5ASR3d57

PROGRESSIVE

INSURANCE COMPANY (PAGO PAGO) LTD., Plaintiff

 

v.

 

SOUTHERN

STAR INTERNATIONAL, INC.

dba

HONG KONG RESTAURANT, TUTUILA

INTERNATIONAL,

INC., NTV ELECTRONICS, INC.,

KENNY

AND HELEN YOUNG, AINOAMA FATA

dba

NOFO’S STORE, AND DOES I-V, Defendants.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 129-99

 

March

13, 2001

 

 

[1] American

Samoa statutes and rules of court provide no authority for bringing a motion to

reconsider a non-final interlocutory order in a pending case.

 

[2] A motion

for reconsideration or new trial is a necessary precondition for filing an

appeal.

 

[3] The

requirement that a pre-trial order be final or fall within the collateral order

exception to the finality rule before it may be appealed applies to interim

orders before they may be reconsidered.

 

[4] As a

general rule, pre-trial orders governing discovery are neither final decisions,

nor fall within the collateral order exception.

 

[5] A party

affected by a court’s interim discovery ruling may challenge the decision on

appeal from the final decision in the case.

 

[6]

Court declined to reconsider pre-trial discovery ruling, granting motions to quash

and for protective order, since said ruling was reviewable upon appeal from

final decision in case.

 

[7]

Where counsel failed to heed Court’s warning to be forthcoming with court, and

court determined that he had violated T.C.R.C.P. 11(b)(3), monetary sanctions

were proper.

 

Before

KRUSE, Chief Justice, and LOGOAI, Associate Judge.

 

Counsel:

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

 For Defendants

Southern Star International, Inc. dba Hong 

Kong Restaurant, and Kenny and Helen Young, Paul F. Miller

 For Defendant Ainoama

Fata, Katopau T. Ainu`u

 

ORDER

ON MOTION TO RECONSIDER ORDER QUASHING

SUBPOENA

AND GRANTING PROTECTIVE ORDER

 

At

this stage in the proceedings, defendants Southern Star International, Inc. dba

Hong Kong Restaurant (“SSI”), and Kenny and Helen Young (“Youngs”) (together

“Defendants”) in their motion for reconsideration, ask the Court to revisit an

earlier decision rendered in this case. 

On January 29, 2001, we issued an interlocutory order granting Progressive

Insurance Company (Pago Pago) Limited (“Progressive”), and the Bank of Hawaii’s

motions to quash the June 5, 2000 subpoena duces tecum ad testificandum for the

Bank of Hawaii, and granted Progressive’s motion for a protective order against

the same subpoena.  On February 7, 2001,

Defendants moved for reconsideration of the order.  On February 21, 2001, Progressive responded

with a memorandum in opposition to Defendants’ motion.  The next day, counsel argued the motion.  For the following reasons, we deny

reconsideration.

 

Motion to Reconsider

or for a New Trial

 

[1-2]

American Samoa statutes and rules of court provide no authority for bringing a

motion to reconsider a non-final interlocutory order in a pending case.  While a motion for reconsideration or a new

trial is prescribed as a mandatory pre-requisite to appeal a judgment under

A.S.C.A. § 43.0802, this provision applies to final decisions, not to non-final

interlocutory orders.[1]  Under A.S.C.A. § 43.0802(a), “[b]efore filing

a notice of appeal, a motion for a new trial shall be filed within 10 days

after the announcement of the judgment.” 

The appeal must be filed “within 10 days after the denial of a motion

for a new trial.”  A.S.C.A. §

43.0802(b).  The plain language of

A.S.C.A. § 43.0802 expressly mandates that motions for reconsideration or new

trial be raised as a condition to appeal, almost immediately preceding that

appeal.

 

[3]

In Kim v. American Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990),

the Appellate Division decided that an interlocutory order must be final or

fall within the collateral order exception to be appealable:

 

To

fall within the collateral order exception, an order must (1) conclusively resolve

the disputed question; (2) resolve an important issue completely separate from

the merits of the action; and (3) be effectively unreviewable on appeal from

the final judgment in the main case.

 

Id.

(citations omitted).  Because motions for

reconsideration or new trial are brought as part and parcel of an appeal, the

requirement that a pre-trial order be final or fall within the collateral order

exception to the finality rule before it may be appealed likewise applies to

interim orders before they may be reconsidered. 

See Kim, 17 A.S.R.2d at 195 (App. Div. 1990).

 

The

purpose of motions for reconsideration is to conserve judicial resources by

allowing the trial court the opportunity to assess and correct its own errors

prior to appellate review.  However,

requiring the court to reconsider all interlocutory orders would run counter to

this very principle.  In the interest of

judicial economy we adopted the rule of finality, and the collateral order

exception to the rule as outlined in Kim, and further apply that

standard to motions for reconsideration.

 

[4-5]

Generally, pre-trial orders governing discovery are not final decisions, nor do

they fall within the collateral order exception to the rule.  A party affected by a court’s interim

discovery ruling is not foreclosed from challenging the decision on appeal from

the final decision.  See Hancock v.

State, 800 S.W.2d 683, 684 (Tex. App. 1990) (denying appellate review of

discovery order); Clark v. Monnens, 436 N.W.2d 830, 831-32 (Minn. Ct.

App. 1989); Kennedy v. Chalfin, 310 N.E.2d 233, 235 (Ohio 1974).

 

[6]

Similarly, our January 29, 2001 pre-trial discovery ruling, granting the

motions to quash and for a protective order, is reviewable upon appeal.  Therefore, since Defendants are not precluded

from challenging the discovery order upon appeal, we deny reconsideration.

 

Sanctions

 

On

June 5, 2000, Defendants served a subpoena for documents and a deposition on

the Bank of Hawaii.  Subsequently,

Progressive and the Bank of Hawaii each moved to quash the subpoena and

Progressive requested a protective order against the same.  Defendants failed to file any written

opposition before the hearing on the motion. 

Counsel for Defendants assert that, “the hearing scheduled to hear the

motions inadvertently and through no fault never occurred and the subject was

visited the first time during the pre-trial hearing on January 11, 2001.”  (Def.’s Mot. for Reconsideration 4.)  Contrary to counsel’s averment, counsel

argued the motion on June 20, 2000, and the Court took the motion under

advisement.  The matter was raised during

the January 11, 2001 pre-trial hearing, but only in the context of tying up

loose ends in preparation for trial.[2]

 

[7]

We have previously warned Defendants’ counsel, Mr. Miller, to consider seriously

his ethical duty to be forthcoming with the Court.  (Order on Motion to Quash Subpoena and for

Protective Order at 4-5 (January 29, 2001).) 

He has failed to heed this warning. 

When counsel affixed his signature to his motion for reconsideration, he

certified that “to the best of . . . [his] knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances . . . the

allegations and other factual contentions have evidentiary support.”  T.C.R.C.P. 11(b)(3).  Contrary to counsel’s certification of truth,

counsel falsely states that the Court did not hear the motions to quash the

subpoena and issue a protective order. 

We judicially note that in another matter similar to the case at bar, in

which Mr. Miller was the counsel of record, the Court ordered payment of

reasonable expenses and attorney’s fees for the bringing of the motion in the

amount of $300.00.  See YHT, Inc. v.

Oxford/Progressive Group, 5 A.S.R.3d 44, 48 (Trial Div. 2001)

(issuing protective order and commanding $300.00 payment for the bringing of

the motion).  Likewise, for counsel’s

transgression in this matter, we sanction him and order that he pay

Progressive’s costs for answering the motion in the amount of $300.00.

 

Order

 

1.

Defendants’ motion for reconsideration is denied.

 

2.

Counsel Paul Miller shall pay Progressive’s reasonable expenses, including

attorney’s fees, of answering the motion for reconsideration in the amount of

$300.00.

 

It

is so ordered.

 

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