KELEMETE MISIPEKA, Plaintiff,

 

v.

 

THE LEGISLATURE OF AMERICAN SAMOA, Defendant.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 05-03

 

May

5, 2003

 

 

[1] Summary judgment is appropriate when there is no

genuine issue as to any material fact.

 

[2] On a motion for summary judgment, the court

views the pleadings and supporting documents in the light most favorable to the

non-moving party. 

 

[3] Disputed legal questions present nothing for trial and are

appropriately resolved on a motion for summary judgment.

 

[4] Actions to enforce unwritten agreements

are subject to a three (3) year statute of limitations under A.S.C.A. §

43.0120(3).

 

[5] Actions to enforce written agreements

are subject to a ten (10) year statute of limitations under A.S.C.A. § 43.0120(3).

 

[6] A written contract, for purposes of the

statute of limitations, is one containing all the terms of a completed contract

between the two parties and is executed by one of the parties and accepted or

adopted by the other.

 

[7] A written contract is one which is all

in writing, so that all its terms and provisions can be ascertained from the

instrument itself.

 

[8] The

essential elements of a contract include the subject matter, parties, terms and

conditions, and price or other consideration.

 

[9] A

memorandum that memorializes an oral agreement between the parties satisfies

the writing requirement for purposes of the statute of limitations.

 

[10] Where

invoice signed subsequent to performance of the agreement contained all

essential terms of the agreement, but price term was altered subsequent to its

execution, court held that such writing satisfied the requirements of a written

contract, despite fact that consideration owing was issue left to be resolved.

 

[11] Although

Legislature had enacted rules defining members who could contract on its

behalf, where circumstances suggested that these “binding officers” were aware

that Committee Chairman was contracting on Legislature’s behalf and did nothing

to inform parties that their approvals were required, binding officers’

inaction and acquiescence to the Committee Chairman’s conduct caused Plaintiff

to rely on agreement and Legislature would be estopped from disavowing contract

and would instead be bound by contract under principles of agency law.

 

[12] Where seller revoked discount,

claiming that discount assumed prompt payment from purchaser, but contract

contained no such limiting provision to discount term and instead provided

alternative reason for discount, court considered seller’s unilateral action

invalid, contrary to the written agreement and would not enforce it. 

 

Before RICHMOND, Associate Justice,

MAMEA, Associate Judge, and TUPUIVAO, Associate Judge.

 

Counsel:          For Plaintiff, Pro Se

 For Defendant, Robert K. Maez.

 

ORDER

GRANTING PLAINTIFF AND

DENYING

DEFENDANT SUMMARY JUDGMENT

 

Before us are

cross-motions for summary judgment.  We

grant plaintiff’s motion and deny defendant’s motion.

I.  BACKGROUND

 

Plaintiff

Kelemete Misipeka (“Misipeka”) is a resident of American Samoa.  He is in the business of supplying sound

systems.  In the past, he has worked for

the Teuila and Mosooi Festivals, the 1997 South Pacific Mini-Games, and the

1998 Miss Americans Samoa Pageant.  In

1998, Misipeka provided sound system services to Defendant Legislature of

American Samoa (“Legislature”) for the festivities of the Fono Golden Jubilee

held in honor of the Legislature’s 50th anniversary.  He purportedly made an oral agreement with

Senator Moaali`itele Tu`ufuli (“Senator Moaali`itele”), the Chairman of the Fono

Golden Jubilee Committee.

 

The festivities

spanned six days and included performers of all types.  Misipeka was responsible for accommodating

the various audio applications including instrumental hook-ups, extra speakers

and special microphones.  Additionally,

Misipeka assisted KVZK, the local television provider, in broadcasting both

live and recorded television feeds.

 

After the

festivities ended, Misipeka sent a detailed invoice to Senator

Moaali`itele.  The total amount due was

for $33,090.  On October 30, 1998, the

invoice was initialed and approved for payment by Senator Moaali`itele.

Legislative Financial Officer, Velega Savali certified payment on October 21,

2002.  Despite the seeming approval of

Misipeka’s invoice, he was not paid.  He

contacted the Legislature and numerous attempts were made to settle the

matter.  These efforts, however, were to

no avail; the Legislature, for one reason or another, refused to pay Misipeka

for his services.

 

Understandably,

after years of trying to collect, Misipeka’s frustration pushed him to file

this suit.  Normally, this would be a

simple contract dispute ripe for resolution. 

However, it is complicated by one glaring defect.  The original contract between Misipeka and the

Legislature—specifically with Senator Moaali`itele, as chairman of the Jubilee

committee—was not put in writing.  The

only writing evincing any agreement is the invoice Misipeka subsequently sent

to the Legislature.

 

Both parties

have moved for summary judgment.  The

Legislature, in seeking to avoid payment, argues that the only agreement that

existed, if any, was the verbal agreement between Senator Moaali`itele and

Misipeka.  If true, the consequence of

such an agreement would be dismissal of the suit because the statute of

limitations has run.  See A.S.C.A.

§ 43.0120(3) (three year statute of limitation on unwritten contracts).  In the alternative, the Legislature posits

that even if there was a written agreement, the only officers that can bind the

Legislature are the President of the Senate and the Speaker of the House (“the

binding officers”).  Neither of the

binding officers, however, signed or initialed Misipeka’s invoice.

 

Misipeka, on

the other hand, argues that the invoice he sent, initialed and approved by

Senator Moaali`itele (and Velega Savali), constitutes a written contract that

extends the statute of limitations to 10 years. 

See A.S.C.A. § 42.0120(5). 

Furthermore, Misipeka contends that it is possible to contract generally

with the Legislature through agents other than the binding officers.  Indeed, he responded to the solicitation on

behalf of the Legislature, generally, and Senator Moaali`itele, as Chairman of

the Jubilee Committee, specifically, for his sound system services.

 

II.  STANDARD

 

[1-3] Summary judgment is appropriate when there is “no

genuine issue as to any material fact.” 

T.C.R.C.P. 56(c); Plaza Dep’t Store v. Dunchnak, 26 A.S.R. 2d 82,

83 (Trial Div. 1994).  The pleadings and

supporting documents are viewed in the light most favorable to the non-moving

party.  See

Amerika Samoa Bank v. United Parcel Serv., 25 A.S.R.2d

159, 161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11

A.S.R.2d 133, 136 (Trial Div. 1989).  Furthermore, as in this case, “disputed

‘legal questions . . . present nothing for trial and [are] appropriately

resolved on a motion for summary judgment.’” 

Flair Broad. Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y.

1990) (quoting Holland Indus. v. Adamar of New Jersey, Inc., 550 F.

Supp. 646, 648 (S.D.N.Y. 1982)).

 

III.  DISCUSSION

 

A.  Written or Unwritten Contract

 

[4-5] The crux of this case

comes down to one question: was the contract between Misipeka and the

Legislature written or unwritten?  The

importance of this question derives from our statutes of limitations: oral, or

unwritten, contracts carry with them a three-year statute of limitations,

A.S.C.A. § 43.0120(3), as opposed to written contracts, which can be enforced

within 10 years after the action accrues, A.S.C.A. § 43.0120(5). See generally

Pene v. Bank of Hawaii, 17 A.S.R.2d 168, 170 (App. Div. 1990). Because any

contract between the parties was reached approximately five years ago, if it

was merely an oral agreement, the suit is subject to dismissal but if it was

written, the suit can proceed.

 

[6-7] While the definition

of a written contract would seem straightforward, applying it to various

situations can be difficult.  A written

contract, for purposes of the statute of limitations, is one “containing all

the terms of a completed contract between the two parties [and] is executed by

one of the parties and accepted or adopted by the other.”  Id. at 171, (citing 3 A.L.R.2d

809, 819 (1949)).  Put another way, “[a]

written contract is one which is all in writing, so that all its terms and provisions

can be ascertained from the instrument itself.” 

Id. (quoting Mills v. McGaffee, 254 S.W.2d 716, 717 (Ky.

1953)); see Clark v. Robert W. Baird Co., Inc., 142 F. Supp. 2d 1065,

1075 (N.D. Ill. 2001); Empire Land Title v. Weyerhaeuser Mortgage, 797 P.2d.

467, 469 (Utah App. 1990); Urban Dev., Inc. v. Evergreen Building Prods.,

L.L.C., 59 P.3d 112, 119 (Wash. 2003).

 

[8] In the instant case,

we need not go beyond the invoice itself to determine “the essential elements

of the contract, which include the subject matter, parties, terms and

conditions, and price or consideration.” 

Urban Dev., Inc., 59 P.3d at 119; see Empire Land Title,

797 P.2d at 469.  But see Clark,

142 F. Supp. 2d at 1075 (no contract because parole evidence necessary to

establish terms of contract).  The

invoice in this case clearly defines the parties to the contract—Misipeka and

the Legislature; both parties signed the contract; the contract was for

services rendered at the Jubilee; Misipeka was to provide the sound system for

the events of the entire six days; and the price of the services is

meticulously documented.

 

[9] The Legislature

raises two points in opposition.  First,

it notes that the document was signed after the event took place and after the

services were rendered.  However, “a

memorandum that memorializes an oral agreement between the parties satisfies

the writing requirement” for purposes of the statute of limitations.  Urban Dev., Inc., 59 P.3d at 119; see

Evans v. Pickett Bros. Farms, 499 P.2d 273, 275 (Utah 1972); cf. Am.

Samoa Gov’t Employees Fed. Credit Union v. Sele, 28 A.S.R.2d 21, 23 (Trial

Div. 1995) (subsequent memorandum sufficient to satisfy statute of fraud).  But cf., Evans, 499 P.2d at 276

(Ellett, J., dissenting) (arguing that contract was not in writing for purposes

of statute of limitations, though it may have qualified as a writing for

purposes of statute of frauds).  Again,

the question is not when the contract was put in writing, but whether the

writing is sufficient to constitute a contract. 

See Urban Dev., Inc., 59 P.3d at 119.

 

[10] The Legislature also

points out that after Senator Moaali`itele had signed the invoice, Misipeka

altered portions of it which had originally offered a discount.  Misipeka reasons that he did so because the

discount was only for prompt payment. 

The Legislature argues that this act prevented any bargained-for

consideration.  We disagree with the

Legislature’s contention.  At most,

Misipeka’s actions create a dispute as to the sum owed.  But the fact remains that the invoice clearly

shows that a sum is owed, regardless of the amount.  That is sufficient to show an element of the

contract, even if we now have to interpret the contract and determine how much

is due.  See Claxton v. Mains, 514

N.E.2d 427, 429 (Ohio App. 1986).

 

B.  Contract with the Legislature

 

The Legislature’s other argument is

that even if we find a written contract existed, that contract was between Misipeka

and the Senator Moaali`itele. Furthermore, it argues that such a contract is

not enforceable against the Legislature since only the binding officers can

obligate the Legislature by written agreement. 

In support, the Legislature cites Legislative internal rules that are,

at best, ambiguous.[1]

The Legislature’s argument is not only self-serving but also specious.

 

[11]

But even assuming the Legislature’s argument has some merit, it can still be

liable under the theory of agency. 

Nothing prevents the binding officers from delegating their authority to

others, or acting in a way to create liability generally.  In this case, we find that, at the very

least, if the binding officers are truly the only legislators who have the

power to contract, they are estopped now from denying the Legislature’s

liability and shifting the burden solely to Senator Moaali`itele.   

 

We seriously

doubt that the binding officers were unaware of Senator Moaali`itele’s

conduct in organizing the Jubilee celebration. 

We take judicial notice that Senator Moaali`itele was the Chairman of

the Committee, that funds for the event were appropriated, and that the

Legislature solicited services from the public for the Jubilee

celebration.  Furthermore, Misipeka

reasonably relied on Senator Moaali`itele’s power of the purse.  There was ample time and circumstances where

the binding officers could have clarified to those dealing with Senator

Moaali`itele that only the binding officers could approve their contracts.

Instead, the binding officers’ inaction and acquiescence to Senator

Moaali`itele’s conduct carelessly caused Misipeka to rely on the fact that he

had entered into a valid contract.  See

generally Restatement (Second) of

Agency § 8B (1958).

 

Otherwise, if we

adopt the Legislature’s argument, then every contract authorized by Senator Moaali`itele

alone in regards to the celebration would be void.  Any written contract not entered

into by at least one of the binding officers for any procurement of services or

sale of goods would be invalid.   Such a

scheme would lead to preposterous results and bring the government to a

screeching halt.

 

IV.  DAMAGES

 

Having found that

there was indeed a valid, written contract between the parties, we are left

only to calculate the damages.  In this

respect, there are no genuine issues of fact either.  The original invoice provided that the amount

due was $33,090.00.  Misipeka, however,

had given the Legislature a 35% discount in honor of the “momentous

occasion.”  Having applied that discount,

the total on the invoice came to $21,508.50. 

It is not disputed that some time after Senator Moaali`itele approved payment, Misipeka, having become

disheartened by the situation, unilaterally crossed out the portion of the

invoice granting the discount.

 

[12]

Misipeka claims that he did so because the discount was only offered if payment

was received in a timely fashion. 

However, on the invoice, there is no such limiting condition on the

granting of the discount.  As a matter of

law, such unilateral action is not valid and was not agreed upon by the

Legislature.  We interpret the plain

meaning of the contract to reflect that despite late (or no) payment, the

Legislature is still privy to the discount and only owes the principle amount

of $21,508.50.

 

V.  ORDER

 

1. Misipeka’s motion for summary

judgment is granted.  The Legislature’s

motion for summary judgment is denied.

 

2. The Legislature shall pay Misipeka

$21,508.50, plus statutory interest of 6% annum ($3.547 per day) from October

31, 1998, to May 8, 2003, the date of entry of judgment, in the amount of

$5,856.10, for a total amount of $27,364.60, and costs of suit.  The Legislature shall also pay Misipeka statutory

interest of 6% per annum on the outstanding balance of total amount of

judgment, including prejudgment interest and costs of suit, until the judgment

is paid in full.

           

It is so ordered.

 

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