Plaintiff also lays claim himself to being the Uso titleholder, contending that Uso Sasagi had bestowed the Uso title upon him during an installation ceremony held off-island.

 

[2]  At the outset, we find plaintiff's claims to being the Uso titleholder, to be entirely unfounded.  Among other things, the requirements of Title 1, Chapter 4, American Samoa Code Annotated, A.S.C.A. § 1.0401 et seq., relating to matai eligibility and the registration of matai titles, are not mere formalities but substantive (?).  Because plaintiff has not complied with the requirements of Chapter 4, he is not the holder of the Uso title,[31 ASR2d 60]  nor is he able to hold himself out as such.  See A.S.C.A. § 1.0413;1 §1.0414.2

 

For purposes of this hearing, we are satisfied on the evidence that the senior matai of the family is Uso Lago`o; he is the current registered holder of the title Uso, and we accept his testimony that the title was registered in his name after the Territorial Registrar was satisfied that Uso Sasagi had resigned the title.

 

The motion for a preliminary injunction is denied, and the matter of the boundary dispute between the parties is remanded to the senior matai of the Uso family.3

 

It is so ordered.



1  This enactment states: "Any matai title bestowed on any person contrary to the provisions of this chapter [4] may not in any way be recognized."

 

2  This enactment reads:  "A person who uses any matai title or permits the use of any matai title in his behalf before the same has been registered in accordance with the provisions of this chapter . . . ., shall be sentenced as for a class B misdemeanor."

 

3  Although we have not had to consider the merits of the motion, deferring to the primary jurisdiction of the matai, the statute prohibiting anyone but the senior matai of a Samoan family from bringing action to enjoin activities on communal land would seem to render plaintiff's standing doubtful.  A.S.C.A. § 41.1309(b).

Tuputala v. Sagapolutele,


[31 ASR2d 48]

 

TUPUTALA SAGAPOLUTELE, ROY J.D. HALL, JR., and DOES I-VI, Plaintiffs

 

v.

 

SAGAPOLUTELE MALAEOLA ANTHONY (aka ANTHONY SAGAPOLUTELE), MATAKUA SAGAPOLUTELE, and the AMERICAN SAMOA GOVERNMENT OFFICE OF THE TERRITORIAL REGISTRAR, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 11-96

 

October 24, 1996

 

[1]  Upon an involuntary dismissal of a land dispute, the court’s failure to direct the Registrar to register title to the land with  one of the parties indicated that the involuntary dismissal would be "without prejudice."

 

[2]  A family’s objection that remains on file with the Territorial Registrar’s Office, precludes another family from receiving a certificate of title registration to land.  See A.S.C.A. 37.0101(b).

 

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

 

Counsel:           For Plaintiffs, Brian M. Thompson

For Defendants, Sagapolutele Malaeola Anthony and Matalua Sagapolutele, Togiola T.A. Tulafono

For Defendant Territorial Registrar, Henry W. Kappel, Assistant Attorney General

 

Order Denying Motion for Summary Judgment and Granting Motion to Dismiss:

 

I.  Introduction

 

On March 3, 1973, defendant American Samoa Government Office of the Territorial Registrar ("Registrar") registered title to approximately 19.52 acres of land known as “Olepa” ("Olepa land"), situated in the Village of Ili`ili, American Samoa, as individually owned land of Aigafealofani Faatafuna Sagapolutele ("Aigafealofani").  On September 28, 1976, Aigafealofani conveyed the Olepa land to his children, Vai F. Sagapolutele, Ta’afili F. Sagapolutele, Latea F. Sagapolutele, Tala`i F. [31 ASR2d 49] Sagapolutele, plaintiff Tuputala F. Sagapolutele ("Tuputala"), Pou F. Sagapolutele, Ausane F. Sagapolutele, and Ulualo F. Sagapolutele ("the children"), as tenants in common.  However, on December 8, 1981, this court, citing procedural defects, set aside Aigafealofani's original title registration without prejudice to his subsequent offer of title registration of the Olepa land.  See LT No. 55-78 (February 3, 1982)(amended order).

 

On April 23, 1982, Aigafealofani again offered the Olepa land for title registration.  On May 24, 1982, members of the Sagapolutele family filed a timely objection to the registration with the Registrar.  On March 15, 1993, the Registrar submitted the dispute to this court for judicial determination on March 15, 1993.  However, on October 14, 1983, the court dismissed the action, LT Case No. 23-83, "for mootness because of the death of Aigafealofani Faatafuna Sagapolutele the senior matai of the Sagapolutele family."

 

On July 17, 1991, the children conveyed a portion of the Olepa land to plaintiff Roy J.D. Hall, Jr. ("Hall") as his individually owned land.  On October 17, 1994, defendant Sagapolutele Malaeola Anthony ("Sagapolutele"), then and now sa’o of the Sagapolutele family, entered into a lease agreement with himself and his wife, defendant Matalua Sagapolutele ("Matalua"), for a portion of the Olepa land.  The portions conveyed to Hall and leased to Sagapolutele and Matalua overlap.  On December 6, 1994, Hall and the children objected to the proposed lease on the grounds that they respectively owned portions of the leased land as their individually owned land.

 

On March 20, 1996, after the Secretary of Samoan Affairs certified that the dispute was irreconcilable and the Land Commission recommended approval, the Governor approved the lease.  Sagapolutele and Matalua proceeded with development of the leased portion.  Then, June 25, 1996, Hall, Tuputala and unnamed persons similarly situated to Tuputala (collectively "plaintiffs") commenced this action to quiet title and enjoin activity on the leased portion by Sagapolutele and Matalua.  Plaintiffs also sought to void and require the Registrar to "de-register" the lease.

 

We issued a temporary restraining order and, after a hearing, a preliminary injunction against Sagapolutele and Matalua pending determination of the parties’ legal rights to the disputed property.  Plaintiffs now move for summary judgment on the grounds that the Sagapolutele family's claims to the Olepa land as communal land were extinguished when they failed to renew their objections following the 1983 dismissal, and that Aigafeolafani thus acquired de facto title to the land as his individually owned land.  The Registrar also moves to dismiss the cause of action against her for failure to state a claim upon which relief can be granted. [31 ASR2d 50]

 

III.  Discussion

 

A.  Standard of Review

 

A motion for summary judgment, pursuant to T.C.R.C.P. 56, will be granted only if the moving party can demonstrate that there are no triable issues of fact.  Etimani v. Samoa Packing, 19 A.S.R. 2d 1, 4 (1991); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 276 (1986).

 

B.  Dismissals of Actions

 

Involuntary dismissals preclude revisiting a controversy when the court fails to otherwise indicate that the dismissal is "without prejudice," or when the dismissal operates as an adjudication on the merits.  See Wright & Miller, Federal Practice and Procedure § 2373 (1971 & Supp. 1994).  For example, dismissals for lack of jurisdiction, improper venue, or failure to join a party will not prevent a party from raising the issues in the future because they do not address the merits of the underlying cause of action.  Id. 

 

The court dismissed LT No. 23-83, "for mootness because of the death of Aigafealofani Faatafuna Sagapolutele the senior matai of the Sagapolutele family".  Plaintiffs allege that the court's order dismissing LT No. 23-83 constituted a "final order" that adjudicated the merits of the controversy.

 

We believe that the court's inartfully written order in LT No. 23-83 was primarily a response to the death of one party to the dispute, and not because the controversy was "moot."  Because the death of one party, like lack of jurisdiction or improper venue, has nothing whatsoever to do with the merits of a case or controversy, we find that the court did not adjudicate the issues on the merits when LT No. 23-83 was dismissed.

 

[1]  Furthermore, since LT No. 23-83 constituted the sole objection to Aigafealofani’s application for registration, the court was obliged by statute to direct the Registrar to register title to the Olepa land as Aigafealofani's individually owned land had the dismissal permanently snuffed out the Sagapolutele family’s claims to the land as communal land.  A.S.C.A. 37.0104(b) ("Upon adjudication of the matter by the High Court, the territorial registrar shall register the land as directed by the court.").  The court’s failure to direct the Registrar to register title to the land with Aigafealofani indicated that the involuntary dismissal would be "without prejudice." [31 ASR2d 51]

 

Therefore, we conclude that on October 14, 1983, the court dismissed LT No. 23-83 without adjudicating the merits of the underlying land title controversy.  Both Aigafealofani's offer of title for registration and the Sagapolutele family’s objections were unaffected by the dismissal order.

 

[2]  Plaintiffs essentially argue that because the court's order of dismissal listed "Chiefs and Members of the Sagapolutele Family" as "Plaintiffs," that the Sagapolutele family had a burden, under T.C.R.C.P. Rule 60(b) to file another lawsuit within a reasonable time in order to preserve their objection.  Plaintiffs fail to recognize that the language of the title registration statute does not require aggressive prosecution by an objector.  A.S.C.A. 37.0101(b) states that "[n]o title to land shall be registered unless the registrar is satisfied that there is no conflicting claim thereto . . . ."  Since the court's order did not adjudicate the merits of the issues in LT No. 23-83, the Sagapolutele family's objection remained on file with the Registrar.  The existence of that objection, as a matter of law, precluded Aigafealofani from receiving a certificate of title registration for the Olepa land.

 

Because the 1982-83 dispute between Aigafealofani and the Sagapolutele family was never resolved, the validity of the children’s 1991 conveyance of a portion of the Olepa land to Hall is uncertain.  Significant triable issues of fact regarding title to the Olepa land remain.  Thus, we will deny the motion for summary judgment.

 

C.  Defendant Registrar's Motion to Dismiss

 

Defendant Registrar has not wronged plaintiffs.  The Registrar has steadfastly refused to register title when there was a “conflicting claim thereto."  A.S.C.A. § 37.0101(b).  The Registrar waited, and is currently waiting, for "adjudication of the matter by the Court."  A.S.C.A. § 37.0104.  While the Registrar may be a valuable witness for both parties in this dispute, plaintiffs have not stated a claim against the Registrar upon which relief can be granted.  Thus, pursuant to T.C.R.C.P. Rule 12(b)(6), we will dismiss the cause of action against the Registrar.

 

III.  Order

 

For the foregoing reasons, plaintiffs' motion for summary judgment is denied, and the Registrar’s motion to dismiss is granted.           

 

It is so ordered.

 

 

 

********

 

Tinitali v. Maisa,


[31 ASR2d 114]

 

 SEQ CHAPTER \h \r 1SOA TINITALI, VALASI A.P. PETELO, and ESENEIASO LIU, for themselves and on behalf of the Soa Family, Plaintiffs

 

v.

 

VO`A F. MAISA, SATUI TA`ALA, TALAMESI TA`ALA, and LELEI PETAIA, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 17-92

 

January 15, 1997

 

[1]  An offer of registration of communal land must be made by the sa`o, which requirement may not be delegated.  A.S.C.A. § 37.0102(d).  The offer to register must also be accompanied by a survey requested by the sa`o, a mandatory requirement.  Id.

 

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

 

Counsel:           For Plaintiffs, Gata E. Gurr

                        For Defendants, Asaua Fuimaono

Opinion and Order:

This action came regularly for trial on November 18 and December 3, 1996, to determine the ownership of certain land.  The parties were present by their counsel.  Plaintiffs claimed that the land is the Soa family's communal land.  Defendants claimed that the land is Tato Vo`a's individually owned land.

DISCUSSION

 

The land at issue, about nine acres and named "Lalovi," is located in the Village of Vaitogi, American Samoa ("the land").  The land is within the principal site of the original village, lying inland of the present principal site of the village near the seashore.  The Soa title is a traditional matai or[31 ASR2d 115] chief of Vaitogi.  The Vo`a title, however, originates from the Village of Olosega in the Manu`a Islands.  The two families are interrelated by marriage and, though now estranged in no small part by this controversy, through social interchange.

 

Defendants presented evidence that Vo`a family members, under Tato Vo`a's direction, occupied and began to cultivate the land in 1946, when the land was entirely virgin bush.  They further offered evidence that Vo`a family members were in uninterrupted possession of the land since 1946, gradually cultivated much of the area and presently maintain the plantations there, buried two family members on the land, and now have several permanent residences there.

 

Plaintiffs introduced evidence that Soa family members began to cultivate the land many years before 1946, at least from the days when the village proper was in this vicinity, and have continually cultivated and maintained the land since those earlier times.  Plaintiffs also put forth evidence that defendants can use the land only under Soa's authority, and that the only Vo`a family member living on the land with Soa's permission is defendant Vo`a F. Maisa's sister, Sui, who renders tautua or traditional service to the Soa titleholder, as the sa`o or senior chief of the Soa family, and is Soa's principal contact with Vo`a family members for participation in Soa faalavelave or family affairs.

 

Both parties, pursuant to the court's order, surveyed and offered the land for title registration, respectively by plaintiff Valasi A.P. Petelo as Soa communal land and by defendant Vo`a F. Maisa as his individually owned land.  The surveyed areas are quite similar but do differ.  No one objected to plaintiffs' offer to register.  Nine persons, most if not all neighbors, objected to defendants' offer to register.  One objector testified, in essence, that he and the other objectors considered the land to be So`a communal land.

 

Defendants contend that the Tato Vo`a-led occupation and cultivation of the land as virgin bush created ownership of the  land as the individually owned land of Tato Vo`a and his heirs.  Alternatively, they assert that the land has become communal land of the Vo`a family by adverse possession for 30 years.

 

We are unpersuaded by either of defendants' legal theories.  Defendants' use of the land is evident and not disputed by plaintiffs.  Plaintiffs' direct use of the land may even have been dormant, at least temporarily, in 1946 and perhaps at other times since.  However, we find that the Soa family owned the land as communal land many generations before the Vo`a family came to the land and, essentially used and controlled the land, including the Vo`a family members' presence there, continuously[31 ASR2d 116] from those early days to the present time.  We also find that by reputation in the community the land is recognized as Soa communal land.  Hence, we conclude that the land is Soa communal land, not the individually owned land of Tato Vo`a and his heirs.

 

We further find that the elements of adverse possession are not factually present.  While defendants and other Vo`a family members were perhaps in actual, open, and continuous occupancy of the land for the past 30 years, the evidence does not show that their occupancy was exclusive, let alone notorious and hostile.  In fact, Sui and her children permanently lived on the land and other Vo`a family members cultivated the land with Soa's permission.  We do doubt that family members, whether by blood or marriage, can adversely possess communal land under the active control of the sa`o of their family, and certainly not without clearly signaling their hostility to trigger the required 30-year period.  See Sialega v. Taito, 3 A.S.R.2d 40, 43 (Land & Titles Div. 1986). Therefore, we conclude that the Vo`a family has not acquired communal ownership to the land by adverse possession, and the Soa family's title remains unaffected by the Vo`a family members' presence on the land.

 

Two major consequences flow from our conclusion that the Soa family has communal ownership of the land.  First, defendants must be evicted from the land and, as trespassers, must, within a reasonable time, remove their residences and any related structures from the land or forfeit their title to these improvements to the Soa family.  Only the Soa titleholder, or an authorized family member during any vacancy in the Soa title, can permit defendants and any other Vo`a family members to return to or use the land for any purpose.

 

[1]  Second, the Territorial Registrar's registration of the land as the Soa family's communal land must be set aside.  The offer of registration was made by plaintiff Valasi A.P. Petelo, a Soa family member, but not the sa`o.  An offer of registration of communal land must be accompanied by a survey requested by the sa`o, a mandatory requirement.  A.S.C.A. § 37.0102(d); Galea`i v. Ma`ae, 2 A.S.R.2d 4 (App. Div. 1984).  Plaintiff Valasi A.P. Petelo made the offer on plaintiff Soa Tinitali's behalf with permission, but § 37.0102(d) does not permit this or any other exception.  Id.; Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988).

 

ORDER

 

1.  Title to the land is quieted as the Soa family's communal land.

 

2.  Defendants are evicted from the land.[31 ASR2d 117]

 

3.  Defendants shall remove their residences and related structures from the land within 120 days after the date this order is entered.  The Soa family shall own these residences and related structures if defendants fail to timely remove these improvements from the land.

 

4.  Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are permanently enjoined from entering onto the land, building any structures or other improvements on the land, or using the land for any other purpose, without prior permission by the Soa titleholder, or by an authorized family member during any vacancy in the Soa title. 

 

5.  The Territorial Registrar shall set aside the registration of the land as the Soa family's communal land.  The Territorial Registrar shall not register or accept an offer of registration of the land as the Soa family's communal land, unless the offer is accompanied by a survey requested by the sa`o of the Soa family and meeting all other requirements of A.S.C.A. § 37.0102.  Since the Soa title is presently vacant, registration of the land as the Soa family's communal land cannot occur until a successor Soa holds the office.

 

6.  The Clerk of Courts shall deliver a certified copy of this opinion and order to the Territorial Registrar.

 

It is so ordered.

 

 

Tedrick; Masaniai v.,


[31 ASR2d 186]

 

TAGAIMAMAO MASANIAI, Plaintiff

 

v.

 

APOUA AND BILL TEDRICK, d.b.a. THE COUNTRY CLUB, ASUELU TIUMALU, SAMOA ALEFOSIO and  ROBERT FAIRHOLT, Defendants

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 121-95

 

March 4, 1997

 

[1]  Under common law, a seller of alcohol does not owe any duty based solely on the serving of alcoholic beverages to an obviously intoxicated consumer.  Absent statute, no cause of action may lay against the seller of alcohol in favor of those injured by the intoxicated consumer. 

 

[2]  A duty may be established by a safety statute if it is intended, exclusively or in part, (a) to protect a class of consumers which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.

 

[3]  A.S.C.A. § 27.0531 is clearly a safety statute.[31 ASR2d 187]

 

[4]  A.S.C.A. § 27.0531(a)(2) imposes a duty on the seller of alcohol to act with reasonable care in providing alcohol to intoxicated person, and the intoxicated persons are within the protected class created by the statute.  Thus, A.S.C.A. § 27.0531 creates an action wherein a commercial supplier can be held accountable for injuries to an intoxicated person occasioned by the supplier's failure to refrain from providing liquor to that intoxicated person.

 

 

 

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

 

Counsel:           For Plaintiff, Jennifer L. Joneson

For Defendants Apoua and Bill Tedrick, d.b.a. The Country Club, Brian M. Thompson

 

Order on Motion to Dismiss:

 

Defendants Apoua and Bill Tedrick, d.b.a. The Country Club, ("defendants") move to dismiss plaintiff's second cause of action entitled in his complaint as "Serving Alcoholic Beverages to an Intoxicated Individual."  Plaintiff seeks to impose tort liability on the defendants based on the factual assertions that the plaintiff sustained injuries as a result of the defendants' serving him alcohol after he was intoxicated, in violation of A.S.C.A. § 27.0531 (a)(2).  Plaintiff alleges that on the evening/early morning of February 25-26, 1995, he was drinking intoxicating liquor at the Country Club, and that the Country Club's employees allowed him to enter and then served him alcohol while he was intoxicated.  He further asserts that in the course of the evening, he was involved in an altercation inside the Country Club and was ejected from the premises by an employee of defendants, and that the altercation continued outside of the Country Club in the parking lot where plaintiff was injured.  He now claims that his intoxication contributed to the cause of his injuries.  Although plaintiff has asserted four separate causes of action, defendants are only moving to dismiss the second.1

 

DISCUSSION

 

In reviewing a motion to dismiss brought pursuant to  T.C.R.C.P. 12(b)(6), the complaint must be liberally construed in the light most[31 ASR2d 188] favorable to the plaintiff.  Beaver v. Cravens, 17 A.S.R.2d 6, 8 (Trial Div. 1990).

 

[1]  Under common law, a seller of alcohol does not owe any duty based solely on the serving of alcoholic beverages to an obviously intoxicated consumer.  Absent statute, no cause of action may lay against the seller of alcohol in favor of those injured by the intoxicated consumer.  45 Am. Jur. 2d Intoxicating Liquors, § 553 (1969 & supp. 1993).  The reason often given for the rule is that it is the drinking of the alcohol, and not the furnishing of it, that is the proximate cause of the injury.  Id.

 

Many jurisdictions have qualified this common law rule by enacting "dramshop acts," which give a right of action to persons injured by an intoxicated person, or in the consequence of the intoxication of any person, against the seller which caused the intoxication.  Id.  American Samoa has not adopted a dramshop act.  However, the Fono has enacted A.S.C.A. § 27.0531(a) which states that "[n]o licensee may sell any alcoholic beverage to any [] person who is intoxicated at the time."  Plaintiff submits that this statute creates a duty of care, which the defendants in this case breached.

 

Since American Samoa has not adopted a dramshop act, the question is whether A.S.C.A. § 27.0531(a)(2) creates an action wherein a commercial supplier could be held accountable for injuries to an intoxicated consumer by reason of the supplier's failure to refrain from providing liquor to that intoxicated consumer.  This issue turns on the existence of a legally cognizable duty, "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another."  W. Prosser & W. Keeton, The Law of Torts, § 53 at 356 (5th ed. 1986).

 

[2]  A duty may be established by a safety statute if it is intended, exclusively or in part,

(a) to protect a class of consumers which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

 

Restatement (Second) of Torts, § 286 (1965).

 

[3]  A.S.C.A. § 27.0531 is clearly a safety statute.  The law relating to alcoholic beverages, contained within Chapter 27 of the A.S.C.A., is intended "for the protection of the health, welfare, safety and morals of[31 ASR2d 189] the people of American Samoa."  A.S.C.A. § 27.0201.  In this case the relevant provision states that "[n]o licensee may sell any alcoholic beverages to [] any person who is intoxicated at the time . . . ."  A.S.C.A. § 27.0531 (a)(2).  In our view, this enactment meets criteria (b), (c), and (d) of the above test.  It was intended to protect the particular interest (safety) which was invaded, and to protect that interest against the kind of harm which has resulted, and to protect that interest against the particular hazard (accidents and harm from intoxicated individuals) from which the harm results.  Whether the statute was intended to include the intoxicated consumer in the class of protected persons is, however, less clear on the extent of existing case law.2  State jurisdictions are not in harmony on this issue.

 

While nearly all United States jurisdictions allow actions against the seller of alcohol by third parties injured by the intoxicated person, many jurisdictions favor the exclusion of the intoxicated consumer from the statutory class of protected persons.  The basic premise for this view is that an intoxicated person who harms himself should be held responsible for his own actions and should not be allowed to prevail under the statute.  See e.g. Ohio. Cas. Ins. Co. v. Todd, 813 P.2d 508, 511 (Okl. 1991).  Moreover, it is said, the proverbial floodgates would overflow with suits by intoxicated consumers if they were entitled to every expense and injury that are the natural consequences of their voluntary intoxication.  See Sager v. McClenden, 672 P.2d 697, 701 (Or. 1983).

 

Although the idea of making persons responsible for their own actions is immediately appealing, we believe, however, in the context of the liquor licensing law, that to disallow actions by intoxicated consumers would be to effectuate a distinction that is more appropriately accomplished by legislative action, rather than judicial fiat.  If the legislature wishes to abrogate the potential civil liability of a seller of alcohol, it may expressly prohibit such liability.  See e.g., California Business and Professions Code, § 25602, and California Civil Code, § 1714.  Our statute makes no such declaration and we will not impose one by judicial fiat.

 

The central consideration of subsection (a)(2)is preventing sellers from serving intoxicated persons.  The fact that intoxicated persons are one of three separate classes of persons which the statute addresses (the other two being incompetents and minors) clearly reflects a legislative concern for the dangers surrounding the sale or provision of alcohol to those who cannot safely consume it.  It is clear that furnishing alcohol to an[31 ASR2d 190] intoxicated person presents a risk not only to third parties who come in contact with the drunkard, but also to the drunkard himself.  Therefore, we believe that, without further legislative direction on this issue, the drunkard is part of the class which the statute was designed to protect.

 

CONCLUSION

 

Although we agree that a person who voluntarily consumes alcohol to the point of intoxication may be held responsible for his own injuries, the fact that the drunkard acted unacceptably should not lessen equally unacceptable conduct of the seller.  In our view the conduct of both the drunkard and the seller should be discouraged.  Insulating sellers from liability would allow them to escape accountability for their own actions.3  Additionally, American Samoa has replaced the common law defense of contributory negligence with the notion of comparative negligence, see A.S.C.A. § 43.51.01.  It would thus be more appropriate to let the fact-finder apportion comparative fault between the parties, rather than impose a judicial no-remedy rule, based more upon moral considerations, rather than on the basis of sound statutory interpretation.4

 

[4]  We conclude that A.S.C.A. § 27.0531(a)(2) imposes a duty on the seller of alcohol to act with reasonable care in providing alcohol to intoxicated person.  We further hold that the intoxicated persons are within the protected class created by the statute.  Thus, A.S.C.A. § 27.0531 creates an action wherein a commercial supplier can be held accountable for injuries to an intoxicated person occasioned by the supplier's failure to refrain from providing liquor to that intoxicated person.

 

Defendants' motion to dismiss plaintiff's second cause of action is denied.[31 ASR2d 191]

 

It is so ordered.

 

 

 

********

 



1  Plaintiff's other causes of action alleged are: (1) assault and battery, (3) common law negligence, and (4) common law negligence for failure to render aid.

2  We note that A.S.C.A. § 27.0201(a)(1) and (a)(3) similarly forbids sales of alcohol to minors and incompetents.

 

3  Moreover, public policy considerations would seem to favor measures which ensure responsible actions by sellers of alcohol, especially in light of their adverse pecuniary interest in continuing to serve persons so long as they are able to pay.

 

4  Furthermore, our statute draws no distinctions between intoxicated persons and the habitual drunkard, the underage consumer (who, incidentally, include competent adults for most other purposes of the law), or the insane and feebleminded.  Cf. A.S.C.A. § 27.0531(a)(2), and (a)(1).  To allow recovery by the feeble minded and underage adults but not for intoxicated persons, on some judicially imposed criterion of blameworthiness which the legislature has not seen fit to articulate, would necessarily entail selective reasoning and embark the court on a course of policy calls more suited for legislative action.

Uiliata v. Puailoa,


[31 ASR2d 35]

 

MOEA’I UILIATA, Objector

 

v.

 

PUAILOA TAVETE, Claimant

_________________________

 

UVIA TE’O, MOEA’I UILIATA, MAGALEI LOGOVII, SAVEA LOI, and ALAI’ASA FILIFILI, Objectors

 

v.

 

PUAILOA TAVETE, Claimant

___________________________

 

PUA’AELO PUAILOA, ALAI’ASA FILIFILI, and SEUI LAAU, Objectors

 

v.

 

PUAILOA TAVETE and MALAEIMI ASSEMBLY OF GOD CHURCH, Claimants

_____________________________

 

SEUI LA’AU, ALAI’ASA FILIFILI, and MOEA’I UILIATA, Objectors

 

v.

 

PUAILOA M. TAVETE and AFOAFOUVALE L.S. LUTU, Claimants

_____________________________

 

ALAI’ASA FILIFILI, Objector

 

v.

 

PUAILOA TAVETE, Objector

 

and

 

MOEA’I UILIATA, Claimant

 

High Court ofAmerican Samoa

Land and Titles Division

[31 ASR2d 36]

LT No. 8-87

LT No. 1-91

LT No. 39-93

LT No. 1-94

LT No. 14-95

 

October 17, 1996

 

[1]  The administrative procedures to validate transfers of title to communal land include: 1) the Land Commission must study the proposed transaction and make recommendations to the Governor about it,  A.S.C.A. § 37.0203(a) - (c); 2) next, the Governor must approve the transaction, A.S.C.A. § 37.0204(a); 3) then, and only then, the Territorial Registrar registers the transfer instrument to effect passing of title.  A.S.C.A. § 37.0210.

 

[2]  A landowner cannot register title to land which has been previously registered.  A.S.C.A. § 37.0101(a). 

 

[3]  Once title to land is registered, the prohibition against further registrations is an overriding policy favoring finality in title registrations that have been properly completed.

 

 

BeforeRICHMOND, Associate Justice, AFUOLA, Associate Judge, and ATIULAGI, Associate Judge.

 

Counsel:           For Objector/Claimant Moea’i Uiliata, Albert Mailo

For Claimant/Objector Puailoa Tavete, Charles V. Alailima

                        For Objector Uvia Te’o, Pro Se

For Objectors Magalei Logovii and Savea Loi, Tauivi Tuinei

                        For Objector Alai’asa Filifili, Tautai A.F. Fa’alevao

                        For Objector Pua’aelo Puailoa, Pro Se

For Objector/Claimant Seui La’au, Togiola T.A. Tulafono

For Claimant Malaeimi Assembly ofGodChurch, Asaua Fuimaono

                        For claimant Afoafouvale L.S. Lutu, Pro Se

 

Order Remanding Matters to Land Commission and Denying Permission to File Survey with Territorial Registrar: [31 ASR2d  37]

 

We are deciding two motions.  Claimant Afoafouvale L.S. Lutu (“Afoafouvale”) moved to dismiss LT No. 1-94.  He was joined at the hearing by claimant Malaeimi Assembly of God Church (“Church”) for purposes of LT No. 39-93 and claimant/objector Puailoa Tavete for purposes of both LT No. 1-94 and LT No. 39-93.  Objector Alai`asa Filifili (“Alai`asa”) and objector/claimant Moea`i Uiliata (“Moea`i”) opposed this motion.

 

Relating to all actions, Alai`asa moved for permission to file the survey of land claimed as his family’s communal land with the Territorial Registrar to enable processing of the registration of title to that land.  Afoafouvale, Puailoa, Moea’i, and the Church opposed this motion.

 

Counsel for objectors Magalei Logovii (“Magalei”), Savea Loi (“Savea”), and Seui La’au (“Seui”), and pro se objectors Uvia Te’o (“Uvia”) and Pua`aelo Puailoa (“Pua`aelo”) were not present at the hearing.  However, for discussion purposes, we assume that Seui and Pua`aelo would oppose the motion to dismiss, and that all of these parties would oppose the motion to file the survey for title registration.

 

Motion to Dismiss

 

1.  LT No. 1-94

 

Conveyance of 2.18 acres of land in Malaeimi, American Samoa, by Puailoa, as grantor, to Afoafouvale, as grantee, is at issue in Lt No. 1-94.  The deed, dated December 7, 1990, was signed by Puailoa on December 6, 1990.  The Territorial Registrar, as the secretary to the Land Commission, received the deed for document registration on December 12, 1990.  On December 26, 1990, the Registrar posted the Commission’s notice of the transaction in Malaeimi and at the courthouse, establishing the period from December 26 to February 25, 1991 for filing written objections to the transaction.   Seui,Ala`iasa and Moea`i filed objections.

 

On May 14, 1992, acting on the Attorney General’s advice, the Territorial Registrar forwarded the deed to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302.  On December 8, 1993, following five hearings, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute.  Then, on December 28, 1993, the Registrar submitted the matter to this court for judicial determination.

 

[1]  We will follow the precedent set in Moetoto v. Savusa, LT No. 21-95 (Land & Titles Div. July 21, 1995)(order remanding the matter to Land Commission) as appropriately governing this situation.  The Legislature [31 ASR2d 38] has instituted administrative procedures to validate transfers of title to communal land.  First, the Land Commission must study the proposed transaction and make recommendations to the Governor about it.  A.S.C.A. § 37.0203(a) - (c).  Next, the Governor must approve the transaction.  A.S.C.A. § 37.0204(a).  Then, and only then, the Territorial Registrar registers the transfer instrument to effect passing of title.  A.S.C.A. § 37.0210.

 

The Land Commission has not submitted recommendations to the Governor on the proposed conveyance and, until he receives those recommendations, the Governor cannot approve or deny the proposed conveyance.   Thus, a justiciable controversy is not presently before the Court, and this matter should be remanded to the Land Commission for completion of the administrative process and then dismissed.

 

2.  LT No. 39-93

 

Lease of 1.156 acres of land in Malaeimi by Puailoa, as lessor, to the Church, as lessee, is at issue in LT No. 39-93.  On April 13, 1993, the lease was signed, and the Territorial Registrar posted the Land Commission’s notice of the transaction in Malaeimi and at the courthouse, designating the period from April 13 to June 14, 1993, for filing objections to the lease.  Alai`asa, Pua`aelo, and Seui filed objections.

 

On July 2, 1993, the Territorial Registrar forwarded the lease to the Secretary of Samoan Affairs for dispute resolution proceedings.  On November 17, 1993, following three hearings, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute.  On November 29, 1993, the Registrar submitted the matter to this court for judicial determination.

 

The Governor must also approve the transaction to legalize the lease of communal land.   A.S.C.A. § § 37.0221(a) and 37.0201(a).  The Land Commission must also first review the transaction and submit recommendations to the Governor.  The Territorial Registrar registers the lease only after the Governor approves it.

 

The Land Commission has not presented recommendations to the Governor on the proposed lease in this case, and justiciable controversy is not now before the court.  Thus, this matter should also be remanded to the Land Commission for completion of the administrative process and dismissed.

 

Motion to File Survey for Title Registration

[31 ASR2d 39] On December 6, 1995, the court consolidated the five above entitled actions.  The primary purpose of the consolidation was to facilitate clarification of the issues requiring trial in these related actions.  We will conduct separate trials, if appropriate.

 

Additionally, the court set up procedures under which each party would submit to the court a survey of the land claimed as that party’s and a jointly-selected surveyor would prepare a consolidated survey showing the surveyed land claimed by each party.

 

Alai`asa has submitted a survey of his family’s claimed communal land.  He also offered this land to the Territorial Registrar, with the survey, for title registration, but upon the Attorney General’s advice, the Registrar refused to accept the survey and start the registration process.  He now seeks the Court’s order to allow immediate processing of the registration.  We will deny Alai`asa’s motion.

 

The pulenu’u of the village in which the land is located or nearest to which the land is located must certify that the pulenu’u gave public oral notice at a meeting to the village chiefs of the time and place of intended survey A.S.C.A. § 37.0102(c).  We do not have documentation of this certificate in the record before us.

 

[2]  A landowner cannot register title to land which has been previously registered.  A.S.C.A. § 37.0101(a).  Apparently, at least one of the other parties has previously registered portions of Alai`asa’s claimed land. 

 

[3]  Alai`asa correctly points out that the title registration process is the statutory means designed to ferret out competing claims, but this process is intended to apply to unregistered land.  Once title to land is registered, the prohibition against further registrations is an overriding policy favoring finality in title registrations that have been properly completed.

 

A cardinal objective of the present litigation is to identify registered and unregistered land areas at issue and to determine the rightful owners of these lands.  While more claims may surface when and if the unregistered lands are offered for registration, protection of registered lands has greater importance, until and unless we determine that the registration was improper.

 

Moreover, we ordered each party to file a survey of the party’s claimed land solely for the purpose of developing evidence depicting as specifically as possible the land areas subject to competing claims as a necessary aid to correctly resolve those claims among the present parties.  Title registration of the claimed unregistered lands at issue is inappropriate while these consolidated actions are pending. [31 ASR2d 40]

 

Order

 

1.  Proceedings on the conveyance in LT No. 1-94 and lease in Lt No. 39-93 are remanded to the Land Commission for completion of the statutorily mandated administrative process.  Both actions are dismissed without prejudice.

 

2.  Alai`asa’s motion for permission to file the survey of land claimed as his family’s communal land with the Territorial Registrar to enable processing the title registration of that land is denied.

 

It is so ordered.

 

 

 

********

 

Leiataua; American Samoa Gov’t v.,


[31 ASR2d 89]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

THERESA FANUAEA GURR LEIATAUA, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 9-94

CR No. 44-94

 

December 5, 1996

 

[1]  Harm to a bank is established if there are special circumstances demonstrating injury or risk of injury to the bank despite the obligation of a financially responsible party to the bank. 

 

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

 

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

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

Order Denying Motion for Reconsideration or New Trial:

 

This court convicted defendant Theresa Fanuaea Gurr Leiataua ("Leiataua") on two counts charging the offenses of larceny and fraud as an officer of the Development Bank of American Samoa ("DBAS"), following a lengthy bench trial which ran from May 23 to June 5, 1995. 

 

Leiataua now moves for reconsideration or new trial on the grounds that: (1) we factually erred in finding that Leiataua's loan was not properly approved by DBAS's Board of Directors; (2) approval of the loan by DBAS's President was sufficient, as a matter of law, to justify Leiataua in receiving the loan; (3) as a borrower Leiataua had the prerogative[31 ASR2d 90] to utilize loan proceeds any way she chose once the loan was disbursed; (4)  we erred in finding intent to defraud or injure DBAS, since Leiataua had the intention and capacity to repay the loan; (5) we erred in our application of United States v. Krepps, 605 F.2d 101, 104 (3d Cir 1979), because the Krepps defendant fraudulently channeled a loan through a third-party before it was disbursed to the defendant, whereas Leiataua received her loan in her own name; and (6) we erred in our interpretation of facts surrounding the disbursement of a check for $2,691.05.1

 

I.          Factual Issues

 

As to the first, fourth, and sixth errors claimed by Leiataua, we made specific factual findings regarding those issues and have been given no persuasive reason to revisit those findings.

 

II.         President's Approval

 

Leiataua complains that it was not her responsibility to see that her loan was properly authorized, and that she had a right to apply for a loan and to rely on the authorization of DBAS's President.  This argument is clearly frivolous and indeed is almost ludicrous when one considers that Leiataua was Vice President for Loans at the time her loan was obtained, and initiated disbursement of the loan to herself. 

 

Certainly the average citizen who walks into a bank is not responsible to make certain that the bank follows its own authorization procedures, but the Vice President for Loans is in a position to know the procedures and carries a fiduciary duty to see that they are followed.  Furthermore, we made specific factual findings that Leiataua never made a loan application specifically for DBAS's purchase of her Amerika Samoa Bank loan.  We would be remiss if we failed to point out, as we did in our earlier opinion, that the average citizen also could not expect to walk into DBAS and be granted a loan to refinance another debt which was in danger of acceleration and foreclosure and not guaranteed by DBAS.[31 ASR2d 91]  

 

III.       Borrower's Prerogative

 

[1]  Leiataua cites United States v. Gens, 493 F.2d 216, 222 (1st Cir. 1974) for the proposition that the borrower of funds may apply the funds to any purpose he/she sees fit, regardless of the declared purpose of the loan on the application.  Gens simply does not support that argument.  Gens concerns circumstances where a third-party is utilized to obtain credit for the real borrower.  The First Circuit held that such activities were not inherently harmful to the bank where "the named debtor is both financially capable and fully intends to repay the loan."  Idat 233 n.15.  If Gens has any application to the present case whatever, it is for its statement that harm to a bank is established if there are "special circumstances demonstrating injury or risk of injury to the bank despite the obligation of a financially responsible party to the bank."  Idat 222 n.14.  In the present case, Leiataua used her position as Vice President for Loans to bail herself out of a bad situation with another financial institution, and in so doing imposed a loan for a substantial amount of money for unauthorized purposes on the financial institution which she had a fiduciary duty to serve.

 

IV.       Application of United States v. Krepps

 

Leiataua attempts to distinguish United States v. Krepps, 605 F.2d 101, 104 (3d Cir. 1979), based on the fact that it involved circumstances where a loan officer approved loans for third parties, the proceeds of which were then transferred back to the loan officer.  The broad principle behind Krepps, however, is that a bank officer who uses deceptive tactics in a process of self-dealing (by making loans for personal private gain or other advantage) is guilty of misapplication of funds.  Id. at 106-07.

 

The motion for reconsideration or new trial is denied

.

According to our previously announced intentions, the hearing to set the beginning date of Leiataua's probation and to structure her final conditions of probation, and to consider any further motions filed properly after today, is scheduled on December 26, 1995, at 9:00 a.m.  

 

It is so ordered.

 



1  We have other grounds for denying this motion, and thus will not take up a detailed analysis of the Government's argument that the defense has waived its objections to the sufficiency of the evidence by failing to renew the motion to acquit at the conclusion of all of the evidence, or in a timely manner after the verdict, as required by T.C.R.Cr.P.  29(c).  For our purposes, it is sufficient to note that Rule 29(c) specifically applies to jury verdicts, and therefore a formal motion to acquit at the conclusion of a bench trial is unnecessary. CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE, CRIMINAL 2D § 469; Hall v. United States, 286 F.2d 676, 677 (5th Cir. 1960).  The not guilty plea itself is sufficient to ask the court for a judgment of acquittal.  Id.   

Lavata’i; American Samoa Gov’t v.,


[31 ASR2d 191]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

TAUMALATOU LAVATA’I aka MATA`UTIA, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 4-97

 

March 20, 1997

 

[1]  One of the inherent powers of a trial court is the power to dismiss a case for want of prosecution. 

 

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

 

Counsel:           For Plaintiff, Fainu`ulelei L.F. Ala`ilima-Utu

                        For Defendant, Reginald E. Gates

 

Order Dismissing Action:

 

INTRODUCTION

 

On May 9, 1991, plaintiff American Samoa Government ("ASG") filed a complaint, DCCR No. 61-91, alleging that on or about April 30, 1991, defendant Taumalatou Lavata`i ("Lavata`i") violated A.S.C.A. § 22.0223, felony driving while license is suspended, A.S.C.A. § 22.0333(a)(1), failure to use seat belt, and A.S.C.A. § 22.1001, non-registration of a motor vehicle.  On the same day, the District Court Judge issued a warrant for Lavata`i’s arrest.1  On January 6, 1997, over five and one-half[31 ASR2d 192]  years after the arrest warrant was issued, DPS officers arrested Lavata`i when he came to court for another traffic violation. 

 

Lavata`ia now moves pursuant to T.C.R.Cr.P. 48 to dismiss the action on the grounds of excessive and inexcusable delay in the prosecution of the case, allegedly in violation of his rights to due process and a speedy trial under Amendments 5 and 6 to the United States Constitution, and Article I, Sections 2 and 6 of the Revised Constitution of American Samoa.  On February 24, 1997, this court heard evidence and arguments on the motion to dismiss and took the matter under advisement.

 

DISCUSSION

 

[1]  One of the inherent powers of a trial court is the power to dismiss a case for want of prosecution.  See State Realty Co. Of Boston, Inc. v. MacNeil Bros. Co., 265 N.E.2d 85, 88-89 (Mass. 1974).  The court has discretion to dismiss cases where the plaintiff is guilty of neglect, even in the absence of statute or rule regarding diligent prosecution, because the court has a right and duty to keep the judicial system in efficent operation. Id. at 89 (citing Massachusetts Gen. Hosp. v. Grassi, 247 N.E.2d 594, 595 (1969); Bancroft v. Sawin, 9 N.E. 539, 542 (1887); 3 Blackstone, Commentaries 295-96, 451 (1768)); see also Link v. Wabash R.R., 370 U.S. 626, 630-32 (1962) (opining that “[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”). 

 

In the instant case, ASG seeks to resume prosecution over five and one half years after ASG filed a criminal complaint against Lavata`i and obtained a warrant for his arrest.  This court, by its inherent power to dismiss a case for want of prosecution, therefore exercises its discretion and refuses to devote the court’s valuable time and effort to those who have unreasonably failed, neglected, or refused to prosecute.  State Realty Co. ofBoston265 N.E.2d at 88-89.2

 

CONCLUSION

 

Accordingly, Lavata`i’s motion for dismissal is granted and the charges against him are dismissed with prejudice.

 

It is so ordered.

********

 

 



1  On or about January 15, 1994, the Department of Public Safety (“DPS”) returned Lavata`i’s license to Mata’utia, who subsequently renewed the license at the Office of Motor Vehicles.

 

2  Because the court acts pursuant to its inherent powers, the court deems it unnecessary to discuss the constitutional arguments that Lavata`i poses.

Lafi; Savane v .,


[31 ASR2d 87]

 

MAUGAOTEGA SAVANE, Plaintiff

 

v.

 

NOA LAFI, POU NOA, and the members of the NOA FAMILY of Asili, Defendants

 

High Court ofAmerican Samoa

Land and Titles Division

 

LT No. 13-96

 

November 25, 1996

 

[1]  Family members do not waive the right to claim land as individually owned land or as the family's communal land through adverse possession simply because the senior matai of the family refuses to take appropriate action to defend the family's claim to the land.  However, family members do waive the right to claim an interest in land when they fail to take appropriate action to prosecute or defend the family's claim to the land according to land registration statutes. 

 

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

 

Counsel:                       For Plaintiff, Asaua Fuimaono.

            For Defendants, Arthur Ripley, Jr.

 

Order Denying Defendants’ Motion for Reconsideration:

 

I.  Introduction

 

On July 10, 1996, plaintiff Maugaotega Savane ("Savane"), the senior matai of the Maugaotega Family of Asili, filed a complaint against Noa Lafi, Pou Noa, and the members of the Noa family of Asili (collectively, "defendants"), alleging that the defendants were unlawfully preparing a burial site on land entitled "Vaitai" that the Maugaotega family owned pursuant to the High Court's August 25, 1992, order disposing of LT No. 41-91, and pursuant to the Territorial Registrar's registration of the "Vaitai" land on April 20, 1992.

 

On July 11, 1996, the court issued a temporary restraining order against defendants and ordered them, their agents, employees, servants, relatives and attorneys to refrain from entering land "Vaitai," to refrain from doing further work on the grave, and to refrain from burying anyone therein.[31 ASR2d 88]

 

On October 16, 1996, pursuant to Rule 56(a) of the Trial Court Rules of Civil Procedure, the court granted Savane's Motion for Summary Judgment against Defendants on the grounds that there was no genuine issue of material fact as to who owned title to the disputed area of Vaitai.

 

Defendants now move for reconsideration of the court's judgment, claiming that there are still questions of fact and law as to (1) whether a family member's right to claim land, as the family's communal land through adverse possession, is waived when the senior matai of the family fails to take appropriate action to prosecute or defend the family's claim to the land; (2) whether a family member's right to claim land as his individually owned land through adverse possession is waived when the senior matai of the family fails to take appropriate action to prosecute or defend the family's claim to the land; (3) whether Mr. and/or Mrs. Sagatu Tevaseu should have been joined as necessary parties in LT No. 41-91, given that they were parties in a prior case (LT NO. 44-83) involving the same land, and that they continued to occupy and cultivate the land for a considerable period of time; and (4) whether Mr. Sagatu Tevaseu and/or Mrs. Fuliole Tevaseu own the aforementioned land by adverse possession.

 

II.  Discussion

 

[1]  Family members do not waive the right to claim land as individually owned land or as the family's communal land through adverse possession simply because the senior matai of the family refuses to take appropriate action to defend the family's claim to the land.  However, family members do waive the right to claim an interest in land when they fail to take appropriate action to prosecute or defend the family's claim to the land according to land registration statutes.  In the instant case, defendants failed to file an objection to Savane's registration of title to the land Vaitai during the 60 day notice period after Savane filed an application for registration.  See A.S.C.A. § 37.0103.  The court cannot excuse defendants' failure to adhere to the statutory requirements for asserting their interests in the land; their claims to ownership are "forever precluded."  Ifopo v. Siatu`u, 12 A.S.R.2d 24, 26 (App. Div. 1989).

 

We express no opinion as to whether the Tevaseus should have been joined in LT No. 41-91 or whether the Tevaseus could have presented, at the time of Savane's registration of the land, sufficient facts to support a claim of adverse possession of the land.  Answers to these questions in favor of defendants would not disturb our conclusion that defendants' claims to the land are precluded with the lawful registration of the land Vaitai with the Territorial Registrar.  Defendants' claims to the land are barred.[31 ASR2d 89]

 

The motion for reconsideration is, therefore, denied.

 

It is so ordered.

 

Lafi; Savane v.,


[31 ASR2d 31]

 

MAUGAOTEGA SAVANE, Plaintiff

 

v.

 

NOA LAFI, POU NOA, and the members of the NOA FAMILY of Asili, Defendants

 

High Court ofAmerican Samoa

Land and Titles Division

 

LT No. 13-96

 

October 17, 1996

 

[1]  A judgment concerning the ownership of a tract of land as between the same families is res judicata and binding on all members of the families, because Samoan communal land belongs to families rather than individuals.

 

[2]  A family's adverse possession claims, which a family failed to assert at the time of an initial dispute over title registration allegedly due to lack of actual notice, cannot disturb the initial adjudication.

 

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

 

Counsel:           For Plaintiffs, Asaua Fuimaono

                        For Defendants, Arthur Ripley

 

Opinion and Order Granting Plaintiff’s Motion for Summary Judgment: [31 ASR2d 32]

 

Introduction

 

On July 10, 1996, plaintiff Maugaotega Savane ("Maugaotega"), the senior matai of the Maugaotega family of Asili, filed a complaint and an application for a temporary restraining order against Noa Lafi, Pou Noa, and the members of the Noa family of Asili (collectively, "defendants").  Maugaotega's complaint alleged that the Maugaotega family owned land "Vaita`i," pursuant to the High Court's August 25, 1992, order disposing of Noa Lafi v. Maugaotega Miti, LT No. 41-91,1 and pursuant to the Territorial Registrar's registration of title in the Maugaotega family, on April 20, 1992.  Maugaotega's complaint further alleged that defendants were preparing a burial site on Vaita`i, and that a burial on Maugaotega family land of an individual who was not a member of the Maugaotega family would cause great and irreparable harm to Maugaotega and the Maugaotega family.  The complaint sought, among other things, the issuance of a preliminary and permanent injunction against defendants enjoining them from burying a member of their family on  Vaita`i.

 

On July 11, 1996, we issued a temporary restraining order against defendants and ordered defendants, their agents, employees, servants, relatives and attorneys to refrain from entering land Vaita`i, to refrain from doing further work on the grave, and to refrain from burying anyone therein.

 

On October 11, 1996, pursuant to T.C.R.C.P. 56(a), Maugaotega moved for summary judgment against defendants on the grounds that there is no genuine issue of material fact.

 

Defendants oppose the motion for summary judgment on the grounds that the Chiefs of the Maugaotega family agreed to permit the burial after discussions with the Noa family at the Office of Samoan Affairs, and that Mrs. Fuluiole Tevaseu, notwithstanding the plaintiff's registration of the land Vaita`i, owns the land by adverse possession through 30 years of open, continued, and hostile occupation and cultivation of the land.

 

Discussion

 

Plaintiff is entitled to summary judgment if there are no triable issues of fact.  T.C.R.C.P. 56; Etimani v. Samoa Packing, 19 A.S.R. 2d 1, 4 (1991); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 276 (1986).  In the instant case, there will be no triable issue of fact if the [31 ASR2d 33]  Maugaotega family have absolute title to the property on which the grave site is located.

 

[1-2]  The doctrine of res judicata bars a land title action when a previous final adjudication resolves a dispute between the same families and concerns the same tract of land.  Taulaga v. Patea, 4 A.S.R.2d 186, 186-87 (Land & Titles Div. 1987); see also Te`o v. Sotoa, 5 A.S.R.2d 90, 97 (Land & Titles Div. 1987); Fanene v. Fanene, 26 A.S.R.2d 8, (Land & Titles Div. 1994), aff`d 30 A.S.R.115, (App. Div. 1996).  In the instant case, this court has already resolved the dispute between the Noa and Maugaotega families with respect to Vaita`i in favor of the Maugaotega family.  The court's 1992 decision and order in LT 41-91 is binding on Ms. Fuluiole Tevaseu and all other members of the Noa family, because Samoan communal land belongs to families rather than individuals, and a judgment against the family is binding on all members of the family.  See Taulaga v. Patea, 17 A.S.R.2d 34, 36 (App. Div. 1990).  Additionally, the Noa family's adverse possession claims, which the Noa family failed to assert at the time of the initial dispute over title registration allegedly due to lack of actual notice, cannot disturb the previous adjudication.  See Faleafine v. Suapilimai, 7 A.S.R.2d 108, 114 (Land & Titles Div. 1988) (giving full effect to land registration performed in accordance with statutory procedures outlined in A.S.C.A. §§ 37.0101, et seq., even though party who might have objected did not discover the proposed registration in time to object).

 

The alleged informal agreement reached by the Maugaotega and Noa families at the Office of Samoan Affairs does not undermine the validity of this final judgment as to title.  See Te'o v. Sotoa, 5 A.S.R.2d at 98 (refusing to uphold a proffered "settlement" that, among other things, was never judicially approved and was renounced by the adverse party soon after the settlement was allegedly reached). 

 

Conclusion & Order

 

We conclude the absence of any triable issues of fact.  Defendants' counter-claim is precluded by the doctrine of res judicata and shall be dismissed.  The defendants will be compelled to excavate and remove the grave from the land Vaita`i at defendants' expense with minimal damage, disruption, and inconvenience to Maugaotega and the Maugaotega family.  The court cannot allow defendants to avoid an injunction that would otherwise issue against them simply by doing all the irreparable harm they plan to do without warning to those who will be injured.  See Talili v. Satele, 3 A.S.R.2d 36, 38 (Land & Titles Div. 1986).  Moreover, defendants should not profit through flagrant disregard for the court's process by burying a family member in violation of its temporary restraining order. [31 ASR2d 34]

 

Maugaotega is entitled to summary judgment as a matter of law.  His motion is granted.  Accordingly, the defendants, their agents, employees, servants, relatives and attorneys and all those in active concert or participation with them be and are permanently enjoined from trespassing on the Maugaotega family's land Vaita`i in Asili.  Additionally, the grave of a Noa family member on Vaita`i shall be removed at defendant's expense with minimal damage, disruption and inconvenience to the Maugaotega family.

 

It is so ordered.

 

 

 

********

 



1       In this matter, the Court dismissed the Noa family's objection to an offer by the Maugaotega family to register title to the land Vaita`i, after the Noa family failed to comply with an order of the court to plead and go forward with its objection and counterclaim.

Korea Deep Sea Fisheries Association v. Ho Pyo Hong ,


[31 ASR2d 162]

 

KOREA DEEP SEA FISHERIES ASSOCIATION, Plaintiff

 

v.

 

HO PYO HONG dba KOREANSA SHIPPING AGENCY, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 78-92

 

February 19, 1997

 

[1]  T.C.R.C.P. 18(b) authorizes the concurrent joinder of two claims.  However, Rule 18(b) is not applicable to an action, which seeks an order in aid of judgment. 

 

[2]  The court may issue a temporary restraining order if sufficient grounds for its issuance have been established by affidavit.[31 ASR 163]   

 

Before KRUSE, Chief Justice.

 

Counsel:           For Movant/Defendants, Charles V. Ala`ilima

 

Order on Motion to Join, Application in Aid of Judgment, Application for Temporary Restraining Order, and Motion for Expedited Hearing:

 

The defendants brought the above captioned motions and applications in response to the plaintiff's purported attempts to fraudulently convey is assets in an attempt to deprive the defendants of it post judgement remedies.

 

FACTS

 

Judgment for the defendants, in the amount of $1,339,344.06, was entered against plaintiff on January 9, 1997.  The defendants now assert that there have been numerous and various attempts to unlawfully transfer the assets of the plaintiff, KDSFA, to other persons and entities in order to evade the collection of the judgment.  Specifically, defendants assert that the manager of KDSFA created a new entity named South Pacific Corporation and transferred KDSFA accounts receivables and other assets to this new corporation.  South Pacific Corporation has also allegedly taken over all of the business operations of KDSFA.

 

DISCUSSION

 

I.          Joinder of Parties

 

[1 Defendants move to join the new corporation, South Pacific Corporation, and its principals in the present action pursuant to T.C.R.C.P. 18(b).  The defendants' motion to join, however, is misguided.  T.C.R.C.P. 18(b) authorizes the concurrent joinder of two claims, one of which prior to the rule normally had to be brought to judgment as a condition precedent to the prosecution of the other.  See e.g. WRIGHT, MILLER & KANE, FEDERAL PRAC. AND PROC., Civil 2d § 1591 (1990).  Thus under T.C.R.C.P. Rule 18(b), a defendant could assert one counterclaim against a plaintiff-debtor and a second counterclaim against a plaintiff-transferee of the debtor's property.  Id.  This rule is not applicable to the action at hand, which seeks an order in aid of judgment.  If defendants believe that an order in aid of judgment will not entirely resolve the issue, defendants must bring a separate fraudulent conveyance action against the new corporation and its principals.  The motion to join is denied.

 

II.         Order in Aid of Judgement and Temporary Restraining Order[31 ASR2d 164]

 

Pursuant to A.S.C.A. §§ 43.1500 and 43.1800 et seq., this court may issue an order in aid of judgment and direct issuance of such things as writs of execution and garnishment upon the assets and accounts of plaintiff KDSFA.  Defendants, however, believe that exigent circumstances exist in the present case which warrant an expedited hearing on the motion for an order in aid of judgment and a temporary restraining order.

 

[2 This court may issue a temporary restraining order if sufficient grounds for its issuance have been established by affidavit.   A.S.C.A. § 43.1304.  We find counsel of record for plaintiff, Cherie Norman, has been appraised of the application for a Temporary Restraining Order and that the affidavit of Il Won Kim states sufficient grounds for the issuance of a Temporary Restraining Order, restraining KDSFA and its agents from transferring any of the assets, accounts or business operations of KDSFA to South Pacific Corporation or any other person or entity.

 

After issuing the Temporary Restrain Order, without notice to the opposing party, a hearing on the preliminary injunction is required within 10 days.  A.S.C.A. § 43.1305.  This requirement extinguishes any need for an expedited hearing on the motion for an order in aid of judgment.  We will hear both the motion for preliminary injunction and the motion for an order in aid of judgment on at 9:00 a.m.

 

CONCLUSION

 

Defendants' motion to join in denied.  Defendants' motion for a Temporary Restraining Order is granted.  KDSFA, and its agents, including but not limited to In Sang Lee, are enjoined from transferring any of the assets, accounts or business operations of KDSFA to South Pacific Corporation or any other person or entity.  The motion for preliminary injunction and the motion for an order in aid of judgment will be heard on the day aforementioned.

 

It is so ordered.

 

 

Korea Deep Sea Fisheries Association v. Ho Pyo Hong,


[31 ASR2d 80]

 

KOREA DEEP SEA FISHERIES ASSOCIATION, Plaintiff

 

v.

 

HO PYO HONG, dba KOREANSA SHIPPING AGENCY, Defendant

________________________________

 

HO PYO HONG dba KOREANSA SHIPPING AGENCY, Cross-Plaintiff

 

v.

 

KOREA DEEP SEA FISHERIES ASSOCIATION, IN SAENG LEE, and J.C. YEOM, Cross-Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 78-92

 

November 25, 1996

 

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

 

Counsel:           For Plaintiff/Cross-defendants, Togiola T.A. Tulafono

                        For Defendant/Cross-plaintiff, Charles V. Ala`ilima

 

Opinion and Order:

 

Plaintiff, Korea Deep Sea Fisheries Association (hereafter "KDSFA"), is an entity organized under the laws of the Republic of South Korea.  KDSFA was established to secure provisions and services in overseas ports for its membership of Korean fishing boat owners.  KDSFA maintains an office in American Samoa, reporting to its main office in Pusan, Korea.

 

The local office was managed in the early 1980s by a W.K. Kim (hereafter "Kim"), assisted by defendant/counter-claimant In Saeng Lee (hereafter "Lee").  Sometime in the mid 1980s, Kim left KDSFA to become a boat owner himself, operating as the Kyung Yang Trading Company, and joined KDSFA as a boat owner member.  Since Kim's leaving, Lee became KDSFA's local manager, and he has so remained to date.[31 ASR2d 81]

 

Defendant Ho Pyo Hong (hereafter "Hong"), together with his wife Aotearoa Hong, have been, since the early 1980s, in the business of provisioning fishing boats that operate out of American Samoa.  Hong, doing business under the name "Koreansa Shipping Agency," started out selling live hogs to various fishing boats.  He later extended his services to the supply of other food and dry goods lines as well.  In time, he was invited by KDSFA's local representatives to supply KDSFA boats.

 

At the outset, of what was to become a virtually exclusive franchise, Hong quickly befriended Kim and Lee.  Initially, KDSFA advanced Hong seed money to fill its early orders given for supply.  Subsequently, as his business took a dramatic turn in growth, Hong began to supply KDSFA orders on credit.  The order and supply process between the parties was given as follows: an order for a particular vessel's needs would be given to KDSFA, who in turn would pass the order to Hong.  Hong would then proceed to fill the order by purchasing from local wholesalers and retailers.  After an order was put together, Hong would deliver the same to the vessel where its receipt would be acknowledged in writing on the original invoice by either the vessel's captain or some other ranking officer.  Hong would then tender the original invoice to KDSFA for payment and KDSFA would in turn forward Hong's billing to the vessel's owner.  The owner would then send the payment to KDSFA and the latter would then pay Hong by way of KDSFA check drawn on the local branch of the Bank of Hawaii.

 

At least that was the way the business relationship was supposed to have operated.  In practice, the relationship between the parties developed into one of credit sales on "open account" basis.  In addition, Lee after taking over management from Kim, began to periodically ask Hong for cash loans citing one emergency or another attributed to some KDSFA vessel coming into port.  Lee's loan requests became increasingly regular and some entailed substantial five figure amounts.  Hong begrudgingly gave these cash advances, no doubt very mindful of the essentially exclusive nature of his franchise with the KDSFA boat community, including his exclusive purchasing access to KDSFA boats for shark fins, a commodity with lucrative export potential.

 

Over time, the relationship became strained as Hong saw his receivables grow and as he anxiously pushed Lee for payment.  He became increasingly uncomfortable with the folding of Kim's Kyung Yang Trading Company, then one of his larger KDSFA-receivables.  There were some attempts to address and resolve the payment of Hong's receivables, including joint accounts reconciliation efforts and a failed debt-workout scheme, conceived in July 1992.  The plan contemplated both Lee and Hong's taking over the operation of Kim's failing Kyung Yang Trading Company with the aim of paying off a number of[31 ASR2d 82] KDSFA's accounts payable, including Hong's receivables which were rounded off at $700,000.  The scheme never quite got off the ground.  As a result, Hong began threatening lawsuits and the arrest of various KDSFA vessels despite Lee's placating overtures about mutual future business prospects.

 

On August 14, 1992, KDSFA took the initiative and beat Hong to the courthouse.  KDSFA filed suit alleging that Hong owed it $960,745.66; it claimed that this sum was the net result of all funds it had given Hong over the years, less the goods that the latter had supplied to KDSFA vessels.  KDSFA further sought injunctive relief to stop Hong's communicating "false," "slanderous," and "libellous" accusations concerning KDSFA and its members.  Hong, it seems, had made no secret of the fact of the deteriorating business relationship with KDSFA and his threats to have various KDSFA vessels arrested.

 

Hong immediately responded with his own counterclaim, alleging KDSFA's indebtedness to him in the amount of $2,441,917.70.

 

DISCUSSION

 

Trial herein was a drawn out tedious affair mired not only in language barriers but in a mountain of fragmentary proofs.  It became clear at trial that business records were not tailored with the needs of an auditor in mind.

 

            I.  KDSFA's Claim

 

If KDSFA's tendered proofs were the extent of its business records, it's accounting system consisted solely of the company checkbook.  This meager accounting system, however, was not kept in a fashion designed to promote clarity of transactional records.  To the contrary, the canceled checks tendered into evidence bespeak a checkbook riddled with ambiguity and vagueness.  KDSFA's checks revealed numerous "cash" payments, equivocal memo entries, and in some instances, no explanatory memo entries whatsoever.  A large number of the non-cash checks, made out indiscriminately to either "H.P. Hong" or "Koreansa Shipping Agency," merely bore the vague notation of "payment of account," without reference to any invoices, loans, vessels, or KDSFA member.  Moreover, the evidence also revealed that memo entries were not always contemporaneous with the making of the check.  A former bookkeeper of KDSFA, who now works for Hong, testified to after-the-fact false memo entries by Lee on canceled checks.  At the same time, Hong testified about Lee's recurring practice of asking him to cash large KDSFA checks that would necessarily reference him when the checks were ultimately negotiated with the bank.  This testimony is consistent[31 ASR2d 83] with the apparent deliberately equivocal manner in which Lee kept the KDSFA check book.

 

In our assessment of the proofs, appearances rather than substance, ambiguity rather than exactness, seems to be the order of KDSFA business records.  Unmistakably, Lee's accounting method was done to muddle rather than to accurately chronicle monetary transactions, an accounting manner which readily lends itself to controversy.  But when the ulterior goal is the absence of objectively verifiable record keeping, then any attempt at parol explanation of unverifiable items is immediately suspect.

 

We are satisfied that KDSFA's lawsuit lacks any basis whatsoever.  The evidence failed to even remotely substantiate KDSFA's claims of substantial cash advances to Hong.  Rather the evidence indicates the opposite. From KDSFA own proofs, consisting of Hong's supply invoice copies, apparently obtained through discovery, dated between 1984-92, together with all of KDSFA's canceled checks referable to Hong and issued between the same time period, a net figure on these written exhibits results in favor of Hong in the amount of $299,518.55.

 

KDSFA's claims, however, rest principally on parol explanation relating to such questionable items of proof as "cash" check payments and unsubstantiated claims of third-party payments.  In order to arrive at its numbers and its asserted credit standing, KDSFA essentially asks the court to resolve all ambiguity in its records, which ambiguities were intentionally created by KDSFA, against Hong.  Furthermore, we note that while KDSFA has initiated suit in its own stead, as opposed to in the name of its association members, it nonetheless finds it convenient to cite member bankruptcies in an effort to elude responsibility on some $1.3 million worth of Hong's invoices.  KDSFA's claim to having advanced $1.3 million on behalf of insolvent members not only contradicts its agency argument, but sorely stretches the limits of credulity.  There is something disingenuous about suing as a corporate entity, or as an association of boat owners for undisclosed members, and then citing agency principles in the way of defense to avoid the defendant's counterclaim.1 Just as disingenuous, is KDSFA's attempt to assert, for the[31ASR2d 84] very first time at closing arguments, the contention that all of Hong's pre-1989 accounts ought to be time barred under applicable statutes of limitations.2

 

From all outward appearances, KDSFA's filing suit amounted to nothing more than a sham preemptive strike to distract attention from Hong's threats of law suits against different KDSFA members' vessels.  KDSFA's complaint will be dismissed for want of proof, with attorney's fees, entailed in the defense of suit, awarded to Hong.

 

            II.  Hong's Claim

 

In terms of satisfactory audit trails, Hong's accounting system as reflected by his proofs tendered, was hardly any better than KDSFA's.  The accounting records tendered consisted of a note pad maintained by Hong, in Korean characters, which he claimed he had kept to detail loans that he had made over the years to KDSFA, together with a set of "red books" kept partially in English and partially in Korean and Chinese characters. Defendant also tendered into evidence a GSA issue "Record Book," maintained by Mrs. Hong to record her recollections of significant business transactions.  These records were not in themselves particularly illuminating, let alone verifiable, while some quite clearly appear to have been made comprehensible only to its author, rather than maintained for ready third-party review.

 

Although the documentary evidence alludes to a business relationship between the parties dating back to 1984, the  starting point of Hong's proofs is a claimed 1987 accounts reconciliation exercise with Lee.[31 ASR2d 85]  Hong professes that such an exercise resulted in Lee's acknowledgment of KDSFA indebtedness to him in the amount of $185,542.50, as of July 1, 1987, for food, cigarettes, pigs, and fishing gear supplied KDSFA vessels.  Hong claims that Lee had so acknowledged this indebtedness in his sales logs--one of the "red books."

 

From our perusal of his sales log, Hong's claim to an agreement from Lee is not readily apparent.  In our assessment of the proofs, Hong's pre-1987 claim is found to be insufficiently supported.  We fail to see why Hong's starting point should be a contentious reconciliation exercise, with its inherent evidentiary value problems, when hard copies of his pre-1987 invoices are available to him, together with access to KDSFA's canceled checks for the same time frame.  Hong's tact becomes evident when we consider his post-1987 claims.

 

The next premise of his claim is that his post-1987 invoices reveal goods and services supplied by him to KDSFA vessels in the  total amount of $2,519,221.64, while payments received from KDSFA and Samoa Packing total $1,906,169.69, a difference of $613,051.95.  This net figure is significantly higher than that net figure of $299,518.55, arrived at when utilizing actual supply invoices against canceled payment checks.  As with KDSFA's showing, Hong's manner of manipulating proofs in this regard, readily lends itself to appearances rather than substance.  His parol explanation also leaves much to be desired.

 

On the other hand, the evidence does suggest that a net balance is owing Hong when his invoices are tallied up against verifiable payments, while taking into account either side's admissions against interests.  These are the least questionable proofs available.

 

We accept, and so find as fact, that loans made by Hong to KDSFA total $642,000, as stipulated by KDSFA; that Hong's invoices received on record are true and correct as to the goods and cost of goods he supplied to KDSFA, save for those invoices relating to supply of non-KDSFA vessels as conceded by Hong; that the extent of payments made on account by KDSFA to Hong, are the sum of those KDSFA checks received on the record, less the total of those KDSFA "cash" checks contested by Hong as having been given to him for cashing; that third-party payments, principally by Samoa Packing, made on goods and supplies from Hong to KDSFA vessels total $211,430, as stipulated to by Hong.

 

We reject KDSFA's contention that the failed debt-workout plan of July 1992 somehow resulted in accord and satisfaction, and the discharge of KDSFA's indebtedness to Hong.  From our perusal of the relevant documents, we are unable to agree with the construction advocated by[31 ASR2d 86] KDSFA, even under the most imaginative reading.  From the documents, we conclude that the work-out plan merely offered Hong something in the way of light at the end of the tunnel--a seemingly viable payment plan.  This payment plan not only contemplated the satisfaction of Hong's receivables, but also the payment of third-party accounts, some of which were incurred with Lee's personal guarantee.  In our view of the evidence, all that this plan really achieved was the abeyance of Hong's threatened law suit(s).  Hong recanted his forbearance, however, when he discovered that certain fish proceeds that should have gone toward the payment plan, were diverted elsewhere by either Lee or Kim, or by both.

 

ORDER

 

On the foregoing, the following order will enter:  Hong shall, within 30 days of date hereof, file with the Clerk a verified accounting, consistent with our findings and conclusions herein, of monies due and payable on account, with a copy of that accounting to be served upon KDSFA.  Hong shall further submit a schedule of attorney's fees (exclusive of fees incurred in prosecuting his counterclaim) for the court's approval.

 

KDSFA shall have 20 days to file any opposition to the accounting filed by Hong, and if there be none, judgment will be entered accordingly.  Otherwise, the Clerk shall thereupon set this matter for further hearing upon KDSFA's filing of any opposition.

 

It is so ordered.

 



1  In most states the common law rule regarding suits by and against unincorporated associations has been changed and modified by statutory enactments.  American Samoa has no such enactment.  At common law, an unincorporated association could not sue or be sued under its own name.  See 6 AM. JUR 2D Associations and Clubs, § 51.  However, it has been held that an unincorporated association which held itself out as capable of contracting in the association's name, is estopped when sued on the contract, from asserting that it is incapable of being sued.  Id., see also Askew v. Joachim Memorial Home, 234 N.W.2d 226, 236 (1975) (stating that "an association doing business as a legal entity may, if the facts and circumstances warrant, be estopped to deny its own existence").  We believe that this is an appropriate approach for dealing with such circumstances.  Here KDSFA did business with Hong as a legal entity.  Moreover, KDSFA instituted the present action in its own name.  Equity mandates that KDSFA be estopped from now denying its existence as a legal entity, rather than merely an agent of its members.  We thus find that KDSFA is a legal entity, with the capacity to sue and be sued on its own behalf.

 

2  For one thing, counsel alluded to the wrong statute of limitations.  Second, the relationship that developed between the parties was on the basis of "open account," and every subsequent KDSFA partial payment "on account" acknowledged that indebtedness.  In such circumstances, the statute of limitations is tolled.  See In re Badger's Estate, 156 Kan. 734, 137 P.2d 198, 205

Ki v. Immigration Bd.,


[31 ASR2d 99]

 

TAULAGA MARESALA MASANIAI, Plaintiff

 

v.

 

PATEA S. OF VATIA, PATEA FAMILY of VATIA, and MASANIAI TEE, Defendants

 

High Court ofAmerican Samoa

Land and Titles Division

 

LT No. 02-96

 

December 11, 1996

 

[1]  Under T.C.R.C.P. 60(b), a motion for relief from judgment, must be filed within a reasonable time of judgment (and no later than one year after judgment if based on extrinsic fraud).

 

[2]  T.C.R.C.P. 60 does not preclude the application of the Statute of Limitations for attacking judgments, nor does it preclude the application of the equitable doctrine of laches.

 

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

 

Counsel:           For Plaintiff, Tautai A. F. Fa`alevao.

For Defendants, Asaua Fuimaono.

 

Opinion and Order Denying Plaintiff’s Motion for Reconsideration:

 

I.  Introduction

 

On September 2, 1966, after a trial on the merits, the High Court of American Samoa accepted the title claim of defendant Patea S. of Vatia and his family to real property entitled "Laloulu," .581 acres of land in Vatia.  The court rejected the adverse claims of Taulaga of Vatia and Masaniai of Vatia and directed the Office of the Territorial Registrar to register the land Laloulu as the communal land of the Patea family.  Patea v. Taulaga, 4 A.S.R. 739 (Trial Div. 1966).[31 ASR2d 100]

 

In 1987, and again in 1989, the High Court's Land and Titles Division rejected attempts by Taulaga Maresala Masaniai ("Taulaga II"), the son of Taulaga of Vatia, to reopen the litigation.  Taulaga v. Patea, 4 A.S.R.2d 186 (Land & Titles Div. 1987); Taulaga v. Patea, 12 A.S.R.2d 64 (Land & Titles Div. 1989).  In 1990, the High Court's Appellate Division upheld the 1989 decision of the Land and Titles Division.  Taulaga v. Patea, 17 A.S.R.2d 34 (App. Div. 1990).

 

On February 1, 1996, Taulaga II filed yet another action, styled "Action for Declaratory Judgment and Equitable Reliefs," attacking the 1966 judgment as void for lack of jurisdiction and as obtained through fraud.  In an Opinion & Order entered October 30, 1996, we granted defendants' motion for summary judgment, dismissed Taulaga II's complaint, and awarded defendants reasonable attorney's fees and litigation costs.  Taulaga II now moves for reconsideration of the court's most recent decision.

 

II.  Discussion

 

In our original opinion and order, we granted defendant's motion for summary judgment with a rather cursory opinion although satisfied that Taulaga II's claim lacked merit.  Though we find no error in that original opinion and order, we nevertheless realize that the thin opinion may lead to some confusion as to the state of the law.  Therefore, we set out here to explain in greater detail the reasoning behind the court's decision and order.

 

In his complaint, Taulaga II seeks relief from the 1966 judgment, and his claims are therefore subject to T.C.R.C.P. 60, entitled "Relief from Judgment or Order."  This is what we meant when we stated in the original opinion and order that Taulaga II was subject to Rule 60 and could not "evade Rule 60 consequences merely by omitting reference to the Rules."  We find no error in this statement.

 

T.C.R.C.P. 60 states:

 

[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void. . . .  The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) [fraud], not more than one year after the judgment, order, or proceeding was entered or taken. . . . .  This rule does not limit the power of a court to[31 ASR2d 101] entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.

 

[1]  In the present case, Taulaga II's complaint essentially alleges that the 1966 judgment is void for lack of jurisdiction, and that the 1966 judgment was obtained by extrinsic fraud, the kind of fraud that is practiced in obtaining a judgment in the course of litigation.  See 37 Am. Jur. 2d Fraud and Deceit § 5 (1968 & 1993 Supp.).  Because these causes of action fit neatly within the categories outlined in T.C.R.C.P. 60(b), we think that if Taulaga II's "Action for Declaratory Judgment and Equitable Reliefs" is a "motion" for relief from judgment, then  Taulaga II was required to file the motion "within a reasonable time" of the 1966 judgment (and no later than one year after the 1966 judgment on the claim of extrinsic fraud).

 

[2]  We also believe that if the Taulaga II's "Action for Declaratory Judgment and Equitable Reliefs" is characterized as an "independent action," and therefore not subject to the limitations period contained in T.C.R.C.P. 60(b), the action is nevertheless subject to a "reasonable time" filing requirement.  While T.C.R.C.P. 60 creates an exception for "independent actions" and precludes the application of T.C.R.C.P. 60(b)'s limitations period for "motions," it does not preclude the application of the Statute of Limitations for attacking judgments, nor does it preclude the application of the equitable doctrine of laches.  See Fed. R. Civ. P. 60, Advisory Committee Notes, 1946 Amendments (West 1996) ("Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations.").  In American Samoa, the Statute of Limitations bars actions to set aside a judgment which are not filed within 5 years of the rendition of the judgment, see A.S.C.A. § 43.0120(4), and the doctrine of laches bars an independent action for relief of judgment which has not been filed within a reasonable time.  See Lockwood v. Bowles, 46 F.R.D. 625, 629-30 (D.D.C. 1969) (barring on grounds of laches an independent action for relief of judgment due to an alleged "scheme" to defraud the court, because the party seeking relief did not exercise due diligence in presenting its claim, and the opposing party was prejudiced by the fourteen-year delay).

 

In our original opinion and order, we stated that Taulaga II's claim was subject to T.C.R.C.P. 60(b) and a "reasonable limitations period."  We did not explicitly state whether the source of this "reasonable limitations period" was the language of Rule 60(b) applicable to "motions," or the language of Rule 60(b) applicable to "independent actions."  We did not exclusively attribute the reasonable time filing requirement, because a reasonable time filing requirement can be derived from either the Rule 60(b) language limiting motions, or the laches limitations applicable to[31 ASR2d 102] independent actions.  Therefore, our original opinion and order may have been afflicted with undue brevity on the issue of T.C.R.C.P. 60(b), but it does not possess anything approaching clear error.  We properly established that Taulaga II was required to file his "Action for Declaratory Judgment and Equitable Reliefs" within a reasonable time, and we appropriately concluded that filing a request for relief of judgment three decades after the 1966 judgment was entered was not within a reasonable period of time.

 

We also wish to further develop our understanding of the broad concept of "time barred" as we used the term in our original opinion and order.  As noted earlier, the American Samoa Code Annotated bars all actions to set aside judgments when the actions are not filed within five years of the rendition of the judgment.  A.S.C.A. § 43.0120 (4).  Therefore, not only is Taulaga II's "Action for Declaratory Judgment and Equitable Reliefs" time barred because it was not filed within a reasonable time after the 1966 judgment was entered, Taulaga II's action is time barred because it was not filed within 5 years of the 1966 judgment as required by the applicable statute of limitations.

 

Finally, we would like to reiterate the public policy interest in finality of judgments to which we alluded in our original opinion and order.  In Reid v. Puailoa, 23 A.S.R.2d 101 (Land & Titles Div. 1993), this court stated that "[t]he strong interest in finality of judgments means Rule 60(b) is rarely available, even if a judgment is subsequently found to be wrong."  Id. at 104.  The importance of judgment finality is especially strong in regards to land titles, where certainty and security are essential.  Id. at 109 (citing Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987); Collins v. City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir. 1958)).  In the instant case, defendants have enjoyed title to property for 30 years following the rendition of a final judgment, and expended a great deal of time and energy defending that title; this case vividly illustrates the need for finality in land and title matters.

 

This matter should be put to rest.  However, if we accept Taulaga II's position that a judgment can be attacked by independent action "at any time," we are making vulnerable every single judgment that this court ever entered.  As long as future plaintiffs label their complaints as an "independent actions" for relief from judgment, they would be able to avoid the limitations period prescribed in T.C.R.C.P. 60, the limitations period imposed by A.S.C.A. ' 43.0120, and the limitations period imposed by the doctrine of laches.  We must reject any interpretation of T.C.R.C.P. 60 that would create such widespread insecurity.

 

We therefore affirm our holding that Taulaga II's action is time barred because Taulaga II did not file the action within a reasonable time as[31 ASR2d 103] dictated by T.C.R.C.P. 60 provisions regarding motions, or alternatively, because Taulaga II did not file the action within a reasonable time as dictated by the doctrine of laches applicable to independent actions, or alternatively, because Taulaga II did not file the action within five years of the 1966 judgment as required by A.S.C.A. ' 40.0120.  We further affirm our holding that this conclusion is consistent with and supported by the important public policy interest in judgment finality in land and titles matters.  We conclude that defendants' motion for summary judgment was properly granted.

 

III.  Order

 

For the foregoing reasons, Taulaga II's motion for reconsideration is DENIED.

 

Defendants are awarded reasonable attorney's fees and litigation costs against Taulaga II in an amount to be approved by the court upon verified application by defendants.

 

It is so ordered.

 

 

 

 

Ki; American Samoa Gov’t v.


[31 ASR2d 118]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

BYUNG SOO KI, Defendant

 

High Court ofAmerican Samoa

Trial Division

 

CR No. 47-96

 

January 10, 1997

 

[1]  The court has jurisdiction on matters of prison administration, an executive function based on our inherent jurisdiction to ensure that the court's process is properly enforced and not negated through arbitrary executive action. 

 

[2]  There is a strong presumption in favor of judicial review of agency action, which can be overcome only by clear and convincing evidence that the Fono intended to cut off review above the agency level.  The court is not convinced that the Fono intended the Territorial Correctional Facility to conduct prison affairs beyond the purview of the High Court.

 

[3]  The Commissioner of Public Safety does not possess unbridled discretion to release willy nilly persons sentenced by the court to a term of imprisonment at the Territorial Correctional Facility.  See A.S.C.A. § 46.2303(c).

 

[4]  The Department of Public Safety’s rules governing early release programs are “rules” within the meaning of the Administrative Procedures Act (“APA”), and, therefore, must comport with the rulemaking procedures of the APA. 

 

[5]  Rulemaking under the APA requires several steps, including giving meaningful advance notice of the terms or substance of the proposed action; providing interested persons reasonable opportunity to submit "data, views, and arguments, orally or in writing;" filing the rule with the Secretary of American Samoa, with the Clerk of the House of Representatives, and with the Secretary of the Senate; and making the rule available for public inspection.  A.S.C.A. §§ 4.1004, 4.1005, 4.1008, 4.1010, 4.1020(a). 

 

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.[31 ASR2d 119]

 

Counsel:                       For Plaintiff, Lionel L. Riley, Assistant Attorney General

            For Defendant, Barry I. Rose

 

Opinion and Order:

 

INTRODUCTION

 

On August 23, 1996, defendant Byung Soo Ki, ("Ki") was sentenced to a six-month term of imprisonment at the Territorial Correctional Facility, following his conviction for assault.  On September 30, 1996, the Acting Commissioner of Public Safety approved daily work release for the defendant, who left custody for the first time on October 7, 1996.  The Attorney General's office subsequently learned of the release and filed with the court on October 17, 1996, an expedited request for hearing of its motion to prohibit any further work release for the defendant.  Grounds cited for the motion was that work release was granted in violation of the Department of Public Safety "Standard Operating Procedures Manual" ("SOPM"), Section 7.1.1.6, which required that "[a] person sentenced on a misdemeanor may be eligible or weekend after serving a minimum of three months."  Affidavit of [Plaintiff's] Counsel, at 2.  We granted the expedited request and set the matter for hearing on October 21, 1996.

 

[1-2]  At the hearing, defendant sought summary dismissal of the motion, arguing that the court had no jurisdiction on matters of prison administration, an executive function.  We summarily rejected defendant's contention, noting our inherent jurisdiction to ensure that the court's process was properly enforced and not negated through arbitrary executive action.  Moreover, there is a strong presumption in favor of judicial review of agency action which can be overcome only by clear and convincing evidence that the Fono intended to cut off review above the agency level.  See National Ass'n of Postal Sup'rs v. U.S. Postal Service, 602 F.2d 420 (D.C. Cir. 1979); Jaimez-Revolla v. Bell, 598 F.2d 243 (D.C. Cir. 1979).  Defendant has not presented clear and convincing evidence that the Fono intended the Territorial Correctional Facility to conduct prison affairs beyond the purview of the High Court.

 

After hearing from counsel, we continued the matter and ordered an evidentiary hearing, requiring, among other things, the presence of the Warden of the Territorial Correctional Facility, and subsequently, the presence of the Acting Commissioner of Public Safety.1[31 ASR2d 120]

 

DISCUSSION

 

[3]  The Commissioner of Public Safety does not possess unbridled discretion to release willy nilly persons sentenced by the Court to a term of imprisonment at the Territorial Correctional Facility.  A.S.C.A. § 46.2303(c), provides:

 

A sentence of imprisonment for a misdemeanor shall be for a definite term and the Court shall commit the defendant to the territorial correctional facility . . . . for the term of his sentence until released under procedures established elsewhere by law.

 

The Fono has not passed any laws authorizing anyone to grant prisoners temporary releases under any circumstances.2 

 

[4]  Assuming, without deciding, that "law" in A.S.C.A. § 46.2303(c) encompasses rules and regulations that the Governor or his Executive Agencies promulgate pursuant to Article IV, § 6 of the Revised Constitution of American Samoa, we hold that the SOPM rules with respect to early release programs must comport with the requirements of the Administrative Procedure Act.  Unlike portions of the SOPM dealing exclusively with internal management, see Sala v. American Samoa Government, 21 A.S.R.2d 50, 58 (Tr. Div. 1992), SOPM sections dealing with work release are "rules" as the courts have construed the term: they are generally binding on the affected public, they provide specific standards to regulate future conduct, and they make a substantive impact on the rights and duties of persons subject to their limitations.  See United States v. Articles of Drug, 634 F. Supp. 435, 457 (N.D. Ill. 1985).  These SOPM rules must, therefore, be adopted according to the APA.  See also Ramer v. Saxbe, 522 F.2d 695, 697 (D.C. Cir. 1975) (recognizing that the Bureau of Prisons is an "agency" within the[31 ASR2d 121] definition of the APA, and that its rulemaking is subject to the APA's applicable requirements).3

 

[5]  Rulemaking under the APA requires several steps, including giving meaningful advance notice of the terms or substance of the proposed action; providing interested persons reasonable opportunity to submit "data, views, and arguments, orally or in writing;" filing the rule with the Secretary of American Samoa,4 with the Clerk of the House of Representatives, and with the Secretary of the Senate; and making the rule available for public inspection.  A.S.C.A. §§ 4.1004, 4.1005, 4.1008, 4.1010, 4.1020(a).  In the instant case, the Governor and the Commissioner of Public Safety failed to follow these APA procedures and failed to give the SOPM rules and regulations dealing with prisoner release programs the force and effect of law.

 

Finally, even if SOPM rules constitute "law" prescribing the procedures for prisoner release, the Acting Commissioner of Public Safety's decision in the instant case to release a prisoner who had not served a minimum of three months at the Territorial Correctional Facility, contrary to the SOPM's own Section 7.1.1.6, was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  See Pullman-Standard v. U.S., 529 F. Supp. 283 (D. Ill. 1981) (emphasis added).

 

CONCLUSION AND ORDER

 

The Acting Commissioner of Public Safety authorized work release for Defendant in violation of A.S.C.A. § 46.2303(c) because the release was[31 ASR2d 122] not according to procedures prescribed by law.  Therefore, Defendant is hereby ordered to remain in custody at the Territorial Correctional Facility for the duration of his sentence, unless and until there is a change in the law governing prisoner release.

 

The Clerk of Courts shall cause a copy of this Opinion and Order to be served not only upon the parties but also upon the Commissioner of Public Safety and the Warden of the Territorial Correctional Facilities.

 

It is so ordered.

 

 

 



1  On the day prior to the evidentiary hearing, the Acting Commissioner informed the prosecuting attorney that he had decided to revoke the defendant's work release.  The prosecuting attorney then withdrew his motion on the ground of mootness; however, the court on its own motion extended the scope of the hearing to review the Commissioner of Public of Safety's traditionally asserted release powers.

 

2  The United States Congress has enacted a statute requiring persons sentenced to a term of imprisonment to remain in the custody of the Bureau of Prisons unless released according to specific statutory guidelines, see 18 U.S.C.S. § 3621; however, unlike the Fono, Congress also expressly provided the conditions for releasing prisoners prior to the expiration of their sentence.  See 18 U.S.C.S. § 3621-22, 3624 (Lawyer’s Co-operative Publishing, 1990 & 1994 Supp.).

 

3  Rule making is an essential component of the administrative process and is often the preferred method for developing agency policies.  Trans-Pacific Freight Conference of Japan/Korea v. Federal Maritime Commission, 650 F.2d 1235, 1244-45 (D.C. Cir. 1980), cert. denied, Sea-Land Service, Inc. v. Federal Maritime Commission, 451 U.S. 984 (1980).  However, rule making must follow certain procedures if the rules are to become effective, procedures that “minimize the dangers of arbitrary and irrational decision-making.”  See State of S.C. ex rel Patrick v. Block, 558 F. Supp. 1004, 1015 (D.S.C. 1983).  “[It] is only when decisions are made in an atmosphere of public understanding, awareness, and participation that resulting rules and regulations reflect a spirit which is consistent with our form of government and thus entitled to the respect of the courts.”  Id. (citing New Jersey v. United States Envtl. Protection Agency, 626 F. 2d 1038, 1045 (D.C. Cir. 1980) and Weyerhauser Co. v. Costle, 590 F.2d 1011, 1028-29 (D.C. Cir. 1978)).

 

4  The Secretary of American Samoa is the Lieutenant Governor.  Am Samoa Rev. Const., art. IV, § 3.

Iuta; Hanipale v.,


[31 ASR2d 92]

 

FUALAAU HANIPALE, FAAMALELE TAEAOTUI, and MAGGIE PULLMAN, Plaintiff

 

v.

 

MISIAITA IUTA and OPAPO AFUALO, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 23-96

 

December 9, 1996

 

[1]  An easement by implied grant arises when the owner conveys one of two adjacent parcels of land or subdivides a single parcel, with the parties' silent intent that the grantee takes the land with all benefits that appear at the time of the transfer to belong to the land with respect to the land the grantor retains. 

 

[2]  The parties to an implied easement must manifest their intent to create an implied easement through an existing use of the retained land that is apparent, permanent, and reasonably necessary to the beneficial enjoyment of the transferred land.   The implied grant will extend to reasonably foreseeable changes in the present use.

 

[3]  To sustain an easement by implied grant, a party need only show reasonable necessity.

 

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

 

Counsel:           For Plaintiffs, Charles V. Ala`ilima

                        For Defendants, Tautai A.F. Fa`alevao

Opinion and Order:

 

Plaintiffs Faulaau Hanipale ("Hanipale"), Faanalele Taeaotui ("Taeaotui") and Maggie Pullman ("Pullman") brought this action to acquire access to their lots across land owned or formerly owned by defendants Misiaita Iuta ("Iuta") and Opapo Afualo ("Afualo").  The case was tried on October 31, 1996, with both counsel present.

 

FINDINGS OF FACT [31 ASR2d 93]

 

Iuta once owned, as individually owned land, approximately 24.995 acres in an odd-shaped tract of land called "Gaoa" in Ili`ili, American Samoa.  He split this land into four, unevenly divided parcels, numbered for our purposes: #1, 16.513 acres; #2, 3.873 acres;, #3, 3.289 acres; and #4, 1.32 acres.  The southern boundaries, moving east to west, of parcels #3, #1 and #4 front the main public road between the Pago Pago International Airport and Ili`ili.  

 

Parcel #3 includes a substantial portion of the eastern side of the entire tract.  Parcel #2 lies to the north of parcel #3, up to the northern boundary of the tract.  Parcel #1 extends the full north-south distance of the tract and covers the bulk of the western side of the tract.  Parcel #4 takes up the remainder of the western side at the southern end of the tract along the public road.

 

Afualo bought parcel #3, parcel #2, and the northern portion of parcel #1 from Iuta in the early 1970s.  Afualo then constructed a road ("the private road") from the public road across parcel #3 and into his plantation on his portion of parcel #1.  Iuta reacquired Afualo's portion of parcel #1 in the 1980s.  The documents did not contain any grant or reservation of the private road as a right of way for the benefit of the reacquired portion of parcel #1.

 

Later, in 1984, Hanipale purchased from Iuta a 0.5 acre lot in parcel #1 on the east side of the private road put in by Afualo.  In 1985, Pullman, with other members of the Penitusi family, bought two lots, totaling 0.5 acres, in parcel #1 on the west side of the private road, just south of the Hanipale lot.  Their grantor was Liaiana Salausa, a successor to Iuta.  In 1991, Taeaotui acquired from Iuta a 0.97 acre lot in parcel #1 at the north end of the private road, most of which is just north of the Hanipale lot.

 

The deeds for these three transactions also did not contain any grant or reservation of the private road as a right of way for the benefit of the lots sold.  However, abutting lot owners were able to traverse the private road to their property until Afualo permitted his sister to construct a house in the area of the northwest corner of parcel #3 several years ago.  This house, with a surrounding stone wall on three sides, obliterated a stretch of the private road and effectively blocked access by this means to the Hanipale, Pullman, Taeaotui and neighboring lots in parcel #1.

 

Owners who required regular access made temporary arrangements to reach their lands by crossing other land from another private road further west.  However, their benefactor has given notice to cease using this alternative.  Meanwhile, Afualo disclaims accountability.  He asserts that use of the private road is solely under his control, so far as Hanipale,[31ASR2d 94] Taeaotui and Pullman are concerned, and that if they are landlocked owners in parcel #1, they must look to their grantors, not him, for relief.    

 

DISCUSSION

 

Fundamentally, the decision in this case turns on whether an easement by implied grant exists under the facts.  The court has applied this common law doctrine before.  Letuli v. Lei, 22 A.S.R.2d 77, 83 (Lands & Title Div. 1992), aff'd AP No. 20-92, slip op. at 5-7 (App. Div. Nov. 15, 1994) (reversed in part on a different issue). 

 

[1-2]  An easement by implied grant arises when the owner conveys of one of two adjacent parcels of land or subdivides a single parcel, with the parties' silent intent that the grantee takes the land with all benefits that appear at the time of the transfer to belong to the land with respect to the land the grantor retains.  Letuli22 A.S.R.2d at 83.  The parties must manifest this intent through an existing use of the retained land that is apparent, permanent, and reasonably necessary to the beneficial enjoyment of the transferred land.  Id.  The implied grant will extend to reasonably foreseeable changes in the present use.  Id.

 

Iuta and Afualo have been in the business of subdividing the entire tract for several years and, through numerous inaccurate surveys, have managed to create a maze of overlapping lots.  They must be held to respect the clearly discernible consequences, including the use of the private road, of their extensive land transactions.  When Iuta reacquired the northern portion of parcel #1[31 ASR2d 95] from Afualo, the private road was in use and had already ripened into a permanent feature.  Iuta and Afualo knew their respective grantees would purchase lots along the full length of this private road and would expect access to their lots by this means.  Those grantees actually used the private road in this manner for a substantial period, until Afualo caused the blockade.

 

[3]  Afualo points to the alternative means used to access these lots after Afualo blocked the private road as negating necessity.  Strict necessity is a requisite when the created easement is a way of necessity by operation of law.  Sese v. Leota, 9 A.S.R.2d 25, 30 Lands & Titles Div. 1988), aff'd Leota v. Sese, 12 A.S.R.2d 18 (App. Div. 1989).  However, only reasonable necessity is required to sustain an easement by implied grant. Letuli22 A.S.R.2d at 83. 

 

The owner has rightfully given notice to stop using the alternative route over his land, possibly making use of the private road absolutely essential.  However, even if this owner agreed to keep the second route open, Iuta reacquired the northern portion of parcel #1, and Hanipale, Taeaotui and Pullman, as his successors, purchased lots in parcel #1 along the private road, expecting that the private road in parcel #3 would permanently continue to be their means of ingress and egress.  Their belief was distinctly sensible.  Use of the private road was, and still is, reasonably necessary for this purpose.

 

ORDER

 

1.  We declare that an easement for roadway and utility purposes, over, under and above the full length of the private road on parcel #3, was created by implied grant at the time Iuta reacquired the northern portion of parcel #1 from Afualo for the benefit of parcel #1 and the lots later subdivided along the private road in parcel #1, as the dominant tenements, and for the burden of parcel #3, as the servient tenement, and hold Afualo liable to Hanipale, Taeaotui and Pullman for their continued use of the private road in parcel #3.1

 

2.  Since a solution to the closure of the private road, without removing a portion of Afualo's sister's house and the stone wall around the house, is on the table, we will postpone fashioning a final remedy, including but not limited to injunctive relief and monetary damages, for a period of 90 days, or until March 10, 1997, to give the parties opportunity to successfully settle on this proposed or any other viable solution.  During this 90-day period, any party may move the court to conduct a further evidentiary proceeding, if necessary or appropriate, as relevant to developing the final remedy.     

 

It is so ordered.

 

 

 



1  This order obviates any need to presently rule on Iuta's liability, if any, to Hanipale, Taeaotui and Pullman in this action.

In re Estate of Shimasaki,


[31 ASR2d 195]

 

 SEQ CHAPTER \h \r 1Estate of MAKERITA SHIMASAKI

 

High Court of American Samoa

Trial Division

 

PR No. 6-93

 

March 26, 1997

 

 

[1]  Only the sa`o is authorized in matters concerning separation agreements for communal land.[31 ASR2d 196] 

 

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

 

Counsel:           For the Estate of Makerita Shimasaki and Administrator Katherine S. Fua, Albert Mailo

For Intervenor Letuugaifo Iereneo, Togiola T.A. Tulafono

For Intervenors Peneueta Tauiliili and Loi Poi, Afoa L. Su`esu`e Lutu

 

Opinion and Order:

 

The probate of the estate of decedent Makerita Shimasaki ("Makerita") was commenced on April 12, 1993.  On May 8, 1993, the court appointed Christine Shimasaki Tu`uu ("Christine") as the estate's first administrator.  On February 23, 1995, the court designated petitioner Katherine Shimasaki Fua ("Katherine") as the administrator to replace Christine, who had permanently relocated outside the Territory.

 

Christine included a certain building ("the building"), located in Leone, American Samoa, in the final accounting of the estate.  Intervenors Letuugaifo Iereneo ("Letuugaifo") and Peneueta Tauiliili ("Peneueta") claimed interests in the building.  Intervenor Loi Pio ("Loi") renounced any interest in the building but supported Peneueta's claim.  Katherine then petitioned for declaratory relief on the ownership of the building.                                

 

The court regularly heard the petition on July 1, 1996, with all counsel present, and makes the following findings of fact and conclusions of law.

 

FACTS

 

 Tui Pio ("Tui") and Saipoia Pio ("Saipoia") married in 1950.  No children were born of this marriage.  However, both had children from previous marriages, including Tui's son Loi and Saipoia's daughter Makerita and sons Letuugaifo and Mose.  Tui never legally adopted any of Saipoia's children.  Lafaele Shimasaki ("Lafaele") and Makerita married in 1965.  Peneueta is Mose's daughter.  

 

The building is located on the Save family's communal land known as "Fagasaua" in Leone, American Samoa.  Saipoia and her descendants are Save family members.  On December 9, 1960, Tui secured an agreement separating the building as the property of himself, and his "heirs, devisees, legatees, legal representatives and assigns," from the land.  Peneueta Ex. No. 1.  Tafiaina Save, the eldest son of the family sa`o ("the Save"),[31 ASR2d 197] actually signed the agreement.  The Save was not physically well then.  However, the Save directed preparation and, in his immediate presence, execution of the agreement.  The separation agreement was recorded in 1961.  Tui and his family lived and operated a store in the building.  The family experienced changes, including personal differences, as the years passed.  Tui spent considerable time outside American Samoa, for health and other purposes, and only stayed in the building occasionally.  Saipoia, Makerita, and Lafaele were the principal occupants during this period, until Saipoia died in 1983.  When Tui learned that Makerita and Lafaele rented the building to outsiders, he sued for a declaration of his title and an accounting and reimbursement of the rents.  We take judicial notice of that action, in which the court held:

 

            We declare that Tui has something similar to a life estate in the house.  He can possess it, but cannot dispose of it during his lifetime.  He must preserve it, keep it insured against storm and fire and upon his death it will pass to Makerita.  In the event the house is rented, he must share the rent with Makerita, giving her 1/3 of the receipts after payment of any expenses for protection and maintenance of the house.  The court in equity retains jurisdiction over this matter.  Either party can apply for further order to carry out the intent of the decision or in the event of change of circumstances to modify the decree.

Tui Pio v. Lafaele Shimasaki & Makerita Shimasaki, CA No. 98-83, at 3-4 (Trial Div. Jan. 30, 1984)(decree).

           

Apparently Tui then lived in the house, while Makerita and Lafaele primarily resided in Tafuna until they died.  Makerita died in 1989.  Lafaele died later.  They left seven children, including Christine and Katherine.  Tui survived Makerita and Lafaele.  However, his health began to seriously deteriorate in 1985, and he traveled to and from Hawaii for medical care.  In Hawaii, Peneueta attended to him.  She permanently returned to American Samoa in 1992 and cared for Tui until his death in 1993.  She and her family have lived in the house since her return and leased the store portion of the premises to others.  Tui orally gave the building to Peneueta and confirmed this gift in a recorded deed, executed on March 22, 1993.

 

The building is constructed near the shoreline in Leone and suffered severe damage in the hurricanes of 1966, 1989, and 1991.  Tui, with the help of others, rebuilt the structure after the first hurricane.  Peneueta and the store lessees, along with Tui, Mose and Loi, were the main contributors to reconstruction after the second and third hurricanes.[31 ASR2d 198]  Peneueta is still paying an outstanding loan for this work.  She also added a large extension to the living area of the building in 1993.

 

DISCUSSION

 

1.  Principal Basis of the Parties' Claims

 

Makerita's estate, and Katherine as the administrator, claim the estate owns the building.  This claim is based on Makerita's remainder interest recognized by the court in CA No. 98-83.  Alternatively, they contend that the estate has an interest in the building according to Makerita's share with her siblings as Saipoia's heirs.  Letuugaifo uses the same heirship theory in support of his claimed interest in the building.  Peneueta asserts ownership of the building as Tui's assignee.

 

2.  The 1960 Separation Agreement

 

Makerita's estate argues that the 1960 separation agreement fails without the Save's execution.  Statutory law authorizes the separation of structures, as personal property, from communal land by agreement.  A.S.C.A. § 37.1502.1  The law also requires the sa`o execute any separation agreement for the benefit of anyone other than himself.  A.S.C.A. § 37.1503(a).2             

 

[1]  This court has clearly enunciated that under the mandate of A.S.C.A. § 37.0102(d), only the sa`o may order a survey for title registration of communal land, and the sa`o may not delegate that authority.  Galea`i v. Ma`ae, 2 A.S.R.2d 4 (App. Div. 1984).  We would ordinarily apply the same principle to separation agreements subject to and given the wording of § 37.1503(a). 

 

However, we think that the 1960 separation agreement making the building Tui's personal property was executed in substantial compliance with the statutory requirement of the Save's signature.  Save expressly directed the preparation and immediately supervised the execution of the[31 ASR2d 199] agreement.  We believe that he had a pervasive role in the creation of the agreement.  Thus, we hold that the 1960 separation agreement was and is valid.  We hasten to add, however, that we limit this decision to the peculiar circumstances of this case.        

 

Makerita's estate, Letuugaifo, and Peneueta have rights to the building only from the legal ramifications of the 1960 separation agreement.  We next turn to these consequences.

 

3.  The Heirship Claims

 

Clearly, Tui became the sole owner of the building under the 1960 separation agreement.  The agreement is plain and unequivocal in this respect.  No one else, including Saipoia, was given any express interest in the building.  Thus, Saipoia was excluded from an interest in the building other than her undivided one-third dower interest in personal property under A.S.C.A. §§ 40.0201 and 40.0103.

 

Local case authority recognized dower as a fee simple absolute interest, at least when the dower interest takes actual effect, under prior statutory law.  Tolivale v. Ufanua, 3 A.S.R. 196, 199 (Trial Div. 1956); A.S.C. § 959 (1948).  This result is contrary to our understanding of dower as traditionally a life estate under common law.  See Homer H. Clark, Law of Domestic Relations 220 (West 1968); 25 Am. Jur. 2dDower and Curtesy §§ 1, 6 & 7 (1966).  Moreover, the former fee simple characterization of dower has not been carried over in A.S.C.A. § 40.0201.  Since Saipoia predeceased Tui and her dower interest in the building never came into being, her heirs, specifically her children, including Letuugaifo and Makerita, could not acquire any interest in the building by means of Saipoia's dower interest.

 

4.  The 1984 Judicial Decision

 

The court, in the 1984 decision, recognized the validity of the 1960 separation agreement but then, as a matter of equity, gave Tui a life estate and Makerita a remainder in the building.  However, we do not think that Makerita gained a permanent property interest, if any at all, in the building by this decision.

 

The court in 1984 probably achieved an equitable result under the then existing circumstances. The court also anticipated modification of this result due to changed circumstances and, though a questionable proposition, purportedly retained jurisdiction for this purpose. Thus, the court envisioned a future set of different property interests in the building without specifying any triggering events.  Conceptually, this expectation seems to create for Makerita a remainder either subject to complete[31 ASR2d 200] defeasance (an initially vested remainder) or subject to the uncertain condition precedent that she survives Tui (a contingent remainder).  See, B.E. Witkin, Summary of California Law, Real Property 535 (9th ed. 1987) (citing Restatement, Property § 157).  Thus, Makerita's remainder was either subject to defeasance or delayed in existence, and was defeated by her death before Tui.

 

However, we believe that the court reached an untenable result in the 1984 decision.  The decision totally contradicts the absolute property interest in the building conveyed to Tui by the 1960 separation agreement and for that reason is ineffective.  Consequently, Makerita never acquired a remainder interest in the building, and her estate cannot own the structure by this means.

 

5.  The 1993 Gift Deed

 

The provisions of the present law, A.S.C.A. §§ 37.1501-37.1506 and prior law, 27 A.S.C. §§ 401-406 (1973), A.S.C. §§ 12.0201-12.0204, and, we believe, sub-chapter 28.02 (Amendment No. 2 of 1958) of the 1949 American Samoa Code, along with the language of the 1960 separation agreement, do not prevent the owner of a separated structure from transferring his title to any other person.  In fact, the agreement expressly contemplates potential transfer to the owner's "heirs, devisees, legatees, legal representatives and assigns."  The 1993 gift deed by Tui to Peneueta meets all legal requirements to transfer Tui's title to the building.  Thus, we hold that Peneueta now owns the building.              

 

CONCLUSIONS

 

1.  The 1960 separation agreement was and is valid.  The Save transferred an absolute fee simple interest in the building to Tui by this agreement.

 

2.  Saipoia's only interest in the building was her potential dower interest if Tui predeceased her.  Since Tui survived Saipoia, her dower interest never vested, and her children and other heirs cannot succeed to any interest in the building by inheritance from Saipoia.

 

3.  The 1984 judicial decision was ineffective to give Makerita any remainder or other title interest in the building.  Makerita's estate does not have any interest in the building.

 

4.  Tui's gift of the building to Peneueta by deed in 1993 was valid.  Peneueta is the present owner of the building in fee simple. 

 

It is so ordered.[31 ASR2d  201]

 

 

********

 



1       Virtually identical provisions were in previous codes.  A.S.C. § 12.0201 (1961) and 27 A.S.C. § 402 (1973).  The 1960 separation agreement was actually based on the provisions of subchapter 28.02 (Amendment No. 2 of 1958) of the then existing 1949 American Samoa Code.  We have not located the 1949 Code with this amendment appended.  However, the language of the 1960 separation agreement clearly indicates that the applicable code provisions in 1960 comported with the present and other codes succeeding the 1958 Amendment.

 

2       See also A.S.C. § 12.0202 (1961) and 27 A.S.C. § 403(a) (1973).

Hunkin; American Samoa Gov’t Employees Federal Credit Union v.,


[31 ASR2d 183]

 

CONGREGATIONAL CHURCH OF JESUS IN SAMOA and AMERIKA SAMOA BANK, Plaintiffs

 

v.

 

AMERICAN SAMOA GOVERNMENT, MARY ROE 1-10, JOHN DOE 1-10, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 3-96

 

March 3, 1997

 

[1]  Even if lease options are not explicitly mentioned in A.S.C.A. § 37.2030, the legislature’s mandatory review of leases of government land which go beyond 10 years include leases established for nine years with successive  unilateral options for additional nine year terms.

 

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

 

Counsel:           For Plaintiff Congregational Church of Jesus in Samoa, Afoa L. Su`esu`e Lutu

For Plaintiff Amerika Samoa Bank, William H. Reardon

For Defendant American Samoa Government, Henry W. Kappel, Assistant Attorney General

 

Order Denying Motion for Reconsideration or New Trial:

 

On January 13, 1997, this court issued an opinion and order declaring the respective rights and obligations of the parties under a lease agreement and related documents, and resolving counterclaims by defendant American Samoa Government ("ASG") of alleged violations of statutes and administrative rules.  On January 22, plaintiffs Congregational[31 ASR2d 184] Church of Jesus in Samoa ("CCJS") and Amerika Samoa Bank ("ASB") filed a motion for reconsideration or a new trial, and on February 10, 1997, the court heard oral arguments from all parties on the motion.

 

DISCUSSION

 

[1]  First, the CCJS and ASB submit that the lease in the instant case is not subject to A.S.C.A. § 37.2030 because the statute does not mention “options.”  Additionally, the CCJS and ASB argue that approval by the Legislature of American Samoa is only required when the lease “by its terms” goes beyond 10 years.  We disagree.  We cannot allow form to override substance when an important issue of public policy is concerned.  If we condone the lease in this dispute, in which the lessee is given five successive unilateral “options” to continue the lease in nine year fragments, we will establish a precedent that permits leases of government land without the Legislature's review for potentially unlimited duration--as long as the parties to the lease are clever enough to utilize unilateral options.  We refuse to create such a precedent, and feel compelled to uphold the public policy concern that the Legislature established in A.S.C.A. § 37.2030.

 

Second, the CCJS and ASB claim that the court erred when it concluded that an “ineffective” lease under A.S.C.A. § 37.2030 merely created a periodic tenancy.  However, the court’s position is supported by theRESTATEMENT (SECOND) OF PROPERTY § 2.3 and case law.  See American Samoa Gov’t v. South Pacific Island Airsystems, 28 A.S.R.2d 74 at ___(7-8?) (Trial Div. 1995).  The CCJS and ASB offer no alternative definition for the term “ineffective” in § 37.2030 and cite no authority for their assertions.  We affirm our analysis in the original opinion and order.

 

Third, the CCJS and ASB declare the court erred when it concluded that the lease only required a one month notice to terminate the lease.  The CCJS and ASB insist that they were entitled to a 90 day notice under the Lessor’s Consent and Estoppel agreement, and were entitled to continue the lease as long as they corrected problems that the ASG raised.  The CCJS  and ASB overstate the protections of Section 2 of that document, which states that

 

[t]he Lessor will not terminate the Lease . . . by reason of  the bankruptcy or insolvency of the Lessee-Mortgagor or because of the occurance of any other default under the Lease, if the Mortgagee, within ninety (90) days after receipt of written notice from the Lessor of intention to terminate the Lease for any such cause, shall either remedy such default . . . . [31 ASR2d 185]

 

This provision, which deals only with termination of the lease “for cause,” assumes that the lease’s durational terms were valid; but the CCJS was merely a periodic tenant paying rent on a monthly basis.  Thus, the ASG could terminate the lease for any reason or no reason, as long as the ASG gave the CCJS one month’s notice of the termination of the tenancy.

 

Fourth, the CCJS anmd ASB contend that the court erred in concluding that they were not entitled to due process.  The CCJS and ASB do not even address the court’s conclusion that at-will relationships are not “liberty” or “property” interests within the meaning of constitutional due process.  Furthermore, the CCJS and ASB do not identify the error in the court’s conclusion that the Governor of American Samoa, not the Parks and Recreation Commission, has the authority to extend periodic tenancies.  We are not impressed with the CCJS's and ASB's argument and affirm our earlier due process analysis.

 

Fifth, the CCJS and ASB assert that the court erred in its factual findings regarding the Governor’s use of discretion and the CCJS’s actual knowledge of ASCMP rules.  After again reviewing the evidence presented at trial, we hold that our factual findings on these issues are correct.

 

Sixth, the CCJS and ASB claim that the court’s eviction order constitutes an unlawful taking of private property without just compensation.  Nothing in our original opinion and order can or should be construed to divest the CCJS of their title in the building on the land, or to grant the ASG unlimited access to the building.  The ASG has not challenged the CCJS's and ASB's representations that the CCJS owns the building.  However, since the ASG has terminated the periodic tenancy with respect to the land on which the building sits, the CCJS has no right to traverse across the ASG's land to enter the building, except to “remove machinery, equipment and personal property from the premises.”1

 

Seventh, the CCJS and ASB argue that the court failed to apply the equitable defenses of laches and unclean hands to the ASG’s counterclaims for summary eviction.  However, we found no evidence that the ASG committed fraud, deceit, misrepresentation or concealment, or that the ASG negotiated the lease in bad faith.  Cf. Hardy v. Anderson9 A.S.R.2d 79, (Trial Div. 1988).  Nor did we find evidence of “an unreasonable delay in the assertion of their rights by [the ASG] and undue prejudice to the [CCJS or ASB].”  Jennings v. Jennings, 21 A.S.R.[31 ASR2d 186] 2d 40, 49 (Land & Tit. Div. 1992) (citing Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (1988)).  Rather, the evidence indicated that both the CCJS's assignor and ASG mistakenly believed that their legal creativity could help them evade the Legislature's review of their lease.  We find this case inappropriate for the application of laches and unclean hands.  We will not, as the CCJS and ASB would have us do, continue a lease that violates important public policy on the grounds of mutual mistake.

 

CONCLUSION AND ORDER

 

Accordingly, the motion for reconsideration or a new trial is denied.  It is so ordered.

 



1 Though the question is not before us, we note that there appears no obstacle to the CCJS selling the building back to the ASG or to the next lessee of the land.

HAJ Corp.; Development Bank of American Samoa v.,


[31 ASR2d 60]

 

DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

 

v.

 

HAJ CORPORATION dba POLY IMPEX, ICEWICH FALE, and PEPACO, HANS A. LANGKILDE, W. JOSEPH LANGKILDE, SASA LANGKILDE, and PEPACO, a Sole Proprietorship, Defendants

 

__________________________

 

W. JOSEPH LANGKILDE, Cross-Claimant

[31 ASR2d 61]

v.

 

HAJ CORPORATION dba POLY IMPES, ICEWICH FALE, and PEPACO, and HANS A. LANGKILDE, Cross-Defendants

 

____________________________

 

HANS A. LANGKILDE, Counterclaimant

 

v.

 

W. JOSEPH LANGKILDE, Counterdefendant

 

High Court of American Samoa

Trial Division

 

CA No. 94-94

 

November 6, 1996

 

[1]  A guaranty is a contract and the rights of guarantors must be determined from the language of the contract.

 

[2]  A guaranty of payment, unlike a guaranty of collection, is an absolute promise by the guarantor to pay the debt, when due, if it is not paid by the borrower.  Upon the borrower's default, the guaranty of payment enables the creditor to collect debt from the guarantor without seeking collection from the borrower.

 

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

 

Counsel:           For Plaintiff, Katopau T. Ainuu

For Defendants Hans A. Langkilde, Sasa Langkilde, and Pepaco, a Sole Proprietorship, Asaua Fuimaono

                        For Defendant W. Joseph Langkilde, Barry I. Rose

Opinion and Order:

Procedural History

On May 26, 1994, plaintiff Development Bank of American Samoa ("DBAS") commenced this action to recover indebtedness to DBAS from defendants HAJ Corporation ("HAJ") dba Poly Impex, Hans A.[31 ASR2d 62] Langkilde ("Hans"), and W. Joseph Langkilde ("Joseph").  Hans and Joseph separately answered the complaint, but HAJ neither answered nor otherwise appeared in response to the complaint.

 

On November 8, 1994, with leave of the court, DBAS filed the first amended complaint, adding Icewich Fale and Pepaco as fictitious names used by HAJ, and defendants Sasa Langkilde ("Sasa") and Pepaco as a sole proprietorship ("Pepaco SP").

 

On November 17, 1994, Joseph moved for default judgment against HAJ for failure to answer his cross-complaint.  We heard this motion on December 28, 1994, and awarded default judgment in Joseph's favor against HAJ on January 3, 1995.

 

On December 13, 1994, DBAS moved for default judgment against HAJ, Hans, Sasa, and Pepaco SP for failure to answer the first amended complaint.  Since Sasa and Pepaco SP answered the first amended complaint on January 26, 1995, DBAS pursued default at the hearing on January 27, 1995, on the motion only against HAJ and Hans.

 

On March 9, 1995, we awarded DBAS default judgment against HAJ in the principal amount of $68,497.87, plus prejudgment interest, costs, and reasonable attorney's fees.  However, at the January 27 hearing, we declined to default Hans, since his answer to the initial complaint was fundamentally responsive to the amended complaint, but directed him to answer the amended complaint.  When he failed to answer by March 9, we gave him a deadline of March 17, 1995.  Hans answered the amended complaint on March 16, 1995.

 

On September 29, 1995, we separated trial of the cross-complaint and counterclaim, pursuant to the parties' stipulation.  The original action on the amended complaint then came regularly for trial on February 8 and 9, 1996, to determine Hans' and Joseph's individual liability for HAJ's adjudicated indebtedness.  Hans, Joseph, and all counsel were present.  We took the matter under advisement, considered the evidence, and make the following findings, conclusions, and order.

 

Findings of Fact

The parties stipulated that although HAJ once did business as Pepaco, Sasa took over this particular activity, but it no longer operates.  DBAS also indicated that it would not presently proceed with its claim against Sasa and Pepaco SP.  Hence, given HAJ's default on DBAS's claim, we must only determine the responsibility, if any, that Hans or Joseph has, or both of them have, in their individual capacities, for HAJ's debt to DBAS. Essentially, the issues turn on the interpretation and application[31 ASR2d 63] of the documents signed by DBAS, Hans, and Joseph during the course and conduct of HAJ's business operations.

 

1.  HAJ's corporate history.

 

First, however, we will briefly review HAJ's history.  We take judicial notice of RFD Produce v. HAJ, CA No. 116-93 at 2-3 (Trial Div. July 28, 1995)(order permanently staying execution against vehicle) for some facts relevant to this purpose.

 

HAJ was incorporated in American Samoa in 1983.  It has engaged in several businesses under the fictitious names Poly Impex, Icewich Fale, and Pepaco.  As Poly Impex, HAJ principally imported and wholesaled food and related items.  As Icewich Fale, it operated a restaurant.  As Pepaco, it primarily imported and wholesaled paper products.

 

The incorporators, shareholders, and officers were three brothers, Hans as president, Joseph as vice president, and J. Anthony Langkilde ("Anthony") as secretary/treasurer.  Until 1988, all three brothers were involved in daily corporate concerns.  The shares were informally divided, without written agreement or stock certificates, among Hans, 40%, Joseph, 20%, and Anthony, 40%.  In 1988, Anthony left HAJ and, by written agreement signed by him and Hans, surrendered his ownership interest in exchange for extinguishment of his indebtedness to the corporation.  Hans and Joseph retained their respective officer roles and remained active in daily corporate affairs.  The shares, again informally, were equally redivided between Hans and Joseph.

 

In 1990, however, Hans became the general manager of the Rainmaker Hotel.  Although Hans remained a principal, Joseph carried on most corporate matters until 1993.  However, by letter to Hans, dated February 9, 1993, Joseph resigned from HAJ.  Hans tried to continue HAJ's businesses, but eventually the businesses lost their vitality and are now defunct.

 

2.  HAJ dealings with DBAS.

 

On December 19, 1990, pursuant to a corporate borrowing resolution, HAJ, represented by Hans and Joseph, obtained a revolving line of credit with DBAS up to $100,000 exclusively for inventory purchase.  A promissory note was to evidence each advance of funds, due and payable in full in 90 days, plus interest, computed daily on the unpaid balance at the lesser of the maximum lawful rate or the prime rate for commercial loans published in the Wall Street Journal plus 3%.  All advances and accrued interest were to be paid in full when the agreement terminated on November 15, 1991.[31 ASR2d 64]

 

On December 19, 1990, HAJ, by Hans and Joseph, also signed a security agreement with DBAS, pledging equipment, inventory, and receivables as collateral for the line of credit.  Additionally, Hans and Joseph signed a continuing guaranty, under which they were personally responsible for HAJ's timely payments of the line of credit and future debts, and jointly and severally liable for all or any part of these debts in the event of HAJ's default.  DBAS agreed to extend or continue the line of credit and other financial arrangements to HAJ in consideration of receiving the guaranty.

 

The court has not been provided with any detailed history of HAJ's dealings with DBAS from December 19, 1990, until February 19, 1992, when Joseph wrote on HAJ's behalf to DBAS, and February 24, 1992, when DBAS responded.  DBAS then granted HAJ's request to extend the period of HAJ's repayment of the outstanding line of credit obligation and to permit further line of credit advances, apparently for 60 days, while DBAS was considering renewal of the line of credit.

 

The next activity in evidence was HAJ's request, by Joseph, to DBAS on May 18, 1992, to "roll over" $13,500, presumably HAJ's then current debt to DBAS.  Then three line of credit draws followed, represented by HAJ's promissory notes, two dated September 1, 1992, in the principal amounts of $30,517 and $12,185.72, and the third dated September 28, 1992, in the principal amount of $25,699.15.  Each note included interest at 12%, pursuant to the prime rate plus 3% formula, and was payable in full approximately 90 days later.  Hans and Joseph signed the three notes on HAJ's behalf.  They also signed the second note in their individual capacities.  It is the sum of these notes, $68,399.87, which DBAS claimed in this action as the principal amount owed to it.

 

In January 1993, and a second time in early February 1993, DBAS notified HAJ, through Joseph, of the nonpayment of the notes for these three advances.  Then, on February 9, 1993, Joseph resigned from HAJ.  His resignation letter also unilaterally disclaimed "any debts incurred by HAJ Corp."  He simultaneously notified DBAS, Amerika Samoa Bank, and the Bank of Hawaii of his resignation and liability disclaimer.  Hans, by letter actually dated February 8, 1993, also advised DBAS of the resignation and Joseph's withdrawn authority to act on HAJ's behalf.

 

On March 5, 1993, Hans again wrote to DBAS and, expressing reliance on the line of credit and confidence in HAJ's business future, asked to work out a way to continue the line of credit  arrangement.  On May 20, DBAS responded by entering a new line of credit agreement, substantially the same as the 1990 agreement, but signed only by Hans[31 ASR2d 65] on HAJ's behalf.  Although April 6, 1993 is the stipulated termination date, April 6, 1994 actually defined the intended life of this agreement.

 

On May 26, 1994, when the three notes remained unpaid, DBAS commenced this action.  On August 16, 1994, Joseph's counsel advised DBAS that it could obtain a prejudgment attachment on HAJ's assets without posting a bond and that Joseph was prepared to provide a list of those assets.  Joseph did prepare a list of HAJ's assets as of January 23, 1993.  A writ of attachment was issued on January 13, 1995, but no property was successfully levied.

 

The line of credit agreement, continuing guaranty, and three promissory notes entitle DBAS to recover attorney's fees and collection costs in the event of default.

 

Discussion

The central issue in this case is the validity and scope of the continuing guaranty signed by Hans and Joseph.  Neither has asserted that the guaranty was invalid ab initio.  Rather, both argue that the guaranty expired on November 15, 1991, with the initial line of credit agreement.  Joseph also argues that his letter of resignation effectively absolved him of any personal liability on the debts.  Finally, both Hans and Joseph assert the defenses of laches and unclean hands based upon DBAS's failure to timely obtain a writ of attachment on assets of the now defunct HAJ Corporation.

 

[1]  Firstwe note that a guaranty is a contract and the rights of guarantors must be determined from the language of the contract.  See, U.S. v. Little Joe Trawlers, Inc., 776 F.2d 1249,1254 (5th Cir. 1985).  Thus, we will look to the plain language of the continuing guaranty to determine the rights of Hans and Joseph.

 

1.         Future Liability

 

On the question of future liability, the continuing guaranty is unambiguous.  It states that the "liability under this Guaranty is continuing" and mentions nothing about the coterminality of the guaranty with the initial line of credit agreement.  Indeed, the very title of the agreement contains this indication.  We find no reason to second guess this plain and unambiguous language.

 

The guaranty does set forth ways to limit future liability, including written notice to DBAS that the guarantor is ending his future liability.  Joseph's letter of February 9, 1993, effectively limited his liability at that time. However, as the guaranty makes clear, that written notice had no[31ASR2d 66] effect on the liability that existed prior to that date.  Since the debts at issue were all incurred prior to Joseph's letter, his notice has no effect on the outcome of our decision.

 

2.         Laches and Unclean Hands

 

[2]  A guaranty of payment, unlike a guaranty of collection, is an absolute promise by the guarantor to pay the debt, when due, if it is not paid by the borrower.  Upon the borrower's default, the guaranty of payment enables the creditor to collect debt from the guarantor without seeking collection from the borrower.  See e.g. 38 AM. JUR. 2D Guaranty § 112 (1968); Phillips Factors Corp. v. Harbor Lane of Pensacola, Inc., 648 F. Supp. 1580, 1583-84 (M.D.N.C. 1986).

 

The continuing guaranty is also unambiguous on the issue of principal liability.  It sets forth the liability of Hans and Joseph as "primary, absolute and unconditional."  It is quite clearly a guaranty of payment.  Indeed the guaranty specifically waives the right of Hans and Joseph to require the DBAS to "take action against the Borrower or any other person or entity, or foreclose upon, sell or dispose of any collateral, before collecting the indebtedness from me."

 

The arguments by Hans and Joseph based on the defense of laches and unclean hands, therefore, lack merit.  If DBAS is not required to take any action to collect the debt from the borrower, it surely has no affirmative duty to timely pursue a writ of attachment on HAJ's assets.

 

Conclusion

Based on the foregoing we find Hans and Joseph personally liable to DBAS, under their continuing guaranty, in the principal amount of $68,497.87, accumulated interest as of November 4, 1994 of $13,436.54 and continuing interest of $17.12 from November 4, 1994 to the date this judgment is entered.  DBAS is also awarded collection costs and reasonable attorneys' fees, and shall submit a schedule of these costs and fees for the court's approval.

 

It is so ordered.

 

 

Fruean; American Samoa Gov’t v.


[31 ASR2d 1]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ANDREW FRUEAN and TALATINO LAVEA, Defendants

 

High Court of American Samoa

Trial Division

 

CR No. 48-96

CR No. 49-96

 

October 1, 1996

 

[1] A change of venue for a criminal prosecution is not available under the Trial Court Rules of Criminal Procedure.

 

[2] There is not undue prejudice to a criminal defendant so great as to deny a defendant a fair and impartial trial when newspaper accounts of an assault and the victim’s death were largely exculpatory and the government has stipulated that the defendants did not cause the victim’s death.

 

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

 

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

For Defendant Andrew Fruean, David Vargas, Assistant Public Defender

For Defendant Talatino Lavea, Reginald E. Gates, Public Defender

 

Order Denying Motion to Change Venue:

 

[1] Defendants’ motion to change venue presupposes that such relief is available under the Trial Court Rules of Criminal Procedure.  It is not.1

 

[2]  However, even had we adopted a rule similar to F.R.Cr.P. 21, instead of specifically omitting it, the federal rule requires a showing that there exists “so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.”  Defendants have made no such showing.  There exists no more likelihood of prejudice in this case than [31 ASR2d 2] in the number of other highly publicized cases which this court has heard.  We have every confidence that the jury will, as it has in the past, be equal to their solemn duty to render a fair and impartial verdict based solely on the evidence to be presented at the trial and the law as it pertains to this particular case as instructed by the court.

 

Moreover, the newspaper articles which the defendants complain about have, for the most part, printed exculpatory accounts as to the cause of complainant’s death.  At the same time, the government has to this day stipulated on the record that defendants did not cause the death of the complainant.  Defendants’ claims, therefore, of undue prejudice associated with newspaper accounts of alleged assault coupled with the fact of death, hardly qualify as prejudice so great as to deny the defendants a fair and impartial trial.

 

The motion for venue change is denied.

 

It is so ordered.

 

 

 

*********

 



1  The suggestion to remove this case to Hawaii is specious at best.  Even less tenable, is the idea of possibly holding court in Western Samoa.

Faresa; Eseroma v.,


[31 ASR2d 169]

 

LEASAU L.K. ESEROMA, Plaintiff

 

v.

 

PAOPAO FARESA (County Chief of Fitiuta County), LUTU FUIMAONO(President of Senate), and LEFITI FA’AFETAI, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 5-97

 

February 27, 1997

 

[1]  Though Article II, Section 22 of the Revised Constitution grants the Senate exclusive authority to determine the results of an election, the court has jurisdiction to determine whether an election occurred according to constitutional requirements.  Thus, the court examines the narrow questions of (1) whether an election of senators was held “by the county councils of the counties they are to represent,” and (2) “in accordance with Samoan custom.”[31 ASR2d 170]

 

[2]  For anyone from the Island of Ta’u to have a rightful claim to a Senate seat, the individual must be able to show that the Fitiuta, Faleasao and Ta’u County Councils--the three county councils of the counties the individual is to represent--had an opportunity to participate meaningfully in the election process. 

 

[3]  Permissible methods of electing Senators include, but are not limited to “voice vote, written ballot, computation of number of speakers for each candidate, and consensual agreement.”  Meredith v. Mola, 4 A.S.R. 773, 781 (Trial Div. 1973).  Impermissible methods of electing Senators include, but are not limited to appointment of the Senator by one powerful matai, and delegation of the decision to a subdivision of the deliberative body constitutionally assigned the responsibility of electing senators.  Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div. 1989).

 

[4]  A decision reached “in accordance with Samoan custom” need not receive unanimous support.      

 

 

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

 

Counsel:           For Plaintiff, Marshall Ashley

For Defendant Paopao Faresa, Henry W. Kappel, Assistant Attorney General 

For Defendants Lutu Fuimaono and Lefiti Fa`afetai, Arthur Ripley, Jr.

Opinion and Order:

On January 9, 1997, plaintiff Leasau L.K. Eseroma ("Lesasau") brought this action for a declaration that he is the duly elected Senator from Ta`u County and an injunction enjoining defendants Paopao Faresa ("Paopao"), Lutu Fuimaono ("Fuimaono"), and Lefiti Fa`afetai ("Lefiti") from allowing Lefiti to serve as the Senator from Ta`u County.  On February 11, 1997, this court, pursuant to T.C.R.C.P. 65(a)(2), consolidated the hearing on Leasau's application for a temporary injunction with the trial on the merits.  The trial began on February 12 and was completed on February 18, 1997.

 

FINDINGS OF FACT

 

Ta`u County is located on the Island of Ta`u, American Samoa.  The County encompasses the Village of Ta`u, which in turn includes the Villages of Luma and Si`ufaga and the Settlement of Amouli.  Fitiuta[31 ASR2d 171] County and Village and Faleasao County and Village are also located on Ta`u Island. 

 

 Leasau and Lefiti are matai or "titled chiefs" from Ta`u County and Village.  On December 7, 1996, some but not all of the matai from Ta’u County and Village met in Ta`u Village to discuss the election of a senator from Ta’u County to the next Senate of the Legislature of American Samoa for the four-year term from 1997 to 2000.  Ta`u County Chief Nua To’atolu (“Nua”) called the meeting.  Lefiti and other high-ranking matai from Ta’u County and Village were not notified of the meeting, because Nua believed that the Ta’u County Council had “ousted” or “ostracized” these matai.  Those matai invited to the December 7 meeting discussed at length the matter of the Senate election and ultimately agreed to support Leasau's candidacy.

 

On December 14, 1996, the County Councils of Fitiuta, Faleasao and Ta’u Counties met in Fitiuta to discuss the election of senators to represent the three counties.  The Fitiuta to`oto`o or "Manu`a orators" presided at this meeting.  Present were Ta’u County and Village matai who had voiced support for Leasau at the December 7 meeting, as well as Lefiti and other allegedly “ousted” Ta’u County and Village matai.  At one juncture, amatai in attendance suggested that Lefiti should hold one of Senate seats.  Nua objected, claiming that the “true” Ta’u County Council had selected Leasau at the December 7 meeting, and that Leasau must therefore be elected to the Senate seat traditionally reserved for Ta’u County.  However, those present at the December 14 meeting continued to “share ideas” regarding the election of Senators.            Toward the end of the meeting,to`oto`o Laapui from Fitiuta Village and County announced his perception that the three counties had decided to send Lefiti and Moaali`itele Tu`ufuli, a matai from Fitiuta County and Village, to the Senate.  Nua, Leasau, and their supporters then left the meeting in protest over Lefiti's election.  The remaining council members discussed the matter further for a short period of time, and then Laapui reiterated his statement that the three counties favored Lefiti and Moali`itele as their Senators.  Paopao, as the Fitiuta County Chief, was directed to certify to the Senate that Lefiti and Moali`itele had been elected by the three counties of Ta’u island.  He was the only county chief who was present throughout the meeting.1

 

When Leasau later learned that Lefiti was preparing to take the Senate seat, Nua lodged objections with the Secretary of Samoan Affairs.  Later, Leasau protested to Lutu, as the President of the Senate, and themembers[31 ASR2d 172] of the Senate, with Nua and the Faleasao County Chief declaring Leasau's election as the Senator from Ta`u County.  Lutu, however, accepted Lefiti’s certification and placed Lefiti's name on the Senate roll. 

 

On the opening day of the Senate, Leasau arrived to take the Senate seat that he believed he possessed, but the Senate did not allow him to assume the seat that Lefiti occupied.  This action followed.

 

DISCUSSION

 

[1]  Article II, § 4 of the Revised Constitution of American Samoa (“Revised Constitution”) prescribes the manner in which individuals are to be elected to the Senate of the Legislature of American Samoa.  This section provides that “Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent, the number of senators from a county or counties to be as indicated: Fitiuta, Faleasao, and Ta’u, two senators; . . .”  Though Article II, Section 22 of the Revised Constitution grants the Senate exclusive authority to determine the results of an election, this court has jurisdiction to determine whether an election occurred according to constitutional requirements.  See Meredith v. Mola4 A.S.R. 773, 780 (Trial Div. 1973).  Thus, we examine the narrow questions of (1) whether an election of senators was held on December 14, 1996, “by the county councils of the counties they are to represent,” and (2) “in accordance with Samoan custom.”

 

[2]  First, the Revised Constitution states that two senators shall represent the counties of Fitiuta, Faleasao, and Ta’u.  The Revised Constitution does not allocate one senator to Ta’u County and another senator to Fitiuta and Faleasao Counties.  Thus, for anyone from the Island of Ta’u to have a rightful claim to a Senate seat, the individual must be able to show that the Fitiuta, Faleasao and Ta’u County Councils--the three “county councils of the counties [the individual is] to represent”--had an opportunity to participate meaningfully in the election process.  See Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div. 1989)(rejecting the proposition that an electoral body can delegate election of a Senator to a sub-division) Meredith, 4 A.S.R. 773, 783 (Trial Div. 1973) (requiring that matai from all villages participate in the election of a senator by the larger electoral body).  In the present case, the county councils of Fitiuta, Faleasao and Ta`u Counties met on only one occasion--on December 14, 1996, in Fitiuta, and reached a decision on the next senators to represent the three counties.2 [31 ASR2d 173]

 

[3]  Second, while the Revised Constitution does not specify those Samoan customs that govern the election of Senators, and the courts have been reticent to outline a single constitutionally permissible method for electing Senators, this Court has provided some guidelines for distinguishing methods that are consistent with Samoan custom from those methods that are inconsistent with Samoan custom.   Permissible methods of electing Senators include, but are not limited to “voice vote, written ballot, computation of number of speakers for each candidate, and consensual agreement.”  Meredith4 A.S.R. at 781.  Impermissible methods of electing Senators include, but are not limited to appointment of the Senator by one powerful mataiid., and delegation of the decision to a subdivision of the deliberative body constitutionally assigned the responsibility of electing senators.  Mauga10 A.S.R.2d at 120.       

 

[4]  The preponderance of evidence at the trial indicated that at the December 14 meeting, many matai voiced their thoughts and opinions on the issue of who should represent the three counties in the Senate.  Both parties agree that extensive “sharing of ideas” is a crucial component of the fa’a Samoa.  Furthermore, the evidence indicated that to`oto`o Laapui gleaned from the myriad of speeches the prevailing mood of the assembly, so that when he announced that the three counties had chosen Lefiti to be one of the Senators, he was expressing the collective will of the electoral body, not “inject[ing] his own selection as senator.”  Meredith4 A.S.R. at 781. The fact that certain matai from Ta’u County left the meeting after registering an objection does not alter the court’s conclusion, for a decision “in accordance with Samoan custom” need not receive unanimous support.3    

 

Therefore, we reject Leasau’s claims that the election on December 14 was unconstitutional, and instead conclude that the  election resulted[31 ASR2d 174] from a decision of the three county councils of Fitiuta, Faleasao and Ta’u Counties on the next senators to represent the three counties that was reached “in accordance with Samoan custom.”  We further hold that Paopao, as the Fitiuta County Chief, simply carried out his ministerial duty of certifying the results of that election.  Art. II, § 4 Rev. Const.  Only the Senate, however, can judge the results of the election.  Art. II, § 22 Rev. Const.; Meredith, 4 A.S.R. at 780.

 

In contrast, Leasau’s claim of entitlement to a Senate seat relies on the proposition that the Ta’u County Council has a “customary” right to meet independent of the Fitiuta and Faleasao County Councils and to elect a senator to represent all three counties.  First, we find as a factual matter that the Fitiuta and Faleasao County Councils never expressly or impliedly agreed to allocate indefinitely to the Ta’u County Council the authority to select one of the two senators from the Island of Ta’u.  Moreover, the history of success of candidates from Ta’u County does not translate into a “Samoan custom” permitting Ta’u County to elect one of the two senators without discussing the matter with the County Councils of Fitiuta and Faleasao Counties.  Even if the three counties of Ta’u Island had established and maintained a local practice that enabled the Ta’u County Council to elect its own senator, such a practice would be unconstitutional.  In Mauga, the court held that

 

                        the contention . . . that the customary decision-making process, as spoken of in the Constitution, includes an ability in the county to delegate completely that decision making to a mere sub-division of the county is simply untenable.  The logical consequence of such an argument is that a new custom -- nay even a bad habit or ill conceived practice -- inconsistent with the requirements of theConstitution, will have the practical ability of repealing explicit and unambiguous provisions of the Constitution.

 

Id. at 117.  We will not make a “mockery of the Constitution,” id., by suggesting that the Ta’u County Council alone can elect a senator to represent three counties, when the Revised Constitution says that senators shall be elected by the “counties they are to represent.”  Leasau’s claim to the Senate seat is, therefore, without merit.

 

CONCLUSION AND ORDER

 

After careful review of the text of the Revised Constitution of American Samoa, relevant case law, and the evidence presented at trial, we declare that on December 14, 1996, the County Councils of Fitiuta County, Faleasao County, and Ta’u County held an election of the two senators to[31 ASR2d 175] represent the three counties in accordance with Article II, § 4 of the Revised Constitution.  We further declare that Paopao properly certified the results of that election.  The Senate, however, is the exclusive and final judge of the results of that election.

 

Leasau’s prayer for declaratory and injunctive relief is denied. 

 

It is so ordered.

 

 



1  The Faleasao County Chief did not attend the meeting.  Nua left the meeting before it concluded.

 

2  Since both of the Ta’u county council factions had an opportunity to participate meaningfully in the December 14 meeting, we need not determine the membership of the “true” Ta’u County Council.  Nevertheless, we feel compelled to note that the deep rift between the respective camps of matai is a profound tragedy, and a sad commentary on the current state of the fa’a Samoa in the greater Village of Ta`u.  We concur in the opinion expressed in Meredith, that Senate election disputes generally should “be settled by the county councils according to the prevailing custom without litigation” and that “[w]hen the Court is compelled to intervene, . . . county harmony is dashed and further disunity fueled.”  4 A.S.R. at 783.

 

3  In support of our assertion that Samoan custom does not demand universal approval, we note that in Meredith, the court authorized election by “voice vote, written ballot, [and] computation of number of speakers for each candidate”--methods of decision making that require the support of more than one but less than all.  4 A.S.R. at 781.

Etimani; Alaimalo v.


[31 ASR2d 67]

 

ALAIMALO TUMUIALII for herself and the heirs of ALAIMALO FAIMAFILI, Plaintiffs

 

v.

 

DAVID and SOPO ETIMANI, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 39-95


November 18, 1996

 

[1]  The court does not rely exclusively on lease descriptions to determine the physical areas involved in a land dispute.  Judges personally conduct site visits to ascertain the area of land in dispute. 

 

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

 

Counsel:           For Plaintiffs, Pro Se

                        For Defendants, Aumoeualogo Soli

 

Decision and Order:

 

This is round two of an intra-family dispute we had earlier considered, and thought resolved, exactly four years ago in Utu v. Alaimalo, 22 A.S.R.2d 92 (Land & Titles Div. 1992) (hereafter the "1992 case").  The parties in the present case are all members of the Utu family occupying portions of Utu family land in Auasi, known as "Oloie."  Except for Utu Sinagege Morris (“Utu”), the senior matai of the Utu family who has since passed away, the Utu family members before the court today are the same individuals who were before the court in 1992.

 

The 1992 case centered on a 55-year lease of a 60' x 60' residential site (hereafter the "lease") proposed by Utu for the defendants, David and Sopo Etimani (hereafter the "Etimanis").  Plaintiff Alaimalo Tumuialii (hereafter "Alaimalo"), a lesser matai of the Utu family, had there objected to the lease claiming that the leased area encroached on her family's land.1  The 1992 court ruled in favor of the senior matai and the[31 ASR2d 68]Etimanis, finding that the proposed residential site, which was pointed out to the court during its visit to the disputed area, was the communal land of the Utu family, and that said site had previously been assigned to the Etimanis' side of the family.

 

Three years after the commencement of the 1992 case, the Etimanis started to build the residential structure on the land that Utu had offered to them for lease.  After the Etimanis began to level and excavate the site for the laying of their foundation, Alaimalo again objected and eventually filed this action seeking injunctive relief.  Alaimalo contends that the Etimanis' construction encroaches beyond the leased area onto her family's side of Oloie, and that the Etimanis have cut down coconut trees planted by her ancestors.

 

We granted a preliminary injunction, after noticing that the Etimanis' site plan received into evidence varied in description with that of the 60' x 60' area described in the lease that was the subject matter of the 1992 case.

 

At trial, Alaimalo called Lawrence French, a licensed surveyor, who affirmed the court's earlier impression that the Etimanis' construction site was not the same area of land described in the lease.  Furthermore, Mr. French testified that he had physically mapped out the area described in the lease and discovered that the leasehold description actually referred to an area which lay more toward the rear of Oloie, where building would be impractical due to a steep incline.

 

Alaimalo urges the court to strictly enforce the court’s decision in the 1992 case, that is, to confine the Etimanis' entitlement to the leasehold site as measured and outlined by Mr. French.  Moreover, Alaimalo argues, without evidentiary foundation, that since the leasehold site encompasses part of the steep incline at the rear of Oloie, any site excavation by the Etimanis to accommodate a residence would seriously undermine the physical integrity of the area and render the area prone to erosion and potential land slides.  As an afterthought, then, Alaimalo asks the court to permanently enjoin the Etimanis from excavating or leveling the actual leasehold site.

 

The Etimanis did not attempt to controvert Mr. French's findings, admitting that their original surveyor had misdescribed the area which Utu had pointed out for their new home.  They claim, however, that their foundation was actually within that physical 60' x 60' area which the senior matai Utu had shown them for their home site.[31 ASR2d 69]

 

The ultimate purpose of plaintiffs' submission is unmistakable--to exclude the Etimanis altogether from Oloie.  In other words, plaintiffs hope to achieve through a surveyor's error, a mistake beyond the control of the plaintiffs and the court, that which plaintiffs could not and did not achieve on the merits in previous litigation.  Alaimalo's argument is specious. 

 

[1]  This court does not rely exclusively on lease descriptions to determine the physical areas involved in a land dispute.  Judges personally conduct site visits to ascertain the area of land in dispute.  We are convinced that the description contained in the lease did not reflect the physical land area which Utu had designated for the Etimanis' use and to which Alaimalo had lodged a claim.  We, the panel of judges that viewed the property in 1992, are of the opinion that the 1992 case did not adjudicate a dispute over a piece of land as described in the lease; rather, we are of the opinion that the 1992 case adjudicated a dispute involving a 60' x 60' plot of land (a) that was within an area of Oloie previously assigned for the use of the Etimanis' side of the family, see Utu v. Alaimalo, 22 A.S.R.2d at 93; (b) that was situated between then existing Etimani family structures and then existing Alaimalo family structures; (c) that did not incorporate any part of the slope at the rear of Oloie; and (d) that abutted, but did not incorporate, the rather defined curtilage area incorporating graves, flower gardens, and a lawn area maintained by the Alaimalo side.  The 1992 case found that the Etimanis were entitled to a piece of land with these characteristics, and affirmatively repudiated Alaimalo's interest in a piece of land with these characteristics.

 

We are unable to glean from the evidence presented at trial the exact metes and bounds of the Etimani land entitlement, because neither the lease nor the record before us correctly reflects the Etimanis' 60' x 60' residential site.2  However, Alaimalo has no cognizable legal interest in the precise location of the Etimanis’ residential construction, except the[31ASR2d 70] interest in the curtilage.  Therefore, we enjoin permanently the Etimanis’ construction on or use of the curtilage area and order the removal of any property thereon.  But we will leave designation of the exact location of the Etimanis' 60' x 60' site, within the area outlined above, to the matai of the Utu family,3 who has the authority or pule over "the division, allocation, and reallocation of land to individual family members for their use."  Lutu v. Taesaliali`i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989).

 

It is so ordered.

 

 



1 Plaintiffs' side of the family, specifically the descendants of Alaimalo Faimafili, earlier attempted unsuccessfully in 1989 to claim Oloie for themselves to the exclusion of the rest of the Utu family.  See Sivia v. Alaimalo, 13 A.S.R.2d 95 (Land & Titles Div. 1989), appeal dismissed 17 A.S.R.2d 25 (App. Div. 1990).  The 1992 case with the Etimanis was another attempt by plaintiffs' side to reassert that claim to exclusive ownership.  Utu v. Alaimalo, 22 A.S.R.2d at 92 (Land & Titles Div. 1989).

2  The Etimanis never bothered to present at trial testimony from their initial surveyor(s) to explain the reason for the error, and to clarify the area that was supposed to have surveyed and reduced to metes and bounds for the Etimanis at the very outset.  Rather, the Etimanis were merely content to resubmit another site plan that changed the site description and contained the unenlightening notation:  "Incorrection Coordinations 1st Plot Plan."  The Etimanis did not elucidate how the data for the new site plan was obtained, nor whether the surveyor who prepared the second site description was the same "professional" who had created the 1992 site description.  Accordingly, we are without the benefit of an explanation as to the nature of the surveyor's error.

 

3  We take judicial notice of the concluded proceedings in In Re the Matai Title "Utu" of Amouli, MT No. 03-96, (Land & Titles Div. 1996) and note that a successor to the matai title Utu has been chosen.

Donovan v. Coffin,


[31 ASR2d 70]

 

JAMES DONOVAN, dba T & L PLUMBING, Plaintiff

 

v.

 

PATRICK COFFIN, individually, and dba P & K ELECTRIC, Defendant

 

High Court of American Samoa

Trial Division

 

DCA No. 26-96

 

November 20, 1996

                                                           

1]  A debt incurred as a regular part of debtor’s business activities may fall squarely within the ambit of debt incurred "for the purpose of . . carrying on or acquiring a business," A.S.C.A. § 28.1503, and as such a maximum 18% rate of interest to such loans is statutorily allowed.  However, this rate is still subject to the requirement of § 28.1501(a) that agreements for an interest rate higher than 6% be documented by a writing signed by the party to be charged. 

 

Before RICHMOND, Acting District Court Judge.

 

Counsel:           For Plaintiff, Brian M. Thompson

                        For Defendant, Charles V. Ala'ilima[31 ASR2d 71]

Order Denying Motions To Amend Complaint And For Summary Judgment, and Setting Trial Date:

 

On April 11, 1995, plaintiff James Donovan ("Donovan") filed this action to recover damages for alleged delinquent payment of rent owed by defendant Patrick Coffin ("Coffin") to Donovan for use of various equipment and machinery.  Donovan included in the damages 18% interest on the overdue accounts, as set forth in the rental invoices.

 

 On May 3, 1995, Coffin answered, disputing the amount owed and raising "a usurious rate of interest" in defense.  On August 4, 1995, Donovan moved to amend the complaint to remove the claim for an 18% interest rate but did not append the amendment.  On June 28, 1996, Donovan again moved to amend the complaint, with the amended complaint.  On July 24, 1996, Coffin objected to the amended complaint and moved for summary judgment on the grounds that the debt should be forfeited under A.S.C.A. § 28.1510.  Donovan's motion of June 14, 1996, to set a trial date is also pending.

 

DISCUSSION

 

I.  Motion to Amend Complaint

 

T.C.R.C.P. 15(a) governs the amendment of pleadings.  Donovan's motion to amend came after a responsive pleading was filed.  Thus, the court's leave to amend is required but is "freely given when justice so requires."Id.  In this instance, Donovan would have the court allow the amended complaint to avoid A.S.C.A. § 28.1510.  We discuss the applicability of that statute below.  However, Donovan's attempt to circumvent forfeiture of the debt through an amended complaint is plainly not in the interest of justice.  Moreover, we do not believe the mere amendment would bar Coffin's usurious interest defense.  The debt is allegedly based upon invoices, which on their face charge an 18% interest rate.

 

Thus, Donovan's motion to amend the complaint will be denied.

 

II.  Summary Judgment

 

Coffin's motion for summary judgment is based upon A.S.C.A. § 28.1510, which sets forth a criminal penalty, including debt forfeiture, for charges of usurious interest, and Shantilal Bros. Ltd v. Samoa Misc., Inc., 29 A.S.R.2d 210(Trial Div. 1996), which granted civil forfeiture for the same violation.  We agree with Coffin that, if shown, a charge of usurious interest in violation of A.S.C.A. § 28.1510 acts to forfeit the entire debt upon which the usurious rate was charged.  Shantilal at 212.[31 ASR2d 72] However, we do not believe that a usurious interest rate has necessarily been shown in the instant case.

 

Coffin and Donovan have apparently assumed that the 18% interest rate was usurious under A.S.C.A. § 1501(a), which sets the maximum interest rate for personal loans or obligations at 15% a year.  However, a separate statute governs loans or obligations made to businesses "for the purpose of  . . . carrying on or acquiring a business or commercial investment."  A.S.C.A. § 28.1503; see also Max Haleck, Inc. v. Trans United Marketing, Inc., AP No. 15-77, slip op. at 5 (App. Div. Dec. 2, 1977).

 

[1]  Based on the complaint, answer and oral arguments, the debt was possibly incurred as a regular part of Coffin's business activities.  As such the debt may fall squarely within the ambit of debt incurred "for the purpose of . . carrying on or acquiring a business."  A.S.C.A. § 28.1503.  A.S.C.A. § 28.1503 allows a maximum 18% rate of interest to such loans.  Thus, Donovan may not have violated § 28.1503 and be subject to the forfeiture penalty under § 28.1510.     However, we lack sufficient evidence to determine whether Coffin signed the invoices stating the 18% interest rate.  This rate is still subject to the requirement of § 28.1501(a) that agreements for an interest rate higher than 6% be documented by a writing signed by the party to be charged.  Shantilal at 215. 

 

In short, genuine issues of material fact remain unresolved.  Thus, Coffin's motion for summary judgment will also be denied.

 

ORDER

 

Donovan's motion to amend the complaint and Coffin's motion for summary judgment are both denied.  Trial is scheduled on January 3, 1997, at 9:00 a.m. at the courthouse in Pago Pago.

 

It is so ordered.

 

 

Congregational Church of Jesus in Samoa v . American Samoa Gov’t.,


[31 ASR2d 183]

 

CONGREGATIONAL CHURCH OF JESUS IN SAMOA and AMERIKA SAMOA BANK, Plaintiffs

 

v.

 

AMERICAN SAMOA GOVERNMENT, MARY ROE 1-10, JOHN DOE 1-10, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 3-96

 

March 3, 1997

 

[1]  Even if lease options are not explicitly mentioned in A.S.C.A. § 37.2030, the legislature’s mandatory review of leases of government land which go beyond 10 years include leases established for nine years with successive  unilateral options for additional nine year terms.

 

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

 

Counsel:           For Plaintiff Congregational Church of Jesus in Samoa, Afoa L. Su`esu`e Lutu

For Plaintiff Amerika Samoa Bank, William H. Reardon

For Defendant American Samoa Government, Henry W. Kappel, Assistant Attorney General

 

Order Denying Motion for Reconsideration or New Trial:

 

On January 13, 1997, this court issued an opinion and order declaring the respective rights and obligations of the parties under a lease agreement and related documents, and resolving counterclaims by defendant American Samoa Government ("ASG") of alleged violations of statutes and administrative rules.  On January 22, plaintiffs Congregational[31 ASR2d 184] Church of Jesus in Samoa ("CCJS") and Amerika Samoa Bank ("ASB") filed a motion for reconsideration or a new trial, and on February 10, 1997, the court heard oral arguments from all parties on the motion.

 

DISCUSSION

 

[1]  First, the CCJS and ASB submit that the lease in the instant case is not subject to A.S.C.A. § 37.2030 because the statute does not mention “options.”  Additionally, the CCJS and ASB argue that approval by the Legislature of American Samoa is only required when the lease “by its terms” goes beyond 10 years.  We disagree.  We cannot allow form to override substance when an important issue of public policy is concerned.  If we condone the lease in this dispute, in which the lessee is given five successive unilateral “options” to continue the lease in nine year fragments, we will establish a precedent that permits leases of government land without the Legislature's review for potentially unlimited duration--as long as the parties to the lease are clever enough to utilize unilateral options.  We refuse to create such a precedent, and feel compelled to uphold the public policy concern that the Legislature established in A.S.C.A. § 37.2030.

 

Second, the CCJS and ASB claim that the court erred when it concluded that an “ineffective” lease under A.S.C.A. § 37.2030 merely created a periodic tenancy.  However, the court’s position is supported by theRESTATEMENT (SECOND) OF PROPERTY § 2.3 and case law.  See American Samoa Gov’t v. South Pacific Island Airsystems, 28 A.S.R.2d 74 at ___(7-8?) (Trial Div. 1995).  The CCJS and ASB offer no alternative definition for the term “ineffective” in § 37.2030 and cite no authority for their assertions.  We affirm our analysis in the original opinion and order.

 

Third, the CCJS and ASB declare the court erred when it concluded that the lease only required a one month notice to terminate the lease.  The CCJS and ASB insist that they were entitled to a 90 day notice under the Lessor’s Consent and Estoppel agreement, and were entitled to continue the lease as long as they corrected problems that the ASG raised.  The CCJS  and ASB overstate the protections of Section 2 of that document, which states that

 

[t]he Lessor will not terminate the Lease . . . by reason of  the bankruptcy or insolvency of the Lessee-Mortgagor or because of the occurance of any other default under the Lease, if the Mortgagee, within ninety (90) days after receipt of written notice from the Lessor of intention to terminate the Lease for any such cause, shall either remedy such default . . . . [31 ASR2d 185]

 

This provision, which deals only with termination of the lease “for cause,” assumes that the lease’s durational terms were valid; but the CCJS was merely a periodic tenant paying rent on a monthly basis.  Thus, the ASG could terminate the lease for any reason or no reason, as long as the ASG gave the CCJS one month’s notice of the termination of the tenancy.

 

Fourth, the CCJS anmd ASB contend that the court erred in concluding that they were not entitled to due process.  The CCJS and ASB do not even address the court’s conclusion that at-will relationships are not “liberty” or “property” interests within the meaning of constitutional due process.  Furthermore, the CCJS and ASB do not identify the error in the court’s conclusion that the Governor of American Samoa, not the Parks and Recreation Commission, has the authority to extend periodic tenancies.  We are not impressed with the CCJS's and ASB's argument and affirm our earlier due process analysis.

 

Fifth, the CCJS and ASB assert that the court erred in its factual findings regarding the Governor’s use of discretion and the CCJS’s actual knowledge of ASCMP rules.  After again reviewing the evidence presented at trial, we hold that our factual findings on these issues are correct.

 

Sixth, the CCJS and ASB claim that the court’s eviction order constitutes an unlawful taking of private property without just compensation.  Nothing in our original opinion and order can or should be construed to divest the CCJS of their title in the building on the land, or to grant the ASG unlimited access to the building.  The ASG has not challenged the CCJS's and ASB's representations that the CCJS owns the building.  However, since the ASG has terminated the periodic tenancy with respect to the land on which the building sits, the CCJS has no right to traverse across the ASG's land to enter the building, except to “remove machinery, equipment and personal property from the premises.”1

 

Seventh, the CCJS and ASB argue that the court failed to apply the equitable defenses of laches and unclean hands to the ASG’s counterclaims for summary eviction.  However, we found no evidence that the ASG committed fraud, deceit, misrepresentation or concealment, or that the ASG negotiated the lease in bad faith.  Cf. Hardy v. Anderson9 A.S.R.2d 79, (Trial Div. 1988).  Nor did we find evidence of “an unreasonable delay in the assertion of their rights by [the ASG] and undue prejudice to the [CCJS or ASB].”  Jennings v. Jennings, 21 A.S.R.[31 ASR2d 186] 2d 40, 49 (Land & Tit. Div. 1992) (citing Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (1988)).  Rather, the evidence indicated that both the CCJS's assignor and ASG mistakenly believed that their legal creativity could help them evade the Legislature's review of their lease.  We find this case inappropriate for the application of laches and unclean hands.  We will not, as the CCJS and ASB would have us do, continue a lease that violates important public policy on the grounds of mutual mistake.

 

CONCLUSION AND ORDER

 

Accordingly, the motion for reconsideration or a new trial is denied.  It is so ordered.

 



1 Though the question is not before us, we note that there appears no obstacle to the CCJS selling the building back to the ASG or to the next lessee of the land.

Congregational Church of Jesus in Samoa v. American Samoa Gov’t.,


[31 ASR2d 122]

 

CONGREGATIONAL CHURCH OF JESUS IN SAMOA and AMERIKA SAMOA BANK, Plaintiffs

 

v.

 

AMERICAN SAMOA GOVERNMENT, MARY ROE 1-10, JOHN DOE 1-10, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 3-96

 

January 13, 1997

 

[1]  A lessor waives its right to object to an assignment of a lease when it accepts the assignee’s performance under the lease terms, even if the lessee acted without the lessor’s affirmative consent to the assignment. 

 

[2]  The Legislature of American Samoa must by statute be given the opportunity to disapprove any lease of the ASG's land for a period of 10 years or longer.  A.S.C.A. § 37.2030

 

[3]  The Legislature has 30 days after it receives a lease of ASG land for a period of 10 years or longer to adopt a disapproval resolution under § 37.2030.  Any lease subject to legislative review becomes effective only after this 30-day period passes without negative action. 

 

[4]  For the purposes of A.S.C.A. § 37.2030, the formal distinction between a lease “extension,” which continue an existing lease, and a lease “renewal,” which create an entirely new lease is irrelevant when a[31 ASR2d 123] lessee has unilateral power to continue the leasehold.  Unilateral options can give a lessee complete and exclusive control over the use of land, whether they are "extensions" or "renewals," for prolonged periods without legislative review, something that § 37.2030 is designed to prevent.

 

[5]  Where, in addition to entry into possession under an invalid lease, rent is paid and accepted under the lease, a periodic tenancy is created.  By the payment and acceptance of such rent, the parties have given further indication of their intention to be bound by the invalid lease, and the periodic tenancy provides a measure of security of their expectations.   A periodic tenancy was terminable at the will of either the lessor or the lessee with one month’s notice. 

 

[6]  A claim of denial of due process, either procedural or substantive, cannot be sustained, absent proof of a deprivation of a ‘liberty’ or ‘property’ interest within the meaning of the Due Process Clause of Article I, § 2 of the Revised Constitution of American Samoa, or of the Fifth or Fourteenth Amendments of the U.S. Constitution. 

 

[7]  Not every interest is protected by procedural due process guarantees.  The claim must be derived from a statute or legal rule or through a mutually explicit understanding to be an enforceable right or entitlement.

 

[8] Though  courts have eschewed rigid definitions of “liberty” and “property” interests, we believe that an interest in continuing an at-will periodic tenancy is not a constitutionally protected “liberty” or “property” interest. An at-will tenant may have a subjective need or desire for the relationship to continue but not a legitimate expectation for it to continue.    

 

[9]  One’s interest in securing a future leasehold interest is not a constitutionally protected “liberty” or “property” interest.  It stretches the concept of “liberty” and “property” too far to suggest that a person is deprived of liberty or property because an at-will periodic tenancy is not affirmatively prolonged.

 

[10]  Although the governor may voluntarily choose to grant audiences to anyone who seeks to maintain an at-will periodic tenancy or who proposes to lease government land, the due process does not mandate that the governor must conduct formal administrative hearings whenever he exercises his discretion to terminate an at-will periodic tenancy or acts on a proposal to lease government land.

 

[11]  Although the ASG’s Parks and Recreation Commission is a statutory agency of the ASG's Executive Branch, it is not a “commission[31 ASR2d 124] . . . authorized by law to make rules or to determine contested cases." A.S.C.A. § 4.1001(a).

 

[12]  This court functions to ensure that the executive branch respects a party’s substantive due process rights by determining whether decisions of the governor and his executive agencies were arbitrary and capricious, pretextual, or without a rational basis. 

 

[13]  A decision regarding the lease of government land is a matter solely within the governor’s discretion. 

 

[14]  Although land use regulations impact activities on land and the manner in which an owner or possessor deals with land, they do not divest title interests within the meaning of Article I, § 3, the Bill of Rights of the American Samoa Revised Constitution of 1967, and therefore, are not subject to the double enactment requirement of Article I, § 3.

 

[15]  Rulemaking under the Administrative Procedures Act requires several procedural steps, including: 1) the rule-making agency must give at least 20 days notice of adoption, amendment, or repeal of any non-emergency rule, A.S.C.A. §§ 4.1004 and 4.1010, which must include statutorily required information, and be mailed to interested persons or publicized in all ASG operated broadcasting media, A.S.C.A. § 4.1004; 2)  the agency must give all interested persons reasonable opportunity to submit “data, views, and arguments, orally or in writing,” either at a public or other suitable means, and consider those submissions before the rule is adopted, amended, or repealed, A.S.C.A. § 4.1005;  3) the agency must file the rule with the Secretary of American Samoa, and with the Clerk of the House of Representatives and the Secretary of the Senate of the Legislature, A.S.C.A. § 4.1008 (the rule become effective 20 days after the filing is complete, or later if required by statute or rule, A.S.C.A. § 4.1009(c)(1)); and 4) the agency must make the rule available for public inspection. A.S.C.A. § 4.1020(a).    

 

[16]  Except as to any person who has actual knowledge of a rule, no agency rule is valid or effective until the public inspection requirement, A.S.C.A. § 4.1020(a), has been met.

 

[17]  The court will accept an agency’s letter and printed rule as demonstrating substantial compliance with all applicable procedures, including a public hearing and public inspection, except the requisite filing.[31 ASR2d 125]

 

[18]  Despite procedural deficiencies, administrative rules are valid and enforceable against persons who have actual knowledge of the rules.  A.S.C.A. § 1009(b). 

 

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

 

Counsel:           For Plaintiff Congregational Church of Jesus in Samoa, Afoa L. Su`esu`e Lutu

                        For Plaintiff Amerika Samoa Bank, William H. Reardon

For Defendant American Samoa Government, Henry W. Kappel, Assistant Attorney General

Opinion and Order:

On February 2, 1996, plaintiffs Congregational Church of Jesus in Samoa ("CCJS") and Amerika Samoa Bank ("ASB") filed this action against defendant American Samoa Government ("ASG"), to have the parties' rights and obligations under a lease agreement and related documents judicially declared and to prevent the ASG from evicting the CCJS from the leased premises pendente lite. 

The court issued a temporary restraining order forestalling the ASG from immediately evicting the CCJS and stopping the CCJS's use of the leased premises.  On February 14 and 15, 1996, the court regularly heard the order to show cause on issuing a preliminary injunction to the same effect pendente lite.  All counsel were present.    

During the hearing, the court advanced and consolidated the trial on the merits with the hearing on the preliminary injunction application, in accordance with T.C.R.C.P. 65(a).  At the conclusion of the hearing, the court imposed a preliminary injunction, incorporating the terms of the temporary restraining order.  On February 26, 1996, the ASG answered the complaint and counterclaimed for alleged violations of the American Samoa Coastal Management Act, for summary eviction, and for unpaid liabilities under the lease.  The court conducted further trial proceedings on May 13 and 14, 1996, with all counsel present.

 

FINDINGS OF FACT

 

The story of the present controversy truly began in 1986 and puts at issue some 0.83 acres of land, within or immediately adjacent to Pago Pago Park, in Pago Pago, American Samoa, and the building and fixtures on the land.  Those premises, which the ASG owned in 1986, were commonly known as the "bowling alley" and had housed a privately-[31 ASR2d 126]operated bowling alley during two earlier periods.  In 1986, the ASG was searching for a third private operator.

 

On October 24, 1986, the ASG leased the land to Coral Corporation ("Coral"), an American Samoa corporation.  The ASG also sold the building and fixtures to Coral for $75,000, $50,000 paid in cash and $25,000 payable in monthly installments, evidenced by a promissory note. 

 

Coral was to operate indoor recreational facilities on the premises, featuring bowling, eating, and related activities.  Coral could, with the ASG's prior written consent, use the premises for other commercial or business purposes, not inconsistent with the ASG's policies and plans then in effect for Pago Pago Park. 

 

 

The initial lease term was nine years, from October 20, 1986, to October 19, 1995.  Coral was given options to renew the lease for four successive nine-year terms, by exercising the option in writing at least three months prior to the end of the first and each succeeding term.

 

Coral was allowed rent-free use of the land for the first six months.  It was then required to pay monthly, beginning in April 1987, $900 in rent for the land, along with $245 on the amortized $25,000 of the purchase price of the building and fixtures.  The rent was subject to periodic adjustments, pursuant to A.S.C.A. § 37.2025, fixed by renegotiation or arbitration.  Coral was also committed to, and did, invest a minimum of $575,000 in the premises during the first lease year to carry on the authorized purposes of the lease.

 

Paragraph E of clause 15 of the lease permitted Coral to assign the lease or sublet the premises, with the ASG's prior written consent, not unreasonably withheld; provided that Coral remained primarily liable for performance of the lessee's lease obligations and the premises continued to be used only for the purposes permitted by the lease, unless the ASG gave prior written consent for other uses. 

 

Coral or any successor was authorized under paragraph O of clause 15 of the lease, as amended on December 5, 1988, to use the leasehold, with the ASG's prior written consent, not unreasonably withheld, to secure loans by commercial financial institutions for purposes related to the lease purposes; provided that, in the event of a default of the loan, the[31 ASR2d 127] security agreement must require the lending institution to assume all of the lessee's lease duties, including the rental payments.1   

 

On June 29, 1987, the ASG consented to Coral's mortgage of the leasehold to the ASB.  The consent gave the ASB the right to enforce the mortgage, including upon foreclosure authority, without the ASG's further consent, to sublet or assign the leasehold, so long as the assignee assumed all of the lessee's lease obligations.  The ASG's consent to mortgage remained unchanged when paragraph O was amended.

 

Contemporaneously with the paragraph O amendment, on December 5, 1988, the ASB loaned Coral $660,000.  The loan proceeds were used primarily to acquire furniture, fixtures and equipment for the recreational facilities on the premises, with those items as the collateral for the loan.  The ASB made another smaller loan to Coral a year later.

 

The bowling alley operation failed once again, and on November 15, 1990, the ASB commenced action against Coral, CA No. 101-90,2 to collect on the loan promissory notes, foreclose on the loan security, and appoint a receiver.  The court appointed the ASB as the receiver on December 6, 1990.  The ASB carried on as the receiver until it was discharged in 1993 after the CCJS entered the picture in 1992.

 

On July 5, 1991, Coral notified the ASG's Real Property Management Board in writing of its intentions to suspend operations, except for the lounge and restaurant, and sell the existing bowling furniture, fixtures and equipment, and requested the board's approval to rent the bowling alley space for storage or warehouse purposes while searching for an experienced U.S. joint venturer.  The ASG's response, if any, is not in evidence. On June 12, 1992, the ASB wrote to the Governor, confirming the receivership and offering the ASG first opportunity before proceeding with a planned public auction of the furniture, fixtures and equipment.  Again, the ASG's response, if any, is not in evidence.  Jim Brittle, the key person in the Coral program, personally informed the Governor's Chief of Staff of developments during the 1990-1992 period.  

 

On August 18, 1992, the CCJS purchased the building and fixtures from Coral, and Coral assigned leasehold to the CCJS.  The ASB also loaned[31 ASR2d 128] the CCJS $675,000 to finance the acquisition, secured by the leasehold and the building and fixtures.3   On August 28, 1992, in CA No. 101-92, the court approved the transactions, and the ASB paid the ASG $27,150 to bring the lease rent and amortization payments to the ASG current.4  

 

From August 18, 1992 to the present time, the CCJS used the premises to conduct fund-raising bingo games in the building, renamed "Tautua Community Hall" ("hall"), and rented the hall for the same purpose, regularly to other churches but also to the ASG (for a proposed sports stadium) and occasionally for other meetings. 5   The CCJS also subleased restaurant and lounge space.  The CCJS held a "grand opening" in September 1992, which included bingo in the program.  The Governor attended this event.      

 

During this period, the CCJS made the lease rent and amortization payments to the ASG through the ASB.  The ASB did not deliver the payment checks to the ASG every month but did deliver them at frequent intervals. Apparently the CCJS and ASB thought that the payments were totally current.  However, as of October 19, 1995, when the initial term of the lease and the amortization payment period ended, $10,800 was still outstanding on the total of the rent and amortization payments due for that period.  The amount due the ASG on this combined amount was reduced to $2,550 as of December 31, 1995.  The CCJS and ASB acknowledged and are ready to pay this deficit.

 

The CCJS is current in paying the note to the ASB for the $675,000 loan.  The outstanding balance on this long-term note is approximately $600,000.

 

On August 19, 1994, the CCJS applied for land use and building permits to construct extensions on both sides of the hall.  The estimated project completion date was September 30, 1994.  However, the ASG's Development Planning Office ("DPO") did not forward the application to the Governor until February 14, 1995.  The Governor signed the declaration of ASG-owned land on February 21, 1995, and returned the application to the DPO on February 22.  Then, on March 15, 1995, the DPO advised the CCJS to apply separately to the ASG's Zoning Board for a variance.

 

 The CCJS received clear, written direction from the ASG not to begin construction until both the land use and building permits were issued.  The CCJS also understood that application for those permits would be processed under the ASG's project notification and review system ("PNRS"), which is administered by a board comprised of representatives of the ASG agencies concerned with land use development, and issued only when the application review is completed with all necessary agency approvals.  Nevertheless, the CCJS ignored this admonition and proceeded to construct the extensions.

 

The ASG caught up with this violation and discovered other violations in early 1995, and then issued formal stop orders on the partially but significantly completed work on February 16 and 22, 1995.  However, the CCJS continued the construction, at least for a time.  On February 28 and March 10, 1995, the ASG's site inspectors recorded noncompliance with a 50-foot stream setback and additional parking space requirements for commercial developments, and unauthorized drainage into the adjacent stream through a pipe extending from the hall, in addition to the lack of permits, and recommended denial of the application for the permits and removal of the extensions.  

 

On March 23, 1995, with the PNRS board's prior approval, the board's chairman, citing the lack of permits, stream setback, and stop order violations, and citing the civil penalties provision of the American Samoa Coastal Management Act of 1990 ("ASCMA"), gave the CCJS 60 days to either remove the extensions and certain solid waste (largely scrap metal) behind the hall or pay a $30,000 fine and dispose of this waste, and 15 days to notify the DPO of its decision. 

 

Apparently, representatives of the CCJS and the DPO had several discussions about the situation after the CCJS received the March 23 letter.  However, on May 23, 1995, the CCJS informed the DPO that it opted for the fine alternative, but requested abeyance pending the Governor's follow-up decision on the matter when the Governor returned from an off-island journey.[31 ASR2d 130]

 

The deadline for the CCJS's exercise of the option to renew for the second nine-year term of the lease was July 19, 1995.  The CCJS let this date pass without exercising the option.  No other significant developments occurred, at least in evidence, until September 1995.  The ASG's Parks and Recreation Commission ("PRC") became active in the matter in that month.

 

On September 12, 1995, CCJS and ASB representatives were notified by telephone of a PRC meeting to take place the following day.  The CCJS and ASB representatives conferred about the meeting and also the expiration date of the initial term of the lease.  They prepared a letter addressed to the ASG's Director of Administrative Services to exercise the option to renew the lease for the next nine-year term. 

 

The CCJS and ASB representatives attended the PRC meeting on September 13, 1995.  The PRC discussed but did not make any decisions on the CCJS situation.  After the PRC meeting, the CCJS and ASB representatives met with the Lieutenant Governor, who was then the Acting Governor.  After they explained the current lease situation, the Acting Governor signed the approval line on the letter exercising the option to renew.

 

The PRC next met on the matter on October 12, 1995.  This time the CCJS and the ASB received no notice and did not attend the meeting, but again the PRC only reviewed the CCJS situation and did not take any final action.  However, the PRC took a different tack on November 1, 1995, with a reconstituted membership.  This time the PRC voted to notify the CCJS that the lease would not be renewed.  The CCJS and ASB received no notice of the meeting and were not in attendance.

 

On November 7, 1995, the PRC forwarded this recommendation to the Governor, and the Governor in turn notified the CCJS.  Both documents gave as reasons the untimely exercise of the option to renew, disallowed use of the premises, accumulated solid waste and, in connection with the hall extensions, the lack of land use and building permits, disregard of the stop orders and violation of the mandated stream setback.  The CCJS was told to vacate the premises by January 1, 1996.  The Governor also advised the CCJS that the ASG opted not to purchase the building, equipment and other personal property as permitted under clause 13 of the lease.

 

The CCJS and ASB asked the Governor to reconsider this decision, and on November 28, 1995, the Governor directed the PRC to meet on the issue, saying he would support whatever decision the PRC reached.  On November 29, 1995, the PRC re-examined the matter and renewed the[31 ASR2d 131] decision to terminate the lease.  Once again the CCJS and ASB were not notified and did not attend this meeting.  They learned of this development when the Governor wrote to the CCJS on December 20, 1995 and repeated the ASG's position taken on November 7, 1995, except to delay the termination date to January 15, 1996.

 

The ASB, on January 11, 1996, and the CCJS, on January 16, 1996, reiterated their appeals to the Governor.  The Attorney General responded.  On January 23, 1996, he ordered both entities to surrender the premises and remove any personal property within 10 days of receipt of this notice on the grounds that the CCJS and ASB were trespassers.  The CCJS and ASB filed this action on February 2, 1996.

 

DISCUSSION

 

I.  Claims by the CCJS and ASB.

 

A.  Standing.

 

First and foremost, this court must address the issue of the CCJS's and ASB's standing to claim redress.  The ASG argues that the CCJS and ASB have no standing to assert any rights under the lease agreement ("Coral lease") and related documents because the assignment of the Coral lease from Coral to the CCJS was invalid.        

 

The ASG correctly points out that, under paragraph E of clause 15 of the Coral lease, the ASG's prior written consent is an essential prerequisite to a valid lease assignment by the lessee.  However, the ASG incorrectly claims that the Coral lease was assigned to the CCJS without such consent.

 

1.  Actual consent.

 

On June 29, 1987, the ASG consented in writing to Coral's mortgage of the leasehold to the ASB to secure loans by the ASB to Coral.  The ASG also consented to the following arrangement in that document: that “upon foreclosure thereof the Mortgagee [the ASB] may without further consent of the Lessor [the ASG] or the Lessee . . . sell and assign the leasehold estate by assignment . . . .”  See Trial Exh. D (emphasis added).

 

The ASG’s consent was not withdrawn, and was therefore still effective in 1990, when the ASB first chose to judicially foreclose the mortgage, with an interim receivership to keep the premises operational, and on August 18, 1992, when Coral assigned the leasehold to the CCJS.  The ASG had actual knowledge that the ASB was pursuing these remedies in accordance with the 1987 consent to mortgage, and the ASG failed to[31 ASR2d 132] object.6  Therefore, the Coral lease was assigned to the CCJS with the ASG’s actual consent, given on June 29, 1987.

 

2.  Waiver.

 

[1 The ASG waived its right to object to the lease assignment to the CCJS when it accepted the CCJS’s performance under the lease terms, even if Coral acted without the ASG's affirmative consent to the assignment. See Pacific Gas & Electric Co. v. Universal Electric & Gas Co., 271 P 377 (Cal. App. Ct. 1928) (citing Staples v. Somerville, 57 N.E. 380 (Mass. 1900) and Kinser v. McMurray, 181 N.W. 691 (Iowa 1921)).  The ASG recognized and dealt with the CCJS as an assignee when it accepted rent payments from the CCJS under the terms of the Coral lease.  The ASG is therefore estopped from claiming that the CCJS did not assume the rights and obligations under the Coral lease through a valid assignment.

 

Thus, alternative grounds exist for finding a valid assignment of the Coral lease to the CCJS: (a) because the ASG operatively consented to the assignment of the Coral lease to the CCJS by the 1987 consent to mortgage, or (b) because the ASG waived its right to object to the assignment when it accepted the CCJS's performance of leasehold obligations.  We therefore hold that the CCJS has standing to sue as the assignee of the lessee’s interest in the Coral lease, and the ASB has standing as the CCJS's leasehold mortgagee.  

 

B.  Declaratory relief.

 

Next, we address the CCJS's and ASB's request for declaratory relief as to the rights and duties of the parties to the Coral lease. 

 

1.  The Coral lease was never effective.

           

[2-3]  The Legislature of American Samoa must by statute be given the opportunity to disapprove any lease of the ASG's land for a period of 10 years or longer.  A.S.C.A. § 37.2030; see Tuika Tuika v. Governorof[31 ASR2d 133] American Samoa, 4 A.S.R.2d 85 (Trial Div. 1987).  The Legislature has 30 days after it receives a submitted lease to adopt a disapproval resolution under § 37.2030.  Any lease subject to legislative review becomes effective only after this 30-day period passes without negative action.  The court in Tuika stated pointedly: “The Court further declares that all leases of government land in excess of ten years signed by the governor after the filing date of this action on June 25, 1986 will not be effective unless they are submitted to the Fono for review.”  Tuika, CA 74-86 at 1 (Trial Div. Sept. 9, 1986)(order granting declaratory and injunctive relief).  

 

Legislative review provides another and broader perspective to guard against improvident long-term public land use.  The statute provides the Legislature with a check on the Governor's executive power, by giving the Legislature the opportunity to review and disapprove any lease that will give the lessee an interest in government land for more than 10 years.  Thus, the statute rationally and reasonably serves a legitimate public policy interest.

 

[4]  The Coral lease granted the lessee, Coral, or its assigns, the unilateral power to “renew” the lease for up to four successive terms of nine years each for a total of 45 years.  The law traditionally distinguishes lease “extensions," which continue an existing lease, from lease “renewals,” which create an entirely new lease.  See Haleck v. Lee4 A.S.R. 519, 540-41, 554-55 (Trial Div. 1964).  For the purposes of A.S.C.A. § 37.2030, however, this formal distinction is irrelevant when, as in this case, a lessee has unilateral power to continue the leasehold.  Unilateral options can give a lessee complete and exclusive control over the use of land, whether they are "extensions" or "renewals," for prolonged periods.  Section 37.2030 is designed to prevent the ASG Executive Branch from entering into leases that tie up government land for 10 years or more without the Legislature's independent evaluation.  This court cannot overlook a legislated directive and grant the ASG's Executive Branch carte blanche to tie up public land and avoid legislative review for an extensive period, simply by entering into leases that give lessees unilateral options to “renew” for a series of terms of less than 10 years each--the method employed in the Coral lease.  We will not permit application of the technical legal distinction between extensions and renewals of leases to subvert lawful public policy enacted by the Legislature.  See Haleck v. Governor4 A.S.R. 968, 973 (App. Div. 1971).

 

The Coral lease, entered into after June 25, 1986, and potentially binding for 45 years, has never been subjected to legislative review.  Therefore, the Coral lease has never become “effective," in accordance with the mandate of A.S.C.A. § 37.2030.[31 ASR2d 134]

 

2.  Effect of an invalid lease.

 

[5]  The RESTATEMENT (SECOND) OF PROPERTY § 2.3, comment d.,7 states:

 

            Where, in addition to entry into possession under an invalid lease, rent is paid and accepted under the lease, a periodic tenancy is created.  By the payment and acceptance of such rent, the parties have given further indication of their intention to be bound by the invalid lease, and the periodic tenancy provides a measure of security of their expectations.

Coral and the CCJS, its assignee, took possession of the land under an invalid lease, yet the ASG accepted payment of monthly rent from both Coral and the CCJS under the terms of the Coral lease.  The parties thus created and maintained an at will periodic tenancy with all the terms of the Coral lease except duration.8  Id. § 2.3(2).  This tenancy was terminable at the will of either the lessor or the lessee with one month’s notice.  Id.§§ 1.5 & 2.3, comment d. 

 

On November 7, 1995, the ASG notified the CCJS that the ASG decided to terminate the tenancy with the CCJS and directed the CCJS to vacate the premises by January 1, 1996, which was later postponed to January 15, 1996.  The ASG thus gave at least one month’s notice, as is required to terminate a periodic tenancy involving monthly rental payments. 

 

Therefore, we conclude that the CCJS no longer has any rights to occupy the land beyond those of any holdover tenant at sufferance, and that we[31 ASR2d 135] cannot grant the CCJS's and ASB's request to enjoin the ASG from attempting to evict the CCJS from the property through lawful means.

 

3.  Due process.

 

The CCJS and ASB also submit that the decision of the Governor and the PRC to end the Coral lease deprived them of both procedural and substantive due process of law.

 

a.  Right to a hearing.

 

[6]  A claim of denial of due process, either procedural or substantive, cannot be sustained, absent proof of a deprivation of a ‘liberty’ or ‘property’ interest within the meaning of the Due Process Clause of Article I, § 2 of the Revised Constitution of American Samoa, see Ferstle v. American Samoa Govt., 7 A.S.R.2d 26, 49 (Trial Div. 1988), or of the Fifth or Fourteenth Amendments of the U.S. Constitution.  Webster v. Redmond, 599 F.2d 793, 796 (7th Cir. 1979), cert. denied, 444 U.S. 1039 (1979); Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 F.2d 1229 (9th Cir. 1982); Hunter v. Florida Parole & Probation Commission, 674 F.2d 847 (11th Cir. 1982). 

 

[7]  Not every interest is protected by procedural due process guarantees.  See Board of Regents v. Roth, 408 U.S. 564, 570 (1972) (“the range of interests protected by procedural due process is not infinite”).  Courts will not grant a party procedural due process rights, without examining the nature of the interest at stake to determine whether the party has a constitutionally protected claim of entitlement to the interest or has merely a unilateral expectation of the interest.  See id. at 571, 577 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).  The claim must be derived from a statute or legal rule or through a mutually explicit understanding to be an enforceable right or entitlement.  Riverview Investments, Inc. v. Ottawa Community Imp. Corp., 769 F.2d 324, 327 (6th Cir. 1985) (citing Leis v. Flynt, 439 U.S. 438, 442 (1979); see also Roth, 408 U.S. at 576-7 (noting that the legitimacy of an expectation to specific government benefits can be grounded in statutory or administrative standards).

 

[8]  Though the CCJS and ASB believed that the Governor and PRC were depriving them of a leasehold and related entitlements without affording them an opportunity to be heard, the CCJS and ASB were in legal reality requesting that the Governor either continue an at-will periodic tenancy or establish a new lawful lease.  Though  courts have eschewed rigid definitions of “liberty” and “property” interests, we believe that an interest in continuing an at-will periodic tenancy is not a[31 ASR2d 136] constitutionally protected “liberty” or “property” interest.  An at-will tenant may have a subjective need or desire for the relationship to continue but not a legitimate expectation for it to continue.  Roth, 408 U.S. at 577; Riverview Investments, Inc. v. Ottawa Community Imp. Corp.769 F.2d at 327.  No statute or administrative rule gives an at-will tenant an expectation that an at-will periodic tenancy will continue indefinitely and will be terminated only “for cause.”

 

[9]  Additionally, we believe that one’s interest in securing a future leasehold interest is not a constitutionally protected “liberty” or “property” interest.  In Board of Regents v. Roth, the United States Supreme Court rejected the proposition that a university deprived a teacher of procedural due process when it failed to provide the teacher with a hearing after deciding not to rehire him following the expiration of his one-year contract. 408 U.S. at 575.  Similarly, we think it stretches the concept of “liberty” and “property” too far to suggest that a person is deprived of liberty or property because an at-will periodic tenancy is not affirmatively prolonged.  See Ferry v. Udall, 336 F.2d 706, 714 (9th Cir. 1964) (“there is no constitutional requirement to a right to a hearing where only a potential privilege to purchase United States land is involved”).9

 

[10]  The Governor may voluntarily choose to grant audiences to anyone who seeks to maintain an at-will periodic tenancy or who proposes to lease government property.  However, we hold that due process does not mandate that the Governor must conduct formal administrative hearings whenever he exercises his discretion to terminate an at-will periodic tenancy or acts on a proposal to lease government land.

 

b.  The PRC's role.

           

Although we find that due process did not require any hearing on this matter because the CCJS’s interests were not constitutionally protected “property” interests, we want to discuss the nature of the PRC’s[31 ASR2d 137] administrative proceedings.  The CCJS and ASB aver that the PRC is an agency for purposes of the Administrative Procedures Act ("APA"), A.S.C.A. §§ 4.1001-4.1044, and conducted hearings concerning the Coral lease, which evolved into a contested case under the APA and thus required unafforded due process rights of reasonable notice and an opportunity to be heard.  The ASG views the PRC as a non-APA agency providing advisory decisions and without authority to process a contested case.

 

[11]  We agree with the ASG’s position.           Unquestionably, the PRC is a statutory agency of the ASG's Executive Branch.  A.S.C.A. § 18.0101(a).  An APA agency, however, "means each . . . commission . . . authorized by law to make rules or to determine contested cases."  A.S.C.A. § 4.1001(a).10  A.S.C.A. § 18.0102, which outlines the PRC’s powers and duties, does not authorize the PRC to make rules or to adjudicate disputes.  The statute merely empowers the PRC to "develop policies and programs,” to “review and make recommendations to the Governor,” and to “perform other assignments as the Governor may make.”  A.S.C.A. § 18.0102.  The PRC’s meeting minutes show that the PRC regularly makes recommendations to the Governor on private uses, by lease or license, of park lands.  But offering recommendations is neither rule making nor adjudication.  The PRC's action did not “determine” the CCJS's or ASB's legal rights, duties, or privileges.  A.S.C.A. § 4.1001. 

 

Therefore, since the PRC proceedings did not constitute resolution of a contested case under the APA, we also hold the CCJS and ASB had no right to notice of, or meaningful participation in, the PRC meetings, as a matter of procedural due process.

 

c.  Substantive due process claims.

 

We also conclude that the Governor's decision to terminate an at-will tenancy or to accept or decline a proposal for a new lease is not vulnerable to substantive due process attacks.  We emphasize that because a periodic tenancy is not a constitutionally protected property interest, substantive due process was not violated.[31 ASR2d 138]

 

[12]  However, we wish to address the CCJS's and ASB's contention that the ASG’s actions were an abuse of discretion.  This court ensures that the ASG's Executive Branch respects a party’s substantive due process rights by determining whether decisions of the Governor and his executive agencies were arbitrary and capricious, pretextual, or without a rational basis.  Anthony v. Franklin County, 799 F.2d 681, 684 (11th Cir. 1986); Barnett v. Housing Authority of the City of Atlanta, 707 F.2d 1571, 1577 (11th Cir. 1983).

           

[13]  The Governor has “general supervision and control” of the ASG's executive functions, A.S.C.A. § 4.0111(b), including the lease of government land.  We believe that a decision regarding the lease of government land is a matter solely within the Governor’s discretion.  See Ferry v. Udall, 336 F.2d at 712 (stating that a “decision of whether or not it would be in keeping with sound policy to sell a particular parcel of land at a certain offered price involves the exercise of informed discretion.”). 

 

The Governor was fully aware of the CCJS's and ASB's desire to continue the Coral lease, consulted with the PRC, and decided to terminate the Coral lease.  He gave as reasons the untimely exercise of the option to renew for a second nine-year term, disallowed use of the premises, accumulated solid waste, disregard of land use and building permitting system, and violation of the stream setback.  We cannot say on the evidence that the Governor’s decision was arbitrary, capricious, or an abuse of his discretion.  Therefore, we also conclude that his decision did not deprive the CCJS and ASB of substantive due process from this perspective.

 

Since we hold that the CCJS's and ASB's claims are without merit,11 we now turn to the ASG's counterclaims.

 

II.  The ASG’s counterclaims.

 

A.  American Samoa Coastal Management Act and Administrative Rules.

 

The ASG alleges that the CCJS violated the laws enacted and administrative rules promulgated in support of the American Samoa[31 ASR2d 139] Coastal Management Program and the accompanying land use and building permit system.

 

1.  The constitutionality of the American Samoa Coastal Management Act of 1990.

 

First, as a defense, the CCJS and ASB challenge the constitutionality of the American Samoa Coastal Management Act of 1990 ("ASCMA").  A.S.C.A. §§ 24.0501-24.0510.  This issue is particularly important, because the ASCMA provides the legal foundation for land use permits, A.S.C.A. § 24.0505, and the implementing administrative rules ("ASCMP rules") for the land use permit system.  A.S.C.A. § 24.0506.  

 

The CCJS and ASB argue that the ASCMA was enacted in violation of the policy protective legislation provision set forth in Article I, § 3 the Bill of Rights, of the American Samoa Revised Constitution of 1967.  This section reads:

 

Section 3. Policy protective legislation.  It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests.  Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons.  No change in the law respecting the alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor (emphasis added).12

The Legislature enacted ASCMA only once in P.L. 21-35.  Thus, the issue centers on the meaning of the phrase "alienation or transfer of land or any interest therein."  The CCJS and ASB interpret this phrase to apply to legislation respecting interests in land of any kind and nature.  The ASG applies the phrase to legislation respecting the alienation or transfer of any title interests, legal or equitable, in land.[31 ASR2d 140]

 

[14]  We agree with the ASG's position on this issue.  The policy set forth in § 3 is straightforward and clear.  The protection afforded the Samoan people is prevention of the loss of their lands and way of life and language.  Land use regulations impact activities on land and the manner in which an owner or possessor deals with land, but they do not divest title interests.  Land use regulations also do not inherently impair cultural patterns.  We do not find any ASCMA provisions that require double enactment, and therefore hold that the act is valid as enacted. 

 

2.  The validity of the American Samoa Coastal Management Program rules.

 

Second, the CCJS and ASB question the validity of the ASCMP rules, adopted by the Director of the Development Planning Office ("DDPO") pursuant to A.S.C.A. § 24.0506(a).  In general, rule making is an essential component of the administrative process and is often the preferred procedure for the evolution of agency policies.  Trans-Pacific Freight Conference of Japan/Korea v. Federal Maritime Commission, 650 F.2d 1235, 1244-45 (D.C. Cir. 1980), cert. denied, Sea-Land Service, Inc. v. Federal Maritime Commission, 451 U.S. 984 (1980).  Administrative rules serve the important function of implementing the a legislature's will without engaging in the time-consuming and often unfair process of case-by-case adjudication.  See Ernst & Ernst v. Hockfelder, 425 U.S. 185, 213 (1976); Mason v. National Flood Insurers Ass’n, 431 F. Supp. 1021, 1023 (D. Okl. 1977) (stating that “a rule or regulation must be in furtherance of intention of the legislature as evidenced by the acts of the legislative body”).  If properly promulgated, administrative rules have the force and effect of law and the presumption of validity, and much deference is due the agency charged with the administration of the statute.  See Lugo v. Simon, 426 F. Supp. 28, 34 (D. Ohio 1976).

 

The CCJS and ASB challenge the ASCMP rules on the grounds of noncompliance with the rule-making process set forth in the APA.13  The ASG resists that challenge on the grounds that the CCJS failed to demonstrate prejudice by any rule-making deficiency, and that the DDPO substantially complied with the rule-making procedures, the standard required by A.S.C.A. §4.1009(a).[31 ASR2d 141]

 

[15]  Rule making under the APA involves several procedural steps.  First, the ASG agency exercising rule-making authority must give at least 20 days notice of the adoption, amendment, or repeal of any non-emergency rule.  A.S.C.A. §§ 4.1004 and 4.1010.  The notice must include a statement of either the terms or substance of the proposed action or a description of the subjects and issues involved, and the time, place and manner in which persons may present their views on the matter.  A.S.C.A. § 4.1004.  The notice must be mailed to all persons who have requested advance notice of the agency's rule making, and must be at least publicized in all news or broadcasting media operated by the ASG.  Id.

 

Next, the agency must give all interested persons reasonable opportunity to submit "data, views, and arguments, orally or in writing," either at a public hearing or by other suitable means, and consider those submissions before the rule is adopted, amended, or repealed.  A.S.C.A. § 4.1005.  These provisions are intended to ensure that rule making by administrative agencies is infused with openness, explanation, and participatory democracy which is essential to minimize the dangers of arbitrary and irrational decision making.  See State of S.C. ex rel Patrick v. Block, 558 F. Supp. 1004, 1015 (D.S.C. 1983).  A public hearing was required for the ASCMP rules.  A.S.C.A. § 24.0506(a).

 

Third, the agency must file the rule with the Secretary of American Samoa, and with the Clerk of the House of Representatives and the Secretary of the Senate of the Legislature.  A.S.C.A. § 4.1008.  The Secretary of American Samoa is the Lieutenant Governor.  Am. Samoa Rev. Const., art. IV, § 3.  The rule becomes effective 20 days after the filing is complete, or later if required by statute or the rule.  A.S.C.A. § 4.1009(c)(1).

 

[16]  Lastly, the agency must make the rule available for public inspection.  A.S.C.A. § 4.1020(a).  No rule is valid or effective until this public inspection requirement is met, except as to any person who has actual knowledge of the rule.  A.S.C.A. § 4.1009(b).

 

[17]  The printed ASCMP rule is prefaced by the DDPO's letter of November 22, 1994, informing the Governor of the rule's adoption.  The DDPO states in this letter that before adoption, the proposed rule was noticed, the subject of extensive commentary by public hearing and other means, and reviewed.  Even though we do not have the specific documentary evidence before us, we accept the DDPO's letter and printed rule as demonstrating substantial compliance with all applicable rule-making procedures, including a public hearing and public inspection, except the requisite filing.[31 ASR2d 142]

 

The DDPO has not filed the ASCMP rules with the Secretary of American Samoa and the Legislature.  This omission is significant.  The filing enables the Secretary to fulfill his responsibilities, under A.S.C.A. § 4.1020(b), to keep a permanent register of the administrative rules adopted by the ASG's various agencies and, under A.S.C.A. § 4.1003, to publish regularly the rules.  By carrying out these functions, the Secretary fully informs the ASG's other agencies and the public at large of that which the law requires of them.14  Furthermore, filing gives the Legislature an opportunity to learn how the Executive Branch is administering legislative enactments, and gives the Legislature a basis for recommending appropriate changes in the rules.  A.S.C.A. § 4.1009(d).  Thus, because the ASCMP rules were not filed with the Secretary of American Samoa and the Legislature, the ASCMP rules were not adopted in substantial compliance with the statutory mandates for rule making. [31 ASR2d 143]     

 

[18]  However, despite procedural deficiencies, administrative rules are valid and enforceable against persons who have actual knowledge of the rules.  A.S.C.A. § 1009(b).  The CCJS applied for land use and building permits for construction of the hall extensions, under the ASCMA and ASCMP rules, and certainly had actual knowledge of the ASCMP rules. 

 

Thus, the ASCMP rules are valid and effective as to the CCJS.15

 

3.  Construction without permits.

 

The ASCMA requires a land use permit for "all uses, developments, or activities which impact the coastal zone."  A.S.C.A. § 24.0505(a).  The coastal zone includes all private and public land in American Samoa, except lands solely under federal control.  See A.S.C.A. § 24.05003(a).  Thus, the CCJS needed to obtain a land use permit for construction of the hall extensions before commencing any work on the project, in accordance with the land use permit system implemented by the ASCMP rules.  See ASCMP rules § 26.0207(a) and related definitions in ASCMP rules § 26.0204.  A building permit was also a prerequisite to actual construction.  See 1Uniform Building Code, Short Form § 301(a) (1964), adopted by A.S.C.A. § 26.1001.16

 

The CCJS applied for both land use and building permits to construct the hall extensions in August 1994.  Although the applicant clearly has the responsibility to obtain necessary permits and approvals, see ASCMP[31 ASR2d 144] rules § 26.0207(b), apparently the CCJS's application loitered in the DPO until it was forwarded for the Governor's necessary approval for construction on the ASG's land in February 1995.  We think that the CCJS's frustration over the bureaucratic process, coupled with the CCJS's desire to meet the estimated completion date of September 30, 1994, at least partially explains the significantly completed construction of the hall extensions by February 1995.  In any event, however, the CCJS violated the law by building without the requisite permits.17        

 

When construction begins without the land use and building permits, the project may be stopped.  ASCMP rules § 26.0218; Uniform Building Code § 106.1 (1964).18  The CCJS was served with proper stop orders on February 16 and 22, 1995, but continued with the hall extension project.  Unquestionably, the CCJS violated these lawful orders as well.

 

Because the hall extension construction did not comply with the ASCMP rules, the CCJS is responsible for removing the extension and properly disposing of all resulting solid waste on the land.

 

4.  Administrative fines.

 

The ASCMA provides for civil fines imposed by this court for violations the ASCMA or ASCMP rules not to exceed $5,000 per day against individuals and $10,000 per day against corporations.  A.S.C.A. § 24.0505(a) & (b).  On March 23, 1995, the chairman of the PNRS board purportedly levied a $30,000 fine on the CCJS as part of one of two options given for the CCJS to take in response to three cited violations of building without a land use permit, building within the 50-foot stream setback required by the ASCMP rules § 26.0228(d)(2), and failing to comply with the stop order issued on February 16, 1995.

 

The ASCMA does not provide any administrative authority to assess fines.  The unlawful attempt to exact this penalty from the CCJS was a flagrant abuse of power.  Although the CCJS tentatively capitulated, this[31 ASR2d 145] illegal assessment was fortunately set aside by later events.  The PNRS board cannot impose, collect, or attempt to impose or collect, fines for failure to comply with the ASCMA or ASCMP rules.

 

B.  Summary Eviction

 

The ASG gave proper notice to terminate the at-will periodic tenancy with the CCJS.19  The ASG explicitly notified the CCJS that it was  unwilling to negotiate a purchase of the building and fixtures.  Therefore, even though the CCJS has "purchased" the building, or will have purchased it upon paying the amortized purchase price in full, the at-will periodic tenancy only permits the CCJS to remove machinery, equipment and personal property from the premises upon termination of the lease relationship.20  The CCJS must vacate the land.

 

C.  The CCJS's account payable.

 

While the Coral lease required the lessee or its assignees to make monthly payments of $900 for rent and $245 for the amortized balance of the purchase of the building and fixtures, a total of $1,145, after the first six months during the initial term of the lease, the ASB actually paid $1,150, monthly in effect, on the CCJS's behalf.  We cannot tell from the ASG's accounting in evidence exactly how the ASG credited these payments to rent or the amortized balance.  However, the CCJS clearly owed the ASG $10,800 on the combined amounts on October 19, 1995, which was reduced to $2,550 as of December 31, 1995.  The CCJS is prepared to pay the deficiency.

 

The CCJS also still possesses and uses the premises by virtue of the temporary injunction.  It should bring current any rent due and unpaid for the continuation of the periodic tenancy, and remit payment for any unpaid portions of the amortized purchase price for the building and fixtures.

 

CONCLUSIONS OF LAW[31 ASR2d 146]

 

We will reiterate and summarize our conclusions of law.

 

1.  The ASG consented to the assignment of the Coral lease in the event of Coral's loan default by the consent to mortgage of June 29, 1987.  Moreover, by accepting rent from and dealing with the CCJS, the ASG waived its right to object to the CCJS’s assumption of rights and obligations under the lease.  Therefore, the CCJS is properly before the court as the lessee in this dispute.  The ASB is properly before the court as the leasehold mortgagee.

 

2.  The ASG effectively granted the lessee in the Coral lease the use of public land for 45 years by giving the lessee the unilateral right to exercise options to renew at the end of an initial nine-year term for up to four additional lease terms.  This grant contravened statutory public policy, unless and until the Legislature reviews and fails to disapprove the lease.  Because the Coral lease has not been submitted to the Legislature for review, the Coral lease never became effective.

 

3.  Because the Coral lease was ineffective, the CCJS had an at-will periodic tenancy with the ASG, which incorporated all the terms of the Coral lease except duration.  Both parties were able to terminate the at-will periodic tenancy with or without cause at any time, as long as the party seeking to terminate the tenancy provided at least one month’s notice.  The ASG gave one month’s notice to the CCJS and lawfully terminated the at-will periodic tenancy as of January  15, 1996.

 

4.  The benefit of maintaining an at-will periodic tenancy or entering into a new lease agreement is not a liberty or property interest giving rise to substantive or procedural due process rights.  The Governor's decision to terminate an at-will tenancy in government land or refuse to lease government land did not result in deprivation of substantive due process and did not require the minimal procedural due process elements of notice of and meaningful participation in an administrative hearing.  The PRC did not violate procedural due process by excluding the CCJS and ASB from its meetings regarding the Coral lease, because the PRC is empowered only to make recommendations to the Governor, not to adjudicate contested cases or promulgate rules.  

 

5.  The Governor’s decision to terminate the at-will periodic tenancy or to decline forming a new lease was not arbitrary, capricious, or an abuse of his discretion in violation of substantive due process considerations.

 

6.  The ASCMA is not unconstitutional on the grounds that it was not enacted by two successive legislatures.  The ASCMA affects land use but does not divest title interests or impair cultural patterns.[31 ASR2d 147]

 

7.  The ASCMP rules were not promulgated in compliance with statutory directives because the DDPO, the authorized rule maker, has not filed the ASCMP rules with the Secretary of American Samoa and the Legislature.  However, the ASCMP rules are binding and enforceable on the CCJS and ASB, since each had actual knowledge of the rules.

 

8.  The CCJS built the hall extensions without the requisite land use permit in violation of A.S.C.A. § 24.0505(a) and without the requisite building permit in violation of § 301(a) of the 1964 Uniform Building Code, enacted by A.S.C.A. § 26.1001.

 

9.  The ASCMA does not empower the PNRS board to assess fines administratively for failure to obtain the required land use permit or to comply with a stop work order, or for any other violations of the ASCMA or ASCMP rules. 

 

10.  The CCJS must leave the premises and remit payment to the ASG for its remaining liabilities from the at-will periodic tenancy and subsequent tenancy at sufferance.

 

ORDER

           

The CCJS shall, within 30 days after the entry of this order:

 

1. remove the hall extensions built without land use and building permits;

2. remove from the land all solid waste resulting from demolition of the hall extensions from the land, at the CCJS's expense and with due consideration to the lawful property rights of other landowners near the land and disposal site and between both locations;

            3. vacate the land, and reeenter the premises only to exercise its remaining rights under paragraph B of clause 13 of the Coral lease; and

            4. remit payment to the ASG the total amount of outstanding liabilities for rent under the at will periodic tenancy and holdover tenancy at sufferance, to and including the day the CCJS vacates the land, and for unpaid portions of the amortized purchase price for the building and fixtures.

 

The temporary injunction is dissolved 30 days after the entry of this order.

 

It is so ordered.21[31 ASR2d 148]



1  The original paragraph O did not require the ASG's consent to use the leasehold as security, and was worded differently in that the security agreement must require the lending institution to be fully responsible for the rental payments in the event of a default of the loan and surrender the land to the ASG when the loan is satisfied.

 

2  We take judicial notice of this action. 

3  At the ASB's request, Western Appraisal Services estimated the value of the building at $675,000 as of February 15, 1994.

 

4  Although filed after the court approved the sale to the CCJS, the receiver's final report of September 24, 1992 includes the ASG in the list of Coral's creditors.  The ASB mailed the final report to all creditors on October 20, 1992, in connection with its motion to discharge the receiver and dismiss the action.  No one, including the ASG, objected to either the final report or the motion.  The court heard the motion on January 8, 1993 and discharged the ASB as the receiver on January 19, 1993.

 

5  While there is conflicting evidence on whether the CCJS or its bingo "sublessees" or "licensees" consistently obtained the requisite license from the ASG for their activities, we are satisfied that there was substantial compliance with this requirement.  The licensing process is also additional evidence that the ASG was aware of the activities on the premises.    

6  In 1990, this court approved the transaction whereby the CCJS assumed Coral’s obligations under the mortgage with the ASB.  Though the ASG did not participate in those judicial proceedings, and did not receive notice of the approval hearing, the ASG did receive notice of the hearing to discharge the receiver.  Furthermore, the ASG was fully aware of Coral's loan default and the circumstances leading to the CCJS's takeover of the premises.  The ASG did not terminate the Coral lease when the ASB was judicially appointed as the receiver, even though a receivership can trigger termination under clause 13 of the Coral lease.

7  This section of the Restatement deals with the effect of a lease that is invalid because it violates the Statute of Frauds, not the effect of a lease that is ineffective because it violates A.S.C.A. § 37.2030.  However, failing to conform to statutory writing requirements, which renders a lease "invalid," and failing to conform to the legislative review requirement of § 37.2030, which renders a lease "ineffective," are similar in that both involve deviations of technical requirements created and defined by statute.  Therefore, without statutory guidance regarding the effect of a lease contravening § 37.2030, we believe that the situations are sufficiently analogous to warrant the application of the same legal principles.

8  The option to renew for successive lease terms is a nullity, and thus, the CCJS's purported exercise of the option, with the Acting Governor's approval, on September 13, 1995 had no legal effect.

9       Since an at-will periodic tenancy is much like an open purchase order for goods, and an application for the privilege of leasing government land is much like a bid for government business, a contrary ruling in this case would unreasonably burden the ASG.  Individuals and corporations doing business with the ASG could demand formal administrative hearings because the Governor refused to purchase goods or services under an open purchase order, or because the Governor refused to select their bid and award them a contract for goods or services.  The transaction costs of procuring necessary goods and services for the ASG would skyrocket.

 

10  A rule "means each agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practical requirements of any agency," excluding "statements of internal management and not affecting private rights or procedures available to the public, or intra agency memoranda."  A.S.C.A. § 4.1001(g).  A contested case "means a proceeding . . . in which the legal rights, duties, or privileges of a party are determined."  A.S.C.A. § 4.1001(b).

11  The CCJS and ASB also claim that the CCJS made a timely but rejected demand for arbitration.  This issue is immaterial to the outcome, in our view, but we want to point out the ambiguous and the poorly drafted quality of the arbitration provision in the Coral lease.

12  The emphasized portion of § 3 is substantively repeated in the article on the Legislature.  Am. Samoa Rev. Const., art. II, § 9.    

 

13  Rules can be contested for noncompliance with adoption requirements only within two years of their effective date.

 

A.S.C.A. § 4.1007.  The ASCMP rules were adopted on November 22, 1994, less than two years prior to the filing of this action.

 

14  The A.S.A.C. was first published in 1982 and was annually supplemented through 1989.  No supplements have been published since to include in the A.S.A.C. either the ASCMP rules or any other rules adopted in and after 1990.  Obviously, the Lieutenant Governors in office from 1990 to the present time have neglected to carry out, as the Secretary of American Samoa, the duty prescribed by A.S.C.A. § 4.1003 to publish the administrative rules at least once every two years.

 

The court takes judicial notice that the Lieutenant Governors in office from 1978 through 1990 maintained a permanent register of the administrative rules, as required by A.S.C.A. § 4.1020(b).  This register included not only the rules as adopted, but also the public notices of the intended adoption of each rule, certificates of the adoption, and the acknowledgments of filings of each rule with the Secretary, the Clerk of the House of Representatives and the Secretary of the Senate.  The court sought to inspect the register, and after a lengthy search, the Governor's Office produced the register for 1985 through 1990 from a closet.  Apparently, the register since 1990 has been neglected and does not exist, and the register before 1985 is now lost or misplaced.

 

The APA is very important.  Administrative rules have the force and effect of law, if properly adopted under the APA.  However, the ASG's Executive Branch has apparently not taken the APA very seriously in recent years.  While the Lieutenant Governors were ultimately responsible for this laxness, we think their failure to comply with the law was principally inattention by the ASG's legal advisors, particularly within the Governor’s Office but also in the Executive Branch outside of the Governor's Office.

 

15  Under § 24.0506(b) of the ASCMA, the rules preceding the ASCMP rules, A.S.A.C. §§ 26.0201-26.0211 (Rule 12-88), remain in effect until the ASCMP rules are promulgated as final rules.  The ASG should still comply with the rule filing requirements for the ASCMP rules.  Otherwise, the ASG may not be able to enforce the ASCMP rules against a person who is without actual knowledge of the ASCMP rules and must rely on the predecessor rules, which may or may not cover a particular current situation.

 

16  Each edition of the Uniform Building Code is issued with the approval of the International Conference of Building Officials.  The comparable current licensing provision is the Uniform Building Code § 106.1 (1994).  The ASG's Department of Public Works ("DPW") usually refers to standards in the current edition of the Uniform Building Code for oversight of building construction.  However, in American Samoa, the outmoded 1964 edition of the Uniform Building Code, Short Form is still the only legally enforceable law in this field.  Despite the significant changes in building methods since 1964, the Legislature has turned down bills to enact an updated building code on numerous occasions.

 

17  The ASG requests the court to impose fines and exemplary damages pursuant to A.S.C.A. §§ 24.0509(a) and(b) for the CCJS’s failure to obtain the necessary permits before construction, and for the CCJS’s violations of two stop orders.  These statutory provisions give the High Court discretion to determine the amount of the fine against a corporation, and only set a ceiling of $10,000 per violation.  Given the circumstances of this case, and since there is no statutorily compelled “floor” for violations of A.S.C.A. § 24.0509(a), we decline to impose any fine on the CCJS for these violations.

 

18  See also Uniform Building Code § 104.2.4 (1994).

19  The ASG raised the issue of improper use of the premises, specifically the regular conduct of bingo games by the CCJS and its sublessees or licensees, suggesting that this use was disallowed under the terms of the Coral lease and possibly criminal under A.S.C.A. § 46.4301.  We do not need to address this issue, however, because the CCJS's at-will periodic tenancy was terminable for any reason, with or without cause, upon one month's notice.

 

20  See Coral lease, clause 13.B.2.    

21  The ASG can still honor the obligations to Coral it undertook in 1986 and to the ASB in 1987, and, in 1992, led the CCJS and ASB to reasonably believe would be carried forward.  It can enter into a new lease agreement, at least for the duration of the CCJS/ASB loan transaction, to protect the CCJS's and ASB's legitimate financial interests, and, if required, submit the new lease for legislative review under A.S.C.A. § 37.2030 and support approval of the lease before the Legislature.

American Samoa Gov’t v. Atualevao,


[31 ASR2d 29]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ATUALEVAO MEREDITH, TOAONO KELEMETE, and JOHN DOES 1-10, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 19-94

 

October 10, 1996

 

[1]  Under A.C.R. 8(a), a party must apply to the trial court for a stay of execution of the judgment pending appeal. 

 

[2]  Judgments of the court in non-criminal actions cannot be stayed pending appeal except for cause shown. 

 

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

 

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

                        For Defendants, Albert Mailo and Solomona Toailoa, Pro Hac Vice

Order Denying Stay of Execution of Judgment Pending Appeal:

 

The court granted summary judgment in this action to plaintiff on April 26, 1995, and denied the motion for reconsideration, new trial or relief from judgment on June 27, 1995.  Defendants timely appealed on July 7, 1995.   

 

[1]  Defendants have first, and properly under A.C.R. 8(a), applied to the trial court for a stay of execution of the judgment pending appeal.  We regularly heard the motion on October 7, 1996, and now deny the application.

 

[2]  Judgments of this court in non-criminal actions cannot be stayed pending appeal except for cause shown.  A.S.C.A. § 43.0803.  We will discuss the issue of cause, using the interrelated criteria which are well set forth in Asifoa v. Lualemana, 17 A.S.R.2d 100, 102 (Appellate Div. 1990).  See also Asifoa v. Lualemana, 17 A.S.R.2d 10, 14 (App. Div. 1990). [31 ASR2d 30]

 

1.  Likelihood of success on appeal.  Apparently, defendants still maintain that there are factual issues properly determined only by trial on the merits.  We disagree.  Defendants identify factual issues which are not genuinely material to the legal issues raised by this action.  We properly resolved this action by ruling on those legal issues. 

 

We are also confident that our rulings are correct and do not present novel or difficult questions of law justifiably requiring preservation of the status quo until the appeal is decided.  In general terms, those issues concern: (1) the finality of the 1958-1960 condemnation proceedings taking the land for the Pago Pago International Airport; (2) the retroactive effect of the 1989 modification of the condemnation laws to require use for the stated public purpose within five years after the taking; and (3) oral gubernatorial promises to return or lease the land to the original communal landowner.

 

2.  Irreparable harm.  We do not find any irreparable harm to either party in the present situation in the event a stay of execution is either granted or denied.  However, we must still balance the relative hardships and other equities. 

 

After this court's decision on June 27, 1995, plaintiff proceeded with plans to construct a stadium on the land at issue in time for the South Pacific mini games scheduled to take place in American Samoa in 1997.  Although defendants appealed this decision on July 7, 1995, they did not ask to stay execution of the judgment until September 13, 1996.  Plaintiff has now prepared the playing field, at considerable effort and expense, and is ready to erect the grandstand to the extent available funds allow.

 

While the improvements in progress certainly impact the land, defendant's hardships are not irreparable.  If defendants prevail, or if plaintiff ever decides to return the land, they can certainly put the improvements to good use in their self-interests, or they can have the improvements removed without permanent harm to the land.  Plaintiff, on the other hand, does not have any other area suitable for the contemplated sports facilities and will be needlessly harmed by failing to adequately fulfill its commitment to other Pacific island nations and territories to host the 1997 mini games.  An element of wasted public resources is also present.  Plaintiff might well have considered alternatives, but for defendant's 14-month delay in seeking a stay.

 

Thus, we think that on balance the greater hardships fall on plaintiff's side of the ledger. [31 ASR2d 31]

 

3.  Public interests.  The general public of American Samoa has a legitimate interest in expecting plaintiff to successfully host the mini games in 1997.  The people's interests in this regard certainly exceed defendants' interests in immediately preventing further development of the stadium complex.  

 

For these reasons, we deny the application for a stay of execution of the judgment pending appeal. 

 

It is so ordered.

 

 

 

********

 

American Samoa Gov’t v. Adams,


[31 ASR2d 112]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

MICHAEL ADAMS, Defendant[31 ASR2d 113]

 

High Court of American Samoa

Trial Division

 

CR No. 06-86

 

January 3, 1997

 

[1]  A judgment and sentence entered over 10 years ago is final and not open to further reconsideration by the sentencing court..  Any relief from sentence, in the way of commutation, lies exclusively within the executive's competence.  See Section 9, Art. IV, Rev`d. Const. of Am. Samoa.

 

Before KRUSE, Chief Justice.

 

Order on Motions to Proceed In Forma Pauperis and for Relief from Judgment:

 

Defendant Michael Adams is serving concurrent 30 year prison terms at the Territorial Correctional Facility, following his conviction on two counts of second-degree murder.  On January 28, 1997, defendant filed his pro se application 1) for leave to proceed in forma pauperis; and 2) for relief from judgment and sentence entered herein.  Defendant essentially seeks to have his sentence amended to allow him work release and he cites the Federal Rule of Civil Procedure 60(b)(6)--the federal counterpart of the High Court's Trial Court Rules of Civil Procedure, Rule 60(b)(6).  Since the defendant is asking relief for judgment and sentence in a criminalproceeding, Rule of Civil Procedure 60(b)(6) is inapplicable to the present case.

 

[1]  Notwithstanding, the judgment and sentence in question was entered over 10 years ago and is final; it is not open to further reconsideration by the sentencing court at this point in time.1  Any relief from sentence, in the way of commutation, lies exclusively within the executive's competence.  See Section 9, Art. IV, Rev`d. Const. of Am. Samoa.

 

The motion to amend sentence to permit work release must be, and is hereby, denied.

 

It is so ordered.

 

 



1  Any appeal from the judgment and sentence of the trial court must be directed to the High Court's Appellate Division and follow the dictates of A.S.C.A. § 46.2402(a).  See American Samoa Government v. Falefatu, 20 A.S.R.2d 127 (App. Div. 1992).

Attorney Gen. of Am. Samoa; Development Bank of American Samoa v.,


[31 ASR2d 103]

 

DEVELOPMENT BANK OF AMERICAN SAMOA, and EDWIN & FOTU HOLLISTER, Plaintiffs,

 

v.

 

ATTORNEY GENERAL OF AMERICAN  SAMOA, and TERRITORIAL REGISTRAR, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 146-96

 

December 19, 1996

 

[1]  Generally speaking, at common law and in jurisdictions which still follow the common-law rule, a conveyance to husband and wife during coverture ordinarily creates an estate by the entireties and not a joint tenancy or tenancy in common.[31 ASR2d 104]

 

[2]  Although a grantor can expressly grant some other form of tenancy to a husband and wife, the intention on the part of the grantor to create a tenancy by the entireties is presumed in the absence of such express language to the contrary. 

 

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

 

Counsel:           For Plaintiffs, Katopau T. Ainu`u

For Defendants, Henry W. Kappel, Assistant Attorney General

 

Order on Motion for Declaratory Relief:

 

Plaintiffs move for declaratory judgment as to their rights under a warranty deed granted to them by Ulupona Solomona.

 

FACTS

 

The facts of this case are not at issue.  On or about June 28, 1989, a deed of conveyance to individually owned land was executed and delivered by the original grantor Opapo Afualo to Ulupona and Logomamao Solomona.  That deed did not specify the tenancy type under which the property was to be held.  At the time of the conveyance, Ulupona and Logomamao were living together as husband and wife.

 

On March 6, 1994, Ulupona's wife, Logomamao Solomona, passed away.  Ulupona continued living on the land after his wife's death until July of this year.  On July 11, 1996, Ulupona purported to convey the land to plaintiffs, Edwin and Fotu Hollister, by warranty deed.  On that same day, the deed was presented to the Territorial Registrar's Office for recordation.  On the advice of the Attorney General, the Territorial Registrar refused to record the warranty deed.  The Attorney General, deferring to precedent of this court, argues that the deeded property was held by Ulupona and his deceased wife Logomamao as tenants in common and that Logomamao's interest is subject to probate.

 

The sole issue before us is the type of tenancy created by the initial conveyance by Opapo Afualo.1[31 ASR2d 105]

 

DISCUSSION

 

A.S.C.A. § 1.0201(4) states the common law of England applies in American Samoa as long as it "is suitable to the conditions in American Samoa and not inconsistent with this section."  At common law:

 

If an estate in fee was given to a man and his wife, they are neither properly joint-tenants or tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my: the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.

 

Annotation, Deed to Husband and Wife--Estate Taken, 161 A.L.R. 457, 458 n.1 (1946) (quoting 2 Blackstone's Commentaries, 182).

 

[1-2]  This tenancy is commonly referred to as a tenancy or estate  "by the entireties."  Thus generally speaking, "at common law and in jurisdictions which still follow the common-law rule, a conveyance to husband and wife during coverture ordinarily creates an estate by the entireties and not a joint tenancy or tenancy in common."  Id., at 458.  See also 41 AM.JUR.2D Husband and Wife §§ 55-57.  Although a grantor can expressly grant some other form of tenancy to a husband and wife, the intention on the part of the grantor to create a tenancy by the entireties is presumed in the absence of such express language to the contrary.  161 A.L.R. at 462-468.  Thus, under common law the conveyance of property from Opapo Afualo to the Ulupona and Logomamao Solomona, while husband and wife, created a tenancy by the entireties with the incumbent right of survivorship.

 

However, as defendants point out, this court in Emmelina v. Aneki, 2 A.S.R. 444 (Trial Div. 1949) (relying on Joseph Willis v. Robert Willis et al., 2 A.S.R. 276 (Trial Div. 1947) stated that the doctrine of joint tenancy, was inapplicable in American Samoa because its attendant right of survivorship was unfair to heirs.  Id. at 446.  Although, the Emmelina court did not specifically address the doctrine of tenancy by the entireties, it is clear that the court's decision is equally applicable thereto, in light of the attendant right of survivorship which also attaches to a tenancy by the entireties.

 

The difficulty presented today is that the court in Emmelina gave little explanation about exactly why the right of survivorship is unsuitable in American Samoa.  The court first alludes to legislative bias against joint[31 ASR2d 106] tenancies evident in other jurisdictions, and then appears to base its decision solely on the fact that some heirs may not inherit property, which they would have if the tenancy had been a tenancy in common rather than a joint tenancy.  This, however, is true of any jurisdiction which accepts joint tenancies or tenancies by the entireties.  A right of survivorship, by definition, necessarily precludes an heir of the deceased from inheriting the property.  We do not believe that this is a reflection of any special circumstances in American Samoa.  There is no peculiar Samoan condition apparent to us which guarantees the heirs of a decedent a portion of his or her individual property.  Indeed, there is nothing in the laws of the Territory that prevents a landowner, of non-communal property, from disentitling an heir either by testamentary or inter vivos disposition. Whatever the circumstances in American Samoa in 1949, we find no circumstances now which would prevent the application of the common law doctrines of joint tenancy and tenancy by the entireties to both freehold and individually owned land.  At the same time, the Territorial Legislature has not seen fit to abolish or restrict the common law notion of joint tenancy and survivorship.  We are therefore constrained to limit the holding inEmmelina and Willis to the facts of those cases.

 

Defendant also argues that the right of survivorship conflicts with American Samoa's laws of descent and distribution, as set forth in A.S.C.A. § 40.0202.  We do not agree.  The statute merely provides for intestate succession of property.  It does not proscribe other forms of succession i.e. a testamentary will.  It does not protect the right of heirs per se, it merely protects the rights of heirs when the deceased dies intestate.

 

CONCLUSION

 

We limit the holdings of Emmelina v. Aneki and Willis v. Willis, which preclude tenancies with rights of survivorship as to freehold and individually owned land, to the facts of those cases.  We find no conditions inAmerican Samoa which make these common law doctrines unsuitable.

 

We hold that the conveyance from Opapo Afualo to Ulupona and Logomamao, as husband and wife, was a conveyance of a tenancy by the entirety.  As such, upon Logomamao's death Ulupona succeeded to his wife's entire interest in the land.  Therefore, Ulupona's subsequent conveyance to Edwin and Fotu Hollister was a conveyance of the entire estate.

 

The Clerk of the Courts shall file a copy of this order with the Territorial Registrar.[31 ASR2d 107]

 

It is so ordered.

 

 



1  We note that there may be personal property contained within the house which may be subject to probate.  However, that issue is not presently before the court.

Atlantic, Pacific, Marine, Inc. v. Clarke,


[31 ASR2d 156]

 

ATLANTIC, PACIFIC, MARINE, INC., Plaintiff

 

v.

 

PAUL CLARKE, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 155-94

 

February 12, 1997

 

[1]  A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person is a party to the proceeding, or an officer, director, or trustee of the party.  Canon of Judicial Conduct 3(C)(1)(d)(i).

[2] A judge disqualified may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification.  If based on such disclosure, the parties and lawyers may agree in writing that the judge is no longer disqualified, and may participate in the proceeding.  However, the parties and lawyers must make such determine independently of the judge’s participation and in writing. Canon of Judicial Conduct 3(D).

 

Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge.

 

Counsel:           For Plaintiff, William H. Reardon

                        For Defendant, Marshall Ashley and Mason Martin

Order Granting Motion For Reconsideration:

 

On October 24, 1996, this court found defendant Paul Clarke  (“Clarke”) civilly liable for breach of an at-will employment contract with plaintiff Atlantic, Pacific, Marine, Inc. (“APM”) and awarded APM $8,665.00 in damages.  Clarke moved for reconsideration on the grounds, among other reasons, that the justice presiding in the trial court should have disqualified himself from the case.1 [31 ASR2d 157]

 

[1]  On September 15, 1977, the High Court adopted the Code of Judicial Conduct.  Canon 3(C)(1)(d)(i) states that:

 

            A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where . . . he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person . . . is a party to the proceeding, or an officer, director, or trustee of the party.

Betty Cavanagh, an APM officer, is the spouse to Sean Gregg, APM's President.  Betty Cavanagh is also the cousin by blood and sister by legal adoption of the trial justice’s wife.  While cousins are in the fourth or more remote degree of relationships, brothers and sisters are within the second degree of relationships under both the civil and canon law systems of calculating consanguinity.  See 42 AMJUR. 2d, Judges § 142; 1CALIFORNIA DECEDENT ESTATE ADMINISTRATION 805 (Victor L. Chuan, Irving Slater, eds. 1971).  Therefore, the trial justice was disqualified from hearing the case under Canon 3(C)(1)(d)(i), because Betty Cavanagh is a “person within the third degree of relationship to either [the judge or the judge’s spouse]” and an officer of APM, a party in the case.  Additionally, the trial justice was disqualified because Sean Gregg is “the spouse of [a person within the third degree of relationship to either the judge or the judge’s spouse]” and also an APM officer.

 

[2]  The Code of Judicial Conduct further states that a judge disqualified

 

may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification.  If based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding.[31 ASR2d 158]

 

Canon 3(D).  The trial justice stated his relationship to Betty Cavanaugh and Sean Gregg on the record, at the beginning of the trial, and received unequivocal waivers from both parties’ counsel.  However, those waivers were ineffective.  The parties and lawyers did not discuss the issue of judicial disqualification “independently of the judge’s participation” and did not "agree in writing that the judge’s relationship was immaterial."  

 

As the Commentary to Code Canon 3(D) explains, “the procedure is designed to minimize the chance that a party or lawyer will feel coerced into agreement.”  While the trial justice had the spirit of Canon 3(D) in mind, he clearly overlooked substantial compliance with the prescribed procedure and, thus, remained disqualified from hearing the present case.2

 

Since the trial justice was disqualified from hearing this action, the motion for reconsideration is granted.  The order of November 8, 1994, denying the motion to quash service of process, and the opinion and order of October 24, 1996, awarding judgment to APM and damages in the amount of $8,665.00, are vacated. 

 

It is so ordered.

 



1  Clarke first raised this issue by this motion, citing A.S.C.A. § 3.1007(a), which in apparent material part reads:

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

 

In our view, this statute is not free of ambiguity, but we need not address these concerns, as another specific edict is clearly applicable.

2  We believe that counsel were also not precisely thinking of the Canon 3(D) requirements.  Counsel act unconscionably if they deliberately wait until an adverse decision is rendered before moving to disqualify a judge.  See In re Matai Title Tauala, 15 A.S.R.2d 65, 67 (Land & Titles Div. 1990).  Sanctions could then well be in order.     

Ho Pyo Hong ; Korea Deep Sea Fisheries Association v.,


[31 ASR2d 162]

 

KOREA DEEP SEA FISHERIES ASSOCIATION, Plaintiff

 

v.

 

HO PYO HONG dba KOREANSA SHIPPING AGENCY, Defendants

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 78-92

 

February 19, 1997

 

[1]  T.C.R.C.P. 18(b) authorizes the concurrent joinder of two claims.  However, Rule 18(b) is not applicable to an action, which seeks an order in aid of judgment. 

 

[2]  The court may issue a temporary restraining order if sufficient grounds for its issuance have been established by affidavit.[31 ASR 163]   

 

Before KRUSE, Chief Justice.

 

Counsel:           For Movant/Defendants, Charles V. Ala`ilima

 

Order on Motion to Join, Application in Aid of Judgment, Application for Temporary Restraining Order, and Motion for Expedited Hearing:

 

The defendants brought the above captioned motions and applications in response to the plaintiff's purported attempts to fraudulently convey is assets in an attempt to deprive the defendants of it post judgement remedies.

 

FACTS

 

Judgment for the defendants, in the amount of $1,339,344.06, was entered against plaintiff on January 9, 1997.  The defendants now assert that there have been numerous and various attempts to unlawfully transfer the assets of the plaintiff, KDSFA, to other persons and entities in order to evade the collection of the judgment.  Specifically, defendants assert that the manager of KDSFA created a new entity named South Pacific Corporation and transferred KDSFA accounts receivables and other assets to this new corporation.  South Pacific Corporation has also allegedly taken over all of the business operations of KDSFA.

 

DISCUSSION

 

I.          Joinder of Parties

 

[1]  Defendants move to join the new corporation, South Pacific Corporation, and its principals in the present action pursuant to T.C.R.C.P. 18(b).  The defendants' motion to join, however, is misguided.  T.C.R.C.P. 18(b) authorizes the concurrent joinder of two claims, one of which prior to the rule normally had to be brought to judgment as a condition precedent to the prosecution of the other.  See e.g. Wright, Miller & Kane, Federal Prac. and Proc., Civil 2d § 1591 (1990).  Thus under T.C.R.C.P. Rule 18(b), a defendant could assert one counterclaim against a plaintiff-debtor and a second counterclaim against a plaintiff-transferee of the debtor's property.  Id.  This rule is not applicable to the action at hand, which seeks an order in aid of judgment.  If defendants believe that an order in aid of judgment will not entirely resolve the issue, defendants must bring a separate fraudulent conveyance action against the new corporation and its principals.  The motion to join is denied.

 

II.         Order in Aid of Judgement and Temporary Restraining Order[31 ASR2d 164]

 

Pursuant to A.S.C.A. §§ 43.1500 and 43.1800 et seq., this court may issue an order in aid of judgment and direct issuance of such things as writs of execution and garnishment upon the assets and accounts of plaintiff KDSFA.  Defendants, however, believe that exigent circumstances exist in the present case which warrant an expedited hearing on the motion for an order in aid of judgment and a temporary restraining order.

 

[2]  This court may issue a temporary restraining order if sufficient grounds for its issuance have been established by affidavit.   A.S.C.A. § 43.1304.  We find counsel of record for plaintiff, Cherie Norman, has been appraised of the application for a Temporary Restraining Order and that the affidavit of Il Won Kim states sufficient grounds for the issuance of a Temporary Restraining Order, restraining KDSFA and its agents from transferring any of the assets, accounts or business operations of KDSFA to South Pacific Corporation or any other person or entity.

 

After issuing the Temporary Restrain Order, without notice to the opposing party, a hearing on the preliminary injunction is required within 10 days.  A.S.C.A. § 43.1305.  This requirement extinguishes any need for an expedited hearing on the motion for an order in aid of judgment.  We will hear both the motion for preliminary injunction and the motion for an order in aid of judgment on at 9:00 a.m.

 

CONCLUSION

 

Defendants' motion to join in denied.  Defendants' motion for a Temporary Restraining Order is granted.  KDSFA, and its agents, including but not limited to In Sang Lee, are enjoined from transferring any of the assets, accounts or business operations of KDSFA to South Pacific Corporation or any other person or entity.  The motion for preliminary injunction and the motion for an order in aid of judgment will be heard on the day aforementioned.

 

It is so ordered.

 

 

Ho Pyo Hong; Korea Deep Sea Fisheries Association v.,


[31 ASR2d 80]

 

KOREA DEEP SEA FISHERIES ASSOCIATION, Plaintiff

 

v.

 

HO PYO HONG, dba KOREANSA SHIPPING AGENCY, Defendant

________________________________

 

HO PYO HONG dba KOREANSA SHIPPING AGENCY, Cross-Plaintiff

 

v.

 

KOREA DEEP SEA FISHERIES ASSOCIATION, IN SAENG LEE, and J.C. YEOM, Cross-Defendants

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 78-92

 

November 25, 1996

 

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

 

Counsel:           For Plaintiff/Cross-defendants, Togiola T.A. Tulafono

                        For Defendant/Cross-plaintiff, Charles V. Ala`ilima

 

Opinion and Order:

 

Plaintiff, Korea Deep Sea Fisheries Association (hereafter "KDSFA"), is an entity organized under the laws of the Republicof South Korea.  KDSFA was established to secure provisions and services in overseas ports for its membership of Korean fishing boat owners.  KDSFA maintains an office inAmerican Samoa, reporting to its main office inPusan,Korea.

 

The local office was managed in the early 1980s by a W.K. Kim (hereafter "Kim"), assisted by defendant/counter-claimant In Saeng Lee (hereafter "Lee").  Sometime in the mid 1980s, Kim left KDSFA to become a boat owner himself, operating as the Kyung Yang Trading Company, and joined KDSFA as a boat owner member.  Since Kim's leaving, Lee became KDSFA's local manager, and he has so remained to date.[31 ASR2d 81]

 

Defendant Ho Pyo Hong (hereafter "Hong"), together with his wife Aotearoa Hong, have been, since the early 1980s, in the business of provisioning fishing boats that operate out of American Samoa.  Hong, doing business under the name "Koreansa Shipping Agency," started out selling live hogs to various fishing boats.  He later extended his services to the supply of other food and dry goods lines as well.  In time, he was invited by KDSFA's local representatives to supply KDSFA boats.

 

At the outset, of what was to become a virtually exclusive franchise, Hong quickly befriended Kim and Lee.  Initially, KDSFA advanced Hong seed money to fill its early orders given for supply.  Subsequently, as his business took a dramatic turn in growth, Hong began to supply KDSFA orders on credit.  The order and supply process between the parties was given as follows: an order for a particular vessel's needs would be given to KDSFA, who in turn would pass the order to Hong.  Hong would then proceed to fill the order by purchasing from local wholesalers and retailers.  After an order was put together, Hong would deliver the same to the vessel where its receipt would be acknowledged in writing on the original invoice by either the vessel's captain or some other ranking officer.  Hong would then tender the original invoice to KDSFA for payment and KDSFA would in turn forward Hong's billing to the vessel's owner.  The owner would then send the payment to KDSFA and the latter would then pay Hong by way of KDSFA check drawn on the local branch of the Bank of Hawaii.

 

At least that was the way the business relationship was supposed to have operated.  In practice, the relationship between the parties developed into one of credit sales on "open account" basis.  In addition, Lee after taking over management from Kim, began to periodically ask Hong for cash loans citing one emergency or another attributed to some KDSFA vessel coming into port.  Lee's loan requests became increasingly regular and some entailed substantial five figure amounts.  Hong begrudgingly gave these cash advances, no doubt very mindful of the essentially exclusive nature of his franchise with the KDSFA boat community, including his exclusive purchasing access to KDSFA boats for shark fins, a commodity with lucrative export potential.

 

Over time, the relationship became strained as Hong saw his receivables grow and as he anxiously pushed Lee for payment.  He became increasingly uncomfortable with the folding of Kim's Kyung Yang Trading Company, then one of his larger KDSFA-receivables.  There were some attempts to address and resolve the payment of Hong's receivables, including joint accounts reconciliation efforts and a failed debt-workout scheme, conceived in July 1992.  The plan contemplated both Lee and Hong's taking over the operation of Kim's failing Kyung Yang Trading Company with the aim of paying off a number of[31 ASR2d 82] KDSFA's accounts payable, including Hong's receivables which were rounded off at $700,000.  The scheme never quite got off the ground.  As a result, Hong began threatening lawsuits and the arrest of various KDSFA vessels despite Lee's placating overtures about mutual future business prospects.

 

On August 14, 1992, KDSFA took the initiative and beat Hong to the courthouse.  KDSFA filed suit alleging that Hong owed it $960,745.66; it claimed that this sum was the net result of all funds it had given Hong over the years, less the goods that the latter had supplied to KDSFA vessels.  KDSFA further sought injunctive relief to stop Hong's communicating "false," "slanderous," and "libellous" accusations concerning KDSFA and its members.  Hong, it seems, had made no secret of the fact of the deteriorating business relationship with KDSFA and his threats to have various KDSFA vessels arrested.

 

Hong immediately responded with his own counterclaim, alleging KDSFA's indebtedness to him in the amount of $2,441,917.70.

 

DISCUSSION

 

Trial herein was a drawn out tedious affair mired not only in language barriers but in a mountain of fragmentary proofs.  It became clear at trial that business records were not tailored with the needs of an auditor in mind.

 

            I.  KDSFA's Claim

 

If KDSFA's tendered proofs were the extent of its business records, it's accounting system consisted solely of the company checkbook.  This meager accounting system, however, was not kept in a fashion designed to promote clarity of transactional records.  To the contrary, the canceled checks tendered into evidence bespeak a checkbook riddled with ambiguity and vagueness.  KDSFA's checks revealed numerous "cash" payments, equivocal memo entries, and in some instances, no explanatory memo entries whatsoever.  A large number of the non-cash checks, made out indiscriminately to either "H.P. Hong" or "Koreansa Shipping Agency," merely bore the vague notation of "payment of account," without reference to any invoices, loans, vessels, or KDSFA member.  Moreover, the evidence also revealed that memo entries were not always contemporaneous with the making of the check.  A former bookkeeper of KDSFA, who now works for Hong, testified to after-the-fact false memo entries by Lee on canceled checks.  At the same time, Hong testified about Lee's recurring practice of asking him to cash large KDSFA checks that would necessarily reference him when the checks were ultimately negotiated with the bank.  This testimony is consistent[31 ASR2d 83] with the apparent deliberately equivocal manner in which Lee kept the KDSFA check book.

 

In our assessment of the proofs, appearances rather than substance, ambiguity rather than exactness, seems to be the order of KDSFA business records.  Unmistakably, Lee's accounting method was done to muddle rather than to accurately chronicle monetary transactions, an accounting manner which readily lends itself to controversy.  But when the ulterior goal is the absence of objectively verifiable record keeping, then any attempt at parol explanation of unverifiable items is immediately suspect.

 

We are satisfied that KDSFA's lawsuit lacks any basis whatsoever.  The evidence failed to even remotely substantiate KDSFA's claims of substantial cash advances to Hong.  Rather the evidence indicates the opposite.  From KDSFA own proofs, consisting of Hong's supply invoice copies, apparently obtained through discovery, dated between 1984-92, together with all of KDSFA's canceled checks referable to Hong and issued between the same time period, a net figure on these written exhibits results in favor of Hong in the amount of $299,518.55.

 

KDSFA's claims, however, rest principally on parol explanation relating to such questionable items of proof as "cash" check payments and unsubstantiated claims of third-party payments.  In order to arrive at its numbers and its asserted credit standing, KDSFA essentially asks the court to resolve all ambiguity in its records, which ambiguities were intentionally created by KDSFA, against Hong.  Furthermore, we note that while KDSFA has initiated suit in its own stead, as opposed to in the name of its association members, it nonetheless finds it convenient to cite member bankruptcies in an effort to elude responsibility on some $1.3 million worth of Hong's invoices.  KDSFA's claim to having advanced $1.3 million on behalf of insolvent members not only contradicts its agency argument, but sorely stretches the limits of credulity.  There is something disingenuous about suing as a corporate entity, or as an association of boat owners for undisclosed members, and then citing agency principles in the way of defense to avoid the defendant's counterclaim.1 Just as disingenuous, is KDSFA's attempt to assert, for the[31ASR2d 84] very first time at closing arguments, the contention that all of Hong's pre-1989 accounts ought to be time barred under applicable statutes of limitations.2

 

From all outward appearances, KDSFA's filing suit amounted to nothing more than a sham preemptive strike to distract attention from Hong's threats of law suits against different KDSFA members' vessels.  KDSFA's complaint will be dismissed for want of proof, with attorney's fees, entailed in the defense of suit, awarded to Hong.

 

            II.  Hong's Claim

 

In terms of satisfactory audit trails, Hong's accounting system as reflected by his proofs tendered, was hardly any better than KDSFA's.  The accounting records tendered consisted of a note pad maintained by Hong, in Korean characters, which he claimed he had kept to detail loans that he had made over the years to KDSFA, together with a set of "red books" kept partially in English and partially in Korean and Chinese characters.  Defendant also tendered into evidence a GSA issue "Record Book," maintained by Mrs. Hong to record her recollections of significant business transactions.  These records were not in themselves particularly illuminating, let alone verifiable, while some quite clearly appear to have been made comprehensible only to its author, rather than maintained for ready third-party review.

 

Although the documentary evidence alludes to a business relationship between the parties dating back to 1984, the  starting point of Hong's proofs is a claimed 1987 accounts reconciliation exercise with Lee.[31 ASR2d 85]  Hong professes that such an exercise resulted in Lee's acknowledgment of KDSFA indebtedness to him in the amount of $185,542.50, as of July 1, 1987, for food, cigarettes, pigs, and fishing gear supplied KDSFA vessels.  Hong claims that Lee had so acknowledged this indebtedness in his sales logs--one of the "red books."

 

From our perusal of his sales log, Hong's claim to an agreement from Lee is not readily apparent.  In our assessment of the proofs, Hong's pre-1987 claim is found to be insufficiently supported.  We fail to see why Hong's starting point should be a contentious reconciliation exercise, with its inherent evidentiary value problems, when hard copies of his pre-1987 invoices are available to him, together with access to KDSFA's canceled checks for the same time frame.  Hong's tact becomes evident when we consider his post-1987 claims.

 

The next premise of his claim is that his post-1987 invoices reveal goods and services supplied by him to KDSFA vessels in the  total amount of $2,519,221.64, while payments received from KDSFA and Samoa Packing total $1,906,169.69, a difference of $613,051.95.  This net figure is significantly higher than that net figure of $299,518.55, arrived at when utilizing actual supply invoices against canceled payment checks.  As with KDSFA's showing, Hong's manner of manipulating proofs in this regard, readily lends itself to appearances rather than substance.  His parol explanation also leaves much to be desired.

 

On the other hand, the evidence does suggest that a net balance is owing Hong when his invoices are tallied up against verifiable payments, while taking into account either side's admissions against interests.  These are the least questionable proofs available.

 

We accept, and so find as fact, that loans made by Hong to KDSFA total $642,000, as stipulated by KDSFA; that Hong's invoices received on record are true and correct as to the goods and cost of goods he supplied to KDSFA, save for those invoices relating to supply of non-KDSFA vessels as conceded by Hong; that the extent of payments made on account by KDSFA to Hong, are the sum of those KDSFA checks received on the record, less the total of those KDSFA "cash" checks contested by Hong as having been given to him for cashing; that third-party payments, principally by Samoa Packing, made on goods and supplies from Hong to KDSFA vessels total $211,430, as stipulated to by Hong.

 

We reject KDSFA's contention that the failed debt-workout plan of July 1992 somehow resulted in accord and satisfaction, and the discharge of KDSFA's indebtedness to Hong.  From our perusal of the relevant documents, we are unable to agree with the construction advocated by[31 ASR2d 86] KDSFA, even under the most imaginative reading.  From the documents, we conclude that the work-out plan merely offered Hong something in the way of light at the end of the tunnel--a seemingly viable payment plan.  This payment plan not only contemplated the satisfaction of Hong's receivables, but also the payment of third-party accounts, some of which were incurred with Lee's personal guarantee.  In our view of the evidence, all that this plan really achieved was the abeyance of Hong's threatened law suit(s).  Hong recanted his forbearance, however, when he discovered that certain fish proceeds that should have gone toward the payment plan, were diverted elsewhere by either Lee or Kim, or by both.

 

ORDER

 

On the foregoing, the following order will enter:  Hong shall, within 30 days of date hereof, file with the Clerk a verified accounting, consistent with our findings and conclusions herein, of monies due and payable on account, with a copy of that accounting to be served upon KDSFA.  Hong shall further submit a schedule of attorney's fees (exclusive of fees incurred in prosecuting his counterclaim) for the court's approval.

 

KDSFA shall have 20 days to file any opposition to the accounting filed by Hong, and if there be none, judgment will be entered accordingly.  Otherwise, the Clerk shall thereupon set this matter for further hearing upon KDSFA's filing of any opposition.

 

It is so ordered.

 



1  In most states the common law rule regarding suits by and against unincorporated associations has been changed and modified by statutory enactments.  American Samoa has no such enactment.  At common law, an unincorporated association could not sue or be sued under its own name.  See 6 Am. Jur 2d Associations and Clubs, § 51.  However, it has been held that an unincorporated association which held itself out as capable of contracting in the association's name, is estopped when sued on the contract, from asserting that it is incapable of being sued.  Id., see also Askew v. Joachim Memorial Home, 234 N.W.2d 226, 236 (1975) (stating that "an association doing business as a legal entity may, if the facts and circumstances warrant, be estopped to deny its own existence").  We believe that this is an appropriate approach for dealing with such circumstances.  Here KDSFA did business with Hong as a legal entity.  Moreover, KDSFA instituted the present action in its own name.  Equity mandates that KDSFA be estopped from now denying its existence as a legal entity, rather than merely an agent of its members.  We thus find that KDSFA is a legal entity, with the capacity to sue and be sued on its own behalf.

 

2  For one thing, counsel alluded to the wrong statute of limitations.  Second, the relationship that developed between the parties was on the basis of "open account," and every subsequent KDSFA partial payment "on account" acknowledged that indebtedness.  In such circumstances, the statute of limitations is tolled.  See In re Badger's Estate, 156 Kan. 734, 137 P.2d 198, 205

Hanipale v. Iuta,


[31 ASR2d 92]

 

FUALAAU HANIPALE, FAAMALELE TAEAOTUI, and MAGGIE PULLMAN, Plaintiff

 

v.

 

MISIAITA IUTA and OPAPO AFUALO, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 23-96

 

December 9, 1996

 

[1]  An easement by implied grant arises when the owner conveys one of two adjacent parcels of land or subdivides a single parcel, with the parties' silent intent that the grantee takes the land with all benefits that appear at the time of the transfer to belong to the land with respect to the land the grantor retains. 

 

[2]  The parties to an implied easement must manifest their intent to create an implied easement through an existing use of the retained land that is apparent, permanent, and reasonably necessary to the beneficial enjoyment of the transferred land.   The implied grant will extend to reasonably foreseeable changes in the present use.

 

[3]  To sustain an easement by implied grant, a party need only show reasonable necessity.

 

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

 

Counsel:           For Plaintiffs, Charles V. Ala`ilima

                        For Defendants, Tautai A.F. Fa`alevao

Opinion and Order:

 

Plaintiffs Faulaau Hanipale ("Hanipale"), Faanalele Taeaotui ("Taeaotui") and Maggie Pullman ("Pullman") brought this action to acquire access to their lots across land owned or formerly owned by defendants Misiaita Iuta ("Iuta") and Opapo Afualo ("Afualo").  The case was tried on October 31, 1996, with both counsel present.

 

FINDINGS OF FACT [31 ASR2d 93]

 

Iuta once owned, as individually owned land, approximately 24.995 acres in an odd-shaped tract of land called "Gaoa" in Ili`ili, American Samoa.  He split this land into four, unevenly divided parcels, numbered for our purposes: #1, 16.513 acres; #2, 3.873 acres;, #3, 3.289 acres; and #4, 1.32 acres.  The southern boundaries, moving east to west, of parcels #3, #1 and #4 front the main public road between the Pago Pago International Airport and Ili`ili.  

 

Parcel #3 includes a substantial portion of the eastern side of the entire tract.  Parcel #2 lies to the north of parcel #3, up to the northern boundary of the tract.  Parcel #1 extends the full north-south distance of the tract and covers the bulk of the western side of the tract.  Parcel #4 takes up the remainder of the western side at the southern end of the tract along the public road.

 

Afualo bought parcel #3, parcel #2, and the northern portion of parcel #1 from Iuta in the early 1970s.  Afualo then constructed a road ("the private road") from the public road across parcel #3 and into his plantation on his portion of parcel #1.  Iuta reacquired Afualo's portion of parcel #1 in the 1980s.  The documents did not contain any grant or reservation of the private road as a right of way for the benefit of the reacquired portion of parcel #1.

 

Later, in 1984, Hanipale purchased from Iuta a 0.5 acre lot in parcel #1 on the east side of the private road put in by Afualo.  In 1985, Pullman, with other members of the Penitusi family, bought two lots, totaling 0.5 acres, in parcel #1 on the west side of the private road, just south of the Hanipale lot.  Their grantor was Liaiana Salausa, a successor to Iuta.  In 1991, Taeaotui acquired from Iuta a 0.97 acre lot in parcel #1 at the north end of the private road, most of which is just north of the Hanipale lot.

 

The deeds for these three transactions also did not contain any grant or reservation of the private road as a right of way for the benefit of the lots sold.  However, abutting lot owners were able to traverse the private road to their property until Afualo permitted his sister to construct a house in the area of the northwest corner of parcel #3 several years ago.  This house, with a surrounding stone wall on three sides, obliterated a stretch of the private road and effectively blocked access by this means to the Hanipale, Pullman, Taeaotui and neighboring lots in parcel #1.

 

Owners who required regular access made temporary arrangements to reach their lands by crossing other land from another private road further west.  However, their benefactor has given notice to cease using this alternative.  Meanwhile, Afualo disclaims accountability.  He asserts that use of the private road is solely under his control, so far as Hanipale,[31ASR2d 94] Taeaotui and Pullman are concerned, and that if they are landlocked owners in parcel #1, they must look to their grantors, not him, for relief.    

 

DISCUSSION

 

Fundamentally, the decision in this case turns on whether an easement by implied grant exists under the facts.  The court has applied this common law doctrine before.  Letuli v. Lei, 22 A.S.R.2d 77, 83 (Lands & Title Div. 1992), aff'd AP No. 20-92, slip op. at 5-7 (App. Div. Nov. 15, 1994) (reversed in part on a different issue). 

 

[1-2] An easement by implied grant arises when the owner conveys of one of two adjacent parcels of land or subdivides a single parcel, with the parties' silent intent that the grantee takes the land with all benefits that appear at the time of the transfer to belong to the land with respect to the land the grantor retains.  Letuli, 22 A.S.R.2d at 83.  The parties must manifest this intent through an existing use of the retained land that is apparent, permanent, and reasonably necessary to the beneficial enjoyment of the transferred land.  Id.  The implied grant will extend to reasonably foreseeable changes in the present use.  Id.

 

Iuta and Afualo have been in the business of subdividing the entire tract for several years and, through numerous inaccurate surveys, have managed to create a maze of overlapping lots.  They must be held to respect the clearly discernible consequences, including the use of the private road, of their extensive land transactions.  When Iuta reacquired the northern portion of parcel #1[31 ASR2d 95] from Afualo, the private road was in use and had already ripened into a permanent feature.  Iuta and Afualo knew their respective grantees would purchase lots along the full length of this private road and would expect access to their lots by this means.  Those grantees actually used the private road in this manner for a substantial period, until Afualo caused the blockade.

 

[3]  Afualo points to the alternative means used to access these lots after Afualo blocked the private road as negating necessity.  Strict necessity is a requisite when the created easement is a way of necessity by operation of law.  Sese v. Leota, 9 A.S.R.2d 25, 30 Lands & Titles Div. 1988), aff'd Leota v. Sese, 12 A.S.R.2d 18 (App. Div. 1989).  However, only reasonable necessity is required to sustain an easement by implied grant.  Letuli, 22 A.S.R.2d at 83. 

 

The owner has rightfully given notice to stop using the alternative route over his land, possibly making use of the private road absolutely essential.  However, even if this owner agreed to keep the second route open, Iuta reacquired the northern portion of parcel #1, and Hanipale, Taeaotui and Pullman, as his successors, purchased lots in parcel #1 along the private road, expecting that the private road in parcel #3 would permanently continue to be their means of ingress and egress.  Their belief was distinctly sensible.  Use of the private road was, and still is, reasonably necessary for this purpose.

 

ORDER

 

1.  We declare that an easement for roadway and utility purposes, over, under and above the full length of the private road on parcel #3, was created by implied grant at the time Iuta reacquired the northern portion of parcel #1 from Afualo for the benefit of parcel #1 and the lots later subdivided along the private road in parcel #1, as the dominant tenements, and for the burden of parcel #3, as the servient tenement, and hold Afualo liable to Hanipale, Taeaotui and Pullman for their continued use of the private road in parcel #3.1

 

2.  Since a solution to the closure of the private road, without removing a portion of Afualo's sister's house and the stone wall around the house, is on the table, we will postpone fashioning a final remedy, including but not limited to injunctive relief and monetary damages, for a period of 90 days, or until March 10, 1997, to give the parties opportunity to successfully settle on this proposed or any other viable solution.  During this 90-day period, any party may move the court to conduct a further evidentiary proceeding, if necessary or appropriate, as relevant to developing the final remedy.     

 

It is so ordered.

 

 

 



1  This order obviates any need to presently rule on Iuta's liability, if any, to Hanipale, Taeaotui andPullman in this action.

Garrett; Pita v.,


[31 ASR2d 158]

 

 

 SEQ CHAPTER \h \r 1VI`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

_________________________________

[31 ASR2d 159]
TIMU LEVALE, on behalf of the TIMU FAMILY, Plaintiffs

 

v.

 

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

 

____________________________________

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

HEIRS OF IOANE FE`AFE`AGA ENE, aka MAUGA FE`A ENE, TOLANI TELESO FUGA, ELETISE MATAGI WOLMAN, SENOVEFA 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 GARETT, AMERIKA SAMOA BANK, and DOES 1-10, Defendants

_________________________________________

 

TERRITORIAL REGISTRAR on behalf of the HEIRS OF IOANE FE`AFE`AGA ENE, Claimants

 

v.

 

TELESIA FE`A FIAME, on behalf of the FE`A FAMILY, ELETISE MATAGI WOLMAN, SENOUEFA PRITT, TAUINALOLA LAUAMA, FUGA TOLANI TELESO, VI`I PITA, FIALE LARSON, aka FIALE NIKO, aka SOVITA SUAFOA, and SOVITA LIVING TRUST, Objectors

 

High Court of American Samoa

Land and Titles Division

 

LT No. 14-93

LT No. 20-93

LT No. 10-95

LT No. 20-96

 

February 13, 1997[31 ASR2d 160]

 

[1]  Under A.S.C.A. § 40.0332, the terms “estate” and “heirs” are not equivalent, rather an estate includes “heirs, legatees, devisees and creditors.” 

 

 

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

 

Counsel:           For Plaintiff/Counterdefendant/Defendant/Objector Vi`i Pita, and Defendants/Objectors Tolani Teleso Fuga, Eletise Matagi Wolman, Senouefa Pritt, Tauinaola Lauama, Fiale Niko, and Sovita Living Trust, Marshall Ashley

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

For Plaintiff American Samoa Government, Claimant/Cross-Defendant Territorial Registrar, and Cross-Defendant Survey Manager of the Department of Public Works Meko Aiumu, 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, Togiola T.A. Tulafono

For Defendant Ioane Fe`afe`aga Ene and Claimants/Defendants Heirs of Ioane Fe`afe`aga Ene, Albert Mailo

For Defendant Pearlita Candy Fuavai, Afoa L. Su`esu`e Lutu

For Defendant Amerika Samoa Bank, for itself and on behalf of Tagitagi Lauama, William H. Reardon

For Objector Telesia Fe`a Fiame, on behalf of the Fe`a Family, Tautai A.F. Faalevao

Order Denying Motion for Summary Judgment:

 

Objectors Vi`i Pita, Tolani Teleso Fuga, Eletise Matagi Wolman, Senouefa Pritt, Tauinaola Lauama, Fiale Niko, and Sovita Living Trust moved for a summary judgment against defendants Miriama Garrett and Richard Garrett, Ray McMoore and Sese McMoore, Timu Family, Pearlita Candy Fuavai, Amerika Samoa Bank, and Does 1-10.  The court regularly heard the motion on January 6, 1997.

 

DISCUSSION[31 ASR2d 161]

 

On July 6, 1993, this court denied a motion for a preliminary injunction in LT No. 20-93 and declared that the title registration of approximately 8.37 acres of land known as "Tualepipi" in Ili’ili, American Samoa (“the land”), by defendant Ione Fe`afe`aga Ene (“Ene”), now deceased, as his individually owned land was “void” because the registration was not in accordance with statutory law.

 

[1]  On December 21, 1995, this court ordered the Territorial Registrar to commence the title registration process of the land in the name of Ene’s Estate, and in due course complete the registration process in full compliance with all applicable procedures.  Unfortunately, the Territorial Registrar commenced the title registration process in the name of Ene’s “heirs,” not Ene’s “Estate.”  Under A.S.C.A. § 40.0332, claimants under an estate include “heirs, legatees, devisees and creditors.”  Thus, “heirs” is not the equivalent of an “estate,” and a finding that Ene’s heirs have title to all 8.37 acres would not guarantee that Ene’s grantees and their successors would have a right to own the land purportedly purchased from Ene prior to Ene’s death.

 

One of the goals of the court’s order to commence registration again was to enable the court to proceed with these consolidated actions and the pending probate of Ene’s Estate.  We ordered the Territorial Registrar to commence registration in the name of the Estate.  The Territorial Registrar failed to do so.  Because the Territorial Registrar violated the court’s order, we hold that the action was ineffective for any purpose, and therefore void.1

 

ORDER

 

The court denies the motion for a summary judgment.[31 ASR2d 162]

 

The Territorial Registrar shall commence the registration process of the land in the name of Ene’s Estate within 30 days of the entry of this order.  Since Ene’s earlier attempt to register the property was “void,” i.e. “without force and effect and  incapable of being enforced by law,” Black’s Law Dictionary 1411 (5th ed. 1979), we emphatically declare this process to be a new and original title registration, requiring new notice according to statutory prescription.  Any party seeking judicial declaration of their interest in any portion of the property, including those individuals whose interests stem from Ene's Estate, must file an objection with the Territorial Registrar within the 60-day period following the commencement of the registration process.

 

We also reaffirm the court's order orally announced on January 6, 1997, that LT No. 14-93, LT No. 20-93, and LT No. 10-95 are consolidated with LT No. 20-96.  However, we necessarily vacate the previously scheduled trial date of March 27, 1997 for these four consolidated actions to accommodate the renewed title registration process.  Any party may move for a new trial date after completion of the title registration process.

 

It is so ordered.

 

 



1  The movants for a summary judgment seek a declaration that the parties opposing the motion do not own the land, or any part of it, and their dismissal with prejudice from these actions.  The movants base their motion on the opposing parties' failure to object, within the statutorily afforded 60-day time period, during the Territorial Registrar's purported title registration proceedings.

 

The opposing parties could rightly assume that the title registration would be initiated for Ene’s Estate, according to the court's order, and fail to register their objections or claims to the land, or some portion of it, with the Territorial Registrar.  Citizens have a legitimate expectation that public officials will act according to court orders; as a matter of equity, the court is reticent to dismiss the claims of parties who detrimentally relied on this expectation.

Aumavae; Mailo v.,


[31 ASR2d 6]

 

MOLIPOPO MAILO,  Plaintiff

 

v.

 

ROSALIA AUMAVAE, IOSEFO TALOLO,and AMERIKA SAMOA BANK, Defendants

________________________________

 

AMERIKA SAMOA BANK and IOSEFO  TALOLO, Cross-Claimants,

 

v.

 

ROSALIA AUMAVAE, Cross-Defendant.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 3-95

 

October 1, 1996

 

[1]  The court may, on its own motion, clarify its discussion in an opinion and order.

 

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

 

Counsel:           For Plaintiff, Charles V. Ala`ilima

For Defendants/Cross-Claimants Iosefo Talolo and Amerika Samoa Bank, William H. Reardon

For Defendant/Cross-Defendant Rosalia Aumavae, Pro Se

 

Order Clarifying and Amending Part of Opinion and Order:      

 

[1]  One part of our discussion in the opinion and order, entered on September 24, 1996, needs clarification, and we will do so on our own motion.

 

We stated in the first full paragraph on page 6 of our decision that "We think that ASB was under a duty to ensure that the land described in a deed and mortgage to secure a loan was actually owned by the mortgagor and, failing to inquire, is constructively notified of the defect and acted at its peril."

 

[31 ASR2d 7] The word "duty" may mislead.  We did not mean to impose an affirmative duty upon a mortgagee to check a mortgagor's ownership of land used as collateral for a loan or risk losing foreclosure rights on default of the underlying loan.  We only intended to point out that a mortgagee cannot foreclose against land described in a deed and mortgage which the mortgagor does not actually own, in the absence of any basis for reformation of the mortgagee's deed.  The mortgagee's fraud in inducing her grantor's conveyance of the land rendered the deed void and precluded the possibility of reformation in this case.

 

ORDER

 

1.  The opinion and order is amended by deleting the first and second full paragraphs on page 6 in their entirety and substituting the following paragraphs therefor:

 

However, as ASB later discovered, the land described was not the land actually intended to be conveyed and mortgaged.  Unless reformed, the deed conveyed nothing to Rosalia, and ASB is constructively notified of the defect.  See National Resources, Inc. v. Wineberg, 349 F.2d 685, 690 (9th Cir. 1965). 

 

Since the deed was absolutely void by reason of Rosalia's fraud upon Molipopo, ASB cannot obtain reformation of the deed and is not protected as a bona fide encumbrancer, even though it acted in good faith.  See Trout, 32 P.2d. at 970; Bryce, 55 P.2d at 489.

 

2.  The Clerk of Courts shall have a certified copy of this order registered with the Territorial Registrar.

           

It is so ordered.

 

 

 

********

 

Atualevao; American Samoa Gov’t v.,


[31 ASR2d 29]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ATUALEVAO MEREDITH, TOAONO KELEMETE, and JOHN DOES 1-10, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 19-94

 

October 10, 1996

 

[1]  Under A.C.R. 8(a), a party must apply to the trial court for a stay of execution of the judgment pending appeal. 

 

[2]  Judgments of the court in non-criminal actions cannot be stayed pending appeal except for cause shown. 

 

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

 

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

                        For Defendants, Albert Mailo and Solomona Toailoa, Pro Hac Vice

Order Denying Stay of Execution of Judgment Pending Appeal:

 

The court granted summary judgment in this action to plaintiff on April 26, 1995, and denied the motion for reconsideration, new trial or relief from judgment on June 27, 1995.  Defendants timely appealed on July 7, 1995.   

 

[1]  Defendants have first, and properly under A.C.R. 8(a), applied to the trial court for a stay of execution of the judgment pending appeal.  We regularly heard the motion on October 7, 1996, and now deny the application.

 

[2]  Judgments of this court in non-criminal actions cannot be stayed pending appeal except for cause shown.  A.S.C.A. § 43.0803.  We will discuss the issue of cause, using the interrelated criteria which are well set forth in Asifoa v. Lualemana, 17 A.S.R.2d 100, 102 (Appellate Div. 1990).  See also Asifoa v. Lualemana, 17 A.S.R.2d 10, 14 (App. Div. 1990). [31 ASR2d 30]

 

1.  Likelihood of success on appeal.  Apparently, defendants still maintain that there are factual issues properly determined only by trial on the merits.  We disagree.  Defendants identify factual issues which are not genuinely material to the legal issues raised by this action.  We properly resolved this action by ruling on those legal issues. 

 

We are also confident that our rulings are correct and do not present novel or difficult questions of law justifiably requiring preservation of the status quo until the appeal is decided.  In general terms, those issues concern: (1) the finality of the 1958-1960 condemnation proceedings taking the land for the Pago Pago International Airport; (2) the retroactive effect of the 1989 modification of the condemnation laws to require use for the stated public purpose within five years after the taking; and (3) oral gubernatorial promises to return or lease the land to the original communal landowner.

 

2.  Irreparable harm.  We do not find any irreparable harm to either party in the present situation in the event a stay of execution is either granted or denied.  However, we must still balance the relative hardships and other equities. 

 

After this court's decision on June 27, 1995, plaintiff proceeded with plans to construct a stadium on the land at issue in time for the South Pacific mini games scheduled to take place in American Samoa in 1997.  Although defendants appealed this decision on July 7, 1995, they did not ask to stay execution of the judgment until September 13, 1996.  Plaintiff has now prepared the playing field, at considerable effort and expense, and is ready to erect the grandstand to the extent available funds allow.

 

While the improvements in progress certainly impact the land, defendant's hardships are not irreparable.  If defendants prevail, or if plaintiff ever decides to return the land, they can certainly put the improvements to good use in their self-interests, or they can have the improvements removed without permanent harm to the land.  Plaintiff, on the other hand, does not have any other area suitable for the contemplated sports facilities and will be needlessly harmed by failing to adequately fulfill its commitment to other Pacific island nations and territories to host the 1997 mini games.  An element of wasted public resources is also present.  Plaintiff might well have considered alternatives, but for defendant's 14-month delay in seeking a stay.

 

Thus, we think that on balance the greater hardships fall on plaintiff's side of the ledger. [31 ASR2d 31]

 

3.  Public interests.  The general public of American Samoa has a legitimate interest in expecting plaintiff to successfully host the mini games in 1997.  The people's interests in this regard certainly exceed defendants' interests in immediately preventing further development of the stadium complex.  

 

For these reasons, we deny the application for a stay of execution of the judgment pending appeal. 

 

It is so ordered.

 

 

 

********

 

American Samoa Power Auth. v. National Pacific Ins. Co.,


[31 ASR2d 201]

 

AMERICAN SAMOA POWER AUTHORITY, Plaintiff

 

v.

 

NATIONAL PACIFIC INSURANCE CO., Defendant

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 39-92

 

March 31, 1997

 

[1]  Contracts of insurance are, as a rule, construed in accordance with general principles of contractual construction.

 

[2]  Terms in an insurance contract are taken in their plain, ordinary and popular sense.

 

[3]  When the language of an insurance policy is plain and unambiguous, the court must refrain from application of rules of construction in order to find coverage for a risk of loss not intended or contemplated within the contract. 

 

[4]If the language of an insurance contract is plainly ambiguous on the issue of coverage, the court can consider parole evidence. 

 

[5]  The proof to reform a policy on the ground of mutual mistake must be more then a mere preponderance of the evidence.  At the same time, the mistake warranting reformation must be harbored by both parties, and not just one, and must be proven by more then a mere preponderance of evidence.

 

[6]  Absent special circumstances, a party may attack a contract on the grounds of fraud only when he has exercised due diligence in protecting himself from that fraud.

 

[7]  Generally, where the failure to read the contract is induced by carelessness alone, no grounds exist for reformation or rescission. 

 

Before KRUSE, Chief Justice, and LOGOAI, Associate Judge.[31 ASR2d 202]

 

Counsel:           For Plaintiff, Marshall Ashley and Mason Martin

For Defendant, Brian M. Thompson

 

Opinion and Order:

Plaintiff, American Samoa Power Authority ("ASPA"), brought this action to recover monies for a damaged turbine, purportedly insured by defendant, National Pacific Insurance ("NPI").

 

FACTS

 

ASPA is the local power authority in American Samoa which supplies the territory with electrical power.  Its generation equipment includes turbines which are serviced and repaired under contract by an outside servicer, U.S. Turbine.  When a turbine has to be shipped off-island for repairs, ASPA rents a temporary replacement turbine from U.S. Turbine.

 

In 1988 a problem developed with one of ASPA's turbines which required its shipment off-island.  ASPA rented a replacement turbine from U.S. Turbine.  Its rental agreement with U.S. Turbine required ASPA to insure the rented turbine with All Risk Physical Insurance ("All Risk").  In pursuance of its rental obligations, ASPA sought a number of bid proposals from the various insurance companies and brokers on-island at the time, including NPI.  NPI's initial bid, put together by its reinsurer Munichre New Zealand Services Limited ("Munichre"), was not initially taken up by ASPA.  Subsequently, however, ASPA did procure insurance for the rented turbine from NPI beginning in 1988, and renewed its policy with NPI on several occasions.  However, neither ASPA nor NPI produced the 1988 version of the insurance policy.

 

On May 24, 1991, the insured turbine broke down.  On June 3, 1991, ASPA notified NPI of its imminent claim.  NPI denied the claim on the basis of limiting language contained in the 1991 version of the policy which states that NPI was responsible for damage "due solely to the negligence of the American Samoa Power Authority or their employees."   Both parties agree that the turbine break down was not due to the negligence of either ASPA or its employees.

 

DISCUSSION

 

Although the 1991 insurance policy clearly contains the limiting language which would preclude ASPA's claim, ASPA argues that 1991 policy did not embody the insurance agreement it had concluded with NPI.  Accordingly, ASPA asserts three different basis for reformation of[31 ASR2d 203] the policy: ambiguity, mutual mistake, and a quasi-fraud claim that the 1991 contract was changed from the initial policy which ASPA renewed.

 

[1-2]  First it must be stated that contracts of insurance are, as a rule, construed in accordance with general principles of contractual construction.  See Asifoa v. NPI,  SEQ CHAPTER \h \r 1CA No. 60-92, Slip Op. at 2 (Trial Div. Nov. 6, 1996).  Terms in an insurance contract are taken in their plain, ordinary and popular sense.  Id.

 

I.          Ambiguity

 

[3]  When the language of an insurance policy is plain and unambiguous, the court must refrain from application of rules of construction in order to find coverage for a risk of loss not intended or contemplated within the contract.  See Robertson v. Fowler, 475 S.E. 2d 116, 121 (W.Va. 1996).  ASPA argues that the 1991 policy is ambiguous.  Specifically, it argues that the limiting language discussed above is in conflict with Condition 3 of the policy which states that "the Insured shall at his own expense take all reasonable precautions and comply with all reasonable recommendations of the insurers . . . and comply with statutory requirements and manufacturer's."  ASPA argues that these two provisions, when read together, cover ASPA for its own negligence and that of its employee's, yet requires ASPA to "take all reasonable precautions. . . to prevent loss or damage."

 

[4]  The language is plainly ambiguous, and as such the court can consider parole evidence on the issue of coverage.  The oral parole evidence offered at trial was conflicting.  ASPA's witnesses testified that they had originally asked for and received an "All Risk" policy in 1988.  NPI's witnesses, on the other hand, stated that the coverage given in 1988 was the same as the coverage indicated in the 1991 policy.  Specifically, Martin Kreft of Munichre, testified that he had issued the limited coverage that NPI's manager at the time, Arnold Carter, had asked him to issue, and that the premium charged and paid was commensurate with the limited risk insurance.  Mr. Kreft's produced copies of correspondence bearing 1988 dates between his office and Arnold Carter, which revealed discussions pertaining to a limited--ASPA negligence only--coverage proposal.

 

Coupled with the fact that the only actual policies in evidence all contain the limiting language, we are inclined to accept Mr. Kreft's testimony as more persuasive regarding the extent of coverage initially issued by NPI to ASPA.  In contrast, we find the somewhat vague recollections of ASPA's contracting officer, Victor Stanley, to be less convincing.  Mr. Stanley alluded to a written solicitation he had sent to NPI at the outset for "all risk" insurance, but as it turns out, this writing is also non existent[31 ASR2d 204] at this time.  In these circumstances, we conclude that ASPA has failed to show by a preponderance of the evidence that the original and subsequent policies issued for the turbines were for "All Risk" insurance.

 

II.         Mutual Mistake

 

[5]  ASPA also argues that the policy should be reformed based on mutual mistake.  The proof required to reform a policy on the ground of mutual mistake must be more then a mere preponderance of the evidence.  See e.g. Hanes v. Roosevelt Nat. Life Ins. of America, 452 N.E. 2d 357, 360 (Ill.App. 5 Dist. 1983); Polaroid Corp. v. Travelers Indem. Co., 610 N.E. 2d 912, 917 (Mass. 1993).  At the same time, the mistake warranting reformation must be harbored by both parties, and not just one.  The Restatement (Second) of Contracts § 155 (1981) states:

 

[w]here a writing that evidences or embodies an agreement in whole or in part fails to express the agreement because of a mistake of both parties as to the contents or effect of the writing, the court may . . . reform the writing to express the agreement.

 

Thus, reformation for mutual mistake requires a mistake by both parties, and must be proven by more then a mere preponderance of evidence.

 

NPI offered sufficient evidence, through the testimony of Martin Kreft, that the premium ASPA paid was commensurate with the level of protection under the 1991 policy, and that the limited coverage issued by Munichre was the one asked for by NPI's Arnold Carter.  Full coverage would have apparently cost three times what ASPA was paying.  It seems clear that NPI purposefully issued the 1991 policy at the level of protection, and for the premium, which appears in that written policy.  ASPA, on the other hand, has not met its burden of proof on the issue of mutual mistake.  If a mistake existed, it was unilateral, and the written terms of the policy will not be reformed to reflect ASPA's proffered revision.

 

III. Original Contract

 

ASPA also argues that, when renewing the policy, it was renewing the original "All Risk" policy.  ASPA claims that NPI changed the terms of the policy without notifying ASPA and that the contract should be reformed to reflect the original policy which ASPA had believed that it was renewing.

 

The problem with this submission is again one of proof.  Since ASPA has the burden of proof, it was incumbent upon ASPA to satisfactorily show[31 ASR2d 205] that the original policy purchased was for "All Risk" insurance.  However, as discussed above, ASPA failed to meet this burden.  There was conflicting oral testimony about whether the original policy contained the limiting language; however, all of the written policies offered at trial contain the limiting language.  The weight of evidence tips in favor of NPI.

 

[6-7]  Moreover, even if the policy had been changed, and we have no reason to believe that this was the case, NPI's failure to read its policy does not warrant reformation.  Absent special circumstances, a party may attack a contract on the grounds of fraud only when he has exercised due diligence in protecting himself from that fraud.  See e.g. Vickers v. Roadway Exp., Inc., 435 S.E.2d 253, 254 (Ga.App. 1993).  Here, ASPA failed to read, at the very least, its 1991 policy.  At the same time, ASPA failed to offer any evidence that it had relied upon representations by NPI to the effect that the policy was "All Risk."  Generally, where the failure to read the contract is induced by carelessness alone, no grounds exist for reformation or rescission.  See e.g. Dombrowski v. City of Omer, 502 N.W. 2d 707, 710 (Mich. App. 1993), appeal denied, 506 N.W. 2d 871 (Mich. 1993).  Only where it is shown that an insurer has agreed to renew a policy but in fact issues a new policy containing different terms, may the policy be reformed to read the same as the original policy.  See Maryland Casualty Co. v. Kramel, 80 So.2d 897, 900 (La. App. 1955).  However, as discussed above, ASPA failed to prove that the initial 1988 policy issued was for "All Risk" insurance.

 

CONCLUSION

 

There being insufficient evidence to find that the initial 1988 policy issued was for "All Risk" insurance, and since all of ASPA's arguments rely on this presumption, they all fall with the finding that ASPA failed to prove that it originally contracted with NPI for "All Risk" insurance.  Judgement will therefore enter for NPI.

 

It is so ordered.

 

 

********

 

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


[31 ASR2d 180]

 

 SEQ CHAPTER \h \r 1AMERICAN SAMOA GOVERNMENT EMPLOYEES FEDERAL CREDIT UNION, Plaintiff

 

v.

 

MALUA HUNKIN, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 120-95

 

March 31, 1997

 

[1]  As non-moving party to a motion for summary judgment, a defendant is not entitled to a trial upon the unsubstantiated hope that he can produce such evidence at trial.  A defendant cannot prevail by merely asserting that a genuine issue exists for trial. 

 

[2]  Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party's offering.  If the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof.

 

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

 

Counsel:           For Plaintiff, Ellen A. Ryan

                        For Defendant, Gata E. Gurr

 

Order Granting Summary Judgment:

 

Plaintiff American Samoa Government Employees Federal Credit Union ("ASGEFCU") moves for summary judgment against defendant Malua Hunkin ("Hunkin") to recover the outstanding and delinquent balance on three loans, evidenced by separate loan agreements.  The first loan was made on October 12, 1990, in the principal amount of $24,959.22, with interest at the rate of 18%.  The second loan was made on March 12, 1991, for $8,436.30, also with 18% interest.  The third loan was made on[31 ASR2d 181] May 20, 1992, for $15,541.72, with interest at 8%  In August 1994, the interest rate on the first two loans was reduced from 18% to 15%.

 

In support of its motion, ASGEFCU offered the loan agreements of the three loans; the affidavit of Li'a Sualevai, the collection manager ASGEFCU loans, declaring the outstanding liability on the loan; the account statements detailing the payments on the loans; and Li'a Sualevai's supplemental affidavit identifying how payroll deductions are noted in the account statements.

 

In opposition to this motion, Hunkin offered an affidavit concluding that there are issues of material fact, but stating only that the payroll deductions are not shown in the account records.

 

DISCUSSION

 

Summary judgment is appropriate when "no genuine issue as to any material fact" exists.  T.C.R.C.P. 56(c); and see cases on the federal counterpart, Fed. R. Civ. P. 56(c), Anderson v. Liberty Lobby, 477 U.S. 242, 247-50 [91 L. Ed. 2d 202, 211-12] (1986) (Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 [91 L. Ed. 2d 265, 273-74] (1986).  In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party.  D. Gokal & v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold,  369 U.S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44, 46 (Trial Div. 1987)).  That is, the facts must be "beyond dispute," and the non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true.  Ah Mai v. American Samoa Gov't (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).

 

[1]  However, as non-moving party, a defendant is not entitled to a trial upon the "unsubstantiated hope that [he] can produce such evidence at trial."  Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 (9th Cir. 1969).  A defendant cannot prevail by merely asserting that a genuine issue exists for trial.  The only "factual dispute" Hunkin alludes to (accounting of payroll deductions) was clearly resolved in Li'a Sualevai's supplemental affidavit and in the account records themselves.  Indeed, there is apparently not even a factual dispute as to these payroll deductions, rather only questioning of the organization and clarity of the account summaries.

 

[2]  Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party's offering.  Thus, "if the proof in support of the motion . . . has a high degree of credibility the opponent must produce convincing proof."  See, Wright, et al., Federal[31 ASR2d 182] Practice and Procedure § 2727 at 143 (2d ed. 1983).  Thus, a non-moving party's single affidavit, if inadequate, may be insufficient opposition.  Ashwell & Company, Inc., v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1969).

 

This is quite clearly the case in this instance.  ASGEFCU offered evidence with a high degree of credibility.  Hunkin failed to produce any proof in opposition to the ASGEFCU's motion, let alone the convincing proof required to defeat it.1

 

ORDER

 

Accordingly, ASGEFCU's motion for summary judgment is granted. 

 

Judgment shall enter for ASGEFCU against Hunkin as follows:

 

Loan 1

1.  Principal sum $12,116.26;

2.  prejudgment interest $3,202.84 as of April 19, 1996 and continuing at 15% per annum until the date of the judgment;

3.  post-judgment interest at 15% per annum on the unpaid balance of the judgment.

 

Loan 2

1.  Principal sum $3,343.91;

2.  prejudgment interest $574.94 as of April 19, 1996 and continuing at 15% per annum until the date of the judgment;

3.  post-judgment interest at 15% per annum on the unpaid balance of the judgment.

 

Loan 3

1.  Principal sum $696.22;

2.  prejudgment interest $69.58 as of April 19, 1996 and continuing at 15% per annum until the date of the judgment;

3.  post-judgment interest at 15% per annum on the unpaid balance of the judgment.

 

ASGEFCU is also awarded court costs of $110 and attorney's fees on loans 2 and 3.  ASGEFCU will not be allowed attorney's fees on loan 1 until it submits Hunkin's written agreement to pay such fees.  The court will then assess the full amount of allowable attorney's fees.[31ASR2d 183]

 

It is so ordered.



1  We note that Hunkin, on June 28, 1996, and again on September 6, 1996, was given 10 days to submit a supplemental affidavit in response to the ASGEFCU's supplemental affidavit.  These periods have long since passed and Hunkin has still failed to submit any such affidavit.

American Samoa Gov’t v. Su’a,


[31 ASR2d 8]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

WILLIAM SU`A, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 27-96

 

October 2, 1996

 

[1]  A trial court may grant or deny, in its sound discretion, a continuance during trial to obtain a witness, which decision will not be overturned except upon a showing of clear abuse. 

 

[2]  In considering whether or not to grant or deny a continuance during trial to obtain a witness, the court must take into account such factors as the benefit the movant expects, the likelihood of producing the witness, the burden on the jurors, court and other witnesses, and foremost whether the continuance will achieve or nullify substantial justice. 

 

[3]  No rule requires a jury to deliberate for any set length of time, and a verdict reached in about five minutes will be upheld.

 

[4]  A juror may not impeach his own verdict once the jury has been discharged. 

 

[5]  While "extraneous" influences on the jury's deliberations can overturn a jury verdict, evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intrajury influences on the verdict is not competent to impeach a verdict. 

 

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

 

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

For Defendant, David P. Vargas, Assistant Public Defender

Order Denying Motion For New Trial:

On April 16, 1996, plaintiff American Samoa Government ("ASG") filed the information in this action, charging defendant William Su`a ("Su`a") [31 ASR2d 9]  with the crimes of assault in the second degree and unlawful use of a weapon.  Trial by jury commenced on August 27, 1996, and on August 28, the jury found Su`a guilty of both offenses as charged.

 

We scheduled sentencing on September 18, 1996.  Despite the statutory direction of A.S.C.A. § 46.2402 to file a motion for a new trial within 10 days after the announcement of the judgment or sentence, Su`a prematurely filed a motion for new trial on September 6.  The motion was set for hearing on September 17, but we rescheduled the hearing on September 18 for argument after pronouncing the judgment and sentence.1

 

On September 18, we adjudicated Su`a guilty of both offenses and sentenced him to two consecutive terms of three years' imprisonment.  We suspended execution of the sentence and placed Su`a on probation for three years on the condition, among others, that he serve a period of 18 months' detention at the correctional facility, with credit for his incarceration of the approximately six months' incarceration awaiting trial and sentencing.

 

DISCUSSION

 

Su`a essentially raised two grounds for a new trial.  First, he claimed that we granted, over his objection, ASG's request to continue the trial without good cause due to the absence of ASG's witnesses.  Second, he asserted that the jury's verdict cannot stand, because the jury returned the verdict in about five minutes and necessarily failed to properly deliberate.  Further to the second issue, he specifically maintained that the jury did not, as a matter of law, consider the evidence of self-defense.  In addition, he declared that the foreperson stated immediately after the jury was discharged that despite his efforts, the jury refused to deliberate or discuss the evidence.

 

 

1.  Continuance.

 

ASG's first witness during the trial, the victim of the assault, testified after the lunch break on the first day.  Then, ASG was unable to produce another witness.  Other witnesses to the assault and the doctor who examined the victim were under subpoena and instructions to be in the [31 ASR2d 10]  courthouse at 1:30 p.m.  The prosecutor was given opportunity to call his office about the nonappearances but was still unable to proceed or immediately explain the witnesses' absence.  We then granted, over Su`a's objection, ASG's motion to continue the trial until the following morning to produce the witnesses.

 

[1-2]  A trial court may grant or deny, in its sound discretion, a continuance during trial to obtain a witness.  People v. Laursen, 501 P.2d 1145, 1153 (Cal. 1972).  The decision to grant or deny a continuance will not be overturned except upon a showing of clear abuse.  United States v. Real Property Located at Incline Village, 47 F.3d 1511, 1521 n.5 (9th Cir. 1995).  The court must take into account such factors as the benefit the movant expects, the likelihood of producing the witness, the burden on the jurors, court and other witnesses, and foremost whether the continuance will achieve or nullify substantial justice.  Laursen, 501 P.2d at 1153. 

 

The missing witnesses were on island, under subpoena, and available to testify.  While other witnesses to the assault may have been cumulative, they may also provide a more accurate perspective on the totality of circumstances than the victim.  The doctor would best describe the nature and extent of the physical results of the encounter.  The testimony of these witnesses was relevant, material, and reasonably necessary.  An overnight delay was not unduly burdensome on any of the trial participants. 

 

ASG sought the slight delay in this situation to adequately present the prosecution case and let the jury decide the accused's guilt.  Above all, the continuance served not to repudiate but to promote substantial justice.

 

2.  Jury Deliberations.

 

[3]  The jury reached the verdict in about five minutes.  No rule requires a jury to deliberate for any set length of time.  See United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir. 1977) (per curiam) (upholding verdict that jury reached after "brief deliberation"), cert. denied, 434 U.S. 943, 98 S. Ct. 438, 54 L. Ed. 2d 304 (1977); United States v. Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970) (five to seven minutes); Kimes v. United States, 242 F.2d 99, 100-01 (5th Cir. 1957) (20 minutes) (order denying rehearing), cert. denied, 354 U.S. 912, 77 S. Ct. 1299, 1 L. Ed 2d (1957).  Substantial evidence supported the jury's verdict in this case, and we "can well understand why the jury took no longer in coming to a decision."  Wall v. United States, 384 F.2d 758, 762 (10th Cir. 1967) (verdict upheld after one hour of deliberation). [31 ASR2d 11]

 

Su`a attempted to show that the jury did not deliberate in fact by subpoenaing the foreperson.  However, the foreperson testified that the jurors did deliberate, the self-defense issue included, and unanimously agreed on Su`a guilt.  He also denied making the post-verdict statements defense counsel attributed to him.  Counsel's investigator testified in an effort to impeach the foreperson by prior inconsistent statements.  The foreperson's prior statements might have been misunderstood, but in any event, we believe his in-court testimony.

 

We also take this opportunity to express our displeasure with defense counsel's tactic in calling the foreperson to testify and state the appropriate principles involved.  We probably would have followed our instinct at the time and upheld an objection, if made, to this evidence. 

 

[4]  A juror may not impeach his own verdict once the jury has been discharged.  McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915).  This rule was formulated to foster several public policies: (1) to discourage harassment of jurors by losing parties eager to have the verdict set aside; (2) to encourage free and open discussion among jurors; (3) to reduce incentives for jury tampering; (4) to promote verdict finality; and (5) to maintain the viability of the jury as a judicial decisionmaking body.  Gov't. of Virgin Islands v. Gereau, 523 F.2d 141, 148 (3rd Cir. 1975).

 

[5]  Moreover, while "extraneous" influences on the jury's deliberations can overturn a jury verdict, "[e]vidence of discussions among jurors, intimidation or harassment of one juror by another, and other intrajury influences on the verdict . . . is not competent to impeach a verdict."  Id. 523 F.2d at 149-50 (citing United States v. Kafes, 214 F.2d 887 (3rd Cir. 1954); United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 679, 30 L. Ed. 2d 665 (1972); United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969), cert. denied, 395 U.S. 981, 89 S. Ct. 2141, 23 L. Ed. 2d 769 (1969); United States v. Kohne, 358 F. Supp. 1046 (W.D. Pa. 1973), aff'd, 487 F.2d 1395 (3rd Cir. 1973), cert. denied, 417 U.S. 918, 94 S. Ct. 2624, 41 L. Ed. 2d 224 (1974)).

 

The discharged foreperson's testimony and out-of-court remarks are not competent evidence for impeaching the verdict, because they undermine his own verdict, and concern intrajury discussions that inhere in the jury's verdict and must be protected by a veil of secrecy and confidence.  See United States v. Homer, 411 F. Supp. 972, 976-79 (W.D. Pa. 1976).  We will not allow, on our own motion if necessary, jurors to be put in this position in the future.             

 

CONCLUSION

 

[31 ASR2d 12] We deny the motion for a new trial.  It is so ordered.

 

 

 

********

 



1      On September 4, 1996, Su`a also filed a motion for a judgment of acquittal, under T.C.R.Cr.P. 29(c), which was also scheduled for hearing on September 17 and postponed until September 18.  The court heard and orally denied this motion before pronouncing the judgment and sentence on September 18.

American Samoa Gov’t v. Pu’aa,


[31 ASR2d 73]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

RICKY ANTHONY PU`AA and POE FAUMUINA, Defendants

 

High Court of American Samoa

Trial Division

 

CR No. 29-96

CR No. 30-96

 

November 22, 1996

 

[1]  The trial court must weigh the prejudice to a defendant by a joint trial against the interests of judicial economy, and factor in the means of lessening the detriment. 

 

[2]  The trial court abuses its discretion in refusing a severance when the defendant is denied a fair trial because the prejudice in a joint trial cannot be effectively alleviated and thus compels separate trials. 

 

[3]  The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive.

 

[4]  The court clearly has a continuing duty at all stages of the trial to grant severance if prejudice does appear.

 

[5]  The extent the U.S. Constitution would deprive ASG of the ability to search the luggage of persons entering American Samoa, it is inapplicable in American Samoa.  This situation is the kind where rights which may be fundamental in the United States would tend to be destructive to the traditional culture. 

 

[6]  The Legislature of American Samoa has not condemned a class of people by passing A.S.C.A. § 27.1001(i), which defines "foreign" as meaning "any place beyond the limits of American Samoa."  A.S.C.A. § 27.1001(i) simply defines the term "foreign" for purposes of applying the customs regulations set forth in A.S.C.A. §§ 27.1001-27.1031. 

 

[7]  There is no other venue available for ASG's felony prosecutions other than the High Court of American Samoa. [31 ASR2d 74]

 

[8]  A.S.C.A. § 3.0232(b), which seems to mandate that jury voir dire is the court's exclusive province, prevails over any court rule to the contrary.  See  T.C.R.Cr.P. 24(a).

 

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

 

Counsel:           For Plaintiff, Lionel M. Riley, Assistant Attorney                                    General

For Defendant Ricky Anthony Pu`aa, William H. Reardon

                        For Defendant Poe Faumuina, Barry I. Rose

 

Order Denying Motions To Sever, Surpress Evidence and Change Venue, and Concerning Jury Voir Dire:

 

On October 15, 1996, defendant Ricky Pu`aa ("Pu`aa") moved to sever the trial, suppress his statements, suppress all evidence seized, and change venue or permit extensive voir dire of prospective jurors by the court and counsel or the court.  On October 23, 1996, defendant Poe Faumuina ("Faumuina") moved for attorney conducted voir dire after the court's inquiries to the jurors.  We heard all motions on November 6, 1996.  All counsel were present.  Pu`aa was also present, and Faumuina waived his right to be present. 

 

DISCUSSION

 

1.         Severance

 

Pu`aa and Faumuina are jointly charged by plaintiff American Samoa Government ("ASG") with possession of a controlled substance, to wit: methamphetamine, on or about April 12, 1996, in American Samoa, in violation of A.S.C.A. § 13.1022(a).  The joinder is based on T.C.R.Cr.P. 8(b).  Pu`aa now moves to sever the trial under T.C.R.Cr.P. 14, which states in pertinent part:

 

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

Pu'aa cites United States v. Sheikh, 654 F.2d 1057 (5th Cir. 1981) in support of his motion.  The trial court’s refusal to sever was upheld in[31ASR2d 75] Sheikh.  The key factors in that case are notably similar to those highlighted by the motion in this case.  First, however, we will state the standards applicable to severance, which the Sheikh court also enunciated clearly. 

 

[1-3]  The trial court must weigh the prejudice to a defendant by a joint trial against the interests of judicial economy, and factor in the means of lessening the detriment.  Sheikh at 1064.  The trial court abuses its discretion in refusing a severance when the defendant is denied a fair trial because the prejudice in a joint trial cannot be effectively alleviated and thus compels separate trials.  Id.  "The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive."  Id. at 1065.      

 

As in this case, each codefendant in Sheikh asserted lack of knowledge of the controlled substance in the container.  These defenses are not antagonistic.  Each codefendant in Sheikh also claimed the container belonged to another codefendant.  These defenses are antagonistic, irreconcilable, and mutually exclusive.  Neither Pu`aa nor Faumuina has yet to expressly make this contention.  Perhaps Faumuina does implicitly, but Pu`aa has not disclaimed bringing the container to American Samoa.  Moreover, neither Pu`aa nor Faumuina has yet to bolster any finger pointing by claiming knowledge or belief that the other knew the controlled substance was present in the container.  This factor materially minimized any prejudice in Sheikh.  In sum, Pu`aa has not shown compelling prejudice on the basis of antagonistic, irreconcilable, and mutually exclusive defenses. 

 

Moreover, as ASG points out, the United States Supreme Court recently declined to adopt a rule mandating severance whenever codefendants have conflicting defenses, noting that "Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion."  Zafiro v. United States, 122 L. Ed. 2d 317, 325 (1993).  The Zafiro court enumerated some instances where prejudice might be found, none of which are apparent in the case at bar.

 

[4]  This court clearly has "a continuing duty at all stages of the trial to grant severance if prejudice does appear."  United States v. Kopituk, 690 F.2d 1289, 1316 (11th Cir. 1982).  Currently, however, no showing of compelling prejudice appears.  We have no reason to believe that the defenses offered by Pu'aa and Faumuina will be so antagonistic as to be irreconcilable and mutually exclusive.  Indeed, at this point we have no[31ASR2d 76] reason to believe that the defenses will be more then merely marginally antagonistic. 1

 

Pu`aa's counsel also foresees that Faumuina's counsel will be hostile and adversarial towards Pu`aa during the trial to the point of denying Pu`aa a fair trial.  However, we are confident at this point that if that risk of prejudice becomes apparent, less dramatic measures, such as limiting instructions and trial supervision will suffice to cure any such risk.  See Zafiro, 122 L. Ed. 2d at 325; Sheikh, 654 F.2d at 1066. 

 

As such, Pu`aa's motion to sever will be denied.

 

2.         Suppression of Pu`aa's Statements

 

Pu`aa next moves to suppress the statements he gave to law enforcement officers after his arrest on the grounds that he was not informed of and did not waive his Miranda rights before he made the statements.  Pu`aa was arrested and made both oral and written statements while he was at the Pago Pago International Airport. Pu`aa made an oral statement and then a written statement.  The written statement bears a beginning time of 2:45 a.m. and concluding time of 3:00 a.m.  He was also warned and signed a waiver of his Miranda rights, which bears a time of 1:51 a.m.  Both parties agree that police officer Paulo Leuma, not Pu'aa, filled in these times.    

 

Pu`aa testified at the hearing that his statements were compelled prior to him receiving his Miranda warning.  Kaleialoha Cadinha, Pu`aa's girlfriend, testified, in support of his claim, that she received a collect phone call from Pu'aa while he was incarcerated in the territorial correctional facility, where he was taken after his interrogation at the airport.  She testified that the phone call was made between 2:00 a.m. and 2:30 a.m. American Samoa time.  She called American Samoa later to confirm Pu`aa's arrest.  Pu`aa argues that this testimony puts into serious[31 ASR2d 77] doubt ASG's position that Pu`aa's statements, the written statement beginning at 2:45 a.m., were made after he waived his rights.

 

Both officer Leuma and customs officer Se Lautogia testified that the waiver was signed before the statements were given.  They did not agree on the exact time the documents were signed, but both agreed the waiver came first.  The order, and not the exact time, is the important issue.    

 

Although no witness gave a perfectly lucid description of events, we find that ASG's witnesses gave more reliable accounts.  The testimony by Pu`aa and Cadinha on the time of their phone calls also presents a best evidence problem.  Surely telephone records or bills exists which contain Pu`aa's long distance collect call to Hawaii and Cadinha's subsequent long distance calls to American Samoa.  Pu`aa failed to proffer such a record or bill.

 

We find that Pu'aa was fully apprised of his Miranda rights and waived those rights before he gave his oral statement and then wrote and signed his written statement.  Thus, Pu`aa's motion to suppress his written statement will be denied.

 

3.         Suppression of Evidence Seized

 

Pu`aa also moves to have the seized evidence, the brief case containing the controlled substance, suppressed.  Pu`aa argues that the customs search at the airport was an unconstitutional search and seizure in violation of Pu`aa's right to travel as protected by the U.S. Constitution. 

 

Further, Pu`aa argues that the Legislature of American Samoa cannot enact a statute defining U.S. citizens and nationals as "foreign" and then subject those "foreign" persons to a search when traveling between U.S. jurisdictions, specifically from Hawaii to American Samoa, when the U.S. Congress has defined an “alien” in U.S.C.S. § 1101(a)(3).  He asserts that the supremacy clause of Article VI of the U.S. Constitution precludes the territorial legislation.

 

[5]  The extent the due process clause of the U.S. Constitution may apply to American Samoa is still unclear.  See Banks v. American Samoa Government, 4 A.S.R.2d 113, 124-125 (1987).  However, as the Banks court stated, the U.S. Constitution does not apply when it would tend to be destructive of traditional Samoan culture.  We believe that to the extent the U.S. Constitution would deprive ASG of the ability to search the luggage of persons entering American Samoa, it is inapplicable in American Samoa.  This situation is the kind where rights which may be[31 ASR2d 78] fundamental in the United States would tend to be destructive to the traditional culture.  Id.2 

 

Moreover, Article I, § 3 of the Revised Constitution of American Samoa specifically authorizes the enactment of legislation to protect the lands customs and culture of American Samoa.  This statute falls squarely within the ambit of that constitutional authorization.

 

[6]  Pu`aa's next argument, regarding the supremacy clause, is spurious at best.  A.S.C.A. § 27.1001(i) defines "foreign" as meaning "any place beyond the limits of American Samoa."  The Legislature of American Samoa has not condemned a class of people by passing this statute.  Rather, the Legislature has merely defined a term for purposes of a particular statute.  This definition does not diminish the citizenship of anyone who travels beyond the borders of American Samoa.  Nor does it attempt to modify 8 U.S.C.S. § 1101(a)(3), the U.S. Constitution, or American Samoa's Instruments of Cession with the United States.  Rather it simply defines the term "foreign" for purposes of applying the customs regulations set forth in A.S.C.A. §§ 27.1001-27.1031. 

 

As such this statute implicates neither the right of intrastate travel as guaranteed by Article IV, § 2, nor the supremacy clause of Article VI of the U.S. Constitution.  Thus, Pu`aa’s motion to suppress the evidence seized as a result of the customs search will be denied.

 

4.  Change of Venue

 

Pu`aa moves for a change of venue in light of certain pretrial publicity and suggests that ASG should fund travel to Hawaii to obtain an impartial jury. 

 

[7]  There is, of course, no other venue available for ASG's felony prosecutions other than the High Court.  Pu`aa's motion for change of venue is therefore denied.

 

5.  Jury Voir Dire [31 ASR2d 79]

 

Alternatively to a change of venue, Pu`aa moves for extensive voir dire of the prospective jurors by the court and his counsel or by the court alone.  Faumuina moves to allow his counsel to voir dire jurors in addition to the court's inquiries.

 

Both Pu`aa and Faumuina submitted comprehensive questions for jury voir dire in conjunction with these motions.  We will study those questions in preparing for the court's voir dire and ask the prospective jurors the ones, at least in substance, we consider appropriate.  We will also take every reasonable precaution to ensure that counsel may effectively exercise Pu`aa’s and Faumuina’s right to challenge jurors for cause and peremptorily. 

 

[8]  Faumuina cites T.C.R.Cr.P. 24(a) as authorizing attorney conducted voir dire.  On the other hand, A.S.C.A. § 3.0232(b) seems to mandate that jury voir dire is the court's exclusive province.  The statute prevails over court rules.  See, e.g., 16 Cal. Jur.3d (Rev.), Courts § 162 (1983); see also Southwest Metal Fabricator v. Internacional de Aceros, S.A., 503 F.Supp. 76, 78 (S.D. Texas 1980).  However, we intend to consider this matter further and will advise counsel of the court's final position before the trial begins.  If we conclude that attorney conducted voir dire is permissible, and if during voir dire it appears useful to have counsel question the prospective jurors, we will allow all counsel to participate in the process directly.

 

ORDER

 

We deny Pu`aa’s motions to sever, suppress statements and other evidence, and change venue.  We will make a final ruling on the motions to allow attorney conducted jury voir dire before the trial begins.

 

It is so ordered.



1  Pu`aa also claims compelling prejudice in Dennis Fuimaono’s deposition testimony.  However, we do not yet have this deposition before us to evaluate for this or any other purpose.  Moreover, we will observe that, to the extent Fuimaono’s testimony incriminates Pu`aa, Faumuina is not the apparent direct source.  If Pu`aa is ultimately convicted, Fuimaono’s testimony may or may not contribute to that result.  All incriminating evidence is prejudicial by nature, but that feature does not itself impair admissibility or require severance.  Furthermore, we do not now know whether Fuimaono’s testimony, either in person or by deposition, will actually be adduced at the trial or, if it is, by whom.

2  Even were the U.S. Constitution applicable in this instance, we believe that this statute would surely pass constitutional muster.  Since no suspect classification is involved the statute would need only pass the rational basis test. Surely this statute is rationally related to the legitimate public interest of regulating imports into American Samoa, and safeguarding against dangerous or illegal materials.  This is particularly true so long as American Samoa is outside the customs area of the United States.  See 19 U.S.C.S. § 1401(h).  

American Samoa Gov’t v. McKenzie,


[31 ASR2d 151]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

AUGUSTINE M. McKENZIE, Defendant

 

High Court of American Samoa

Trial Division

CR No. 71-85

January 31,1997

[1]  The Trial Division of the High Court lacks any authority to overturn final judgments and sentences in criminal matters.  Any relief from the judgment and sentence is exclusively within the executive's authority through commutation, reprieve or pardon.

 

Before:  RICHMOND, Associate Justice.

 

Counsel:  For Plaintiff, Pro Se

 

Order Denying Motions For Relief From Judgment And To Proceed In Forma Pauperis:

 

On January 28, 1997, Augustine M. McKenzie (“McKenzie”) moved the Trial Division of the High Court for relief from the judgment and sentence in this criminal action under the Federal Rules of Civil Procedure, Rule 60(b)(6), which is identical to Rule 60(b)(6) of the High Court's Trial Court Rules of Civil Procedure.  McKenzie also moved for an order permitting him to proceed in forma pauperis without prepayment of fees and costs or security.

 

[1]  Since McKenzie requests relief from the sentence of a criminal proceeding, Civil Procedure Rule 60(b)(6), whether territorial or federal, is inapplicable to the present case.  Furthermore, the judgment and sentence in this case is final, and the Trial Division of this court lacks any authority to overturn final judgments and sentences in criminal matters.  Any relief from the judgment and sentence at this time is exclusively within the executive's authority through commutation, reprieve or pardon.  See Rev. Const. of Am. Samoa, art. IV, § 9 of the.  The motion for relief from judgment must be denied.1[31 ASR2d 152]

 

We will also dismiss the motion to proceed in forma pauperis on the grounds that McKenzie’s supporting affidavit failed to state the nature of the action, defense or appeal, and failed to state his belief that he is entitled to redress.  See Rule 24 of the High Court's Appellate Court Rules; cf. 28 U.S.C.S. Section 1915.

 

ORDER

 

The motions for relief from judgment and for leave to proceed in forma pauperis are denied.  It is so ordered.

 

 



1      We note that in McKenzie v. Tuimavae, Civil Action No. 113-94 (Dec. 14, 1994), this court granted summary judgment against McKenzie, who had claimed, among other things, that the revocation of his release program violated due process.  Additionally, on April 9, 1996, this court denied McKenzie’s motion for temporary release from his sentence of life imprisonment.