1ASR3d

1ASR3d

Sunia; Vaela` a v.


 

TUILEFANO VAELA`A, as CHAIRMAN of the

IMMIGRATION BOARD, Plaintiff,

 

v.

 

TAUESE P. SUNIA, GOVERNOR OF AMERICAN SAMOA, TOETOGATA ALBERT MAILO,

ATTORNEY GENERAL, ROBERT PORTER, ACTING CHIEF IMMIGRATION OFFICER,

ELVIS PATEA, ASSISTANT ATTORNEY GENERAL, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 68-97

 

August 19, 1997

 

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

 

Counsel: For Plaintiff, Charles V. Ala`ilima

              For Defendants, Henry W. Kappel, Assistant Attorney General

ORDER DENYING MOTION FOR RECONSIDERATION

Defendants moved for reconsideration of the court's denial of their motion to dismiss and issuance of the preliminary injunction.  The court heard the motion on August 15, 1997.  Both counsel were present. [1ASR3d112]

 

The court, having considered counsel's written and oral arguments, denies the motion.  The preliminary injunction will continue in effect during the pendency of this action or until further order of this court.

 

**********

 

Sunia; Vaela`a v.


 

TUILEFANO VAELA`A,

as CHAIRMAN of the IMMIGRATION BOARD, Plaintiff,

 

v.

 

TAUESE P. SUNIA, GOVERNOR OF AMERICAN SAMOA,

TOETOGATA ALBERT MAILO, ATTORNEY GENERAL, ROBERT PORTER,

ACTING CHIEF IMMIGRATION OFFICER, ELVIS PATEA,

ASSISTANT ATTORNEY GENERAL, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 68-97

 

July 21, 1997

 

[1] Under American Samoan law, the term "undocumented aliens" means aliens who have reached the borders of American Samoa but have not been authorized to remain as residents in the territory. 

 

[2] Chairman of Immigration Board possessed capacity to sue where suit brought on his own behalf and where suit sought to prevent executive branch officials from usurping his powers.  Chairman was real party in interest and did not need separate, statutory authority to sue.

 

[3] A plaintiff possesses standing to sue if he is able to show: (1) an injury to a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical; (2) an injury that is causally related to the defendant's challenged conduct, and not resulting from independent action by some third party not before the court; and (3) the prospect of achieving redress for the injury from a favorable decision that is not too speculative.  [1ASR3d89]

 

[4] Chairman of Immigration Board was able to show standing to sue for declaratory relief where he claimed that defendants had usurped his powers by issuing amnesty to more than 2,000 previously undocumented aliens.  Plaintiff’s injury was concrete, particularized, actual, related to the defendants' challenged conduct and could be redressed by a favorable court ruling.

 

[5] A preliminary injunction may be ordered under American Samoan law when it is shown: (1) that there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.

 

[6] A court tests substantial likelihood of success by whether the movant has a good chance of success, evaluated in the court's discretion, not measured by any mathematical probability, and taking into account serious issues calling for more deliberate consideration. 

 

[7] The power protect American Samoa's borders is vested in both the executive and legislative branches and the Governor's authority over immigration matters is limited by the statutory grant of the Legislature.

 

[8] The Immigration Board possesses jurisdiction to issue authorizations to aliens so that they may remain in American Samoa.

 

[9] The Attorney General is charged with the administration and enforcement of the immigration laws except insofar as such laws relate to the powers, functions, and duties of the Immigration Board. 

 

[10] Where Governor initiated amnesty program, allowing undocumented aliens to remain in territory, such program did not effectuate the purpose of limiting entry into American Samoa set forth in A.S.C.A. § 41.0201(b).

 

[11] Simply naming a program an "amnesty" program does not bring it within the scope of the Governor's pardoning power

 

[12] The Governor’s pardoning power is limited to granting reprieves for past offenses and can only be exercised after an individual has been convicted. 

 

[13] Although Governor may grant pardons, or amnesty, after convictions for immigration violations, he isn’t empowered to change a particular undocumented alien's immigration status. [1ASR3d90]

 

[14] “Great or irreparable injury” includes wrongs that ought not be inflicted on another person, and may be characterized by a course of repeated and continuing conduct and/or consist of an overbearing assumption by a person of superiority and domination over the rights of another.

 

[15] Executive officials’ assumption of Immigration Board’s and Chairman’s powers and duties, when repeated more than 2,000 times, and potentially ongoing is a sufficiently great or irreparable injury to justify a preliminary injunction. 

 

Before RICHMOND, Associate Justice, TUA`OLO, Associate Judge, and LOGOAI, Associate Justice.

 

Counsel: For Plaintiff, Charles V. Ala'ilima

   For Defendants, Henry W. Kappel, Assistant Attorney General

ORDER DENYING MOTION TO DISMISS

AND ISSUING PRELIMINARY INJUNCTION


[1] Plaintiff Tuilefano Vaela`a, in his official capacity as the Chairman of the Immigration Board of American Samoa, brought this action for judicial determination of the validity of the amnesty program, the purpose of which is to legitimate the immigration status of certain undocumented aliens.[1]  Defendant Tauese P. Sunia, in his official capacity as the Governor of American Samoa, initiated the program.  Defendants Toetogata Albert Mailo, Robert Porter and Elvis Patea, in their respective official capacities as Attorney General of American Samoa, Acting Chief Immigration Officer and Assistant Attorney General, are carrying out the program. 


On June 19, 1997, the court heard defendants' motion to dismiss and plaintiff's application for a preliminary injunction and took the motion and application under advisement, establishing a follow-up briefing schedule.  Both counsel were present at the hearing.  We have considered the testimony, counsel's oral arguments, documents filed before the hearing, and the follow-up briefs and supplements, and will deny the motion to dismiss and grant the application for a preliminary injunction. [1ASR3d91]

 

Motion to Dismiss


Defendants moved to dismiss this action on the grounds that plaintiff lacks both the capacity and standing to sue.

 

I.  Capacity to Sue


[2] Defendants contend that plaintiff has no capacity to sue because there is no statutory authorization for the Immigration Board to sue on its own behalf.  Defendants, however, mischaracterize plaintiff's status in this action.  Plaintiff is not suing on behalf of the board.  Rather he is suing as the person who currently holds the position of Chairman of the Immigration Board.  He is the actual real party in interest in a suit which seeks to prevent Executive Branch officials from alleged unlawful exercise of his powers and duties as the Chairman.[2]  See A.S.C.A. § 43.1101 and T.C.R.C.P. Rule 17.


Thus, we hold that plaintiff has the capacity, and needs no separate statutory authorization, to sue on his own behalf in this action.

 

II. Standing to Sue

[3] A plaintiff has standing to sue if he shows: (1) an injury to a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical; (2) an injury that is causally related to the defendant's challenged conduct, and not resulting from independent action by some third party not before the court; and (3) the prospect of achieving redress for the injury from a favorable decision that is not too speculative.  See Mulitauaopele v. Togafau, 26 A.S.R.2d 52, 53-54 (Trial Div. 1994) (citing Northeastern Fla. Chapter of the Assoc. Gen. Contractors of America v. City of Jacksonville, Fla, 508 U.S. 656, 663-664, 113 S.Ct. 2297, 2301-2302, 124 L.Ed. 2d 586, 595 (1993)).


We believe that the case law respecting the standing of a legislator to sue for an executive branch intrusion into the legislator's duties is both helpful and closely analogous.  Clearly, the federal courts and this court recognize a legislator's standing to sue on his own behalf.  See e.g. Senate v. Lutali, 26 A.S.R.2d 125, 127-129 (Trial Div. 1994) (Order Denying in Part and Granting in Part Motion to Dismiss).  [1ASR3d92]


The injury in those cases often centers upon the legislator's interest in performing the powers and duties of his office and the impairment that the legislator suffers when his powers, duties and the general efficacy of his office are usurped by executive branch action.  Id.  The injury in those cases is similar to the purported injury in the present case. 


[4] Here plaintiff is claiming that defendants are usurping his powers and duties as the Chairman of the Immigration Board.  This injury is concrete, particularized, and actual.  Defendants have already instituted the amnesty program and granted authority to remain to more than 2,000 previously undocumented aliens.


This injury is clearly related to defendants' challenged conduct.  Moreover, a favorable ruling on the declaratory relief would redress this injury by requiring defendants to terminate the amnesty program and by allowing plaintiff to exercise the powers and perform the duties of his official position.


We therefore conclude that plaintiff, suing as an individual who holds the office of the Chairman of the Immigration Board, has standing to sue for declaratory relief stating that defendants unlawfully exceeded their authority when they took over the Board's role to authorize aliens to remain in American Samoa.

 

Preliminary Injunction


[5] Under A.S.C.A. § 43.1301 sufficient grounds for a preliminary injunction exist when:


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

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

 

I.  Substantial Likelihood of Success on the Merits


[6] A court tests substantial likelihood of success by whether the movant has a good chance of success, evaluated in the court's discretion, not measured by any mathematical probability, and taking into account serious issues calling for more deliberate consideration.  Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101 (Trial Div. 1995).


Comparison of American Samoa's present situation with the federal system is instructive.  Although the President, in concert with the Congress, has wide authority to control the country's borders and regulate the admission [1ASR3d93] and exclusion of aliens, the President's authority over immigration matters is limited by the statutory grants of the Congress.  Jean v. Nelson, 711 F.2d 1455, 1465-66 (11th Cir. 1983), on reh., en banc 727 F.2d 957, 963-65 (11th Cir. 1984), reh. den. 733 F.2d 908 (11th Cir. 1984), cert. granted 469 U.S. 1071 (1984) and aff'd 472 U.S. 846 (1985).


An "amnesty" program, somewhat similar to the Governor's amnesty program, has been instituted in the United States.  See 8 U.S.C.A. § 1255(a).  However, as is obvious by the source, this program was instituted by congressional action.  The executive branch's power under this program was delegated to it by the Congress.


[7] We similarly believe that both the Governor and Legislature of American Samoa have authority to protect American Samoa's borders, but that the Governor must act within the law, as set forth in both the American Samoa Code annotated and the American Samoa Administrative Code.[3]  The Governor's authority over immigration matters is limited by the statutory grant of the Legislature.  The Legislature has not enacted any amnesty program into law.     


[8-10] The law gives the Immigration Board certain powers and duties, A.S.C.A. § 41.0205, including jurisdiction over the issuance to aliens of authorizations to remain in American Samoa.  A.S.C.A. §§ 41.0205(1) and 41.0401.  The Attorney General is charged with "the administration and enforcement of this title and all other laws relating to the entrance, immigration, registration, and status of aliens, except insofar as this title or such laws relate to the powers, functions, and duties conferred upon the board."  A.S.C.A. § 41.0206. 


The implementing administrative rules essentially reiterate the Board's powers and duties.  A.S.C.A. § 41.0301.  The Board has also delegated "all administrative duties" to the Attorney General and immigration officers, as the Attorney General deems necessary.  A.S.C.A. § 41.0302.  Immigration officers are employed in the Immigration Office, which is an agency within the Department of Legal Affairs, headed by the Attorney General.


The Immigration Board's authority over authorizations to remain in American Samoa vis-à-vis Attorney General's authority over "administration and enforcement" and "administrative duties" is not free of ambiguity.  However, we lack sufficient basis in the evidence presented at the hearing to resolve that ambiguity to our satisfaction.  Notwithstanding this hiatus, we still note that A.S.C.A. § 41.0201(b) clearly states that the immigration code is to be interpreted and construed to effect the general [1ASR3d94] purpose of the laws limiting entry into American Samoa to persons of American Samoan ancestry, and their spouses and children.  Obviously, the amnesty program by legalizing previously undocumented aliens does not effectuate the purpose of limiting entry into American Samoa.


We do not need, however, to fully determine the meaning and scope of A.S.C.A. §§ 41.0205, 41.0206, and 41.0401 and A.S.C.A.  §§ 41.0301 and 41.0302, in relation to each other and other provisions of the immigration laws and administrative rules, in order to decide on the issuance of the preliminary injunction.  Whether the Attorney General and his subordinates are exercising granted or delegated immigration authority, they can process changes in the status of previously undocumented aliens to resident aliens only on a lawful predicate.  Defendants rely on the Governor's pardoning power, not the immigration laws and administrative rules, to validate the amnesty program.  Thus, the issue is whether the Governor acted within or in excess of his authority in employing his pardoning power to grant amnesty to undocumented aliens.[4] 


[11]
Defendants contend that the Governor has unlimited power to grant amnesty under Article IV, Section 9 of the Revised Constitution of American Samoa, which provides that:


The Governor shall have the power to remit fines and forfeitures, commute sentences, and grants reprieves and pardons after conviction for offenses against the laws of American Samoa.

 

Defendants believe that this pardoning power may be used in an amnesty program to authorize undocumented aliens to remain in American Samoa.  However, although the Governor has the power to pardon, simply naming the present program an "amnesty" program does not bring it within the scope of the Governor's pardoning power.


[12-13] First, Article IV clearly only allows the Governor to grant pardons, or amnesty, after convictions.  Based on the evidence, none of the undocumented aliens benefiting from the amnesty program has been convicted of any violations of the immigration laws.  Moreover, even if the Governor was indeed granting pardons, or amnesty, after convictions for any such violations, those pardons would have nothing to do with changing a particular undocumented alien's status.  Rather, this situation would be similar to the President of the United States granting undocumented aliens pardons, or amnesty, so the aliens are not automatically ineligible for a visa or automatically excludable.  See 3A Am. Jur. 2d, Aliens and Citizens  834; [1ASR3d95] 8 U.S.C.A. § 1182.  The President would not be overriding the immigration laws, but would rather be using his pardon power as it was meant to be used and only granting reprieves for past offenses.


We conclude that the Governor's amnesty program is not a valid exercise of his constitutional pardoning power.  Further, even when the Governor properly applies his pardoning power, the Immigration Board or Attorney General, on the Board's behalf, must still issue to the pardoned undocumented alien authorization to remain in American Samoa, in accordance with to the immigration laws and administrative rules.  Thus, we hold that there is a substantial likelihood that the plaintiff will prevail at trial on the merits and that a permanent injunction will be issued against the defendants.

 

II. Great or Irreparable Injury


[14] The concept of great or irreparable injury does not mean an injury that is beyond the possibility of repair without immediate protection.  See Black's Law Dictionary 924 (4th ed. 1951).  It includes wrongs, great or small, that ought not be inflicted on another person, Id., and may consist of "an overbearing assumption by a person of superiority and domination over the rights . . . of others."  Fretz v. Burke, 55 Cal. Rptr. 879, 883 (1967).  The repeated and continuing character of a wrong may be a significant factor.  See Black's Law Dictionary at 925.[5]  


[15] We believe that defendants' assumption of plaintiff's powers and duties as Chairman of the Immigration Board, and incidentally those of the Board itself, particularly when repeated more than 2,000 times and potentially ongoing if the Governor again extends the amnesty program, is a sufficiently great or irreparable injury to justify a preliminary injunction.  The significance of the wrong is further enhanced with respect to both plaintiff and the general public when considered in light of impaired integrity of the immigration laws and the administration of those laws.

 

Accordingly, we further hold that great or irreparable harm to plaintiff and the general public has resulted, and will continue to result, before a full and final trial on the merits can be fairly held on whether a permanent injunction should issue. [1ASR3d96]

 

Order


For the reasons stated above, defendants' motion to dismiss is denied, and plaintiff's application for a preliminary injunction is granted.


During the pendency of this action or until further order of the court, each defendant, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from further implementing existing authorizations to remain and from processing additional applications for authorizations to remain in American Samoa to undocumented aliens under the Governor's amnesty program.


We also invoke T.C.R.C.P. Rule 65(a)(2).  Any evidence received during the hearing on the application for a preliminary injunction on June 19, 1997, which would be admissible upon the trial on the merits, is part of the record of the trial and need not be repeated at the trial.


It is so Ordered.

 

**********

 



[1]  We use the term "undocumented aliens" in this order to mean aliens who have reached the borders of American Samoa but have not been authorized to remain as residents in American Samoa, pursuant to the immigration laws, A.S.C.A. §§ 41.0201-41.0709, and rules, A.S.A.C. §§ 41.0201-41.1008.

[2] We believe this situation is analogous to the situation in which a legislator sues on his own behalf but the action is based upon an alleged usurpation of his powers as a legislator.  See e.g Senate v. Lutali, 26 A.S.R.2d 125, 127-129 (Trial Div. 1994) (Order Denying in Part and Granting in Part Motion to Dismiss).

[3] An administrative rule, adopted under the Administrative Procedures Act, A.S.C.A. §§ 4.1001-4.1044, has the full force and effect of law.  A.S.C.A. § 4.1009(c).

[4] For purposes of this order, we accept defendants' position that words "pardon" and "amnesty" are essentially interchangeable, except to recognize that pardons are granted to individuals and amnesty is usually granted to a class or group of persons.

[5] Commentators have suggested that the term irreparable injury "adds nothing to the broader concept of inadequacy of the legal remedy, and that both are merely shorthand expressions covering the factors which determine the right to an injunction."  See B.E. Witkin, 2 California Procedure 1500 (2d ed. 1970). 

 

G.H.C. R eid & Co. v. K.M.S.T.,


 

G.H.C. REID & CO., INC., Plaintiff,

 

v.

 

K.M.S.T., K.M.S.T. WHOLESALE, and J.J. YONG, Defendants.

_________________________________

 

G.H.C. REID & CO., INC., Plaintiff,

 

v.

 

PETELO UTI and SO EUN JOO, individually and dba MALAEIMI

VALLEY MARKET, Defendant-Garnishees.

 

High Court of American Samoa

Trial Division

 

CA No. 78-89

 

July 1, 1997

 

[1] The High Court of American Samoa is guided by the tenets and principles of equity in all matters within the court's jurisdiction.

 

[2] The concept of equity is founded on the basic precepts of "common honesty, clear fairness and good conscience."

 

[3] Fraud shall not prevail, substance shall not give way to form, and technical considerations will not prevent substantial justice from being done.

 

[4] Where a transaction is "festooned" with the "badges of fraud," the court may set aside the fraudulent conveyance, and permit the plaintiff creditor to satisfy partially its judgment from the asset

 

[5] As a matter of equity, the court will not remain idle and implicitly condone a fraudulent attempt to hide assets from creditors.  To hold [1ASR3d83] otherwise would encourage a proliferation of asset transfers from debtors to friends and family members, and seriously undermine the stability of the local economy.

 

[6] Where the law is inadequate, the court may utilize its equitable powers to contrive new remedies.

 

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

 

Counsel: For Plaintiff, Jennifer L. Joneson

              For Defendants/Garnishees, Marshall Ashley

              For Defendant, J.J. Yong, Cherie Shelton Norman

 

OPINION AND ORDER

 

Introduction

 

On January 16, 1990, this court entered judgment against defendants K.M.S.T., K.M.S.T. Wholesale, and J.J. Yong ("Yong") (collectively, "Principal Defendants") in favor of plaintiff G.H.C. Reid & Co., Inc., ("Reid") in the sum of $48,804.11 plus court costs of $50 and interest calculated at 6% per annum.  At that juncture, K.M.S.T. and K.M.S.T. Wholesale had ceased their operations and Yong provided labor for Fly, Inc., in exchange for non-cash forms of compensation.  At no time since judgment was entered did any Principal Defendant attempt to satisfy any portion of the judgment.

 

After years of trying to recover on the judgment, Reid joined Petelo Uti ("Uti") and So Eun Joo ("Joo"), individually and dba Malaeimi Valley Mart ("MVM") as Garnishee/Defendants.  Reid alleges that Yong, Uti, and Joo, Yong's wife since 1988, have formed a de facto partnership designed to prevent creditors from recovering on Yong's debts, and that Yong uses MVM as a front to hide assets from Reid.  Defendants respond that only Uti and Joo created and maintain MVM, that MVM is a business entity completely separate from Yong, and that Uti and Joo are therefore not liable for Yong's personal debts.

 

Discussion

 

[1-4] The High Court of American Samoa is guided by the tenets and principles of equity in all matters within the court's jurisdiction.  See, e.g., EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88, 97 (App. Div. 1992); Sesepasara v. Sesepasara, 21 A.S.R.2d 71, 74 (Trial Div. 1992); Kneubuhl Maritime Services Corp. v. Adams, 8 A.S.R.2d 20, 23 (Trial Div. 1988); Te`o v. Manuma, 6 A.S.R.2d 135 (Trial Div. 1987).  The concept of equity is founded on the basic precepts of "common [1ASR3d84] honesty, clear fairness and good conscience."  Aetna Cas. & Sur. Co. v. Jeppesen & Co., 440 F. Supp. 394, 404 (D. Nev. 1977) (citations omitted).  In this court, fraud shall not prevail, substance shall not give way to form, and technical considerations will not prevent substantial justice from being done.  See, e.g., Pepper v. Litton, 308 U.S. 295, 304-05 (1939).  For example, in Te`o v. Manuma, this court set aside a conveyance of an asset because it was a thinly veiled attempt to defeat the rights of the transferor's creditors.  Te`o v. Manuma, 6 A.S.R.2d at 138-40.  In that case, the court held that the defendant possessed equitable title to a piece of real property even though the title to the land was technically placed in the name of the defendant's children.  Id. at 138.  The court stated that the entire transaction was "festooned" with the "badges of fraud," set aside the fraudulent conveyance, and permitted the plaintiff creditor to satisfy partially its judgment from the asset.[1]  Id. at 138-40.

 

Therefore, in the present case, equity shall be our guide as we sort through the evidence regarding MVM's formation and operation.  According to the testimony at trial, Joo alone is technically responsible for the loan from Yong's brother, and Joo, not Yong, is listed on MVM's partnership agreement filed with the American Samoa Government.  Even though we have no direct evidence that Yong actually possessed the start-up financing, and no evidence that Yong has title to MVM, we find considerable evidence that Yong constructively possessed the money, created MVM with the loan proceeds, and possesses equitable title to MVM.

 

First, Joo stood before this court and claimed inability to testify because she could not understand either the English or Samoan language.  We fail to understand how Yong's brother could possibly lend substantial sums of money[2] to his sister-in-law if she is unable to be proficient in one of the two languages of business in American Samoa.[3]  Moreover, we cannot comprehend how Joo could possibly manage a store when nearly all of her customers and vendors speak only Samoan and English. [1ASR3d85]

 

Second, as Yong admits, he approached his brother and actively participated in the discussions regarding MVM's genesis.  Yong had a number of years of experience as an owner and manager of a grocery store, and Yong's business savvy in conjunction with his blood relationship with his brother, prompted the brother to make a considerable investment in MVM.

 

Third, the evidence simply does not support Yong's contention that his wife is independently operating her own business and that he is a simple-minded man who merely follows occasional orders.  To the contrary, a number of witnesses testified at trial that they had personal experiences with Yong that indicated that Yong was not merely a dutiful, temporary servant, but rather a manager with considerable, consistent, and exclusive direction and control over MVM's operations.  Without Yong's expertise, we are satisfied that there would be no MVM.

 

Uti's testimony suggests that his only role in this entire scheme was to avoid complications associated with business licensing procedures for non-residents under A.S.C.A. § 27.0207--and occasionally to pick up some free groceries for his assistance in manipulating the system.[4]  Uti, who is employed full time by the American Samoa Government, admits having next to nothing to do with the business operation of MVM.  He testified that Yong has been a friend of his for many years and that his involvement with MVM was the procurement of the business license.  Contrary to the information furnished in MVM's business license application, Uti acknowledged that he himself had made no monetary investment in MVM and that he has neither received income from his partnership interest nor has he filed partnership tax returns for MVM.[5]

 

Furthermore, Yong admits that he receives numerous non-cash fruits of the business: food, housing, and transportation in the "company" vehicle.  Thus, while Uti and Joo's names are on the partnership agreement, the evidence indicates that Yong effectively owns, operates, and profits from MVM. [1ASR3d86]

 

Third, Reid has been consistently pursuing satisfaction of its judgment against Yong since judgment was entered in 1990.  Simultaneously, Yong has involved himself in the operations of grocery stores, and carefully avoided cash remuneration for his services.  When viewing the formation of MVM in light of the pending legal actions against Yong, one can only conclude that MVM is simply the latest in a series of mechanisms to deprive creditors of debt satisfaction.

 

[5] Thus, we are persuaded by numerous "badges of fraud" in this entire arrangement, including: 1) Yong's indebtedness to Reid, 2) Yong's close family relationship with Joo, the technical part-owner of MVM, 3) Yong's retention of control over the business operations of MVM, and the threat of litigation that loomed over Yong.  Cf. Te`o, 6 A.S.R.2d at 138.  MVM is a sham.  As a matter of equity, we cannot remain idle and implicitly condone Yong's fraudulent attempt to hide assets from his creditors.  To hold otherwise would encourage a proliferation of asset transfers from debtors to friends and family members, and seriously undermine the stability of the local economy.

 

[6] Where the law is inadequate, this court may utilize its equitable powers to contrive new remedies.  Berdie v. Kurtz, 88 F.2d 158, 159 (9th Cir. 1937).  We therefore declare that Yong constructively possesses a 100% interest in MVM, and that MVM's assets are therefore subject to Reid's judgment lien.  Judgment will enter accordingly.

 

It is so Ordered.

 

**********

 

 

 



[1] The court held that the plaintiff creditor could satisfy its judgment only from half of the asset's value, because "[i]t is within our discretion . . . to mitigate what would otherwise be the harsh effects of an equitable remedy such as setting aside a fraudulent conveyance."  Id. at 140.

[2] Yong claimed ignorance of the exact amount of the loan, but acknowledged that his brother provided at least $30,000 to start up the venture.

[3] We also note, with great suspicion, the fact that neither Joo nor Yong provided the court with the alleged written loan agreement between Joo and Yong's brother.

[4] Uti effectively admitted to deception with MVM's business license application, which he said required majority ownership by a Samoan, whereas Joo and Yong are Korean nationals.  (He additionally admitted to a similar role with the setting up of Yong's brother's business, Fly, Inc.).  That Uti has helped to obtain a business license through ruse is particularly disturbing in view of the fact that he is currently the Business License Inspector for the Development Planning Office in charge of enforcing the business licensing laws.  This is a blatant conflict of interest.

[5] In point of fact, Yong admits to MVM's failure to file income tax returns from inception, but allows that the "accountant" is currently working on this omission.

 

Fruean; Tuaolo v.


 

PUNEFUOLEMOTU M. TUAOLO,  Appellant,

 

v.

 

MANAIA E. T. VAIVAO FRUEAN, Appellee.

 

----------------------

 

SAELUA FAATE`A, Appellant,

 

v.

 

MANAIA E. T. VAIVAO FRUEAN, Appellee.

 

High Court of American Samoa

Appellate Division

 

AP No. 06-95

AP No. 07-95

 

July 8, 1997

 

[1] A rehearing is not a matter of right, but is a privilege granted at the discretion of the appellate court.

 

[2] The decision of an appellate court will stand unless the petitioner can present an argument demonstrating that the appellate court "overlooked or misapprehended" particular "points of law or fact."

 

Before: KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, and SAGAPOLUTELE, Associate Judge.

 

Counsel: For Appellant, Punefuolemotu M. Tuaolo, Tautai A.F Faalevao

              For Appellant Saelua Faate`a, Albert Mailo

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

 

ORDER DENYING PETITION FOR REHEARING

 

[1ASR3d41]

 

Introduction

 

This controversy began when appellant Punefuolemotu M. Tuaolo ("Punefu") filed a claim to the matai title "Tuaolo" of the village of Pago Pago.  In response to Punefu's action, appellant Saelua Faate`a ("Tutuvanu") and appellee Manaia E.T. Vaivao Fruean ("Vaivao") filed counterclaims.  After a trial on the merits, the trial court awarded the title to Vaivao.  Punefu and Tutuvanu appealed the trial court's decision, alleging (1) that the trial court's decision was clearly erroneous, and (2) that an appearance of partiality among the sitting associate judges impermissibly tainted the trial court's proceedings. 

 

On June 16, 1997, this court issued an opinion and order that rejected appellants' contentions and affirmed the decision of the trial court.  On June 27, 1997, Punefu filed a petition for rehearing.

 

Discussion

 

[1-2] "A rehearing is not a matter of right, but is a privilege granted at the discretion of the appellate court."  Fanene v. Fanene, 30 A.S.R. 2d 115, 116 (1996).  The decision of an appellate court will stand unless the petitioner can present an argument demonstrating that the appellate court "overlooked or misapprehended" particular "points of law or fact."  A.C.R. 40.

 

In the instant case, Punefu's petition for rehearing primarily rehashes the same arguments that he presented in the initial appeal--arguments that we concluded were unpersuasive.  See Toleafoa v. American Samoa Gov't, 26 A.S.R.2d 71, 72 (App. Div. 1994); see also Soli Corp. v. Amerika Samoa Bank, 25 A.S.R.2d 94, 95 (App. Div. 1993).  We find nothing in the petition for rehearing that exposes "demonstrable mistake" in our June 16, 1997, Opinion and Order.  Toleafoa at 72.

 

Accordingly, the petition for rehearing is DENIED.

 

It is so Ordered.

 

**********

 



* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior

** Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

Bank of Hawai’i v. Randall


 

BANK OF HAWAII, Plaintiff,

 

v.

 

EMMA RANDALL, Defendant.

 

High Court of American Samoa

Trial Division

 

CA No. 22-95

 

November 5, 1997

 

[1] An action for malicious prosecution may not be asserted by way of cross-complaint or counterclaim in the original proceedings, prior to its termination, since it is essential that the original proceedings shall have previously terminated in favor of the party bringing the malicious prosecution action

 

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

 

Counsel: For Plaintiff, Ellen A. Ryan

              For Defendant, Pro Se [1ASR3d142]

 

ORDER GRANTING MOTION TO DISMISS

 

Plaintiff Bank of Hawaii ("BOH") seeks judgment against defendant Emma Randall ("Randall") for $14,962.68, plus interest, attorney's fees and costs, based on an alleged default on a loan note, dated April 30, 1992.  The trial date is December 5, 1997.

 

Randall filed a counterclaim against BOH and its attorney, Ellen A. Ryan ("Ryan").  The basis of the counterclaim is that Randall's credit ratings, good name, reputation, and career have been ruined because of BOH and Ryan's inaccurate assertions.  Ryan moved to dismiss the counterclaim, and the motion came for hearing on October 20, 1997.

 

Discussion

 

[1] Randall's counterclaim is essentially a claim of malicious prosecution.  A required element of such a claim is the termination of a prior action in favor of the party bringing the claim for malicious prosecution.  See, e.g., H & H Farms, Inc. v. Hazlett, 627 P.2d 1161, 1167 (Kan. App. 1981)("[A]n action for malicious prosecution may not be asserted by way of cross-complaint or counterclaim in the original proceedings, prior to its termination, since it is essential that the original proceedings shall have previously terminated in favor of the party bringing the malicious prosecution action.") (quoting First Trust Co. of Montana v. McKenna, 614 P.2d 1027 (Mont. 1980) (quoting 52 Am.Jur.2d, Malicious Prosecution 14 at 195)); Bollinger v. Jarrett, 406 P.2d 834, 837 (Mont. 1965) (Defendant's counterclaim that plaintiff's action for balance due wrongfully injured the credit standing of the defendant could not be sustained on grounds of malicious prosecution because a claim of malicious prosecution requires proof of termination of a former proceeding in favor of the defendant.)

 

Because there has been no final determination of BOH's claim against Randall, Randall's counterclaim for malicious prosecution is premature and must be dismissed.  H & H Farms, 627 P.2d at 1167; Izard v. Arndt, 483 F. Supp. 261, 264 (E.D. Wis. 1980).

 

Order

 

Randall's counterclaim is dismissed without prejudice.  She may make the claim again only at the proper time.

 

It is so Ordered.

 

**********

 

American Samoa Gov’t v. Samana,


 

AMERICAN SAMOA GOVERNMENT,

 

v.

 

ABE SAMANA.

 

High Court of American Samoa

Trial Division

 

CR No. 26-97

 

July 28, 1997

 

[1] An evidentiary hearing to review probable cause for a search warrant is only mandated where a defendant alleges deliberate falsehood or reckless disregard for the truth, and can support those allegations with an offer of proof. 

 

[2] Probable cause for a warrant may be founded upon hearsay and information received from informants.

 

[3] A judge may issue a warrant without requiring informants to be produced, as long as there is a substantial basis for crediting the hearsay.

 

[4] Only affiant may be subject to impeachment at such evidentiary hearing determining existence of probable cause for warrant. 

 

[5] Criminal defendant’s assertions that warrant relied on “general and vague” statements of confidential informant, and that confidential informant may be unreliable, or may not exist were insufficient to require evidentiary hearing reviewing propriety of warrant. [1ASR3d179]

 

[6] As long as the information put forth by an informant is believed to be true by the warrant’s affiant, every fact recited in the warrant need not be correct or complete.

 

[7] Substantial basis existed for crediting hearsay of confidential informant where affiant investigated informant’s criminal history, verified the informant’s credibility with another police officer, and utilized his own knowledge to corroborate veracity of informant’s statements.

 

[8] Challenge to propriety of warrant must be more than conclusory and be supported by more than a mere desire to cross-examine affiant.

 

[9] The law enforcement privilege entitles the American Samoa Government to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.

 

[10] A trial court must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense.

 

[11] The crime charged, the possible defenses, and the possible significance of the informer’s testimony are among factors that the court should consider in determining whether disclosure of a confidential informant’s identity is warranted.

 

[12] Disclosure of confidential informant’s identity was not appropriate where defendant was charged with cultivating and possessing marijuana on his land, officers had already located and seized the marijuana, and where examination of informant would not be relevant and helpful to defendant’s case. 

 

Before RICHMOND, Associate Justice, TUA`OLO, Associate Judge, and LOGOAI, Associate Judge.

 

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

  For Defendant, David P. Vargas, Assistant Public Defender

 

ORDER DENYING MOTION FOR IN CAMERA HEARING

 

Introduction

 

On April 16, 1997, plaintiff American Samoa Government (“ASG”) fi1ed an information against defendant Abe Samana (“Samana”) The information alleged that Samana unlawfully produced a controlled [1ASR3d180] substance in violation of A.S.C.A. §§ 3.1020, 13.1001(h) and (m) and 13.1006;  that Samana unlawfully possessed a controlled substance in violation of A.S.C.A. §§ 3.1022 and 13.1006; and that Samana committed assault in the first degree in violation of A.S.C.A. §§ 46.3520(a) and (b) and 46.3111(7), (9) and (24).

 

The information is based on evidence that police gathered as a result of searching Samana’s residence and the surrounding area.  Police acted pursuant to a search warrant issued by the District Court of American Samoa on April 4, 1997.  That search warrant was issued upon the affidavit of DPS Agent Va`aolmala Sunia (“Sunia”), who stated that a “Confidential Informant” had told him that marijuana was growing near Samana’s residence.

 

Samana now moves for an in camera hearing to examine the confidential informant who had allegedly supplied the police, and eventually the District Court, with the information leading to the search.

 

Discussion

 

A.  In camera hearing to challenge probable cause for issuing a search warrant.

 

Article I, § 5 of the Revised Constitution of American Samoa provides, in part, that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and . . . things to he seized.”

 

[1-4] An evidentiary hearing to review probable cause for a search warrant, whether in camera or otherwise, is only mandated where a defendant alleges “deliberate falsehood” or “reckless disregard for the truth,” and can “support those allegations with an offer of proof.”  Franks v. De1aware, 438 U.S. 154, 171, 57 L. Ed. 2d 667, 682 (1978).  “Probable cause may be founded upon hearsay and information received from informants.”  Franks, 438 U.S. at 165, 57 L. Ed. 2d. at 678.  A judge may issue a warrant without requiring informants to be produced, as long as there is “a substantial basis for crediting the hearsay.”  Rugendorf v. United States, 376 U.S. 526, 533, 11 L. Ed. 2d at 891-92, (citing Jones v. United States, 362 U.S. 257, 271-72, 4 L. Ed. 2d 697, 708-09 (1960)); see also McCray v. Illinois, 386 U.S. 300, 311, 18 L. Ed. 2d 62, 71 (1967) (requiring issuing judge to be informed of some of the “underlying circumstances” supporting the affiant’s belief that the informant was “credible” and that his information was “reliable”).  Thus, only the affiant, not any nongovernmental informant, may be subject to impeachment at such an evidentiary hearing.  Franks, 438 U.S. at 171, S7 L. Ed. 2d at 682. [1ASR3d181]

 

[5-7] In the instant case, Samana merely states that the affiant relied on “general and vague” statements of a confidential informant, and that the confidential informant may be unreliable.  However, every fact recited in the warrant need not be correct or complete as long as the information put forth by an informant “is believed or appropriately accepted by the affiant as true.”  Franks, 438 U.S. at 165, 57 L. Ed. 2d. at 678.  In the affidavit in support of the search warrant, Sunia stated that he had investigated the informant’s criminal history (and found no record of a conviction), verified the informant’s credibility with Lt. Paulo Leuma (who had used the informant on previous occasions to uncover illegal marijuana possession), and utilized his memory to confirm that the informant’s statements wore consistent with his own personal experience with Samana and Samana’s residence.  Thus, we believe that the affidavit contains “a substantial basis” for crediting the hearsay of the confidential informant, and that there is therefore no need to produce the confidential informant at an evidentiary hearing regarding probable cause.[1]

 

[8] Finally, Samana suggests that the confidential informant “may” not exist. Of course, if this unsubstantiated allegation could effectively undermine a warrant’s presumed validity, warrants could never be issued on information from confidential informants, because such an allegation could he made in every case involving a confidential government informer.  Such a result would defy precedent and common sense.  We cannot assume that officers are committing perjury.  American Samoa Gov’t v. Samana, 30 A.S.R.2d 1, 4 (Trial Div. 1996) (Order Denying Motion for in Camera Hearing).  Therefore, without any further offer of proof from Samana regarding the affiant’s bad faith, we find no reason to respond to Samana’s self-serving statements attacking the existence or veracity of the affiant’s confidential informant.  Franks, 438 U.S. at 171, 57 L. Ed. 2d. at 682 (stating that the challenger’s attack “must be more than conclusory” and must he supported by more than a “mere desire to cross-examine” the affiant); see also United States v. Erickson, 732 F.2d 788, 790 (10th Cir. 1984).

 

B.  In camera hearing to reveal identity of informant for trial purposes.

 

Samana’s brief does not make clear whether Samana is requesting an in camera hearing solely for the purposes of testing probable cause of the [1ASR3d182] search warrant, or whether Samana also wishes to obtain the identity of the confidential informant for purposes at a trial on the merits.  Though the court expects greater precision from the Public Defender’s Office, we shall proceed as if Samana is also requesting the identity of the confidential informant for the trial on the merits.

 

[9] In general, ASG has the “privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.”  Roviaro v. United States, 353 U.S. 53, 59, 1 L. Ed. 2d 639, 644 (1957) (citations omitted). The privilege advances the public interest in effective law enforcement, and encourages citizens to fulfill their civic duty to communicate their knowledge of criminal activity to law enforcement officials.  Id.

 

[10-11] However, the privilege is not absolute, and a trial court must “balanc[e] the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro, 353 U.S at 62, 1 L. Ed. 2d. at 646.  “Where the disclosure of an informer’s identity . . . is relevant and helpful to a fair determination of the cause, the privilege must give way.”  Roviaro, 353 U.S. at 60-61, 1 L. Ed. 2d at 645; see also American Samoa Gov’t v. Samana, 1 A.S.R.2d 1, 3 (Trial Div. 1996) (Order Denying Motion for In Camera Hearing).  The Supreme Court has expressly declined to adopt a fixed rule with respect to disclosure, and instead directed trial courts to consider the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. Roviaro, 353 U.S. at 62, 1 Li. Ed. 2d at 646; see also Rugendorf, 376 U.S. at 534-35, 11 L. Ed. 2d at 892-93.

 

[12] In the case at hand, we believe that the facts weigh in favor of respecting ASG’s decision to maintain the anonymity of its informant.  Even if the confidential informant is generally a lying, cheating, no good varmint, such information has no value to Samana’s possible defenses at trial to charges of cultivating and possessing marijuana on his land.  Now that the officers have located and seized the contraband pursuant to a search warrant, the informant’s statements are of little significance to the prosecution’s case in chief.  American Samoa Gov’t v. Samana, 1 A.S.R.2d 1, 4 (Trial Div. 1996) (Order Denying Motion for In Camera Hearing).[2]  Thus, we conclude that there has been no adequate showing [1ASR3d183] that an in camera hearing involving the confidential informant “is relevant and helpful” to a particular legal theory that Samana is proposing to raise at trial or “is essential to a fair determination of the cause.”[3] Roviaro, 353 U.S. at 60-61, 1 L. Ed. 2d at 645.  We find no justification for abrogating ASG’s limited privilege to protect the identity of the confidential informant

 

Conclusion and Order

 

Accordingly, the motion for an in camera hearing is denied.  It is so Ordered.

 

**********

 

 



[1] This case is factually distinguishable from this court’s Order For In Camera Hearing with Confidential Informant in American Samoa Gov’t v. Samana, 1 A.S.R.2d 37, 38 (Trial Div. 1996), where the defendant was able to present affidavits from individuals who directly challenged the accuracy of hearsay statements of a confidential informant.

[2] The present case is tactually distinguishable from Roviaro, where the drug possession and transport charge was based on a transaction that only the confidential informant witnessed.  353 U.S. at 63, 1 L. Ed. 2d at 646-47.  Access to the confidential informant was a “vital need” because questioning the informant was the only way that the defendant in Roviaro could “explain [] or justify[] his alleged possession of the heroin” at a trial on the merits.  353 U.S. at 63, 1 L. Ed. 2d at 647. However, in the present case, the marijuana was simply growing outside Samana’s residence, and Samana cannot argue at trial that the confidential informant is the only eye-witness to the crime.  Furthermore, we fail to see how access to the confidential informant will significantly help Samana explain and justify his conduct.

[3] Samana claims that the access to the informant is “important” because it could go to the issue of whether or not he had “control” over the property on which the marijuana is found.  But court files indicate that the informant is not listed as a witness who will testify at trial.  Samana will have an opportunity to raise this defense at trial, where he will be presumed to be lacking control over the property unless the prosecution proves control beyond a reasonable doubt, and will have a chance to confront and cross-examine any witnesses the prosecution presents on the issue of control.

 

American Samoa Gov’t v. Pino,


 

AMERICAN SAMOA GOVERNMENT,

 

v.

 

PENIAMINA KOLOSE PINO.

 

High Court of American Samoa

Trial Division

 

CR No. 43-97

 

December 3, 1997

 

[1] Where a defendant has undergone a psychiatric examination and been found competent to stand trial and assist his counsel it seems logical to conclude that he would have been capable of understanding the very elemental rights that Miranda affords, notwithstanding his academic stunting.

 

[2] The Juvenile Justice Act of 1980 provides additional safeguards for juveniles beyond those discussed in Miranda v. Arizona, 384 U.S. 436 (1966).  Under ASCA § 45.0204, the "parent, guardian or legal custodian" must be advised of the child's Miranda rights in order for a waiver of those rights to be permissible.

 

[3] Where a juvenile is interviewed by police officers in the presence of the juvenile’s father the requirements of ASCA § 45.0204 are met. [1ASR3d196]

 

[4] Functioning academically at a grade-school level does not necessarily preclude the comprehension of the basic rights Miranda affords.  Evidence that a juvenile is able to function adequately outside school, testify clearly and intelligently and assist his counsel may establish the juvenile was and is capable of understanding his Miranda rights.

 

Before: KRUSE, Chief Justice, and FAISIOTA, Chief Associate Judge.

 

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

              For Defendant, Loretta Townsend, Assistant Public Defender

On May 10, 1997, police arrested juvenile defendant, Peniamina Kolose Pino ("Pino") for the crimes of Murder in the First Degree (A.S.C.A. § 46.3502) and Rape (A.S.C.A. § 46.3604).  This court held a hearing regarding Pino's competency to stand trial and, on July 2, 1997, issued an order denying the motion to prosecute defendant as a child.  Pino then moved to suppress any and all statements made by him to the Department of Public Safety, claiming that he was seized illegally and that his statements were neither voluntarily nor knowingly and intelligently made as required by Miranda v. Arizona, 384 U.S. 436 (1966).  We found that Pino's Miranda rights were not violated and thus, on October 13, 1997, denied his motion to suppress.

 

On November 28, 1997, Pino moved for reconsideration of our denial to suppress statements made by him to the Department of Public Safety.  The defense claims that the burden of proof to show a valid waiver of his Miranda rights was improperly shifted from the prosecution to the defense.  We have searched the record and find no support for this contention.  The defense's assertion of "burden-shifting" is one of sheer invention.

 

Discussion

 

The prosecution showed by a preponderance of the evidence that Pino's waiver did not violate the requirements set forth by Miranda v. Arizona, Id. at 436, and adopted in this territory.  See e.g. American Samoa Gov't v. Gatoloai, 23 A.S.R.2d 65, 69 (Trial Div. 1992).  We find that Pino's waiver was "knowing and intelligent."  Id.  (Pino does not contest that his statement was "voluntary," the third prong of the Miranda test.) 

 

[1] Pursuant to a psychiatric examination, Dr. Malaefou Elisaia found "no significant impairment" of Pino's cognitive functions given his educational background.  (See Psychiatric Evaluation of Dr. Malaefou Elisaia, M.D., dated June 25, 1997.)  He deems Pino competent to stand trial and assist in his own defense.  If he is capable of assisting counsel in his defense of murder in the first degree and rape, then it seems logical [1ASR3d197] to conclude that he would have been capable of understanding the very elemental rights that Miranda affords, notwithstanding his academic stunting.

 

[2-3] But even if he were not so capable, the Juvenile Justice Act of 1980 provides additional safeguards for juveniles.  Under A.S.C.A § 45.0204, the "parent, guardian or legal custodian" must be advised of the child's Miranda rights in order for a waiver of those rights to be permissible.  A.S.C.A § 45.0204.  Because Pino's father was present during questioning and Officer Ta`ase Sagapolutele advised both Pino and his father of Miranda warnings, the requirements of § 45.0204 were met.  Both Pino and his father signed the waiver form before Pino gave his statement.  In contrast, we find Pino's argument and Dr. Lynn Albertson's findings, ostensibly upon which the defense relies, to be less than compelling.  (See Psychological Evaluation of Dr. Lynn Albertson, Ph.D., undated but received by the Court June 26, 1997.)  Dr. Albertson states that Pino functions at a second-grade level; Pino argues that because of this he was unable to form the understanding necessary to legally waive his rights.  We disagree. 

 

[4] Functioning academically at a grade-school level does not necessarily preclude the comprehension of the basic rights Miranda affords.  Apparently Pino, unlike other "second graders," is able to function adequately outside of a school setting and while left unattended, an ability that is evidenced by his repeated truancy.  Moreover, we have had the benefit of listening to Pino, under oath, when he testified clearly and intelligibly in a civil proceeding, CA No. 66-97, which he and others brought against the Commissioner of Public Safety and Warden of the Territorial Correctional Facility.  In that other matter, which is still pending, Pino was able to very competently assist his counsel in prosecuting his civil claim which has resulted in, among other things, institutional juvenile detention reform in the territory.  The transcript of these proceedings has been made a part of this record.  We believe, therefore, that Pino was and is capable of understanding his Miranda rights.

 

We find even less compelling Dr. Albertson's plea to provide Pino with "the academic and emotional support necessary to improve to the level that is possible for him to attain."  The issue before Dr. Albertson was Pino's competency to stand trial for the murder and rape of Zhu Qunxin. The proximate issue before this court is whether or not Pino was capable of understanding the essence of his rights under Miranda when they were issued on May 9, not finding the means by which to secure the emotional and academic fulfillment of Pino's potential.  The role of the court is determining culpability and issuing redress for these crimes, regardless of whether it will hinder or advance the defendant's academic [1ASR3d198] standing.  In light of all the evidence presented, we believe we properly denied Pino's motion to suppress and therefore deny defense's motion for reconsideration.[1]

 

It is so Ordered.

 

**********

 



[1]We would also like to note that Pino's notice of intent to use a defense based on mental condition, filed with the Clerk on October 8, 1997, is untimely.  On July 15, 1997, we set the deadline for all pretrial motions for September 15, 1997.

    Rule 12(2)(b) of the High Court Rules of Criminal Procedure states:

If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk.  The court may for cause shown allow late filing of the notice. . .

T.C.R.C.P. Rule 12(2)(b) (emphasis added).  The notice is untimely, and Pino offers no cause for its late filing.  This omission triggers T.C.R.C.P. Rule 12(2)(d) which allows the court to "exclude the testimony of any expert witness offered by the defendant on the issue of his mental state."  T.C.R.C.P. Rule 12(2)(d).

 

Am. Samoa Gov’t v. Pino


[1] A.S.C.A. § 45.0115(c)(2) confers upon the Attorney General’s Office independent power to prosecute an individual 14 years or older as an "adult" for felony crimes involving violence.

 

[2] The judiciary in American Samoa has the power under to certify an underage individual as an adult for the purposes of criminal proceedings under A.S.C.A. § 45.0115(c)(1).  However, it has no power to interfere with a prosecution under A.S.C.A. § 45.0115(c)(2).

 

[3] The Juvenile Justice Act exclusively uses "chronological age," and not "mental age" to determine whether or not a particular defendant qualifies for treatment as a "child" or as an "adult." 

 

ORDER DENYING MOTION TO PROSECUTE

DEFENDANT AS A CHILD

 

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

 

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

              For Defendant, David P. Vargas, Public Defender

 

Introduction

 

On May 10, 1997, Defendant, Peniamina Kolose Pino (“Pino”), a juvenile, was arrested and taken into custody for the crime of Murder in the First Degree (A.S.C.A. § 46.3502) and Rape (A.S.C.A. 46.3604).  The Public Defender's Office assumed responsibility for Pino's defense, and reached an agreement with the Attorney General's Office to have Pino examined by mental health professionals to determine Pino's "competency" to stand trial. [1ASR3d194]

 

On June 27, 1997, this court held a "competency" hearing and received testimony from Dr. Lynn Albertson and Dr. Malaefou Elisaia regarding Pino's mental condition.  At the conclusion of the hearing, the court ordered the Public Defender's Office to submit a memorandum outlining his position.  The court received the "Memorandum of Law Re Prosecution of Mentally Disadvantaged Youth as an Adult" on July 1, 1997.

 

Discussion

 

[1-2] Based on the title and substance of the Public Defender's memorandum, we find that the Public Defender's claim that Pino is "incompetent" to stand trial is essentially a request that this court curtail the discretion that the Fono has granted the Attorney General under A.S.C.A. § 45.0115(c)(2).  That provision states that a "child may be charged with the commission of a felony only after the hearing as provided in paragraph (1), or when the child is . . . alleged to have committed a crime of violence and is 14 years of age or older. . . ."  (emphasis added).  This court has consistently held that the "or" language in A.S.C.A. § 45.0115(c)(2) means that the Fono has conferred upon the Attorney General the power to proceed against an individual 14 years or older as an "adult" for felony crimes of violence.  See American Samoa Gov't v. Fa`apito, 1 A.S.R.3d 199, 200-01 (Trial Div. 1997); American Samoa Gov't v. Julio, 9 A.S.R.2d. 128 (Trial Div. 1988).  Thus, while this court has the power under A.S.C.A. § 45.0115(c)(1) to conduct a hearing to certify the child as an adult for the purposes of criminal proceedings, this court has no power to interfere with the Attorney General's prosecutorial discretion under A.S.C.A. § 45.0115(c)(2).

 

[3] The Public Defender asks this court to consider Pino's sophistication and maturity relative to other children in his chronological age group.  However, the Juvenile Justice Act exclusively uses "chronological age," and not "mental age" to determine whether or not a particular defendant qualifies for treatment as a "child" or as an "adult."  See A.S.C.A. § 45.0103(2) (distinguishing "adults" from "children" by focusing on whether the criminal act occurred before or after the 18th birthday).  Therefore, we simply cannot obfuscate the statutory language and make case-by-case determinations of "mental age" to determine whether someone is 14 years of age for the purposes of A.S.C.A. § 45.0115(c)(2).

 

The Public Defender concedes that the "legislature granted unbridled discretion to the prosecutor to treat juvenile offenders charged with acts of violence as adults."  However, the Public Defender pleads that "very few jurisdictions allow the prosecutor to unilaterally determine whether a child should be tried as an adult" and that "[i]n most jurisdictions it is the [1ASR3d195] court that determines whether a juvenile should be treated as an adult for criminal prosecution."  The Public Defender's policy arguments should be presented to the Fono, not this court.

 

Order

Accordingly, the Public Defender's motion for a court order to prosecute Pino as a child under the Juvenile Justice Act is DENIED.

 

It is so Ordered.

 

**********

Ale v. Reid Stevedoring, Inc.


 

SANELE ALE, Appellant,

 

v.

 

PETER E. REID STEVEDORING, INC., et al., Appellees.

 

High Court of American Samoa

Appellate Division

 

AP No. 19-95

 

April 9, 1997

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, SAGAPOLUTELE, Associate Judge, and MAILO, Temporary Associate Judge.

 

Counsel:  For Appellant, Marshall Ashley

               For Appellees, Brian M. Thompson

 

RICHMOND, Associate Justice.

 

This is an appeal from an order on remand of the trial court.  The trial court held that the appellant had failed to prove, by a preponderance of the evidence, that appellees had caused appellant's personal injury.  The facts are fully set forth in the trial court's "Opinion and Order on Remand."

 

The judgment of the trial court on remand is affirmed for the reasons and on the grounds set forth in its "Opinion and Order on Remand."

 

It is so Ordered.

 

**********

 



* Honorable Alfred T. Goodwin, United States Court of Appeals for the Ninth Circuit, serving by designation of the Department of the Interior.

** Honorable J. Clifford Wallace, United States Court of Appeal for the Ninth Circuit, serving by designation of the Department of the Interior.

 

Faagau v. Afo


Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, and MAILO, Associate Judge.

                                                                       

Counsel: For Appellant, Afoa L. Su’esu’e Lutu

              For Appellee, Charles V. Ala`ilima

RICHMOND, Associate Justice.

 

This appeal is from the Land and Titles Division’s decision and order entered on January 9, 1996, finding the land “Vasaaiga,” consisting of about 2.33 acres, in Faganeanea, American Samoa, to be the communal land of the Afo Family.

 

The decision and order of the Land and Titles Division is affirmed for the reasons and on the grounds set forth in its decision and order entered on January 9, 1996.

 

It so Ordered.

 

**********

 

 



*Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior

**Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

Adams v. Reavis


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

 

[2] Where statute did not authorize, but instead prohibited, work release of inmate, writ of mandamus would not lie.

 

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

 

Counsel: For Plaintiff, Pro Se

              For Defendant, Frederick J. O'Brien, Assistant Attorney General

 

ORDER DENYING APPLICATION FOR WRIT OF MANDAMUS

 

Plaintiff is an inmate at the Territorial Correctional Facility.  He filed motions for a show cause order directed against Charles Reavis ("Reavis"), Special Assistant to the Warden of the Territorial Correctional Facility, and other unnamed prison officials, alleging their refusal to allow him to "go to court, post office, shopping, banking, nor to renew [an] expiring [airplane] ticket." 

 

We summarily denied plaintiff's contention that prisoners are somehow constitutionally entitled to leave the prison facilities to receive mail, shop, and conduct other personal business, but granted his show cause [1ASR3d147] application insofar as he alleged his being denied access to the High Court's law library.  (See Order to Show Cause, filed Aug. 8, 1997.)

 

The matter was set for hearing on September 4, 1997.  On that date, the defendants appeared through the Attorney General's Office but failed to bring the plaintiff, offering as justification the plaintiff's failure to inform the Correctional Facility of his court appearance date.  We treated the government's failure to have the plaintiff in court as prima facie evidence in support of plaintiff's complaint about lack of access to the court.  We accordingly ordered the defendants to ensure plaintiff's access "to the court for all further hearings in this matter."  (See Ruling and Order filed Sept. 5, 1997.)

 

On October 20, 1997, this matter again came before us when plaintiff applied for a writ of mandamus in order to compel the defendants to reinstate his work release program.  Although the Correctional Facility previously allowed plaintiff to be employed by the American Samoa Power Authority, it terminated plaintiff's work release privilege, along with that of all other inmates release programs, after this court decided American Samoa Government v. Byung Soo Ki, 31 A.S.R.2d 118 (Trial Div. 1995) (Opinion & Order, filed Jan. 10, 1997).  The decision in this case essentially struck down the Correctional Facility's various release programs as contrary to the statutory prohibition against the release of inmates except as authorized by law.  Id., at 5.  See A.S.C.A. § 46.2303(c).  The court failed to find, and the parties were unable to point to, any such authorization in the law.

 

[1] Given the state of the law as enunciated in the Byung Soo Ki case, which plaintiff did not question, we conclude that plaintiff's application for a writ of mandamus must fail.  A writ of mandamus is an extraordinary writ and will not issue unless:

           

(1) the plaintiff has a plain right to have the act performed; (2) the defendant has a plain duty to perform it; and (3) there is no other adequate remedy available to the plaintiff.

 

Mulitauaopele v. Maiava, 29 A.S.R.2d 116, 117-118 (App. Div. 1995). 

 

[2] The plaintiff is in jail, having been properly convicted of a double homicide.  He has no plain right to work release, and the defendants have no plain duty to grant him work release.  Indeed, they are prohibited from releasing inmates duly incarcerated by the criminal process.

 

Motion denied.

 

It is so Ordered.

 

**********

 

Elisara v. Togiola


 

KATAFERU ELISARA,   Plaintiff,

 

v.

 

SAUA TOGIOLA, and TUA TOGIOLA, Defendants.

 

 

High Court of American Samoa

Trial Division

 

CA No. 157-94

 

May 28, 1997

 

[1] Where a motor vehicle is driven by unlicensed and inexperienced minor and the vehicle was entrusted to him by a parent, both are jointly and severally liable to a third party whose injuries are proximately caused by the negligence of the minor in operating the vehicle and his parent in negligently entrusting the same to him.

 

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

 

Counsel: For Plaintiff, Barry I. Rose

  For Defendant Tua Togiola, Pro Se

 

DECISION AND ORDER

 

Facts

 

On September 2, 1992, plaintiff, a police officer, while on routine patrol in the Western District on a police motorcycle unit, received a dispatch to respond to a complaint about an escalating land dispute in the vicinity [1ASR3d76] of Malaeloa village.  As he traveled inland on the Malaeloa road with his emergency equipment operating, he noticed a vehicle coming from the opposite direction and heading directly toward him.  As he attempted evasive action by pulling to the side of the road, the oncoming vehicle suddenly cut in front of his path, crossing the median, in an apparent effort to turn off the highway.  A collision resulted and plaintiff was thrown from his motorcycle.  He was rendered unconscious and suffered various injuries.

 

The other vehicle was driven by defendant Saua Togiola, a minor at the time who did not have a driver's license to operate a vehicle.  The vehicle was co-owned by his mother, the defendant Tua Togiola, who had sent the minor out in the vehicle on some errand to her daughter's home.

 

Plaintiff was admitted to the LBJ Tropical Medical Center for a period of five days.  He was initially treated for contusions on the neck and both shoulders but continued to complain thereafter of pain in the neck area and limitation of head movement.  The hospital then sent him off-island, to Honolulu, for further evaluation of potential head injuries.  The off-island medical examination ruled out cerebral or spinal injury, but found that plaintiff's neck and shoulder muscles had become very spastic.  The course of treatment prescribed for plaintiff was physiotherapy, muscle relaxants and pain medication.

 

Dr. Vaiula Tuato`o, the Chief of Surgery at the local hospital, recently examined plaintiff.  He additionally suspects nerve damage to plaintiff's trapezius muscle resulting in his tendency to hold his head slightly to one side.  Prognosis is not clear although Dr. Tuato`o is optimistic that continuing exercise of the injured muscles is plaintiff's best course for physical recovery.  Although plaintiff continues to date to experience pain and muscle deterioration some four years after the collision, we believe that with a more concerted effort toward exercise, plaintiff, a relatively young adult, would likely improve his present disability.

 

Finally, the evidence also revealed that while plaintiff's injuries have required him to do less physically strenuous work, this has not diminished his earning capacity.  Indeed, after being absent from work for a period of six months while recovering, his change in employment from traffic patrol with Department of Public Safety to white collar criminal investigatory work for the Attorney General's office, has resulted in better pay benefits.

 

Conclusions

 

[1] We conclude on the facts that defendant Saua Togiola was negligent in the operation of his vehicle, which he had no business driving in the [1ASR3d77] first place.[1]  We also conclude that defendant Tua Togiola was negligent in her unlawful entrustment of the vehicle[2] to her unlicensed and inexperienced son.[3]  We further conclude that the injuries suffered by plaintiff were proximately caused by the negligence of both defendants.

 

Taking into account plaintiff's injuries, his prognosis, economic future, and duty to mitigate his damages, we fix his damages as follows: $4,500 for lost earnings; and, general damages in the amount of $20,500, a total of $25,000.

 

Judgment will enter accordingly in favor of plaintiff against the defendants jointly and severally in the sum of $25,000.

 

It is so Ordered.

 

**********

 

 



[1]  See A.S.C.A. § 22.0201, proscribing the operation of a motor vehicle in American Samoa without a valid driver's license.

[2]  See  A.S.C.A. § 22.0222, prohibiting the entrustment of a vehicle to an unlicensed minor.

[3]  The minor's inexperience as a driver was very evident with his violation of A.S.C.A. § 22.0313, which required him to yield the right of way to the oncoming plaintiff before attempting his left turn off the highway.

 

Lang v. Am. Samoa Gov't.


[1] To establish a cause of action for negligence a party must prove duty, breach, causation, and damages. 

 

[2] In malpractice actions, the burden is on the plaintiff to prove the recognized standard of medical care in the community, a lack of reasonable and ordinary care by the medical professional, and that the medical professional's negligence was the proximate cause of the injury.

 

[3] Injury, death, or an otherwise unsuccessful result of treatment does not shift the burden of proof in a malpractice action.

 

[4] Injury, death, or an otherwise unsuccessful result of treatment does not give rise to an inference of negligence in a malpractice action.

 

[5] The duty of a medical professional is to act with the standard of care ordinarily exercised under the same or similar circumstances by members of the profession in the same or similar communities. 

 

[6] In a malpractice action, Plaintiff bears the burden of proving, by a preponderance of the evidence, the recognized standard of care. 

 

[7] Mere argument, or slight indication, as to the applicable standard of care for a medical professional is not sufficient.  Specific evidence should be presented.

 

[8] Unless proved otherwise, a physician is presumed to have carefully and skillfully treated his patient. 

 

[9] Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control [1ASR3d149] of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff. 

 

[10] Res ipsa loquitur applies to the consequences of professional treatment if such consequences would not ordinarily occur in the absence of the allegedly culpable conduct. 

 

[11] The mere fact that an injury occurred is not evidence of negligence.

 

[12] Plaintiff not entitled to the permissive inference of negligence that res ipsa loquitur affords without demonstrating that the medical consequences she suffered would not have otherwise occurred.

 

[13] Where res ipsa loquitur is inapplicable, plaintiffs must produce some medical proof of causation.

 

[14] The Defendant is entitled to judgment in its favor where the trier of fact can do no more than speculate as to which of several possible causes was the actual cause of the injury in question.

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

 

Counsel: For Plaintiff, Cherie Shelton Norman

              For Defendant, Henry W. Kappel, Assistant Attorney General

 

OPINION AND ORDER

 

Introduction

 

This action was originally brought against defendant American Samoa Government ("ASG") and Hawaiian Airlines.  The court granted summary judgment in Hawaiian Airlines' favor.  The case against ASG then proceeded to trial as a medical malpractice cause of action. 

 

Siliaga Lang ("Siliaga"), now deceased, was the wife of plaintiff Maanaima Lang ("Lang"), and the mother of plaintiff Nelly Lang.  At the time of her death, Siliaga was 34 years old. 

 

Siliaga's medical history shows that she was treated for cancer at the University of Washington in 1986.  Between October 1988 and February 1989, Siliaga was treated several times as an outpatient at ASG's LBJ Tropical Medical Center ("LBJTMC").  She was treated for abdominal pain, urinary tract infection, increasing fatigue and anemia related to hydronephrosis and mild renal insufficiency, both kidney dysfunctions.  She was hospitalized on February 8, 1989 due to severe shortness of breath and mild to moderate dehydration.  David L. Stevig, M.D., Siliaga's principal physician at that point, directed blood tests, an ultrasound test, x-[1ASR3d150]rays, and an electrocardiogram.  These tests showed mild insufficiency of Siliaga's kidneys and some enlargement of her heart, but did not reveal the underlying causes of Siliaga's medical condition.  Dr. Stevig therefore arranged to have Siliaga transferred to Tripler Army Medical Center ("TAMC") in Hawaii for more comprehensive evaluation and treatment.  His instructions for Siliaga's transport included a nurse escort.  Dr. Stevig saw Siliaga the morning she was transferred to TAMC.  She had experienced vomiting and nausea in the night, so Dr. Stevig prescribed Compazine, an anti-nausea drug, to treat this problem should it occur en route. 

 

On February 13, 1989, Siliaga was transported to the airport in an ambulance and boarded the aircraft to Honolulu.  Throughout the journey, she had an intravenous line ("IV") attached and was using supplemental oxygen.  She was accompanied by a nurse and Lang.  Approximately one hour away from Hawaii, Siliaga appeared to become sick.  The nurse then administered Compazine through Siliaga's IV.  Within a short time after the administration of the drug Siliaga began kicking and screaming and asking for more oxygen.  Soon she stopped breathing and went into cardiac arrest. At this point other medical personnel traveling on the plane came to assist Siliaga, using cardiopulmonary resuscitation ("CPR").  They continued with CPR until the plane arrived in Hawaii, where an emergency medical team took over and transported Siliaga to the emergency room at TAMC.  Attempts to revive Siliaga continued at TAMC until she was pronounced dead later that day.

 

Discussion

 

[1-4] To establish a cause of action for negligence a party must prove duty, breach, causation, and damages.  See, e.g., William L. Prosser, The Law of Torts  39, at 143-44 (4th Ed. 1971).  In a suit for injuries caused by alleged malpractice, the burden is on the plaintiff to prove by a preponderance of the evidence the recognized standard of medical care in the community, that there was a lack of reasonable and ordinary care or skill on behalf of the medical professional, and that the medical professional's negligence was the proximate cause of the injury.  See, e.g., 61 Am. Jur. 2d, Physicians, Surgeons, Etc.  329-32.  Injury, death, or an otherwise unsuccessful result of treatment does not itself shift the burden of proof, nor does it give rise to an inference of negligence.  Id.

 

I.  Duty

 

[5-6] In a medical malpractice action, the duty of a medical professional is to act with the standard of care ordinarily exercised under the same or similar circumstances by members of the profession in the same or similar communities.  See Portillo v. United States, 816 F. Supp. 444, 447 (W.D.Tex. 1993); East v. United States, 745 F. Supp. 1142, 1149 (D.Md. [1ASR3d151] 1990); Sewell v. United States, 629 F. Supp. 448, 455 (W.D.La. 1986).  The burden is on the plaintiff to prove by a preponderance of the evidence the recognized standard of medical care.  The only evidence produced at trial on the issue of the applicable standard of care came through the Dr. Stevig's deposition in evidence and the testimony of Iotamo Saleapaga, M.D.

 

According to Dr. Stevig, it was reasonable to use Compazine on Siliaga to treat any possible nausea.  He also stated that the treatment of Siliaga was commensurate with the standard of care in American Samoa.  Dr. Saleapaga concurred with Dr. Stevig.  Although Dr. Stevig would have laid Siliaga flat and raised her feet upon the onset of the apparent reaction to Compazine, he stated that he would not expect someone who is not a physician to undertake the same treatment.  There was no evidence presented as to whether it was unreasonable for the physicians not to include instructions to the nurse on procedures applicable to, and possible adverse reactions to, Compazine.          

 

[7] Moreover, there was no evidence generally on the applicable standard of care for the accompanying nurse.  Instead of presenting evidence on this issue, plaintiffs merely argues that a reasonable nurse should have known how to treat an adverse reaction to Compazine.  Although there is some indication that this might be the case, that slight indication falls far below the preponderance burden which the plaintiff carries.  Plaintiffs should have presented evidence on the standard of care for a nurse in American Samoa in relation to the administration of Compazine.  Plaintiffs failed to do so.  This court therefore is left without a barometer with which to measure the reasonableness of the nurse's conduct.

 

II.  Breach

 

[8] Unless it is proved otherwise, a physician is presumed to have carefully and skillfully treated his patient.  As stated above, the only evidence in the record indicates that the initial prescription of Compazine for the treatment of possible nausea was reasonable under the circumstances.  Without more evidence on this issue we find that plaintiffs have failed to meet their burden of showing breach of the physicians' duty of care by a preponderance of the evidence.

 

Further, as mentioned above, plaintiffs failed to offer testimony on the applicable standard of care for a nurse in this locality, both as to the standard of care required when accompanying a passenger generally and the standard of care required when administering Compazine.  Since plaintiffs have failed to adequately provide this court with the applicable standard of care, we cannot determine whether that duty was breached on the part of the accompanying nurse.  We again find that plaintiffs have failed to meet their burden. [1ASR3d152]

 

III.  Causation

 

[9-10] Plaintiffs must proffer either medical evidence or the basis for the application of the doctrine of res ipsa loquitur to establish a causal link between Siliaga's death and ASG's actions.  Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff.  See Lang v.American Samoa Government, 24 A.S.R.2d 59, 61 (Trial Div. 1993).  Res ipsa loquitur "applies to the consequences of professional treatment if such consequences would not ordinarily occur in the absence of the allegedly culpable conduct."  Blincoe v. Luessenhop, 669 F. Supp. 513, 516 (D.D.C. 1987), citing Quin v. George Washington Univ., 407 A.2d 580, 583 (D.C. 1979).

 

[11-12] Here plaintiffs assert that the res ipsa loquitur doctrine is applicable due to the fact that Siliaga died after being given the Compazine.  Plaintiffs assert that it is more likely than not that Siliaga's death was caused by negligence. However, as Prosser explains, the mere fact that an injury occurred is not evidence of negligence.  See Prosser, supra,  39, at 211.  See also Blincoe, 669 F.Supp. at 517 (Res ipsa loquitur was inapplicable in a medical malpractice action brought by a patient who had suffered a cerebellar infarct after undergoing certain treatment procedures because the cerebellar infarct could be suffered as a result of a cause unrelated to the treatment procedures); Garrett v. United States, 667 F. Supp. 1147, 1163 (W.D.La. 1987) (Res ipsa loquitur cannot apply where the patient's adult respiratory distress syndrome, kidney failure and multiple organ system failure can occur in the absence of someone's negligence).  Expert testimony is indispensable in determining whether negligence occurred.  See Prosser, supra, 39, at 227.  Plaintiffs presented little evidence on this issue.

 

Siliaga was a very sick woman, with possible problems which could not be treated or diagnosed at LBJTMC.  This is the reason she was being transported to Hawaii.  Compazine had been previously prescribed to Siliaga (though it is not apparent whether she ever used the prescription).  Although there is some evidence which suggests that Compazine should not have been given, that evidence is insufficient to meet plaintiffs' burden.  We do not find that Dr. Stevig's prescription or the nurse's administration of Compazine was inherently negligent.  Moreover, we find it very troubling that plaintiffs failed to put on the nurse as a witness, or explain her absence. The nurse has significant first-hand knowledge of the entire chain of events. [1ASR3d153]Without this and other evidence, we find that the doctrine of res ipsa loquitur is inapplicable to the case at bar.[1]

 

[13-14] Because res ipsa loquitur is inapplicable, plaintiffs must produce some medical proof of causation.  See, Blincoe, 660 F. Supp. at 517.  Plaintiffs have failed to produce this evidence.  There was no autopsy performed on Siliaga.  The death certificate stated the cause of death as cardiac arrest due to, or as a consequence of, pericardial effusion due to, or as a consequence of, renal failure.  The Honolulu medical examiner, however, stated the cause of death as cardiomyopathy.  Finally, Dr. Stevig stated that he believed the cause of death was cardiac arrest, caused by a drop in blood pressure and unknown underlying conditions, not pericardial effusion or renal failure.  "If the trier of fact can do no more than speculate as to which of several possible causes was the actual cause of the injury in question, the Defendant is entitled to judgment in its favor."  Portillo v. United States, 816 F. Supp. 444, 447 (W.D.Tex 1993).  We find that plaintiffs have failed to meet the burden of proof regarding causation.

 

IV.  Damages

 

Because plaintiffs have been unable to establish the first three elements of a cause of action for negligence, we do not need to address the fourth element of damages.

 

Conclusion

 

We find that plaintiffs have failed to meet the burden required to establish a standard of care owed to them, the breach of that standard, or a causal connection between Siliaga's death and ASG's actions.  The doctrine of res ipsa loquitur is not appropriate under the facts presented at trial.

 

Judgment is for ASG. 

 

It is so Ordered.

 

**********

 



[1] Even if the doctrine of res ipsa loquitur were applicable, it merely establishes a permissive inference of negligence which the fact finder is not required to adopt.  Iosia v. National Pacific Insurance Ltd., 20 A.S.R.2d 123, 124 (Trial Div. 1992).

 

Seva’aetasi v. Moi


 

ROBERT T. SEVA`AETASI, UILIATA MOEAI, Plaintiffs,

 

v.

 

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

 

High Court of American Samoa

Land and Titles Division

 

LT No. 08-95

 

November 12, 1997

 

[1] Village of Tafeta belongs to the people of Faleniu who cleared and took possession of the area in 1922.  [1ASR2d233]

 

[2] Where claim of adverse possession had not been raised in previous land case between same parties, but was ripe at time that case was decided, court’s previous determination regarding ownership was conclusive as to such claim.

 

[3] Where plaintiffs attempted to advance adverse possession claim, evidence produced in previous action that that Plaintiff’s predecessor had received a "flawed" deed, allowing him to possess land, demonstrated permissive possession of the land.

 

[4] Any activities on the land in pursuance of a license, no matter how extensive and no matter what the original state of the land, cannot give rise to a claim of ownership.  

 

[5] Credible, convincing evidence existed in favor of defendant’s claim to land where defendant testified that disputed land was given to his family by village council upon original division of village, where no other families from the same village had appeared to controvert defendant’s testimony, where precedent indicated that defendant’s family was the only one to defend title to land, and where evidence indicated that plaintiffs’ occupancy was not exclusive.

 

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

 

Counsel: For Plaintiffs, Charles V. Ala`ilima

  For Moi Tuia`ana, Aumoeualogo S. Salanoa 

 

ORDER DENYING PETITION FOR INJUNCTIVE RELIEF

 

Introduction

 

[1] Plaintiffs claim a certain 7.7-acre tract situated within a larger land area commonly known as "Tafeta."  They seek to enjoin the defendants from any further encroachment onto this claimed area.  Tafeta belongs to the people of Faleniu who cleared and took possession of the area in 1922.  Magalei v. Tago, 3 A.S.R. 185 (Trial Div. 1955); Galoia v. Mamoe, 3 A.S.R. 245 (Trial Div. 1956); Lualemana v. Filo, LT No. 55-1961 (Trial Div. 1961), aff'd 3 A.S.R. 642 (App. Div. 1961); Magalei v. Lualemana, 4 A.S.R. 242 (Trial Div. 1961).  The defendant Tuia`ana Moi ("Tuia`ana"), a Faleniu matai, claims the disputed area on behalf of the Magalei/Tuia`ana extended family of Faleniu.  Fa`atalatala T. Maua, the second defendant, is joined in this matter because of a proposed extension to her daughter's home which is located on the disputed area.  The proposed extension was the subject of a separation agreement executed by defendant Tuia`ana. [1ASR2d234]

 

Plaintiffs' predecessor in interest, the late Robert S. Tago Seva`aetasi ("Tago"), first went upon the area in 1946 through the permission of the Chiefs of Faleniu.  See Magalei v. Tago, supra; Magalei v. Atualevao, 19 A.S.R.2d 86 (Land & Titles Div. 1991).  Subsequently, Tago tried, unsuccessfully, to assert his own independent claim to the area in derogation of his Faleniu grantors' rights.  Id.  See also Lualemana v. Tago, 3 A.S.R. 43 (Trial Div. 1952).

 

In Magalei v. Tago (the "1955 case"), the court rejected Tago's ownership claim based on an adverse possession theory.  The court found that Tago's occupation was not "adverse" but "permissive."  In Magalei v. Atualevao (the "1991 case"), the court also rejected Tago's claim grounded on a 1957 deed given him by two Faleniu matai.  The court found "numerous flaws" in the deed itself, as well as total non-compliance with statutory law governing the alienation of communal land.[1]  While allowing that the flawed deed may have given Tago a license, the court stopped short of deciding which Faleniu family(s) owned the land that the 1957 deed purported to convey to Tago.

 

Today, Tago's children are attempting to resurrect their father's adverse possession claim, but with the added entreaty that it would be only fair for the court in 1997 to grant their adverse possession claim because in 1991 the court allowed the adverse possession claims of Aoloau villagers in the vicinity.

 

Discussion

 

We noted in our earlier order denying interlocutory relief that plaintiffs' cause faced immediate problems with the doctrines of res judicata and collateral estoppel.  (See Order Denying Motion for Preliminary Injunction, entered April 27, 1995.)  Plaintiffs, in apparent recognition of this predicament and the realization that their "fairness" plea would not stay the effects of the res judicata rule, contend that a new prescriptive period had begun to run after the 1957 deed.  (See Plaintiffs' Closing Argument, at 6.)

 

[2] We have two problems with plaintiffs' claim.  First, the attempt to hatch a brand new adverse possession claim based on the 1957 deed would have been ripe for presentation to the court in the 1991 case.  The judgment in the 1991 case, denying Tago's ownership claim, became conclusive not only as to that which was determined but also as to every other matter the parties might have raised and litigated.  Manufacturers [1ASR2d235] Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84 (Trial Div. 1988).  There must be an end to litigation at some time.

 

[3-4] Second, the 1957 deed is the antithesis of an adverse possession claim.  The court in the 1955 case evicted Tago from Tafeta effective 1962; however, before the court's deadline, Tago again secured permission from Faleniu Chiefs to remain on Tafeta.  Tuia`ana, a remarkably 92 years old, who would have been well toward adulthood when Faleniu first established Tafeta, testified that after the decision of the 1955 case was handed down, Tago went to Magalei, the father of the present titleholder, to let him remain on the land.  Furthermore, the "flawed" deed itself evidences permissive, as opposed to adverse, possession.  Tago did not therefore remain on Tafeta adversely, but permissively.  As such, he was on the land merely as a licensee.  See Magalei v. Tago, supra; Utu v. Fuata, 17 A.S.R.2d 104, 107 (Land & Titles Div. 1990).  In these circumstances, any "activities on the land in pursuance of a license, no matter how extensive and no matter what the original state of the land, cannot give rise to a claim of ownership."  Opapo v. Puailoa, 15 A.S.R.2d 48, 50 (Land & Titles Div. 1990), citing Tuileata v. Taliva`a, 3 A.S.R. 201 (Trial Div. 1956).  See also Satele v. Uiagalelei, 6 A.S.R.2d 143, 145 (Land & Titles Div. 1987).[2]

 

[5] Plaintiffs additionally argue that Tuia`ana has presented no credible evidence showing his extended family's entitlement to the disputed area such as would defeat any interests plaintiff may have been granted by the 1957 deed.  We disagree.  Tuia`ana testified that the disputed tract lay within a greater area of Tafeta that was given by the village council to the Magalei/Tuia`ana family when the village divided up Tafeta.  There was no evidence to the contrary.  Significantly, we note the conspicuous absence of other Faleniu families coming forward to controvert the Magalei/Tuia`ana family's claim to the disputed area.  At the same time, we also note from previous cases involving this area, that the only Faleniu villagers who have unfailingly defended title to the area against the hostile claims of Tago and others, have been those of the Magalei/Tuia`ana family.  This lends credence to Tuia`ana's claim of a village subdivision of the area in his family's favor.  Finally, we note on the evidence that plaintiffs' occupation of the 7.7-acre tract itself is not exclusive; there are Tuia`ana family homes and graves within this area.

 

Conclusion & Order

 

With respect to the area of Tafeta claimed by plaintiffs, we conclude on the foregoing that the 7.7-acre tract is a part of the communal holding of [1ASR2d236] the Magalei/Tuia`ana family of Faleniu in that greater land area known as "Tafeta."  Conversely, we conclude that plaintiffs' interest in the disputed area is, at best, merely a license.

 

Plaintiffs' application for injunctive relief is, therefore, denied.  Judgment will enter accordingly for the defendants.

 

It is so Ordered.


**********

 



[1] A.S.C.A. §§ 37.0203-0204, requiring Land Commission referral and gubernatorial approval; §§ 37.0101 et seq., proscribing the procedure for offering land for registration with the Territorial Registrar; and, §§ 37.0201 et seq., proscribing the procedure for conveying communal land.

[2]  The difference between the Aoloau villagers' claims, allowed by the court in 1991, and that of Tago's, is the difference between "adverse" and "permissive" use.  Plaintiffs' call for fairness is, therefore, unfounded.

 

PAL Air International, Inv. v. Porter


 

PAL AIR INTERNATIONAL, INC., Plaintiff-Appellant,

 

v.

 

JAMES PORTER, CONSTANCE PORTER,

and SAMOA AVIATION, INC., Defendants-Appellees.

 

High Court of American Samoa

Appellate Division

 

AP No. 16-96

CA No. 70-95

 

April 9, 1997

 

[1] T.C.R.C.P. Rule 6(a) sets forth the applicable time to file motions for reconsideration or new trial under A.S.C.A. § 43.0802(a).

 

[2] The stay provisions set forth in 11 U.S.C. § 362(a) do not apply to actions brought by the debtor which inure to the benefit of the bankruptcy estate.

 

Before KRUSE, Chief Justice, GOODWIN*, Acting Associate Justice, WALLACE,** Acting Associate Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

 

Counsel:  For Appellant, Marshall Ashley, P.C.

   For Appellees, Arthur Ripley, Jr. and James W. Hardesty

 

OPINION

 

WALLACE, Acting Associate Justice.

 

Porter moves to dismiss this appeal for lack of jurisdiction. We conclude that the Trial Division erred in dismissing Pal Air International’s motion for reconsideration or new trial under A.S.C.A. § 43.0802(a).

 

[1] In Ailua v. Maga Family, Appellate No. 25-76 (October 10, 1978), this court held that for filing a notice of appeal, “[t]ime is computed as [1ASR3d2] provided for in Rule 6(a), Fed. R. Civ. P.”  American Samoa has its own Rule 6(a), which is identical in all relevant respects to Federal Rule 6 (a). We conclude that T.C.R.C.P. Rule 6(a) applies to motions for reconsideration or a new trial under section 43.0802(a).

 

T.C.R.C.P. Rule 6(a) states in part: “In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.”  In this case, the court entered its order on November 1, 1996.  Thus, the 10-day period under Section 43.0802(a) began on November 2, 1996.

 

Since we use November 2, 1996, as our starting date, the 10-day period normally would have ended on November 11, 1996.  Yet November 11 was Veterans Day, a holiday listed in Rule 6(a), “in which event the [10-day] period runs until the end of the next day.”  Thus, the final day for filing the motion for a new trial under section 43.0802 (a) was November 12, 1996.  Pal Air filed its motion for a new trial on November 12, 1996, so the Trial Division erred in dismissing Pal Air’s motion for a new trial. Thus, we deny Porter’s motion to dismiss this appeal for lack of jurisdiction.

 

This holding is consistent with our decision in Tau1aga v. Patea, 17 A.S.R.2d 34 (App. Div. 1990).  In Taulaga, we discussed section 43.0802(b) and its relevant time periods: “September 4, 1989, the tenth day after the entry of judgment, was a legal holiday.  The notice of appeal was therefore due on September 5.”  Id. at 35.  That rationale mirrors this case, where the tenth day after the entry of judgment was a legal holiday, so the motion for a new trial was due the next day.

 

The Trial Division quoted Patau v. Hildre, 27 ASR2d 84, 85 (Trial Div. 1995), for the proposition that “Rule 6(a) is not intended to modify or change an existing statute of limitations, and it cannot, of its own force, extend a substantive limitation period prescribed by statute, nor does it attempt to change or modify a jurisdictional statute, such as a statute of limitations.”  Whi1e Rule 6(a) may not apply to the computation of a statute of limitations (an issue we need not decide), it surely applies to section 43.0802(a), which sets forth the filing deadline for a motion for reconsideration or new trial.

 

[2] Pal Air’s filing for bankruptcy does not alter our analysis. Although the stay provisions of 11 U.S.C. § 362(a) may apply to American Samoa, see Southwest Marine of Samoa v. S & S Contracting, 5 A.S.R.2d 70, 81-84 (Trial Div. 1987), they do not apply in this case.  Section 362(a) only applies when a creditor files an action against a debtor.  It “does not address actions brought by the debtor which would inure to the benefit of [1ASR3d3] the bankruptcy estate.” Carley Capital Group v. Fireman’s Fund Insurance Co., 889 F.2d 1126, 1127 (D.C. Cir. 1989) (per curiam) (citation and quotation marks omitted).  Since Pal Air, the debtor, brought the action in this case, section 362(a) is inapplicable.

 

Motion DENIED.

 

**********

 



* Honorable Alfred T, Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the secretary of the Interior.

** Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the secretary of the Interior.

 

Ah Soon v. Tafa’ifa


[1] A complaint in a contested land case that the Governor failed to provide the affected plaintiff with notice of the Governor’s decision concerning alienation of communal property  is not subject to dismissal for failure to state a claim.

 

[2] Notwithstanding the fact that a family matai followed the statutory requisites for transferring communal land, the matai may still be liable for  breach of a fiduciary duty.

 

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

 

Counsel:  For Plaintiff, Charles V. Ala'ilima

For Defendant Fonoti Tafa'ifa, Afoa L. Su'esu'e Lutu

For Defendants A.P. Lutali, American Samoa Government and  Territorial Registrar, Aitofele Sunia, Assistant Attorney General

For Defendants Asaua and Della Fuimaono, Asaua Fuimaono

For Defendants Sila Poasa, Frank Gaisoa, and Mr. and Mrs. John Slade, Tautai A.F. Faalevao  [1ASR3d237]

 

The motion to dismiss came regularly before this court on May 21, 1997.

All defendants join in the motion.

 

Alleged Facts

 

Plaintiff's suit is based upon an alienation of communal land of the family Fonoti, in the village of Tafuna.  Plaintiff asserts that defendants Siolei Fonoti, Leloga Fonoti, Eseta Fonoti, Sila Poasa, Falesa Poasa, Asaua Fuimaono, Della Fuimaono, Mr. & Mrs. John Slade and Frank Gaisoa were granted deeds of individual title to Fonoti communal land from the present senior Matai of the Fonoti, Fonoti Tafa'ifa ("Tafa'ifa).

 

Plaintiff asserts that the defendants all filed their deeds with the Territorial Registrar.  The deeds then came before the Land Commission for review.  At the hearing for review plaintiff, and other family members, gave their objections to the alienation of the lands.  On September 20, 1996 the Land Commission issued a recommendation to the governor to reject the attempts to alienate the Fonoti communal land.  On November 8 and 10, 1996 the Governor approved the alienation of the parcels of Fonoti communal land, in spite of the Land Commission's recommendation.

 

Plaintiff first claims that she was not given adequate opportunity to be heard after the Land Commission hearing and before governor approval, and further complains that the Land Commission failed to provide her notice of the Land Commission's recommendation.  Next, plaintiff claims that Tafa'ifa has breached her fiduciary duty as a Matai of the Fonoti family.  Finally, plaintiff claims that the Governor's decision to approve the alienation of the parcels was, in essence, arbitrary and capricious.

 

Defendants move to dismiss the complaint for failure to state a claim upon which relief can be granted. T.C.R.C.P. 12(b)(6).

 

Discussion

 

A.S.C.A. § 37.0203 sets forth the required procedures for the alienation of communal land.  The statute prohibits a Matai from alienating family lands without the written approval of the Governor.  Before the Governor approves any document affecting title to land, it must be reviewed by the Land Commission.  A.S.C.A. § 37.0203(a).  Plaintiff does not contend that any of these procedural requirements were not met.  Rather, plaintiff believes that there should have been additional requirements pursuant to A.S.C.A. 4.1000 et seq. 

 

A.S.C.A. § 4.1025 requires that all parties in a contested case are entitled to be heard, in this instance, by the Land Commission.  See also, [1ASR3d238] Moetoto v. Tauleva, 28 A.S.R.2d 144 (1995).  Here plaintiff admits to participating in the hearing before the Land Commission.  Thus A.S.C.A. §  4.1025's requirement is obviously met.

 

[1] A.S.C.A. § 4.1031 requires that all parties effected shall be notified of any decision and order, either personally or by mail.  Although the Governor apparently issued his decisions on November 8 and 10, 1996, plaintiff claims that the Governor failed to provide the plaintiff with notice of these decisions, thus preventing the plaintiff from timely filing his petition for review.  See A.S.C.A. § 4.1041.  Although we will not discuss the merits of this claim, we believe that it does state a claim upon which relief can be granted.

 

[2] Plaintiff also claims that Tafa'ifa has breached her fiduciary duty as a Matai of the Fonoti family.  Defendants argue that since Tafa'ifa followed the statutory requisites for transferring communal land, she cannot be sued for breach of any fiduciary duty.  Although we agree that plaintiff fails to assert that Tafa'ifa violated the statute, we cannot say that relief cannot be granted on a separate breach of fiduciary duty claim.  We believe that plaintiff's second cause of action, may be a claim upon which relief can be granted.

 

Finally, plaintiff claims that the Governor's decision was, in essence, arbitrary and capricious.  Defendant's argue that there can be no judicial review of the Governor's decision to alienate land.  This argument is specious at best.  A.S.C.A. § 4.1040 specifically grants a person a right to judicial review of a final decision.[1]  Although A.S.C.A. § 4.1041 requires that a petition for review be filed within 30 days after the final administrative decision, whether this requirement was met will depend on the outcome of the plaintiff's first cause of action.  For now it is sufficient to recognize that the plaintiff's third cause of action states a claim upon which relief can be granted.

 

Conclusion

 

For the reasons stated above, defendants' motion to dismiss is DENIED.

 

*********

 

 



[1] For purposes of this statute the Governor qualifies as an "agency."  See Moetoto v. Tauileva, 28 A.S.R.2d 144, footnote 1 (Land & Titles Div. 1995). 

 

I’aulualo v. I’aulualo


 

MA`AVE  I`AULUALO,

 

v.

 

LILI`I I`AULUALO.

 

High Court of American Samoa

Trial Division

 

LT No. 15-97

 

October 7, 1997

 

[1] A preliminary injunction should be granted where "sufficient grounds," are shown pursuant to the requirements of A.S.C.A. § 43.1301(g) and (j).  First, the party seeking the injunction must show the greater likelihood of prevailing at trial.  Second, the equities must weigh in favor of the party seeking the injunction and show that party would certainly suffer cognizable immediate injury, if the injunction is not granted.

 

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

 

Counsel: For Plaintiff, Katopau T. Ainu`u

  For Defendant, Pro Se  [1ASR3d231]

 

Plaintiff Ma`ave I`aulualo ("Ma`ave") and defendant Lili`i I`aulualo ("Lili`i") are members of the I`aulualo family of Afono village.  Ma`ave seeks a preliminary injunction against Lili`i to enjoin the latter from encroaching upon a certain portion of family land known as "Togafa`itele," which Ma`ave claims was previously designated for his use and occupation by the late sa`o (senior matai) of the family I`aulualo Fatu.

 

Facts

 

The facts are that Ma`ave had a few years ago hired an earth moving machine to level a certain land area in order to provide himself a house site.  In preparing the site, Ma`ave expended approximately $1,900 for the hire of the machine and village labor.  His landscaping actions were taken in accordance with the late sao`s exercise of pule[1] designating Ma`ave the now disputed area.  Furthermore, the clearing and leveling was also undertaken with the physical presence of Lili`i and his apparent support.

 

After the death of the sa`o, the I`aulualo title has been vacant since the death of I`aulualo Fatu, Lili`i developed second thoughts about Ma`ave's home site and began to go on the disputed site himself to clear overgrowth and plant coconut trees.  When he was confronted by Ma`ave, Lili`i simply suggested to maintain the status quo until a new matai is appointed and qualified.           Lili`i essentially asked the court for the same thing, that is, to maintain the status quo and to remand the matter back to the family for matai action in the future.  We summarily declined Lili`i's request to effectively condone his interim self-help action.  We took up Ma`ave's petition.

 

Lili`i's justification for going on the disputed area is that Ma`ave has not yet built his house and that he has left the land idle for too long.  He additionally, asserts that it is he who is living in Afono (Ma`ave lives in the village of Vatia in the neighboring cove) and attending to family affairs.

 

Discussion and Conclusions

 

[1] The preliminary injunction should be granted.  Ma`ave has shown "sufficient grounds," pursuant to the requirements of A.S.C.A. § 43.1301(g) and (j), for interlocutory relief.  First, we are satisfied that [1ASR3d232] Ma`ave has shown greater likelihood at prevailing at trial than has Lili`i.  The evidence reveals that Ma`ave's immediate rights to the disputed area are footed on matai pule, while Lili`i's claim appears to rest on the troublesome notion that he holds pule in the absence of a family sa`o, an alarming notion that can incite quarrels within the family.  Indeed, Lili`i's attempts at interfering with Ma`ave's continued access to the disputed area can only be viewed as misguided efforts at usurping pule.

 

Second, we find, in terms of irreparable injury, the equities weighing in favor of Ma`ave.  He not only has the clearly better right to immediate use and occupation of the disputed area, but he has also expended a great deal of money and effort in the land.  He would certainly suffer cognizable immediate injury, if Lili`i is not enjoined from interfering with his access to the land, whereas Lili`i has absolutely nothing to lose if he is so restrained.

 

Order

 

IT IS THEREFORE ORDERED that Lili`i I`aulualo, his agents, employees, servants, attorneys, representatives, and all those in active concert and participation with them be and are hereby enjoined from in anyway interfering with Ma`ave I`aulualo's access to and use and occupation to that portion of I`aulualo family land, Togafa`itele, cleared and leveled by Ma`ave, pending final resolution of this matter.

 

*********

 



[1] "[P]ule is the authority vested in the matai to protect and conserve the family's assets.  This authority includes 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 (1989).

 

Gurr v. Gurr


STANLEY GURR and PETER GURR, Plaintiffs,

 

v.

 

BERNARD GURR and TASI SUALI`I, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 08-97

 

May 5, 1997

 

[1] Plaintiffs demonstrated great or irreparable injury where it was shown that co-landowner Defendant and his business partner had engaged in removal and excavation of land’s natural resources, agricultural products and timber without government permits, or the approval of co-landowners, and had also allowed cattle to roam freely, thereby damaging other parts of the property.

 

[2] Admissible evidence adduced at preliminary injunction hearing will be made part of the trial record and need not be repeated at the trial on the merits.

 

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.[1ASR3d204]

 

Counsel: For Plaintiffs, Charles V. Ala`ilima and Marie A. Lafaele

              For Defendants, Malaetasi Togafau

 

PRELIMINARY INJUNCTION

 

Plaintiffs Stanley Gurr ("Stanley") and Peter Gurr ("Peter") applied for a preliminary injunction against defendants Bernard Gurr ("Bernard") and Tasi Suali`i ("Tasi") to enjoin certain activities on the land known as "Maloata" in American Samoa ("the land") during the pendency of this action.  The court heard the application on May 1, 1997.  The parties were personally present with their counsel. 

 

Discussion

 

The land is registered with the Territorial Registrar of American Samoa as owned in "fee simple" by the "Heirs of Edwin William Gurr and Fanua Eleitano Gurr" ("heirs").  Stanley, Peter, and Bernard are among these heirs.  Tasi is not a family member and has no title interest in the land.

 

The heirs who are actively concerned about activities on the land must, as matter of family policy, approve significant uses of the land.  Bernard and Tasi have engaged, and continue to engage, in such uses without this approval.

 

Bernard removes sand and other material, which threatens erosion of the beach and Stanley's beach house.  He also excavates a mountainside for a road to his plantation and cuts down rain forest.  These removal and excavation activities were done without required government permits.  More immediately important, they lastingly alter and diminish the resources of the land. 

 

Bernard and Tasi are partners in cattle operations on the land.  The cattle are kept within a fenced area encompassing a large portion of the land, but often roam freely beyond the fenced area and have damaged Stanley's farm and Peter's plants.  The presence of cattle and their excretion outside the fenced area makes other areas within the land uncomfortable to use.  Tasi also removes agricultural products and timber from the land. 

 

Stanley, Peter, and other family members requested Bernard to terminate these activities, but Bernard has refused to do so.  The situation between Stanley and Peter, on one hand, and Bernard, on the other, has escalated to open hostility and potential violence.

 

[1] Clearly, these activities on the land by Bernard and Tasi have caused, and will continue to cause, great or irreparable injury to Stanley and Peter, while this action is pending, and demonstrate a substantial likelihood that Stanley and Peter will prevail at the trial on the merits.  [1ASR3d205]

 

Order

 

During the pendency of this action, or until Stanley, Peter and other heirs actively concerned about activities on the land approve the uses listed below, or until further order of this court:           

 

1.  Bernard, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from removing any sand or other natural materials from the beach or elsewhere, excavating for and constructing any road, and cutting or otherwise damaging any rain forest on the land;

 

2.  Bernard and Tasi, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from engaging in any cattle operations on, and shall remove all cattle from, the land;

 

3.  Tasi, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from removing agricultural products or timber from the land, using the land in any other manner, and entering the land.

 

[2] Pursuant to T.C.R.C.P. Rule 65(a)(1), the evidence received during the hearing on this application for a preliminary injunction which is admissible at the trial on the merits shall be part of the record of the trial and need not be repeated at the trial.

 

It is so Ordered.

 

**********

 

Gatolai v. Am. Samoa Gov't.


[1] The method and timetable for deciding a Rule 12(b) motion for judgment on the pleadings under Rule 12(d) of the American Samoa Trial Court Rules of Civil Procedure is left to the sole discretion of the trial judge who may defer that determination until trial.

 

[2] The last portion of Rule 12(d) gives the court discretion to grant a preliminary hearing or to defer resolution of the issues until trial.

 

Before:KRUSE, Chief Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

 

Counsel: For Plaintiff, Asaua Fuimaono

  For Defendant American Samoa Government, Fiti A. Sunia, Assistant Attorney General [1ASR3d130]

 

ORDER DEFERRING DETERMINATION OF DEFENDANT’S MOTION FOR

JUDGMENT ON THE PLEADINGS TO DISMISS FOR LACK OF PROSECUTION

 

The Motion of defendant American Samoa Government for Judgment on the Pleadings on this matter came for a hearing before this Court on August 25, 1997.  The motion was properly brought before the court under T.C.R.C.P. 12(c).  The Court declines to make a determination of the motion at this time.  T.C.R.C.P. 12(d) states:

 

The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

 

[1-2] See also, Sterling v. Velsicol Chemical Corporation, 855 F.2d 1188, 1195 (6th Cir. 1988)("The method and timetable for deciding a Rule 12(b) motion under Rule 12(d) is left to the sole discretion of the trial judge who may defer that determination until trial."); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 1373 (1990)("The last portion of Rule 12(d) gives the court discretion to grant a preliminary hearing or to defer resolution of the issues until trial."); 2A James W.M. Moore, Moore's Federal Practice, 12.15 (1996)("The court, however, has discretion under Rule 12(d) to defer until the trial the hearing or determination of the motion.").

 

Pursuant to T.C.R.C.P. 12(d) determination of this motion will be deferred until this matter comes to trial.

 

We note, however, that since the filing of the complaint on September 28, 1993, the matter does not appear to have been diligently prosecuted.  Unless good cause is shown to the contrary on or before October 24, 1997, the action will be dismissed with prejudice without further notice.

 

It is so Ordered.

 

**********

 

Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc.,


 

NELSON & ROBERTSON PTY. LTD., of AUCKLAND, NEW ZEALAND

and SYDNEY, AUSTRALIA, Plaintiff,

 

v.

 

K.M.S.T., INC., an American Samoa Corporation, and J.J. YONG,

a/k/a JUM-YONG JUNG, a/k/a MR. CHUNG, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 106-88

 

August 28, 1997

 

[1] Under the judicially-developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.

 

[2] Collateral estoppel, like the related doctrine of res judicata, relieves parties of the cost and vexation of multiple lawsuits, conserves judicial resources, and encourages reliance on adjudication by preventing inconsistent decisions.   However, the doctrines are distinct in that res judicata applies only between parties and their privies to the prior action, while collateral estoppel may be invoked by a stranger to the prior action against a party to that action.

 

[3] Stranger plaintiffs may, under certain circumstances, use the doctrine of collateral estoppel offensively, to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff.

 

[4] A trial court has broad discretion in determining when offensive collateral estoppel is appropriate, and must consider the following factors: (1) whether the new plaintiff could have easily joined the previous action; (2) whether the defendant had sufficient incentive in the earlier action to litigate the matter with vigor; (3) whether the application of collateral estoppel would be unfair to the defendant for other reasons; (4) whether the issues in the two actions are identical; (5) whether the court’s holding in the earlier action was actually litigated and necessary to a determination on the merits; (6) whether the judgment in the earlier action was final.

 

[5] The burden of proof is on the party against whom the doctrine of collateral estoppel is sought to be applied to produce some evidence indicating that the party seeking to apply the doctrine adopted a "wait [1ASR3d121] and see" attitude so as to avoid the binding force of a potentially adverse ruling in the previous action.  This is true even where the plaintiff has not adequately explained the failure to join the previous litigation.

 

[6] Where future suits are foreseeable at the time of the first action, the defendant can not claim that there was a lack of incentive to litigate the issue so as to avoid the application of the doctrine of collateral estoppel.

 

[7] Issue preclusion in the context of the doctrine of collateral estoppel only applies when the issue raised is the same issue that was decided in an earlier case.

 

[8] The doctrine of issue preclusion prevents relitigation of all issues of fact or law that were actually litigated and necessarily decided in the prior proceeding.

 

[9] Issue preclusion only applies to final judgments on the merits.  For purposes of issue preclusion, final judgment includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.  The fact that the losing party in the earlier case may still appeal the ruling to a higher appellate court does not render the judgment non-final.

 

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

 

Counsel: For Plaintiff, Jennifer L. Joneson

  For Defendants, Marshall L. Ashley and Malaetasi M. Togafau

 

ORDER GRANTING MOTION FOR WRIT OF EXECUTION

 

Introduction

 

On July 14, 1997, Plaintiff Nelson & Robertson Pty, Ltd., ("N&R") filed an application for a writ of execution against "J.J. Yong a/k/a Jum-Yong Jung, a/k/a Mr. Chung and Malaeimi Valley Mart" for satisfaction of a $502,379.27 judgment entered against defendant J.J. Yong ("Yong") and co-defendants on April 10, 1991. (Emphasis added).  N&R's application for a writ of execution relied on G.H.C. Reid and Co., Inc. v. K.M.S.T., 1 A.S.R.3d 83, 87 (Trial Div. 1997), in which the court judicially declared "that Yong constructively possesses a 100% interest in [Malaeimi Valley Mart], and that [Malaeimi Valley Mart]'s assets are therefore subject to Reid's judgment lien."

 

On July 15, 1997, this court summarily denied the application in part because N&R had not sufficiently demonstrated why this court should include "Malaeimi Valley Mart" in a writ of execution on the April 10, 1991, judgment. [1ASR3d122]

 

On August 8, 1997, the court conducted a hearing on the application of the doctrines of res judicata and collateral estoppel to the present controversy.  On the morning of August 8, 1997, N&R filed their written brief in the matter.  Because Yong's counsel had an inadequate opportunity to review N&R's written brief, the hearing was continued until August 12, 1997.  After the hearing, the court ordered the parties to file supplementary briefs.

 

Discussion

 

After reviewing the briefs submitted, we conclude that N&R may obtain a writ of execution against the assets of Malaeimi Valley Mart.

 

I.  The Doctrine of Collateral Estoppel

 

[1-3] Under the judicially-developed doctrine of collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation."  United States v. Mendoza, 464 U.S. 154, 158, 78 L. Ed. 2d 379, 383 (1984) (citing Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210 (1979)); Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54, 76 (Land & Titles Div. 1989).  Collateral estoppel, like the related doctrine of res judicata, relieves "parties of the cost and vexation of multiple lawsuits," conserve[s] judicial resources, and encourages reliance on adjudication by preventing inconsistent decisions."  Mendoza, 464 U.S. at 158, 78 L. Ed. 2d at 383-84 (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411 (1980)); Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 974 (1979).  However, the doctrines are distinct in that res judicata applies only between parties and their privies to the prior action, while collateral estoppel may be invoked by a stranger to the prior action against a party to that action.  Novak v. World Bank, 703 F.2d 1305, 1309 (D.C. Cir. 1983).  Stranger plaintiffs may, under certain circumstances, use the doctrine of collateral estoppel "offensively," to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff.  Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 329, 99 S. Ct. 645, 650 (1979).

 

[4] A trial court has broad discretion in determining when offensive collateral estoppel is appropriate, id., 439 U.S. at 331, 99 S. Ct. at 651, and must consider the following factors: (1) whether the new plaintiff could have easily joined the previous action; (2) whether the defendant had sufficient incentive in the earlier action to litigate the matter with vigor; (3) whether the application of collateral estoppel would be unfair to the defendant for other reasons; (4) whether the issues in the two actions are identical; (5) whether the court’s holding in the earlier action [1ASR3d123] was actually litigated and necessary to a determination on the merits; (6) whether the judgment in the earlier action was final.

 

A.  Failure to Join Earlier Action

 

The court must consider whether judicial economy is truly served by the offensive use of collateral estoppel under the circumstances of the case.  The offensive use of collateral estoppel can actually increase rather than decrease the total amount of litigation by encouraging potential plaintiffs to adopt a "wait and see" attitude towards similar pending actions.  Thus, if a particular plaintiff "could easily have joined in the earlier action," a trial judge should not allow the use of offensive collateral estoppel.  Id., 439 U.S. at 331, 99 S. Ct. at 652; RESTATEMENT (SECOND) OF JUDGMENTS § 29(4).

 

The Supreme Court did not define the type or degree of ease which is relevant or necessary.  Starker v. United States, 602 F.2d 1341, 1349-50 (9th Cir. 1979); Collins v. Seaboard Coastline Railroad Co., 516 F. Supp. 31, 33 (S.D. Ga. 1981); 18 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 4465, at 59 (West 1980 and 1994 Supp.) (stating that "[i]t is far from clear whether this test will be administered strictly").  Furthermore, the Supreme Court failed to identify whether the moving party in a collateral estoppel action bears the burden of proving that joinder was not "easy," or whether the defendant has the burden of demonstrating that joinder was, indeed, easy.  Neither N&R nor Yong have briefed the court on the issue of burden of proof.

 

The weight of the authority, however, seems to be in favor of the proposition that the application of collateral estoppel will not be denied due to failure to join unless the defendant can produce evidence that the plaintiff was motivated by a "wait and see" attitude.  See Blonder-Tongue Labs. v. Univ. of Illinois Foundation, 402 U.S. 313, 333, 28 L. Ed. 2d 788, 802 (1971) (quoting Eisel v. Columbia Packing, 181 F. Supp. 298, 301 (D. Mass. 1960) (asserting that the party who lost the prior action "must be permitted to demonstrate, if he can, that he did not have 'a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time.'"); Carter-Wallace, Inc. v. United States, 496 F.2d 535, 539 (Ct. Cl. 1974) ("It is significant that the Court [in Blonder-Tongue] placed the burden on the plaintiff-patentee to show that he did not have a full and fair opportunity to litigate."); Ross-Berger Cos. v. Equitable Life Assur. Socy., 872 F.2d 1331, 1337-38 & n.2 (7th Cir. 1989) ("Where a plaintiff has not needlessly increased the total amount of litigation by adopting a 'wait and see' attitude, the concern for judicial economy animating the Parklane Hosiery ‘easy joinder’ limitation has not been implicated."); Nations v. Sun Oil Co., 695 F.2d 933, 938 (5th Cir. 1983), cert. denied, 464 U.S. 893, 78 L. Ed. 2d 229 (1983) (holding [1ASR3d124] that where there was "no proof of purposeful delay" and where a delay is "not shown to be fundamentally unfair" a defendant has no right to a second bite at the apple); Starker, 602 F.2d at 1349-50; McLendon v. Continental Group, Inc., 660 F. Supp. 1553, 1564 (D.N.J. 1987); Midcontinent Broadcasting Co. v. Dresser Indus., 486 F. Supp. 858, 862 (D.S.D. 1980); Collins, 516 F. Supp. at 33 (refusing to "speculate why plaintiff declined to join her husband's suit, [but nevertheless stating that it was] clear that her purpose was not to elude the binding force of an adverse judgment."); RESTATEMENT (SECOND) OF JUDGMENTS § 29, cmt. e, Reporter's Note (suggesting that a claimant who simply "stayed out of" a prior action between others may ordinarily invoke preclusion).  This authority convinces us that, in the case at hand, Yong possesses at minimum a burden of producing some evidence indicating that N&R was a "sideline sitter[] while others carried the ball."  Carr v. District of Columbia, 646 F.2d 599, 606 (D.C. Cir. 1980).1

 

[5] In the present case, Yong has merely submitted, without any evidentiary support, that the present case "is an excellent example of [a plaintiff "waiting and seeing" whether another plaintiff would receive a favorable ruling, and then "jumping on the bandwagon"]."  Defendant's Memorandum in Opposition to Application for Writ of Execution, at 4.  Yong has presented no direct or circumstantial evidence supporting the proposition that N&R adopted a "wait and see" attitude so as to avoid the binding force of a potentially adverse ruling in CA No. 78-89.2 Since we adopt for this jurisdiction a rule that the party opposing collateral [1ASR3d125] estoppel has the burden of proving that the proponent was sandbagging, even where the plaintiff has not adequately explained the failure to join,3 we conclude that Yong's conclusory statement is insufficient to deny the application of collateral estoppel on the ground that N&R failed to join in CA No. 78-89.

 

B.  Incentive to Litigate

 

In Parklane Hosiery, the Supreme Court also expressed concern about potential unfairness to defendants where the defendant had little incentive to defend the first action "vigorously."  439 U.S. at 330, 99 S. Ct. at 651.  In the instant case, Yong has argued that the court should consider the fact that judgment in CA No. 78-89 was for "only" $60,000, whereas judgment in the instant case is potentially over $500,000.

 

[6] However, $60,000 is a high enough stake to elicit vigorous litigation.  See Starker, 602 F.2d at 1349 ("The government had plenty of incentive to litigate Starker I, in which a $37,342 refund was at stake.").  Cf. Berner v. British Commonwealth Pac. Airlines, 346 F.2d 532, 540-41 (2d Cir. 1965).  Furthermore, where future suits are foreseeable at the time of the first action, the defendant can not claim that there was a lack of incentive to litigate the issue.  Parklane Hosiery, 439 U.S. at 330, 99 S. Ct. at 651; Johnson v. United States, 576 F.2d 606, 615 (5th Cir. 1978) ("One of the most important considerations is whether, at the time of the earlier action, the party could foresee that facts subject to estoppel could be important to future litigation.").  In the instant case, Yong knew at the time of CA No. 78-89 that N&R and other entities possessed unsatisfied judgments against him, and that an adverse judgment in CA No. 78-89 might enable these entities to assert in court the same claims that G.H.C. Reid posited.  Therefore, the circumstances of this case suggest that Yong had an adequate incentive to litigate vigorously the issue of his ownership of Malaeimi Valley Mart. [1ASR3d126]

 

C.  Fairness to Defendant

 

The Supreme Court cautioned courts against the application of collateral estoppel where such action "would be unfair to a defendant."  Parklane Hosiery, 439 U.S. at 331, 99 S. Ct. at 652.  Where a party lacked full and fair opportunity to litigate the issue in the first action, the application of offensive collateral estoppel against that party is inappropriate.  Amisone v. Talaeai, 23 A.S.R.2d 52, 54 (Trial Div. 1992); Montana v. United States, 440 U.S. at 153, 99 S. Ct. at 973; Speaker Sortation Systems v. U.S. Postal Service, 568 F.2d 46, 48 (7th Cir. 1978); RESTATEMENT (SECOND) OF JUDGMENTS § 29.

 

In the instant case, Yong alleges that the court in CA No. 78-89 did not grant relief that was contemplated in Reid's pleading, and that the court's judgment was not supported by the evidence presented.  We have reviewed the record in CA No. 78-89 and find no reason to "doubt the quality, extensiveness, or fairness of procedures followed in [the] prior litigation."  Montana v. United States, 440 U.S. at 164 & n.11, 99 S. Ct. at 979 & n.11.  The trial court in CA No. 78-89 liberally construed the plaintiff’s pleadings, as it must in this "notice pleading" jurisdiction.  T.C.R.C.P. 8(e)(1), 8(f); Morgan v. American Samoa Gov't, 24 A.S.R.2d 164, 165 (Trial Div. 1993).  The fact that Yong was overconfident in his theory of the case and did not effectively counter the plaintiff's evidence does not mean that Yong had no opportunity to litigate the issues of fraudulent conduct and equitable ownership in the first action.4 Thus, we reject Yong's allegation that issue preclusion would be unfair to him because of inadequacies in the previous litigation.5  [1ASR3d127]

 

D.  Identity of Issues

 

[7] Issue preclusion only applies when the issue raised is the same issue that was decided in an earlier case.  Reid v. Puailoa, 23 A.S.R.2d 101, 112 (Land & Titles Div. 1993); Montana v. United States, 440 U.S. at 153, 99 S. Ct. at 973; RESTATEMENT (SECOND) OF JUDGMENTS, § 27(1); 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4416, at 148.  For example, in Speaker Sortation Systems v. U.S. Postal Service, 568 F.2d 46 (7th Cir. 1978), the Seventh Circuit held that a determination that the defendant retained a "fund" that was subject to recovery on an equitable lien theory was suitable for issue preclusion, whether the issue be characterized as one of law, fact, or both fact and law.  Id. at 49.  The court found that the later claim stemmed from the same controversy and that there was nothing to be gained from repeated litigation.  Id. 

 

The court in CA No. 78-89 essentially determined that Yong had engaged in fraudulent and inequitable conduct, that Yong “possessed” an equitable interest in Malaeimi Valley Mart, and that this asset could be subject to an equitable lien.  N&R is in exactly the same position as G.H.C. Reid was in CA No. 78-89.  Nothing in N&R's claim depends on characteristics or conduct attributable to N&R, or the particular relationship between N&R and Yong.  The distinction that Yong proposes, that CA No. 78-89 dealt only with "constructive possession" for the purposes of satisfying a judgment and that the current issue is over "legal ownership" for the purposes of satisfying a judgment, is merely an exercise in semantics.  We therefore hold that for the purposes of issue preclusion the instant case deals with the same issue of which the court in CA No. 78-89 disposed.

 

E.  Essential and Necessary to Prior Determination

 

[8] The doctrine of issue preclusion prevents relitigation of all issues of fact or law that were actually litigated and necessarily decided in the prior proceeding.  Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988); GAF Corp. v. Eastman Kodak Co., 519 F. Supp. 1203, 1213 [1ASR3d128]  (S.D.N.Y. 1981).  In CA No. 78-89, the court stated that equity required the court to fashion a "new" remedy, and to declare that Yong "constructively possesse[d]" Malaeimi Valley Mart.  The court's holding was based on substantial circumstantial evidence that was presented at trial regarding Yong's fraudulent and inequitable conduct, and directly responded to the plaintiff's request for a determination that the store's "money and property" was Yong's property for the purposes of satisfying the plaintiff's judgment. See G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 105, 108 (Trial Div. 1997) (Order on Motion for Reconsideration).  Thus, we have no trouble concluding that the issue of Yong's equitable ownership of Malaeimi Valley Mart was actually litigated and necessary to the resolution of CA No. 78-89.

 

F.  Finality of Judgment

 

[9] Issue preclusion only applies to "final" judgments on the merits.  John Morrell & Co. v. Local 304A United Food & Comm. Workers, 913 F.2d 544, 562 n.16 (8th Cir. 1990), cert. denied, 500 U.S. 905, 114 L. Ed. 2d 78.  In the United States federal courts, for purposes of issue preclusion, final judgment includes "any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect."  RESTATEMENT (SECOND) OF JUDGMENTS § 13.  The fact that the losing party in the earlier case may still appeal the ruling to a higher appellate court does not render the judgment non-final.  Deposit Bank v. Frankfort, 191 U.S. 499 (1903); Kurek v. Pleasure Driveway & Park Dist., 557 F.2d 580, 595 (1977); cert. denied, 439 U.S. 1090, 99 S. Ct. 873 (1977); Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993); Erebia v. Chrysler Plastics Products Corp., 891 F.2d 1212, 1215 n.1 (6th Cir. 1989); Dyndul v. Dyndul, 620 F.2d 409, 412 (3d Cir. 1980); Prager v. El Paso Nat'l Bank, 417 F.2d 1111, 1112 (5th Cir. 1969); McLendon, 660 F. Supp. at 1562; 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4433, at 308 (stating that the "established rule" in the federal courts is that a final judgment retains all of its preclusive effect pending appeal).  Yong has presented no persuasive reason for rejecting this rule in American Samoa,6 and we decline to deviate from federal precedent on this issue.  Accordingly, we hold that the judgment in CA No. 78-89, which has survived a motion for reconsideration, is final for the purposes of issue preclusion.  [1ASR3d129]

 

Conclusion and Order

 

The doctrine of collateral estoppel applies to the holding of the trial court in CA No. 78-89 that Defendant J.J. Yong possesses Malaeimi Valley Mart.  Yong may not relitigate the issue of his ownership of Malaeimi Valley Mart in this action by Nelson & Robertson.  Accordingly, the application for a writ of execution to satisfy Nelson & Robertson's heretofore unsatisfied judgment against Yong by seizing the assets of Malaeimi Valley Mart is GRANTED.

 

It is so Ordered.

 

**********

 

 

 

 

 



1Cf. Hauser v. Krupp Steel Producers, Inc., 761 F.2d 204, 207 (5th Cir. 1985), (finding no clear error in the decision of a trial court to deny the application of collateral estoppel because plaintiff had "failed to present a valid reason" for not joining the earlier action); Aiello v. City of Wilmington, 470 F. Supp. 414, 422 n.21 (D. Del. 1979) (opining that the Supreme Court's decision in Parklane Hosiery had "put a slightly higher burden on the proponent of collateral estoppel when it is used offensively.");  Mancuso v. Harris, 677 F.2d 206, 209 (2d Cir. 1982) (cautioning courts to use "care" before applying the doctrine of collateral estoppel); Evanston Ins. Co. v. Affiliated FM Ins. Co., 556 F. Supp. 135, 137 (D. Conn. 1983) (remarking that "[w]hile Parklane Hosiery did authorize the use of collateral estoppel offensively, it did so under certain strict guidelines.") (emphasis added).

2The absence of any evidence that N&R's conduct created unnecessary litigation distinguishes the instant case from Hauser, where the district court had relied on the absence of a valid reason for failing to join, but also on circumstantial evidence of the plaintiff's knowledge of the earlier suit, including: (1) the fact that plaintiff was married to the previous plaintiff; (2) the fact that plaintiff was represented by counsel during the pendency of her husband's litigation and counsel at that time knew of the potential for the wife's cause of action.  761 F.2d at 207 n.2.

3 N&R has not presented evidence to explain precisely how and when N&R learned of Yong's involvement in Malaeimi Valley Mart.  N&R merely presents the affidavit of its counsel, Jennifer Joneson, who averred under oath that N&R contacted her law office at a juncture where "the post-judgment trial in the G.H.C. Reid v. K.M.S.T., et. al. HCCA 78-89 had already been completed and was under advisement with the court."  Because this statement does not necessarily mean that N&R did not know of G.H.C. Reid's case during the period when CA No. 78-89 was being litigated, nor does the statement necessarily mean that N&R did not know of Yong's involvement with Malaeimi Valley Mart at some point prior to the conclusion of trial, the remark has minimal value with respect to the issue of whether N&R could have easily joined in the action.  Cf. Flatt v. Johns Manville Sales Corp., 488 F. Supp. 836, 840 (E.D. Tex. 1980).

4 See G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 105, 110 (Trial Div. 1997) (Order on Motion for Reconsideration) (". . . Defendants and Defendant-Garnishees were content to rest on their characterization of the issues and to offer only minimal effort at rebutting Reid's evidence.")

5 However, one commentator has questioned the intensity of scrutiny due an earlier trial:

Issue preclusion is available in most circumstances without any need to prove the quality of the first litigation and decision.  The values of preclusion would be destroyed if proof of the quality of decision were required of the party asserting preclusion or permitted to the party opposing it.  Trial of the quality of the first litigation would often prove more demanding than simple retrial of the issues themselves.  Deliberate harassment would be facilitated accordingly.  And the opportunity to try this question would undermine any ability to rely on the finality of the first determination. . . . The current trend is to allow preclusion unless the first court followed severely limited procedures or there is a clear and strong policy requiring independent redetermination by the second court.

18 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 4423, at 216, 217 (West 1980 & 1994 Supp.).  While we tend to agree with this reasoning, the facts of the instant case are such that we need not strictly prohibit subsequent evaluations of trial "quality" in order to reach our conclusion today regarding the "fairness" to the defendant of applying the doctrine of collateral estoppel to the trial court's conclusions in CA No. 78-89.

6 In Warwick Corp. v. Maryland Dept. Of Transp., 573 F. Supp. 1011, 1014 (D. Md. 1983), the court held that denying preclusion because the earlier judgment was on appeal would "be laughable.  If a judgment was denied its res judicata effect merely because an appeal was pending, litigants would be able to refile an identical case in another trial court while the appeal is pending, which would hog-tie the trial courts with duplicative litigation.")

 

Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc


NELSON & ROBERTSON PTY. LTD. of AUCKLAND,

NEW ZEALAND and SYDNEY, AUSTRALIA, Plaintiff,

 

v.

 

K.M.S.T., INC., an American Samoa Corporation, and J.J. YONG,

a/k/a JUM-YONG JUNG, a/k/a MR. CHUNG, Defendants.

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 106-88

 

July 15, 1997

 

[1] Where writs of execution and garnishment did not conform to and follow the judgment, Clerk of Courts properly directed to strike surplusage before issuing them. 

 

Before KRUSE, Chief Justice.

 

Counsel: For Applicant, BarryI.Rose

 

ORDER GRANTING IN PART AND DENYING

IN PART APPLICATION FOR WRITS OF

EXECUTION AND GARNISHMENT

 

On April 10, 1991, this court entered judgment in favor of Nelson and Robertson Pty., Ltd. ("N&R") and against defendants "K.M.S.T., INC., an American Samoa Corporation, and J.J. YONG, a/k/a JUM-YONG JUNG, a/k/a MR. CHUNG," for the sum of $217,741.40 plus post-judgment interest calculated at 18% per annum.

 

On July 14, 1997, N&R filed an application for a writ of execution against "J.J. Yong a/k/a Jum-Yong Jung, a/k/a Mr. Chung and Malaeimi Valley Mart" for satisfaction of the April 10, 1991, judgment. (emphasis added)  Additionally, N&R applied for writs of garnishment addressed to Amerika Samoa Bank and Bank of Hawaii to forbid the banks from payment of "any debt owed by you, now due or to become due, to J.J. Yong a/k/a Jum-Youg Jung a/k/a Mr. Chung and Malaeimi Valley Mart." (emphasis added)

 

[1] Because the writs of execution and garnishment do not "conform to and follow the judgment" dated April 10, 1991, the Clerk of Courts is directed to only issue the writ of execution and writ of garnishment after striking the phrase "and Malaeimi Valley Mart."  Merrifield v. Western Cottage Piano & Organ Co., 87 N.E. 379, 380 (Ill. 1909) (citing Hobson v. [1ASR3d88] McCambridge, 130 Ill. 367, 22 N.E. 823; Kinkade v. Gibson, 209 Ill. 246, 70 N.E. 683; 1 FREEMAN ON EXECUTIONS, (3d Ed.) 42; HERMAN ON EXECUTIONS, 56).

 

It is so Ordered.

 

**********

 

Star-Kist y Samoa, Inc. v. Comm’r of the American Samoa Gov’t Workmen’s Comp. Comm’n.


STAR-KIST SAMOA, INC., AND ITS WORKMEN'S

COMPENSATION INSURANCE CARRIER, Petitioner,

 

v.

 

COMMISSIONER OF THE AMERICAN SAMOA GOVERNMENT

WORKMEN'S COMPENSATION COMMISSION, Respondent.

________________________________

 

TAULUA VAOMUA, Real Party-in-Interest.

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 15-97

 

 May 13, 1997

 

[1] A motion to stay enforcement of an order awarding worker’s compensation benefits will not be granted unless it is shown that irreparable damage must ensue to the employer unless a stay is issued.  A.S.C.A. § 32.0652.

 

[2] The fact that the employer might have difficulty recovering the repayment of compensation from the employee if the award to the employee is reversed on appeal, is insufficient reason to grant a stay.

 

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

 

Counsel: For Petitioner, Cherie S. Norman

              For Respondent, Cheryl Crenwelge-Sione, Assistant Attorney General

              For Real Party-in-Interest, Barry I. Rose

 

ORDER ON MOTION TO STAY

 

Star-Kist Samoa, Inc. ("Star-Kist"), has filed its petition under A.S.C.A. § 32.0652, seeking judicial review of an order entered by the Workmen's Compensation Commission ("Commission"), levying a fine upon Star-[1ASR3d68]Kist, and awarding the Real Party-in-Interest Taulua Vaomua ("Vaomua") certain workmen's compensation benefits.  Star-Kist subsequently filed a motion to stay enforcement of the compensation order pending review.

 

[1] A stay "shall" not issue unless it is shown that "irreparable damage" must "ensue to the employer."  A.S.C.A. § 32.0652.  Subsection (c) of this enactment moreover provides that an order staying enforcement of an award:

 

shall contain a specific finding, based upon the evidence submitted to the court and identified by reference thereto, that such irreparable damage would result to the employer, and specifying the nature of the damage.

 

[2] We are unable to make such a finding, of irreparable damage, on the extent of the evidence before us.  Star-Kist's only attempted showing at irreparable damage was framed in terms of Vaomua's financial inability to repay Star-Kist should the latter prevail in this court.  The fact that Star-Kist might have difficulty recovering the repayment of compensation from the Vaomua if the award is reversed on appeal, is insufficient reason to grant a stay.  See Maxon Marine Inc. v. Director, Office of Workers Compensation Programs, 63 F.3d 605 (7th Cir. 1995) (dealing with the comparable stay provision contained in the Longshore and Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C. § 921(b)(3), the model for the local Workmen’s Compensation Act).  The Maxon court alluded to underlying Congressional policy in the LHWCA to "expeditiously" provide the injured worker with compensation benefits, rather than leaving him/her without assistance until the entire appeal process has run its course.  See also Meehan Seaway Service v. Director, OWCP, 4 F.3d 633, 636 (8th Cir. 1993).

 

Star-Kist's reasons for issuance of a stay being, therefore, insufficient, the motion to stay enforcement of the award is denied.

 

It is so Ordered.

 

**********

Bank of Hawaii v. Neru


BANK OF HAWAII, Plaintiff,

 

v.

 

GEORGE NERU, GENERAL REPAIRS, INC. and

AMERICAN SAMOA GOVERNMENT, jointly and severally, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 65-96

 

May 21, 1997

 

[1] The relief afforded by T.C.R.C.P. Rule 6(a), extending the period for time computations to the next business day when the last day falls on a Saturday, Sunday, or legal holiday, applies to the filing period for motions for a new trial.

 

[2] A security agreement can secure after acquired property.

 

[3] Although a mortgage must truly describe the property secured by the mortgage, a description is sufficient if it furnishes a reasonable basis for identification, even though it is not specific enough to fully identify the property by itself.

 

[4] Inclusion of an erroneous serial number has no effect on the validity of a security agreement when the property is otherwise adequately described.

 

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

 

Counsel: For Plaintiff, Jennifer L. Joneson

              For George Neru and General Repairs, Inc., Pro Se

              For Defendant American Samoa Government, Cheryl Crenwelge Sione, Assistant Attorney General

 

 

ORDER DENYING MOTIONS FOR

RECONSIDERATION OR NEW TRIAL

 

This matter involves the ownership of two buses.  Following trial, the court held that plaintiff Bank of Hawaii ("BOH") has a valid and enforceable security interest in one of the buses ("bus #3"), and that defendant American Samoa Government ("ASG") owns the other bus ("bus #1) free [1ASR3d70] of BOH's claimed security interest.  Each party now moves for reconsideration or new trial regarding the bus which it was not awarded.  The court regularly heard the motions on May 8, 1897.  Counsel for BOH and ASG were present.

 

Discussion

 

A.  BOH's Motion


BOH argues that the court should not have awarded bus #1 to ASG.  We awarded bus #1 to ASG based on the equitable doctrine of laches.  Having considered the briefs and oral arguments, we conclude that BOH's motion for reconsideration or new trial is properly denied.


B.  ASG's Motion


[1] ASG filed its motion on Monday, April 14, 1997, the eleventh day after the court's opinion and order was entered on April 3, 1997.  BOH moves to dismiss ASG's motion on the ground that the 10-day requirement in A.S.C.A. § 43.0802(a) for filing a motion for a new trial is jurisdictional.  However, the Appellate Division has recently resolved this issue by definitively holding that the relief afforded by T.C.R.C.P. Rule 6(a), extending the period for time computations to the next business day when the last day falls on a Saturday, Sunday, or legal holiday, applies to the filing period for motions for a new trial.  Pal Air International, Inc. v. Porter, 1 A.S.R3d 1, 1-3 (App. Div. 1997).  Thus, BOH's motion to dismiss ASG's motion must be denied.  

 

[2] ASG argues that defendants George Neru and General Repairs, Inc. did not have any interest in the buses at the time that the security agreements were signed, and therefore the security agreements are invalid.  This argument is specious at best.  Of course a security agreement can secure after acquired property.  Every vehicle loan made by a bank has a security agreement on a vehicle that is not yet owned by the buyer.  The passage cited by ASG for this assertion is dicta.  The actual holding of the case is that a mortgage in after acquired property is valid.  See McIntosh v. U.S., 439 P.2d 464, 467 (Utah 1968).

 

ASG also argues that the incomplete description of bus #3 precludes the attachment of the security interest.  We found that ASG had actual knowledge of the security interest, thus making the description requirements of A.S.C.A. § 27.1510 inapplicable.  ASG argues that the flawed description goes to the essence of the document itself, rendering the mortgage invalid and making the actual knowledge exception in A.S.C.A. § 27.1510 inapplicable.  We disagree.  [1ASR3d71]

 

[3-4] Although it is true that a mortgage must truly describe the property, we believe that a description is sufficient if it furnishes a reasonable basis for identification, even though it is not specific enough to fully identify the property by itself.  See e.g. B.E. Witkin, 3 Summary of California Law, Secured Transactions in Personal Property § 14 (1987).  Diocese of Samoa Pago Pago v. K.M.S.T. Inc., 18 A.S.R.2d 67 (Land & Titles Div. 1991), cited by ASG, is factually distinquishable.  The security agreement in Diocese, unlike this case, did not describe any particular thing as collateral.  Id., at 69-71.  Diocese also recognizes the effect of a third party's actual knowledge of the security agreement when the property is described with reasonable certainty.  Id., at 69; A.S.C.A. § 27.1510.  Moreover, taking guidance from the Uniform Commercial Code, inclusion of an erroneous serial number has no effect on the validity of the security agreement when the property is otherwise adequately described.  68A Am Jur 2d, Secured Transactions, § 215.  We believe the description of bus #3 was sufficient, and that any irregularities in that description did not render the mortgage invalid.

             

Thus, we conclude that ASG's motion for reconsideration or new trial should also be denied.

 

Order

 

BOH's motion to dismiss ASG's motion for reconsideration or new trial is denied.  BOH's and ASG's motions for reconsideration or new trial are also denied.

 

It is so Ordered.

 

**********

 

Pipili v. Ah Sue,


FA`ANUNUMI ENE PIPILI, Plaintiff,

 

v.

 

JOHN AH SUE and TALO AH SUE, Defendants.

 

High Court of American SamoaPRIVATE

Trial Division

 

CA No. 163-96

 

May 2, 1997

 

[1]  T.C.R.C.P. Rule 15(a) allows a party to amend his pleadings once, as a matter of course, any time before a permitted responsive pleading is served.

 

[2] A T.C.R.C.P. Rule 12(b) motion to dismiss is not a responsive pleading for the purposes of T.C.R.C.P. Rule 15(a).

 

[3] Failure to allege the jurisdictional amount in the complaint does not subject it to dismissal where the complaint is amended to include this allegation prior to the filing of a responsive pleading by the defendant.

 

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

 

Counsel: For Plaintiffs, Marie A. Lafaele

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

 

ORDER DENYING MOTION TO DISMISS


Defendants move to dismiss the plaintiff's original complaint for lack of jurisdiction and for failure to state a claim pursuant to T.C.R.C.P. Rule 12(b).  [1ASR3d64]

 

Defendants argue that the High Court lacks jurisdiction in this matter due to plaintiff's initial failure to plead the jurisdictional amount.  Plaintiff, however, has since filed an amended complaint pleading the jurisdictional amount.  The amended complaint was filed after the motion to dismiss but before the defendant's answer. 

 

[1-3] T.C.R.C.P. Rule 15(a) allows a party to amend his pleadings once, as a matter of course, any time before a permitted responsive pleading is served.  A Rule 12(b) motion to dismiss, such as the one now before us, is not a responsive pleading for purposes of Rule 15(a).  See Wright, Miller & Kane, Federal Practice & Procedure, Civil 2d ' 1483.  Defendants' argument regarding plaintiff's initial failure to state the jurisdictional amount is therefore moot.  Further, we do not find that the amendment is made in bad faith.

 

Defendants also argue that the complaint fails to state a claim upon which relief can be granted.  However, we find that the plaintiff's amended complaint sufficiently states a claim.

 

For the reasons set forth above defendants’ motion to dismiss is denied.

 

It is so Ordered.

 

**********

 

 

 

Pagofie v. Matagi,


 

FAIAOGA PAGOFIE, SIAOSI MASE, TAEAOLELEI AVA TIALAVEA,

and PUNEFU LEVALE PAGOFIE, Plaintiffs,

 

v.

 

FOLOLE MATAGI, LUFILUFI PENEUTA, FOMA`I PAEPULE,

and TREVOR TUIOLOSEGA, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 11-97

 

September 18, 1997

 

[1] Where defendants hold themselves out as lesser matai in order to gain building permit, but neither had actually obtained registered, family-sanctioned title, such actions constitute a ruse.

 

[2] Sufficient grounds for the issuance of a preliminary injunction exist where (1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.

 

[3] Where defendants unilaterally build structure on family land, such actions are tantamount to an unlawful assertion of pule, as well as an unauthorized assignment of family land. 

 

[4] Where unauthorized structure is small, movable, not a significant encumbrance, and nearly completed, no irreparable injury will result by allowing its completion and no preliminary injunction will lie.

 

[5] Where circumstances indicate that family members are exercising unauthorized pule, great or irreparable injury can be shown. 

 

[6] A.S.C.A. § 43.0304 authorizes the court to prohibit the parties from taking any action that would be tantamount to exercising pule.

 

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

 

Counsel: For Plaintiffs, Afoa L.S. Lutu

  For Defendants, Charles V. Ala`ilima [1ASR3d228]

 

ORDER ON PLAINTIFF’S MOTION

FOR PRELIMINARY INJUNCTION

 

Plaintiffs seek injunctive relief to enjoin the defendants from continuing the construction of a certain structure.  Plaintiffs are members of the Pagofie and Ava families (the "family") attached to the village of Pava`ia`i; they claim that defendants' branch of the family stem from a customary adoption; and that, therefore, defendants as non-blood members have no rights to family land in Pava`ia`i known as Alefu.  According to plaintiffs, defendants have unlawfully asserted pule over Alefu by causing a structure to be built thereon in the absence of senior matai.

 

Facts

 

[1] The facts are that the family are presently without senior matai; both the Pagofie and Ava titles are vacant.  The offending structure was built following the issuance of a building permit to defendant Folole Matagi ("Folole") for a 20' x 20' structure to be built on Alefu.  The permit application as presented to the authorities was signed by defendants Foma`i Paepule ("Paepule") and Trevor Tuiolosega ("Tuiolosega"), holding themselves out as lesser matai of the Ava/Pagofie families.  However, neither title claimed by these defendants has been sanctioned by the family, nor registered in accordance with the requirements of A.S.C.A. § 1.0401-0414.  Defendants Paepule and Tuiolosega are not matai of the family, they are pretenders;[1] and the building permit obtained at their behest was therefore secured by ruse.       

 

The structure in question, while in Folole's name, is being built for a relative of Folole's named Selema who is a stranger to the family.  The latter is neither connected by blood nor adoption to the family. [1ASR3d229]

 

Discussion

 

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

 

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

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

 

[3] Laying aside the issue of "blood" and "non-blood" family members, the defendants alone do not constitute the family.  The building of the structure complained of is, in our view, tantamount to an unlawful assertion of pule by the defendants, as well as an unauthorized assignment of family land.  There is no basis in either law or custom giving the defendants the right to unilaterally deal with the family's communal land to the exclusion of plaintiffs.  Furthermore, the fact that the intended structure is for a non-family member, only aggravates the matter.

 

[4] We conclude that while plaintiffs are likely to prevail at trial on the first criteria, we are not persuaded that plaintiffs have sufficiently shown irreparable injury if continuing construction is not enjoined at this stage of the proceedings.  The structure is not a significant encumbrance, it is comparatively small and is built on stilts.  It may therefore be relocated with ease, if need be, without any serious damage to the land.  At the same time the structure is substantially complete structurally.  Under these circumstances, the equities weigh against the exposure of a nearly complete structure to the ravages of the elements pending final disposition hereof.

 

[5] On the other hand, we are satisfied that there is another sort of growing irreparable injury demonstrated on the evidence which, in the absence of senior matai, present a real and continuing threat to family peace and harmony.  This threat to family unity stems from the defendants' demonstrated proclivity for unilateral assertion of control over family realty.  See Ava v. Logoai, 22 A.S.R.2d 65 (Land & Titles Div. 1992) (Defendants' registration of family land as their "individually" owned land to the exclusion of the rest of the family was invalidated).  Indeed, the defendants' concerted acts prompting this case is but another instance of such a family threat.  Such actions should be enjoined in the interests of stemming the deterioration of continuing family peace and harmony.  [1ASR3d230]

 

Order

 

[6] Under A.S.C.A. § 43.0304, the court is granted wide latitude in fashioning interim orders.  On the foregoing, the following order will issue:

 

1.  Application to enjoin continuing construction is denied.

 

2.  Pending further order of court or sooner appointment of senior matai, the defendants, their attorneys, agents, employees, and all those in active concert with them are enjoined from taking any further action tantamount to the exercise of the pule reserved to the senior matai over land Alefu, unless such action is authorized by the family.

 

It is so Ordered.

 

**********

 

 

 



[1] Paepule singularly conferred himself a matai title, using the name of another tract of family land as his matai name, and then presented himself before the village council.  On this basis, and quite apart from the unlawful nature of his claim, Paepule regards himself a lesser matai of the family.

    Paepule similarly presented Tuiolosega to the village council, again by-passing the family, with a matai title attached to the village of Asau, Savai`i, Western Samoa.  On this equally remarkable basis, Tuiolesega holds himself out as a lesser matai of the Ava/Pagofie families attached to the village of Pava`ia`i, Tutuila, American Samoa.

 

Samoa Sharkfin Trading Co. v. Ho Py Hong


 

SAMOA SHARKFIN TRADING CO., Plaintiff,

 

v.

 

HO PYO HONG, Defendant.

 

High Court of American Samoa

Trial Division

 

CA No. 149-95

 

November 19, 1997

 

[1] Statement in previous case acknowledging disputed debt will be viewed as admission and shall corroborate debt’s existence.

 

[2] Circumstances substantiated accord and satisfaction where purported consideration from defendant included equipment, cooler and agreement not to compete, where plaintiff did not dispute receiving equipment or cooler, and where evidence proved defendant had not engaged in business for five years prior to lawsuit. 

 

[3] Party may not seek to be relieved from accord and satisfaction when he or she later realizes that such was a bad bargain.

 

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

 

Counsel: For Plaintiff, Aumoeualogo S. Salanoa

              For Defendant, Charles V. Ala`ilima

 

DECISION AND ORDER

 

Plaintiff Byung Soo Ki, dba Samoa Sharkfin Trading Co. ("Ki"), and defendant Ho Pyo Hong ("Hong") were at all relevant times shark fin dealers.  They each bought shark fins from different oriental fishing vessels that called into the Territory, and they each prepared and exported the same off-island.  In 1991, they merged operations to transact business with the fishermen as a single dealer, thus eliminating competition with one another.  At the time, Hong had a virtually exclusive franchise to provision the fishing vessels of the Korea Deep Sea Fisheries Association ("KDSFA").  As a result, he had an edge over any rivals in the sharkfin business because he had ready access to the fishing boats of KDSFA.  Ki, on the other hand, seemed to have greater access to the large quantities of the front money needed to acquire product. [1ASR3d144]

 

A division of labor developed between the parties as Hong did the purchasing, cutting, drying, and preparation of the shark fins for export while Ki provided Hong the funds, in cash, to buy product from the fishermen and attended to the actual off-island selling, primarily to a buyer in Hong Kong.  The mechanics of the parties' business was as follows: Hong would ask Ki for a certain sum of money to buy product whenever a fishing vessel was expected in port.  Hong would later deliver the export-ready commodity to Ki for shipment off-island.  From the proceeds of sale, Ki would first deduct the sum advanced to Hong in the first place and then the net, if any, was divided between them.  According to Hong, he gained on some consignments and lost on others.

 

The business relationship lasted for two years, coming to an end after a falling out between Hong and KDSFA that culminated in a protracted, tedious lawsuit (see Korea Deep Sea Fisheries Association v. Hong, 31 A.S.R.2d 80 (Trial Div. 1996)) and the cessation of Hong's access to KDSFA's fishing vessels.  Today, the parties are before the court on Ki's claim that $100,782.51 in cash advances made to Hong remain outstanding following the termination of their business relationship.

 

Ki claims that on October 21, 1991, he gave KDSFA's manager, In Saeng Lee ("Lee"), the sum of $50,000 at the request of Hong.  He additionally claims that, on November 2, 1991, he also advanced to Lee the sum of $20,000 at Hong's request.  Neither advance resulted in the purchase of shark fins.  The balance of Ki's claim is his reckoning of net proceeds which he had advanced to Hong for shark fins but for which no product was acquired.

 

Hong contests owing Ki the $50,000 payment and $20,000 payment which the latter made to Lee.  He flatly denies ever asking Ki to advance Lee such sums.  As to the balance of Ki's claim, Hong while not disputing Ki's accounting, claims accord and satisfaction pursuant to an agreement that he and Ki had concluded after they had parted company.  Hong's testimony is that Ki had agreed to retire the debt in exchange for Hong's transfer of his shark fin equipment to Ki and his forbearance from the shark fin industry.  Hong testified that he additionally gave Ki a brand new retail refrigeration cooler.  He further testified that he has, until recently, stayed out of the sharkfin business for the past five years.

 

Discussion

 

We find ourselves yet again immersed in that nebulous business environment of hand shakes and substantial cash dealings, where usual paper trails of checks, receipts, invoices, etc. are non existent and record keeping, if any, is purposefully secretive.  Nonetheless we must decide [1ASR3d145] between these totally competing parol claims and attempt to achieve justice.

 

[1] We find that the evidence weighs in favor of Ki with regard to his $50,000 claim, the amount he testified he gave to Lee at Hong's behest.  Although Hong denied under oath that he ever asked Ki to advance such a sum of money to Lee, he seems to have forgotten that he had previously tried to claim this very amount from KDSFA in a separate law suit.  See Korea Deep Sea Fisheries Association v. Hong, 31 A.S.R.2d 80 (Trial Div. 1996).  In his claim regarding loans he had made to KDSFA, Hong's accounting presented to the court in CA No. 78-92, contained the following entry:

 

12.OCT.21,1991  This amount is the cash check lent to Mr. Lee, In Saeng after I borrowed the check from Samoa Shark's Fins Trading Co. and then issued it as Korea Deep Sea account of Lee, In Saeng when he urgently requested me to make a loan.     $50,000.00

                                                             

(emphasis added).  We accept this admission as corroborative of Ki's $50,000 item of claim.  He shall have judgment accordingly.

 

[2] With regard to Ki's remaining items of claim, the $20,000 advance to Lee and the remaining $30,782.51 balance, we find for Hong.  Not only has Ki failed to sufficiently substantiate his $20,000 claim, but we accept Hong's version of facts as to his claim of accord and satisfaction achieved between he and Ki on the $30,782.51 indebtedness.  Although Ki denies any post-termination settlement with Hong, he does not dispute the fact that Hong had given him equipment for shark fin preparation as well as a brand new cooler.  Nor does Ki dispute the fact that Hong has stayed away from the sharkfin business until he decided to sue Hong.  What Ki now attempts to assert, however, is inadequate value for his money.  He argues that the sharkfin equipment needed repairs to the extent of $3000, although he is still using the same to date.  He further attempts to downplay the value of the cooler by claiming that he has always been able and willing to pay for the cooler, but has not done so because Hong has not given him an invoice.

 

[3] Not only does Ki's version of the facts sound less believable, but his "inadequacy of value" argument is legally unsound.  He may not be relieved of his contract with Hong simply because he now feels that he has made a bad bargain and got the short end of the stick.  Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1, 5 (Trial Div. 1987).

 

On the foregoing, we conclude that Hong is indebted to Ki in the sum of $50,000.  Judgment will enter accordingly for Ki against Hong. [1ASR3d146]

 

It is so Ordered.

 

**********

 

Meredith & Associates v. Blue Pacific Management Corp.,


 

G.M. MEREDITH & ASSOCIATES, Plaintiff‑Appellant,

 

v.

 

BLUE PACIFIC MANAGEMENT CORP.,

Agent for Pago Plaza, Defendant‑Appellees.

 

High Court of American Samoa

Appellate Division

 

AP No. 17‑95

CA No. 108-90

 

April 10, 1997

 

[1] Where evidence indicated that skylight did not survive the force of Hurricane Ofa, but replacement skylight survived Hurricane Val, a hurricane of substantially greater force than that of Ofa, there was sufficient evidence for Court to conclude that Appellant’s skylight was negligently designed and constructed.

 

[2] Whether trial court employed term, res ipsa loquitur, with pristine acuity is not important, so long as there was sufficient evidence to support the trial court’s findings.

 

[3] The doctrine of res ipsa loquitur permits the factfinder to infer negligence from circumstantial evidence.

 

[4] Trial court's taking judicial notice of comparable hurricane wind strength data was of little consequence as these statistics did not relate to any material, disputed fact. 

 

Before GOODWIN*, Acting Associate Justice, WALLACE**, Acting Associate Justice, VAIVAO, Associate Judge, ATIULAGI Associate Judge.

 

Counsel:  For Appellant, Roy J. D. Hall

               For Appellee, William H. Reardon [1ASR3d5]

 

OPINION

 

GOODWIN, Acting Associate Justice.

 

G.M. Meredith and Associates (GMA) sued Blue Pacific Management in CA No. 108‑90 to recover unpaid compensation for services rendered by GMA to Blue Pacific as agent of Pago Plaza.  Blue Pacific counterclaimed for damages caused by alleged defects in the design and installation of the skylight by GMA at the office building owned by Plaza.  After the other issues in the litigation were resolved in the trial court, trial proceeded on the counterclaim, ending with a judgment in favor of Blue Pacific.  This judgment, for $20,900, the only subject of this appeal, is affirmed.

 

The damages were measured by the costs incurred by Blue Pacific in replacing the original skylight designed and installed by persons employed and supervised by GMA after Hurricane Ofa removed and destroyed it.  The counterclaim was tried on a negligence theory, although there was no direct evidence of a specific design defect, or of specific acts of negligence.  The proof was that GMA undertook to design and supervise the installation of a skylight and performed the work in a manner that permitted the skylight to be destroyed by the first hurricane to come along, in a geographic region that is frequently visited by such storms. 

 

[1] The proof was that the skylight could not survive the force of Hurricane Ofa, which all agreed was not of extraordinary force or violence by hurricane standards in Samoa.  There was also proof that the replacement skylight survived Hurricane Val, a hurricane of substantially greater force than that of Ofa. Accordingly, the court made findings of fact to the effect that GMA had undertaken to design and supervise installation of a skylight that would withstand winds of hurricane strength; that hurricanes are common in the vicinity of Pago Pago; that the skylight installed by GMA was defective; and that GMA's architect was negligent in the design and supervision of the construction of the defective skylight, and that GMA was liable to Blue Pacific for the foreseeable costs of replacing the defective installation.

 

The appeal argues that the statement of the trial court that it was relying on the doctrine of res ipsa loquitur fatally infects the other findings and requires reversal of the judgment.

 

[2] We hold that whether the Latin phrase was employed with pristine acuity or was merely a response to mantra‑like prompting by prevailing counsel, it was harmless.  [1ASR3d6]

 

[3] As this court held in Iosia v. National Pacific Ins. Ltd., 20 A.S.R.2d 123 (App. Div. 1992),

 

res ipsa loquitur [is] no more than one form of circumstantial evidence. . . . The inference of negligence to be drawn from the circumstances is left to the jury.  They are permitted, but not compelled, to find it.

                                          . . . .

In other words, the doctrine, when applicable, merely establishes a permissive inference of negligence which the factfinder is not required to adopt.

 

Id. at 124-25, quoting Prosser, Torts 40 (5th ed. 1984).  The trial did not hold GMA strictly or absolutely liable for the skylight.  Rather, it inferred from circumstantial evidence that GMA negligently designed and supervised the construction of the skylight.  The operative facts of this case were simple, the proof was clear, and the judgment was consistent with the proof. 

 

[4] The appeal also assigns error to the trial court's taking judicial notice of the comparative strengths of hurricanes at various times and places.  While an effort was made by the defense to dispute the exact wind strengths at various times and places, these statistics were not likely to prove any disputed fact.  The inescapable fact was that the defendant undertook to build a skylight in hurricane country, knowing that if the skylight was not carefully designed and installed with sufficient windproofing safeguards, it would not survive the foreseeable storms likely to assault the building site.  Contrary to the arguments of the defense, the case was not decided upon a theory of strict or absolute liability.  It was perfectly proper to treat the matter as a simple negligence action for damages caused by the errors and omissions of an architect or of a subcontractor.

 

AFFIRMED.

 

**********

 



* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals, for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeals, for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

Am. Samoa Gov’t


[1] The doctrine of res judicata precludes relitigation of the legal and factual issues that were settled between the same parties in prior litigation.

[2] The doctrine of res judicata precludes relitigation of issues that could have been raised but may not have been raised in the prior litigation.

[3] Where doctrine of res judicata barred action, equitable claims, claims regarding oral representations made by government officials, and claims that the government forfeited its title need not be reached.

Before GOODWIN*, Acting Associate Justice, WALLACE**, Acting Associate Justice, WARD***, Acting Associate Justice, AFUOLA, Associate Judge, LOGOAI, Associate Judge.

Counsel: For Appellant, Albert Mailo and Toleafoa Solomona R. Toailoa, pro hac vice

  For Appellee, Malaetasi M. Togafau, Attorney General, and Henry W. Kappel, Office of Attorney General.  [1ASR3d15]

OPINION

GOODWIN, Acting Associate Justice.

Atualevao Meredith appeals for himself and other defendants a summary judgment entered in favor of American Samoa Government (ASG) confirming the fee simple title to ASG in land described as Plot B on the Revised Tafuna Airport Boundary Survey.  We affirm the judgment.

The land involved in this case was condemned for airport purposes in LT 15‑1959.  The condemnation was satisfied in 1960 by the payment of $18,857.61 to the Matai of the Lemeanai Family, who received the payment "under protest."  The protest was apparently based upon the belief that the land was worth more than the compensation awarded by the judgment.  The protest was not pursued in court for another twenty‑five years.  In 1985, Defendant Meredith attempted to assert rights in the subject land, and in LT 12‑85 the condemnation was upheld and judgment was entered against Meredith and in favor of ASG. See Meredith v. American Samoa Gov't, 2 A.S.R.2d 66 (Land & Titles Div. 1985), aff'd, AP 23‑85 (1986).

 

The case at bar was submitted to the Trial Division, which entered summary judgment, holding that the fee simple title in the government had been determined in 1960 after the 1957 condemnation was upheld on appeal.  Title in ASG was conclusively reconfirmed in the 1985 case.  That judgment became final, and is res judicata.

 

[1-2] The doctrine of res judicata precludes relitigation of the legal and factual issues that were settled between the same parties in the prior litigation, and also precludes relitigation of issues that could have been raised but may not have been raised in the prior litigation.  See Estate of Sotoa v. Te'o, 8 A.S.R.2d 165 (App. Div. 1988); Aoelua v. Tagoa'i, 10 A.S.R.2d 20 (Land & Titles Div. 1989); Taulaga M. v. Patea S., 4 A.S.R.2d 186 (Land & Titles Div. 1987).  Accordingly, all disputes and claims by these defendants against the ASG title in the subject land are barred. 

 

[3] Because we hold that res judicata bars this action, we need not reach equitable claims or statute of frauds questions involving the validity of oral statements that may have been made by government officials at earlier dates during discussions about the rights to the subject land.  Nor do we reach the claim that the government forfeited its title by failing to build upon or otherwise use the taking for airport purposes.  The trial court made a finding, in the judgment which became final in 1985, to the effect that the government leased the subject land to the Federal Aviation Authority for airport purposes during any periods in which the land might have reverted for want of use to the original owners under [1ASR3d16] A.S.C.A. § 37.2001(b).  Finally, we hold that the Trial Division did not abuse its discretion in denying Meredith's Rule 60(b) motion.

 

All claims by the defendants adverse to the ASG title to the land are precluded and the judgment is AFFIRMED.

 

**********

 



* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals, for the Ninth Circuit, serving by desig­nation of the Secretary of the Interior.

** Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeals, for the Ninth Circuit, serving by desig­nation of the Secretary of the Interior.

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

 

Eseroma v. Feresa


 

LEASAU K. ESEROMA, Plaintiff,

 

v.

 

PAOPAO F. FERESA (County Chief of Fitiuta County), LUTU FUIMAONO

(President of the Senate), and LEFITI FAAFETAI, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 05-97

 

June 20, 1997

 

 [1] The requirement of Article II, § 4 of the Revised Constitution of American Samoa that senate elections must be “in accordance with Samoan custom” does not mean the counties must follow a particular Samoan custom of the county but, rather, indicates the Revised Constitution permits variation among the counties in the manner in which they conduct their Senate election meetings. 

 

[2] The constitutional command that elections be “in accordance with Samoan custom” merely requires extensive sharing of ideas among county council members with regards to potential candidates, and a forging of a collective will as to who shall serve in the Senate.

 

[3] Just as an election is not tainted by consideration of extra nominees, the participation of non-council members is not a fatal flaw under Article II, § 4 of the Revised Constitution.

 

Before RICHMOND, Associate Justice, 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.

 

ORDER DENYING MOTION FOR RECONSIDERATION

 

On January 9, 1997, plaintiff Leasau L.K. Eseroma (“Leasau”) brought an 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.  [1ASR3d79]

 

On February 27, 1997, this court issued an opinion and order denying Leasau’s requests for declaratory and injunctive relief.  We held that an election in accordance with Article II, § 4 of the Revised Constitution of American Samoa (“Revised Constitution”), which requires Senators to “be elected in accordance with Samoan custom by the county councils of the counties they are to represent,” is (a) an election involving the participation of all, and not some, of the county councils who are constitutionally granted the responsibility for electing a Senator to represent their counties; (b) an election at which there is an extensive sharing of ideas on potential candidates, and a forging of a collective will as to who shall serve in the Senate.  Further, we found as a matter of fact that on December 14, 1996, Lefiti, and not Leasau, had been elected to represent Ta`u County, Fitiuta County, and Faleasao County in the Senate in accordance with the requirements of Article II, § 4 of the Revised Constitution.

 

Leasau now moves for reconsideration of this court’s February 27 decision, claiming that the December 14 election was not conducted “in accordance with Samoan custom” as required under Article II, § 4.  Leasau alleges that the December 14 meeting was fatally flawed in three respects: (1) because Ta`u County submitted two nominees to the Senate, rather than one; (2) because Lefiti was “ousted” by the Ta`u County Council, and yet participated in the December 14 meeting; (3) because To`oto`o La`apui disregarded the collective will of the assembly and impermissibly based his announcement on the relative rankings of Lefiti and Leasau.

 

Discussion

 

1.  The Nomination of Two Candidates.

 

Leasau argues that the evidence presented at trial indicated that on the island of Ta`u, the county councils of Ta`u County, Faleasao County, and Fitiuta County generally each nominate one candidate for the two Senate seats assigned to the island of Ta`u.  Leasau contends that the submission of two names from Ta`u County deviated from this local “tradition” and therefore rendered the election unconstitutional.

 

[1] Even assuming Leasau represents the facts correctly, we can not agree with his conclusion.  Leasau’s argument assumes that any local practice during an election meeting is a “Samoan custom,” but the term “Samoan custom” in Article II, § 4 can not be construed so broadly.   Meredith v. Mola, 4 A.S.R. 773, 781 (Trial Div. 1973).  In Meredith v. Mola, the Trial Division indicated in dicta that the manner of a Senate election “is determined by Samoan custom of the various counties.”  4 A.S.R. 773, 781 (Trial Div. 1973).  However, this statement cannot be construed as suggesting that a body of electors must follow a Samoan custom of the county in order to satisfy the constitutional mandate that elections be “in [1ASR3d80] accordance with Samoan custom.” (emphasis added).  On the contrary, this statement indicates that the Senate election provision of the Revised Constitution permits variation among the counties in the manner in which they conduct their Senate election meetings. 

 

This court has only constrained county council decision-making by demanding that all the relevant county council members, and not just some, have an opportunity to participate meaningfully in the election of the Senators who will represent their counties.  Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div. 1989); Meredith, 4 A.S.R. at 782.  Therefore, we cannot interpret “Samoan custom,” as it is used in Article II, § 4, to mean “Samoan custom of each county,” so as to force Senate elections to be conducted in precisely the same manner for all eternity.[1]

 

[2] Therefore, we affirm our initial opinion and order, which holds that the constitutional command that elections be “in accordance with Samoan custom” merely requires extensive sharing of ideas among county council members with regards to potential candidates, and a forging of a collective will as to who shall serve in the Senate.

 

2.  The Participation of an “Ousted” County Council Member

 

In our February 27 decision, we held that it was not necessary to determine the exact composition of the Ta`u County Council because both of the factions claiming to be the “true” Ta`u County Council had an opportunity to participate in the election.  Leasau now argues that the mere participation of “ousted” members tainted the election and rendered the election unconstitutional. 

 

[3] The reasoning we have just applied above is the appropriate response to Leasau’s contention.  Just as an election is not tainted by consideration of extra nominees, the participation of non-council members is not a fatal flaw [1ASR3d81] under Article II, § 4 of the Revised Constitution.  As long as all the county council members are offered the opportunity to engage in the extensive sharing of ideas, and the decision reported to the Senate President reflects the collective will of the electoral body, the constitutional requirements are satisfied.  We see no harm in permitting “ostracized” members of a county council to share their thoughts on an election.  If these individuals have been truly ousted for illegal or immoral conduct, the rest of the electoral body will surely devalue their contributions to the discussion.  Otherwise, the individuals’ speeches can only sharpen the debate on the candidates, and enhance the quality of the final collective decision.

 

3.  To`oto`o La`apui’s “Announcement” of the Decision           

 

Leasau argues that when to`oto`o La`apui of Fitiuta County announced the decision of the assembly on December 14, he considered only the fact that Lefiti was a fa`atui, a matai with higher rank than Leasau.  Leasau thus contends that the election of Lefiti did not represent the collective will of the county councils of Ta`u County, Faleasao County, and Fitiuta County, as is required under Article II, § 4 of the Revised Constitution.  Meredith, 4 A.S.R. at 782.

 

Leasau misstates the record.  High Talking Chief Fofo Sunia (“Fofo”) testified at trial that the duties of the to`oto`o at county council meetings include the responsibility to “delineate the wish of the assembly.”  Reporter’s Partial Transcript, at 18 (Chief Fofo’s Testimony).  Fofo emphasized repeatedly that the to`oto`o do not issue “dictatorial demands,” Id., “like the decisions made by Hitler,” Id. at 50.  Rather, the to`oto`o “listen very carefully to the speeches being made,” Id., “tak[e] into account the wishes and the feelings of the general assembly,” Id. at 18, and bring closure to the assembly by presenting their impression of the collective will.  Fofo indicated that one of the ideas shared at the meeting was that Lefiti should go to the Senate because he was a fa`atui.  Fofo acknowledged and that Lefiti’s status “weighed heavily on [the to`oto`o], and it became of top priority in their minds.”  Id. at 55.  However, the fact that Fofo and the other to`oto`o were particularly impressed with one argument is in no way inconsistent with Fofo’s insistence that “[t]he decision was based upon the thoughts, the wishes expressed by the participants.”  Id. at 59. 

 

Therefore, we find no clear error in our previous conclusion that the election of Lefiti expressed the collective will of the county councils of Ta`u County, Faleasao County, and Fitiuta County.

 

Conclusion and Order

           

We find no clear error in our February 27 opinion and order finding the election of Lefiti as a Senator from the island of Ta`u to be consistent with [1ASR3d82] the commands of Article II, § 4 of the Revised Constitution.  Accordingly, Leasau ’s motion for reconsideration is denied.

 

It is so Ordered.

 

**********

 



[1]  A disturbing aspect of Leasau’s argument is that it has no apparent limitations.  Under Leasau’s theory, it would seem that an election would be unconstitutional if the county councils usually served pork and taro at the election meeting feast, but instead served chicken and bananas.  Even though the county council members would still extensively share ideas and shape the collective will, the mere presence of such foreign elements as chicken and bananas would render the election null and void.  Thus, if we adopt Leasau’s interpretation of “Samoan custom,” the number of constitutional challenges to Senate elections would increase dramatically, and the court would be forced into lengthy fact-specific trials regarding the “Samoan custom” of each county and the degree to which the electoral body respected those county traditions.

 

G.H.C. Reid & Co., Inc. v. K.M.S.T.


 

G.H.C. REID & CO., INC., Plaintiff,

 

v.

 

K.M.S.T., K.M.S.T. WHOLESALE, and J.J. YONG, Defendants.

_________________________________

 

G.H.C. REID & CO., INC., Plaintiff,

 

v.

 

PETELO UTI and SO EUN JOO, individually and

dba MALAEIMI VALLEY MARKET, Defendant-Garnishees.

 

High Court of American Samoa

Trial Division

 

CA No. 78-89

 

August 19, 1997

 

[1] Although a judgment debtor's spouse has a right to work, he or she may not create a business in his or her name only, where the business is not actually that of the debtor’s spouse, but instead only a device to keep the debtor's income from the judgment creditors.

 

[2] A "transferor" in a fraudulent transaction need not actually possess the asset prior to a conveyance or hold legal title to the asset prior to the transfer. 

 

[3] Where one person has equitable or legal possession of an asset, and is able vest the asset in the legal possession of another so as to avoid judgment creditors, a fraudulent conveyance has occurred.

 

[4] Equitable principles mandate that the law of “fraudulent conveyance” be extended to the sham business ownership situation.

 

[5] Where a court finds (1) that a lender and borrower conspired to place loan proceeds in the name of a family member, (2) that the loan proceeds were actually used by the borrower to generate income, and (3) that the scheme was marked by "badges of fraud" indicating intent to place the borrower's assets and income beyond the reach of other judgment creditors, the court may properly conclude that the loan and its fruits are the property of the borrower and subject to satisfaction of judgments against the borrower. [1ASR3d107]

 

[6] Where action involves fraud, direct proof of the parties’ fraudulent intent is impossible. 

 

[7] In fraudulent transfer cases, proof indicative of fraud must come by inference from the circumstances surrounding the transaction, including the relationship and interests of the parties.

 

[8] Adequate circumstantial evidence existed to prove fraud where judgment debtor’s spouse could not speak English or Samoan and did not possess sufficient business experience to run a store, where judgment debtor conceived of the business plan, ran the business, and received considerable non-cash compensation, and where other aspects of the business’ operation were tainted with fraud.

 

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

 

Counsel: For Plaintiff, Jennifer L. Joneson

  For Defendants/Garnishees, Marshall Ashley

  For Defendant, J.J. Yong, Cherie S. Norman

 

ORDER ON MOTION FOR RECONSIDERATION

 

Introduction

 

On January 16, 1990, this court entered judgment against defendants K.M.S.T., K.M.S.T. Wholesale, and J.J. Yong ("Yong") (collectively, "Principal Defendants") in favor of Plaintiff G.H.C. Reid & Co., Inc., ("Reid") in the sum of $48,804.11 plus court costs of $50 and interest calculated at 6% per annum.

 

On December 3, 1996, Reid filed a complaint against Garnishee Defendants Petelo Uti, So Eun Joo (Yong's wife), and Malaeimi Valley Mart requesting a "determin[ation]" that the Garnishee-Defendants give to Reid "money or property" belonging to the Principal Defendants.[1]

 

On July 1, 1997, after a hearing on the matter, this court relied on equitable principles and the doctrine of fraudulent conveyance and [1ASR3d108] declared that Yong "constructively possesses a 100% interest in MVM, and that MVM's assets are therefore subject to Reid's judgment lien."  G.H.C. Reid & Co., Inc. v. K.M.S.T., 1 A.S.R.3d 83, 87 (Trial Div. 1997).

 

Defendants and Defendant-Garnishees now move for reconsideration of the court's July 1, 1997, decision.

 

Discussion

 

Defendants' and Defendant-Garnishees' arguments can be distilled into two basic propositions: (1) there was no legal basis for declaring that Yong was the true owner of MVM; (2) that Reid's circumstantial evidence was insufficient to satisfy Reid's burden of proof.

 

[1] Defendants and Defendant-Garnishees claim that our decision unlawfully and unfairly deprives Yong's wife of the right to work on her own behalf. See, e.g., Krebs v. Lay, 352 P.2d 577 (Or. 1960).  Nothing in our original opinion and order suggests that a judgment debtor's spouse may not create his or her own business, even with the judgment debtor's assistance, where there is no fraudulent intent.  However, a judgment debtor's spouse may not create his or her own business where the business is not actually that of the spouse and is instead only a device to keep from the judgment debtor's creditors the income of the business.  See Schriock v. Schriock, 128 N.W.2d 852, 865-66 (N.D. 1964). 

 

The instant case is quite different from Krebs, where the court found no evidence suggesting that the bank, which had foreclosed on the husband's mortgage and sold the property to the wife, had participated in a scheme to defraud creditors.  Id. at 582.  In the present case, we found circumstantial evidence indicating that Yong's brother knowingly arranged a loan with Yong's wife so that Yong could build a business without encumbrances from judgment creditors.[2]   In Krebs, no one inquired into the books of the company and "no one testified that income tax returns had been filed that did not reflect the income and expenditures."  Id.  In the present case, we have evidence that Yong has failed to keep accurate records of the company's operations, that he has failed to file tax returns, and that MVM has been secreting compensation to Yong, at least in the form of goods and services.  Finally, in Krebs, the court found no evidence that the wife was a mere figurehead for the husband.  In the case at hand, the evidence indicated that Yong has called all the shots from the beginning.  Id.  Thus, contrary to the [1ASR3d109] position of Defendants and Defendant-Garnishees, we affirm that this case is not about the spousal right to work, but is about the fusion of equity and the common law doctrine of fraudulent conveyance.

 

[2-3] Defendants and Defendant-Garnishees argue that "there is no conveyance" that would justify inferring fraudulent conveyance from the court's findings regarding "badges of fraud."  Te`o v. Manuma, 6 A.S.R.2d 135, 138-40 (Trial Div. 1987).  This argument relies on an excessively formalistic and technical approach to this case, an approach that we rejected when we employed the principles of equity.  Surely, if the law can invalidate the fraud inherent in transfers from judgment debtors to their spouses, the law should also disapprove fraud in the preceding transactions from conspirator lenders to the judgment debtors. We believe as a matter of equity that a "transferor" in a fraudulent transaction need not actually possess the asset prior to a conveyance or hold legal title to the asset prior to the transfer.  See Te`o, 6 A.S.R.2d at 138 (transferor merely had "equitable title" in the property before she placed the property in the legal name of her children).  Thus, as long as one person has equitable or legal possession of an asset, and somehow vests the asset in the legal possession of another so as to avoid judgment creditors, a fraudulent conveyance has, indeed, occurred.

 

[4] In the present case, the court concluded from the evidence that, regardless of whether Yong personally held in his brother's cash, the loan was made to Yong, not to his wife, and that Yong constructively possessed the money used to start MVM.  This startup financing, MVM, and all income from MVM's operations were fraudulently placed in the legal name of Yong's wife solely for the purpose of evading Yong's debts.  Equity must serve to extend the application of the doctrine of fraudulent conveyance to the case at hand, rather than to constrain the doctrine's application to technical "transfers" from the transferor's legal coffers.

 

[5] Therefore, we must affirm the legal reasoning in our original opinion and order and refuse to allow form to prevail over substance.  We confirm that where a court finds (1) that a lender and borrower conspired to place loan proceeds in the name of a family member, (2) that the loan proceeds were actually used by the borrower--not the family member--to generate income for the borrower, and (3) that the scheme was marked by "badges of fraud" indicating intent to place the borrower's assets and income beyond the reach of other judgment creditors, the court may properly conclude that the loan and its fruits are, as a matter of equity, the property of the borrower and subject to satisfaction of judgments against the borrower.

 

Defendants and Defendant-Garnishees also criticize the evidentiary foundation for the court's conclusions.  They claim that "there is no [1ASR3d110] direct evidence of fraud," as if circumstantial evidence can never justify a court judgment.

           

[6-7] From the very nature of the action, direct proof of the fraudulent intent of the parties is an impossibility.  For this reason and because the real intent of the parties and the facts of the transactions are peculiarly within the knowledge of those sought to be charged with the fraud, proof indicative of fraud must come by inference from the circumstances surrounding the transaction, the relationship and interests of the parties.

 

Maguire v. Corbett, 259 P.2d 507, 510 (Cal. Ct. App. 1953).   It appears that defendants and defendant-Garnishees fail to grasp the difference between "no direct evidence" and "no evidence."

           

[8] This court found the following relevant to the determination of the case at hand: (1) evidence that the wife could not speak English or Samoan, see Trial Transcript at 27 (Testimony of So Eun Joo, "No speak English. No understand. . . . No (understanding of Samoan), just little."), at 33 (Testimony of J.J. Yong, " . . . she cannot work.  The Samoan language or English and then don't know the things and then as much as I can do . . . cannot communicate with the people"), at 15 (Testimony of Petelo Uti, stating that she could not understand his inquiries regarding tax filings because of the language barrier); (2) evidence that Yong's wife did not have sufficient business experience to run a store, see Trial Transcript at 20 (Testimony of Petelo Uti, "the wife does not know that much about running the business and that is probably the reason for Yong's involvement"); (3) evidence that Yong devised the plan to start up MVM, see Trial Transcript at 10 (Testimony of Petelo Uti, averring that Yong, not Joo, approached Uti about forming and operating a retail business), and at 33 (Testimony of J.J. Yong, stating that he, not Joo, approached his brother regarding the capital for MVM); (4) Uti's testimony about his longstanding friendship with Yong, his nominal role in running the business, and his concession that he has received no money from the business during the life of MVM, see Trial Transcript at 14-20 (Testimony of Petelo Uti); (5) evidence that Yong ran the business, see Trial Transcript at 5 (Testimony of Litia Ioane, stating that Yong was the manager of MVM), at 20 (Testimony of Petelo Uti, "the wife does not know that much about running the business and that is probably the reason for Yong's involvement"), and at 15A (Testimony of Tavita Manu, submitting that Yong acted as the "boss" of MVM); (6) evidence that Yong receives considerable non-cash compensation, a fact that Yong admits in his motion for reconsideration as "true;" (7) evidence that other aspects of MVM's formation and operation were tainted with fraud, see Trial Transcript at 11-12, 17 (Testimony of Petelo Uti, admitting that he did not invest $12,000 as the MVM business license application stated, and that MVM did not pay taxes to the American Samoa Government during tax years 1994, 1995, and 1996). [1ASR3d111]

 

From the totality of these circumstances, this court then made a quite reasonable inference that J.J. Yong has attempted to deprive Reid of judgment satisfaction with a sham.  Reid satisfied its burden of producing enough evidence to raise a presumption of fraud, but Defendants and Defendant-Garnishees were content to rest on their characterization of issues and to offer only minimal effort at rebutting Reid's evidence.  Accordingly, we reject the suggestion from Defendants and Defendant-Garnishees that there is no evidentiary basis for our factual conclusions.

 

The Defendants'/Defendant-Garnishees' motion for reconsideration is DENIED.

 

It is so Ordered.

 

*********


 

 



[1] The Court, which has become unfortunately accustomed to shoddy legal work, considered this request as a poorly worded request for declaratory relief.  In this jurisdiction, the Trial Court Rules of Civil Procedure have done away with "technical forms of pleading," and pleadings are to be construed liberally so "as to do substantial justice,"  T.C.R.C.P. 8(e)(1), 8(f).  Morgan v. American Samoa Government, 24 A.S.R.2d 164, 165 (Trial Div. 1993).

[2] See G.H.C. Reid & Co., Inc. v. K.M.S.T., 1 A.S.R.3d 83, 86 (Trial Div.  1997) (Opinion and Order) (wife’s inability to speak English or Samoan and lack of business savvy, and fact that Yong, not wife, approached brother about loan suggests that the brother made loan to Yong, not wife).

 

Am. Samoa Gov’t


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

LAUENESE "TAULAGA" FA`APITO, Defendant.

 

High Court of American Samoa

Trial Division

 

DCCR No. 156-96

 

June 2, 1997

 

[1] The Juvenile Justice Act was designed to encompass any and all situations in which children break the law, and was not intended to permit certain juveniles to commit misdemeanor assaults without subjecting them to answer for their behavior through some form of adjudicatory proceeding.

 

[2] A.S.C.A. ' 45.0115(c)(2) does not prevent the Attorney General from charging certain children with misdemeanors as well as felonies, under certain circumstances, including when the child's conduct is a crime of violence.

 

[3]  While there are a number of other provisions in the Juvenile Justice Act that talk about dealing with children as adults only in the context of felony charges, the Act expressly contemplates prosecution of children for felonies and misdemeanors.

 

[4] Where the government prosecutes a child as an adult for a crime of violence the child is not a "juvenile" within the meaning of the Juvenile Justice Act and the High Court cannot assert jurisdiction over the matter under A.S.C.A. ' 3.0208(a)(4).  Furthermore, the High Court does not have jurisdiction over this case under A.S.C.A. ' 45.0115(a)(1), which grants the trial division of the High Court exclusive jurisdiction over cases concerning "any delinquent child, as defined in subsections (2) and (9) of 45.0103”, because a child charged with a crime of violence is excluded from the definition of "delinquent child" under A.S.C.A. ' 45.0103(9)(B)(I).

 

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

 

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

              For Defendant, David P. Vargas, Assistant Public Defender [1ASR3d200]

 

ORDER DENYING MOTION TO TRANSFER

MATTER TO HIGH COURT

 

Introduction

 

On December 11, 1996, the American Samoa Government ("ASG") filed in the District Court of American Samoa a complaint against Defendant Lauenese "Taulaga" Fa`apito ("Fa`apito"), a 16 year old juvenile, charging Fa`apito with two counts of Assault in the Third Degree, a class A misdemeanor.  On January 10, 1997, Fa`apito filed a motion to dismiss the complaint in the District Court, alleging that the District Court lacked jurisdiction over the matter.  The District Court heard and denied the motion on January 16, 1997.  After Fa`apito raised the issue of jurisdiction on two subsequent occasions, District Court Judge John L. Ward II encouraged Fa`apito to present a motion for transfer to the High Court.  On April 1, 1997, Fa`apito filed a motion in the High Court to transfer his criminal prosecution to the High Court.  On May 12, 1997, the Trial Division heard arguments on the issue of whether Fa`apito could be tried in the District Court, or whether the High Court had exclusive jurisdiction over the matter.

 

Discussion

 

Fa`apito is charged with two counts of Assault in the Third Degree, and therefore appears not to qualify for special proceedings as a "delinquent child" under the plain language of A.S.C.A. ' 45.0103(9)(B)(I)[1], a [1ASR3d201] portion of the Juvenile Justice Act of 1980, A.S.C.A. ' 45.0101, et. seq. ("JJA").  The ASG submits that a JJA petition for delinquency, with all its incidental procedural safeguards for minors, is not the appropriate way to deal with Fa`apito.  Rather, the ASG contends, the ASG should be able to exercise its prosecutorial discretion to prosecute Fa`apito as an adult for a misdemeanor charge.

 

[1] Apparently in contrast with the ASG's position, however, is A.S.C.A. ' 45.0115(c)(2), which permits the Attorney General to proceed against Fa`apito as an "adult" for felony offenses.  See American Samoa Government v. Julio, 9 A.S.R. 2d. 128 (Trial Div. 1988).  If A.S.C.A. ' 45.0115(c)(2) allows the Attorney General such prosecutorial discretion only in cases involving a felony charge, then the JJA, as written, would fail to explain how to proceed against juveniles who are at least 14, but not yet 18 years of age and who have allegedly committed non-felonious crimes of violence.  However, the JJA was designed to encompass any and all situations in which children break the law, and was not intended to permit certain juveniles to commit misdemeanor assaults without subjecting them to answer for their behavior through some form of adjudicatory proceeding; we must interpret certain JJA provisions in light of others to eliminate the apparent "gap" in coverage. 

 

[2] Thus, either (a) A.S.C.A. ' 45.0103(9)(B)(I) implicitly only excludes from the definition of "delinquent children" those children older than 14 years of age who commit felony crimes of violence, or (b) A.S.C.A. ' 45.0115(c)(2) does not prevent the Attorney General from charging certain children with misdemeanors as well as felonies, under certain circumstances, including when the child's conduct is a crime of violence.  We hold that the latter is true, for the following reason:

 

[3] While there are a number of other provisions in the JJA that talk about dealing with children as adults only in the context of felony charges,[2] the JJA expressly contemplates prosecution of children for felonies and misdemeanors.  A.S.C.A. ' 45.0142(c)(1) requires the court to seal records of a child's case if "the subject of the hearing has not been convicted of a felony or of a misdemeanor . . . ."[3]  Thus, if it is legal to [1ASR3d202] proceed against children for misdemeanor charges, then when A.S.C.A. ' 45.0115(c)(2) permits the Attorney General to charge certain children with felonies for, among other things, committing crimes of violence, the provision must not constrain the Attorney General from charging certain children with misdemeanors for committing crimes of violence.[4]

 

Since the Attorney General may try Fa`apito as an "adult," we hold that the High Court does not have jurisdiction over this criminal case.  A.S.C.A. ' 3.0208(a)(4) provides that the Trial Division of the High Court of American Samoa shall have original jurisdiction over all "juvenile cases."  Though A.S.C.A. ' 3.0208(a)(4) does not define the term "juvenile," we note that A.S.C.A. ' 45.0115(c)(1) shows that a "child," a person under the age of 18, can be either a "juvenile" or "adult."  That section states " . . . [when] the court finds it would be contrary to the best interests of the child or of the public to prosecute the child as a juvenile, it may enter an order certifying the child to be held for criminal proceedings as an adult."  (emphasis added).  Thus, whatever "juvenile" means in A.S.C.A. ' 3.0208(a)(4), it can not mean a child who is prosecuted as an "adult."

 

[4] In the instant case, Fa`apito is clearly a "child," but the Attorney General has decided to proceed against him as an "adult."  Therefore, Fa`apito is not a "juvenile" and the High Court cannot assert jurisdiction over the matter under A.S.C.A. ' 3.0208(a)(4).  Furthermore, the High Court does not have jurisdiction over this case under A.S.C.A. ' 45.0115(a)(1), which grants the trial division of the High Court exclusive jurisdiction over cases concerning "any delinquent child, as defined in subsections (2) and (9) of 45.0103," because, as we have stated earlier, Fa`apito is charged with a crime of violence and is excluded from the definition of "delinquent child" under A.S.C.A. ' 45.0103(9)(B)(I).[5]   [1ASR3d203]

 

Therefore, because the High Court does not have jurisdiction over this criminal case involving an "adult" and a misdemeanor crime of violence, we must deny Fa`apito's motion to transfer this matter to the High Court.

 

Conclusion and Order

 

Accordingly, the motion to transfer the above-titled criminal case to the High Court is denied.

 

It is so Ordered.

 

**********

 



[1] A.S.C.A. ' 45.0103(9) declares Adelinquent children@ to be children 10 years of age or older who has violated A(I) any federal, state or territorial law; (II) any ordinance, the penalty for which may be a jail sentence; or (III) any lawful order of the court made under this title.@  From this broad category, the statute excludes juvenile traffic offenders, A.S.C.A. ' 45.0103(9)(C), and a narrow band of cases.

   (B) This definition does not apply to:

(I) children 14 years of age or older who allegedly commit crimes of violence; or

(II) children who within the previous 2 years have been adjudicated a delinquent child, and the act for which the child was adjudicated a delinquent would have [been] a felony if committed by an adult or punishable by a maximum punishment of life imprisonment or death;

(III) children 14 years of age or older who allegedly commit any felony subsequent to any other felony which was the subject of a hearing in which the child was certified for criminal proceedings as an adult.

(emphasis added).  Assault in the Third Degree is a crime of violence.

[2] See A.S.C.A. ' 45.0115(c)(1) (permitting the court to certify certain children to stand trial as adults for felony charges); A.S.C.A. ' 45.0123 (granting the child, his parent, or his guardian the right to demand a trial by jury when the child is charged with a felony);

[3] It appears that the plain language definition of Ajuvenile delinquent@ in A.S.C.A. ' 45.0103(9) tracks the protections afforded children under the provision for sealing court records in A.S.C.A. ' 45.0142(c)(1).  Any child who commits a misdemeanor or felony act of violence is not a juvenile delinquent, and any child who commits a misdemeanor or felony is not entitled to have the records of the court proceedings sealed. 

    At the same time, we must acknowledge and can not resolve the apparent conflict with language in A.S.C.A. ' 45.0115(c)(1) that suggests that a child may be Aa delinquent child . . . by virtue of having committed an act which would constitute a felony if committed by an adult.@  The JJA is a nightmare of draftsmanship, and it is incumbent on the Fono to clarify those circumstances under which children should face the adult criminal process, as well as those circumstances under which a child should face a petition for delinquency.

[4] The JJA is a terribly drafted article, and it is incumbent on the Fono to clarify the circumstances under which children should face the adult criminal process.

     [5] We note that if Fa=apito had been charged with a felony, the High Court would have jurisdiction under A.S.C.A. ' 3.0208(a)(2).

 

Am. Samoa Gov’t


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

PENIAMINA KOLOSE PINO, Defendant.

 

High Court of American Samoa

Trial Division

 

CR No. 43-97

 

October 3, 1997

 

[1] Article I, § 5 of the Revised Constitution of American Samoa parallels the Fourth Amendment to the United States Constitution and provides a safeguard against "unreasonable searches and seizures." 

 

[2] A warrantless arrest of a suspect is reasonable where the suspect is found near the scene of a felonious crime, where there are reasonable grounds to believe that the suspect committed the crime, and where the arrest occurs within a short period of time after the crime has occurred. 

 

[3] A child may be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe that he or she has committed an act which would be a felony or misdemeanor if committed by an adult.

 

[4] The term "reasonable grounds," in the context of an arrest, is substantially the same as "probable cause."

 

[5] Probable cause for a warrantless arrest must exist at the time the arrest is made, and the government has the burden of showing that such probable cause existed.

 

[6] “Reasonable grounds” existed to detain juvenile suspect where officers knew that the victim’s body had been found that afternoon on beach, where they also knew that bruising on the victim's neck indicated possible strangling in ocean, where suspect had been seen in area and at time that victim last seen alive, where suspect was reported to be acting nervously, and where suspect fled in response to request for information.

 

[7] The Miranda rule applies in American Samoa.

 

[8] In order for a statement, made by a suspect in custody, to be admissible, the suspect must have voluntarily, knowingly, and intelligently waived his rights to remain silent and to an attorney. [1ASR3d187]

 

[9] The totality of the circumstances surrounding an interrogation must reveal both an uncoerced choice and the requisite level of comprehension in order to conclude that a suspect waived his Miranda rights.

 

[10] Territorial law prohibits introduction into evidence of statements by child in response to interrogation by police unless a parent, guardian or legal custodian were advised, at the time of  interrogation, of the child's right to remain silent, that any statements made may be used against him in a court of law, of the right to the presence of an attorney during the interrogation, and of the right to have counsel appointed. 

 

[11] Where evidence presented established that there was no police intimidation, coercion, or deception, when taking into account minor defendant’s age and level of intelligence, waiver of his Miranda rights was voluntarily, knowingly and intelligently given.

 

[12] Fact that defendant’s testable intelligence quotient was equal to a second grader did not establish that he was unable to understand his actions in waiving his Miranda rights.

 

[13] Low mental ability in and of itself is insufficient to establish that a defendant did not understand his rights.

 

[14] A suspect’s inability to read the Miranda form does not necessarily mean that he was unable to understand his rights as they were being read to him. 

 

[15] Territorial law respecting the Miranda rule is complied with if either the parent or counsel present when Miranda warning read.

 

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

 

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

  For Defendant, David P. Vargas, Public Defender

 

ORDER DENYING MOTION TO SUPPRESS

 

Introduction

On May 10, 1997, defendant, Peniamina Kolose Pino ("Pino"), a juvenile, was arrested and taken into custody accused of the crimes of Murder in the First Degree (A.S.C.A. § 46.3502) and Rape (A.S.C.A. § 46.3604).  This court held a hearing regarding Pino's mental condition, and on July 2, 1997, issued an order denying the motion to prosecute Pino as a child. 

 

On August 22, 1997, Pino moved to suppress any and all statements made by him to employees of the Department of Public Safety, claiming that he was seized illegally and that any such statements were neither voluntarily nor knowingly and intelligently made as required by Miranda v. Arizona, 384 U.S. 436 (1966).  This motion came for hearing on September 15, 1997.

[1ASR3d188]

 

Discussion

The court finds that the statements Pino made to employees of the Department of Public Safety were not made as a result of an illegal arrest and were made only after he validly waived his Miranda rights.

 

A.  Valid "Arrest"

 

[1-2] Detective Sagapolutele's detention of Pino was not an illegal arrest in violation of his constitutional rights.  Article I, § 5 of the Revised Constitution of American Samoa parallels the Fourth Amendment to the United States Constitution and provides a safeguard against "unreasonable searches and seizures."  This provision of the Revised Constitution of American Samoa is implemented by A.S.C.A. §§ 46.0801-.0807.  The statute provides a number of exceptions to the general requirement that a duly issued warrant is necessary for an arrest.  Relevant to this case is the provision that:

           

A police officer is authorized, and it is his duty, to make an arrest without a warrant, in the following cases: ... (3) of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time.

 

A.S.C.A. § 46.0805. 

 

[3] In addition, as the government notes, in its Opposition to Motion to Suppress Statements, the standard for detaining a child[1] or taking a child into custody is found in the Juvenile Justice Act of 1980, A.S.C.A. §§ 45.0201-.0215.  Section 45.0201 provides that:

           

(a) a child may be taken into temporary custody by a law enforcement officer without order of the court: [1ASR3d189]

 

(1) When there are reasonable grounds to believe that he has committed an act which would be a felony or misdemeanor if committed by an adult

            ...

(c)  The taking of a child into temporary custody under this section is not an arrest nor does it constitute a police record.

 

[4-5] Although the taking of Pino into custody, under the language of the statute concerning children, would not be an arrest, the two statutes do have the common element of "reasonable grounds."  "Reasonable grounds," in the context of arrest, is substantially equivalent to "probable cause."  American Samoa Gov't v. Luki, 21 A.S.R.2d 82, 83 (Trial Div. 1992).  Probable cause for a warrantless arrest must exist when the arrest is made, and the government has the burden of showing probable cause. Id., citations omitted.  Whether we apply the statutory provision concerning warrantless arrests in general, or the more specific provisions pertaining to detention of children, the requisite reasonable grounds were met in this case.

 

[6] When Captain Leuta and Detective Sagapolutele detained Pino, they knew that a woman's body had been found that afternoon on the beach at Aua.  They also knew that the woman had drowned, and that doctors had discovered bruising on the woman's neck indicating that she could have been strangled.  They knew that the woman had been last seen the previous evening in the aumaga shack on the beach and that Pino had been seen in the same area at the same time.  One witness had reported seeing Pino swimming in the ocean at the time the woman was last seen.  Three of Pino's friends had reported seeing him coming from the ocean, wet and wearing shorts.  They reported to the officers that Pino seemed nervous and ignored their invitation to join them.  The officers also had spoken with Pino's father, who agreed to find Pino and bring him to the police station so he could be questioned.  Prior to meeting the father at the police station the officers encountered Pino.  When they mentioned that they wanted to ask him some questions, Pino fled. [1ASR3d190]

 

This knowledge of the officers, combined with Pino's flight,[2] provided sufficient probable cause for a warrantless arrest under A.S.C.A. § 46.0805 or for the taking of a child into custody under A.S.C.A. § 45.0201.  Therefore, Pino's rights against "unreasonable seizure" under the Revised Constitution of American Samoa and the United States Constitution and his rights as enumerated in the warrantless arrest provisions of the American Samoan Code were not violated.  The circumstances of his arrest or detention, then, will not serve as a basis to suppress any statements Pino made to employees of the Department of Public Safety.

 

B.  Waiver of Miranda Rights

 

[7-9] Any confession or statements given to the police must comply with the standard as established in Miranda v. Arizona, 384 U.S. 436, 444 (1966), with certain elements that have been modified or clarified over the years. "In essence, if a suspect 'voluntarily, knowingly, and intelligently' waives his right to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible.  American Samoa Gov't v. Gatoloai, 23 A.S.R.2d 65 (Trial Div. 1992), citing Miranda, 384 U.S. at 444.  The relinquishment of rights must be voluntary in the sense of being a free and deliberate choice, and knowing and intelligent in the sense of having an awareness of the nature of the right and the consequences of waiving it.  Moran v. Burbine, 475 U.S. 412, 421, 89 L.Ed.2d 410, 421 (1986).  "Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id., citing Fare v. Michael C. 442 U.S. 707, 725 (1979). See also, Colorado v. Spring, 479 U.S. 564, 573 (1987). [1ASR3d191]

 

[10] The Juvenile Justice Act of 1980 provides a statutory implementation of the Miranda principle.  Section 45.0204 provides that:

           

No statements or admissions of a child made as a result of interrogation of the child by a law enforcement official concerning acts alleged to have been committed by the child which would constitute a crime if committed by an adult are admissible in evidence against that child unless a parent, guardian or legal custodian were advised of the child's right to remain silent, tha[t] any statements made may be used against him in a court of law, of the right to the presence of an attorney during the interrogation, and of the right to have counsel appointed if so requested at the time of the interrogation.  ...

 

[11-14] Based on evidence presented before us at the hearing, we find that Pino's waiver of his Miranda rights was voluntary, knowing and intelligent.  The evidence presented to us showed that there was no police intimidation, coercion, or deception, even when taking into account Pino's age and level of intelligence.  See, Moran, 475 U.S. at 421. The testimony that Pino has a testable intelligence quotient equal to a second grader does not establish that Pino could not understand his actions in waiving his Miranda rights.  See, e.g., People v. Cheatham, 453 Mich. 1, 36, 551 N.W.2d 355, 370 (1996)("Low mental ability in and of itself is insufficient to establish that a defendant did not understand his rights.").[3] Also, his inability to read the Miranda form does not mean he was unable to understand his rights as they were being read to him.  The level of understanding and comprehension with which Pino has interacted with the Department of Public Safety personnel involved in this case and the capabilities he has demonstrated to this court in previous hearings is evidence that Pino had the capability of understanding what he was doing when he waived his Miranda rights.

 

[15] Pino claims that there is special scrutiny for the interrogation of a child.  The protections afforded children in this jurisdiction are enumerated in the statute quoted above, A.S.C.A. § 45.0204.  The statute requires the presence of a parent, guardian, or legal custodian when Miranda rights are explained and waived.  The presence of a public defender or counsel will also fulfill the requirements of the statute.  At the time Pino waived his rights, Pino's father was present, heard the officer recite each section of the Miranda form, and signed his name on [1ASR3d192] the form, next to Pino's signature.  The presence of Pino's father and his actions in regard to the Miranda waiver form show us that the requirements of A.S.C.A. § 45.0204 have been met.

 

The statement Pino made before being advised of his Miranda rights is not of consequence.[4]  It has no bearing on the validity of Pino's verbal statements and written confession made after administration of the Miranda warning.   

 

Pino voluntarily, knowingly and intelligently waived his constitutional rights.  In addition, the requirements of A.S.C.A. § 45.0204, which provide Miranda type protection for children, have been fulfilled.  Therefore, the motion to suppress any and all statements made by Pino to employees of the Department of Public Services, is denied.

 

It is so Ordered.

 

**********

 



[1] A "child" is defined as "a person under 18 years of age or a mentally retarded or developmentally disabled person regardless of age."  A.S.C.A. § 45.0103(3).

[2] United States v. Holloway, 962 F.2d 451, 461 (5th Cir. 1992)(holding that defendant's attempt to escape from officers was a sufficient additional factor to push the officers' reasonable suspicion over the threshold of probable cause); United States v. Silva, 957 F.2d 157, 160 (5th Cir. 1992)("Although defendant's flight from the officer is insufficient by itself to show probable cause, flight supplies another element to the reasonable suspicion calculus.").  But see, United States v. Duffy, 796 F. Supp. 1252 (D.Minn. 1992)(holding that when defendant chose to ignore officer's request to engage in conversation by running away, officers escalated a lawful attempt to conduct an interview into an unlawful arrest, and therefore evidence obtained in a search incident to the arrest must be suppressed).  Although in the present case the officers also approached Pino with the intent to ask him questions, they, unlike the officer in Duffy, had additional information which supplied reasonable grounds for arrest or detention.

[3] Cited in Defendant's Memorandum of Point and Authorities in Support of Motion to Suppress Statements.  The full text of the case was submitted to the court on August 8, 1997 and is contained in the case file.

[4] Pino was asked, "Do you know anything about the death of a Chinese woman from Aua?"  He replied, "Yes."

 

Am. Samoa Gov't. v. Fa’atulu


[1] Under Article 1, Sec. 5 of the Revised Constitution of American Samoa, a judge is not required to learn the identity of a confidential informant upon whose information a warrant is issued.

 

[2] The Government is privileged to conceal the identity of an informant and the trial court is not required to conduct an in camera examination of the informant where the defendant makes no showing that an in camera examination of the informant by the court would develop information “relevant and helpful” to a particular legal theory advanced by the defendant.

 

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

 

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

  For Defendant, David P. Vargas, Assistant Public Defender

 

ORDER DENYING MOTION FOR AN IN CAMERA HEARING

 

On April 16, 1997, the plaintiff American Samoa Government ("ASG") filed an information against Defendant Alapati Fa`atulu ("Fa`atulu"), alleging unlawful production of a controlled substance, in violation of A.S.C.A. §§ 3.1020, 13.1001(h) and (m), 13.1006, and 46.3207(a)(2), and unlawful possession of a controlled substance, in violation of A.S.C.A. §§ 3.1022 and 13.1006.

 

The information was filed after DPS Special Agent Va`aomala Sunia ("Sunia") executed a search warrant on the residence of Fa`atulu, the "curtilage thereof," and a Samoan fale near the main house.  Fa`atulu now moves for an in camera hearing to examine the confidential informant who had allegedly supplied the police, and eventually the District Court, with the information leading to the search. [1ASR3d185]

 

This motion for an in camera hearing is identical in virtually all relevant respects to the motion for an in camera hearing in American Samoa Government v. Samana, 1 A.S.R.3d 178 (Trial Div. 1997) (Order Denying Motion for In Camera Hearing).  We agree with and adopt the Trial Division's reasoning in that case.

 

[1] Thus, we conclude that in the instant case, the warrant clause of Article I, § 5 of the Revised Constitution of American Samoa was not violated when the judge issued a search warrant for the residence of Alapati Fa`atulu without learning the identity of the confidential informant.

 

In the affidavit in support of the search warrant, Agent Sunia stated that he had investigated the informant's criminal history (and found no record of a conviction); that he verified the informant's credibility with a fellow officer who had used the informant on previous occasions to uncover illegal marijuana possession; and that informant's statements were consistent with his own personal experiences with Fa`atulu and Fa`atulu's residence.  Thus, the issuing judge had a “substantial basis” for crediting the confidential informant's statements, and there is no reason to conduct an evidentiary hearing to reveal the identity of the informant.  Samana, 1 A.S.R.3d at 180-81 (Order Denying Motion for In Camera Hearing).

 

 

[2] Furthermore, we affirm the Government's privilege to conceal the identity of confidential informants where, as here, there has been no showing that an in camera hearing involving the confidential informant is in any way “relevant and helpful” to a particular legal theory advanced by Fa`atulu.  Samana at 183.

 

Accordingly, the motion for an in camera hearing is DENIED.

 

It is so Ordered.

 

**********

 

Am. Samoa Gov’t


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

JOE IOSEFO FELISE, Defendant.

 

High Court of American Samoa

Trial Division

 

CR No. 52-95

 

July 14, 1997

 

[1] Where prosecutor and defendant differed over whether waiver of preliminary hearing alone or whether waiver and plea to third case were consideration for dismissal of first two cases, dismissal of two cases in exchange for the waiver was unlikely and therefore agreement properly construed in government’s favor. 

 

[2] Despite differing interpretations of agreement, neither interpretation specifically prohibited prosecutor from presenting facts of two alleged escapes as basis for probation revocation in other, unrelated case.  Therefore, prosecutor did not breach agreement with defendant. [1ASR3d172]

                                                                                               

ORDER DENYING MOTION TO DISMISS

PROBATION REVOCATION PROCEEDINGS

                                   

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

 

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

  For Defendant, David P. Vargas, Assistant Public Defender

           

Defendant Joe Iosefo Felise ("Felise") moves this court to dismiss the proceedings initiated by the American Samoa Government ("ASG") to revoke Felise's probation.  The court heard the motion on March 27, 1997.  Both counsel and Felise were present.

 

Discussion

 

ASG's motion to revoke probation is premised upon two alleged escapes from confinement during the probation term.  Felise's motion is based upon a purported plea agreement which, Felise argues, resulted in prejudicial dismissals in the District Court of ASG's prosecutions of the two alleged escapes.  Felise further argues that the plea agreement and prejudicial dismissal prohibits ASG from using the two alleged escapes as grounds for revocation of probation.

 

On October 8, 1996, ASG initiated Felise's prosecution in the District Court, DCCR No. 127-96, for a third alleged escape.  On October 18, 1996, Felise waived the preliminary examination.  His counsel stated, and ASG's counsel did not state otherwise, that Felise agreed to the waiver and ASG agreed not to prosecute Felise for the two alleged escapes.  This prosecution then proceeded in this court as CR No. 74-96, and on October 22, 1996, a jury trial was scheduled on Felise's not guilty plea. 

 

On November 22, 1996, ASG commenced Felise's prosecution in the District Court, DCCR No. 147-96, for the two alleged escapes.  However, on December 2, 1996, the District Court dismissed this complaint on ASG's motion.  ASG's counsel prepared a plea agreement for filing in CR No. 74-96, but Felise and his counsel did not sign it.  Then, on January 23, 1997, after Felise reiterated his jury trial right, ASG refiled the charges against Felise for the two alleged escapes, DCCR No. 8-97.  However, the District Court dismissed this complaint on January 24, 1997, stating that the initial dismissal of the charges in DCCR No. 147-96, on ASG's motion, was with prejudice.  

 

ASG first argues that the proposed plea agreement in CR No. 74-96 was never accepted by the Felise because both Felise and his counsel did not sign the written agreement, and hence, ASG cannot be precluded from [1ASR3d173] using the two alleged escapes as the basis of any prosecutorial purposes.  We believe, however, that Felise's waiver of a preliminary examination in the related District Court case, DCCR No. 127-96, is substantial evidence that the plea agreement did indeed exist.

 

In the alternative, ASG argues that, as set forth in the proposed plea agreement, ASG agreed not to prosecute Felise for the two alleged escapes in return for Felise's waiver of his right to a preliminary examination in DCCR No. 127-96 and Felise's plea of guilty to the third alleged escape charged in that case and in CR No. 74-96.  ASG's counsel declares that this was his understanding of the agreement at the time of Felise's waiver of the preliminary examination.  ASG asserts that Felise breached that agreement by failing to plead guilty to the third alleged escape charge.

 

Felise argues that in the plea agreement, he only agreed to waive his right to preliminary examination and ASG agreed not to prosecute the two alleged escapes.  Felise states that the plea agreement never contemplated a guilty plea on the third alleged escape charge.

 

[1-2] We find that ASG's interpretation accurately represents the agreement between ASG and Felise.[1]  Moreover, ASG specifically reserved the right to present the facts of the two alleged escapes when recommending a sentence for the third alleged escape.  Though the plea agreement related to an entirely separate case, nothing in the agreement prevents the ASG from using the facts of the two alleged escapes as the basis to revoke probation in this case.  See U.S. v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990).    

 

Conclusion

ASG has not breached the plea agreement by relying upon the facts of the two alleged escapes in the current motion to revoke Felise's probation.  The District Court's dismissals of the prosecutions of the two alleged escapes does not preclude ASG from using those incidents as grounds for probation revocation.  Thus, Felise's motion to dismiss is denied. [1ASR3d174]

 

The probable cause hearing in the probation revocation proceedings in this action is scheduled before this court on May 30, 1997, at 9:00 a.m.

 

It is so Ordered.

 

**********

 



[1]  We find Felise's arguments to the contrary unpersuasive.  The District Court apparently believed Felise's version of the agreement in dismissing ASG's prosecutions of the two alleged escapes in DCCR Nos. 127-96 and 8-97.  This court, however, is not bound by the District Court's determination of this issue, and we disagree with the District Court's analysis.  We do not believe that ASG would agree to dismiss two Class D felonies for a waiver of a preliminary examination.

 

Am. Samoa Gov’t


AMERICAN SAMOA GOVERNMENT,

 

v.

 

RICKY ANTHONY PU`AA.

 

High Court of American Samoa

Trial Division

 

CR No. 29-96

 

June 17, 1997

 

[1] The intended deterrent effect of the sentence in a criminal case is of paramount importance.             

 

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

 

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

  For Defendant, Brian Thompson

Defendant Ricky Anthony Pu`aa ("Pu`aa") moves for reduction or modification of his sentence.  The court heard the motion on June 9, 1997.  Pu`aa and both counsel were present.

 

On February 25, 1997, Pu`aa was sentenced on his conviction by jury of the offense of possession of the controlled substance of methamphetamine.  The court sentenced Pu`aa to five years' imprisonment, execution suspended.  He was then placed on probation for five years, on several conditions, including that he serve a period of 20 months' detention, without release except for a genuine medical emergency or by prior court order. 

 

Five years is the maximum term of imprisonment for possession of a controlled substance under current American Samoa law.  Pu`aa would be eligible for parole in 20 months if we had imposed this maximum.  Instead, we chose a probated sentence with 20 months' detention.  We did so to retain direct control, for the longest permissible period, over Pu`aa's time in custody and to still hold in abeyance five years' imprisonment should he violate the conditions of his probation.           

 

Pu`aa is now requesting that the court reduce or modify his detention period to permit release for remunerative employment, home plantation work, or further education.  He justifies his request by alleging that he is remorseful, rehabilitated, has employment for his existing trade skills and professional architect ambitions, can be immediately useful to his family, has no prior [1ASR3d171] criminal record, and poses no danger to society.  In sum, he argues that the community would be better served if he was immediately engaged in more socially productive pursuits.

 

[1] Pu`aa, however, overlooks a principal factor in the court's sentence.  He stands convicted of possessing the illegal drug methamphetamine.  He brought to American Samoa a large quantity of this drug planned for distribution.  The immediate offense is very serious and clearly forebodes a present and future threat to this community.  We purposely selected the available maximum under the law for a probated sentence and would have done likewise if we chose to impose an outright prison sentence.  The intended deterrent effect of the sentence was and still is of paramount importance.            

 

The motion to reduce or modify the sentence is denied. 

           

It is so Ordered.

 

**********

Adams v. Reavis


[1] Prisoners have a constitutional right of access to the courts and a right of access to a threshold level of legal information or aid.  Since the High Court maintains the only public law library in the Territory, where an incarcerated criminal defendant is proceeding pro se, the prisoner’s demand for access to the High Court library is legitimate.  However, the prisoner is not constitutionally guaranteed unlimited access to the law library.  Security considerations and avoidance of abuse may require the prisoner to accept occasional, but regular access to the library rather than access according to his whim.  The prisoner is only entitled to a reasonable amount of time to use the library.

 

Before KRUSE, Chief Justice.

 

Counsel: For Plaintiff, Pro Se.

 

Introduction

 

On August 4, 1997, plaintiff Michael Felipe Adams ("Adams"), a prisoner at the Territorial Correctional Facility in Tafuna, American Samoa, filed motions for an order to show cause and for a preliminary injunction against Charles Reavis ("Reavis"), Special Assistant to the Warden of the Territorial Correctional Facility.  Adams complains that Reavis and other prison officials refused to allow him to "go to court, post office, shopping, banking, nor to renew [an] expiring [airplane] ticket." 

 

[1] While we find no support for Adams' contention that prisoners are somehow constitutionally entitled to leave the prison facilities to receive mail, shop, and conduct other personal business, we concur that prisoners have a constitutional right of access to the courts and a right of access to a threshold level of legal information or aid.  Lynott v. Henderson, 610 F.2d 340, 342 n.1 (5th Cir. 1980) (citing Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 71 (1977)).  Since the High Court [1ASR3d105] maintains the only public law library in the Territory, and because Adams is proceeding pro se, we conclude that Adams' demand for access to the High Court library is legitimate. However, Adams is not constitutionally guaranteed unlimited access to the law library.  Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 858 (9th Cir. 1985).  Security considerations and avoidance of abuse may require Adams to accept occasional, but regular access to the library rather than access according to his whim.  Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985).  Adams is only entitled to a "reasonable amount of time to use the library."  Lindquist, 776 F.2d at 858 (citations omitted); see also Milton, 767 F.2d at 1448.

 

Accordingly, we order Charles Reavis and the Warden of the Territorial Correctional Facility to show cause at the High Court of American Samoa, Pago Pago, on the 4th day of September, 1997, at 9:00 a.m., why Michael Adams should not be allowed reasonable access to the High Court law library.

 

It is so Ordered.

 

**********

 

Am. Samoa Gov’t


 

AMERICAN SAMOA GOVERNMENT,

 

v.

 

TAUMALATOU LAVATA’I aka MATA`UTIA.

 

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.

 

[2] 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 efficient operation.

 

[3]  Where the government seeks to resume a prosecution over five and one half years after it filed a criminal complaint and obtained a warrant for the defendant’s arrest, this constitutes an unreasonable failure, neglect, or refusal to prosecute which would authorize the court to dismiss the case.

 

Before RICHMOND, Associate Justice, FAISIOTA, Chief Associate Judge, and MALAEOLA A.A., Associate Judge

 

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 [1ASR3d165] Lavata`i’s arrest.[1]  On January 6, 1997, over five and one-half years after the arrest warrant was issued, DPS officers arrested Lavata`i when he came to court for another traffic violation. 

 

Lavata`i now moves pursuant to T.C.R.Cr.P. Rule 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

 

[1-2]  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 efficient 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.”). 

 

[3]  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. of Boston, 265 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. [1ASR3d166]

 

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.

 

G.H.C. Reid & Co. v. K.M.S.T.


 

G.H.C. REID & CO., INC., Plaintiff,

 

v.

 

K.M.S.T., K.M.S.T. WHOLESALE, and J.J. YONG, Defendants.

_________________________________

G.H.C. REID & CO., INC., Plaintiff,

 

v.

 

PETELO UTI and SO EUN JOO, Individually and

dba MALAEIMI VALLEY MARKET, Defendant-Garnishees.

 

High Court of American Samoa

Trial Division

 

CA No. 78-89

 

July 22, 1997

 

[1] In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial.

 

[2] The court will not grant a stay of judgment pending appeal automatically or casually.  Instead, because a stay of execution is essentially a form of injunctive relief, the court will balance the equities [1ASR3d101] and determine whether or not the motion for reconsideration is likely to be successful.

 

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

 

Counsel: For Plaintiff, Jennifer L. Joneson

              For Defendants/Garnishees, Marshall Ashley

              For Defendant, J.J. Yong, Malaetasi M. Togafau

 

ORDER GRANTING MOTION FOR A STAY OF EXECUTION

 

Introduction

 

On January 16, 1990, this court entered judgment against defendants K.M.S.T., K.M.S.T. Wholesale, and J.J. Yong ("Yong") in favor of Plaintiff G.H.C. Reid & Co., Inc., ("Reid") in the sum of $48,804.11 plus court costs of $50 and interest calculated at 6% per annum.

 

After years of trying to recover on the judgment, Reid joined Petelo Uti ("Uti") and So Eun Joo ("Joo"), individually and dba Malaeimi Valley Mart ("MVM") as Garnishee/Defendants.

 

On July 1, 1997, this court declared that as a matter of equity, Yong constructively possesses MVM's assets; the court held that MVM's assets could be used to satisfy Reid's January 16, 1990, judgment against Yong.

 

On July 4, 1997, MVM filed a motion for reconsideration or a new trial.  The Clerk set the hearing on the motion for August 4, 1997.

 

On July 15, 1997, MVM moved to stay execution of the judgment against MVM pursuant to T.C.R.C.P. 62(b).  On July 18, 1997, this court held a hearing on the motion.

 

Discussion

 

[1-2] T.C.R.C.P. 62(b) provides that "[i]n its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial."  This court will not grant a stay of judgment pending appeal "automatically or casually."  See Asifoa v. Lualemana, 17 A.S.R.2d 10, 12 (App. Div. 1990).  Instead, because a stay of execution is essentially a form of injunctive relief, the court will "balance the equities" and determine whether or not the motion for reconsideration is likely to be successful.  See Lutali v. Foster, 24 A.S.R.2d 81, 82 (Trial Div. 1993) (citing Asifoa, 17 A.S.R.2d at 13). [1ASR3d102]

 

At the hearing on the motion for a stay of execution, Yong's counsel failed to present any argument on the issue of the likelihood of success of the motion for reconsideration.  In the vast majority of cases, the absence of a showing that the movant is likely to prevail on the merits of the appeal is fatal to a motion to stay execution of judgment.  See, e.g., Lutali, 24 A.S.R.2d at 83.

 

However, we believe that the court's discretion under T.C.R.C.P. 62(b) is broad enough to permit us nevertheless to seek a just result.  See Carpenters Fiji v. Pen, 29 A.S.R.2d 58, 60 (Trial Div. 1995) (Order in Aid of Judgment) ("equitable principles and broad powers apply equally well to circumstances where a judgment debtor seeks a stay of execution").  To close down MVM and liquidate its assets is not in the best interest of either party. 

 

Yong would have us balance the equities in his favor by creating a monthly repayment schedule for satisfaction of the debt over the course of one year.  See Huff v. Huff, 15 A.S.R.2d 83, 86 (Trial Div. 1990).  However, Yong is in no position to claim that he is entitled to a year-long repayment schedule without posting some kind of security, as T.C.R.C.P. 62(b) expressly contemplates.  Yong has demonstrated to this court that he is capable of crafting schemes to deprive creditors of judgment satisfaction.

 

Therefore, we believe that the balance of equities favors granting a stay of execution only if Yong deposits with the court a cash bond or irrevocable letter of credit from a financial institution for the entire amount of the debt, including interest and costs accruing to date.  We have little doubt that a business with approximately three million dollars in annual sales and over $200,000 in annual profits (according to representations of MVM's counsel) will be able to post bond or convince a bank, insurance company, or other financial institution to provide an irrevocable letter of credit.[1]

 

Therefore, this court hereby stays execution of Reid's judgment against Yong and MVM until Friday, July 25, 1997, at 4:00 p.m.  If Yong fails to present a cash bond or irrevocable letter of credit to the High Court for the entire amount of the judgment before this juncture, then the stay hereby granted will cease and the Marshal shall execute the writ of execution heretofore entered against MVM for the entire amount of the [1ASR3d103] debt.  If Yong posts sufficient security, as T.C.R.C.P. 62(b) expressly contemplates, then the Court Marshall shall remove the locks on MVM and stay execution of judgment until an order is issued disposing of the motion for reconsideration.[2]

 

Conclusion and Order

 

Accordingly, the motion for a stay of execution is granted.

 

It is so Ordered.

 

**********

 



[1] At the hearing on the motion for a stay of execution, Yong’s counsel claimed that negotiations with financial institutions were unavailing.  We trust that this court’s order will lubricate the process of obtaining adequate security by assuring the financial institutions that MVM will be an active operation once the cash bond or irrevocable letter of credit is filed with the High Court.

 

[2] We note that because Yong has moved for a stay of execution pursuant only to T.C.R.C.P. 62(b), the stay of execution would not extend automatically to the date of issuance of an appellate opinion, if an appeal becomes necessary.

 

Bendall v. Samoa Aviation, Inc.


 

ROBERT G. BENDALL, et al, Appellants,

 

v.

 

SAMOA AVIATION, INC., d/b/a SAMOA AIR, et al, Appellee.

 

High Court of American Samoa

Appellate Division

 

AP No. 18-95

 

April 14, 1997

 

[1] A court, as a separate department of government, may create a trust, transfer property to the trust, and appoint a trustee to take care of trust property for the best interest of the beneficiaries under its inherent power to do what is reasonably necessary for the proper administration of justice and where the exercise of such power is absolutely essential for the performance of the court's constitutionally mandated mission.

 

[2] Where a court places property which is the subject of a dispute into the hands of a trustee prior to a final determination of the merits of the case this does not divest a party claiming ownership from asserting the party’s claim for legal and ownership title and rights to the property at the subsequent trial.

 

Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, SAGAPOLUTELE, Associate Judge, and MAILO, Associate Judge. [1ASR3d17]

 

Counsel:  For Appellants, Togiola T.A. Tulafono

               For Appellee, Marshall Ashley

OPINION AND ORDER

Introduction

In 1988, Samoa Aviation, Inc., ("Samoa Air") entered into certain lease purchase agreements with Robert G. Bendall and Pace Aviation, and PAL Air, Inc., (collectively, "Bendall") for certain airplanes, engines, equipment, and spare parts (collectively, "aircraft").  In 1995, a dispute arose over compliance with the agreements and the parties sued each other.  The trial court consolidated Civil Action Nos. 50-95 and 70-95 and issued a preliminary injunction enjoining Bendall from interfering with Samoa Air's possession, enjoyment and use of the aircraft.

 

While these matters were pending, the Federal Aviation Administration ("FAA") threatened to withdraw the aircraft's registration unless (a) the FAA received flight information necessary for renewing registration renewal under the name of a Canadian citizen (Robert G. Bendall), or (b) a United States citizen registered the aircraft.  Samoa Air filed a motion with the Trial Division to appoint a United States citizen as trustee for the aircraft, so that the aircraft could qualify for FAA registration without submitting the flight information.[1]

 

On September 7, 1995, the trial court judge granted Samoa Air’s motion and appointed Samoa Air's counsel, Marshall Ashley, a United States Citizen, as trustee for both parties "solely for the purposes of holding title to the aircraft."  The court further stated that "[t]itle to such aircraft is hereby transferred to the Trustee . . . . Possession and operation of the aircraft shall remain with [Samoa Air]."

 

Discussion

 

Bendall challenges the Trial Division's actions in three respects.  First, Bendall argues that the Trial Division of the High Court of American Samoa has no authority to appoint a trustee and to transfer title of the [1ASR3d18] aircraft to that trustee.  Second, Bendall claims that even if the Trial Division has such authority, the Trial Division committed reversible error in appointing Marshall Ashley, counsel for Samoa Air, as trustee to hold title to the aircraft and to register the aircraft with the FAA.  Finally, Bendall argues that permitting the trustee to register the plane in his own name violated federal laws and regulations.

 

Court's Inherent Powers

 

[1] Bendall argues that the court has no power to create a trust, to transfer property to the trust, and to appoint a trustee to take care of trust property for the best interest of the beneficiaries.  However, a court has the inherent power to do what is reasonably necessary for the proper administration of justice.  Matter of Alamance County Court Facilities, 405 S.E.2d 125, 129 (N.C. 1991).  This power is not expressly granted to, nor withheld from courts by the American Samoa Revised Constitution of 1967 or the Department of Interior, but "must nonetheless be conceded to the judiciary as a separate department of government because [its] exercise is deemed absolutely essential for the performance of the court's constitutionally mandated mission."  Winters v. City of Oklahoma City, 740 P.2d 724, 728 n.1 (Okla. 1987) (concurring and dissenting opinion of Opala, J.).

 

In the instant case, the Trial Division held that justice required maintaining the status quo during the pendency of the trial, enjoining Bendall from interfering with Samoa Air's use of the aircraft in its commercial airline operations, and preserving Samoa Air's ability to provide uninterrupted inter-island transportation for the people of American Samoa.  When the FAA threatened to ground the aircraft if they were not registered according to federal law, the court recognized that the aircraft's registration could not be renewed under the name of Robert Bendall.  Thus, to promote a just result and the continuation of the status quo, the court took dramatic yet focused action by creating a trust, appointing a trustee, ordering registration in the trustee's name, and narrowly circumscribing the trust's duration and the trustee's powers.  This action was within the court's inherent power.

 

[2] Furthermore, the Trial Division did not "divest" Pace Aviation of "legal and ownership title and rights to the aircrafts," as Bendall suggests, because Bendall has yet to prove that he is the lawful owner of the aircraft at trial.  The court has temporarily transferred title to the aircraft to the trustee for the benefit of the aircraft's true owner, whom a trial on the merits shall determine.  If a trial on the merits determines that Bendall is, as he claims, the true owner of the aircraft, then the court shall transfer the aircraft from the trust to him at the end of the trial and the registration may be modified at that time.  [1ASR3d19]

 

Propriety of Appointing Samoa Air's Counsel as Trustee.

 

Bendall argues that appointing "counsel for an interested party to a dispute as a 'trustee' would fail to pass muster in any review."  Because counsel cites no legal principles or authority for this proposition, and because Mr. Ashley has no powers beyond those that the court deems necessary to give him, we reject Bendall's argument.

 

The decision and order of the Trial Division is AFFIRMED.

 

**********

 

 



* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior

** Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

[1] Since Robert Bendall was a Canadian citizen, the FAA would not register the aircraft in his name until it received proof that the aircraft flew 60% of its flights within the jurisdiction of the United States.  Samoa Air could not so proffer.

 

Onofia v. Pitoitua,


ROPATI ONOFIA and SIA ONOFIA, Plaintiffs,

 

v.

 

MARITIANA SUA PITOITUA, Defendant.

 

CA No. 56-96

______________________________

MERITIANA LOTO, Plaintiff,

 

v.

 

ROPATI ONOFIA and SIA ONOFIA, Defendants.

 

LT No. 5-97

 

High Court of American Samoa

Trial Division and Land and Titles Division

 

December 10, 1997

 

[1] One tenant in common cannot sell or bind the interest of another co-tenant without proper authorization, including any specific portion of that estate.

 

[2] Parties to a contract for the sale of land must mutually assent to their agreement, tested by an objective or external standard.

 

[3] In American Samoa, a contract for the sale of land must be in writing, supported by some written evidence signed by the party to be bound or his authorized agent.

 

[4] A claimant cannot successfully assert part performance when he fails to keep his own bargain.

 

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

 

Counsel: For Ropati and Sia Onofia, Aumoeualogo S. Salanoa

              For Meritiana Loto, Gata E. Gurr

OPINION AND ORDER

[1ASR3d160]

 

In 1996, plaintiffs/defendants Ropati Onofia ("Ropati") and Sia Onofia ("Sia") initiated suit, CA No. 56-96, in the Trial Division against defendant/plaintiff Meritiana Sua Pitoitua aka Meritiana Loto ("Meritiana"). Ropati and Sia sought damages for money paid to purchase land, the costs of clearing, cleaning, and cultivating the land, and the value of the house they built on the land.  In 1997, Meritiana filed suit, LT No. 5-97, in the Land and Titles Division to evict Ropati and Sia from the land.  She also alleged that Ropati assaulted Meritiana's husband and that Ropati and Sia disturbed the peace, took neighbors' property, and ignored eviction letters. 

 

The cases were consolidated for trial.  At the trial, on October 8, 1997, Ropati and Sia requested specific performance as alternative relief and, for this purpose, moved to amend the pleadings to conform to the evidence under T.C.R.C.P. 15(b).  Meritiana did not pursue the assault, peace disturbance, and trespass/conversion issues.

 

Core Issue

 

The key to this case is whether a valid, enforceable agreement to sell land between Meritiana as seller and Ropati and Sia as purchasers exists.

 

Facts

 

Meritiana and Sia were the principal players.  In October 1993, Ropati and Sia needed a place to live, and because of previous interactions, Sia approached Meritiana.  She allowed Ropati and Sia to move into her house on individually owned land in Tafuna, American Samoa for a brief period of time.  Ropati and Sia also wished to buy a parcel within this land for their permanent home.  On or about October 4, 1993, Meritiana showed Ropati and Sia a parcel and orally offered to sell them this parcel for $5,000, subject to successful outcome of other pending litigation affecting this part of the land.  Ropati and Sia paid Meritiana $300 down at this time.

 

On or about February 6, 1994, Meritiana authorized and later Ropati and Sia constructed a shack, which cost about $2,400, near Meritiana's house.  Sia testified that at that time, Meritiana also orally agreed to sell Ropati and Sia a parcel for the same $5,000 price at that location in lieu of the parcel under litigation.  Sia paid $500 down for this parcel and agreed to $300 monthly payments for the $4,200 balance.  Sia's daughter memorialized this agreement in a handwritten note.  The note, however, is not signed by Meritiana, who denies the parcel substitution, and it fails to mention the $300 monthly payment term.              

 

Although Ropati and Sia did not make payments in $300 monthly increments for the second parcel, Sia documented disbursements of varying amounts totaling $2,534.75, which were paid to Meritiana after February 1994.  Sia admitted that Meritiana sporadically requested small sums as [1ASR3d161] loans, all but one of which ranged from $5 to $100.  Sia also claimed, however, that Meritiana agreed to apply these amounts as payments towards the purchase of this parcel.

 

Meritiana signed receipts for only $315 of the total amount claimed.  One receipt, No. 096, dated April 1994, is for $100, but bears an additional interlineated notation of $60.  A sequential receipt on the same type of form, No. 097, is for $100 and is dated April 13, 1993.  We believe, however, that receipt No. 097 was actually issued in 1994.  The last two receipts of this group which are on a different type of form, No. 1905 for $30 and No. 1906 for $25, are dated October 13 and 19, 1994 respectively. Receipt No. 1906 bears the notation "Land only" and is the only receipt that even suggests in writing any connection with a land transaction.

 

Sia also presented two other notes written by her daughter, which allegedly record payments to Meritiana toward the land purchase.  One note lists 16 entries, totaling $659.75.  The other contains 17 notations, totaling $510.  Neither note is signed by Meritiana, who denies receiving any of these amounts, either as land purchase payments or small loans.  Meritiana insists that she always gave receipts for any sums of money she procured from Sia.

 

Sia testified that she paid the remaining $1,050 to Meritiana.  She offered a receipt, No. 1286, dated October 14, 1993, as proof of this payment.  This receipt shows a $50 payment on account for an $80 obligation, with an added notation of another $1,000 still outstanding.  Changes have been made to this receipt.  The due date of this payable, listed as January 7, 1995, appears to have been changed to 1994, or vice versa.  Not only does this receipt not bear Meritiana's handwriting, but it also seems, on its face, to relate to car repairs, not a land transaction.  Meritiana denied any connection with this activity, and we believe this to be the case.       

 

Sia also declared that, with Meritiana's permission, she and Ropati extensively cultivated land both adjacent and further afield from their shack. If they are evicted from the land, Ropati and Sia expect compensation for their lost plantation, which they value at $25,000, as well as the money they spent to buy land from Meritiana and construct their shack.  Meritiana, however, views this cultivation as payment in kind for Ropati's and Sia's temporary use of the parcel adjacent to her house.

 

We also have in evidence a quitclaim deed conveying the entire land to Meritiana, her sister Vaililo Werner ("Vaililo"), and her brother Aniga Su`a, Jr ("Aniga"). [1ASR3d162]

 

Discussion

 

We conclude that for three fundamental reasons, Ropati and Sia did not have a valid, enforceable agreement to purchase any of the land from Meritiana.

 

[1] First, one tenant in common cannot sell or bind the interest of another co-tenant without proper authorization, Thompson v. Bowman, 6 Wall 316, 18 L.Ed. 736 (1867); including any specific portion of that estate.  Praire Oil & Gas Co. v. Allen, 2 F.2d 566 (8th Cir. 1924).  Meritiana, Vaililo, and Aniga own the entire land as tenants in common.  No exception to this limitation on a co-tenant's authority to convey land owned in common applies in this case.

 

[2] Second, parties to a contract for the sale of land must mutually assent to their agreement, tested by an objective or external standard.  Ricketts v. Pennsylvania R.R., 153 F.2d 757, 761 n. 2 (2nd Cir. 1946).  Meritiana understood that she was agreeing to sell a parcel in a portion of land involved in litigation, when and if she prevailed in that lawsuit.  Ropati and Sia believed that they were buying a different parcel, one immediately adjacent to Meritiana's house.  Even though Ropati and Sia spent $2,400 to construct a shack on this second parcel and cultivated land on and near this parcel, these actions do not meet the legal standard of mutual assent.  Meritiana denies the substitution of parcels, and no other objective evidence exists to show any meeting of the parties' minds on the sale of this second parcel.

 

[3] Third, in American Samoa, a contract for the sale of land must be in writing, supported by some written evidence signed by the party to be bound or his authorized agent.  Our Statute of Frauds, A.S.C.A. § 37.0211, reads:

 

No agreement for the sale of real property or any interest therein is valid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged or his agent thereunto authorized in writing but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.

 

[4] Ropati and Sia did not have a written contract with Meritiana for the purchase of land.  The notation "Land only" on receipt No. 1906 is ambiguous as to the nature of the referenced transaction and does not identify any particular parcel of land.  This receipt is not a sufficient memorandum to bind Meritiana to a land sale.  Moreover, Ropati and Sia did not make any subsequent $300 monthly payments after the initial payment.  A claimant cannot successfully assert part performance when he [1ASR3d163] fails to keep his own bargain. Marshall & A. Bank v. Samiabrock, 217 N.W. 416 (Wis. 1928).

 

For these reasons, we conclude that Ropati and Sia did not have a valid, enforceable agreement with Meritiana for the purchase of any land.  They are therefore not entitled to specific performance of the alleged agreement.  Goodrich v. Lathrop, 29 P. 329 (Cal. 1892).

 

On the other hand, Meritiana borrowed small sums from Sia from time to time and failed to repay debts which should be paid.  The total amount claimed is $3,334.75, including the $300 paid in October 1993, $500 paid in February 1994, $315 in receipts signed by Meritiana, $1,169.75 listed by Sia's daughter, and the $1,050 car repair receipt.  Sia's assertion of any right to be refunded the car repair sum is incredible.  Hence, we conclude that Sia is entitled to recover only $2,284.75 from Meritiana.

 

Ropati and Sia occupy land owned by Meritiana, Vaililo, and Aniga under a revocable license.  Meritiana revoked that license and is now entitled to evict Ropati and Sia from the land.  Ropati and Sia constructed their shack on the land with Meritiana's permission, and they are now entitled to remove this building from the land.  Talo v. Tavai, 2 A.S.R. 63, 72-74 (Trial Div. 1939).

 

Ropati and Sia were permitted by Meritiana to cultivate portions of the land both within and outside the boundaries of the parcel in dispute.  Sia's evaluation of the crops at $25,000 is outrageously excessive, but Ropati and Sia are at least entitled to the current fruits of their farming endeavors to prevent Meritiana's unjust enrichment.  Id. 

 

Order

 

1.  Ropati and Sia are denied specific performance and are evicted from the land owned by Meritiana, Vaililo, and Anigo.

 

2.  Ropati and Sia shall vacate the land owned by Meritiana, Vaililo, and Anigo within 60 days of entry of this opinion and order.  They may remove their shack from the land within this 60-day period, but if they fail to do so, the shack becomes the property of Meritiana, Vililo, and Anigo.  They may also harvest, within this 60-day period, any mature crops which they previously planted, but any trees and other permanent plantings shall remain on the land as the property of Meritiana, Vaililo, and Anigo.

 

3.  Meritiana shall pay $2,284.75 to Sia in repayment of funds borrowed by Meritiana from Sia.  Meritiana shall make this payment in full within 60 days of entry of this opinion and order.  If she fails to do so, she may pay installments of no less than $100 per month, plus interest at 6% per annum, on the balance then owing, commencing on the 15th day of the first full [1ASR3d164] month after the 60-day period and continuing until the entire sum is paid in full.

 

4.  Each party shall pay their respective attorney’s fees and costs.

 

Judgment shall enter accordingly.  It is so Ordered. 

 

**********

 

 

 

Ioane v. Aiga Tautai O Samoa


[1] Full performance of a duty under a contract discharges the duty.

 

[2] Where plaintiff had agreed to do emergency repairs on defendant’s boat and defendant promised that payment would be discussed after completion of work, but said topic was never discussed between parties, plaintiff entitled to quantum meruit compensation for services rendered.

 

[3] Plaintiff’s claim of for payment at his customary rate was neither untoward nor unreasonable and was proper as quantum meruit compensation. [1ASR3d97]

 

[4] The question of how a customary presentation ought to be divided is not one for the courts.

 

[5] Defendant’s counterclaim for negligence and shoddy workmanship not proven where inspection of boat failed to establish “delamination” claim and offer of proof nothing more than an unfounded guess as to damages.

 

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

 

Counsel: For Plaintiff, Marie Ala`ilima-Lafaele

  For Defendant, William H. Reardon

 

DECISION AND ORDER

           

Plaintiff, a local boat builder, sues the defendant, a non-profit organization, for breach of contract.  The parties initially entered into a written agreement dated July 22, 1996, whereby plaintiff would build for defendant a Samoan alia, a traditional voyaging canoe, in consideration of $10,000 payable in installments of $2,500 according to a certain work progress schedule.  The parties subsequently varied the work progress schedule by amending the contract.

 

By the time the alia was launched, August 25, 1996, plaintiff had received only $6,000; the defendant had run out of funds.  Plaintiff claims a balance of $4,000 outstanding to date on the aforesaid agreement.

 

At the launching, the alia was dropped and extensively damaged when an inadequately anchored crane, attempting to lower the vessel into the sea, toppled into the water on top of the alia.  The defendant's president, Sven Ortquist, with a deadline ahead for the alia's intended participation at a Polynesian festival to be held in Western Samoa, sought plaintiff's assistance.  Plaintiff agreed to do the emergency repairs and in view of defendant's time constraints, he and his crew of four worked 14 hours each day for the next two weeks to get the alia ready for the festival.  The repairs were completed in time, and the alia sailed off to Apia in due course.

 

Plaintiff tendered to defendant his invoice of $6000 for the emergency repairs to the alia.  Plaintiff testified that when he had initially raised with defendant's president the matter of his compensation, he was told that they would settle the matter after the repairs.  However, no subsequent discussion about his compensation occurred and he therefore billed defendant for the emergency repairs at his customary rate of [1ASR3d98] $50.00 an hour.  This invoice, broken down as 120 hours at $50 per hour, remains unpaid.

 

Defendant by way of defense alleges negligence on plaintiff's part as being the cause of the alia's damage at launching.  Additionally, defendant counterclaims for certain tools in plaintiff's possession and for a quantity of fine mats and sleeping mats presented by the village of Manono.  At trial, defendant also asserted yet another counterclaim alleging damages for faulty workmanship by plaintiff.

 

[1-3] We conclude that plaintiff is owed $4000 from the initial contract.  He fully performed his obligations according to the initial contract and subsequent amendments; he is therefore entitled to the $4000 in unpaid compensation as a matter of contract.  See Restatement (Second) of Contracts, § 235 ("Full performance of a duty under a contract discharges the duty.").  Additionally, we conclude that plaintiff is entitled to quantum meruit compensation for services rendered on the emergency repairs.  See Zuguin v. M/V Captain Souza, 23 A.S.R.2d 7, 10-11 (Trial Div. 1992).   We are satisfied that plaintiff's invoice of the amount of $6000 is neither untoward nor unreasonable, and will award him judgment accordingly.

 

As to defendant's claims, the tools in plaintiff's possession, a power planer, sander, and jig saw, are readily acknowledged by plaintiff as belonging to defendant and that he is quite willing to part possession with these tools if defendant picks them up.  It seems that the lawsuit was the first instance whereby demand was made of plaintiff for the return of the tools.  If defendant wants the tools returned, it can simply ask plaintiff for the return of the tools; it does not need a court order to this effect.

 

[4] On defendant's mats cause, we find the evidence insufficient to establish defendant's claim of entitlement to a greater portion of the Manono presentation than the division made by plaintiff.  The evidence showed that Manono, an insular village of famed maritime traditions, honored plaintiff as tufuga, the craftsman, with a sua presentation.  The presentation included a quantity of mats which plaintiff subsequently divided by keeping half for him and giving the remainder to defendant.  The question of how a customary presentation ought to be divided is hardly an issue for the court. [1ASR3d99]

 

[5] On defendant's remaining claims, damages for negligence[1] and shoddy workmanship, we hold that defendant failed to discharge its onus of proof.  First, there was absolutely no evidence of negligence on plaintiff's part at the ill-fated launching.  There was no showing that plaintiff had anything to do with directing the launching.  The defendant's shoddy workmanship claim[2] was testimony by Mr. Sepp Steffany that "delamination" was occurring which was resulting in sea water seeping in between the alia's hull and its fiberglass skin.  Another witness, Mr. Ortquist, a renowned traditional master-carver with a background in small boat building, posited that such "delamination" was prone to occur if the hull's "stringers" were not correctly aligned.  He testified that he had noticed at the outset of construction that some of the stringers were crooked, but nevertheless declined to say anything, apparently not wanting to second guess a fellow craftsman.  Following the close of testimony, the court ordered written closing arguments from the parties and visited the alia, to see for itself what a "stringer" looked like and to observe the claimed "delamination."  From visual inspection, sea water separation was not readily apparent. However, Mr. Steffany pointed to uniformly round dark spots on the hull over regularly spaced nail markings.

 

On the extent of defendant's tendered proofs, we are not persuaded on the "delamination" damage claim.  The dark spots we viewed looked too uniform and too even in appearance; they looked more like deliberate markings rather than randomly resulting evidence of natural damage arising in conjunction with shoddy workmanship.[3]  While Mr. Steffany [1ASR3d100] might be in the business of supplying paints and epoxies to local boatbuilders, he acknowledged that he is not a boat builder.  In the same vein, defendant's offer of proof on damages, a claim by Mr. Steffany of $10,000 to cover "delamination" restorative costs, was nothing more than a guess without foundation.

 

On the foregoing, judgment will enter in favor of plaintiff against defendant in the sum of $10,000 plus court costs.

 

It is so Ordered.

 

**********

 



[1] Although the negligence claim as pled in defendant's answer was erroneously styled a defense rather than a counterclaim, T.C.R.C.P. Rule 8(c) permits the court to treat the pleading as if there had been a proper designation where a party mistakenly designates a counterclaim as a defense.  Jennings v. Jennings, 22 A.S.R.2d 10, 11 (Land & Titles Div. 1992).

[2] This claim, as above noted, was not raised on the pleadings, however, this claim was introduced at trial without objection.  Under T.C.R.C.P. Rule 15(b), the Court may treat an unpled issue tried without objection as if it had been actually raised on the pleadings.  Aloipo v. Moananu, 21 A.S.R.2d 69, 70 (Trial Div. 1992).

[3] When plaintiff submitted his written final argument, he also tendered an affidavit proffering his rebuttal of defendant's "delamination" claim.  He deposed that he had only become aware of what defendant's "delamination" claim was all about when the court viewed the alia.  He further refuted the claimed water-damage areas as merely being resultant dark spots caused by the spreading of the "microballoon/resin mixture" he had applied to cover over the area where he had stapled "veneer" to the hull.  Plaintiff claims that these dark spots are at worst cosmetic and do not undermine the integrity and soundness of the hull.

 

Pioneer Trucking, Ltd. v. Fletcher Construction Co., Ltd.


 

PIONEER TRUCKING, LTD., Plaintiff,

 

v.

 

FLETCHER CONSTRUCTION CO., LTD., Defendant.

 

High Court of American Samoa

Trial Division

 

CA No. 78-96

 

May 21, 1997

 

[1] Where documentary evidence and prevailing business custom supported defendant’s interpretation of contract, decision in its favor proper.

 

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

 

Counsel: For Plaintiff, Charles V. Ala`ilima

              For Defendant, Brian M. Thompson

 

OPINION AND ORDER

 

Plaintiff sells and trucks loads of cinders.  It sues defendant, a roading contractor, for breach of contract, alleging that it had supplied defendant a quantity of cinders which the latter had agreed to purchase by the "cubic yard."  Defendant denies agreeing to such terms, claiming that it had simply purchased cinders from plaintiff by the "truckload," at $35.00 a load.

 

[1] We find for defendant, satisfied on the evidence that the documentary evidence[1] and prevalent business custom,[2] pertaining to the sale of cinders, corroborate defendant's version of the parties' business relationship; that is, sale by the truckload.  Defendant paid plaintiff $35.00 for each truckload delivered and received.

 

Judgment will accordingly enter for defendant.

 

It is so Ordered.

**********

 



[1] The billing and payment records.

[2] The evidence established the absence of any on-island practice or manner of measuring volume sales.  Rather the evidence simply pointed to a local practice of pricing and selling by the truckload.

 

Taliga v. Siaumau,


OPETAIA TALIGA, Plaintiff,

 

v.

 

ELIOTA SIAUMAU, Defendant.

 

High Court of American SamoaPRIVATE

Trial Division

 

CA No. 10-97

 

May 21, 1997

 

[1] Circumstances indicated that consideration for agreement was really use of seller’s vehicle as taxi, and not vehicle, where vehicle was operated by purchaser as taxi for eighteen months without transferring title.

 

[2] Where agreement was meant to violate or evade the Territory’s business licensing laws, it is contrary to public policy, illegal and unenforceable.

 

[3] Where services are rendered pursuant to an illegal agreement, recovery is unavailable under both breach of contract and quantum meruit theories.

 

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

 

Counsel: For Plaintiff, Aumoeualogo S. Salanoa

               For Defendant, Pro se

 

Plaintiff Opetaia Taliga ("Taliga") filed his complaint alleging an agreement between him and defendant Eliota Siaumau ("Siaumau") whereby Siaumau had agreed to transfer to him two automobiles, in return for his building Siaumau's residence.  Taliga claims that he had substantially finished building Siaumau's home but that the latter never transferred the promised automobiles.  He claims that the value of his labor in building Siaumau's home is around $8,000.

 

Facts

 

On the evidence, we find that the parties had agreed that Siaumau would transfer possession of one his taxis to Taliga.  The taxi would be operated by Taliga, under Siaumau's license, for Taliga's own benefit.  In return Taliga would build an extension to Siaumau's home. [1ASR3d74]

 

As it turned out, the extension work evolved into a larger project, but the parties never finalized any understanding on the question of additional remuneration for Taliga.  It was decided that they would talk about this upon completion of Siaumau's building project.

 

Taliga substantially completed a new structure for Siaumau, although he has yet to complete the interior finishing work.  The bathrooms, kitchen, and living rooms remain incomplete to date.  While Taliga claims that the work ceased when the Siaumau had run out of construction funds, Siaumau claims that Taliga was just too busy with his other carpentry projects to finish his home.

 

In the interim, Taliga had use of Siaumau's vehicle, running the same as a taxi until Taliga's intoxicated brother ran the vehicle into the sea.  Because the vehicle was still registered in Siaumau's name, the police required Siaumau to remove the vehicle from the sea, which Siaumau did at his own expense. 

 

Subsequently, Taliga sought the return of the vehicle.  Siaumau refused until Taliga would reimburse him for his expense and time in hauling the vehicle out of the sea.  Subsequent efforts to resolve their differences proved fruitless, and the vehicle deteriorated, in the meantime, beyond repair.

 

Taliga now sues for the value of his labor while working on Siaumau's home, because the vehicle is no longer available to him.

 

Discussion

 

[1] We conclude on the evidence that the contract between the parties contemplated the transfer of possession of Siaumau's vehicle as a licensed taxi, and not title to or ownership of the vehicle.  Since Taliga did not have a taxi license, title to the vehicle was not transferred because what Taliga really wanted was the vehicle's commercial value, a business license personal to Siaumau, and not transferable.  See A.S.C.A. § 27.0212.  Taliga, indeed, ran the vehicle as a taxi, under Siaumau's business license, for 18 months before it was damaged.

 

[2-3] This arrangement between the parties was a sham on the territory's business license laws.  It was, effectively, an agreement to violate or inhibit the business licensing laws, A.S.C.A. §§ 27.0201 et seq., and as such, it is illegal and unenforceable, being contrary to public policy.  Papaali`i v. Pen, 18 A.S.R.2d 82 (Trial Div. 1991).  There can be no recovery either on contract or on a quantum meruit for services rendered or other consideration furnished under an illegal agreement.  See 17A Am Jur 2d, Contracts § 322.  Accordingly, we decline to consider the [1ASR3d75] merits of either Taliga's contract or quantum meruit claims, since both stem from this illegal unenforceable pact.

 

Conclusion

 

For reasons given, the complaint is dismissed and Taliga will take nothing thereby.

 

It is so Ordered.

 

**********

 

BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co.


BHP PETROLEUM SOUTH PACIFIC, INC., Plaintiff,

 

v.

 

DAITOH TRADING COMPANY, KOREA DEEP SEA FISHERIES,

and IN SAENG LEE, Defendants.

 

High Court ofAmerican Samoa

Trial Division

 

CA No. 33-97

 

April 27, 1997

 

[1] T.C.R.C.P. 6(d) requires parties to serve supporting memorandum not later than 3 days before the hearing, unless otherwise permitted by the court.

 

[2] Where memorandum filed on a Friday, and motion heard the following Monday, movant had obviously not complied with T.C.R.C.P. 6(d).

 

[3] Summary judgment is only appropriate when there is no "genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. 

 

[4] On motion for summary judgment, non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true. 

 

[5] Where plaintiff alleged that “delivery notice,” containing a demand for payment, had been signed by the defendant at the time of delivery of the goods, factual issue was raised as to whether the parties had a written contract.

 

[6] Where parties had entered into an installment contract, the time of breach was to be measured at date last missed payment, not before. 

 

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

 

Counsel: For Plaintiff, Katopau T. Ainuu

              For Defendant Korea Deep Sea Fisheries, Malaetasi M. Togafau

              For Defendant In Saeng Lee, Marshall Ashley  [1ASR3d61]

 

ORDER DENYING MOTION TO DISMISS

 

Introduction

 

On March 31, 1997, Plaintiff BHP Petroleum South Pacific, Inc., ("BHP"), filed a complaint in the Trial Division of the High Court against Daitoh Trading Company ("Daitoh"), Korea Deep Sea Fisheries ("KDSF"), and In Saeng Lee ("Lee"), the owner of Korea Deep Sea Fisheries.  In that complaint, BHP alleges that "defendants" purchased petroleum products "on account" from BHP and that BHP delivered the petroleum products to Daitoh's fishing vessel, the Sam Song #601, on October 26, 1991.  BHP further alleges in the complaint that the "defendants" made payments of $79,069.72 on the account, but failed to pay the $10,959.58 balance on the original $90,029.30 debt, and failed to respond when BHP sent demand letters dated September 14, 1994 and January 31, 1997.

 

Though an affidavit on file with the court states that Daitoh has been served a copy of the complaint and summons, Daitoh has not responded to the complaint, nor participated in subsequent proceedings. 

 

KDSF did not file an answer to the complaint, and instead filed a "motion to dismiss" pursuant to T.C.R.C.P. 12(b) on April 24, 1997.  The court completed a hearing on the motion on June 23, 1997.

 

Discussion

 

[1-2] The file in this matter contains KDSF's "Memorandum in Support of Motion to Dismiss."  However, the file contains no proof that KDSF properly served BHP with its memorandum in support of the motion to dismiss.  T.C.R.C.P. 5.  In fact, we cannot comprehend how KDSF could have properly served BHP under T.C.R.C.P. 6(d).  T.C.R.C.P. 6(d) states that "supporting memorandum may be served not later than 3 days before the hearing, unless the court permits them to be served at some other time."  T.C.R.C.P. 6(a) states that "[w]hen the period of time prescribed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."  In the instant case, the memorandum was filed on Friday, June 20, 1997.  The hearing was held on Monday, June 23, 1997.  Thus, excluding the intermediate Saturday and Sunday, the memorandum was filed 1 day before the hearing.  Therefore, we conclude that KDSF's memorandum was improperly served, and we strike it from the record.

 

[3-4] Therefore, we turn our attention exclusively to KDSF's motion to dismiss filed April 24, 1997.  Upon closer review, we find that KDSF's “motion to dismiss” is essentially a motion for judgment on the pleadings and will be treated as a motion for summary judgment under [1ASR3d62] T.C.R.C.P. 56.  See T.C.R.C.P. 12(b),(c).  Summary judgment is only appropriate when there is no "genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law.  T.C.R.C.P. 56(c); YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 122, 124 (Trial Div. 1994) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 247-50 (1986)).  The non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true.  Id. (citing Ah Mai v. American Samoa Gov't, 11 A.S.R.2d 133, 136 (Trial Div. 1989)).

 

KDSF's terse motion for summary judgment avers that "the Complaint states that the debt has been outstanding since November 26, 1991 . . . no written contract exist[s]," and that KDSF's suit violates the three year statute of limitations for actions on unwritten contracts.  A.S.C.A. § 43.0120(3).

 

[5] First, there appears to be a genuine issue of fact as to whether or not there was a written agreement, and, therefore, whether the ten year statute of limitations for actions on written contracts applies to this case.  A.S.C.A. § 43.0120(5).  BHP has filed an affidavit supporting its contention that when KDSF received the petroleum products, KDSF agents or employees signed a “Delivery Notice” containing a demand for payment of the entire $90,029.30 debt.  See Affidavit of Ruta Fou, paragraphs 11-12.  If we assume, as we must, that BHP's version of the facts is accurate and true, then the Delivery Notice would constitute a written contract.  BHP's suit would then be subject to the 10-year statute of limitations for written contracts, and its Complaint filed on March 31, 1997 would not be outside that limitations period.

 

[6] Second, even if defendant is correct in asserting that the contract for sale of petroleum products was an "unwritten contract," we still could not dismiss this suit as beyond the three year limitations period for actions on unwritten contracts.  A.S.C.A. § 43.0120(3).  BHP has submitted an affidavit that alleges that KDSF promised to pay its debts in installments, and that it made its last payment in August, 1994.  See Affidavit of Ruta Fou, paragraph 15.  Thus, BHP is alleging that the breach of their agreement occurred at this juncture, not in 1991.  If we assume, as we must, that BHP's version of the facts is accurate and true, then BHP did not violate A.S.C.A. § 43.0120(3) when it filed its complaint against KDSF on March 31, 1997, less than three years after the alleged breach of the "unwritten" contract.

 

Finally, we are compelled to note our frustration with KDSF's apparent expectation that this court undertakes research on its behalf--KDSF cites no authority in support of its bald assertions in its April 24, 1997, motion to dismiss. [1ASR3d63]

 

Accordingly, KDSF's motion to dismiss is DENIED.  KDSF's memorandum in support of the motion to dismiss is stricken from the record.

 

It is so Ordered.

 

*********

Faumuina v. A.S.G. Emp. Ret. Fund


 

KALFRED FAUMUINA, Plaintiff,

 

v.

 

AMERICAN SAMOA GOVERNMENT EMPLOYEES RETIREMENT FUND

 and AMERICAN SAMOA GOVERNMENT, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 126-96

 

January 13, 1997

 

[1] In American Samoa, if the parties to an employment contract have neither fixed a definite term of employment nor created any contractual obstacle to the employer’s discretionary right to discharge the employee, then the contract is for employment at will, and the employer may discharge the employee without incurring liability.  The parties’ understanding with respect to employment duration is the key to determining whether the contract contains a just cause termination provision.

 

[2] The court will consider the intent of the parties, business custom and usage, the nature of the employment, the situation of the parties, and the circumstances of the case to determine the understanding of the parties with respect to employment duration.

 

[3] Courts must examine the nature of the interest at stake to determine whether the party has merely a unilateral expectation of the interest or has a constitutionally protected claim of entitlement to the interest in deciding a party’s due process rights.

 

[4] Enforceable claims to an entitlement derive from a statute, legal rule, or through contractual arrangement.

 

[5] Where a discharged employee presents sufficient facts which, if proven at trial, could persuade a reasonable factfinder to find that he had a just cause termination clause in his employment contract, that his employer wrongfully terminated his employment without just cause, and that the employment was terminated in violation of the requirements of procedural and substantive due process the employer’s motion for summary judgment will be denied by the court.

 

Before RICHMOND, Associate Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge. [1ASR3d46]

 

Counsel: For Plaintiff, Jennifer L, Joneson

  For Defendants, Cheryl A. Crenwelge, Assistant Attorney General

 

ORDER DENYING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

 

Defendants American Samoa Government Employees Retirement Fund (“Fund”) and American Samoa Government (“ASG”) moved for a summary judgment, and the court regularly heard the motion on December 9, 1996.  The parties appeared by counsel.

 

Faumuina was a career service employee of ASG on the Fund’s staff before P.L. 19-37 was enacted in 1986.  A.S.C.A. § 7.1415 was amended by P.L. 19-37 and changed the status of the Fund’s staff to non-career service employees of ASG, under the direction of the Fund’s board of trustees. The Fund discharged Faumuina in 1996.

 

The Fund and ASG assert that the claim of wrongful discharge by plaintiff Alfred Faumuina (‘Faumuina”) must fail as a matter of law because Faumuina is an at-will employee of ASG, who may be terminated without cause.  Furthermore, the Fund and ASG argue that, as an at-will employee, Faumuina possessed no legitimate “liberty” or “property” interest in continued employment by ASG on the Fund’s staff that would trigger procedural or substantive due process rights in the event the Fund terminates Faumuina’s employment.

 

Faumuina claims that summary judgment is inappropriate because the facts alleged in his affidavit in opposition to the motion, if proved at trial, would entitle Faumuina to relief for wrongful discharge and unlawful deprivation of due process. Faumuina contends that he acquired an actual or implied contractual right to continued employment unless terminated for just cause because he started work on the Fund’s staff as a career service employee with job security interests provided by statute, and when P.L. 19-37 was enacted, the Fund’s executive director orally promised him that the terms of his employment would be the same as the terms of his employment as a career service ASG employee.   Faumuina further claims that because he possessed this actual or implied contractual right, and because he was the employee of a “public government entity,” he was entitled to procedural and substantive due process upon termination.

[1ASR3d47]

Discussion

 

A.  Just Cause Termination Clause

 

Faumuina concedes that he “was not technically a career service employee of the ASG at the time that he was terminated.”  Faumuina’s Mem. In Opp. to Mot. for Summ. Judg., at 1.  Faumuina thus acknowledges that the Fund offered, and he accepted, a new employment relationship where he would relinquish his status as a career service employee of the ASG and assume a position as a non-career service of ASG.  However, Faumuina argues that this “technical” change in the employment relationship did not mean that he lost the right to continued employment unless terminated for just cause.  Faumuina avers that he had an actual or implied contractual right to be terminated only with just cause, even as a non-career service, employee of ASG, because the parties understood, at the time the new employment contract was signed, that Faumuina would only be terminated for just cause; or, alternatively, because the Fund made representations after the new contract was signed that unilaterally modified the contract to include a just cause termination provision.

 

1. The parties’ understanding when the new contract was signed.

 

[1] In American Samoa, if the parties to an employment contract have neither fixed a definite term of employment nor created any contractual obstacle to the employer’s discretionary right to discharge the employee, then the contract is for employment at will, and the employer may discharge the employee without incurring liability.  Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 152, 165 (Trial Div. 1987).  The parties’ understanding with respect to employment duration is the key to determining whether the contract contains a just cause termination provision.

 

[2] We will consider the intent of the parties, business custom and usage, the nature of the employment, the situation of the parties, and the circumstances of the case to determine that understanding.  See Roberts v. Atlantis Richfield Co., 568 P.2d 764, 759 (Wash. 1977) (citing Perry v. Sinderman, 408 U.S. 593 (1972)); Shebar v. Sanyo Business Systems Corp., 544 A.2d 377, 352 (1988); 53 AM. JUR. 2d., Master and Servant § 27.

 

a.  Intent of the parties.  A reasonable factfinder could infer from Faumuina’s affidavit that the Fund’s executive director proposed a new contract not because he intended to eliminate Faumuina’s job security, but because he intended to enhance the job security of the Fund’s staff who might be subject to political pressures if the Fund remained directly under ASG authority.  If Faumuina is believed, the executive director [1ASR3d48] never even hinted that Faumuina would lose his contractual right to be fired only for just cause, but did suggest that the new contract was merely a way to insulate the Fund’s staff from ASG’s hierarchy.  Moreover, if we accept Faumuina’s assertions as true, Faumuina signed the new contract with the intent of preserving, in substance if not in form, his job security rights.  Therefore, even though there was no express agreement with respect to job security in the written document, a reasonable factfinder could find from the evidence that the parties’ intended to retain a just cause termination provision in Faumuina’s new employment contract. 


b.  Business custom and usage.  We believe that employment with a governmental institution that is not specifically “temporary” generally contemplates an employment relationship with greater security than an at-will relationship, even if they are not civil service positions.  Longevity in civil service positions is, for better or worse, the norm. Thus, a factfinder could reasonably infer that business custom in the “industry” of ASG’s public service favors a finding that Faumuina’s employment contract contained a just cause termination clause.

 

c.  Nature of the emp1oyment.  Faumuina held the position of Deputy Director of the Fund, a position of substantial authority requiring sophisticated management skills.   Thus, a reasonable factfinder could find that the importance of Faumuina’s position to the overall operation of the Fund tends to support Faumuina’s claim that his Position was not subject to arbitrary termination.

 

d.  The situation of the parties.  Faumuina states, and we assume on this motion, that the Legislature, by enacting P.L. 19-37, was making the Fund independent from other ASG governmental activities while maintaining a coherent entity and ensuring continuity of operations.  Faumuina also states that he was simply trying to assist the Fund with the process of establishing this formal independence within ASG’s Executive Branch.  Faumuina avers that at the time he signed the new contract, the employment relationship between Faumuina and ASG on the Fund’s staff was mutually beneficial.  Thus, assuming Faumuina’s version of the facts to be true, a reasonable factfinder could find that the parties’ situation, at the time that the new contract was formed, support Faumuina’s claim that the new arrangement merely’ extended his earlier employment under a different and purely superficial label for termination purposes.

 

e.  Circumstances of the case.  Faumuina’s second employment contract did not provide additional consideration for his alleged concession of job security.  Though it is theoretically possible for an employee to relinquish voluntarily a right or benefit due him under an employment contract, a reasonable factfinder could find that Faumuina would not and [1ASR3d49] did not accept the elimination of a just cause termination clause in his contract without some form of  new consideration.  This finding would also further support Faumuina’s position that the parties understood that they were retaining Faumuina’s job security rights when they formed the new contract.

 

In sum, the Fund and ASG may ultimately persuade the factfinder that Faumuina had merely a subjective, personal belief that he would be employed as long as he satisfactorily did his job, and that the parties had no understanding with respect to restrictions on termination.  However, we believe that the parties’ respective intentions, business custom and usage, the nature of the employment., the situation of the parties, and the circumstances of the case, if proven at trial, could demonstrate to a reasonable factfinder that Faumuina formed a contract containing an actual or implied right to be terminated only for just cause.[1]

 

2. Post-hire oral representations modifying the employment contract.

 

This court has also held that an employer may make representations external to the contract which affect the terms of employment.  For example, commonly distributed employee manuals can, under some circumstances, create a contractual just cause termination clause in an employment contract.  Palelei, 5 A.S.R.2d at 165.  While Faumuina has filed a wrongful discharge claim based on the theory that the Fund’s oral representations created a contractual limitation on discretionary discharge, we find no compelling reason to treat oral representations differently than written representations with regards to the ability to create actual or implied contractual limitations on termination.  Therefore whether the representations be oral or written, this court will look to the substance of an employer’s job security representations, as well as the manner in which the employer made the representation.  Id.

 

The Fund’s executive director allegedly stated that the Fund “would follow the employment practices established in the American Samoa Government Service career service laws,” Faumuiaa’s Aff. at para. 10, and he purportedly explicitly acknowledged on numerous occasions that he “could not fire [Faumuina],”  Faumuina’s Aff. at para. 17.  The former representation was allegedly made to all members of the Fund’s staff, including Faumuina.  The latter representation was allegedly made in the midst of a professional dispute.  Thus, the substance of the representations, and the context in which they were made, if true, would also support a finding that the Fund unilaterally created contractual [1ASR3d50] limitations on the Fund’s discretionary authority to discharge Faumuina.

 

Finally, Faumuina has presented factual allegations that he was terminated not because his performance was unsatisfactory, but because he was calling attention to mismanagement in the administration of the Fund, Therefore, Faumuina has presented sufficient facts for a reasonable factfinder to find that he was wrongfully discharged in violation of a contractual promise to fire only for just cause.

 

B.  Due Process

 

[3-4] Courts must examine the nature of the interest at stake to determine whether the party has merely a unilateral expectation of the interest or has a constitutionally protected claim of entitlement to the interest in deciding a party’s due process rights. See Board of Regents v. Roth, 408 U.S. 564, 570 (1972) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).  Enforceable claims to an entitlement derive from a statute, legal rule, or through contractual arrangement.   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 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 467 (1982) (Brennan, J. concurring).

 

We have already held that a reasonable factfinder could find from Faumuina’s affidavit in opposition to the motion that Faumuina had a contractual entitlement to be employed for as long as he did his job in a satisfactory manner.  The deprivation of this right would trigger both procedural and substantive due process concerns, especially where a person’s “good name, reputation, honor, or integrity is at stake.”  Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). See also Roth, 408 U.S. at 573.

 

Though the requirements of procedural due process vary with the circumstances and particular demands of each case, Ferstle v. American Samoa Government, 7 A.S.R.2d 26, 49 (Trial Div. 1988) (citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)), we cannot say as a matter of law that the “hearing” that the Fund provided Faumuina was adequate.  Faumuina alleges that the Fund’s board of trustees did not provide him with a detailed description of the grounds for his termination prior to the hearing, an allegation that, if true, would undermine the Fund’s and ASG’s contention that they provided Faumuina with meaningful notice and opportunity to be heard.

 

Furthermore, we cannot say as a matter of law that Faumuina was provided substantive due process.  A reasonable factfinder could find that terminating Faumuina for “whistleblowing” was pretextual, or arbitrary and capricious, especially if, as Faumuina asserts, his [1ASR3d51] supervisor had repeatedly solicited Faumuina’s resignation during “personal disagreements.”

 

Conclusion and Order

 

[5] Faumuina has presented sufficient facts which, if proven at trial, could persuade a reasonable factfinder to find that he had a just cause termination clause in his employment contract, that the Fund and ASG wrongfully terminated Faumuina’s employment without just cause, and that the Fund and ASG terminated Faumuina’s employment in violation of the requirements of procedural and substantive due process.

 

Accordingly, the Fund’s and ASG’s motion for summary judgment is denied.

 

It is so Ordered.

 

**********

 

 

 



[1] We believe that Faumuina’s version of the facts distinguishes the case at hand from Roberts v. Atlantic Richfield Co., 568 P.2d 764, 769 (Wash. 1977) and the case the Fund and ASG cited, Hardie v. Cotter & Co., 849 F.2d 1097, 1100 (8th Cir. 1988).

 

Vaelaa v. Sunia


[1] Attorney General, as head of Department head of Legal Affairs Department and Chief Immigration Officer, as division head of Immigration Office, are responsible for ensuring that subordinates comply with Court’s order.

 

[2] A department head’s, or division head’s, failure to provide full and accurate instructions to subordinates regarding a Court order, where such Court order has direct consequences on the jobs performed by such subordinates, constitutes inexcusable neglect.

 

[3] In certain circumstances, inexcusable neglect may constitute willful and contemptuous conduct and be punished as contempt of Court.

 

[4] Where Attorney General and Acting Chief Immigration Officer gave imprecise instructions, resulting in subordinate issuing verifications of immigration status in violation of Court’s injunction, the failure to give specific instructions constituted inexcusable neglect and could be punished as contempt.

 

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

 

Counsel: For Plaintiff, Charles V. Ala`ilima

              For Defendants, Henry W. Kappel, Assistant Attorney General

 

JUDGMENT OF CONTEMPT


The order made on September 4, 1997, requiring defendants Toetogata Albert Mailo ("Attorney General") and Robert Porter ("Acting Chief Immigration Officer") to show cause why they should not be held in [1ASR3d132] contempt of court for violation of the order entered on July 21, 1997, came regularly for hearing on September 17, 1997.  The Attorney General and Acting Chief Immigration Officer were present with their counsel.  Plaintiff Tuilefano Vaela`a ("Chairman of the Immigration Board") was also present with his counsel.  The court heard testimony and has considered the evidence and counsel's argument.


Discussion


1.  The order entered on July 21, 1997, was duly and regularly made.


2.  At all times since the making of the order, the Attorney General and Acting Chief Immigration Officer have had notice and knowledge of the order.


3.  At all times since the making of the order, the Attorney General and Acting Chief Immigration Officer have had the ability to comply with the order.

 

4.  The Attorney General and Acting Chief Immigration Officer have failed to comply with the order in the following particulars.

 

a. The order reads:


During the pendency of this action or until further order of the court, each defendant, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from further implementing existing authorizations to remain and from processing additional applications for authorizations to remain in American Samoa to undocumented aliens under the Governor's amnesty program.


b. After the order was issued and entered, the Attorney General orally instructed the Acting Chief Immigration Officer and later Assistant Chief Immigration Officer Fuimaono Kolumane ("Kolumane") not to further implement the existing authorizations to remain in American Samoa already issued to more than 2,000 undocumented aliens under the Governor's amnesty program.  Kolumane was assigned to issue various immigration documents to these aliens.  The Attorney General did not specifically address verifications of immigration status routinely issued to support school enrollments and similar needs of aliens authorized to remain.  The Acting Chief Immigration Officer, in turn, also instructed Kolumane in similar general terms.


c. Because of the Attorney General's and Acting Chief Immigration Officer’s imprecise instructions, Kolumane issued 51 verifications of [1ASR3d133] immigration status to enable school enrollments of aliens already authorized to remain under the amnesty program.  The Chairman of the Immigration Board discovered these clear-cut violations of the order on September 3, 1997, and the Attorney General and Acting Chief Immigration Officer were apprised of them in short order.

 

[1-2] d.  The Attorney General heads the Department of Legal Affairs, which includes the Immigration Office as a division.  He is responsible for his subordinates' compliance of the order.  Likewise, the Acting Chief Immigration Officer is responsible for his subordinates' compliance with the order.  The Attorney General and Acting Chief Immigration Officer were inexcusably neglectful in failing to provide full and accurate instructions about this order to their staff assigned to carry out immigration aspects of the amnesty program.


[3] 5.  The Attorney General's and Acting Chief Immigration Officer's inexcusable neglect constituted willful and contemptuous conduct in the context of the present situation.  We need to send a message to public agency heads that they must fulfill their obligations and be abundantly careful in carrying out court orders applicable to their agencies' activities that affect public policies and interests.


Order


[4] 1.  The Attorney General and Acting Chief Immigration Officer are in contempt of this court.


2.  Imposition of punishment for the contempt is suspended on the condition that Attorney General, Acting Chief Immigration Officer, and their subordinates do not again violate the order during the pendency of this action.


3.  This judgment of contempt will be purged when this case is finally closed, provided that the Attorney General and Acting Chief Immigration Officer have complied with the condition of suspending imposition of punishment.


It is so Ordered.

 

**********

 

Mailei v. Faumuina,


 

ALAI`ASA FILIFILI MAILEI, Plaintiff,

 

v.

 

LEOPOLE FAUMUINA and FANENE AIPOPO

LAULU for the FANENE FAMILY, Defendants.

 

LT No. 12-90

________________________________

 

ALAI`ASA FILIFILI for the ALAI`ASA FAMILY, Claimant,

 

v.

 

TUIA`ANA MOI for the TUIA`ANA FAMILY, MOEA`I ULIATA for

the MOEA`I FAMILY, and SEIGAFO E. SCANLAN, Objectors.

 

LT No. 76-90

LT No. 78-90

LT No. 79-90

________________________________

 

ALAI`ASA FILIFILI MAILEI, Plaintiff,

 

v.

 

FANENE AIPOPO LAULU, FONOTI TAFA`IFA, TUIA`ANA MOI,

MOEA`I FAMILY, and TAUILIILI PEMERIKA, Defendants.

 

LT No. 25-96

________________________________

 

ALAI`ASA FILIFILI M., Claimant,

 

v.

 

TUITOGA PUAILOA FANENE, FANENE A. LAULU for FANENE FAMILY MEMBERS,

TUIA`ANA MOI, ISEULAOLEMOANA S. SOTOA, Legal Representative of the

ESTATE OF SALOFI R. SOTOA, PEMERIKA TAUILIILI,

LAUMA VALOAGA V. MOANANU, and FONOTI TAFA`IFA, Objectors.

 

LT No. 14-96 [1ASR3d207]

High Court of American Samoa

Trial Division

 

August 5, 1997

 

[1] The principles underlying the Federal Rules of Civil Procedure may be applied in land and titles matters.

 

[2] The court will grant a motion to dismiss at the close of a claimant’s case in a Land & Title matter if he cannot establish a preponderance of the evidence in favor of his position.

 

[3] Article I, section 3, of the Revised Constitution of American Samoa, which shields Samoans from “alienation of their land and destruction of the Samoan way of life and language,” does not prohibit the alienation of communal land to other Samoans, nor does it limit the categories of Samoan land ownership.

 

[4] Article I, section 3, of the Revised Constitution of American Samoa does not require the burden of persuasion to be shifted to those parties with claims of individual ownership.

 

[5] The Territorial Registrar should not process a proffered title registration if the title to the land is already registered.

 

[6] A judgment in a prior case, between the same parties, or those in privity with them, which involves the same land title issue, is res judicata and binds the parties and the court.

 

[7] Arguments that a  decision regarding land is contrary to Samoan  custom or violative of treaty should  be presented to the court deciding the case at the time that it is heard, and do not serve as a basis for later reversing a decision that has been fully litigated.

 

[8] Res judicata is a rule of substantive law and not of practice or procedure.

 

[9] Res judicata cannot be set aside by employing A.S.C.A. § 3.0242(b).

 

[10] The sa`o of a family need not personally appear in order for the family to defend claims made against its communal land.

 

[11] Where family was represented by both village matai and sister of sa`o, and advised by a capable legal practitioner and family member, it was a party to previous land case and bound by that decision. [1ASR3d208]

 

[12] The purpose of title registration is to record the ownership of surveyed land for the world to know.

 

[13] Any claimant who fails to object to the offer of registration of title to land by the end of the 60-day notice period loses his claim and is forever bound by the subsequent registration, in the absence of fraud or similar circumstance.

 

[14] Absence of a family’s sa`o from the territory during 60-day notice period does not excuse the family’s failure to object to an offer of registration of title to its land.

 

[15] A party is entitled to recover reasonable attorney’s fees and actual costs from a claimant who unsuccessfully relitigates land titles.

 

[16] Although Rule 11 sanctions are normally imposed against an attorney, they may be imposed against a party when warranted.

                                   

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

 

Counsel:  For Plaintiff/Claimant Alai`asa Filifili Mailei for the Alai`asa Family, Tautai A.F. Faalevao

For Defendant/Objector Fanene Aipopo Laulu for the Fanene Family, Defendant Leopole Faumuina, and Objector Tuitoga Puailoa Fanene, Cherie Shelton Norman

For Defendant/Objector Tuia`ana Moi for the Tuia`ana Family, Asaua Fuimaono

For Objector Moea`i Uilata for the Moea`i Family and Defendant Moea`i Family, Aumoeualogo Salanoa Soli

For Objector Seigago E. Scanlan, Pro Se

For Defendant/Objector Tauiliili Pemerika and Objectors Iseulaolemoana S. Sotoa, Legal Representative of the Estate of  Salofi R. Sotoa, Tuitoga Puailoa Fanene, and Lauma Valoaga V. Moananu, Charles V. Ala`ilima

For Defendant/Objector Fonoti Tafa`ifa, Afoa L. Su`esu`e Lutu

These six consolidated actions came regularly for trial on January 6, 1997, and concern the ownership of certain lands. Plaintiff/claimant Alai`asa Filifili Mailei for the Alai`asa family (collectively "Alai`asa") proceeded first and rested on January 10, 1997.  All other parties then moved for involuntary dismissal of the Alai`asa claims.  These parties, other than defendant/objector Tuia`ana Moi for the Tuia`ana family (collectively “the Tuia`ana”), objector/defendant Moea`i Uilata for the Moea`i family (collectively “the Moea`i"), and objector Seigafo E. Scanlan (for the Seigafo family) (collectively “the Seigafo”), also asked for assessment of [1ASR3d209] attorney’s fees and costs against the Alai`asa or for sanctions of this nature under T.C.R.C.P. 11 against Alai`asa Filifili or his counsel, or both.  The Fanene also requested imposition of punitive damages against the Alai`asa.

 

The parties orally argued the motions on January 14, 1997.  The court took the motions under advisement and established a schedule for filing further written arguments on the motions. The court has examined the evidence and weighed counsel’s oral and written arguments.  We will, based on the findings of fact and for the reasons set forth below, grant the motions to dismiss relating to lands previously adjudicated by this court as owned by defendant/objector Fanene Aipopo Laulu for the Fanene Family (collectively "Fanene"), defendant/objector Fonoti Tafa`ifa (for the Fonoti family) (collectively “the Fonoti”), defendant/objector Tauiliili Pemerika (“Tauiliili”), objector Iseulaolemoana S. Sotoa, legal representative of the Estate of Salofi R. Satoa (“Satoa”),[1] and the Tuia`ana.[2]  We will decline, in our discretion under T.C.R.C.P. 41(b), to render any judgment with respect to the Moea`i’s motion to dismiss until the close of all the evidence.  We will also order the Alai`asa to pay reasonable attorney’s fees and costs to the successful movants, and issue an order to Alai`asa Filifili and his counsel to show cause why either or both of them should not be sanctioned for violations of T.C.R.C.P. 11 in prosecuting these actions.  We will not impose punitive damages.

 

Findings of Fact

 

The land at issue ("parcel A") consists of approximately 176.85 acres and is located in part of the area known as Malaeimi on the Island of Tutuila, American Samoa.  Parcel A is bounded on the north side in part by the main east-west public highway and in part by another parcel of land ("parcel B"), comprised of about 62.4 acres, lying between the main highway and parcel A.  The boundaries on the remaining sides of parcel A are roughly defined by the neighboring villages of Nu`uuli to the east, Faleniu to the west and Tafuna to the south.[3]  [1ASR3d210]

 

On June 13, 1995, Alai`asa filed an action, LT No. 25-95, for an injunction preventing the Fanene, the Tuia`ana, the Moea`i,[4] the Fonoti, and Tauiliili from interfering with his survey of parcel A.  The court's order, entered on July 25, 1995, upon these parties' stipulation, authorized Alai`asa to proceed with this survey without interference and to file a title registration claim.

 

The Alai`asa, Tuia`ana, Moea`i and Seigafo titles are matai of the Village of Faleniu.  The Fanene title is a matai of the Village of Nu`uuli.

 

On October 27, 1995, Alai`asa filed the title registration claim with the Territorial Registrar.  The Fanene, the Tuia`ana, the Moea`i, the Fonoti, Tauiliili, and Sotoa, objector Tuitoga Puailoa Fanene (a member of the Fanene but for the Puailoa family of Nuuuli), and objector Lauma Valoaga V. Moananu (for the Moea`i family) filed objections to Alai`asa's proposed title registration.  The Territorial Registrar referred the matter to the Secretary of Samoan Affairs for dispute resolution proceedings, pursuant to A.S.C.A. § 43.0302.  On July 17, 1996, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute, and the matter was submitted to the Land and Titles Division of the High Court for judicial determination.

 

The court consolidated six actions in due course.  Originally, we included LT No. 26-96 in the consolidation, but later we dismissed this action and referred the matter to the Land Commission for completion of the administrative process applicable to the proposed registration of the lease of communal land involved in that action.  On December 30, 1996, we delayed ruling on Alai`asa's motion to set aside the dismissal without prejudice in 1987 of LT No. 34-81, involving a portion of parcel A and the same or related parties, and to add this action to the consolidation, pending developments in the trial scheduled to begin only one week later.

 

The rulings on these motions to dismiss depend upon the legal impact of prior judicial decisions and title registrations.  Hence, we will only briefly summarize Alai`asa's evidence during his case-in-chief on the substance of his title claim.      

 

The Alai`asa presented testimony by several witnesses that the Alai`asa own parcel A as communal land as a result of original possession and [1ASR3d211] cultivation long before 1900.  Some of these witnesses appear to include parcel B as the Alai`asa’s communal land as well.  However, the Alai`asa has not claimed parcel B by the pleadings and arguments.  The Alai`asa also provided supporting documents evidencing a sale in 1888 by the Alai`asa of some nine acres of land in the Malaeimi area, but without clear proof of the exact location of this parcel and rejection in 1894 of the Fanene's asserted ownership of these nine acres by the Land Commission and Supreme Court of Samoa in Western Samoa, which then had jurisdiction over controversies involving land in Tutuila.

 

We take judicial notice of the decisions of this court in the consolidated actions in Fanene v. Magalei, LT Nos. 64-77, 74-77, 54-77, 61-74, 60-77, 66-77, 73-77, 1090-90, 62-77, 63-77 and 72-76 (Land & Titles Div. 1980) ("the 1977 actions"), bearing directly upon the title to parcel B and various sub-parcels within parcel A.  We also take judicial notice of the decision of this court in the earlier action, Tuutau v. Fanene, Case No. 1-1931 (1932) (“Case No. 1-1931”), dealing definitively with the title to parcel B.  We will relate these parcels and sub-parcels to exhibit No. 12 or exhibit No. 14, or both, to particularize our findings for the parties and their counsel.[5]

 

This court decided in Case No. 1-1931 and reconfirmed in the 1977 actions that the Fanene own parcel B as communal land.  Parcel B is shown on exhibit No. 12 as containing approximately 62 acres and on exhibit No. 14 as containing approximately 62.4 acres.  Parcel B is registered with the Territorial Registrar as the Fanene’s communal land.

 

This court also adjudicated ownership of our designated sub-parcels of parcel A in the 1977 actions, as follows:

 

1.  Sub-parcel A-1.  The Fanene were awarded as communal land the area to the east of parcel B.  This area is displayed on exhibit 14, marked parcel "1" and is about 85.402 acres.  We cannot ascertain from the evidence whether the Fanene has registered sub-parcel A-1. 

 

2.  Sub-parcel A-2.  The Fanene were awarded as communal land the area bordering the southwest side of parcel B.  This area is depicted on exhibit No. 12 in light blue and on exhibit No. 14 as parcel "2" and encompasses about 4.418 acres.[6]  Leopole, a member of the Fanene, has the house on [1ASR3d212] sub-parcel A-2 that is the subject of the Alai`asa encroachment claim in LT No. 12-90.

 

3.  Sub-parcel A-3.  The Fonoti were awarded as communal land the area immediately south of sub-parcel A-1.[7]   This area is shown on exhibit No. 12 below a solid blue line and is mostly shaded light blue.[8]  Sub-parcel A-3 is registered as the Fonoti’s communal land.

 

4.  Sub-parcel A-4.  Tauiliili owns as individually owned land the area contiguous to the southwest portion of sub-parcel A-3.  This area is depicted on exhibit No. 12 in light green and contains approximately 24.4 acres.  A portion of sub-parcel A-4 actually lies outside of parcel A.  Sub-parcel A-4 is registered as Tauilili’s individually owned land.

 

5.  Sub-parcel A-5.  Sotoa was awarded as individually owned land the area immediately next to the northwest portion of sub-parcel A-4.  This area is presented on exhibit No. 12 in light yellow and consists of approximately 21.15 acres.  Most of sub-parcel A-5 is registered as Sotoa’s individually owned land. 

 

6.  Sub-parcel A-6.  Uiva Te`o, who is not a party to the present actions, was awarded as individually owned land the area that borders portions of the west side of sub-parcel A-4 and south side of sub-parcel A-5.  This area is shown on exhibit No. 12 in light blue.  A small triangular shaped portion at the northeast corner of sub-parcel A-6, lodged between sub-parcel A-4 [1ASR3d213] and sub-parcel A-5, is within parcel A.  Sub-parcel A-6 is registered as Uiva Te`o’s individually owned land.

 

7.  Sub-parcel A-7.  The Tuia`ana were awarded as communal land the area directly adjacent to the northern boundary of sub-parcel A-5 and to the western boundary of sub-parcel A-2.[9]  This area is displayed on exhibit No. 12 unshaded.  This area is also shown on exhibit No. 16.  However, it is not yet clear how the survey in exhibit No. 16 comports with sub-parcel A-8, identified below.  Sub-parcel A-7 is not registered.

           

Based on Case No. 1-1931 and the 1977 actions, this court has adjudicated title to all but one small area within parcel A.  This area is an irregular crescent shaped area, which we designate as sub-parcel A-8, and is shown on exhibit No. 12, bounded on the northeasterly side by sub-parcel A-7, on the south side by sub-parcel A-5, and on the west side by the western boundary of parcel A, and is partly unshaded and partly shaded light blue.  We are also unaware of any title registration of this area, though Kolone Moea`i Maui`a is indicated as the owner of the southern portion of light blue portion.  The Alai`asa, the Tuia`ana, the Moea`i and the Seigafo, and perhaps others, may have outstanding competing claims to some or all parts of sub-parcel A-8.

 

The named parties to Case No. 1-1931 and the 1977 actions and notice given in the 1977 actions are important factual factors in deciding the motions to dismiss.    

 

"Alaia of Faleniu," representing Alai`asa, was a party in Case No. 1-1931.  He objected to the Fanene's proposed title registration of parcel B on February 18, 1931, and withdrew his objection on August 24, 1932, before the trial.  He was not present at the trial on September 7, 1932. 

           

"All of the Matai of Faleniu Village" were parties as a group to the 1977 actions.  Alai`asa Filifili and his brother, who then held the Alai`asa title, were residing outside of American Samoa during the pendency of the 1977 [1ASR3d214] actions.  However, their sister Fanoia Alai`asa Pagofie, was residing in the Territory in 1977.  She was then age 40 years, a school teacher, healthy and strong, and apparently the only adult member of the immediate family here.

 

Tuana`itau Tuia discussed the 1977 actions with Pagofie.  He was then an experienced, and is still an active, legal practitioner in land and matai title judicial controversies.  He testified at the present trial as a member of the Alai`asa.  Pagofie contributed funds to the Faleniu matai's cause in the 1977 actions and effectively joined this group party on Alai`asa's behalf.[10]  Tuana`itau took Pagofie to the courthouse to testify in the 1977 actions.  However, upon arrival, she was told that Tuia`ana Moi was selected to testify on behalf of the Faleniu matai.  She did not testify.

 

On May 5, 1976, before the Territorial Registrar, the Fanene offered to register the title to the land adjudicated in the 1977 actions.[11]  The Territorial Registrar publicly noticed the offer from May 6 to July 7, 1976, a period of 63 days. On July 8, 1976, the Registrar referred the offer to the Secretary of Samoan Affairs for dispute resolution proceedings under 11 A.S.C. 1002 (1973 ed.) (now A.S.C.A. § 43.0302). The list of objectors, including the Faleniu matai, comports with the eventual parties to the 1977 actions. The Secretary, after hearings, issued the jurisdictional certificate of irreconcilable dispute on September 15, 1977, and the matter was referred to this court for judicial determination.

 

On March 23, 1977, at a pre-trial conference, the parties attending agreed that the court would issue a public notice, distributed among various news media and American Samoa Government offices, of the consolidated cases and trial date on October 3, 1977, and of the parties’ need to register lands by certain dates. The notice was published in the Samoa News and Government News Bulletin at the very least.

 

Discussion

 

1.  The Procedural Issue  [1ASR3d215]

 

Movants moved at the close of the Alai`asa’s case “for dismissal on the ground that upon the facts and the law [the Alai`asa have) shown no right to relief.” T.C.R.C.P. 41(b). Rule 41(b) mirrors former F.R.C.P. 41(b), now embodied in F.R.C.P. 52(c) and renamed a “Judgment on Partial Findings.”

 

The Alai`asa counter that the Federal Rules of Civil Procedure are inapplicable in proceedings before the court’s Land and Titles Division. A.S.C.A. § 3.0242(a). They urge that in the interests of justice, we should use our discretion, under A.S.C.A. § 3.0242(b), not to strictly employ T.C.R.C.P. 41(b), and require movants to introduce evidence in support of their respective land claims before deciding this case.[12]

 

[1] The court has, as further directed by A.S.C.A. § 3.0242(a), prescribed special rules for land and titles matters. T.C.R.L.T. 1-8.  The court has also emulated the Federal Rules of Civil Procedure, as contemplated by A.S.C.A. § 43.0201(a), to govern civil proceedings generally.  There is no restriction by either statute or court rule on using the principles underlying the Federal Rules in land and titles matters. The clear intent of A.S.C.A. § 3.0242 read as a whole, along with A.S.C.A. § 43.0304 on interlocutory orders, is to allow the court flexibility to fashion practice and procedure in land or title cases as will facilitate proper adjudication of these matters, not to absolutely foreclose the use and guidance of the concepts of the Federal Rules.

 

[2] The Land and Titles Division has previously adopted the principle underlying T.C.R.C.P. 41(b) and stated that “justice and convenience [are] disserved by requiring the many defendants in this case to present evidence and arguments in the slim hope that the plaintiff’s case would be struck by the evidentiary equivalent of lightning.” See Willis v. Fai`ivae, 10 A.S.R.2d 121, 140-142 (Land & Titles Div. 1986). We find no basis for disregarding this precedent. The Alai`asa have had a fair trial and opportunity to present their case. Thus, we will grant a movant’s motion to dismiss at the close of a claimant’s case if the claimant cannot establish in favor of his position even at this point in the trial a preponderance of the evidence. Id. at 141.

 

2.  The Constitutional Protection of Land  [1ASR3d216]

 

Article I, section 3, of the Revised Constitution of American Samoa shields Samoans from “alienation of their land and destruction of the Samoan way of life and language.” This constitutional policy has unwaveringly endured the entire 97-year history of American Samoa and is a peerless cornerstone of public doctrine in the Territory.  See Cession of Tutuila and Aunuu, April 17, 1900, Chiefs of Tutuila—United States, and Cession of Manu’a Islands, July 16, 1904, King and Chiefs of Manu`a-United States.

 

The Alai`asa seek to enlist this constitutional provision to support their land claims in this case, and argue that article I, section 3, commands the court to review land disputes with a biased eye in favor of communal land claims and against claims of individual ownership.  They suggest that the constitutional provision mandates that the court presume all land to be communal land, and to “shift the burden” of persuasion to those with claims of individual ownership.  The Alai`asa would have us award sub-parcel A-4 and sub-parcel A-5 to the Alai`asa, even though they are registered as the lands Tauiliili and Sotoa, because these sub-parcels were registered as “individually owned land.” In other words, the Alai`asa contend that the constitutional policy statement requires this court to invalidate any and every registration of individually owned land.[13]

 

[3] While we concur that article I, section 3, is an important statement of policy, we find nothing in that constitutional provision which prohibits the alienation of communal land to other Samoans, nor limits the categories of Samoan land ownership. The concept of individually owned land was introduced by Samoans, see Fania v. Sipili, 14 A.S.R.2d 70, 71-72 (Land & Titles Div. 1990), condoned by the High Court, see Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40, 46 (App. Div. 1991), and continuously sanctioned by the Legislature of American Samoa via statute since at least 1949.  See A.S.C. § 905 (1949 ed.); A.S.C. §§ 9.0103, 10.0112, 12.0201 (1961 ed.); 27 A.S.C. §§ 402, 1201 (1974 ed.); A.S.C.A. §§ 37.0101, 37.1502 (1981 ed.); A.S.C.A. §§ 37.0101, 37.1502 (1992 ed.)

 

[4] Like all custom and cultures, Samoan custom and culture is fluid, alive, evolving, and adapting to changing conditions. Samoan society has accepted individually owned land as a legitimate form of ownership in the twentieth century. Therefore, we reject the proposition that individually owned land is inconsistent with article I, section 3, of the Revised Constitution, refuse to adopt in land disputes any requirement of “burden shifting” to the detriment of those with claims of individual [1ASR3d217] ownership of Samoan land, and decline to contradict precedent and to effectively abolish individual ownership of land.

 

Instead, we turn to two other legal principles that are determinative in this case.

 

3.  Res Judicata

 

[5] The Alai`asa are attacking the validity of the 1977 actions, and perhaps Case No 1-1931.  The gravamen of the movants’ motions for dismissal is the application of res judicata, the legal principle barring relief on previously adjudicated issues, when the finality of the judgment is the paramount interest.  This court has adjudicated that the Fanene, the Fonoti, Tauiliili, Sotoa, or the Tuia`ana own almost all of the land now at issue in the 1977 actions and Case No. 1-1931.[14]  “The need for certainty with respect to land titles warrants a great deference to the need for finality of judgments.” Reid v. Puailoa, 23 A.S.R.2d 144, 146-47 (Land & Titles Div. 1993) (quoting Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987)).

 

[6] A judgment in a prior case, between the same parties, or those in privity with them, and involving the same land title issue, is res judicata and therefore binds the parties and the court, notwithstanding the losing party’s contention that the judgment did not accord with Samoan custom. Aoelua v. Tela, 10 A.S.R.2d 20 (Land & Titles Div. 1989), aff’d 12 A.S.R.2d 40 (App. Div. 1989); Puailoa v. Estate of Lagafuaina, 12 A.S.R.2d 84, 85 (Land & Titles Div. 1986), aff’d 19 A.S.R.2d 40, 46 (App. Div. 1991).

 

[7] Arguments that the prior decision was contrary to custom and violative of treaty either were or should have been presented to the court deciding that case, and it would be totally contrary to the principles of finality underlying the judicial process to relitigate a matter that has [1ASR3d218] already been fully litigated. Tela v. Aoelua, 12 A.S.R.2d 40, 42 (App. Div. 1989)

 

[8-9] The Alai`asa raise three points deserving comment.  First, they assert that res judicata is a common law concept that is foreign and unsuitable to the Samoan legal system.  Res judicata is a rule of substantive law and not of practice or procedure.  Willis v. Willis, 4 A.S.R.2d 144, 145 (Land & Titles Div. 1987).  The statute, A.S.C.A. § 3.0242(b), permitting the court to subordinate rules of practice or procedure to exigencies of justice and convenience cannot be used to set aside the postulate of res judicata and does not of itself empower the court to overturn a final judgment. The Alai`asa have failed to provide any convincing rationale for ignoring the interests of the finality of judgments in our system.

 

Second, the Alai`asa argue that they were not parties to the 1977 actions. They claim that only the family sa`o having pule or power over management of their communal lands can legally be a party to litigation, and that their sa`o, Alai`asa Filifili’s brother, was residing outside of American Samoa and was not, and could not be made, a party to the 1977 actions.

 

[10-11] Contrary to the Alai`asa’s assertion, no statute or judicial decision requires that the sa’o personally appear and defend claims against the family’s communal land. Any family member can object to title registrations and defend the family’s interests in land.  Tavaseu v. Paulo, 3 A.S.R.2d 97, 98 (App. Div. 1986).  Here the Alai`asa’s interests were represented in the 1977 actions by the matai of Faleniu village and by his sister Fanoia Alai`asa Pagofie.  Moreover, Fanoia was then advised by Tuana`itau Tuia, who was and is a member of the Alai`asa family and an able legal practitioner in land controversies.  Therefore, the Alai`asa was a party to the 1977 actions, and Alai`asa Filifili, as the present sa`o, and all present family members are in privity with the Alai`asa as a party to the 1977 actions, for purposes the res judicata doctrine.[15]

 

Lastly, the Alai`asa contend that there was indeed fraud in the 1977 actions and therefore res judicata does not apply.  The court has permitted attacks on judgments predicated on extrinsic mistake, surprise, excusable neglect, fraud, or similar circumstances, as well as facial nullity. See Willis, 4 A.S.R.2d at 145.  The Alai`asa’s claim of fraud appears to be based on the facts that during the 1977 actions, Tuia`ana [1ASR3d219] Moi represented the Faleniu matai, and that Fanoia Alai`asa Pagofie was told she would not need to testify.  These facts, without more, do not prove fraud by a preponderance of the evidence.[16]

 

Thus, the A1ai`asa’s arguments that somehow res judicata does not apply in the present actions are specious at best. The principle is applicable and protects the property interests in parcel B awarded the Fanene in Case No. 1-1931 and reconfirmed in the 1977 actions, and in sub-parcel A-1 and sub-parcel A-2 awarded to the Fanene, in sub-parcel A-3 awarded to the Fonoti, in sub-parcel A-4 awarded to Tauiliili, in sub-parcel A-S awarded to Sotoa, and in sub-parcel A-6 awarded to Uiva Te’o in the 1977 actions. “There must be an end to litigation someday . . . .” Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40, 47 (App. Div. 1991) and Nouata v, Pasene, 1 A.S.R.2d 24, 35 (App. Div. 1980) (both quoting Ackerman v. United States, 340 U.S. 193, 198, 95 L. Ed. 207, 211 (1950)).

 

4.  Waiver of Claims

 

[12-13] The 1977 actions arose out of the Fanene’s offer on May 5, 1976, to register 265.9 acres of the land as the Fanene’s communal land.  This acreage coincides approximately with parcel A and parcel B combined. The purpose of title registration, pursuant to A.S.C.A. §§ 37.0101-37.0111, is to record the ownership of surveyed land for the world to know.  Registration has in rem effect, and any claimant who fails to object to the offer of registration by the end of the 60-day notice period prescribed by A.S.C.A. § 37.0103 loses his claim and is forever [1ASR3d220] bound by the subsequent registration, in the absence of fraud or similar circumstances.  Tufono v. Vaeao, 13 A.S.R.2d 47, 48 (Land & Titles Div. 1989); Pefu v. Sipili, 14 A.S.R.2d 70, 77 (Land & Titles Div. 1990).

 

[14] Once again we take note that the Faleniu matai timely objected to the Fanene’s proposed title registration. However, assuming that the Alai`asa sa`o in 1976-1977 is not included in Faleniu matai’s number, the Alai`asa’s failure to object within the 60-day notice period resulted in the Alai`asa’s waiver and loss of any claim they had to the all portions of parcel A within the 265.9 acres.  Tufono, 13 A.S.R.2d at 48.  The Alai`asa sa`o’s absence from American Samoa at that time does not excuse the Alai`asa’s failure to object.  Ifopo v. Siatu`u, 12 A.S.R.2d 24, 28 (App. Div. 1989); Meatua v, Taliu, 13 A.S.R.2d 13, 14-15 (Land & Titles Div. 1989); Vaimaona v. Tuitasi, 12 A.S.R.2d 68, 71 (Land & Titles Div. 1989).  Thus, the Alai`asa are bound by the adjudications in the 1977 actions, whether or not they were parties to that action.[17] 

 

5.  Attorney’s Fees and Costs and Rule 11 Sanctions

 

The Aiai’asa have initiated litigation by these consolidated actions challenging the previously adjudicated ownership of large parcels of land.  Most of the owners awarded these lands have also registered title to their lands. The Alai`asa’s causes of action were without merit ab initio. They have created clouds on the owners’ titles and disparaged the court’s decisions, at least for the duration of this litigation.  Their actions have seriously disrupted the order intended under our land tenure system. They have wasted judicial resources.  They have caused the landowners considerable and enduring emotional distress and expenditure of substantial and unnecessary time and money in defending their titles. [1ASR3d221]

 

The undesirable effects of relitigating claims are unnecessary.  They are readily avoidable if attorneys and their clients thoroughly research and clearly think through the issues.  We need to send a message to attorneys and their clients that this kind of litigation is inappropriate and will bring serious consequences.

 

[15] A party is entitled to recover reasonable attorney’s fees and actual costs from a claimant who unsuccessfully relitigates land titles.  See Taulaga v. Patea, 4 A.S.R.2d 186, 187 (Land & Titles Div. 1987).  Hence, we will direct the Alai`asa to pay reasonable attorney’s fees and costs to the Fanene, the Fonoti, Tauiliili, and Sotoa, and will assess the amounts upon verified application by these parties.

 

We will also address the motion for sanctions upon an attorney or a party for violations of the standards established by T.C.R.C.P. 11(b), which states, in relevant part:

 

(b)  Representations to Court.  By presenting to the court . . . a pleading, written motion, or other paper, an attorney . . . is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, -­ -

(1)  it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2)  the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of law;

(3)  the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable inquiry; . . . .

 

Rule 11(c) allows and provides procedures for imposition of the sanctions, including monetary sanctions.  When sanctions are proposed on the court’s initiative, the attorney or party at risk must be given an opportunity to show cause why Rule 11(b) was not violated.

 

[16] We believe that there is sufficient evidence of possible violations of Rule 11(b)(1), (2), or (3) to warrant an order to show cause against Alai`asa Filifili and his counsel.  Even though it is the attorney whose signature violates Rule 11, it may be appropriate under the circumstances of the case to impose sanctions on a client.  See Browning Debenture Holders Committee v. DASA Corp., 560 F.2d 1078 (2d Cir. 1977).  After a hearing on this issue, we will decide what, if any, sanctions are appropriate. We give notice to Alai`asa Filifili and his counsel, however, that if we find that sanctions are in order, we will seriously consider [1ASR3d222] holding both of them jointly and severally liable for the amount of the attorney’s fees and costs set by the court as payable by the Alai`asa.[18]

 

Order

 

1. We reconfirm the Fanene’s title as communal land to parcel B, as awarded in Case No, 1-1931 and reconfirmed in the 1977 actions. We also reconfirm the Fanene’s title as communal land to sub-parcel A-1 and sub-parcel A-2, the Fonoti’s title as communal land to sub-parcel A-3, Tauiliili’s title as individually owned land to sub-parcel A-4, Sotoa’s title as individually owned land to sub-parcel A-5, Uiva Te`o’s title as individually owned land to sub-parcel A-6, and the Tuia`ana’s title as communal land to sub-parcel A-7, as awarded in the 1977 actions.

 

2. We dismiss LT Nos. 76-90, 77-90, 78-90, and 14-96 with prejudice as these actions relate to parcel B, sub-parcel A-1, sub-parcel A-2, sub-parcel A-3, sub-parcel A-4, sub-parcel A-5, and sub-parcel A-7.  These dismissals operate as an adjudication on the merits against the Alai`asa on their claim, if any, to register the title as communal land to parcel B, and on their claim to register the title as communal land to these sub-parcels within parcel A, and in favor of the Fanene, the Fonoti, Tauiliili, and Sotoa, and the Tuia`ana on their respective titles to these lands. Dismissal is unnecessary as to sub-parcel A-6, since Uiva Te`o is not a party to any of these actions.

 

3. The Territorial Registrar shall register sub-parcel A-1 and sub-parcel A-2, shown respectively as “Parcel 1” and “Parcel 2” in the surveys on exhibit No. 14, in the Fanene’s name as communal land, in accordance with A.S.C.A. § 37.0104(b) and (c).  For this purpose, the Fanene shall provide the Registrar with a copy of Survey Drawing No. 784-8-94 (exhibit No. 14), and shall ensure that the surveyor has placed boundary monuments on the land and has certified that the survey complies with all requirements provided by the laws and administrative rules of American Samoa. The Fanene shall pay all costs associated with the survey and registration. [1ASR3d223]

 

4. We will not direct the Territorial Registrar to register sub-parcel A-7 in the Tuia`ana’s name as communal land at this time. The Tuia`ana shall, at their expense, file with the court a survey that depicts sub-parcel A-7, complies with all statutory and regulatory survey requirements, and clearly defines the boundaries of sub-parcel A-7 in relation to sub-parcel A-2, sub-parcel A-8 and any other adjacent parcels of land.

 

5. We dismiss LT No. 12-90 with prejudice, the action involving the Leopole’s alleged encroachment on sub-parcel A-2.  This dismissal operates as an adjudication on the merits against the Alai`asa and in favor of the Fanene and Leopole.

 

6. We dismiss LT No. 25-96 with prejudice. This action is now moot.

 

7. We defer ruling on the motions to dismiss LT Nos. 76-90, 77-90, 78-90, and 14-96 insofar as these actions relate to sub-parcel A-8, until the close of all the evidence, and will then render a judgment on the issues presented. The trial on these actions with respect to any claims to sub-parcel A-8 by the Alai’asa, the Tuia`ana, the Moea`i, the Seigafo, or any other party will reconvene on September 8, 1997, at 9:00 a.m.

 

8. We further postpone the Alai`asa’s motion to set aside the dismissal without prejudice of LT No. 34-81, pending the close of all the evidence relating to sub-parcel A-8.

 

9. We award reasonable attorney’s fees and costs that the Aiai’asa must pay the Fanene, the Fonoti, Tauiliili, Sotoa, and the Tuia`ana.  We will conduct a hearing on August 18, 1997, at 9:00 a.m., on the amount of these attorney’s fees and costs.  We direct Alai`asa Filifili and the Alai`asa’s counsel, Tautai A.F. Faalevao, to appear at that hearing to show cause, if any they have, why either or both of them should not be sanctioned for violations of T.C.R.C.P. 11(b)(1), (2), or (3) in prosecuting these actions.

 

10. We deny the Fanene’s request for punitive damages against the Alai`asa.

 

It is so Ordered.

 

 

*********



 

 



[1] The caption in LT No. 14-96 originally named Salofi R. Sotoa, who is deceased, as a party.  His estate, by Iseulaolemoana S. Sotoa as legal representative, actually filed the objection with the Territorial Registrar.  Accordingly, on our own motion, we corrected the caption in LT No. 14-96 to reflect these facts.

[2] We note for counsel’s benefit that based on out analysis of the motions to dismiss, in hindsight at least, these movants could have prevailed on motions for summary judgment.  Although the motions for summary judgment would require elaborate documentary support in these actions, the motions would have avoided several days of trial.

[3] The Malaeimi area also extends to the north from the main east-west public highway and is bounded there by the villages of Nu`uuli to the east, Faleniu to the west and Fagasa to the north.  Malaeimi was once but is no longer legally recognized as a village. Matai of the four surrounding villages and Faleniu assert from time to time claims affecting Malaeimi, and the precise traditional boundaries of these villages and Malaeimi are still uncertain.  See Puailoa v. Estate of Lagafuaina, 12 A.S.R.2d 54 (Land & Titles Div. 1989).

[4]  When LT No. 25-95 was filed, objector Moea`i Uliata was deceased.  He was the head matai or sa`o of the Moea`i family when LT No. 77-90 was filed.  The family has not selected the successor sa`o.

[5]  We are not definitively defining boundaries by metes and bounds, or by other means, through our references to exhibits Nos. 12 and 14.  We immediately have before us neither issues over any existing boundary disputes among the parties nor adequate evidence to decide any such controversies.

[6]  The Alai`asa also claims this specific area as communal land in LT No. 78-90, as well as part of Parcel "A" as a whole in LT No. 14-96.  This area contains 4.41 acres according to the survey filed in LT No. 78-90.  See exhibit No. 4A.

[7] We do not approximate the size of the Fonoti's award from the evidence before us.  The Fonoti claimed approximately 34.04 acres in LT No. 61-77, 4.33 acres in LT No. 66-77, and 46.79 acres in LT No. 60-77, a total of 79.04 acres, but were awarded a slightly lesser amount when the court found that Fanene and the Fagaima family owned portions of the 34.04 acres.

[8] The solid blue boundary line between sub-parcel A-1 and sub-parcel A-3 was established by agreement between the Fanene and the Fonoti.  See exhibit No. 13.  Apparently, the Fonoti have registered only the shaded light blue area in sub-parcel A-3 with the Territorial Registrar.  A small triangular area near the northwest corner of the Fonoti's registered land apparently conflicts with the agreement reached by the Fanene and the Fonoti.  A larger area at the west end of the Fonoti's registered land overlaps with Sotoa's registered land (our designated sub-parcel A-5).  Another larger area at the southwest end of the Fonoti's registered land overlaps with Tauiliili's registered land (our designated sub-parcel A-4).  These mutually encroaching areas are depicted on exhibit No. 12.  As previously indicated, however, we are not presently examining overlay issues.

[9]  The Alai`asa also separately claim as communal land in LT Nos. 76-90 and 77-90 two specific plots that coincide at least partially with this area.  The first plot, containing about 4.16 acres per the survey filed in LT No. 76-90, lies across and appears to be entirely within the northern part of this area.  See exhibits Nos. 3 and 3A.  The second plot, containing about 2.98 acres per the survey filed in LT No. 77-90, lies across but appears to extend beyond the southern part of this area.  See exhibits Nos. 5 and 5A.  Part of this area lies between the first and second plots and appears to contain several more acres.  The two plots and the part in between are included in Alai`asa's entire claim in LT No. 14-96, which we have designated as Parcel A.

[10] Pagofie was a party in Tuia`ana v. Pagofie, LT No. 34-81, which this court dismissed without prejudice in 1987, on its own motion, for lack of prosecution.  LT No. 34-81 generally dealt with the land in sub-parcel A-6 and sub-parcel A-7, and dismissal of LT No. 34-81 could result in a favorable ruling for Tuia`ana in any subsequent title litigation.  Hence, the Alai`asa moved to set aside this dismissal and consolidate LT No. 34-81 with the present actions.  We deferred deciding this motion, on December 30, 1996, a week before the trial, pending developments during the trial.    

[11] The offer was for 265.9 acres. Again, however, we are not presently dealing with precise acreage and are not making any attempt to equate the adjudicated acreage with the actual size of either this offer, parcel A, or parcel A and parcel B combined.

[12] Section 3.0242(b) reads:

In any matter of practice or procedure not provided f or, or where the strict compliance with any rule of practice or procedure may be inequitable or inconvenient, the land and titles division may act in each case in such manner as it considers to be most consistent with natural justice and convenience.

[13] While the Alai`asa stop short of making this sweeping statement, we believe that this is the logical implication of adopting the Alai`asa’s position in this case.

[14] In spite of the fact that much of this land is already registered, the Territorial Registrar accepted the Alai`asa’s offer to registration.  The Territorial Registrar should not process a proffered title registration if the title to the land is already registered.  See the consolidated cases Uilata v. Puailoa, LT Nos. 8-87, 1-91, 39-93, 1-94, and 14-95, Order Remanding Matter to Land Commission and Denying Permission to File Survey with Registrar at 7 (Land & Titles Div. Oct. 17, 1996); A.S.C.A. § 37.0101(a).  We cannot, however, fault the Registrar in this instance. Frankly, we probably misled the Registrar when we signed the stipulated order in LT No. 25-95, authorizing Alai`asa to proceed with his survey of parcel A and with filing his title registration claim.

 

[15] Alai`asa Filifili and all present Alai`asa family members are clearly in privity with the Alai`asa who were parties to Case No. 1-1931. Apparently, the Alai`asa do not contend to the contrary, despite the lingering indications that they still claim to own parcel B.

[16] Alternatively, the Alai`asa bring up the issue of relief under T.C.R.C.P. 60(b).  Rule 60(b), however, provides for a method of direct attack on a judgment by motion in the same action, using essentially the same kinds of grounds available for collateral or direct attack in an independent action.  The present actions are, of course, independent of the 1977 actions and are therefore inappropriately styled as a Rule 60(b) motion.

     Nonetheless, considering the issue raised by a Rule 60(b) motion, for discussion purposes, the Alai`asa’s contention for relief still falls short. The only basis for relief under Rule 60(b) is the suggestion that somehow Tuia`ana Moi committed fraud while representing the Faleniu rnatai in the 1977 actions.  Aside from the lack of any evidence of fraud, intrinsic or extrinsic, a Rule 60(b) motion on this ground must be made not more than one year after the judgment was entered.  One year has long since past since the judgment was entered in the 1977 actions.  The Alai`asa have not indicated the presence of any other Rule 60(b) grounds. See Reid v. Puailoa, 23 A.S.R.2d 101 and 23 A.S.R.2d 144 (Land & Titles Div. 1993) for a comprehensive discussion on the grounds for Rule 60(b) motions.

[17] Because we are rejecting the Alai`asa’s claim to ownership of parcel A, two otherwise important issues are moot for purposes of this order but should be noted.  First, the movants raised and the Alai`asa defended certain irregularities in the Alai`asa’s offer to register parcel A.  We will, for future reference, only state, without detailing those deficiencies, that we are inclined to strictly view the prerequisite requirements for a proper proffer of title registrations, including the mandates on acceptable surveys, and would in any event expect substantial compliance with all requirements.

    Second, the Alai`asa also claimed that their title to parcel A, and perhaps parcel B, could not be defeated by adverse possession, because adverse possession cannot be constitutionally applied to communal land and because of insufficient occupancy periods. We do not need to discuss either argument since they are premised on the Alai`asa’s rejected claim of ownership.

[18] We cannot consider the imposition of the punitive damages the Fanene seeks against the Alai`asa.  Punitive damages to punish and deter are generally appropriate when a person acts outrageously with evil motive or reckless indifference. Restatement (Second) of Torts § 908; but cf. Sialega v. Taito, 3 A.S.R.2d 78-80 (Land & Titles Div. 1986).  However, we can neither decide whether punitive damages are applicable in the present situation nor characterize the Alai`asa’s conduct for that purpose, because the Fanene missed the essential step of pleading punitive damages. 3 B.E. Witkin, California Procedure 2400 (2d ed. 1971).  We do not intend to set any precedent on punitive damages by this decision other than this procedural ruling.

 

Am. Samoa Gov't. v. Dunham


[1] Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." 

 

[2] Article I, § 5 of the Revised Constitution of American Samoa attaches privacy rights only to those individuals who have legitimate expectations of privacy with respect to the searched area. 

 

[3] Where search at issue took place in the bush, and defendant neither asserted nor demonstrated that he had a property or possessory interest in area, he had no standing to complain of warrantless search.

 

[4] Had police violated another individual’s constitutional rights in conducting warrantless search, such violation would not justify exclusion of the seized evidence against the named defendant.

 

Before: KRUSE, Chief Justice, and TUAOLO, Associate Judge.

 

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

              For Defendant, Reginald E. Gates, Assistant Public Defender

 

ORDER DENYING MOTION TO SUPPRESS EVIDENCE

[1ASR3d177]

 

Introduction

 

On March 9, 1997, Department of Public Safety ("DPS") officers received information from Tupu Lelilio that marijuana was being grown and cultivated on a plantation in Nu`uuli.  The officers immediately drove to Nu`uuli and through the bush and up hills for thirty (30) minutes to the location of the suspected marijuana.  They did not attempt to obtain a search warrant for the area.  Upon arrival, the police confronted Anetele`a Atafua ("Atafua"), who appeared to be attempting to conceal the marijuana.  The officers took custody of 16 plants believed to be marijuana, and were told by Atafua that the plants belonged to the defendant, Prince Dunham, Jr. ("Dunham").

 

After forensic analysis of the seized plants tested positive for the active ingredient of marijuana, DPS officers executed an arrest warrant for Dunham on April 1, 1997.  On April 2, 1997, the American Samoa Government ("ASG") filed an information against Dunham charging him with unlawful production of a controlled substance in violation of A.S.C.A. §§ 3.1020, 13.1001(h) and (m), 13.1006, and 46.3207(a)(2).

 

Dunham now moves to suppress the evidence obtained during the search on the Nu`uuli plantation on the ground that the warrantless search violated Dunham's constitutional right against unreasonable searches and seizures.

 

Discussion

 

[1-2] Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."  A key word in this provision is the term "their," which effectively attaches privacy rights only to those who have a legitimate expectation of privacy with respect to the searched area.  See Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 641 (1980); Rakas v. Illinois, 439 U.S. 128, 148, 99 S. Ct. 421, 433 (1978); Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 187 (1969) (stating that the right to be free from an unreasonable search is a "personal right" which "may not be vicariously asserted").

 

[3-4] In the instant case, Dunham has neither asserted nor demonstrated that he has a property or possessory interest in the area of bush land on which the marijuana plants were discovered.  We thus have insufficient information to conclude that Dunham had a legitimate expectation of privacy in the searched area, and we cannot conclude that the search violated Dunham's constitutional rights.  Even if the police violated someone else's constitutional rights by failing to obtain a warrant before [1ASR3d178] conducting the search on the property, such information does not justify exclusion of the seized evidence in Dunham's prosecution.

 

Conclusion and Order

 

Accordingly, the motion to suppress is DENIED.

 

It is so Ordered.

 

**********

Am. Samoa Gov’t”


AMERICAN SAMOA GOVERNMENT,

 

v.

 

ANETELE`A ATAFUA.

 

High Court of American Samoa

Trial Division

 

CR No. 16-97

 

July 28, 1997

 

[1] Article I, Sec. 5 of the Revised Constitution of American Samoa, which guarantees the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures", protects only those with a legitimate expectation of privacy with respect to the area searched.

 

[2] Where a defendant neither asserts nor demonstrates a property or possessory interest in the bush land searched this is insufficient to establish the Defendant had a legitimate expectation of privacy in the area searched or that his constitutional rights were violated.

 

[3] The right to be free from an unreasonable search is a personal right which may not be vicariously asserted.  Even if the police violate someone else's constitutional rights by failing to obtain a warrant before conducting a search on the property, such information does not justify exclusion of the seized evidence in a different person’s  prosecution. 

 

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

 

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

  For Defendant, Reginald E. Gates, Assistant Public Defender [1ASR3d175]

 

On March 9, 1997, Department of Public Safety ("DPS") officers received information from Tupu Lelilio that marijuana was being grown and cultivated on a plantation in Nu`uuli.  The officers immediately drove to Nu`uuli and through the bush and up hills for thirty (30) minutes to the location of the suspected marijuana.  They did not attempt to obtain a search warrant for the area.  Upon arrival, the police confronted the defendant, Anetele`a Atafua ("Atafua"), who appeared to be attempting to conceal plants believed to be marijuana.  The officers took custody of 16 plants.

 

On March 13, 1997, after forensic analysis of the seized plants tested positive for the active ingredient of marijuana, DPS officers executed an arrest warrant for Atafua.  On March 25, 1997, the American Samoa Government ("ASG") filed an information against Atafua charging him with unlawful production of a controlled substance in violation of A.S.C.A. §§ 3.1020, 13.1001(h) and (m), 13.1006, and 46.3207(a)(2).

 

Atafua now moves to suppress the evidence obtained during the search on the Nu`uuli plantation on the ground that the warrantless search violated Atafua's constitutional right against unreasonable searches and seizures.

 

Discussion

 

[1-3] Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This provision protects only those who have a legitimate expectation of privacy with respect to the searched area.  See Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 641 (1980); Rakas v. Illinois, 439 U.S. 128, 148, 99 S. Ct. 421, 433 (1978); Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 187 (1969) (stating that the right to be free from an unreasonable search is a "personal right" which "may not be vicariously asserted"). 

 

[2-3]  In the instant case, Atafua has neither asserted nor demonstrated that he has a property or possessory interest in the area of bush land on which the marijuana plants were discovered.  We thus have insufficient information to conclude that Atafua had a legitimate expectation of privacy in the searched area, and we cannot conclude that the search violated Atafua's constitutional rights.  Even if the police violated someone else's constitutional rights by failing to obtain a warrant before conducting the search on the property, such information does not justify exclusion of the seized evidence in Atafua's prosecution. [1ASR3d176]

 

Conclusion and Order

           

Accordingly, the motion to suppress is DENIED.

 

It is so Ordered.


**********

Am. Samoa Gov’t


 

AMERICAN SAMOA GOVERNMENT,

 

v.

 

ABE SAMANA.

 

High Court of American Samoa

Trial Division

 

CR No. 26-97

 

May 7, 1997

 

[1] According to Art. 1, § 6 of the Revised Constitution of American Samoa, does not state that the term “infamous crime” includes only the crimes of murder and rape and excludes all other crimes

 

[2] A plain reading of this provision of the Revised Constitution suggests that the crimes of rape and murder are merely examples of the much larger category of “infamous crimes.”

 

[3] The term “infamous crime” is contained in the Fifth Amendment to the United States Constitution, which requires an indictment to hold a person “to answer for a capital, or otherwise infamous crime.”  Because of the close nexus between the United States and American Samoa Constitutions, the federal definition of “infamous crime” is the intended definition of “infamous crime” in Art. I, § 6 of the Revised Constitution.

 

[4] “[I]nfamous crimes” includes, among other things, those crimes for which one may be imprisoned for more than one year.

 

[5] First degree assault, possession of a controlled substance, and the production of a controlled substance are “infamous crime[s]” which are not bailable under the Revised Constitution if, a) the presumption is great that the Defendant committed the crime, and, b) releasing the Defendant will constitute a danger to the community. [1ASR3d167]

 

[6] The Revised Constitution requires the Court to determine whether the Defendant is a threat to society, and does not require the heightened standard of proof by “clear and convincing” evidence.

 

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

 

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

  For Defendant, David P. Vargas, Assistant Public Defender

On April 10, 1997, Defendant Abe Samana ("Samana") was arrested on a warrant issued by the District Court on charges of production of a controlled substance, possession of a controlled substance, and assault in the first degree.  The District Court ordered that Samana be held without bail pursuant to Article I, Section 6 of the Revised Constitution of American Samoa.  The District Court reaffirmed its decision at Samana’s initial appearance on April 11, 1997, when Samana moved to continue the preliminary examination on April 14, 1997, and at the preliminary examination on April 16, 1997.  The case was transferred to this court, and on May 2, 1997, this court heard Samana’s renewed claim for release on reasonable bail.

 

Discussion

 

The Revised Constitution of American Samoa provides that

           

. . . All persons shall be bailable by sufficient sureties except where the judicial authorities shall determine that the presumption is great that an infamous crime, which term shall include murder and rape, has been committed and that the granting of bail would constitute a danger to the community. . . .

 

Art. I, § 6.  Thus, under the Samoan Constitution, Samana is entitled to release on reasonable bail unless (1) possession of a controlled substance, production of a controlled substance, or assault in the first degree is an “infamous crime”; (2) the presumption that Samana committed these crimes is great; and (3) Samana’s release on bail poses a danger to the community.

 

1.  Infamous Crimes.

 

[1-2] Samana argues that the Revised Constitution’s language expressly limits the category of “infamous crimes” to murders and rapes.  We disagree.  While the Revised Constitution indicates that the term “infamous crime . . . shall include murder and rape,” the Revised Constitution does not state that infamous crime includes only the crimes of murder and rape and [1ASR3d168] excludes all other crimes.[1]  A plain reading of the constitutional provision suggests that murder and rape are merely examples of the much larger category of “infamous crimes.”

 

[3] The drafters of the Revised Constitution likely borrowed the term “infamous crime” from the Fifth Amendment of the United States Constitution, which requires an indictment to hold a person “to answer for a capital, or otherwise infamous crime.”  U.S. CONST. Am. V.  We hold that because of the close nexus between the United States and American Samoa Constitutions, the federal definition of “infamous crime” is the intended definition of “infamous crime” in Art. I, § 6 of the Revised Constitution.

 

[4] In the federal system, the nature of the crime or the nature of the potential punishment can serve to make a crime “infamous.”  United States v. Armored Transport, Inc., 629 F.2d 1313, 1318 (9th Cir. 1980) cert. denied, 450 U.S. 965 (1980).  More specifically, the federal courts have stated that the class of “infamous crimes” includes, among other things, those crimes for which one may be imprisoned for more than one year.  Barkman v. Sanford, 162 F.2d 592, 592-93 (5th Cir. 1947), cert. denied, 332 U.S. 816 (1947); United States v. Driscoll, 612 F.2d 1155, 1156 (9th Cir. 1980).

 

[5] First degree assault is a Class B felony punishable by a term of imprisonment not less than 5 years and not exceeding 15 years.  A.S.C.A. §§ 46.2301(2), 46.3520(b).  First-time possession of a controlled substance is a class D felony punishable by a term of imprisonment up to 5 years.  A.S.C.A. §§ 46.2301(4), 13.1023.  First-time production of a controlled substance is punishable by a term of imprisonment up to 20 years.  A.S.C.A. §§ 13.1020.  Thus,  first degree assault, possession of a controlled substance, and production of a controlled substance are “infamous” crimes, which, like murder and rape, may not be bailable under Art. I, § 6 of the Revised Constitution if (a) the presumption is great that Samana committed these infamous crimes and (b) releasing Samana on bail constitutes a danger to the community.

 

2.  The strength of the presumption of guilt.

 

Sufficient evidence was presented at the preliminary hearing in support of its charges against Samana.  Samana does not dispute this evidence in his [1ASR3d169] motion to set bail.  Therefore, for purposes of this motion, we determine that the presumption is great that Samana committed the three infamous crimes charged against him.

 

3.  Danger to the community.

 

[6] Samana would like us to deny bail only if there is “clear and convincing evidence” indicating that Samana is a threat to society.  The Revised Constitution only requires the court to “determine” whether Samana constitutes a danger to the community.  Nothing is said about heightened burdens of proof.  However, assuming, without deciding, that we must find manifest evidence that Samana poses a danger to the people of American Samoa, we have no trouble finding that there is, indeed, clear and convincing evidence that Samana will be a danger in society if released on bail. 

 

Evidence presented at the preliminary hearing shows that the defendant fired a handgun at police officers, and concealed that weapon prior to arrest.  Based on this evidence, we are convinced that Samana has access to a gun and is willing to use violent force to evade lawful court orders.  We have no crystal ball to foresee what will happen.  But we are sufficiently concerned about what might happen that we feel compelled to hold Samana without bail pending his trial on the merits.

 

Conclusion

 

Accordingly, Samana’s motion to set reasonable bail is denied.

 

It is so Ordered.

 

**********

 

 



[1]We believe that if the drafters of this constitutional provision had intended to limit the category of non-bailable offenses to murder and rape, they would have included language such as, “. . . except where the judicial authorities shall determine that the presumption is great that murder or rape has been committed . . . .” instead of adopting the term “infamous crime” from the Anglo-American legal tradition.

 

Bank of Hawaii v. Neru


 

BANK OF HAWAII, Plaintiff,

 

v.

 

GEORGE NERU, GENERAL REPAIRS, INC., and

AMERICAN SAMOA GOVERNMENT, jointly and severally, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 65-96

 

April 3, 1997

 

[1] In American Samoa secured transactions are governed by the common law except where those principles have been modified by statute or are otherwise inappropriate to local conditions.

 

[2] In order to perfect a chattel mortgage or other security agreement, the agreement (1) must be in writing signed by the person to be bound and attested to by at least one witness; (2) must be filed with the territorial registrar within 10 days after its execution; and (3) must truly state the consideration upon which it was [1ASR3d52] based or the debt or liability which it was intended to secure, and contain a description of the specific article, articles, or land sold or mortgaged.

 

[3] One cannot grant a chattel mortgage or security interest in property without first having some rights in that property. 

 

[4] The common law rule that title passes as soon as the bargain is struck is ill-suited for determining when the transfer of title occurs in today's sophisticated global economy.

 

[5] Under Uniform Commercial Code § 2-401(2) title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading, (a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but (b) if the contract requires delivery at destination, title passes on tender there.

 

[6] Uniform Commercial Code § 2-401(2) is an appropriate rule for determining when title passes in American Samoa and shall govern this issue.

 

[7] A “buyer in the ordinary course of business” is a U.C.C. term and is defined as a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.

 

[8] Under the U.C.C., a buyer in ordinary course of business takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer know of its existence.

 

[9] Rule regarding “buyer in the ordinary course of business” did not apply against seller-defendants were they were not in the business of selling buses, were not licensed bus dealers, and did not hold themselves out to the general public as bus dealers.

 

[10] Where security holder waited until over eight months after debtor transferred possession and title of chattel to third party to assert its interest, such delay was unreasonable and estopped security holder from asserting said interest. [1ASR3d53]

 

[11] Fact that bus was of a different model year and had different VIN number was of no consequence since all parties knew that particular bus was to be covered by the security agreement.

 

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

 

Counsel: For Plaintiff, Jennifer L. Joneson

              For Defendants George Neru and General Repairs, Inc., Pro Se

              For Defendant American Samoa Government, Cheryl A. Crenwelge, Assistant Attorney General

 

Initially, plaintiff Bank of Hawaii ("BOH") filed this action to recover the unpaid principal balance, interest, attorney's fees and costs on a promissory note executed by defendant General Repairs, Inc. ("General Repairs"), secured by a chattel mortgage in two 1995 Chevrolet mini buses (respectively "bus #1" and "bus #2"), and guaranteed by defendant George Neru ("Neru").  Later, BOH filed an amended complaint to additionally set aside the conveyances of both buses by General Repairs and Neru to defendant American Samoa Government ("ASG"), recover possession of the buses from ASG, and enforce the security agreement.

 

On November 13, 1996, the court entered a default judgment in BOH's favor against General Repairs and Neru for $45,509.12, including prejudgment interest of $5,398.52, post-judgment interest at the rate of 11.75% per year, and an as yet undetermined amount of attorney's fees and costs.  The cause of action against ASG came regularly for trial on January 31, 1997, with both counsel and Neru present.    

 

Facts

 

On November 16, 1994, ASG issued a "Solicitation for Bids," No. 571-95, to procure a 1995 Chevrolet mini bus.  On February 7, 1995, ASG, using this solicitation, awarded General Repairs contracts for the purchase of bus #1 for ASG's Special Education program, Purchase Order No. P50186, and bus #2 for its Vocational Rehabilitation program, Purchase Order P50188.

 

ASG paid General Repairs $16,726.50 of the contract price for bus #1 on or about March 6, 1995, and the balance of $31,063.50 on or about July 14, 1995.  A-Z Bus Sales, Inc. ("A-Z Sales") invoiced bus #1 to General Repairs on May 8, 1995, and shipped the bus from California on a South Seas Steamship Co. Inc. ("South Seas Steamship") vessel.  Bus #1 arrived in American Samoa on or about September 6, 1995, under a bill of lading, dated June 8, 1995, designating "American Samoa Government c/o General Repairs" as the consignee.  Bus #1 was released to ASG, without assessment of any import excise tax.  [1ASR3d54]

 

ASG paid General Repairs $16,027 of the contract price for bus #2 on or about March 17, 1995, and the balance of $29,763 on or about May 15, 1995.  A-Z Sales also invoiced bus #2 to General Repairs on May 8, 1995. However, A-Z Sales actually shipped a 1996 Chevrolet mini bus ("bus #3"), in lieu of bus #2, from California on a South Seas Steamship vessel.  Bus #3 arrived in American Samoa on or about September 16, 1996, under a bill of lading, dated August 29, 1996, designating "American Samoa Government Department of Education" as the consignee.  Bus #3 was also released to ASG, without assessment of any import excise tax.    

 

On May 26, 1995, BOH loaned General Repairs $70,000, payable in full on August 24, 1995.  On the same date, Neru, as president of General Repairs, signed a Security Agreement/Chattel Mortgage ("security agreement") providing BOH security for the repayment of the loan.  The security agreement granted a security interest in, among other things, bus #1 and bus #2.  General Repair failed to pay off the loan on time and BOH extended the due date to November 13, 1995.  Then, on December 29, 1995, when General Repairs still had not fully paid the loan, BOH and General Repairs refinanced the loan, with a new due date of March 31, 1996. 

 

On May 12, 1996, after General Repairs failed to pay the refinanced loan, BOH notified ASG that General Repairs was not permitted to transfer BOH's security, bus #1 and bus #2, without BOH's consent and that BOH did not consent to the transfer of the buses to ASG.  On July 3, 1996, ASG responded by denying that General Repairs had ever held title to the Vehicles and thus could not have granted a security interest in them. 

 

On August 1, 1996, BOH requested that ASG relinquish bus #1 and stated that BOH intended to take possession of bus #2 upon its arrival in September 1996.  On August 1, 1996, BOH also notified General Repairs and Neru that it demanded delivery of bus #2 upon its arrival in American Samoa.  ASG presently retains possession of both bus #1 and the replacement bus #3. 

 

ASG has procured buses and vans from General Repairs in the past.  A partial list includes three buses and two vans in 1994.  However, neither General Repairs nor Neru is licensed as a dealer of any kind of vehicles, and neither offers buses for sale to the general public.

 

BOH asserts a security interest in both bus #1 and bus #3 and wishes to foreclose on that interest.  ASG asserts that it owns both buses free from BOH's claims. [1ASR3d55]

 

Discussion

 

[1] In American Samoa secured transactions are governed by the common law except where those principles have been modified by statute or are otherwise inappropriate to local conditions.  Dev. Bank of American Samoa v. Reed, 5 A.S.R.2d 135 (Trial Div. 1987).

 

[2] A.S.C.A. § 27.1510 dictates when a chattel mortgage is valid:

           

No mortgage, bill of sale, conditional sales contract, deed of trust or conveyance or personal property which is not accompanied by a permanent delivery thereof to the vendee is valid as to persons who do not have actual knowledge thereof unless all of the following conditions are met:

(1)  it is in writing signed by the person to be bound and attested to by at least one witness;

(2)  it is filed with the territorial registrar within 10 days after its execution;

(3)  it truly states the consideration upon which it was based or the debt or liability which it was intended to secure, and contains a description of the specific article, articles, or land sold or mortgaged.

[3] Of course, one cannot grant a chattel mortgage or security interest in property without first having some rights in that property.  Here the parties disagree as to whether General Repairs or Neru ever had any property interest in any of the buses at issue.

 

The resolution of this question depends largely on when and to whom A-Z Sales transferred title to the buses.  A-Z Sales' invoices state that General Repairs is the customer to whom the buses were sold.  However, this alone does not dictate when and to whom the title attached. 

 

Under the common law, title passes as soon as the bargain is struck.  See J.W. Ehrlich, Ehrlich's Blackstone, 395 (Nourse Publishing Co. 1959). Thus, under the common law, General Repairs would have had title to both vehicles on May 8, 1995, the dates of the invoices and the apparent date when the "bargain was struck."  However, it appears that, under this rule, ASG acquired title to bus #1 and bus #2 on February 7, 1995, when it accepted General Repairs bid and rendered purchase orders P50186 and P50188.  Thus, when the common law is applied to the situation at bar it appears that ASG acquired title from General Repairs before General Repairs could have acquired title from A-Z Sales.  Obviously, General Repairs could not possibly transfer a title which it did not have.

 

[4] Instead of speculating on how the common law might deal with such a situation, however, we find it more appropriate to determine that this is one [1ASR3d56]of those instances in which the common law is inapplicable to present conditions.  The short passage from Erlich's Blackstone on this issue did not, and could not, properly address the transfer of title in complicated sales contracts.  In Blackstone's time sales contracts were simple.[1]  Contracts did not deal with delivery to foreign lands or installment sales or purchase orders.  As such, we believe that this common law principle is ill suited for determining when the transfer of title occurs in today's sophisticated global economy.

 

[5] Although the common law does not adequately address the issue of title transfer in the modern context, the Uniform Commercial Code ("UCC") does.  Under UCC § 2-401(2) it is clear that:

 

 (2) . . . title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading

(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but

(b) if the contract requires delivery at destination, title passes on tender there.

 

[6] Although the UCC has not been adopted in American Samoa,[2] we believe its wisdom on this subject is reasonable, especially in light of inappropriate applicability of the common law.  From the evidence, it appears that the contract between General Repairs and A-Z Sales required A-Z Sales to ship the buses but did not require delivery at destination.[3]  Therefore, title transferred from A-Z Sales to General Repairs, upon A-Z [1ASR3d57] Sales' tender of the buses to South Seas Steamship.  This occurred on June 8, 1995, for bus #1 and on August 29, 1996, for bus #3. 

 

Thus, prior to their arrival in American Samoa, and after the signing of the security agreement, bus #1 and bus #2, described in the security agreement and in the A-Z Sales invoices, were owned by General Repairs.  As such the security agreement was valid, ab initio, to those buses as described.  The question then turns on whether the security agreement is valid as to bus #1 and bus #3 now in ASG's possession and, if initially valid as to these buses, whether subsequent events have invalidated BOH's security interests.

 

I.  Bus #1

 

Bus #1 is without question the same bus described in the security agreement.  It is the same year, make and model and has the exact same VIN number.  As such, BOH's security interest in bus #1 had vested upon its arrival to American Samoa.  Thus, when the title passed from General Repairs to ASG (upon delivery to ASG by General Repairs), that title was encumbered by BOH's security interest.  Although ASG asserts that it had no actual knowledge of the security agreement, the security agreement was filed pursuant to A.S.C.A. § 27.1510 and, thus, ASG has constructive knowledge of BOH's non-possessory lien against bus #1.

 

A.  Buyer in Ordinary Course

 

ASG, however, argues that it is a buyer in the ordinary course and should not have constructive knowledge imputed to it.  We disagree.  First, the "buyer in the ordinary course" doctrine was not available, as such, at common law.  Rather there were common law cases which recognized that a mortgage on a stock of goods, wares, and merchandise was void as to purchasers of such goods.  See e.g. Boice v. Finance & Guaranty Corp., 127 Va. 563, 102 S.E. 591 (1920).  This common law approach was not truly a "buyer in the ordinary course" rule but rather was based on the principle of equitable estoppel, which we will address separately below.

 

[7] The "buyer in the ordinary course" doctrine was a label used by the UCC in an attempt to organize and codify these common law principles.  UCC § 1-201(9) defines a buyer in the ordinary course of business as a person who:

 

in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.  [1ASR3d58]

 

[8] UCC § 9-307(1) goes on to state:

 

A buyer in ordinary course of business . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer know of its existence.

[9] These UCC provisions make good commercial sense when, for example, a dealer or retailer collateralizes inventory for credit purposes.  Thus, under the UCC, if we were to determine that General Repairs was in the business of selling buses, ASG would have taken both bus #1 and bus #3 free and clear, even with actual knowledge of BOH's security interest.  We, however, do not believe that the evidence suggests that General Repairs or Neru was in the business of selling buses.  Neither General Repairs nor Neru is a licensed bus dealer.  More important, they do not hold themselves out to the general public as bus dealers.  The present and past transactions are occasional, occurring only when ASG periodically procures buses and vans.  As such, even if this court were to apply the UCC's rule regarding "buyers in the ordinary course," we do not find that General Repairs or Neru is "in the business of selling" buses.

 

B.  Equitable Estoppel or Laches

 

As discussed above, the common law recognized a quasi-buyer in the ordinary course doctrine.  ASG argues that the common law rule of equitable estoppel should be applied in this circumstance.  ASG's argument is based on BOH's failure to assert it rights to bus #1 until well after BOH knew that ASG had gained title and possession of bus #1.  We believe that Tumber v. Automation Design & Mfg. Corp, 324 A.2d 602 (1974) is closely on point with the case at bar. 

 

[10] In Tumber an owner entrusted a machine to a corporation under a lease agreement which was never completed.  The owner acquiesced to the use of machines by two others and the machines were later purchased by another corporation.  A couple years later the original owner demanded the machines.  The court held that the original owner was the one who made the wrongful sale possible and should bear the loss by being estopped from asserting title.  In the case at bar, BOH knew that bus #1 was going to be sold and delivered to ASG, in violation of the security agreement.  Bus #1 arrived in American Samoa on or about September 6, 1995 and was immediately delivered to ASG.  BOH waited until May 12, 1996, to assert any interest in bus #1.  BOH knew at the signing of the security agreement that ASG was the end purchaser of bus #1, yet waited until over eight months after ASG took possession and title to bus #1 to assert its interest.  We believe that BOH's actions as to this bus were unreasonable and that it [1ASR3d59] should bear the loss by being estopped from asserting its security interest in bus #1.

 

II. Bus #3

 

Bus #2, the vehicle specifically in the security agreement, and bus #3, the vehicle that actually arrived in American Samoa, are different vehicles.  ASG argues that since bus #2 and bus #3 are not the same vehicle, the security agreement does not cover bus #3.

 

[11] As stated above, A.S.C.A. § 27.1510 dictates when a chattel mortgage is valid.  The description requirements set forth in subsections (1)-(3) only apply to "persons who do not have actual knowledge thereof."  Both General Repairs and ASG had actual knowledge of BOH's security in two buses.  Two buses are described in the security agreement, were sold to General Repairs by A-Z Sales, and arrived on island.  Regardless of their model years and VIN numbers, all parties knew that these buses were the buses to be covered by the security agreement.[4]  Specifically, ASG knew of this security interest before it took title and possession of bus #3 in place of bus #2.  As such, we find that BOH has a valid security interest in bus #3. 

 

Therefore, since the equitable considerations discussed as to bus #1 are not applicable to bus #3, we find that BOH has an enforceable security interest in bus #3. 

 

Conclusion

 

General Repairs owned bus #1 and bus #3.  BOH had a security interest in both of those vehicles, which attached prior to General Repair's transfer of title to ASG.  As to bus #1, we find that BOH is estopped from asserting its security interest.  As to bus #3, we find BOH's security interest is valid and enforceable and order foreclosure of that security interest.  General Repairs' transfer of bus #3 to ASG is set aside, and ASG must surrender possession of bus #3 to BOH.

 

It is so Ordered.

 

**********

 

 



[1] Indeed in his discussion of title transfer, Blackstone uses an example of a sale of a horse for ten pounds.  This common law principle was meant to apply to such simple sales.  See J.W. Ehrlich, Ehrlich's Blackstone, 395.

[2] The UCC has, however, been adopted in every state save Louisiana.  In addition, the UCC has also been adopted in the District of Columbia and in territory of the Virgin Islands.  67 Am. Jur. 2d, Sales  1.

[3] We note that there is a strong presumption against the creation of destination contracts and in the absence of a contract term or trade usage to the contrary, a contract which contemplates the transportation of goods from the seller to the buyer will be interpreted as a shipment contract and not as a destination contract.  67 Am. Jur. 2d, Sales  393.

[4] Even the A-Z Sales invoice indicated bus #2 was the bus being shipped to General Repairs.

 

Tuaolo v. Fruean


 

PUNEFUOLEMOTU M. TUAOLO, Appellant,

 

v.

 

MANAIA E.T. VAIVAO FRUEAN, Appellee.

 

_________________________________

 

SAELUA FA`ATE`A, Appellant,

 

v.

 

MANAIA E.T. VAIVAO FRUEAN, Appellee.

_________________________________

 

In the Matter of the Matai Title

TUAOLO from the village of Pago Pago

 

High Court of American Samoa

Appellate Division

 

AP No. 06-95

AP No. 07-95

 

June 16, 1997

 

[1] Failure to file a formal, written motion to disqualify constitutes a waiver on the issue of a judge’s impartiality.

 

[2] A judge’s impartiality is a pre-trial issue.  Motions to disqualify judges made after trial are improper and untimely. 

 

[3] Under the “Rule of Necessity,” an interested judge is required to sit on a matter where it otherwise would not be heard.

 

[4] The “Rule of Necessity” requires judges to sit even when where they otherwise would be required to recuse themselves sua sponte.

 

[5] The “Rule of Necessity” is properly invoked where there is no evidence to suggest that sufficient replacement judges are available.

 

[6] A mere professional relationship or friendly acquaintance is insufficient to create the appearance of partiality. 

 

[7] Trial court's factual findings with respect to the four matai title criteria can only be reversed if they are clearly erroneous.  [1ASR3d34]

 

[8] Trial court should follow the traditional rule, and determine clans based upon the children of the original title holder. 

 

[9] Arguments regarding the specificity of the trial court’s findings should not be raised for the first time on appeal.  Appellants who fail to raise such objections via motion to amend findings or a motion to make further findings will be said to have waived these issues for appeal.

 

Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, and SAGAPOLUTELE, Associate Judge.

 

Counsel:  For Appellant, Punefuolemotu M. Tuaolo, Tautai A.F. Fa`alevao

   For Appellant, Saelua Fa`ate`a, Romero Solomona Toailoa and Albert Mailo

   For Appellee, Manaia E.T. Vaivao Fruean, Afoa L. Su`esu`e Lutu

 

OPINION AND ORDER

 

KRUSE, Chief Justice.

 

Procedural History

 

This controversy concerns the matai title "Tuaolo" of the village of Pago Pago.  Appellant Punefuolemotu M. Tuaolo ("Punefu") was the initial claimant and appellant Saelua Fa`ate`a ("Tutuvanu") and appellee Manaia E.T. Vaivao Fruean ("Vaivao") were the counter-claimants.  A.S.C.A. § 1.0403 sets forth four criteria to be considered by the trial court in matai title disputes: 1) Best hereditary right, 2) Wish of majority or plurality of the customary clan(s) in the family, 3) Forcefulness, character, personality and knowledge of Samoan custom, and 4) Value of the candidate to family, village, and country.

 

After trial on the merits, the court found that Punefu prevailed on criterion 1 and that Vaivao prevailed on criteria 2, 3, and 4.  The court concluded in favor of Vaivao and awarded the title accordingly.  [1ASR3d35] Punefu and Tutuvanu both appealed, and their appeals were joined.  Tutuvanu has since passed away.

 

Discussion

 

There are essentially two issues before us on appeal.  First, appellants contend that the Samoan Associate Judges should have disqualified themselves based on the appearance of partiality.  Appellants argue that the Associate Judges' working relationship with Vaivao, who is an Associate Judge of the High Court, presents an "appearance of partiality."  Second, appellants contest the court's factual findings, regarding the A.S.C.A. § 1.0403 criteria, as clearly erroneous.

 

A.  Disqualification

 

[1-2] Disqualification of the trial judges was first raised by Tutuvanu in an in-chambers pre-trial conference.  The presiding justice directed counsel to file a written motion, which the latter never did.  This failure to file a formal motion to disqualify constitutes a waiver.  See, e.g., Delesdernier v. Porterie, 666 F.2d 116, 118-123 (5th Cir. 1982), cert. denied, 459 U.S. 835, 74 L.Ed.2d 81, (1982).  The decision to wait until after trial to move for a judge's disqualification is highly improper.  In re Matai Title Tauala, 15 A.S.R.2d 65, 67 (Land & Titles Div. 1990); see also In re Matai Title Tuiolosega, 1 A.S.R.2d 37, 38 (Land & Titles Div. 1980) (citing Iosia v. Heirs of Lemeanai, 2 A.S.R. 42 (Trial Div. 1954)).  Here, appellants went forward with the trial, waited for a decision, and when the decision came down against them, decided to bring up the issue of disqualification.[1]  We are not inclined to encourage lawyers to delay making their disqualification motions until after their trial loss.  We hold that appellants' motion to disqualify is untimely.

 

[3-6] Moreover, even if Vaivao's work relationship presented an appearance of partiality, where the judges should have considered recusal sua sponte, we believe that the Rule of Necessity nonetheless precluded disqualification.  This ancient rule dictates that when a case cannot otherwise be heard, even an interested judge has a duty to sit on that matter.  See United States v. Will, 449 U.S. 200, 213-14 (1980); In re Matai Title Faumuina, 26 A.S.R.2d 1, 7 at n.8 (App. Div. 1994).  Under appellants' analysis, every Samoan judge with a past or present working relationship with Vaivao would be disqualified.  Since there was no evidence to suggest that there were at least three other retired[2] [1ASR3d36] associate judges--necessary to compose a quorum as required by A.S.C.A. § 3.0240--who were available to sit at trial, we conclude that the case could not have otherwise been heard.[3]  As such, even if there was an appearance of partiality, the rule of necessity prevailed over the countervailing disqualification standards.[4]

 

B.  Best Hereditary Right

 

Appellants argue that Vaivao's genealogy is incorrect and that Vaivao has no blood relationship to the Tuaolo title.

 

[7] We can only set aside the trial court's findings if they are clearly erroneous.  Uiagalelei v. Ulufale, 17 A.S.R.2d 158, 160 (App. Div. 1990).  Appellants urge this court to reweigh the facts presented at trial.  This task is best left to the trier of fact, who is in a unique position to [1ASR3d37] hear the evidence and observe the demeanor of the witnesses.  We did, however, perform an extensive review of the testimony and exhibits.  Although it is true that there is conflicting testimony regarding the genealogy of the Tuaolo family, we cannot say that the trial court's decision to accept Vaivao's proffered genealogy[5] was clearly erroneous.  Vaivao's genealogy is not wholly inconsistent with the complex blood and title interrelationships in the Tuaolo, Lea`oa and Lago families recited during this and previous other proceedings before the Land and Titles Division of the High Court.  An extensive review of the older court cases dealing with these family genealogies did not uncover evidence which specifically precluded Vaivao's genealogy.[6]

 

C.  Wish of majority or plurality of family

 

The arguments regarding the majority or plurality of the family center on whose genealogy is believed.  Punefu argues that the original titleholder was Fealofani and the clans are descended from his children Siasaga, Tautai, Faagai, and Misipaga.  Tutuvanu argues that the original titleholder was Tuaolo Tuli.[7]  However, as discussed above we do not believe the trial court's acceptance of Vaivao's genealogy to be clearly erroneous.

 

[8] After resolving that Vaivao's genealogy was correct, the court followed the traditional rule which bases clans upon the children of the original title holder.  See In re Matai Title Iuli, 14 A.S.R.2d 116, 118 [1ASR3d38] (Land & Titles Div. 1990).  Vaivao's genealogy shows three clans of the Tuaolo family: two descending from the original titleholder's children Vailiili Aosimea II and Tamasailau and one non-descendant clan which was later added when Tuaolo Fealofani became titleholder.  The court thus found that there are three current clans of the Tuaolo family: the Vailiili, the Tamasailau and the Fealofani.  The court then determined that Vaivao had the support of the majority of Tamasailau clan, and the complete support of the Vailiili clan and Punefu had the majority of support of the Fealofani clan.  We hold that these findings are not clearly erroneous.

 

[9] Appellants also argue, on appeal, that the trial court failed to make sufficient findings regarding both clan determination and clan support.  Appellants, however, failed to move the trial division to amend or make further findings on these issues.  The appellants cannot now complain of the lack of specificity of the findings.  See Hollinger v. U.S., 651 F.2d 636, 640-41 (9th Cir. 1981).  Appellants should have moved for amended or further findings in their motion for reconsideration and, failing to do so, have now waived that argument.[8]

 

D.  Criteria 3 and 4

 

Appellants generally argue that each of them should prevail on criteria 3 and 4.  Both also specifically argue that Vaivao's admission that he is a gambler should have negatively affected his evaluation on criteria 3 and 4.  As we previously stated, this court can only set aside findings of the trial court if they are clearly erroneous.  Uiagalelei, 17 A.S.R.2d at 160.  Appellants ask us to reweigh the testimony and evidence presented at trial.  We decline to do so.  The trial court was in a better position to hear evidence and observe the demeanor of the candidates.  Despite the appellants' suggestions, we do not hold the trial court's determinations, as to criteria 3 and 4, clearly erroneous.

 

Conclusion

 

For the reasons set forth above the decision of the trial court is AFFIRMED.

 

It is so Ordered.

 

**********



* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1 We note that one of the "partial" Samoan judges issued a dissent to the trial court's opinion.

2 A.S.C.A. § 3.1004(d) provides for the addition of retired associate judges to the panel of "temporary associate judges," without going through the confirmation process of A.S.C.A. § 3.1006(b).  Since 1977, when § 3.1006(b) was enacted, all other candidates to the panel of temporary associate judges were required to go through the confirmation process.

3 Although we note that A.S.C.A. § 3.1006 allows for the appointment of temporary judges, this appointment cannot be made without invoking the legislative process.  This requirement of both Governor and Fono approval makes any appointment of a temporary judge highly impractical.

[4] Appellants also rely heavily on a recent appellate decision which addresses the issue of disqualification.  See Saunoa v. Lutali,  26 A.S.R.2d 1 (App. Div. 1994).  The Saunoa court held that there was an appearance of partiality problem with two of the sitting associate judges, because they had been appointed to the bench by the prevailing party, Lutali, when the latter previously held the post of Governor.  The court held a duty of recusal on an associate judge "who finds himself or herself assigned to a case in which a governor who appointed the judge appears in his or her personal capacity."  Saunoa at 7.

   The Saunoa court indicated that the appearance of partiality is of particular concern in a small community such as American Samoa, and as such it is critically important to avoid that appearance.  Id.  However, this reasoning also belies a basic understanding of this jurisdiction.  Because the American Samoan community is so small, nearly every lawyer, judge and politician has some level of association.  Moreover, many members of the three branches of government are also matai, and continually interact with one another at that level.

  Although we agree that a true appearance of partiality is as corrosive to the judiciary as actual partiality, we believe that, in American Samoa, a mere professional relationship or friendly acquaintance is insufficient to create the appearance of partiality.  The adoption of such a low threshold for what constitutes a true "appearance of partiality" would preclude nearly every judge and justice from hearing a matai title case.

5 This determination was not addressed by the dissenting opinion.

[6] Appellants also argue that Vaivao's 1/128 blood relationship is too tenuous to merit consideration, relying on In Re Matai Title "Faumuina," LT No. 1265-72, slip op. at 13 (Trial Div. 1973).  This reliance is unfounded for several reasons.  First, this language is merely dicta.  Second, the trial court's decision in Faumuina was reversed and remanded on appeal.  Lutali v. Faumuina, AP. No. 70-73 (App. Div. 1974).  Third, we have found cases which consider candidates with a blood relationship as small as 1/4096.  See Aseuga v. Manuma, 4 A.S.R. 616, 624 (Trial Div. 1965), affirmed, 4 A.S.R. 947 (App. Div. 1967).  Finally, the Sotoa rule--measuring hereditary right by tracing descent to the original titleholder or nearest common ancestor--has been defended as being less arbitrary to clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title.  See In re Matai Title Laie, 18 A.S.R.2d 35, 37 (Land & Titles Div. 1991).

7 However, the older cases all contain evidence which suggests that there were, at the very least, three titleholders before Tuaolo Tuli: Tuaolo Lea`oa, Tuaolo Siasaga and Tuaolo Fealofani.

 

Suani v. Am. Samoa Gov't.


[1] For an appellant to prevail on a claim of insufficient evidence, he must show that no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt.

 

[2] In evaluating the sufficiency of the evidence the inquiry is no whether the evidence excludes every hypothesis except guilt, but whether the trial court could reasonably arrive at its verdict.

 

[3] To establish possession of a controlled substance the government must present evidence that the defendant had dominion and control over the contraband.

 

[4] Mere fact appellant was defensive and angry under police interrogation and that he lived 90-120 feet from the two marijuana plants growing in nearby bush land is insufficient evidence to permit a conclusion beyond a reasonable doubt that the appellant was in possession of a controlled substance.

 

Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, TAUANU`U, Chief Associate Judge, and MAILO, Temporary Associate Judge.

 

Counsel: For Appellant, Reginald Gates, Public Defender

               For Appellee, Frederick J. O'Brien, Assistant Attorney General [1ASR3d29]

 

OPINION

 

KRUSE, Chief Justice.

 

On June 20, 1995, appellant Nu`usila Suani was charged with one count of unlawful possession of a controlled substance (marijuana) and one count of possession of a prohibited weapon.  He was tried on November 20, 1995, and found guilty of unlawfully possessing a controlled substance in violation of A.S.C.A. § 13.1022.  Because of a prior conviction for the same offense, appellant was sentenced to twelve years imprisonment.  The court granted in part appellant's motion for reconsideration and reduced appellant's sentence to ten years.  This appeal followed.

 

Facts

 

On April 7, 1995, the police, through the Office of the Attorney General, filed an application with the District Court for a warrant to search appellant's residence and land for "marijuana and related paraphernalia."  However, the pre-prepared search warrant form presented to, and executed by, the District Court only addressed "marijuana plants." (No. SW 06-95).  Armed with the warrant, a number of police officers visited appellant's home to execute the warrant.  When the officers attempted to serve appellant with the search warrant, a heated verbal exchange ensued. 

 

At some juncture during the argument, one of the officers began to search the land area surrounding appellant's residence.  This search revealed two growing marijuana plants located approximately 30-40 yards from the residence.  The officers placed appellant under arrest, led the appellant into his residence in handcuffs, and proceeded to search inside his home.  The officers found in appellant's house a marijuana joint and an unopened briefcase containing "a .38 revolver, 462 marijuana seeds, a glass smoking pipe, three packets of cigarette rolling paper, and other drug paraphernalia."  29 A.S.R.2d 38, 39 (Trial Div. 1995) (Order Partially Granting Motion to Suppress).

 

At trial, appellant moved to suppress all of the evidence obtained during the search.  The trial court denied the motion with respect to the two marijuana plants, but suppressed the marijuana joint and contents of the briefcase on the grounds that both the joint and the briefcase were beyond the scope of the warrant and that the briefcase's contents did not come within the "plain view" warrantless search exception.[1]  [1ASR3d30]

 

The trial court entered a guilty verdict on the charge of unlawful possession of the marijuana plants found in the general area around his house.  Appellant now appeals his conviction claiming, among other things, that the evidence was insufficient to establish beyond a reasonable doubt that he "possessed" the marijuana plants found near his residence.

 

Discussion

 

[1-2] For appellant to prevail on a claim of insufficient evidence, he must show that no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Mares, 940 F.2d 445, 458 (9th Cir. 1991); United States v. Sanchez-Mata, 925 F.2d 1166, 1167 (9th Cir. 1991). "The inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the [trial court] could reasonably arrive at its verdict."  United States v. Mares, 940 F.2d at 458.

 

A.S.C.A. § 13.1022 provides that "[e]xcept as authorized by the director [of medical services], it is unlawful for a person to possess a controlled substance."  Marijuana is a controlled substance.  A.S.C.A. §§ 13.1001(a), 13.1006.  In this matter, the trial court found that:

 

After discussions with an angry Suani for some 20 minutes, [Public Safety Officer] Leuma searched the area surrounding the house.  This area was bush land and not under active farm crop cultivation by anyone other than Suani.  Leuma located a growing plant, approximately two feet in height, which he visually recognized as marijuana, surrounded by a cleaned area and encircled by wire mesh, about 40 yards west of the house.  He then found another plant, which he also visually recognized as marijuana, growing largely under the same conditions, about 30 yards north of the house.

 

Opinion and Order, entered Nov. 27, 1995, slip op. at 2.  On the basis of these findings, the trial court concluded that "[appellant] was in constructive possession of the plants."  Id.

 

[3-4] In our view, the mere fact that appellant was defensive and angry under police interrogation and that he lived 90-120 feet from the two marijuana plants growing in nearby bush land is insufficient evidence to permit a conclusion beyond a reasonable doubt that the appellant was in [1ASR3d31] "possession" of a "controlled substance."  To establish "possession" of a controlled substance, the government must present sufficient evidence that the defendant had dominion and control over the contraband.  See United States v. Kearns, 61 F.3d 1422, 1424-25 (9th Cir. 1995); United States v. Ramos-Rascon, 8 F.3d 704, 711-12 (9th Cir. 1993); United States v. Medrano, 5 F.3d 1214, 1217-18 (9th Cir. 1993).

 

Even viewing the evidence in the light most favorable to the prosecution, we hold that the evidence presented at trial failed to identify the appellant as the one who exercised dominion and control over the land where the plants were found.  There was no evidence that he supervised the cultivation, ordered the planting, or joined a conspiracy to grow marijuana in the area, nor was there evidence that he handled or sampled or controlled access to the marijuana plant.  Cf. Kearns, 61 F.3d at 1425 (stating that "brief sampling of the marijuana, in the absence of other steps taken to give him physical custody of or dominion and control over the drugs, is not sufficient to constitute 'possession'."); Medrano, 5 F.3d at 1217-18 (reversing a conviction on the grounds of insufficient evidence where there was no evidence at trial that undercover officers, who had placed contraband in the trunk of the defendant’s car pursuant to the defendant's instructions, had returned the car keys to defendants).  To the contrary, as appellant points out, there was testimony at trial that indicated that the land area where the marijuana plants were growing was communal land, accessible to any number of his extended family members.  Thus, the fact finder concluded unreasonably from the evidence presented at trial that appellant possessed the marijuana plant.

 

American Samoa's habitable land is largely composed of communally held real property without fences or rigid boundaries.  If appellant's conviction is allowed to stand, we can envision situations in which the police would discover a marijuana plant on communal land, accuse anyone within a certain radius of the plant of possessing the plant, wait for a defensive or angry reaction, and then make an arrest for unlawful possession of a controlled substance.  To the contrary, we are loathe to allow the setting of such a precedent but expect more from our police.[2]  [1ASR3d32]

 

Because we hold that the fact finder's conclusions were unsupported by sufficient evidence, we must reverse the appellant’s conviction.

 

Conclusion

 

For the reasons stated above, appellant's conviction is hereby REVERSED.

 

It is so Ordered.

 

**********

 



* Honorable Alfred T. Goodwin, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable J. Clifford Wallace, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior.

[1] Although the record suggests that the government might have advanced an argument for reconsideration of the suppression order on the grounds that the seizure of the brief case was incident to arrest, the government neither moved for reconsideration nor attempted to appeal the suppression order.

[2] As a side note, we feel constrained to say that the prosecution of this case leaves more to be desired.  First, the Attorney General's office committed a clerical error by limiting the scope of the warrant to "marijuana plants," rather than "marijuana and related paraphernalia."  Additionally, while the marijuana joint found in appellant's home, the handgun, the quantity of marijuana seeds, and drug paraphernalia contained in the brief case, are compelling evidence of marijuana and weapon possession, the admissibility of these items of proof was not as vigorously pursued by the government as it might have been.  If the government is going to seek convictions that entail extended prison terms, it behooves the government to be less lackadaisical with regard to available evidence that should ordinarily secure conviction.

 

Misaalefua v. Hudson


 

FELEI P. MISAALEFUA, LEMAGA F. FAOA, MALAE TITO,

MANU MA`ATIFA ELEASARO, and SUA PUTUGA POTASI, Appellants

 

v.

 

 TAUILIILI J. HUDSON, Appellees.

 

High Court of American Samoa

Appellate Division

 

AP Nos. 09-95, 10-95, 11-95, 12-95, and 13-95

 

June 6, 1997

 

[1] Questions of law are reviewed de novo. 

 

[2] In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision. 

 

[3] The “Satoa Rule” determines best hereditary right based upon the blood relationship of the candidates to the original titleholder. 

 

[4] The “Satoa Rule” should not always be used, but is appropriate where the family traditionally traces the blood relationship back to the original titleholder, where clans of the family have not held the title for several generations, or where the family history is largely harmonious.

 

[5] In case where family history was unanimous as to the original titleholder, use of the “Satoa Rule” was less arbitrary than other methods and was appropriate. 

 

[6] There is no bright line rule regarding de minimus blood relationships.

 

[7] A 1/128 blood relationship is not de minimus when the “Satoa Rule” is used.

 

[8] Trial Court’s determination of the candidates' hereditary rankings can only be set aside if clearly erroneous.

 

[9] Trial Court’s determination of the family clans can only be set aside if clearly erroneous.

 

[10] Trial Court’s determination regarding the support of the majority of the family can only be set aside if clearly erroneous.  [1ASR3d24]

 

[11] Trial Court’s determination that there was no majority support for any one candidate was not clearly erroneous where there was sufficient evidence to support such conclusion. 

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, and AFUOLA Associate Judge.

 

Counsel: For Appellant Felei P. Misaalefua, Afoa L. Su'esu'e Lutu

              For Appellant Lemaga F. Faoa, Tautai A.F. Fa`alevao

              For Appellant Malae Tito, Charles V. Ala`ilima

              For Appellant Manu Ma`atifa Eleasaro, Arthur Ripley, Jr.

              For Appellant Sua Putuga Potasi, Togiola T.A. Tulafono

              For Appellee, Tuana'itau F. Tuia

 

OPINION

 

RICHMOND, Associate Justice.

 

Statement of Case

On August 6, 1993, Appellant Felei P. Misaalefua ("Felei") filed his succession claim to the Misaalefua title with the Territorial Registrar.   His claim precipitated counterclaims by the appellants Lemaga F. Faoa ("Lemaga"), Malae Tito ("Malae"), Manu Ma`atifa Eleasaro ("Manu"), and Sua Putuga Potasi ("Sua"), and appellee Tauiliili Hudson ("Tauiliili"). 

 

A.S.C.A. § 1.0403 sets forth four criteria to be considered when deciding a matai title: (1) best hereditary right; (2) wish of majority or plurality of family; (3) forcefulness, character, personality and knowledge of Samoan custom; and (4) value of candidate to family, village and country.  After a trial on the merits, the trial court found that appellant Manu Ma`atifa Eleasaro prevailed on criterion 1; that no one prevailed on criterion 2; and that Tauiliili prevailed on criteria 3 and 4.  The court then awarded the title to Tauiliili.  The other candidates appealed.

 

Discussion

Each appellant appeals on the ground that the trial court’s decision as to the various criteria was in error. [1ASR3d25]

 

A.  Best Hereditary Right

 

[1-2] Appellants raise two significant questions of law and one on factual findings relating to the trial court's decision regarding the best hereditary right.  On appeal questions of law are reviewed de novo.  A.S.C.A. § 43.0801(b).  Anderson v. Vaivao, 21 A.S.R.2d 95, 97-98 (App. Div. 1992).  In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.  Amerika Samoa Bank v. Pacific Reliant Industries, 20 A.S.R.2d 102, 107 (App. Div. 1992).

 

[3-4] As a first question of law, Felei and Lemaga argue that the "Sotoa rule" should not have been applied in this instance.  The Sotoa rule calculates the blood relationship of the candidate to the original titleholder.  In re Matai Title Sotoa, 2 A.S.R.2d 15 (Land & Titles Div. 1984).  When the original titleholder is known, the Sotoa rule can be less arbitrary than the traditional rule.  However, the Sotoa rule is only suited in certain circumstances.  The Sotoa rule is appropriate where, as in Sotoa, the family traditionally traces the blood relationship back to the original titleholder.  See In re Matai Title Sotoa at 15; see also In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 15 (Land & Titles Div. 1987).  Use of the Sotoa rule may also be appropriate in cases where some clans of the family have not held the title for several generations, even those its members are entitled to a chance at the title.  See In re Matai Title Laie, 18 A.S.R.2d 35, 37 (Land & Titles Div. 1991).[1]  Finally, use of the Sotoa rule may be appropriate where the family history is largely harmonious.  See In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles Div. 1994).

 

[5] The circumstances in this case make the use of the Sotoa rule appropriate.  There is a unanimity as to the original titleholder in family history due to the recent origin of the Misaalefua title.  Because of this unanimity, the less arbitrary Sotoa rule is appropriate.  Therefore, we hold that the trial court properly employed the Sotoa rule in ranking the candidates' hereditary rights. 

 

[6-7] As a second question of law, Lemaga contends that Tauiliili's 1/128 blood level is de minimus, and should be discounted entirely.  In support of this contention, appellants rely on dicta in In re Matai Title Faumuina, LT No. 1265-72, slip op. at 13 (Trial Div. 1973).  This reliance is unfounded for several reasons.  First, this language is merely dicta.  Second, the trial court's decision in Faumuina was reversed and remanded on appeal.  Lutali v. Fuamuina, AP. No. 70-73 (App. Div. 1974).  Finally, the court has recognized candidates with a blood relationship as small as 1/4096.  See [1ASR3d26] Asuega v. Manuma, 4 A.S.R. 616, 624 (Trial Div. 1965), aff'd, 4 A.S.R. 947 (App. Div. 1967).  We believe a bright line rule on this issue would be arbitrary, and we decline to create one by judicial fiat.[2]  Moreover, a conclusion that 1/128 is too tenuous a blood relationship would be particularly inappropriate when using the Sotoa rule and measuring blood connections to the original titleholder.  The appearance of remoteness many generations later does not diminish the fact of blood connection.

 

[8] Sua and Felei dispute the trial court's application of the Sotoa rule, pointing out the evidentiary conflicts in the candidates' claimed genealogies from the original Misaalefua.  This contention attacks the trial court's factual findings.  Unlike questions of law, this court can set aside the trial court's findings of fact only if the findings are clearly erroneous.  A.S.C.A. § 43.0801(b).  The trial court was in the unique position to observe each claimant's demeanor on the witness stand.  The trier of fact is in the best position to determine the weight and accuracy of the testimony.  We hold that the trial court's findings on the candidates' hereditary rankings are sufficient under the clearly erroneous standard.

 

B.  Wish of Majority or Plurality of Clan

 

[9] The trial court found that there were four clans: Tuimalie, Agafala, Vaepala, and Faoliu.  Lemaga and Sua assert that this finding is erroneous.  We, however, conclude that the trial court's findings as to the current family clans was not clearly erroneous.

 

[10-11] After determining the clans, the court found that no candidate had the support of the majority or plurality of the clans.  Lemaga and Sua argue that the fact that the trial court found that no one prevailed on criterion 2 is a concrete indication that the trial court failed to render adequate findings on this issue.  However, Lemaga and Sua fail to recognize that a finding that there was no majority is an adequate finding if it is not clearly erroneous.  We believe that the trial court's findings in this regard are sufficient.  There was sufficient evidence in the record indicating that no candidate had the support of the plurality or majority of the clans.

 

C.  Criteria 3 and 4

 

Each appellant except Felei disagrees with the trial court's decision on criterion 3.  All appellants dispute the decision on criterion 4.  The trial court found that Tauiliili factually prevailed on criteria 3 and 4, and we do not find that this decision was clearly erroneous.  Although we agree that a [1ASR3d27] more detailed comparison between the candidates would be helpful, we do not believe the findings are patently insufficient.[3] 

 

Conclusion

For the reasons set forth above, the trial court's decision is affirmed.

 

It is so Ordered.

 

**********

 

 



* Honorable Alfred T. Goodwin, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

[1] In light of the many recent matai title decisions which have awarded title to a candidate who did not prevail on best hereditary right, we question the continued use of the Sotoa rule for this equitable purpose.

[2]  Such a rule is better left to the legislative process.

[3] We express hope that in future matai title case, the trial division will better detail the findings and analysis of these two criteria.

 

Am. Samoa Gov't v. Annandale


[1] A.S.C.A. § 43.1011 does not provide a clear standard of review of arbitrated condemnation proceedings.

 

[2] A.S.C.A. § 4.1044 provides for a remand where substantial rights of the petitioner have been prejudiced because the arbitrators’ decision violates of applicable constitutional or statutory provisions, or if it is made upon unlawful procedure. 

 

[3] In reviewing an arbitration award, the reviewing Court need not determine the applicable standard of review where it is apparent that the arbitrators failed to follow the specific statutory procedures.

 

[4] A.S.C.A. § 43.1010 requires that the arbitration award contain findings or conclusions of the panel; reflecting how the award was determined. [1ASR3d20]

 

[5] Where an award does not contain specific, written findings or conclusions of the panel, but merely arrives at amount, the award should be remanded.

 

[6] Where case involved condemnation of right of way for a sewer line, the appropriate written findings required inclusion of a determination as to the placement of the sewer line through the property, use and building restrictions applicable to the easement, government access requirements, and conclusions as to the effects of such encumbrances upon the market value of the parcel.

 

Before WARD, Acting Associate Justice,* GOODWIN,** Acting Associate Justice, WALLACE,*** Acting Associate Justice, AFUOLO, Associate Judge and LOGOAI, Associate Judge.

 

Counsel: For Plaintiff Cheryl Crenwelge, Assistant Attorney General,

              For Defendant Neil Annandale, Charles V. Alailima

 

OPINION AND ORDER

 

Procedural History

 

The American Samoa Government ("ASG") is entitled, pursuant to A.S.C.A. § 43.1001, to acquire by condemnation real property for public use.  The ASG filed two documents for the condemnation of two parcels of land belonging to defendant Neil Annandale ("Annandale").  Pursuant to A.S.C.A. § 43.1010 the amount of compensation for the parcels was determined by a panel of three arbitrators who issued their Arbitration Award on August 19, 1996 assessing the value of Parcel A at $2.90 per square foot for a total of $5,800.00 and the value of the right of way in Parcel B at $50.00.  Annandale now appeals the finding as to Parcel B.

 

Jurisdiction and Standard of Review

           

A.S.C.A. § 43.1011 provides for the appeal of the arbitration award and states that:

 

[o]n appeal, the appellate division may hear such evidence, including the testimony of the arbitrators, as is material, may [1ASR3d21]approve, modify, revise, or reject the award of the arbitrators, and may either make a new and different award or resubmit the matter to the same or different arbitrators to be appointed in the same manner as the original arbitrators.

 

[1-2] The statute does not clearly establish a standard of review. Given the nature of condemnation proceedings, the Court looks to the legislature for guidance in the standards of review of administrative proceedings.  A.S.C.A. § 4.1044 provides the standard of review on appeal from administrative decisions and specifically provides for remand of cases if substantial rights of the petitioner have been prejudiced because the decision is, inter alia, in violation of applicable constitutional or statutory provisions or made upon unlawful procedure.  A.S.C.A § 4.1044(1) and (3).

 

[3] However, as discussed below, we need not specifically determine the proper standard of review under A.S.C.A. § 43.1011 to decide this case.

 

Statement of Facts

 

Parcel B is a quarter acre of land.   The condemnation of a right of way on Parcel B was initiated as part of a government sewer project.  As part of this project an underground pipe and a manhole were installed on Parcel B.

 

Discussion

           

[4] Without addressing the substantive arguments made by the parties, we find that the arbitrators failed to follow the procedures set forth in A.S.C.A. § 43.1010(d), (e) and (f), which state:

 

(d) The award shall be determined by a majority of the arbitrators after viewing the property involved and considering such evidence concerning the value of the property as may be submitted by the interested parties.

(e) The award shall be made within one month after the arbitrators have entered upon their duties, or have been called on to act by a notice in writing from any party unless the court sets a different time.  The chairman of the arbitrators shall, within the time limit for the award, file the determination of the amount of the award with the court, enclosed in a sealed cover endorsed with the names of the parties to the arbitration.  The court shall open the award and forward a copy of the same to the parties.

(f) [T]he decision of the arbitrators shall be final if notice of appeal is not served within the time limited by law. [1ASR3d22]

 

The clear language of the statute requires more than a filing of the naked financial award.  The "determination of the amount of the award" (not the "award"), is required to be filed with the Court.

 

[5] In this matter the "award" of $50.00 for Parcel B was filed with no findings or conclusions of the panel, reflecting how the award was determined, as is required by law.  We therefore find the award with respect to Parcel B, should be reversed and remanded.

 

Conclusion

 

[6] We reject the Arbitration Award as to Parcel B.  The determination of the compensation for Parcel B shall be remanded to the same arbitrators, who shall view the property involved, take such additional evidence as to the property's value as may be submitted by the parties pursuant to A.S.C.A. § 43.1010, and reduce to their findings to writing.  These findings should include a determination as to the placement of the sewer line through the property, use and building restrictions applicable to the easement, government access requirements, and conclusions as to the effects of such encumbrances upon the market value of Parcel B.  This written determination and the final dollar award shall then be filed with the Court pursuant to A.S.C.A. § 43.1010.

 

This opinion and order shall be stayed for 14 days to allow the parties to meet, confer, and attempt to resolve this controversy through good faith negotiations.  If an agreement is reached within that period the parties shall timely file a written notice with the Court and a proposed Order to dismiss.

 

It is so Ordered.

 

**********

 



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

** Honorable Alfred T. Goodwin, United States Court of Appeals for the Ninth Circuit, serving by designation of the Department of the Interior.

***  Honorable J. Clifford Wallace, United States Court of Appeal for the Ninth Circuit, serving by designation of the Department of the Interior.

 

Lealai v. Aoelua,


 

MANU M. LEALAI, Appellant,

 

v.

 

 VALOVALO AOELUA, Appellee.

 

High Court of American Samoa

Appellate Division

 

AP No. 20-95

 

April 11, 1997

 

[1] There are four criteria to be considered when deciding a matai title: 1) best hereditary right; 2) wish of majority or plurality of the family clans; 3) forcefulness, character, personality and knowledge of Samoan custom; and 4) value of candidate to family, village and country. 

 

[2] The trial court’s findings with regard to matai criteria can only be set aside if clearly erroneous.  [1ASR3d13]

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, LOGOAI, Associate Judge and SAGAPOLUTELE, Associate Judge.

 

Counsel: For Appellant, Togiola T.A. Tulafono

              For Appellees, Afoa L. Su'esu'e Lutu

 

OPINION

 

RICHMOND, Associate Justice.

 

Statement of Case

 

On May 12, 1992, Valovalo Aoelua ("Valovalo") offered the title "Aoelua," one of four High Talking Chiefs for the Village of Afono, for registration.  Manu Mika Lealai ("Manu") and Fetulele Levea Tagoa'i ("Tagoa'i") counterclaimed.  Before trial Tagoa'i withdrew his claim. 

 

[1] A.S.C.A. § 1.0403 sets forth four criteria to be considered when deciding a matai title: 1) best hereditary right; 2) wish of majority or plurality of the family clans; 3) forcefulness, character, personality and knowledge of Samoan custom; and 4) value of candidate to family, village and country.  After a trial on the merits the court found that Valovalo prevailed on the first criterion; that no one prevailed on the second criterion; that Valovalo prevailed on the third criterion; and both candidates ranked equally on the fourth criterion.  The court then awarded the title to Valovalo.  Manu appealed.

 

Discussion

 

[2] Manu appeals, submitting that the trial court's findings are in error.  This court can set aside findings of the trial court only if they are clearly erroneous.  Uigagalelei Iona v. Ulufale Safue, 17 A.S.R.2d 158, 160 (App. Div. 1990). Upon review of the record we find that there was substantial evidence to support the trial court's holding.

 

The decision of the trial court is affirmed. 

 

It is so Ordered.

 

**********

 

 

 



* Honorable Alfred T. Goodwin, United States Court of Appeals for the Ninth Circuit, serving by designation of the Department of the Interior.

** Honorable J. Clifford Wallace, United States Court of Appeal for the Ninth Circuit, serving by designation of the Department of the Interior.

 

Pule v. Am. Samoa Gov't.


[1] The findings of the trial court may not be set aside on appeal unless clearly erroneous. 

 

[2] The jury’s finding that an injury had occurred was not clearly erroneous where there was testimony that the victim “experienced pain in his legs, side and back.”

 

[3] Despite assertion that breathalyzer results were erroneous, evidence that Appellant crashed into another vehicle as he was overtaking it, that he admitted to having drunken two beers and a shot of tequila, that he was observed with red eyes and alcohol breath, and that he failed the Horizontal Gaze Nystagmus Test and refused to perform the other two field sobriety tests was sufficient to support jury’s finding that he was driving under the influence. 

 

[4] A trial court has wide latitude and discretion in supervising the time limits, the scope, and the extent of argument and summation.  Rulings on such issues are subject to review for abuse of discretion.

 

[5] In case where closing argument limited to two minutes, strong evidence was presented of Appellant’s guilt, and rule limiting closing argument had dubious effect on jury’s verdict, it was not abuse of discretion to impose such a time limitation.

 

[6] Where counsel fails to timely object to the trial court's rulings on the time limits, scope, and extent of argument, there must be a showing of plain error to afford a basis of reversal.

 

[7] "Plain error" is defined as an error or defect which affects substantial rights.

 

[8] Where the evidence against a defendant is so strong that the absence of the purported error would not have changed the jury's verdict, plain error is seldom found.  [1ASR3d8]

 

[9] Where the evidence against a defendant is overwhelming and would not have affected the jury’s verdict, the Court’s time limitation on closing arguments will not constitute plain error.

 

[10] Appellant’s convictions for both Driving under the Influence (A.S.C.A. § 22.0707) and Careless Driving Causing Injury and Property Damage (A.S.C.A. § 22.0701) did not contravene A.S.C.A. § 46.3107(3) as neither violation was necessarily a violation of the other.

 

[11] The fact that the trial court judge, during in-chambers conference, remarked that if appellant were found guilty, he would be held in custody pending sentencing did not constitute a threat that the judge would penalize appellant for exercising his right to a jury trial. 

 

[12] The fact that the trial judge alerted Appellant’s counsel as to the costs associated with a jury trial constituted no cognizable prejudice to Appellant as Appellant ultimately received a jury trial. 

 

Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

 

Counsel:  For Appellants, David P. Vargas, Assistant Public Defender

               For Appellee, Fainu`ulelei F. Ala`ilima-Utu, Assistant Attorney General

 

OPINION

 

KRUSE, Chief Justice.


Procedural History


On April 16, 1996, appellant, Antonio Pule, was cited for Driving under the Influence (A.S.C.A. § 22.0707), Careless Driving Causing Injury and Property Damage (A.S.C.A. § 22.0701), and Not Possessing a Driver's License (A.S.C.A. § 20.0210).  The nonpossession charge was dismissed prior to trial.  Appellant entered pleas of not guilty and requested a jury trial, which was had on June 5, 1996.  The jury unanimously found appellant guilty of both offenses.  On June 7, 1996 appellant was sentenced to a suspended imprisonment term of two years and [1ASR3d9] suspension of his license for eight months.  Appellant now appeals both the decision and the sentence.


Discussion


The appellant presents five issues on appeal: 1) whether the guilty verdicts were clearly erroneous; 2) whether the trial court erred in only allowing each party two minutes for closing argument; 3) whether the conviction of multiple offenses violated A.S.C.A. § 46.3107(3) and (4); 4) whether appellant was penalized for exercising his right to jury trial; and 5) whether the court violated appellant's right to a fair trial.

 

A.  Sufficiency of Guilty Verdicts


[1-2] First, appellant argues that there was no evidence of any injury, thus precluding a conviction of Careless Driving Causing Injury.  However, Mr. Lolohea testified that his car door was pushed inward contacting his leg and as a result of the accident he experienced pain in his legs, side and back.  (Tr. 12:5-11).  A.S.C.A. § 46.3111(19) defines physical injury as "physical pain, illness, or any impairment of physical condition."


The findings of the trial court may not be set aside by the appellate division unless clearly erroneous.  A.S.C.A. § 43.0801(b); Uigalelei v. Ulufale, 17 ASR 2d 158, 160 (App. Div. 1990).  The jury obviously found Mr. Lolohea's testimony persuasive, and we do not believe this finding is clearly erroneous.  Mr. Lolohea's testimony is more than sufficient for the jury to conclude that the appellant's careless driving caused injury or physical pain to one or more individuals.


[3] Second, the appellant argues that the ASG did not prove beyond a reasonable doubt that the appellant was driving under the influence.  Appellant's argument is premised on his assertion that the he had "spiked" chew in his mouth at the time of the breathalyzer test which rendered the test ineffective.


Again we review the jury's verdict for clear error.  The record below reveals that the appellant, in attempting to overtake a vehicle that was turning off of the highway, crashed into it.  Two police officers testified that they observed that appellant's eyes were red and that his breath smelled of alcohol.  The appellant admitted to having drank two beers and a shot of tequila.  The appellant failed the Horizontal Eye Nystagmus Test, and refused to perform the other two field sobriety tests.  Further, the appellant's testimony, that he had tequila spiked tobacco in his mouth at the time of the breathalyzer, was contradicted by the appellant's wife's testimony.  (Tr. 49:13-16, 66:21-67:5).  Again we believe that jury's finding was not clearly erroneous.  There was [1ASR3d10] substantial evidence presented at trial for the jury to find that the appellant was driving under the influence, quite apart from the results of the alco-sensor breath test.

 

B.  Closing Argument


Appellant argues reversible error on the court's part in limiting closing arguments to two minutes, claiming that it deprived him of opportunity to fully and fairly present his defense.  See Woodham v. Roy, 471 So.2d 132 (Fla.App. 4 Dist., 1985).[1]  Appellant asserts that the case involved a novel, unique and complex defense, and that there were five witnesses.  As such, appellant believes he was denied the opportunity to adequately present his case. 


[4-5] A trial court has wide latitude and discretion in supervising the time limits, the scope, and the extent of argument and summation.  See Trawick v. Manhattan Life Ins. Co. of New York, N.Y., 484 F.2d 535, 538 (5th Cir. 1972).  A trial court's decision on this matter is subject to review for abuse of discretion.  Id. at 538-39.  Regardless of the time allotted for closing argument, there was strong evidence to support the appellant's conviction.  We doubt that extending time for closing arguments would have changed the jury's verdict.  As such, we conclude that there was no abuse of discretion in this case.


[6-9] Moreover, as noted, counsel failed to object to the time limit.  Generally when counsel fails to make a timely objection to some purported trial error, there must be a showing of plain error to afford a basis of reversal. See United States v. Geise, 597 F.2d 1170, 1199 (9th Cir. 1979).  T.C.R.Cr.P. Rule 52(b) defines "plain error" as "errors or defects affecting substantial rights."  As stated, the evidence against the appellant was overwhelming.  Where the evidence against a defendant is so strong that the absence of the purported error would not have changed the jury's verdict, plain error is seldom found.  Id.  Since there was strong evidence to support the appellant's conviction, we believe that the trial [1ASR3d11] court's time limitation on closing arguments did not affect substantial rights of the appellant.

 

C.  Violation of A.S.C.A. § 46.3107(3) and (4)


[10] Appellant argues that his conviction on both Driving Under the Influence and Careless Driving was in violation of A.S.C.A. § 46.3107(3), which states that a person cannot be convicted of more than one offense if:


(3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of conduct.

 

Appellant asserts that Careless Driving is the specific conduct which the Driving Under the Influence statute prohibits, but then also seems to assert that Driving Under the Influence is a merely a specific instance of Careless Driving.


We find that a violation of either statute is not necessarily a violation of the other.  One can be sober and still drive carelessly, and one can be driving safely but be stopped at a roadblock and be charged with Driving Under the Influence.

 

D.  Penalization for Exercising Right to Jury Trial


[11] Appellant claims that he was penalized for exercising his right to jury trial.  He bases this claim on a certain comment by the trial judge to counsel during a conference in chambers and upon his belief that the sentences given for first offenders are usually more lenient then the one imposed on him.


During the pretrial conference, the trial court judge told counsel that if appellant were found guilty, he would be held in custody pending the court's sentencing.  We do not believe that this constitutes a threat that the judge would penalize appellant for exercising his right to a jury trial.  Further, the sentence handed down was well within the sentencing guidelines afforded under the applicable statutes.  See A.S.C.A. §§ 46.1902, 22.0707, 22.0701, 46.2301, 46.2101, 46.2204, 22.0211 and 22.0212. 


Since the judge did not threaten to impose a stricter penalty if the appellant failed to accept the plea bargain, and since the sentence was within the applicable guidelines, we are not persuaded that the trial court penalized the appellant for exercising his right to a jury trial.  [1ASR3d12]

 

E. Violation of Right to Fair Trial


[12] Again, appellant argues that he was prejudiced by the purported "threats" of the trial judge concerning the exercising of his rights to a jury trial.  The judge also alerted the counsel as to the cost of a jury trial.  Apparently appellant believes these statements "discouraged" him from seeking a jury trial.  However, the appellant received a jury trial, and therefore there is no cognizable prejudice, regardless of whether he was "discouraged" or not.

 

Conclusion


For the reasons stated above the judgment appealed from will be AFFIRMED.


It is so Ordered.

 

**********

 



* Honorable Alfred T. Goodwin, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable J. Clifford Wallace, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior.

[1]  The Woodham court stated, quoting the Florida Supreme Court, that:

The limitation of the time for argument must of necessity, within reasonable bounds, rest in the discretion of the trial court.  This is the general rule.  The right may be waived, but, when requested, reasonable time must be allowed.  The question to be determined is what is reasonable time, and this depends upon the facts and circumstances of the case.

Id. at 133 (quoting May v. State, 103 So. 115, 116 (1925))(emphasis supplied).  The appellant, however, did not request that the time for argument be extended.  Moreover, as explained above, we believe that the time limit was not unreasonable given the facts and circumstances of this case.

 

Estate of Young v. M/V Diana Lynn,


 

ESTATE OF PEMILA YOUNG (deceased), HARRY YOUNG

Administrator, ATONIO MATA, and FA`AALIGA SEUMANUTAFA, Plaintiffs,

 

v.

 

M/V DIANA LYNN, her engines, tackle, apparel and furniture,

W. F. MANAGEMENT CO, INC., a corporation,

and Does I through X, inclusive, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 28-93

CA No. 31-94

CA No. 32-94

 

December 2, 1997

 

[1] A party against whom a claim is asserted may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

 

[2] Once a moving party has put forth a prima facie case, the party opposing summary judgment has the burden of showing that there are genuine issues of material fact which render summary judgment inappropriate.

 

[3] In reviewing the pleadings and papers supporting a motion for summary judgment, a court must view them in the light most favorable to the non-moving party.

 

[4] The definition of a “seaman” under the Jones Act is a mixed question of law and fact.

 

[5] Where the facts and the law reasonably support only one conclusion, summary judgment is mandated.

 

[6] The Jones Act provides a cause of action to seamen for personal injuries sustained in the course of their employment.

 

[7] In order for an individual to be considered a “seaman” under the Jones Act, (1) the individual’s duties must contribute to the function of the vessel or the accomplishment of its mission; and (2) the individual must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in nature and duration. [1ASR3d155]

 

[8] All circumstances of an individual’s employment must be weighed to determine whether he/she has a sufficient relationship to the navigation of vessels and the perils attendant thereon.

 

[9] Where vessel had remained in dry dock and tied up at port for at least three years, individuals who had repaired vessel in attempt to ready it for navigation were considered “land-based” employees, not seamen, and were not entitled to relief under the Jones Act.

 

[10] Where port engineer had no authority to hire crewmembers, his statement that Plaintiffs were “crewmembers’ carried no weight in determining seaman status.

 

[11] Where workers possessed expectations of becoming seamen in the future, such expectation was insufficient to raise workers to seamen status in present.

 

[12] Requirement that employee’s work be done at sea is first basic principle of being a seaman.

 

Before RICHMOND, Associate Justice, TUA’OLO, Associate Judge, and SAGAPOLUTELE, Associate Judge

 

Counsel: For Plaintiffs, Brian M. Thompson

              For Defendants, William H. Reardon

 

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

 

Introduction

 

Pemila Young (“Young”) and plaintiffs Antonio Mata (“Mata”) and Fa`aaliga Seumanutafa (“Seumanutafa”) were hired by defendant W.F. Management Co. (“W.F. Management”) to perform work in refurbishing the M/V Conquistador. On March 30 or March 31, 1992, Young, Mata, and Seumanutafa entered and began cleaning a fish well on the M/V Conquistador. They were later discovered unconscious. Mata and Seumanutafa sustained injuries as a result of this accident. Young was transported to LBJ Tropical Medical Center where he had periods of consciousness until his death several days later.

 

After repairs were completed on the Conquistador, it was certified by the U.S. Coast Guard and began to operate under the name M/V Diana Lynn.

 

Plaintiff Estate of Pemila Young (“Estate of Young”) brought a wrongful death action and Mata and Seumanutafa brought personal injury actions against defendant M/V Diana Lynn (“M/V Diana Lynn”) and W.F. [1ASR3d156] Management, the vessel’s owner. It is asserted in all three cases that Young, Mata, and Seumanutafa are “seamen” and thus entitled to sue their employer pursuant to the Jones Act and general maritime law. The court consolidated the three cases.

 

W.F. Management moved for summary judgment on grounds that Young, Mata, and Seumanutafa are not seamen and thus not entitled to recover under the Jones Act or general maritime law. We heard the motion on December 12, 1996 and took it under advisement. We also scheduled a hearing on December 31, 1996 on a contemporaneous motion filed by Young, Mata, and Seumanutafa to compel W.F. Management to produce requested crew’s lists and sale and transfer documents for the M/V Diana Lynn, information relevant to the motion for summary judgment. Then, on December 31, 1996, we deferred ruling on the motion for summary judgment until the deposition of David L. Franklin, W.F. Management’s owner, concerning the hiring of Young, Mata, and Seumanutafa, was available. This deposition was later taken and was filed in this action on April 25, 1997.

 

Discussion

 

I. Summary Judgment

 

[1-3] “A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” T.C.R.C.P 56 (b). Once the moving party has put forth a prima facie case, the party opposing summary judgment has the burden of showing that there are genuine issues of material fact which render summary judgment inappropriate. Amerika Samoa Bank v. Pacific Reliant Industries, 20 A.S.R.2d 102, 109 (App. Div. 1992); see also, Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171, 173 (Trial Div. 1994). However, “In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party.” Lang v. American Samoa Gov’t, 24 A.S.R.2d 59, 60 (Trial Div. 1993).

 

W.F. Management maintains that the issue of whether Young, Mata, and Seumanutafa are seamen, and thus eligible to sue the M/V Diana Lynn and W.F. Management under the Jones Act and general maritime law, is one of both law and fact which can be resolved on summary judgment when there is no dispute as to the material facts. The Estate of Young, Mata, and Seumanutafa argue that the issue of whether an individual is a seaman is a question of fact and cannot be appropriately decided on summary judgment.

 

[4-5] The definition of a “seaman” under the Jones Act is better characterized as a mixed question of law and fact than as a pure question [1ASR3d157] of fact. “The inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise relation to it. Nonetheless, summary judgment is mandated where the facts and the law will reasonably support only one conclusion.” McDermott Int’l Inc. v. Wilander, 498 U.S. 337, 356, 112 L.Ed.2d 866, 883 (1991) (citation omitted) See also, Kathriner v. Unisea, Inc., 975 F.2d 657, 660 (9th Cir. 1992) (upholding a summary judgment which precluded recovery under the Jones Act because the place where the plaintiffs were injured was not a “vessel in navigation”)

 

We conclude, therefore, that the issue of whether Young, Mata, and Seumanutafa are seamen is an issue appropriately decided on summary judgment.

 

II. Seaman Status

 

[6] The Jones Act provides a cause of action to a seaman for personal injuries sustained in the course of employment. 46 U.S.C.S. App. § 688 (Law. Co-op. 1987). A recent case, Heise v. Fishing Co. of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996), is quite similar to the case at bar and applies the legal definition of seaman as used in the Jones Act and general maritime law. In Heise, the court affirmed a district court’s summary judgment ruling that a temporary land-based repair worker was not a seaman under the Jones Act.

 

 

[7-8] The Heise court used the two prong test set forth in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995):

 

First, . . . an employee’s duties must contribute to the function of the vessel or the accomplishment of its mission. . . . Second, . . . a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.

 

Id.at 368, 115 S.Ct. at 2190, 132 L.Ed.2d at 337 (quotations omitted); see Heise, 79 F.3d at 906; Wilander, 498 U.S. at 355, 112 L.Ed.2d at 882. The Chandris court also emphasized that:

 

the total circumstances of an individual’s employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon. . . . [T]he ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.

 

Chandris 515 U.S. at 370, 115 S.Ct. at 2190-91, 132 L.Ed.2d at 338.  [1ASR3d158] (quotations omitted); see Heise, 79 F.3d at 906; Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (5th Cir. 1984)

 

[9-11] Young, Mata, and Seumanutafa were simply land-based employees who happened to be working on the M/V Diana Lynn at the time they were injured. W.F. Management hired them to perform repairs on the ship to help ready it for navigation. Seumanutafa did state that before the accident, John Mourian, W.F. Management’s port engineer, told him that Young, Mata, and himself were crew members. Mournian, however, had no authority to hire crewmembers. By their depositions and affidavits, Mata and Seumanutafa admit that, whatever their future expectations, they were not members of the crew when they were injured.[1] Young, Mata, and Seumanutafa never signed the ship’s articles and were never on the vessel’s crew list.

 

[12] “[T]he requirement that a seaman work at sea in the service of the ship embodies the first basic principle of the definition of seaman . . . .” Heise, 79 F.3d at 906 (emphasis in original) (citations omitted) . Land-based workers are not seamen. The M/V Diana Lynn was not in navigation at the time of the accident. The vessel had been in dry dock and tied up at port undergoing repairs for at least three years. When the vessel was shifted from one position at the dock to another, it was not under her own power. As Mata and Seumanutafa state, the ship did not leave port until after the accident.

 

Young, Mata, and Seumanutafa do not, therefore, meet the definition of seaman as established in Chandris and subsequent cases.

 

Order

 

Because Young, Mata, and Seumanutafa were land-based, non-crew member employees while working on the M/V Diana Lynn, they are not seamen entitled to remedies under the Jones Act or general maritime law. We grant summary judgment in favor of W.F. Management and the M/V Diana Lynn and against the Estate of Young, Mata, and Seumanutafa.

 

It is so Ordered.

 

**********

 



[1] “. . . John Mourian promised us we would be crew members of the vessel when it left port . . .”  Mata Aff. at 1. The Heise court addressed similar circumstances in which a plaintiff’s belief at the time of injury that he would eventually be hired as a crew member was insufficient to raise the repair worker to seaman’s status.  Heise, 29 F.3d at 906.