High Court’s jurisdiction is not plenary but subject to that enumerated by territorial legislature.Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

In appropriate circumstances, Court has jurisdiction to resolve a land dispute in a Matai title case.Nouata v. Pasene, 1 A.S.R.2d 25 (App. Div. 1980).

District Court lacks jurisdiction to try unsworn complaint.Aumua v. Am. Samoa Gov’t, 1 A.S.R.2d 43 (App. Div. 1980).

Court has no jurisdiction to alter rights and obligations with respect to persons not parties and properties not pleaded.Reid v. Tavete, 1 A.S.R.2d 85 (App. Div. 1983).

This Court has no jurisdiction to hear a petition for limitation of liability which may be brought only in a United States district court.In re M/V Ocean Pearl, 2 A.S.R.2d 21 (Trial Div. 1984).

Territorial courts are established not under Article III of the Constitution, but by Congress pursuant to the general legislative powers granted by article I and the power granted by article IV to make rules and regulations for the territories.U.S. Const. arts. I, III, IV.Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The High Court of American Samoa exercises judicial power that can be divested only by an Act of Congress.48 U.S.C. § 1662a; Rev. Const. Am. Samoa art. III § 1.Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The “judicial jurisdiction of the United States” extends to American Samoa.11 U.S.C. § 101(49).Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

High Court of American Samoa has exclusive and original jurisdiction over territorial income tax proceedings, sitting as a District Court in refund cases and a Tax Court in deficiency proceedings.A.S.C.A. §§ 11.0401, 11.0408.Klauk v. American Samoa Government, 13 A.S.R.2d 52.

Enactment of summary eviction statute did not deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages.A.S.C.A. § 43.1401 et seq.Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Even if the summary eviction statute was jurisdictional and the demand letter for possession or payment did not comply with the statute, the court properly exercised its general jurisdiction in the absence of prejudice.A.S.C.A. § 43.1401 et seq.Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

An order issued by a court without jurisdiction is null and void.Taulaga v. Patea, 17 A.S.R.2d 206.

The High Court cannot enjoin proceedings in other jurisdictions in a limitation-of-liability proceeding, because the federal statute restricts jurisdiction to federal district courts and because neither the territorial legislature nor the court’s rules can extend the court’s jurisdiction to encompass proceedings in other jurisdictions.46 U.S.C. §§ 145, 181 et seq.; T.C.R.C.P. Rule F(1).In re Complaint of Voyager, Inc., 23 A.S.R.2d 47.

A single justice has the authority to issue an alternative writ, schedule a hearing, and set a briefing schedule; however, resolution of substantive issues, other than in connection with any preliminary or supplementary matter, requires a quorum of two justices and one associate judge.A.S.C.A. §§ 3.0209, 3.0220.In re Complaint of Voyager, Inc., 24 A.S.R.2d 90.

Appeals of the High Court’s decisions are accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C.Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 97.

The High Court has jurisdiction to review only the “final decisions” of the District Court.Lafaele v. American Samoa Gov’t, 4 A.S.R.3d 35 (App. Div. 2000).

Where Court had both common law general jurisdiction and admiralty jurisdiction, action in rem against defendant vessel to enforce personal judgment could proceed under Supplemental Rule B or C of the Trial Court Rules of Civil Procedure.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Without jurisdiction, a court cannot proceed at all in any cause.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

Federal courts do not have exclusive jurisdiction over federal civil rights actions such as 42 U.S.C. § 1981, but instead have concurrent jurisdiction.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

The Trial Division of the High Court is not a court of limited jurisdiction; rather, it is a court of general jurisdiction with the power to hear any matter not otherwise provided by statute.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

The Legislature of American Samoa has the power to define the jurisdiction of the High Court as long as it is consistent with the laws and treaties of the United States and American Samoa.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

A.S.C.A. § 3.0208 clearly grants the High Court jurisdiction to hear claims brought under 42 U.S.C. § 1981.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

42 U.S.C. § 1981 applies to United States Territories, including American Samoa.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

There is no jurisdictional bar to claims that suspension of a Fono representative for his statements: (1) was an unconstitutional restrain on free speech; (2) was an unconstitutional taking of a property interest; and (3) is null.Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

§ 1(2)—Personal Jurisdiction

Awards for alimony and child support must be predicated upon in personam jurisdiction, which cannot constitutionally be had, except in unusual circumstances, in the absence of personal service of process within the court’s discretion.Tafaoa v. Tafaoa, 1 A.S.R.2d 68 (Trial Div. 1982).

Party who comes into court voluntarily seeking affirmative relief thereby subjects himself to adverse judgments beyond mere denial of the relief he seeks.Te’o v. Continental Insurance Co., 6 A.S.R.2d 135.

Duty of a person who seeks affirmative relief from a court to obey the court’s orders cannot be avoided by the device of designating another person as”attorney in fact” with power to secure affirmative judicial relief for the principal but not to subject the principal to liability arising from the same controversy in which judicial relief is sought.Te’o v. Continental Insurance Co., 6 A.S.R.2d 135.

Party who enters an appearance in pending action, not only objecting to court’s exercise of jurisdiction over property but also asserting arguments on the merits of the action, thereby subjects himself to the court’s jurisdiction notwithstanding his characterization of his appearance as “special.”In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Appearance of licensed attorney appointed as “attorney in fact” by principal outside court’s territorial jurisdiction, asserting the principal’s ownership of property within territorial jurisdiction and seeking affirmative relief, afforded an independent ground of jurisdiction over the principal and his property.In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Judgment against defendant who had not been properly served by publication would be null and void, since court would not have obtained jurisdiction over defendant.In re Three Minor Children, 10 A.S.R.2d 57.

Although court may have in personam jurisdiction to order a party to convey to another party a deed to property in another state, it cannot directly affect or determine title to that real property.Godinet v. Godinet (Mem.), 11 A.S.R.2d 156.

Appellant who had sufficiently invoked the remedial powers of the court had subjected himself to its jurisdiction so that the trial court’s exercise of such jurisdiction did not violate due process.Tedrow v. Manuma, 12 A.S.R.2d 51.

Defendant’s motion to dismiss for lack of in personam jurisdiction would be continued in order to allow discovery on the issues of fact pertaining to jurisdiction, in light of the early posture of the case and of the contentions of plaintiff that he had not had sufficient time to meet the allegations set forth in defendant’s affidavits denying jurisdiction and that defendant would not be unduly prejudiced by the resulting delay.T.C.R.C.P. 12(b)(2).Patau v. Rosendahl Corp., 12 A.S.R.2d 66.

Action had “sufficient minimum contacts” with territory, and territorial court was a convenient forum for litigation, where plaintiff seamen, who were foreign nationals employed by a foreign corporation, alleged that defendant had flown them to the territory to begin their employment and that the voyages on which alleged wrongful acts had taken place had begun and ended in the territory.Devera v. Tong Sheng Co., Ltd (Mem.), 14 A.S.R.2d 98.

Entry of an appearance by counsel, the raising of defenses on the merits without objection to the Court’s jurisdiction, and active participation in a trial on the merits would generally be regarded as a waiver of any waiveable jurisdictional defenses.Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

To properly assert personal jurisdiction over a nonresident, the long arm statute of the proposed forum must permit the exercise of jurisdiction under the particular facts of the case and such exercise of jurisdiction must satisfy the demands of due process.Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

In order to subject a nonresident defendant to a judgment in personam, due process requires that he have certain minimum contacts with the forum such that maintaining the suit does not offend traditional notions of fair play and substantial justice.Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Minimum contacts needed for due process require that a defendant must have performed some act by which he purposefully availed himself of the privilege of conducting activities within the forum, thus invoking the benefits and protection of its laws.Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Minimum contacts required for due process insure that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts or because of the unilateral activity of another party or third person.Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Jurisdiction is proper where the minimum contacts proximately result from actions of the defendant himself that are purposefully directed toward the forum and create a substantial connection with it.Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Minimum contacts required by due process to assert personal jurisdiction were not satisfied where defendant neither designed nor manufactured the machinery alleged to have injured plaintiff in American Samoa, but merely installed piping for the machinery according to third party plans when such machinery was previously installed in another location.Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

A court may extend personal jurisdiction over persons or businesses on the basis of their contacts with American Samoa.A.S.C.A. § 3.0103(b).Pene v. Bank of Hawaii, 19 A.S.R.2d 52.

A court may exercise personal jurisdiction in civil cases over persons who either reside or are found in American Samoa, have been duly summoned, or voluntarily appear.A.S.C.A. § 3.0103(a).Pene v. Bank of Hawaii, 19 A.S.R.2d 52.

A plaintiff established a prima facie case of jurisdiction over a defendant company when the verified complaint alleges facts from which it is reasonably inferred that some or all of the underlying transactions with the defendant occurred in American Samoa and when other business entities are under the supervision and control of defendant’s agents and directors.Taiwan Simon Enterprises Co. v. Kao Ya Fisheries Co., 22 A.S.R.2d 13.

Service is made upon a partnership or other unincorporated association by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or law to receive service, pursuant to T.C.R.C.P. Rule 4(d)(3).As such a partnership may be served by serving a person with substantial authority and responsibility over its activities.Pago Petroleum Products, Inc., v. Ye Ahn Moolsoan, Ltd., 25 A.S.R.2d 14.

Service on a representativeof a partnership is valid onlywith respect to the partnership, and does not confer jurisdiction over a partner individually.Jurisdiction over each partner must be acquired by service on a person or entity representing the partner for process purposes.Pago Petroleum Products, Inc., v. Ye Ahn Moolsoan, Ltd., 25 A.S.R.2d 14.

§ 1(3)—Subject Matter Jurisdiction

Village magistrates have jurisdiction to hear civil matters between natives when amount in dispute does not exceed ten dollars.Toomata v. Railey, 1 A.S.R. 623.

Village court must dismiss action for debt against Samoan brought by foreigner on behalf of foreigner because it does not have jurisdiction.Toomata v. Railey, 1 A.S.R. 623.

Defendant in civil action cannot waive lack of subject matter jurisdiction of court.Toomata v. Railey, 1 A.S.R. 623.

Where petitioner brings complaint seeking injunction against decision of Election Board and order of Election Commission, court has jurisdiction since petitioner has no other recourse, and court will hear case even though proper action would have been writ of certiorari.Tuia v. Yandall, 4 A.S.R. 559.

High Court has subject matter jurisdiction in case involving contested senatorial election by county council if: 1) the case arises under the constitution, laws or treaties; 2) it involves case or controversy; 3) the cause is described in Jurisdictional Statute.A.S. Const. Art. III, § 1; R.C.A.S. § 3.0304.Meredith v. Mola, 4 A.S.R. 773.

If claim for relief in case involving contested senatorial election requires construction of Samoan constitution, court will assume subject matter jurisdiction since claim to legislative seat is case or controversy and within general jurisdictional statute.A.S. Const. Art. II, § 1; R.C.A.S. § 3.0304.Meredith v. Mola, 4 A.S.R. 773.

Court will assume jurisdiction of suit involving political right if constitution does not specifically grant adjudicatory power to legislative power to make such determination.A.S. Const. Art. II, § 22.Meredith v. Mola, 4 A.S.R. 773.

If jurisdictional criteria are met, court will consider claim to legislative seat despite constitutional provision granting legislative powers to judge elections and qualifications of its members.A.S. Const. Art. II, § 22.Meredith v. Mola, 4 A.S.R. 773.

Court has subject matter jurisdiction of claim that petitioner was duly elected and qualified to sit in Fono.Tuitasi v. Lualemaga, 4 A.S.R. 798.

Statute of limitations does not extinguish right of action, but disallows remedy through courts.Haleck v. Scanlan, 4 A.S.R. 841.

Assertion of jurisdiction by the National Labor Relations Board over complaints charging unfair labor practices by employers in American Samoa precludes territorial court from exercising jurisdiction over such complaints.29 U.S.C. § 164(c).Su’a v. Star Kist Samoa, Inc., 4 A.S.R.2d 135.

The distance between American Samoa and the NLRB regional office in San Francisco, and consequent expense and inconvenience of bringing complaints there, were not “interests so deeply rooted in local feeling and responsibility” that territorial court could exercise jurisdiction over complaints that would otherwise be within the exclusive jurisdiction of the National Labor Relations Board.Su’a v. Star Kist Samoa, Inc., 4 A.S.R.2d 135.

Where (1) court had jurisdiction over judgment debtor and her property; (2) attorney who represented judgment debtor had successfully petitioned the court for appointment as “special guardian” of judgment debtor’s minor children for the purpose of selling real estate conveyed by her to the children and retaining funds in his trust account pending court approval of their disposition; and (3) same attorney had been designated by judgment debtor’s husband as “attorney in fact” to sell a house located on the land, court had jurisdiction to determine whether the proceeds from sale of the house were part of the proceeds from sale of the land and to enjoin removal of the proceeds from the territory pending such determination, even though husband was neither a named party to the action nor personally amenable to service of process in the territory.Te’o v. Continental Insurance Co., 6 A.S.R.2d 135.

First amendment prohibits court from assuming jurisdiction to review church electoral processes or other disputes concerning church policy and church administration.U.S. Const. amend. 1.Ofa v. Tongan Wesleyan Church, 8 A.S.R.2d 110.

Under statute requiring election appeals to be filed by 4:30 p.m. on the seventh calendar day following the election, court had no jurisdiction over an appeal filed at 8:00 p.m. on the seventh day.A.S.C.A. § 6.0903(a).Tuika v. Chief Election Officer, 9 A.S.R.2d 57.

Statutory requirement that parties submit a land dispute to the Office of Samoan Affairs before applying to the court for relief applies only to communal lands, and therefore did not deprive the court of jurisdiction over a dispute concerning individually owned lands.A.S.C.A. § 43.0302.Sese v. Leota, 9 A.S.R.2d 136.

Jurisdictional requirement that plaintiff must “file with his complaint a certificate” from office of territorial official, certifying that the parties have met twice and that the meetings did not result in a resolution of the dispute, was met where such a certificate was filed, notwithstanding evidence that an earlier letter by the same official tended to negative the existence of an irreconcilable dispute.A.S.C.A. § 43.0302.Leota v. Sese, 12 A.S.R.2d 18.

Letter from territorial official charged with mediating land disputes, stating the outline of a proposal by one of the parties but not even hinting that the other parties had ever agreed to the proposal, did not negate the existence of an irreconcilable dispute among the parties.A.S.C.A. § 43.0302.Leota v. Sese, 12 A.S.R.2d 18.

Statute requiring mediation of disputes over communal land did not apply to dispute over land which trial court concluded, consistently with the record before it, to be individually owned.A.S.C.A. § 43.0802.Leota v. Sese, 12 A.S.R.2d 18.

Motion for dismissal of action for lack of subject matter jurisdiction of the High Court of American Samoa, which went not to the jurisdiction of the court itself but to the bringing of the action in the trial division rather than the land and titles division, was without merit, as the appropriate remedy was not dismissal but transfer to the proper division; because the same judges sit in both divisions, the most important practical consequence of such a transfer would be a change in case number.Hunkin v. Grisard (Mem.), 13 A.S.R.2d 38.

According to Tax Court rule, a 90-day notice must have been issued for the court to have jurisdiction in a deficiency proceeding initiated by a taxpayer.United States Tax Court Rule 13(a).Klauk v. American Samoa Government, 13 A.S.R.2d 52.

For a trial court to have subject matter jurisdiction over actions arising under the Government Tort Liability Act, an administrative claim must first be made and either denied or ignored for three months.A.S.C.A. § 43.1205(a).Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Where a suit filed under the Government Tort Liability Act has a jurisdictional defect which is cured while the suit is pending, the court will not dismiss the suit and require plaintiff to refile since to do so would be a needless and wasteful exercise.Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

The statutory deadline for filing motions for reconsideration or new trial is jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has the power to reconsider or amend its judgment and the losing party no longer has a right to appeal.A.S.C.A. § 43.0802(a)In re Matai Title Muagututi`a, 15 A.S.R.2d 1.

Since the only difference between a three-judge panel sitting as the Land and Titles Division and the same three judges sitting as the Trial Division is whether the case is styled “CA” or “LT”, a final decision by one division is not subject to attack on jurisdictional grounds.Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Although the California family court which granted divorce judgment retained jurisdiction to enforce the judgment and the parties to that judgment could move to enforce it in that California court, High Court was not precluded from enforcing the judgment under the Uniform Enforcement of Foreign Judgments Act where both parties currently resided in American Samoa.A.S.C.A. § 43.1701 et seq. Huff v. Huff, 15 A.S.R.2d 83.

Statutory requirement that petition for redetermination of deficiency of income taxes be made within 90 days after notice of deficiency was mailed is jurisdictional.26 U.S.C. § 6213(a); A.S.C.A. § 11.0401.Stephens v. American Samoa Government, 15 A.S.R.2d 87.

The High Court, while sitting as a Tax Court for deficiency proceedings, does not have jurisdiction to hear such a deficiency proceeding unless it was filed within the statutory deadline; while sitting as a District Court for refund cases, it lacks jurisdiction until there has been payment or collection of disputed taxes.26 U.S.C. § 7422; A.S.C.A. § 11.0409. Stephens v. American Samoa Government, 15 A.S.R.2d 87.

For the purpose of foreclosing a ship’s preferred mortgage lien, the High Court is considered a “district court” and thus has jurisdiction to enforce such a lien.46 U.S.C. §§ 31301(2)(E), 31325-26. United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Under the Government Tort Liability Act, a party may not sue the government in tort until after he files an administrative claim with the Attorney General which is either still pending or denied within three months of its filing.A.S.C.A. §§ 43.1201 et seq.Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Requirement that an administrative claim first be filed is a jurisdictional prerequisite to suit under the Government Tort Liability Act.Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Claim under the Government Tort Liability Act accrues when an administrative claim is denied.Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Cause of action accrues under the Government Tort Liability Act when the administrative remedies under the Act are exhausted, because plaintiff cannot seek judicial relief until then.Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Where a party to a divorce decree issued by the High Court which provided for custody and support of the parties’ minor children and a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court declined to exercise jurisdiction on the issues of child support and custody, since the courts of domicile or residence could more effectively enforce terms ensuring the children’s welfare and best interests and had a more substantial interest in doing so.Mahoney v. Mahoney, 16 A.S.R.2d 109.

Where a party to a divorce decree issued by the High Court which provided for a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court asserted jurisdiction regarding the property issue since the property in question was still located in American Samoa.Mahoney v. Mahoney, 16 A.S.R.2d 109.

A final decision in a case in which the Court had jurisdiction over the subject matter and the parties, and in which the parties had a fair opportunity to address the issues, has the force of law and binds the parties even though it may be an erroneous decision; such a decision is not rendered “void” even if it conflicts with precedent or a non-jurisdictional statute.T.C.R.C.P. 60(b)(4).Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

Since the rule relating to the timely manner for ordering a transcript of proceedings on appeal is not jurisdictional, the court may grant additional time to comply with its requirements. A.C.R. 10(b).Opapo v. Puailoa, 17 A.S.R.2d 30.

Where a motion for reconsideration has been filed after the statutory deadline, the Appellate Division has no jurisdiction to entertain an appeal regardless of any arguments, equitable or otherwise.A.S.C.A. § 43.0802.Lualemana v. Asifoa, 18 A.S.R.2d 49.

Although the statute does not provide a remedy for a situation in which, due to an error on the part of a Court employee or a theft from counsel’s Court box a litigant does not receive notice of the judgment until after the ten-day deadline, the Court might, in extraordinary situations, entertain a T.C.R.C.P Rule 60(b) motion and vacate the previous order dismissing the motion for reconsideration for lack of jurisdiction.A.S.C.A. § 43.0802.T.C.R.C.P. Rule 60(b).Lualemana v. Asifoa, 18 A.S.R.2d 49.

If issued by a court having jurisdiction over the parties and the subject matter, an order requiring the Registrar to issue a land-registration certificate is binding on the parties and their successors in interest and can be vacated only in the most extraordinary and compelling of circumstances.T.C.R.C.P. 60(b).Ava v. Logoai, 19 A.S.R.2d 75.

ASG waived the statute of limitations applicable to the Government Tort Liability Act when it did the following: filed an answer which affirmatively admitted that the Court had jurisdiction over the parties and the subject matter; vigorously litigated the merits of the action for several years; required the defendant to undergo a deposition and to answer numerous interrogatories, requests for production of documents, and requests for admissions; sought and obtained affirmative relief from the Court by filing what amounted to a mandatory counterclaim, a permissive counterclaim, and another permissive counterclaim on behalf of a wholly-owned entity; and effectively reduced one of these claims to a substantial judgment.A.S.C.A. § 43.1204.Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

The two-year statute of limitations applicable to the Government Tort Liability Act is not a jurisdictional prerequisite but is a statute of limitations, an affirmative defense which is waived if not affirmatively pled by the defendant.A.S.C.A. § 43.1204.Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

The usual reason given for construing statutes of limitation for suits against the United States Government as jurisdictional (i.e., not subject to waiver and/or tolling)–that the limitations are deemed an integral part of the initial waiver of sovereign immunity, which should not be extended by courts beyond the intent of Congress–does not apply to ASG.Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

An administrative claim is a jurisdictional prerequisite to a suit against ASG under the Government Tort Liability Act.A.S.C.A. §§ 43.1201 et seq.Rakhshan v. American Samoa Government, 20 A.S.R.2d 1.

A required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a jurisdictional mandate without which an action should not proceed.Ava v. Logoa’i, 20 A.S.R.2d 51.

All assets of the marital estate, including assets held outside of the Territory, are subject to the court’s jurisdiction, although the court may not have jurisdiction to enforce an award of real property in another forum.Rocha v. Rocha, 20 A.S.R.2d 63.

The requirement of filing an administrative claim before filing suit under the Government Tort Liability Act is jurisdictional.A.S.C.A. § 43.1205.Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Although based on the Federal Tort Liability Act, the territorial Government Tort Liability Act does not contain the former’s exception for third-party complaints from the requirement that an administrative-claim is a prerequisite to filing suit.28 U.S.C. § 2675; A.S.C.A. § 43.1205.Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Though modelled on the Federal Tort Claims Act, as amended in 1966, the territorial Government Tort Liability Act does not contain the F.T.C.A.’s exception from the administrative-claim prerequisite for a cause of action asserted by third-party complaint, cross-claim, or counterclaim.28 U.S.C. § 2675(a); A.S.C.A. § 43.1205(a).Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88.

Although the Attorney General’s decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue at any stage of future litigation.A.S.C.A. § 43.1206.Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

The sum-certain requirement for administrative claims filed against ASG is both statutorily and administratively an integral part of the jurisdictional administrative-claim process.A.S.C.A. § 43.1203(c); A.S.A.C. § 43.0103(a).Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

A “void” judgment, from which relief may be granted, is one in which a court lacked the power to enter the judgment, as when a court lacked jurisdiction over the parties or the subject matter, violated “due process of law,” or engaged in “a plain usurpation of power.”Fed. R. Civ. P. 60(b)(4); T.C.R.C.P. Rule 60(b)(4).Reid v. Puailoa, 23 A.S.R.2d 144.

Under the dead-ship doctrine, a vessel which has been permanently removed from navigation (and so is a “dead” ship) does not attract liens of a maritime nature, and any watercraft deemed to be “dead” are outside a court’s admiralty jurisdiction.Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 24 A.S.R.2d 152.

The High Court has jurisdiction over monetary claims exceeding $5,000, pursuant to A.S.C.A. § 3.0208(a)(1), but in calculating the amount in controversy, attorney’s feesexpressly provided for by contract, and interest accrued prior to the commencement of the action may be included.Non‑contractual attorneys fees and other incidental costs may not be included in the calculation.Jessop v. Hisatake, 25 A.S.R.2d 12.

Since no statute or administrative rule compels the referral of objections to document registration to the Secretary of Samoan Affairs, the Territorial Registrar should not automatically make such referrals when such objections arise.Such cases are properly forwarded to the Secretary only if referrals are required by statute, by administrative rule,by orders of the Land Commission on a case‑by‑case basis, or pursuant to specific authority delegated to the Registrar by the Land Commission.The land Commission should establish policies and criteria for making such referrals.Tuitasi v. Lauofo, 25 A.S.R.2d 57.

A judgment of the Trial Division remains in the jurisdiction of the Trial Division, and attempts to enforce the judgment should be made at the trial level, not in the Appellate Division.Paisano’s Corp. v. Blue Pacific Management Corp., 25 A.S.R.2d 75.

The High Court lacks jurisdiction to block enforcement of federal tax laws.Alamoana Recipe, Inc., v. American Samoa Gov’t, 25 A.S.R.2d 97.

The trial court retains discretion to adjudicate claims that were not pleaded.Estate of Fuimaono, 25 A.S.R.2d 110.

A divorce decree which is final between the parties doesnot, and cannot, foreclose the possibility of ownership interests by others who were not parties to the decree, and a trial court is properly empowered to adjudicate those interests.Reine v. Taotoai, 25 A.S.R.2d 136.

When a statute prescribes administrative remedies which must be exhausted before judicial review is allowed, these procedures are jurisdictional.McGuire v. Zoning Board, 26 A.S.R.2d 59.

The Zoning Board, and not this court, has the jurisdiction to decide the issues, at the administrative level, where court has already determined that it lacked jurisdiction to decide these issues based on party’s failure to exhaust administrative remedy.McGuire v. Zoning Board, 26 A.S.R.2d 69.

The court will not retroactively dismiss a lawsuit for lack of jurisdiction when it presently has jurisdiction.The time for the motion to dismiss for lack of jurisdiction was during the time that the court did not have jurisdiction.Randall v. American Samoa Gov’t, 28 A.S.R.2d 70.

Controversies relating to land are under the exclusive jurisdiction of the Land and Titles Division.A.S.C.A. § 3.03089(b).Meredith v. Koko, 28 A.S.R.2d 149.

A defendant’s claim of communal land, even though in defense, invokes the prerequisite filing of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs or his deputy.Meredith v. Koko, 28 A.S.R.2d 149.

The power of a court of equity to appoint a trustee in a proper case is part and parcel of its general jurisdiction and control over trust estates.The court can exercise this power very broadly.The court may also make necessary orders to protect the property of such trust.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

The defense of lack of subject matter jurisdiction is properly asserted under Rule 12(b)(1), not Rule 12(b)(6).Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Once the issue of subject matter jurisdiction is raised, the burden of establishing it always rests on the party asserting jurisdiction.Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Where Court lacked subject matter jurisdiction it would not consider defense of expiration of the statute of limitations.Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Under the Jurisdictional Immunities of Foreign States Act, a court has subject matter jurisdiction to adjudicate suits against foreign government-related agencies so long as the activity concerned is not covered by the JIFSA’s immunity provisions.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

A foreign sovereign is not immune from a court’s jurisdiction in any case in which the action is based upon a commercial activity carried on in the United States by the foreign state.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

In order to satisfy the exception to immunity under the Jurisdictional Immunities of Foreign States Act, the alleged conduct must be a commercial activity, in which a private actor could take part; and there must be a nexus between the plaintiffs’ action and the commercial activity.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Where foreign, government-related entities recruited, exported, and employed workers in a for-profit garment manufacturing company in American Samoa, such actions clearly constituted commercial activity in which a private actor could equally participate and was the premise of the workers’ lawsuit.Therefore, such entities were not immune to suit under the Jurisdictional Immunities of Foreign States Act.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

Subject matter jurisdiction speaks to a court’s power to adjudicate a case.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

In deciding a motion to dismiss for lack of subject matter jurisdiction, the burden of proof is on the party claiming jurisdiction.Affidavits and other supporting material may be used to challenge or prove subject matter jurisdiction.Ainu’u v. Ainu’u, 7 A.S.R.3d 158 (Trial Div. 2003).

§ 1(4)—Issues Related to Federal Jurisdiction

Court is not bound by Federal Rules of Civil Procedure in cases involving title to land or Matai title disputes, and therefore, findings of fact and conclusions of law are not required.In re Matai Title “Tuiolesega,” 1 A.S.R.2d 37 (Land & Titles Div. 1980).

The filing of a Chapter 11 bankruptcy petition in a United States District Court prevents the High Court from subsequently obtaining jurisdiction over property of the petitioner.11 U.S.C. § 362(a).Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

Territorial court would defer as a matter of comity or full faith and credit to the lawful orders of a court of the United States properly exercising its jurisdiction even if there were no federal statute requiring it to do so.Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 6 A.S.R.2d 62.

Assertion of jurisdiction by the National Labor Relations Board over alleged unfair labor practices preempts territorial court jurisdiction over such claims.29 U.S.C. § 164(c).Su`a v. Star-Kist Samoa, Inc., 7 A.S.R.2d 58.

While interests “deeply rooted in local feeling and responsibility” may give rise to exceptions to preemption of territorial court jurisdiction by the National Labor Relations Board, the expense and inconvenience to a local resident who must file a complaint at the National Labor Relations Board offices in San Francisco does not constitute such an interest.Su`a v. Star-Kist Samoa, Inc., 7 A.S.R.2d 58.

Termination of employment due to union activity is perhaps the most obvious example of conduct which is federally preempted by the National Labor Relations Act and over which territorial court has no jurisdiction.Su`a v. Star-Kist Samoa, Inc., 7 A.S.R.2d 58.

The Federal Anti‑Injunction Act prevents the High Court, at any level, from restraining the assessment of collection of any federal tax. 26 U.S.C. §§ 876, 7421(a).Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 46.

The Federal Anti‑Injunction Act is applicable to temporary, as well as permanent pleas for injunctive relief.Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 46.

The High Court lacks jurisdiction to block enforcement of federal tax laws.Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 97.

The High Court lacks jurisdiction to grant relief for unauthorized tax collection by the IRS, since such actions must be brought in a district court of the United States, pursuant to 26 U.S.C. § 7433(a).Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 97.

The time limit for removal to federal district court is 30 days, and this clock begins ticking when a party formally intervenes and becomes a party of record, a process that may be initiated by either party.ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

§ 1(5)—Bankruptcy Jurisdiction

SEE BANKRUPTCY

Since there is neither a bankruptcy court in American Samoa nor any provision designating American Samoa as part of any district with a bankruptcy court, there exists no court with jurisdiction to entertain a bankruptcy action when the debtor’s residence, domicile, principal place of business, and principal assets are in American Samoa.11 U.S.C. § 101(49); 28 U.S.C. § 1472.Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The automatic stay of any judicial, administrative, or other proceeding against a debtor who has instituted a bankruptcy reorganization extends to proceedings in the High Court of American Samoa.11 U.S.C. § 362.Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The acknowledged unfairness to a creditor in the Territory who must travel to the United States in order to pursue his claim against a debtor in bankruptcy who is otherwise amenable to suit locally is not enough to overcome the language and policy of the statute requiring the consolidation of claims against a bankrupt debtor.11 U.S.C. § 362.Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Trial court properly held that proceedings before it were automatically stayed when defendant filed bankruptcy petition in another jurisdiction.11 U.S.C. § 362(a). Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 6 A.S.R.2d 62.

§ 1(6)—Admiralty Jurisdiction

SEE ADMIRALTY § 1 – JURISDICTION AND PROCEDURE

§ 1(7)—Right of Action

Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

A right of action grants a plaintiff the right to pursue a judicial remedy.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

§ 1(8)—Cause of Action

Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

A cause of action refers to recognized legal rights upon which a litigant bases his claim for relief.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

§ 1(9)—Rules of Civil Procedure Generally

Term “natural justice and convenience” embraces due process of law, but procedures adopted to accommodate complex litigation which do not prejudice the opportunity of any party to be fully and effectively heard and do not offend due process.Te’o v. Fanene, 1 A.S.R.2d 3 (App. Div. 1980).

Although the rules of the courts of American Samoa are based on, and in many instances identical to, federal court rules, American Samoa courts are not bound to interpret their own rules in conformity with every judicial gloss that has been written on the federal rules.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

§ 1(10)—Affidavits

In order to constitute a proper affidavit, the document must contain certain component parts, consisting of: (1) the caption or title; (2) the venue; (3) the affiant’s signature; and (4) a certificate evidencing the fact that the affidavit was properly made before a duly authorized officer.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

Affidavits must be signed in the presence of the notary, as an authorized official, to assure the affiant’s identity.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

The court will sanction attorneys who are proven to have falsely acknowledged affidavits or submitted false papers to the court.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 2Service of Process

§ 2(1)—General Provisions

Natural father’s parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be made to give actual notice. In re A Minor Child, 4 A.S.R.2d 181.

A party seeking the termination of parental rights must provide notice to the child’s natural father, either by the statutorily approved method, or by publication if permitted by court order.In re A Minor Child, 4 A.S.R.2d 181.

Court is reluctant to issue order affecting the rights of absent parties without affording them prior notice and opportunity to be heard.S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

Court may disregard land registrations if the failure to give statutory notice appears in the registration record itself.A.S.C.A. § 37.0101 et seq.Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

Courts may disregard land registrations if the failure to give notice, as required by statute, appears in the registration record itself.A.S.C.A. § 37.0101 et seq.Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71.

A collateral attack of an in rem judgment is permissible if notice in the first case was defective.Asifoa v. Faoa, 21 A.S.R.2d 91.

The district court is authorized to issue process, and an arrest warrant is a form of process.A.S.C.A. § 3.0304, T.C.R.Cr.P. 4(c)(1).American Samoa Gov’t v. Meleisea, 24 A.S.R.2d 32.

The district court is authorized to issue process, and an arrest warrant is a form of process.A.S.C.A. § 3.0304, T.C.R.Cr.P. 4(c)(1).American Samoa Gov’t v. Tagaloa, 24 A.S.R.2d 37.

When a petitioner files an affidavit that personal service cannot be made upon a respondent in a divorce action within American Samoa, due to nonresidency or unknown residency, service of process may be made by publication or registered mailing.A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e), 12(a).Pula v. Pula, 24 A.S.R.2d 93.

When personal service cannot be made upon a respondent in a divorce action within American Samoa, a petitioner may apply for an order authorizing issuance of a notice for service by publication, supported by an affidavit or another acceptable, verified statement of nonresidency or unknown residency.A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e).Pula v. Pula, 24 A.S.R.2d 151.

Service on a representative of a partnership is valid onlywith respect to the partnership, and does not confer jurisdiction over a partner individually.Jurisdiction over each partner must be acquired by service on a person or entity representing the partner for process purposes.Pago Petroleum Products, Inc., v. Ye Ahn Moolsoan, Ltd., 25 A.S.R.2d 14.

Trial court rules should be construed liberally to effectuate service, especially when the defendant receives actual notice of the suit.Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

For purposes of Trial Court Rule 4(d)(1), a person can have more than one dwelling house or usual place of abode.Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

Where defendant had lived away from his usual residence for a substantial period of time prior to action being filed, aboard boat he owned and operated, and was actually residing there at time service was made, said vessel constituted a “dwelling house or usual place of abode” for purposes of T.C.R.C.P. 4(d)(1).Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

A vessel can qualify as a dwelling house or usual place of abode.Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

A crew member aboard a private vessel serves a gate keeping function and constitutes a person “residing therein” under Rule 4(d)(1).Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

Where guest had spent at least one night aboard vessel and evidence suggested many more, he was properly considered “residing therein” for purposes of T.C.R.C.P. 4(d)(1).Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

The primary function of the service of process rules is to bring notice of the commencement of an action to a defendant’s attention and to provide a ritual that marks the court’s assertion of jurisdiction over the lawsuit.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

The Jurisdictional Immunities of Foreign States Act contains provisions for the service of process upon foreign governmental instrumentalities and agencies.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

E-mail is usually not a permitted means of service.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

The court possesses discretion to exclude unserved documents from its consideration.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

Where party knew of the service requirements under the rules and of the possible penalty for failing to affirmatively show a genuine issue for trial, yet failed to properly serve its opposition papers, Court concluded that such opposition papers would not be considered.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 2(2)—By Publication

Service by publication should be genuinely calculated to give notice of the pendency of a proceeding and of the consequences of failure to appear.Memorandum of the Justices, 3 A.S.R.2d 33.

Requirements of statute providing for notice by publication to defendant in legal proceeding must be complied with before action against defendant can proceed to trial.A.S.C.A. § 43.0502.In re A Minor Child, 7 A.S.R.2d 24.

Counsel who despite court’s notices repeatedly submitted proposed orders and notices that did not comply with requirements of notice by publication statute would be ordered to pay cost of court time consumed in connection with the improper notice, and to refrain from billing his client for time and costs of effecting improper notice.In re A Minor Child, 7 A.S.R.2d 24.

To be genuinely calculated to give notice, service by publication on a person believed to reside in Western Samoa should ordinarily be in a Western Samoa newspaper in the Samoan language, and notice in Samoan should also be mailed to the party at his last known address.A.S.C.A. § 43.0502.In re A Minor Child, 7 A.S.R.2d 125.

Territorial statute allowing service on absent defendants by publication requires three forms of notice: publication in a newspaper, posting in front of the court house, and mailing by registered mail at his last known address.A.S.C.A. § 43.0502(a).In re Three Minor Children, 10 A.S.R.2d 57.

Territorial statute requiring three forms of notice for service by publication on absent defendants requires all three elements, not just one of them.A.S.C.A. § 43.0252(a).In re Three Minor Children, 10 A.S.R.2d 57.

Of three forms of notice required by statute providing for service by publication, attempt to reach the defendant by mail is by far the most important, since it usually offers the likeliest prospect of actual notice.In re Three Minor Children, 10 A.S.R.2d 57.

§ 2(3)—By Posting

An affidavit of a posting of notice may be inadequate where:1) it alleges that notice was posted for thirty-three days, as opposed to the requisite sixty days; 2) it was subscribed before the posting took place and thus was prepared without personal knowledge as to whether the posting actually took place; 3) it does not show the signature of the person qualified to take oaths and so may not have been made under oath; and 4) it states that notice was posted in a village different from that where the deed indicated the land is located.A.S.C.A. § 37.0103(a).Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

Inadequacies of affidavit of posting may be supplemented on remand by testimony showing actual compliance with statutory guidelines.A.S.C.A. § 37.0103(a).Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

§ 2(4)—Under the JIFSA

The Jurisdictional Immunities of Foreign States Act was enacted to provide access to courts of the United States, its states and territories, for resolution of ordinary legal disputes involving a foreign sovereign, their subdivisions, agents, and instrumentalities.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

With regard to application of the Jurisdictional Immunities of Foreign States Act, the High Court of American Samoa constitutes a court of the United States.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Service in accordance with the Jurisdictional Immunities of Foreign States Act is made upon a foreign state’s agency or instrumentality by delivery of a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Individual who served as authorized representative for two foreign government-related entities, who regularly reported to such entities, and who was specifically entrusted to deal with legal matters pertaining to employment of workers from such foreign country, was an “agent” under the Jurisdictional Immunities of Foreign States Act and authorized to receive process on behalf of such entities in employment-related case.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

§ 3Pleading

§ 3(1)—General Provisions

Under the rules of the High Court, only members of the court’s bar may practice in the High Court and although the High Court may accept briefs from counsel who are not members of its bar, counsel must comply with local rules regarding the filing of motions.In re M/V Ocean Pearl, 2 A.S.R.2d 106 (Trial Div. 1986).

A defense that merely negates some element of the plaintiff’s prima facie case need not be affirmatively pled.Development Bank v. Ilalio, 5 A.S.R.2d 110.

A party waives defenses raised in its answer when it fails at trial to offer evidence and arguments in support of those defenses.Development Bank v. Pritchard, 6 A.S.R.2d 125.

Where complaint set forth a single obligation and in a single paragraph demanded the entire principal plus interest and expenses, and where court subsequently granted summary judgment for an amount smaller than the amount demanded in the complaint, the court should not later subdivide the demand into separate claims in order to construe the judgment as having only partly disposed of the case.Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Statute of limitations defense must be properly pled and proven.King v. Commissioner of Revenue, 7 A.S.R.2d 90.

Failure to plead the statute of limitations is a waiver of that defense.King v. Commissioner of Revenue, 7 A.S.R.2d 90.

Requirement that motion must state with particularity the grounds on which it is based is especially important to motion for new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion.T.C.R.C.P. Rule 7.Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

Where debtor did not plead usury as a defense to action on debt, court need not decide whether statutory penalty of forfeiture can be invoked in a civil action.A.S.C.A. § 28.1510.Shantilal Brothers Limited v. K.M.S.T. Wholesales, Inc., 9 A.S.R.2d 62.

Plaintiff could not introduce an alternative basis for government liability at closing argument, since the pleadings had not put defendant on notice to defend against such a claim.Tauiliili v. American Samoa Government, 13 A.S.R.2d 61.

Issue not raised in the pleadings or at trial could not be raised for the first time by motion for new trial.Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Defendant is entitled to come to trial prepared to defend only against the allegations in the verified complaint, not against a new and different set of allegations.Palelei v. Star-Kist Samoa, Inc., 15 A.S.R.2d 120.

If a party does not deny allegations in a complaint, he is deemed to have admitted it.T.C.R.C.P. 8(d).Beaver v. Craven, 19 A.S.R.2d 14.

Even though the failure to plead in its answer the statute of limitations applicable to the Government Tort Liability Act could not be characterized as a waiver with respect to any future amendment of the complaint, ASG was estopped from raising the statute of limitations with respect to an amended complaint when the same combination of defenses raised in its motion to dismiss could have been raised in its answer to the original complaint five years earlier, but the government instead vigorously litigated on the merits for several years and also sought affirmative relief from plaintiff by way of counterclaims and cross-claims.A.S.C.A. § 43.1204.Randall v. American Samoa Gov’t, 19 A.S.R.2d 126.

A court must treat issues that the parties have impliedly or expressly consented to try as having actually been raised in the pleadings, and thus as not waived by the failure to plead.Fed. R. Civ. P. 8, 15; T.C.R.C.P. 8, 15.Alofipo v. Va, 21 A.S.R.2d 69.

The trial court retains discretion to adjudicate claims that were not pleaded.Estate of Fuimaono, 25 A.S.R.2d 110.

T.C.R.C.P. 7(b)(1) requires that an application to the court for any order shall be by motion which shall state with particularity the grounds therefore.In re Matai Title “Lolo”, 26 A.S.R.2d 46.

In determining whether matter is scandalous such that the court should strike it from a motion, it is not enough that the matters complained of merely offend the complainor’s sensibilities if they relate to issues relevant to the defense.T.C.R.C.P. 12(f).Lacambra v. Lacambra, 28 A.S.R.2d 114.

T.C.R.C.P. Rule 12(f) only permits the court to strike scandalous material from a “pleading” and not from a motion.Rakshan v. American Samoa Gov’t, 28 A.S.R.2d 151.

Where court granted motion for reconsideration, vacating order denying motion to quash service of process, court’s actions did not dismiss or alter answer previously filed by defendant, even though said answer was filed after the court’s original order on motion to quash service.Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

A Motion for Judgment on the Pleadings should be granted only when the merits can be determined.Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

A court will not find implied consent to try an unpled issue where the party is prejudiced or unfairly surprised by the introduction of evidence outside the scope of the pleadings.Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

Where party had notice that unpled claim would be raised at trial, he could not claim unfair surprise by it being so tried.Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

Where party had opportunity to raise any and all known legal defenses to unpled claim at trial, but chose instead to deny the claim, he could not claim prejudice resulting from Court’s allowing unpled claim to be tried.Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

Where respondent had not filed an answer in response to petition for review of order, such omission did not require court to give judgment in petitioner’s favor, as rule requiring timely filing of answer imposed no sanction for its violation.Island’s Choice, Inc. v. American Samoa Gov’t, 5 A.S.R.3d 3 (App. Div. 2001).

In filing a memorandum only via facsimile, a party fails to meet the original signature requirement of T.C.R.C.P. 11.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 3(2)—Liberal Construction

High Court must construe pleadings so as to do substantial justice and therefore will occasionally permit pleadings that do not comply strictly with formal requirements.T.C.R.C.P. Rule 8(f).Development Bank v. Ilalio, 5 A.S.R.2d 110.

Principle that the court will construe pleadings so as to do substantial justice applies specifically to the requirements of affirmative and particular pleadings.T.C.R.C.P. Rules 8(f), 8(c), 9(b).Development Bank v. Ilalio, 5 A.S.R.2d 110.

Pro se pleadings should be construed to state a cause of action or a valid defense unless Court can say with assurance that the litigant can prove no set of facts in support of his claim that would entitle him to relief.Development Bank v. Ilalio, 5 A.S.R.2d 110.

Pro se defendants’ pleadings describing the facts and theories of their position were fully adequate despite their failure to use the usual legal terminology.Development Bank v. Ilalio, 5 A.S.R.2d 110.

Rule directing liberal construction of pleadings when necessary to promote justice takes on added importance when pleading party is appearing pro se.American Samoa Government v. Agasiva, 6 A.S.R.2d 32.

When plaintiffs’ pleadings asked for damages for the death of their child in terms of “emotional distress,” the trial division properly treated the suit as an action for wrongful death.A.S.C.A. §§ 43.5001 et seq.Saufo’i v. American Samoa Gov’t, 19 A.S.R.2d 54.

Although a pro se complaint should be broadly construed in the interest of justice, the complaint must nevertheless state a claim upon which judicial relief can be granted.Rakhshan v. American Samoa Government, 20 A.S.R.2d 1.

Although a claim under the survival statute was not plead with specificity, the liberal rules of pleading allows the claim when the cause of action was sufficiently noticed.Utu v. American Samoa Government, 20 A.S.R.2d 53.

If an unpleaded defense is introduced at trial without objection, the pleadings will be treated as though they had actually raised the issue; in the absence of such implicit consent, a court has the discretion to permit the amendment of pleadings over objection to conform to the evidence at trial.Fed. R. Civ. P. 15(b), T.C.R.C.P. 15(b).Alofipo v. Va, 21 A.S.R.2d 69.

When a party mistakenly designates a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.T.C.R.C.P. 8(c).Jennings v. Jennings, 22 A.S.R.2d 10.

Although a court has an obligation to liberally construe pleadings to avoid injustice, this does not extend to refashioning a plaintiff’s theory of relief in order to withstand a motion to dismiss for failure to state a claim upon which relief can be granted.T.C.R.C.P. 12(b)(6).Mackenzie v. Lutali, 24 A.S.R.2d 75.

The Trial Court Rules of Civil Procedure only require a short, plain statement that the pleader is entitled to relief, and pleadings are to be construed liberally so as to do substantial justice.T.C.R.C.P. 8(a)(1), 8(e)(1), 8(f).Morgan v. American Samoa Government, 24 A.S.R.2d 164.

The pleadings of a pro se plaintiff not learned in the law should be construed to state a cause of action unless the litigant can prove no facts which would entitle him to relief.Morgan v. American Samoa Government, 24 A.S.R.2d 164.

It is within the court’s discretion to treat an argument misdesignated as an affirmative defense, as if it had been properly pleaded as a compulsory counterclaim.T.C.R.C.P. Rule 8(c).Jennings v. Thompson, 25 A.S.R.2d 77.

Issues not raised by the pleadings but nonetheless tried by the implied or express consent of the parties are treated in all respects as if they had been raised in the pleadings.Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

A complaint alleging defamation in a letter requesting investigation by the Attorney General states no cause of action because such a request is absolutely privileged.Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div.2000).

Although a plaintiff’s allegations may be vague, pro se pleadings are construed to state a cause of action unless the court can say with assurance that the litigant can prove no set of facts in support of his claim that would entitle him to relief.Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

The court will construe pleadings and their amendments liberally, in order to do substantial justice, even if the pleadings occasionally do not strictly comply with formal requirements.American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

An alter ego claim in a complaint is sufficient notice under T.C.R.C.P. 8(a) that a plaintiff seeks to hold the defendant individually liable for certain actions.Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

§ 3(3)—Amending Pleadings

Statute does not require timely amendment of pleadings to conform to evidence for evidence to be admissible.F.R. Civ. P. 15.Tung v. Ah Sam, 4 A.S.R. 764.

Court will, per F. R. Civ. Pro. 15(b), amend pleading to proof, to determine case on merits, rather than dismiss because Plaintiff chose wrong cause of action.Moon v. Falemalama, 4 A.S.R. 836.

Court would allow claimant to amend his complaint at trial so as to state a new legal basis for liability when the amendment would create no new factual questions.T.C.R.C.P. Rule 15(b).Ryan, Inc., v. Vaka, 5 A.S.R.2d 31.

In order to promote justice, court would exercise its discretion and give respondent leave to amend its answer to assert fraud on the part of petitioner and thus avoid petitioner’s statute of limitations defense even though it had not yet been established that petition properly raised the issue.King v. Commissioner of Revenue, 7 A.S.R.2d 90.

Amended complaint supersedes rather than supplements the original complaint.Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Where amended complaint inadvertently omitted the name of one plaintiff, court would entertain a motion for second amended complaint to reinstate her as a party provided that original complaint had given defendants timely notice of her claim.Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Where plaintiffs in wrongful death action had omitted other potential plaintiffs from their pleadings, amendment of the pleadings after trial to include additional plaintiffs would be permitted only insofar as it would work no prejudice on the defendants.Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Where damages had been assessed against defendants in wrongful death action, but plaintiffs had omitted other potential beneficiaries from their pleadings and sought to cure the omission by amendment after trial, plaintiffs would be required to share their damage award with their new co‑plaintiffs.Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Amendments to pleadings should be freely made in the interest of full consideration of the merits, unless the objecting party is prejudiced by lack of notice and surprise. Thompson v. Toluao, 24 A.S.R.2d 127.

Leave to amend, pursuantto T.C.R.C.P. Rule 15(a) shall be freely given when justice so requires,with a bias toward testing claims on their merits and not on procedural defects.Leave to amend should be granted in the absence of reasons such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, or futility of the amendment.Ape v. American Samoa Government, 25 A.S.R.2d 106.

Court will exercise its discretion under T.C.R.C.P. 15(a) to grant a motion to amend pleadings where the amended pleadings merely restate the same allegations contained in the original complaint and do not give plaintiff an unfair advantage in the proceedings.T.C.R.C.P. 15(a).McKenzie v. Le’iato, 27 A.S.R.2d 63.

A T.C.R.C.P. 15(b) motion can be made at any time, even after judgment, and such requests shall be freely granted when the presentation of the merits of the action will be subserved and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.Motu v. American Samoa Gov’t, 28 A.S.R.2d 3.

The relation back of amendments is a legal fiction designed to allow the correction of technical mistakes in pleading by amendment without violating the statute of limitations.Randall v. American Samoa Gov’t, 28 A.S.R.2d 70.

A trial court may not deny leave to amend without justification.Thomsen v. Bank of Haw., 28 A.S.R.2d 86.

The court will not prevent amendment of a pleading regarding matters which are material to the case unless we see actual prejudice to the defendant or, perhaps, concrete evidence of bad faith.Thomsen v. Bank of Haw., 28 A.S.R.2d 86.

T.C.R.C.P. Rule 15(a) gives the court wide latitude to permit amendment of a pleading.It the court finds that the ends of justice and fairness are legitimately furthered by amendment,it will permit it.Thomsen v. Bank of Haw., 28 A.S.R.2d 86.

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.Pipili v. Ah Sue, 1 A.S.R.3d 63 (Trial Div. 1997).

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.Pipili v. Ah Sue, 1 A.S.R.3d 63 (Trial Div. 1997).

Where plaintiff had named non sui juris governmental entity, rather than American Samoa Government, having done so “to identify for the court which specific actors in the ASG were wrongdoers”, said error in pleading subjected complaint to dismissal, but pleading could be amended to name proper party under T.C.R.C.P. 15(a).McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

T.C.R.C.P. 15(a) allows a party to amend a pleading by leave of the court when justice so requires.McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

In order for a party to amend its pleading, changing the name of the party against whom the claim is asserted, the claim against the properly-named party must arise out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

In order for a party to amend its pleading, changing the name of the party against whom the claim is asserted, the party brought in by amendment must have (1) received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Where a more carefully drafted complaint might state a claim, a plaintiff should ordinarily be given leave to amend.Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

Where plaintiff had described actions taken by defendant of which she complained, yet failed to explicitly state any claim against defendant, proper remedy was to allow plaintiff to amend her complaint and 20 days was the appropriate time allotted for her to do so.Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

T.C.R.C.P. 15(a) is lenient, providing that a complaint may be amended freely when justice requires, and applies when the purpose is to clarify standing; and denial of leave to amend is proper only when amendment would be clearly frivolous, unduly prejudicial, cause undue delay or is done in bad faith.Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

In the absence of any apparent or declared reason–such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.,–leave to amend a complaint should, as the rules require, be freely given.American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Where defendant/cross-claimant had not moved to amend cross-claim, but simply added extraneous language to his trial memorandum, despite having more than five years time to so move, court would not accept implicit “amendment” of cross-claim because of the undue delay, prejudice resulting to other parties.American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

A minimum requirement for a party’s amendment of pleadings is that it submit a motion for leave to amend under T.C.R.C.P. 15 (a).American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Complaint must be amended when each count of complaint fails to incorporate previous paragraphs detailing allegations of action.Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

Where opposing party has already answered pleading, leave of the court is necessary to amend it.RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

Whether to grant a motion to amend the pleadings lies within the court’s sound discretion.RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

The Rules of Civil Procedure require the court to freely grant amendments when justice so requires.However, leave to amend will be denied when factors such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment are present.RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

When a motion to amend concerns the addition of a party, the movant bears the burden of demonstrating whether the third party they seek to join satisfies the requirements of being a necessary joinder ora permissive joinder under the rules.RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

In order to facilitate a proper decision on the merits of the case, the Court may allow a plaintiff leave to amend the pleadings where they are legally deficient and when justice so requires.Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

§ 3(4)—Rule 11 Sanctions

Whenever counsel signs a motion, counsel is certifying that the motion is not being presented for any improper purpose, and that legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and under T.C.R.C.P. 11(c)(1)(B) the Court is empowered to enter an order describing the specific conduct that appears to violate this rule, and direct an attorney to show cause why it has not violated the rule.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 180 (Trial Div. 2000).

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.Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

§ 4Pretrial Motions

§ 4(1)—Dismissal of Actions

When only one party remains, there can be no trial of a contested case, and dismissal is appropriate.C.A.S. 6.0106.In re Matai Title Lutali, 4 A.S.R. 10.

“Dismissal” of an action is an appropriate term for denial of all relief requested by the plaintiff after adjudication on the merits.T.C.R.C.P. Rule 41(b).Development Bank v. Ilalio, 5 A.S.R.2d 110.

A civil action may be dismissed if, upon the facts and the law, a plaintiff has shown no right to relief.T.C.R.C.P. Rule 41(b).Fuimaono v. Fuia, 23 A.S.R.2d 121.

A suit dismissed without prejudice leaves the situation the same as if the suit had never been brought in the first place.Pasesa v. Laumatia, 27 A.S.R.2d 88.

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.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.Gatolai v. American Samoa Gov’t, 1 A.S.R.3d 129 (Trial Div. 1997).

§ 4(1)(a)—General Provisions

A complaint may be dismissed even though the flaw in the pleading is “procedural” rather than “jurisdictional”.T.C.R.C.P. Rule 12 (b)(1)-(5),(7).Moeisogi v. Faleafine, 5 A.S.R.2d 131.

Motion to dismiss for failure to timely file pre-trial brief would be denied, but moving party could recover attorney fees and expenses occasioned by the delay and related proceedings from attorney who had failed to file brief.Star-Kist Samoa, Inc., v. Workmen’s Compensation Commission, 7 A.S.R.2d 137.

Where plaintiff’s counsel had been ordered to amend his pleading, did not do so for a period of two years, and did not answer letters from opposing counsel respecting the failure to amend, court would not dismiss the action for failure of diligent prosecution, but would assess against plaintiff’s counsel an award to opposing parties of the fees incurred in connection with the motion to dismiss, and would impose deadlines within which plaintiff must complete discovery and move to set a trial date.Kane v. Country Comfort, 10 A.S.R.2d 16.

Court acted properly in granting motion to dismiss at conclusion of plaintiffs’ case, at least in light of territorial statute allowing land court to proceed in such manner as it considers to be most consistent with natural justice and convenience, where plaintiffs objected that evidence they had been saving for rebuttal could have established a prima facie case but court concluded that defendants would prevail even if plaintiffs succeeded in proving every fact they offered to prove on rebuttal.A.S.C.A. § 3.0242.Willis v. Fai`ivae, 10 A.S.R.2d 121.

Court denied a motion to dismiss by defendants/trustees which argued that plaintiff was estopped from alleging breach of such trust by a trust provision requiring that disputes regarding interpretation be referred to the probate court for instructions, since such a piecemeal and novel approach to defining and sorting out the issues between litigants was meritless and unfounded.Beaver v. Cravens, 17 A.S.R.2d 6.

Order extending the time to comply with Appellate Court Rule 10(b) was affirmed, and motion to dismiss for failure to timely comply was denied, where the resulting delay was less than thirty days, the appeal would not have been perfected for the current appellate session even with timely compliance, and appellee suffered no real prejudice by the delay.Opapo v. Puailoa, 17 A.S.R.2d 30.

When a party fails to object to the court’s ruling on the motion to dismiss, any such objection must be regarded as waived.In re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

The standard of proof on a motion to dismiss at the conclusion of a plaintiff’s evidence is a preponderance of the evidence; the court is not obliged to rule on the motion at that point but may defer judgment until the close of all the evidence.Crispin v. American Samoa Gov’t, 21 A.S.R.2d 60.

For a motion to dismiss at the conclusion of a plaintiff’s evidence in a court-tried civil action, restyled by the Federal Rules of Civil Procedure as a judgment on partial findings, a plaintiff must prevail by a preponderance of the evidence.Fed. R. Civ. P. 52(c); T.C.R.C.P. Rule 41(b).Reine v. Fiame, 23 A.S.R.2d 25.

In reviewing a motion to dismiss, it is improper for the court to consider documents outside of the pleadings without converting the motion into a motion for summary judgment pursuant to T.C.R.C.P. 56.T.C.R.C.P. 56.McKenzie v. Le’iato, 27 A.S.R.2d 63.

As a general principle, policy and due process concerns favor resolution of a case on the merits.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Motions to dismiss are viewed with disfavor and are rarely granted.Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

§ 4(1)(b)—Failure to State a Claim – 12(b)(6) Motion

A complaint sufficient to state a claim upon which relief can be granted must describe the alleged injury and set forth a basis for imposing liability on defendant; conclusory allegations will not suffice.Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Complaint alleging facts which could, if proved at trial, warrant statutory remedy would not be dismissed for failure to state a claim, despite alternative possibility that case could prove to be within exception to statutory remedy.T.C.R.C.P. Rule 12(b)(6); A.S.C.A. § 43.1203(b)(5).A.S.C.A. § 43.1207Tevaseu v. American Samoa Government, 5 A.S.R.2d 10.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.T.C.R.C.P. Rule 12(b)(6).Moeisogi v. Faleafine, 5 A.S.R.2d 131.

Complaint asserting ownership of land did not fail to state a claim because of plaintiff’s failure to comply with statutory requirement of timely objection to defendant’s prior registration of land, where pleadings did not establish that defendant had complied with statutory notice requirements for registration of land.T.C.R.C.P. Rule 12(b)(6); A.S.C.A. §§ 37.0102, 37.0103.Moeisogi v. Faleafine, 5 A.S.R.2d 131.

The defense of failure to state a cause of action upon which relief can be granted has traditionally been regarded as a defense on the merits.Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Motion to dismiss may be heard on the basis of affidavits alone or through a full evidentiary hearing on the merits.T.C.R.C.P. 12(b)(2).Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

In ruling upon a motion to dismiss for failure to state a claim, the complaint must be liberally construed and viewed in the light most favorable to the plaintiff.Beaver v. Cravens, 17 A.S.R.2d 6.

Court denied a motion to dismiss for failure to state a claim which relied on plaintiff’s failure to specially plead the elements needed for a shareholder’s derivative action, since the pleaded causes of action were personal, not derivative, and plaintiff was seeking redress for herself from the corporation rather than suing on its behalf.T.C.R.C.P. 12(b)(6), 23.1.Beaver v. Cravens, 17 A.S.R.2d 6.

Where trustees filed a pleading styled as a petition to a nonexistent “probate division” of the High Court for advice and instructions, the Court denied a motion to dismiss for failure to state a claim by the surviving settlor of the trust, since the trustees did not merely seek an advisory opinion but stated a claim for declaratory relief.A.S.C.A. § 43.1101 et seq.In re Beaver Family Trust, 17 A.S.R.2d 9.

Great specificity is ordinarily not required to survive a Rule 12(b)(6) motion.ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

Filing a motion to dismiss for failure to state a claim under T.C.R.C.P. Rule 12(b)(6) in lieu of an answer satisfies a defendant’s procedural requirement under the law.Rakshan v. American Samoa Gov’t, 28 A.S.R.2d 151.

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). Pipili v. Ah Sue, 1 A.S.R.3d 63 (Trial Div. 1997).

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.Ah Soon v. Tafa’ifa, 1 A.S.R.3d 236 (Trial Div. 1997).

Under T.C.R.C.P. 12(b)(6), review of a motion to dismiss is limited to whether the claimant is entitled to offer evidence to support the claims regardless of the likelihood of recovery, and in reviewing a motion to dismiss, the pleadings should be construed in favor of the claimant, and the burden of demonstrating that there is no claim is upon the party moving to dismiss.Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

A complaint will be dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

Under T.C.R.C.P. 12(b)(6), a defense of immunity is a proper basis for granting a motion to dismiss, and a government entity is immune from suit unless it consents to suit through legislation or by acting in a non-governmental capacity.Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

In a motion for judgment on the pleadings, a court may look only at the pleadings.Administrator v. Amerika Samoa Bank, 3 A.S.R.3d 146 (Trial Div. 1999).

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Under T.C.R.C.P. 12(b)(6), a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief; the court assumes the allegations in the complaint are true, and the burden of proving the absence of a claim rests on the party seeking dismissal.Ames v. Dept. of Treasury, 4 A.S.R.3d 78 (Trial Div. 2000).

A complaint which clearly alleges that a lessor’s lease termination was wrongful because plaintiff had complied with the terms of the lease sufficiently states a cause of action for breach of the lease.Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

Under Rule 12(b)(6) a plaintiff’s factual allegations are accepted as true, and contract interpretation is not something to be decided in a Rule 12(b)(6) motion; the court liberally construes the claims of pro se litigants, and where it appears that a plaintiff has asserted a breach of contract and has implicitly made a claim for property damage such claim will not be dismissed.Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

A motion to dismiss for failure to state a claim under T.C.R.C.P. 12(b)(6) should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

In considering a 12(b)(6) motion, the court assumes the allegations in the complaint are true.Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

The burden of proving the absence of a claim rests on the party seeking dismissal.Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

A motion to dismiss for failure to state a claim will be denied unless it appears beyond doubt that no set of facts can be proven which would entitle a defendant in interpleader to relief.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

In considering a 12(b)(6) motion, all material allegations in the complaint are taken as true and construed in the light most favorable to the defendant.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

The burden of proving the absence of a claim rests on the movant.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

In considering a motion to dismiss for failure to state a claim, the pleadings are to be construed in the light most favorable to the claimant.American Samoa Gov’t v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

Complaint is interpreted in light most favorably to plaintiff in deciding motion to dismiss for failure to state cause of action.Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

Great specificity is not required to survive motion to dismiss as long as pleadings give notice of nature of claims.Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

In determining a motion to dismiss for failure to state a claim, the complaint is to be liberally construed and viewed in the light most favorable to the plaintiff.Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

The Court must take the material facts alleged in the complaint as true and read the complaint as liberally as possible, drawing all inferences in favor of the plaintiff.Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

§ 4(1)(c)—Court’s Discretion

It is for Trial Court to decide whether a demurrer to an action interposed by defendant is vexatious and merely for purposes of delay thereby assessing upon defendant costs for that portion of the action taken up by the demurrer.Dwyer v. McDonald, 1 A.S.R. 652.

Court may invoke T.C.R.C.P. Rule 12(b)(6) on its own motion.Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Court may, in its discretion, dismiss without prejudice a complaint that fails to state a claim upon which relief can be granted.T.C.R.C.P. Rule 12(b)(6).Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

In considering a 12(b)(6) motion, the court assumes the allegations in the complaint are true.McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

The burden of proving the absence of a claim rests on the party seeking dismissal.McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

§ 4(1)(d)—Compared to Summary Judgment Motion

SEE CIVIL PROCEDURE § 7(3) –COMPARED TO 12(b)(6) MOTION

Insufficient pleadings are properly attacked by motion to dismiss for failure to state a claim rather than with motion for summary judgment.T.C.R.C.P. Rule 12(b)(6), Rule 56.Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Court may treat a motion for summary judgment as a motion to dismiss for failure to state a claim when moving papers, though improperly styled, clearly state the latter.T.C.R.C.P. Rule 56, Rule 12(b)(6).Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Where a motion to dismiss for failure to state a claim upon which relief may be granted presents matters which are outside the pleadings, the court will treat the motion as one for summary judgment.T.C.R.C.P. Rule 12(b).Mauga v. Lutu, 10 A.S.R.2d 115.

Standard of proof on a motion to dismiss at the conclusion of plaintiffs’ evidence at trial, unlike the standard on a motion for summary judgment before trial, is that plaintiffs must prevail by a preponderance of the evidence.Willis v. Fai`ivae, 10 A.S.R.2d 121.

A motion to dismiss will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and considered by the court.T.C.R.C.P. 12(b)(6), 56.Samoana Fellowship, Inc. v. American Samoa Power Authority, 24 A.S.R.2d 71.

Conversion of a 12(b)(6) motion into a motion for summary judgment lies squarely with the court.ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

When a court converts a motion under T.C.R.C.P. 12(b) into a motion for summary judgment under T.C.R.C.P. 56, the court must make the parties aware that the court is considering a motion for summary judgment by giving the parties 10 days notice of the conversion.T.C.R.C.P. 12(b), 56.McKenzie v. Le’iato, 27 A.S.R.2d 63.

Where Motion for Judgment on the Pleadings is made, but Court looks beyond the pleadings, it is considered a Motion for Summary Judgment.Administrator v. Amerika Samoa Bank, 3 A.S.R.3d 146 (Trial Div. 1999).

A motion to dismiss will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and is considered by the court.Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

§ 4(1)(e)—Time for Filing Motion

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.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).BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

§ 4(2)—Motion for Judgment on the Pleadings

RESERVED

§ 4(2)(a)—Generally

RESERVED

§ 4(2)(b)—Compared to Summary Judgment Motion

RSERVED

§ 4(3)—Motion for More Definite Statement

RESERVED

§ 4(4)—Motion to Strike

§ 4(4)(a)—Generally

Motions to strike are generally disfavored and will not be granted unless the allegations’ supporting information fulfills two criteria: (1) it must have no relation to the controversy; and (2) it must be unduly prejudicial.McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Where plaintiff alleged that defendant had made misrepresentations and failed to negotiate in good faith, evidence regarding conduct of negotiations would not be inadmissible under Evidence Rule 408, nor would such evidence be immaterial or subject to being stricken under T.C.R.C.P. 12(f).McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Court refused to strike portions of memorandum of law filed in support of motion for summary judgment where movant’s asserted grounds were that the memorandum contained conclusory and unsupported statements and law cited in support of motion to strike applied only to affidavits, not memoranda of law.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

The court may deny a party’s motion to strike when it has failed to specify the specific portions of an affidavit that are objectionable.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 4(4)(b)—Relation to Controversy

In order to prove that an allegation in a pleading has “no relation to the controversy,” and hence should be struck by the Court, a party must demonstrate “that no evidence in support of the allegation would be admissible [at trial].”McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

§ 4(4)(c)—Unduly Prejudicial

RESERVED

§ 4(5)—Dismissal of Actions

§ 4(5)(a)—Generally

RSERVED

§ 4(5)(b)—Voluntary Dismissal by Plaintiff

Voluntary dismissal pursuant to T.C.R.C.P. 41, if timely filed, is available as a matter of unconditional right.Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

Voluntary dismissal under T.C.R.C.P. 41 is effective at the moment the notice is filed with the clerk, and no judicial approval is required.Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

In order to be effectuated, a voluntary dismissal must be filed before service by the adverse party of an answer or of a motion for summary judgment.Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

A plaintiff’s right to voluntarily dismiss an action under T.C.R.C.P. 41 is not extinguished by the defendant’s filing of a motion to dismiss under T.C.R.C.P. 12(b).Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

§ 4(5)(c)—Voluntary Dismissal by Court

RESERVED

§ 4(5)(d)—Failure to Prosecute

Both under the authority of T.C.R.C.P. 41(b) and through its inherent powers, a court may dismiss a case for lack of prosecution.Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Factors considered in deciding whether to dismiss a case for lack of prosecution are the court’s need to manage its docket, the public interest in the expedient resolution of litigation, the risk of prejudice to the defendants, the policy favoring resolution of disputes on their merits, and the availability of less drastic sanctions.Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Unreasonable delay is a prerequisite for dismissal for failure to prosecute.Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Unreasonable delay creates a presumption of injury to a defendant’s defenses, and actual prejudice to a defendant’s case is a factor in judging whether a delay is unreasonable.Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Where many witnesses are no longer available and much or all of the evidence has been lost, actual prejudice is shown and weighs heavily in favor of dismissal.Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Unreasonable delay is not a fixed time period, but exists when the plaintiff is totally inactive for a significant period, such as where he has been completely inactive for 12 years and is completely unresponsive in explaining the delay.Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

The burden is on the plaintiff to show that the delay was justified or excusable.Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

§ 4(5)(e)—Time for Filing Motion

RESERVED

§ 4(5)(f)—Costs of Previously Dismissed Action

RESERVED

§ 4(6)—Continuances

Trial court’s decision to grant or deny continuance will only be overturned upon clear showing of abuse of discretion.Williams v. Tupuola, 6 A.S.R.3d 44 (App. Div. 2002).

§ 5Parties

§ 5(1)—General Provisions

Real party in interest is entitled to intervene when appeal is filed against nominal appellee, such as Workmen’s Compensation Commissioner.F.R. Civ. Pro. 24.In re Westerlund v. Scanlan, 4 A.S.R. 998.

Rights and liabilities of parties depend upon facts as they existed at time of commencement of action and not at time of trial.Stevens v. Tee, 2 A.S.R. 627.

Court has no jurisdiction to alter rights and obligations with respect to persons not parties and properties not pleaded.Reid v. Tavete, 1 A.S.R.2d 85 (App. Div. 1983).

An application for designation as the proper parties in a wrongful death action has been the practice in the High Court, and such designation also appears to be statutorily required, at least in the absence of a prior designation of a personal representative (administrator or executor) of an estate.A.S.C.A. § 43.5001(b).Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

The personal representative in a wrongful-death action shall be the named plaintiff, but the action shall be brought on behalf of the surviving spouse, parents, children or other next of kin, as the court may direct.A.S.C.A. § 43.5001(b).Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

Motion to intervene in an action after court has entered judgment is barred when movants possessed knowledge of the action prior to the entering of judgment.T.C.R.C.P. 24.Development Bank of American Samoa v. Lagarejos, 27 A.S.R.2d 91.

Post-judgment intervention is generally allowed only upon a strong showing of entitlement by the applicant.Development Bank of American Samoa v. Lagarejos, 27 A.S.R.2d 91.

Where a party dies during the pendency of a case and such death is formally suggested upon the record, said action shall be dismissed as to the deceased party if a motion for substitution is not made within 90 days of the formal suggestion.Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

The parties’ actual knowledge of another party’s death, or mention of the death in court proceedings or pleadings is not sufficient to trigger the running of the ninety day period for substitution under T.C.R.C.P. 25(a)(1).Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Where no formal suggestion of death had been made upon the record prior to the parties’ motion to dismiss for failure to timely substitute, said motion triggered the ninety-day substitution period.Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

A stakeholder may be discharged if it is a disinterested party; but dismissal is improper when an interpleading plaintiff disputes its liability to the insured for an additional sum as demanded in a counterclaim.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

Under T.C.R.C.P. 22, persons having claims against the plaintiff may be joined as defendants and required to interplead; but where a person asserts no claim and disclaims any interest in the proceeds of the insurance policy at issue, he is not a proper party defendant.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

§ 5(2)—Joinder

Where evidence shows that person representing family in civil action was acting as agent of family and that matai was notified of action before decision was rendered, and family representative made no effort for continuance to permit matai to intervene, court will not reverse decision, grant new trial and permit matai to intervene where he has stood by and awaited outcome of lawsuit before attempting such intervention.Taliutafa v. Toaga, 2 A.S.R. 218.

Partner of defendant who may be liable under action may intervene as party defendant.Steffany v. Scanlan, 3 A.S.R. 456.

Persons may join as plaintiffs in action where there are common questions of law and fact affecting their separate rights.Lualemana v. Magalei, 4 A.S.R. 849.

A party that requests joinder in an action cannot later object to the joinder. Fa’atupu v. Malepeai, 2 A.S.R.2d 58 App. Div. 1985).

Potential claimants to an estate’s proceeds were to be joined as necessary parties when the complete relief granted by the court would affect the property rights of persons who were not presently parties to the action.T.C.R.C.P. 19.Jennings v. Jennings, 22 A.S.R.2d 10.

The decision to sever properly joined defendants is at the trial court’s discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant’s specific trial right or prevent the jury from making a reliable judgment about guilt or innocence.T.C.R.Cr.P. 8(b), 14.American Samoa Government v. Fealofa’i, 24 A.S.R.2d 10.

The party raising the defense of failure to join an indispensable party bears the burden of showing that the absent party would be prejudiced by proceeding with the action and so is needed for a just adjudication.T.C.R.C.P. 12(b)(7), 19.Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50.

The court determines whether or not it is feasible to join a person as a party, as a difference exists between necessary parties who cannot be served process and those who may be subject to process but who simply have not been served.T.C.R.C.P. 19.Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50.

In regards to subrogation, an insurance company must be joined as a necessary party plaintiff only if it has compensated an insured for his entire loss and if a danger exists that a defendant will face future lawsuits from the insurance company.T.C.R.C.P. 17(a), 19.Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

Joinder is appropriate when the court is asked to adjudicate upon the rights of a party who is not presently before the court.Senate v. Lutali, 26 A.S.R.2d 125.

Trial court properly denied plaintiff’s motion, at close of case, to add corporate entity as party defendant because such motion was tardy, company would not have had opportunity to defend against plaintiff’s claims, and consequently joinder would have been unjust.Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

A necessary party is defined as a person whom in whose absence, and among the already existing parties, complete relief cannot be accorded.RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

Joint and several liability does not make a party “indispensable” for purposes of Rule 19 of the Rules of Civil Procedure.RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

Multiple parties may, but need not be, joined if claims against them (1) arise out of the same transaction, occurrence, or series of transactions or occurrences and (2) will present some question of law or fact in common.RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

§ 5(3)—Class Actions

If persons constituting class are numerous, they may be represented in court by one or more as will fairly insure adequate representation of all. Lualemana v. Magalei, 4 A.S.R. 849.

Where there is class suit by representation and words “and other” are included after listing of plaintiffs on petition, decision may be binding with respect to person in class whose interests are identical with those listed as plaintiffs.Lualemana v. Magalei, 4 A.S.R. 849.

Under T.C.R.C.P. 23(a), there are four prerequisites to a class action: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Ability to identify the plaintiffs is not the criterion used to determine whether plaintiffs have met the numerosity requirement for class action; rather the court looks at the practicability of joinder, and to whether hearing the arguments as to a large number of individual plaintiffs would be impractical and would severely strain the limited resources of the court system.Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Although some allegations of numerous plaintiffs may differ, where there are ample commonalities in their claims they may be granted class action status.Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Under T.C.R.C.P. 23(b)(3), the court may certify a class action when it finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy, and allows class certification when the plaintiffs seek primarily monetary or injunctive relief.Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135(Trial Div. 2000).

In determining whether common questions predominate for class action certification, the court makes a pragmatic assessment of whether common issues of both law and fact predominate in the entire action, and may consider whether other potential plaintiffs have shown a desire to have claims adjudicated separately.Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Under T.C.R.C.P. 23(b)(3), a class action must be superior to other methods of proceeding, and it is so when individual members are likely unable or unwilling to bring an action on their own, as when many of the plaintiffs do not speak English and have little understanding of the legal system.Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Under T.C.R.C.P. 23(b)(1)(A) class action is appropriate if the prosecution of separate actions would create a risk of inconsistent or varying adjudications as to individual class members and establish incompatible standards of conduct for the party opposing the class.Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Certification of a class action under T.C.R.C.P. 23(b)(3) is appropriate where questions of law and fact common to members of the class predominate over any questions affecting only individual members, and a class action would be superior to other available methods for fair and efficient adjudication of the controversy.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

In order to maintain a class suit, each plaintiff must recover damages at the same rate.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

When a class action is brought on behalf of multiple aggrieved employees against employer, where possible individualized remedies should be utilized because it will compensate the claimants without unfairly penalizing the employer.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Where court was unable to make individual back pay awards for certain workers due to lack of payroll records, court properly employed a class-wide method to ascertain the workers’ damages by calculating the average overtime earned and payments received of the named and identifiable members of each corresponding worker’s group.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

§ 5(4)—Substitution of Parties

RESERVED

§ 5(5)—Interpleader

Under T.C.R.C.P. 22, a party attempting to interplead must have a legitimate fear of multiple liability or litigation; and the propriety of interpleader is often determined in conjunction with a motion such as a summary judgment motion.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

An interpleader is a two-stage proceeding in which the court first determines whether the requirements for interpleader have been met, and, if so, then considers the merits.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

Interpleader promotes judicial efficiency and fairness to parties by avoiding multiple litigation and inconsistent adjudications, and is liberally granted.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

In interpleader cases, the appropriate procedure for the Court is to consider the merits of the claims in the second stage of interpleader or at trial.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

§ 5(6)—Intervention

In an in rem action, party’s motion to intervene is unnecessary where party has asserted ownership of the property at issue and the court has accepted the party’s ownership claim.Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

When the owner asserts his claim to the ship and assumes the responsibility of the lawsuit by defending it and putting up a security, for all intents and purposes, he has officially intervened in the suit.Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

§ 5(7)—Consolidation

RESERVED

§ 5(8)—Counterclaims

While some courts allow the vessel itself to bring a counterclaim in an in rem action, American Samoa courts follow the approach permitting a claimant acting on behalf of the ship to counterclaim.Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

Counterclaims that arise after the initial pleadings are considered “after acquired” and can only be asserted by leave of court in exercise of its discretion.Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

Court will exercise its discretion and allow after-acquired counterclaims where claims are properly asserted as counterclaims and where permitting claims would be in the interest of judicial economy and fairness to avoid multiple litigations.Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

§ 5(9)—Cross-claims

A party cannot assert cross-claims against non-parties by amendment under T.C.R.C.P. 15; T.C.R.C.P. 14(a) requires that to file a claim against an additional party, a third-party plaintiff must serve a summons and complaint on the new parties.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 180 (Trial Div. 2000).

Under T.C.R.C.P. 13(g), cross-claims against a co-party are permitted when they arise out of the same transaction or occurrence that is the subject matter of a claim or relate to property that is the subject matter of the original action; and argument based on independence from the original claim precludes a cross-claim.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 180 (Trial Div. 2000).

A cross-claim is any claim by one party against a co-party.American Samoa Gov’t v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

T.C.R.C.P. 13(g) permits parties to assert cross-claims, arising out of the same transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or that relates to any property that is the subject matter of the original action.American Samoa Gov’t v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

A cross-claim fails to state a claim, and is subject to dismissal under Rule 12(b)(6), if it merely requests indemnity from a co-party but does not assert a plea for affirmative relief against the co-party.American Samoa Gov’t v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

Cross-claims for indemnity are permitted.American Samoa Gov’t v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

Cross-claims for indemnity must be timely made where they are available.American Samoa Gov’t v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

§ 5(10)—Third Party Practice

§ 5(11)—Bifurcated Proceedings

A trial court’s decision to bifurcate resolution of issues is reviewed for abuse of discretion.Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

Bifurcation can be at any point of a trial that will minimize the overlap in evidence between the segmented phases or otherwise promote economy and accuracy in adjudication.Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

§ 6Discovery

§ 6(1)—General Provisions

A request to produce under T.C.R.C.P. Rule 34 may only be directed to parties to the action.Parties may include non‑party corporations which are subsidiaries ofparties.Johnson v. Coulter, 25 A.S.R.2d 84.

A witness who is not an officer of a party is a non‑party witness, and her testimony may be compelled only by a subpoena issued and served in accordance with T.C.R.C.P. Rule 45(d).Johnson v. Coulter, 25 A.S.R.2d 84.

The party upon whom a request to produce is served, pursuant to T.C.R.C.P. Rule 34(b),must serve a written response within 30 days after service of the request unless the court permits a shorter length of time.Johnson v. Coulter, 25 A.S.R.2d 84.

Discovery is a liberal process under T.C.R.C.P. Rule 26(b)(1), and may include any relevant, non‑privileged material.Johnson v. Coulter, 25 A.S.R.2d 84.

A direct order by the court as provided in T.C.R.C.P. 37(a) and (b) is not a prerequisite to imposition of sanctions under T.C.R.C.P. 37(d).T.C.R.C.P. 37.Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d 94.

T.C.R.C.P. 37 permits immediate sanctions against parties for wilful failure to comply with discovery rules.T.C.R.C.P. 37.Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d94.

Ultimate production of material in question does not absolve a party where it failed to produce the material in a timely fashion.T.C.R.C.P. 37.Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d94.

The court may tailor the sanction to the severity of the misconduct. T.C.R.C.P. 37.Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d 94.

A document may be under a party’s control, even though he does not have a copy in his possession, if he has a legal right to obtain it.Pago Petroleum Products, Inc. v. Kim, 29 A.S.R.2d 218.

The language of T.C.R.C.P. 37 is mandatory–if the court grants the motion to compel discovery, the court shall award costs and attorneys’ fees.Pago Petroleum Products, Inc. v. Kim, 29 A.S.R.2d 218.

The Trial Court Rules of Civil Procedure, used in American Samoa Courts, do not follow Rule 53 of the Federal Rules of Civil Procedure regarding special masters. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Trial Court Rules governing discovery are liberally construed in favor of discovery, and parties opposing discovery have a heavy burden to show good cause why discovery should be denied; good cause requires a showing that clearly defined and serious injury, harassment, or the abuse of court processes would otherwise result; good cause is not established by showing that discovery may involve inconvenience and expense.Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

Individual has no common law right to discovery to extent that discovery materials are not judicial records or public documents. However, T.C.R.C.P. 26 permits broad discovery of information that appears reasonably calculated to lead to admissible evidence.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 20 (Trial Div. 2001).

When abusive discovery is shown, court may issue protective order circumscribing discovery to protect party from annoyance, embarrassment, oppression, or undue burden or expense.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 20 (Trial Div. 2001).

Under definition of “contract of reinsurance” in A.S.C.A. § 29.1590, T.C.R.C.P. 26(b)(2) allows discovery of existence and contents of insurance agreement between reinsurer and insurer.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

T.C.R.C.P. 26(b)(1) requires that discovery be both non-privileged and relevant to subject matter in pending action.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

Discovery of identity of reinsurers and their contracts with defendant are not relevant to subject matter of case. Although T.C.R.C.P. 26(b)(2) allows discovery as to “any insurance agreements,” Court exercised its discretion to limit discovery.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

As a general rule, pre-trial orders governing discovery are neither final decisions, nor fall within the collateral order exception.Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

A party affected by a court’s interim discovery ruling may challenge the decision on appeal from the final decision in the case.Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

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.Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

Pre-trial orders governing discovery, not falling within finality exception or collateral order exception, may only be challenged on appeal from final decision. Motion to reconsider order denying motion to compel discovery was denied.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

T.C.R.C.P. 26(f) authorizes court to call discovery conference.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

Although not adopting the federal rule mandating discovery conferences, Court found rule’s subjects of discussion to be addressed extremely practical as guidelines for what is anticipated at discovery conferenceand required that both parties’ counsel file the following before discovery conference: (a) list of subjects to be addressed by discovery; (b) proposed plan and schedule of discovery; (c) proposed limitations to be placed on discovery in addition to those already adjudicated; and (d) any other proposed orders with respect to discovery.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

All parties and their attorneys are under duty to participate in good faith in framing discovery plan.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

After discovery conference, court order will identify issues; establish plan and schedule for discovery; set limitations, if any; and determine other matters for proper management of discovery.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

Where plaintiffs sought tax returns and financial information of defendant and asserted that information might demonstrate how defendants managed to acquire funds in order to make various payments at issue in action, court determined discovery requests sought information relevant to breach of fiduciary duty claim.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Where discovery requests did not specify a time limitation, court found such requests overbroad.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 6(2)—Depositions

Deposition of a witness absent from the Territory is admissible as evidence in the High Court provided that the deposition is taken according to applicable rules, the party offering it cannot procure the attendance of the witness by process or other reasonable means, and the opposing party has an opportunity and motive to cross-examine the witness.T.C.R.Ev. 804(a)(5), (b)(1).Rakhshan v. Immigration Board, 15 A.S.R.2d 29.

The examining party may set a party’s deposition at any place which he desires, though a court may issue a protective order specifying the time and place of a deposition upon a showing of good cause.T.C.R.C.P. 30.Beaver v. Cravens, 24 A.S.R.2d 115.

What constitutes “reasonable notice” to other parties in setting the time and place for a deposition is quite flexible, depending on the circumstances.T.C.R.C.P. 30(b)(1).Beaver v. Cravens, 24 A.S.R.2d 115.

Although pre-trial discovery is broad, deposition testimony is limited to a factual examination, and may not be used to examine as to argumentative matters, or to elicit conclusions, opinions, or opinion evidence and must not require an expert opinion, or require inferences which may be drawn from facts.Berleme v. Matagiese, 3 A.S.R.3d118 (Trial Div. 1999).

An evasive or incomplete answer is treated as a failure to answer, and a motion to compel will be granted in such instance. Berleme v. Matagiese, 3 A.S.R.3d118 (Trial Div. 1999).

A defendant is entitled to have the plaintiff’s attorney deposed to answer any question relating to anything contained in the complaint which the defendant does not understand and wants amplified, and is entitled to be told what proof the plaintiff has to support such charges. Berleme v. Matagiese, 3 A.S.R.3d118 (Trial Div. 1999).

A motion to compel will not be granted as to a question which is argumentative and serves no purpose in providing additional discovery information. Berleme v. Matagiese, 3 A.S.R.3d118 (Trial Div. 1999).

Opposing counsel may be deposed when no other means exists to obtain the desired information, and the information sought is relevant and nonprivileged, and the information is crucial to case preparation.Berleme v. Matagiese, 3 A.S.R.3d118 (Trial Div. 1999).

Objections to the form of the question are proper objections for deposition, especially if it presumes a predicate.Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

Where an objection to a question is based on attorney-client privilege, the basic rationale for asserting the privilege must be elicited for the court to make a meaningful evaluation of the privilege claim. Berleme v. Matagiese, 3 A.S.R.3d118 (Trial Div. 1999).

A party is not required to answer questions which are not within his knowledge, and limits exist as to what a witness should be required to do in order to prepare to answer oral questions. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

Although deposition was rancorous and terminated prematurely, Court refused to impose artificial regulations of conduct beyond those already provided by the Trial Court Rules of Civil Procedure, but instead warned that such rules were to be followed. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Under T.C.R.C.P. 32(a)(3), a deposition is excludable when the deponent is not shown to be unavailable.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Under T.C.R.C.P. 32(a)(4), if a portion of a deposition is used by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

The examining party may set the deposition of a party at any place which he desires, subject to the power of the court to grant a protective order if deemed necessary.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

The court may issue a protective order designating the location for an oral deposition in order to protect the party being deposed from “undue burden or expense” upon a showing of good cause.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

A presumption exists that a non-resident defendant will be deposed at his place of residence.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

In the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party’s residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 6(3)—Interrogatories

RESERVED

§ 6(4)—Production of Documents & Things

Defendants proffered no explanation as to how subpoenaed information is reasonably calculated to lead to discovery of admissible evidence inasmuch as information regarding party’s financial condition or net worth is generally considered irrelevant. Court found compliance with subpoena oppressive and unduly burdensome, given sensitive nature of plaintiff’s financial information and burden of producing requested documents. Court granted motion to quash subpoena duces tecum and issued protective order. Plaintiff’s motion for T.C.R.C.P. 11 sanctions was taken under advisement.Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 20 (Trial Div. 2001).

Requests for production under T.C.R.C.P. 34 may only be directed to the parties to the action.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

A requesting party may seek the production of documents or things which are in the possession, custody, or control of the responding party.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

“Control”, as used in T.C.R.C.P. 34, includes both the actual possession of the requested materials or the legal right to obtain the materials.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

The term “control”, as used in T.C.R.C.P. 34, is broadly construed.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

The party seeking production of documents or things under T.C.R.C.P. 34 bears the burden of establishing that the responding party controls the requested materials.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

An individual party to a lawsuit can be compelled to produce relevant information and documents relating to a non-party corporation of which it is an officer, director, or shareholder.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Where requesting party established that responding party served on board of corporation, was one of the incorporators of corporation, was 33% shareholder of corporation, and was president of corporation, such was sufficient to show that responding party had control over corporation and could be expected to produce records of corporation.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

When financial information is relevant to the subject matter at issue it is discoverable.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Courts perform a two prong test prior to ordering the disclosure of tax returns: first, the court must find that the returns are relevant to the subject matter of the action; and second, the court must find that there is a compelling need for the returns because the information contained therein is not otherwise readily obtainable.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Once relevance has been established, the party resisting discovery bears the burden of proving that alternative sources would provide the required information.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 6(5)—Physical & Mental Examinations

RESERVED

§ 6(6)—Requests for Admission

RESERVED

§ 6(7)—Protective Orders

RESERVED

§ 6(8)—Sanctions

When court is asked to deem certain facts established in movant’s favor as a sanction for discovery violations, but such sanction would effectively work a dismissal or judgment in movant’s favor, court will apply same standards as if movant were directly seeking dismissal. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Dismissal will only be ordered in response to Rule 37 violations as a last resort, and only where less severe sanctions would not be effective.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

T.C.R.C.P. 37(a)(4) authorizes the award of reasonable expenses, including attorney’s fees, to a party that successfully obtains a court order to compel discovery, and sanctions may be imposed on the party failing to comply with discovery, or the party’s attorney advising non-compliance, or both.Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

Court denied plaintiff’s motion to compel discovery, granted defendant’s motion for protective order, and awarded reasonable expenses of motion, including attorney’s fees. Plaintiff’s counsel may resume deposition but shall not ask irrelevant questions regarding reinsurers of insurance policy issued to plaintiff.YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

§ 6(9)—Expenses

Under T.C.R.C.P. 37(a)(4), the court has authority to award costs and attorney’s fees to the prevailing party on a motion to compel.Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 7Summary Judgment

§ 7(1)—Standard

Party moving for summary judgment assumes burden of showing compliance with all statutory requirements necessary to support his position.Sec. 10.0112 R.C.A.S.Muagututi’a v. Vaovasa, 4 A.S.R. 105.

When parties maintain that they have settled a claim after trial had begun, but thereafter submit separate proposed judgments, court may treat submissions as cross motions for summary judgment.Jennings v. Tavai, 1 A.S.R.2d 81 (App. Div. 1983).

On motion for summary judgment, there was no genuine issue of material fact requiring trial on the merits where the parties differed in their characterizations of the material facts but the facts themselves were undisputed.Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162.

Court deciding a motion for summary judgment must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party.Lokan v. Lokan, 6 A.S.R.2d 44.

The main question in a motion for summary judgment is whether any triable issue of fact remains.Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

On motion for summary judgment, facts asserted by the non-moving party are presumed to be true and the Court may draw such inferences from the non-moving party as are most favorable to that party.Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

Summary judgment is appropriate if the pleadings and supporting papers show that 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).D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11.

In considering a motion for summary judgment, the court must consider all pleadings and supporting papers in the light most favorable to opposing party, and must also give such party the benefit of all inferences reasonably deducible from the evidence.T.C.R.C.P. 56.D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11

Party seeking injunction as matter of summary judgment must show that no material question of fact remains.T.C.R.C.P. 56.Tufono v. Vaeao, 13 A.S.R.2d 47.

Summary judgment is appropriate when the pleadings and supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”T.C.R.C.P. 56.Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

In ruling on a summary-judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to him.T.C.R.C.P. 56.Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

When a defendant has provided no showing regarding the context in which a release was signed–the negotiations preceding its execution; the circumstances under which it was signed; whether the underlying payment was a settlement under A.S.C.A. § 32.0668, commuted per A.S.C.A. § 32.0666; or whether the Commissioner had approved such settlement or issued a formal compensation order–an inference of invalidity must be drawn in plaintiff’s favor for purposes of summary judgment.A.S.C.A. §§ 32.0668, 32.0666; T.C.R.C.P. 56.Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

If there is no genuine issue as to any material fact, summary judgment can be rendered if either party is entitled to a judgment as a matter of law.T.C.R.C.P. 56.Beaver v. Craven, 19 A.S.R.2d 14.

In a summary judgment motion, the non-moving party is to be given the benefit of all reasonable inferences to be drawn from the evidence.Estate of Tuilesu v. Asifoa, 20 A.S.R.2d 45.

Regarding a summary-judgment motion, a court assumes the truth of the evidence presented by the non-moving party and draws inferences most favorable to the non-moving party.American Samoa Power Authority v. National Pacific Insurance Co., 23 A.S.R.2d 100.

In determining whether “no genuine issue as to any material fact” exists, a court views the pleadings and papers supporting the summary-judgment motion in the light most favorable to the non-moving party.T.C.R.C.P. 56(c).Lang v. American Samoa Government, 24 A.S.R.2d 59.

In deciding a summary-judgment motion, a court views the pleadings and supporting papers in the light most favorable to the non-moving party; nonetheless, the parties’ differing in their characterization of the facts but not the facts themselves does not create a “genuine issue of material fact.”T.C.R.C.P. 56(c).Samoana Fellowship, Inc. v. American Samoa Power Authority, 24 A.S.R.2d 71.

Summary judgment is appropriate when no genuine issue of material fact exists.Jessop v. Hisatake, 25 A.S.R.2d 12.

Summary judgment is only appropriate when “no genuine issue as to any material fact” exists. In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non‑moving party. That is, the facts must be beyond dispute, and the non‑moving party’s factual assertions, supported by evidence such as affidavits, are presumed to be true.T.C.R.C.P. 56(c).YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 121.

Summary judgment is a drastic remedy to be granted only where the requirements of Rule 56 have clearly been met.A motion for such a judgment does not entitle the court to try issues of fact.In deciding the existence of factual issues to be tried, a court must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is soughtwith the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute.Thus, summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 121.

In ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party,treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to him.Amerika Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159.

Summary judgment is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.T.C.R.C.P. 56.In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, and draw from such evidence the inferences most favorable to that party.Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171.

Summary judgment is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to him.Asifoa v. National Pacific Insurance, 26 A.S.R.2d 23.

A defendant is not entitled to a trial upon the unsubstantiated hope that he can produce convincing evidence at trial.ASG Employees Federal Credit Union v. Galea`i, 26 A.S.R.2d 74.

Summary judgment is only appropriate when no genuine issue as to any material fact exists.In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party.The facts must be “beyond dispute,” and the non-moving party’s factual assertions, supported by evidence such as affidavits, are presumed to be true.Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82.

In ruling on a motion for summary judgment, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to him.Plaza Department Store v. Duchnak, 26 A.S.R.2d 106.

Summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82.

In ruling on a motion for summary judgment the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to him.American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Summary judgment is a drastic and final remedy that operates to deprive the non-moving parties of their day in court.American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Summary judgment is appropriate where the pleadings and supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. Rule 56.American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

It is not the duty of the court to assume or to provide the legal basis of a moving party’s motion for summary judgment.T.C.R.C.P. 56.Richmond Wholesale Meat Co. v. J.M. Gebauer, Inc., 27 A.S.R.2d 61.

To determine that no material fact exists, the facts must be “beyond dispute,” even though the non-moving party’s factual assertions, supported by discovery material, are presumed to be true, and all inferences are construed in a light most favorable to the non-moving party. T.C.R.C.P. 56.Polynesian Airlines v. E.P.S., Inc., 27 A.S.R.2d 69.

To determine that no material fact exists on a motion for summary judgment, the facts must be “beyond dispute,” even though the non-moving party’s factual assertions, supported by discovery material, are presumed to be true, and all inferences are construed in a light most favorable to the non-moving party.T.C.R.C.P. 56.Kent Samoa v. Shimasaki, 27 A.S.R.2d 140.

T.C.R.C.P 56(d) demands that we establish uncontroverted facts only if practicable, not whenever possible.American Samoa Gov’t Employees Federal Credit Union v. Sele, 28 A.S.R.2d 21.

The underlying purpose of T.C.R.C.P. 56(d) is to speed up litigation by eliminating before trial matters when there is no genuine issue of fact.American Samoa Gov’t Employees Federal Credit Union v. Sele, 28 A.S.R.2d 21.

A court is generally required to grant partial summary judgment deciding certain factual issues, even when a complete disposition of the case is not possible.American Samoa Gov’t Employees Federal Credit Union v. Sele, 28 A.S.R.2d 21.

The purpose of T.C.R.C.P. Rule 56(e) is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.Carpenters Fiji, Ltd. v. Pen, 28 A.S.R.2d 202.

Upon a motion for summary judgment, the court is required to view the evidence and the inferences that can be drawn therefrom in the light most favorable to the opposing party.The burden is upon the moving party to show that there is no genuine issue of material fact in dispute, and all doubts must be resolved against the movant. Pita v. Garrett, 29 A.S.R.2d 141.

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. BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

On motion for summary judgment, non-moving party’s factual assertions, supported by evidence such as affidavits, are presumed to be true.BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

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.Where the facts and the law reasonably support only one conclusion, summary judgment is mandated. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

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.Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Summary judgeent is appropriate only when the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

In ruling on a summary judgment motion, the Court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to the opposing party.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Under T.C.R.C.P. 56(c), summary judgment is appropriate when, after the court views the pleadings and supporting papers in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Taylor v. Solaita, 3 A.S.R.3d 218 (Land & Titles Div. 1999).

Summary judgment is appropriate only when the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 65 (Trial Div. 2000).

In considering a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to the opposing party. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 165 (Trial Div. 2000).

Summary judgment is 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.Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

On a motion for summary judgment, the court must view the pleadings and supporting papers in the light most favorable to the non-moving party.Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

If the moving party on a motion for summary judgment makes a prima facie showing that would entitle him or her to a directed verdict if uncontroverted at trial, the burden then shifts to the adverse party, who must set forth specific facts showing that there is a genuine issue for trial.Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

If the moving party on a motion for summary judgment makes a prima facie showing that would entitle him/her/it to a directed verdict if uncontroverted at trial, the burden then shifts to the adverse party, who must set forth specific facts showing that there is a genuine issue for trial.Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

A court deciding a motion for summary judgment must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party.YRT, Inc. v. Progressive Ins. Co., 6 A.S.R.3d 108 (Trial Div. 2002).

Court deciding motion for summary judgment must assume truth of evidence presented by non-moving party and draw inferences from evidence most favorable to non-moving party.Langkilde v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 198 (Trial Div. 2002).

Summary judgment is only appropriate when no genuine issue as to material fact exists and moving party is entitled to judgment as matter of law.Langkilde v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 198 (Trial Div. 2002).

Disputed legal questions present nothing for trial and are appropriately resolved on a motion for summary judgment.Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

Summary judgment is appropriate when there is no genuine issue as to any material fact.Misipeka v. Legislature of American Samoa, 7 A.S.R.3d 96 (Trial Div. 2003).

On a motion for summary judgment, the court views the pleadings and supporting documents in the light most favorable to the non-moving party.Misipeka v. Legislature of American Samoa, 7 A.S.R.3d 96 (Trial Div. 2003).

Disputed legal questions present nothing for trial and are appropriately resolved on a motion for summary judgment.Misipeka v. Legislature of American Samoa, 7 A.S.R.3d 96 (Trial Div. 2003).

Judicial economy is not a factor the court may consider under T.C.R.C.P. 56.RDL, Inc. v. American Samoa Community College, 7 A.S.R.3d 103 (Trial Div. 2003).

T.C.R.C.P. 56(d) establishes a procedural mechanism whereby a district court can, with the acquiescence of the parties, narrow the factual issues for trial.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

The standard for determining a Rule 56(d) motion is identical to the standard used for determining a motion brought under Rule 56(c).American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

Under T.C.R.C.P. 56(c), summary judgment is appropriate when the pleadings and other supporting documents show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

After the movant has shown that there is no genuine issue of material fact, the non-moving party must then affirmatively show there is a genuine issue for trial.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

In considering a motion for summary judgment, all inferences are construed in a light most favorable to the non-moving party.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

When both parties file cross motions for summary judgment, the court must consider each motion separately and apply controverted facts in a light most favorable to the nonmovant.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

Summary judgment is appropriate where the pleadings and supporting documents show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

In ruling on a summary judgment motion, a court must: (1) view all pleadings and supporting documents in the light most favorable to the nonmoving party; and (2) treat the nonmoving party’s evidence as true and draw from such evidence the inferences most favorable to the opposing party.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

On a motion for summary judgment, the moving party bears the burden of showing there is no genuine issue of material fact.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 7(2)—Opposition to Motion

The party opposing summary judgment has the burden, once movant has put forward a prima facie case, of showing that there exists genuine issues of material fact which render summary judgment inappropriate.Amerika Samoa Bank v. Pacific Reliant Industries, 20 A.S.R.2d 102.

As non‑moving parties, plaintiffs cannot prevail on a motion for summary judgment merely by asserting that a genuine issue exists for trial.Plaintiffs are not entitled to a trial upon the unsubstantiated hope that they can produce such evidence at trial.Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

A non‑moving party’s single affidavit, if inadequate, may be insufficient opposition.Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

For summary judgment purposes, party must provide a minimum level of convincing proof when faced with opposing party’s credible and convincing evidence.Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171.

If the proof in support of a motion for summary judgmenthas a high degree of credibility, the opponent must produce convincing proof to warrant denial of the motion.Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171.

Where the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof.Thus, the burden on the moving party may be discharged by pointing out that there is an absence of evidence to support the nonmoving party’s case.ASG Employees Federal Credit Union v. Galea`i, 26 A.S.R.2d 74.

On a motion for summary judgment the burden on the moving party may be discharged by pointing out that there is an absence of evidence to support the nonmoving party’s case. American Samoa Government v. Bernard, 26 A.S.R.2d 110.

Motion for summary judgment is wholly insufficient where moving party did not file any affidavits or other materials allowed by T.C.R.C.P. 56, and did not cite any authority stating the appropriate standard of review for summary judgment, or affirming that summary judgment is even the proper remedy for failure to respond to a T.C.R.C.P. 36 request for admissions, or showing that the facts admitted, even if true, give rise to the relief prayed for in the complaint.T.C.R.C.P. 56.Richmond Wholesale Meat Co. v. J.M. Gebauer, Inc., 27 A.S.R.2d 61.

In American Samoa a party opposing another’s motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.Carpenters Fiji, Ltd. v. Pen, 28 A.S.R.2d 202.

As non-moving party to a motion for summary judgment, a defendant is not entitled to a trial upon the unsubstantiated hope that he can produce such evidence at trial.A defendant cannot prevail by merely asserting that a genuine issue exists for trial.American Samoa Gov’t Employees Federal Credit Union v. Hunkin, 31 A.S.R.2d 180.

Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party’s offering.If the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof.American Samoa Gov’t Employees Federal Credit Union v. Hunkin, 31 A.S.R.2d 180.

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.Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

If the party moving for summary judgment makes a prima facie case that would entitle the movant to a directed verdict if uncontroverted at trial, the burden shifts to the adverse party, who must set forth specific facts showing that there is a genuine issue for trial.Dameworth v. Am. Samoa Gov’t, 6 A.S.R.3d 242 (Trial Div. 2002).

Where opposing party objected to exhibit submitted in support of summary judgment motion and movant did not respond to objection, court properly excluded such exhibit from considerations pursuant to T.C.R.C.P. 56(e).American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

On a motion for summary judgment, the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

A party opposing another’s motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

After the movant shows that there is no genuine issue of material fact on a motion for summary judgment, the nonmoving party must then bear the burden of affirmatively showing that there is a genuine issue for trial.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

Under T.C.R.C.P. 5(a), a party opposing summary judgment must serve the movant with its opposition papers.Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 7(3)—Compared to 12(b)(6) Motion

SEE CIVIL PROCEDURE § 4(4) – COMPARED TO SUMMARY JUDGMENT MOTION

Dismissal of the complaint, not summary judgment, is the appropriate method of disposing of a case for failure to join an “indispensable party”; the rationale is that summary judgment is a judgment on the merits and bars the cause of action, whereas an order of dismissal only “abates” the claim and is without prejudice to the institution of a later action.T.C.R.C.P. 12(b)(7), 19, 56.Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50.

The court treated a motion for default judgment as a motion for summary judgment when plaintiff had documents admitted into evidence and when a pro se defendant’s unsigned, typed statement was treated as an answer.T.C.R.C.P. 55, 56.Tauoa v. Tino, 24 A.S.R.2d 88.

Conversion of a 12(b)(6) motion into a motion for summary judgment lies squarely with the court.ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

§ 7(4)—Compared with Motion for Default Judgment

Evidence of amount of debt, presented in support of motion for default judgment or similar summary proceeding, should consist not of conclusory affidavit by attorney, but of bank ledgers and other direct evidence from which court can conclude for itself whether the amount has been correctly calculated.Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

A motion for summary judgment against a defaulting party is inappropriate when the civil-procedure rules expressly provide for a motion for default judgment, which is designed to minimize injustice to non-appearing parties.Fed. R. Civ. P. 55, 56; T.C.R.C.P. 55, 56. Amisone v. Talaeai, 22 A.S.R.2d 51.

§ 7(5)—Compared with Motion for Partial Summary Judgment

A plaintiff who moves for summary judgment in an amount smaller than the amount he sought in his complaint, although he was legally entitled to judgment for the entire amount, thereby surrenders the right to further relief unless the caption or the text of the motion states or clearly implies that it seeks only a partial summary judgment. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Rule requiring that trial judge examine pleadings and evidence to determine what material facts remain in dispute after granting motion for partial summary judgment applies only when judgment is not rendered upon whole case or for all relief requested.T.C.R.C.P. 56(d).Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Although plaintiff who moved for summary judgment may have had subjective intent to seek additional amounts owed it, court will not construe judgment as only a partial summary judgment unless record contains objective indicia such that reasonable person could believe plaintiff had asked court to resolve only some issues but not others.Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Under T.C.R.C.P. 56(d), if only part of the case is appropriate for summary adjudication, the court may grant partial summary judgment in an order specifying the facts that appear without substantial controversy. Taylor v. Solaita, 3 A.S.R.3d 218 (Land & Titles Div. 1999).

If a case involves other defenses that raise no material issues of fact they may be the subject of a partial summary adjudication in plaintiff’s favor in accordance with the procedure prescribed in Rule 56(d).American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 7(6)—Within Court’s Discretion

A trial court possesses the discretion to deny a summary judgment motion.A summary judgment motion may be denied when the trial court desires an inquiry into the facts to clarify the application of the law, even if summary judgment is technically justified.This is especially true when a court may be able to avoid deciding difficult or uncertain questions of law by making factual determinations.YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 121.

A trial court possesses the discretion to deny a summary judgment motion when it desires an inquiry into the facts to clarify the application of the law.Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82.

Where moving party has provided no clear demonstration of legal authority that would allow this court to enter a decision on the motion for summary judgment as a matter of law, the court may exercise its discretion to deny the motion for summary judgment without prejudice.T.C.R.C.P. 56.Richmond Wholesale Meat Co. v. J.M. Gebauer, Inc., 27 A.S.R.2d 61.

A motion for summary judgment may be denied at any time and for any reason when the court concludes that justice is served by proceeding to trial rather than resolving the case on motion.American Samoa Power Auth. v. National Pac. Ins. Co., Ltd., 30 A.S.R.2d 149.

§ 7(7)—By Affidavit

Affidavit by party moving for summary judgment, consisting of conclusory characterization of the moving party’s own unidentified records, did not constitute evidence of the fact asserted therein; for the purpose of the motion for summary judgment, this question of fact must be resolved in favor of opposing party.Bank of Hawaii v. Pene, 8 A.S.R.2d 30.

Statements of counsel at oral argument on a motion for summary judgment are not a substitute for affidavits based on personal knowledge and should not be used by the court as a basis for factual determination.Palelei v. Star-Kist Samoa, Inc., 9 A.S.R.2d 35.

When one party has moved for summary judgment based on affidavits, depositions, or answers to interrogatories, the other party may not rest on the allegations in his pleadings but must set forth by affidavit, deposition, or answers to interrogatories specific facts showing that there is a genuine issue for trial.T.C.R.C.P. Rule 56(e).Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Affidavits setting forth facts to support opposition to motion for summary judgment must be by one who has personal knowledge of the facts, not by attorney with no such personal knowledge.T.C.R.C.P. 56(e).Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Motion for summary judgment based on a statement of facts going beyond the factual allegations of the complaint and unsupported by affidavit should be summarily denied.Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

Where the only evidence as to the claims of two parties to shares of rental payments due is affidavits provided by those parties showing their respective percentages of interest in the rented land, those parties are entitled to summary judgment on the matter.T.C.R.C.P. Rule 56(e).American Samoa Government v. Tuiasosopo, 18 A.S.R.2d 98.

T.C.R.C.P. Rule 56(e) states clearly that “affidavits shall be made on personal knowledge, . . . [containing] facts as would be admissible…, and shall show affirmatively that the witness is competent to testify to the matters therein. Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party’s offering.If the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof.Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

A non‑moving party’s single affidavit, if inadequate, may be insufficient opposition.Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

An affidavit filed in support of summary judgment that does not comply with Rule 56(e) may be stricken.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 7(8)—Notice and Hearing

Notice of second motion for summary judgment, which if granted would increase judgment debt from $5 million to $17 million, should be given to interested parties who received prior notice that sale of vessel was to be made to satisfy the original $5 million judgment, even though action was in rem against the vessel and interested parties had not intervened, since they might have relied to their detriment on earlier notice.Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 18.

On a motion for summary judgment all parties must be given reasonable opportunity to present all material made pertinent to such a motion.ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

Adherence to notice requirements is necessary in order to present the opposing party with an adequate opportunity to put forward their best response.ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

§ 7(9)—Summary Judgment Denied

Plaintiff’s motion for summary judgment would be denied where, on the construction of the facts most favorable to defendant, the defendant had a claim against the plaintiff which was a proper subject of setoff and which was at least as great as the amount of plaintiff’s claim against defendant.South Seas Trading Co. v. Suamalie Construction Co., 6 A.S.R.2d 80.

Where there is no evidence of circumstances surrounding delay in filing suit, except for plaintiff’s assertion that he did not know defendants were occupying his land until shortly before suit was filed, court could not grant summary judgment for defendants on the ground of laches.Roberts v. Sesepasara, 8 A.S.R.2d 43.

Trial court improperly awarded summary judgment in defendant employer’s favor as material facts remained in dispute where, of the two grounds on which employer might legally have terminated plaintiff’s employment, defendant denied one and plaintiff denied the other.Palelei v. Star-Kist Samoa, Inc., 9 A.S.R.2d 35.

Where bus driver’s supervisor submitted affidavit that any use of bus other than transporting children to school was outside the scope of driver’s employment, but there is evidence that passengers on school bus may have been government employees who had been working on the bus, whether driver was within scope of employment is a disputed material fact precluding summary judgment.Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

On motion for summary judgment, where there was some evidence of plaintiff’s discovery of her injury and its cause more than one year before she brought action, but other evidence tended to show that plaintiff might have been convinced by defendants’ agents that she had not been injured, a triable question of fact remained with respect to whether the action was barred by one-year statute of limitations.Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

Plaintiff suing for value of goods paid for by defendants with checks drawn against insufficient funds was denied summary judgment where defendants raised triable issues of fact, claiming that plaintiff coerced them into sales contract; supplied unordered goods and overcharged for incomplete quantities of goods; and induced one of the defendants to sign a letter acknowledging liability by assuring them it was merely “for the record” and that they should “not worry” about it. D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11.

Summary judgment would be awarded plaintiff on issue of land ownership previously established in a proceeding having in rem effect, but would be denied with respect to injunction against interference or encroachment on land where the pleadings and papers did not clearly show such interference or encroachment and where survey of disputed land in prior proceeding showed existing structures that might raise equitable issues.Tufono v. Vaeao, 13 A.S.R.2d 47.

Summary judgment was denied since the permission of an owner of a rental car was a triable issue of fact where the court refused to imply or deny as a matter of law that the owner permitted drivers not specified in the rental contract.Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.

Since no release is valid except as otherwise provided for by the Workmen’s Compensation Act, summary judgment was not available when the record was unclear on whether the release agreement was approved by the Workmen’s Compensation Commission.A.S.C.A. § 32.0672; T.C.R.C.P. 56.Patau v. Rosendahl Corp., 19 A.S.R.2d 80.

When a court would have to assess evidence and the parties’ credibility to resolve the issue of negligence, summary judgment is inappropriate.Ghiselli Bros., Inc. v. Ryan, Inc., 22 A.S.R.2d 57.

When a party disputed an assertion that a written insurance contract was the product of mutual mistake and so did not reflect the actual terms of the policy, a factual dispute precluding summary judgment existed.American Samoa Power Authority v. National Pacific Insurance Co., 23 A.S.R.2d 100.

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.BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

Where a question of law regarding the legality of poker machines in the territory was not sufficiently settled, plaintiff’s motion to summary judgment premised on claim of illegality could not be granted.Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 65 (Trial Div. 2000).

Where statute of limitations defense was premised upon when plaintiff knew or should have known the evidentiary basis of his fraud claim, triable issue of fact existed and trial court’s grant of summary judgment was improper.Stancris Sales Co. v. Yong, 6 A.S.R.3d 39 (App. Div. 2002).

§ 7(10)—Summary Judgment Granted

Second motion for summary judgment, which if granted would increase judgment debt from $5 million to $17 million, raises questions (1) whether the proposed relief was requested in the pleadings and (2) whether contract debt was merged into the prior judgment, precluding further relief in excess of judgment amount.Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 18.

A plaintiff who moves for summary judgment in an amount smaller than the amount he sought in his complaint, although he was legally entitled to judgment for the entire amount, thereby surrenders the right to further relief unless the caption or the text of the motion states or clearly implies that it seeks only a partial summary judgment.Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Where party opposed summary judgment on the ground that there had been a settlement of the dispute, but even when the facts were taken in the light most favorable to this party no reasonable person could have concluded that the other party had agreed to a settlement, summary judgment would be granted.Bank of Hawaii v. Pene, 8 A.S.R.2d 30.

No reasonable person could conclude that creditor had agreed to a settlement proposed by debtor, and therefore no question of material fact was raised with respect to such settlement, where the evidence, taken in the light most favorable to the debtor, was that (1) debtor had told creditor’s representative he had no intention of paying the debt but that he was willing to surrender a car that had been taken as collateral security; (2) creditor never verbally agreed to this proposal; (3) creditor had the legal right to take the car and then collect the remainder of the debt; (4) debtor had the subjective impression that creditor’s representative was happy to receive the car, since otherwise the creditor would receive nothing at all; (4) creditor never took the car.Bank of Hawaii v. Pene, 8 A.S.R.2d 30.

Defendant was entitled to summary judgment on plaintiff’s claim that she had been duly elected to the senate about four years before the commencement of the term for which she claimed to have been elected.Rev. Const. Am. Samoa art. II §§ 4, 6.Mauga v. Lutu, 10 A.S.R.2d 115.

Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated by a person under the influence, but continued coverage provided on behalf of third party beneficiaries who did not consent to the vehicle being driven by the intoxicated driver, defendant insurance company was granted summary judgment against plaintiff insured who had not consented to his intoxicated brother driving the vehicle, since the exception to the exclusionary clause did not apply where the indemnity and/or insurance was provided on behalf of the insured.Thompson v. National Pacific Insurance, 16 A.S.R.2d 114.

Summary judgment was appropriate when plaintiff proved the only debt it sought to collect and defendants presented no evidence to support their suggestion, contained in an affidavit, that they were entitled to offsets.T.C.R.C.P. 56.Nelson & Robertson Pty., Ltd. v. U Suk Ko, 19 A.S.R.2d 12.

Summary judgment is appropriate when the only issue raised by an objector to a land/building separation agreement is identical to the issue she and her predecessor raised in a previous case and that issue was litigated and decided between the parties.T.C.R.C.P. 56.Fanene v. Fanene, 19 A.S.R.2d 69.

If a case has not been brought within the time limits of A.S.C.A. § 43.0120, summary judgment may be properly entered against plaintiff(s).Patau v. Rosendahl, 20 A.S.R.2d 77.

§ 7(11)—Appropriate Issues For Summary Judgment

Whether a particular matai has the power to evict people living on communal land depends on many facts and circumstances and is generally not a question for summary judgment.T.C.R.C.P. 56.Fanene v. Fanene, 19 A.S.R.2d 69.

Since issue of negligence depends on the reasonableness of a party’s conduct, it cannot ordinarily be disposed of by summary judgment.Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Questions as to intent, as well as questions going to knowledge, timing, and control, are generally not appropriate for summary judgment.American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Summary judgment is properly used for interpreting a contract whose terms are considered by opposing parties to be clear and unambiguous, despite disagreement between the parties as to what the agreement provides.American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 7(12)—Standard of Review

The appellate court reviews a grant of summary judgment de novo.Thompson v. National Pacific Insurance, 20 A.S.R.2d 85.

§ 7(13)—Grounds for Appeal

T.C.R.C.P. 56(f), which allows a party opposing a motion for summary judgment to move for a continuance so that it may secure facts by affidavit sufficient to oppose the motion, is not a proper basis for appeal, but must be invoked prior to the Court’s ruling on the summary judgment motion.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

§ 8Injunctions

SEE REAL PROPERTY § 15(2) – INJUNCTIONS

§ 8(1)—General Provisions

The automatic stay provided in the Bankruptcy Act differs from an injunction or temporary restraining order only in that the stay becomes binding without an affirmative act of the bankruptcy court.11 U.S.C.§ 362(d)&(e).Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Punishment is not the purpose behind injunctive relief.Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Party seeking injunction as matter of summary judgment must show that no material question of fact remains.T.C.R.C.P. 56.Tufono v. Vaeao, 13 A.S.R.2d 47.

In apparent recognition of the unusual nature of interests often being asserted in Samoan land disputes, the territorial legislature has provided that in such disputes a justice may make such preliminary orders as to him seem just to restrain any Samoan from exercising any right or doing any act, matter, or thing affecting or concerning any Samoan land pending the outcome of the litigation, without requiring that any specific irreparable harm be shown.A.S.C.A. § 43.0303.Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Punishment is not the purpose behind injunctive relief.Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

The High Court’s general admiralty jurisdiction includes limiting a shipowner’s liability to the value of the ship, although lacking the statutory power of federal district courts to enforce this principle by injunction, pending the outcome of the limitation proceeding.Fa’atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy; as such, it may order a special shareholders’ meeting if a board of directors, though lacking any discretion in the matter, fails to call a meeting.A.S.C.A. § 43.1302.Lutali v. Foster, 24 A.S.R.2d 39.

The sa’o of a family is the only person who is authorized to seek injunctive relief in actions concerning disputes or controversies over communal land; if the title is vacant or the sa’o is incapacitated, the application may be brought by (1) two blood matai male members of the family over age 18, or (2) if the family lacks two blood matai male members, two blood members of the family over age 18, if either is untitled or a female.A.S.C.A. § 41.1309(b).Savea v. Tunu, 24 A.S.R.2d 63.

A plaintiff’s attorney’s fees are ordinarily excluded from judgments for injunctive relief in the absence of statutory authorization or special circumstances.Thompson v. Toluao, 24 A.S.R.2d 127.

The Federal Anti‑Injunction Act prevents the High Court, at any level, from restraining the assessment of collection of any federal tax. 26 U.S.C. §§ 876, 7421(a).Alamoana Recipe Inc., v. American Samoa Government, 25 A.S.R.2d 46.

The Federal Anti‑Injunction Act is applicable to temporary, as well as permanent pleas for injunctive relief.Alamoana Recipe Inc., v. American Samoa Gov’t, 25 A.S.R.2d 46.

Evidence received prior to trial on a motion for temporary injunction becomes part of the record upon trial on the merits, pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5.Talauega v. Mulipola, 25 A.S.R.2d 74.

Trial court decisions regarding temporary restraining orders are appealable only when evident risk of harm cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of the case.Alamoana Recipe Inc., v. American Samoa Gov’t, 25 A.S.R.2d 97.

The court may issue a temporary restraining order if sufficient grounds for its issuance have been established by affidavit.Korea Deep Sea Fisheries Association v. Ho Pyo Hong, 31 A.S.R.2d 162.

§ 8(2)—Preliminary Injunctions

Where court found that circumstances required expedited hearing on motion for preliminary injunction, defendants who had not had time to retain counsel could redress any injury occasioned by the short notice by retaining counsel and bringing the matter for another hearing.Togiola v. Tafesilafa’i, 4 A.S.R.2d 54.

Pursuant to power to make “such order as to him may seem just” in any land case, Chief Justice or Associate Justice of High Court need not stop at denying plaintiff’s meritless claim for relief, but may issue preliminary injunction restraining plaintiff from interference with rights of defendant as delineated in earlier judgment.A.S.C.A. § 43.0304.Sialega v. Taito , 5 A.S.R.2d 99.

Hardship is one factor the court must consider in determining whether to issue a preliminary injunction.Sotoa v. Togotogo, 7 A.S.R.2d 93.

To issue a preliminary injunction a court must find that the applicant has a substantial likelihood of prevailing on the merits at trial, and without such injunction will suffer great injury before a full trial.A.S.C.A. § 43.1301(j)(1)-(2).Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Preliminary injunction may issue only if petitioner shows sufficient grounds after a hearing inter partes duly noticed.A.S.C.A. § 43.1301(g).Gaoa v. Tulifua, 13 A.S.R.2d 30.

To have sufficient grounds for issuing a preliminary injunction, a court must find that petitioner has a substantial likelihood of prevailing on the merits at trial and without such injunction will suffer great or irreparable injury before a full trial.A.S.C.A. § 43.1301(j).Gaoa v. Tulifua, 13 A.S.R.2d 30.

Sufficient grounds for issuing a preliminary injunction consist of (1) a substantial likelihood that the applicants will prevail at trial on the merits, and (2) great or irreparable harm to the applicant.A.S.C.A. § 43.1301(j).Talauega v. Mulipola, 22 A.S.R.2d 7.

Though an injunction is usually inappropriate for past acts of trespass because the remedy at law is adequate, both injunctive relief and compensatory damages may be granted for a continuing trespass.Letuli v. Le’i, 22 A.S.R.2d 77.

Issuance of a preliminary injunction requires a plaintiff’s written undertaking to pay defendant’s damages and costs, up to a specified amount and with sufficient sureties as the court may determine, which may result from the injunction if a permanent injunction is not granted and defendant is awarded damages and costs.A.S.C.A. § 43.1309(a).Gurr v. Scratch, 22 A.S.R.2d 103.

Being an extraordinary remedy, a preliminary injunction is granted only when clearly warranted and may be denied when administrative remedies have not been exhausted.A.S.C.A. § 4.1040.Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

A preliminary injunction may be issued only when (1) a substantial likelihood exists that the applicant will prevail at trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury will result to the applicant before a full and final trial on a permanent injunction.Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

A party seeking a preliminary injunction must post security to cover the costs and damages of a party wrongfully enjoined or restrained prior to a trial on the merits.A.S.C.A. § 41.1309.Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

Sufficient grounds for issuing a preliminary injunction requires showing (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury to the applicant before a full and final trial can be held regarding a permanent injunction.A.S.C.A. § 43.1301(j).Lefiti v. Tauanu’u, 24 A.S.R.2d 68.

A party seeking a preliminary injunction bears the burden of showing that great or irreparable injury will occur before a full and final trial can be held on whether a permanent injunction should issue.A.S.C.A. § 43.1301(j)(2).Timu v. McMoore, 24 A.S.R.2d 84.

For purposes of a preliminary injunction, a request for surety is inappropriate when the subject matter of the request relates to communal property issues.A.S.C.A. § 41.1309(b).Mamea v. American Samoa Power Authority, 26 A.S.R.2d 47.

The court may issue a preliminary injunction only after a hearing in which sufficient grounds have been established by a preponderance of the evidence.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101.

A.S.C.A. § 1309(a) requires, prior to the issuance of a preliminary injunction, a written undertaking with sufficient sureties to assure that enjoined parties will receive the costs and damages that they may sustain by reason of the injunction, if the court decides that the applicant should have been entitled to the injunction or should pay damages as the court may determine.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 179.

A preliminary injunction during the pendency of an action is appropriate when “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 “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.”A.S.C.A. § 43.1301(j).Pritchard v. Estate of Fui`availiili, 29 A.S.R.2d 112.

If a party does not meet the burden of showing irreparable harm before trial when applying for a preliminary injunction, a court need not consider the issue of likelihood of success on the merits at trial.Pritchard v. Estate of Fui`availiili, 29 A.S.R.2d 112.

The court will not stay proceedings so that a party may meet the necessary jurisdictional requirements in an action for a preliminary injunction pertaining to communal land when the party fails to meet the requirements for a preliminary injunction.Maiava v. Tufele, 30 A.S.R.2d 31.

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.Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

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.Gurr v. Gurr, 1 A.S.R.3d 203 (Land & Titles Div. 1997).

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.Pagofie v. Matagi, 1 A.S.R.3d 227 (Land & Titles Div. 1997).

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.I’aulualo v. I’aulualo, 1 A.S.R.3d 230 (Land & Titles Div. 1997).

Under A.S.C.A. § 43.1303(a)(1) a preliminary injunction may be issued only after a hearing in which sufficient grounds for the issuance of such injunction has been established by a preponderance of the evidence.B.H.P. Petroleum South Pac., Inc.v. American Samoa Gov’t, 2 A.S.R.3d 1 (App. Div. 1998).

Under A.S.C.A. § 43.1401(j), sufficient grounds for the issuance of a preliminary injunction require 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 that 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.Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

A preliminary injunction may only issue upon applicant’s showing of sufficient grounds after a duly noticed hearing inter partes.Uiagalelei v. Fia, 4 A.S.R.3d 175 (Trial Div. 2000).

In order to constitute the sufficient grounds necessary for the issuance of a preliminary injunction, a party must show: (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.Uiagalelei v. Fia, 4 A.S.R.3d 175 (Trial Div. 2000).

Under A.S.C.A. § 43.1301(j), a preliminary injunction must be grounded on findings that (a) there is a substantial likelihood that the applicant will prevail at trial on the merits and obtain a permanent injunction against the opposing party, and that (b) the applicant will suffer great or irreparable harm before a full and final trial can be held on whether a permanent injunction should issue.Save Family v. Leone Catholic Parish, 4 A.S.R.3d 265 (Land & Titles Div. 2000).

Under A.S.C.A. § 43.0304, the court is authorized to issue appropriate interim orders in land actions, and where there are prospects of confrontational episodes between the parties, they may be mutually enjoined from harassing the other side during the pendency of the action.Save Family v. Leone Catholic Parish, 4 A.S.R.3d 265 (Land & Titles Div. 2000).

A preliminary injunction is appropriate only when there is (a) a substantial likelihood that at trial on the merits the applicant will prevail and obtain a permanent injunction, and (b) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on the propriety of a permanent injunction.Gi v. American Samoa Gov’t, 5 A.S.R.3d 254 (Land & Titles Div. 2001).

Although normal procedure was to stay proceedings pending administrative decision, where plaintiff modified request for injunctive relief, seeking instead the removal of a constructed sidewalk, such modification required full consideration of the property rights of the parties for both preliminary and permanent injunction purposes and rendered the case ripe for trial.Court properly considered case at that point, and would have done the parties a disservice had it delayed further.Gi v. American Samoa Gov’t, 5 A.S.R.3d 259 (Land & Titles Div. 2001).

A preliminary injunction is properly issued when there is a substantial likelihood the applicant will prevail at trial on the merits and obtain a permanent injunction against the opposing party, and great or irreparable injury will result to the applicant before a full and final trial can be fairly held on the permanent injunction issue.American Samoa Rugby Football Ass’n v. Godinet, 7 A.S.R.3d 161 (Trial Div. 2003).

In order to show a substantial likelihood of success at trial on the merits, to support a motion for a preliminary injunction, a movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation.Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

As a general proposition, the availability of an adequate legal remedy precludes equitable injunctive relief.Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

The existence of a legal remedy is not alone sufficient to deprive a movant of equitable relief—it must be speedy, adequate, and efficacious, and preserve the movant’s rights at the present time and not as of a future date.Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

Where movant demonstrated that defendant had engaged in an ongoing course of conduct that was tantamount to unfair, and possibly bad faith, interfering with the very performance term under whichsought termination of the lease, movant had sufficiently shown “substantial likelihood of success at trial on the merits” in order support a preliminary injunction.Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

The ruin of a party’s business constitutes irreparable harm.Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

§ 8(3)¾Injunctions Granted

Court will issue preliminary injunction against any party who refuses to allow surveys by opposing parties on land claimed and occupied by him.Satele v. Uiagalelei, 6 A.S.R.2d 109.

Preliminary injunction restraining defendants from further construction on specified lands until land use and building permit applications are approved by plaintiff was appropriate where (1) the plaintiff objected to the construction only because the defendants had undermined his authority as senior matai by holding themselves out on the permits as owners of the land; (2) plaintiff’s claim was supported by the preponderance of the evidence at the preliminary hearing; and (3) the injunction would not prevent defendants from completing their construction, since plaintiff had given his word that he would approve the permits if they were submitted to him.Sotoa v. Togotogo, 7 A.S.R.2d 93.

Preliminary injunction would be granted enjoining defendant from misrepresenting on the public record that family land was owned by non-matai family member who had signed her building permit application; the defendant would have ten days to rectify her building permit to reflect family ownership and family approval given under the signature of the matai with the appropriate family authority.Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Plaintiff established sufficient grounds and was granted a preliminary injunction enjoining defendant from interfering with attempts to repair damage to plaintiff’s home, where plaintiff’s claim to reside on family lands was based on the fact that the matai and family had permitted her to use and occupy the homesite for ten years, while defendant’s claim was based on the more tenuous ground that her immediate family exclusively owned the communal land in issue.A.S.C.A. §§ 43.1301(g),(j).Uli v. Talaeai, 16 A.S.R.2d 14.

Preliminary injunction was granted where plaintiff showed he was likely to prevail on the merits at trial and would suffer great injury before then if defendant was not enjoined from continuing construction of a house on land whose ownership was disputed.A.S.C.A. § 43.1301(j).Utu v. Paolo, 16 A.S.R.2d 113.

Preliminary injunction was granted to a matai when a family member attempted to lease family land to a non-family member in a clear attempt to usurp the matai’s pule.Sagapolutele v. Tala’i, 20 A.S.R.2d 16.

Once a grantee has received and registered a deed to land, a subsequent deed has no effect, and so an injunction properly enjoined a later purchaser from interfering with the prior grantee’s use and enjoyment of the land.Sa v. Vollrath, 21 A.S.R.2d 37.

Where party expressed intent to prevent new landowner from exercising its ownership rights and continually trespassed on property, interfering with new landowner’s ability to lease premises and threatening cancellation of the land sale, such actions established the necessary criteria for issuance of a permanent injunction.Amerika Samoa Bank v. Hunkin, 4 A.S.R.3d 278 (Land & Titles Div. 2000).

Where eviction would irrevocably disrupt sale of company, and cause territory to lose its only “Part 121” carrier, element of “great or irreparable injury” was shown, justifying preliminary injunction.Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

§ 8(4)¾Injunctions Denied

Court would not issue preliminary injunction forbidding senior matai of family to interfere with ongoing construction on family land, since to do so would invade the traditional decision making powers of the matai and effect a change in the status quo in advance of trial on the merits.Mailo v. Nua, 5 A.S.R.2d 59.

Where evidence indicated that extraordinary generation of fumes resulted from scheduled annual fuel tank cleaning process, process had been completed and fume level had subsided, and process would not be repeated for about a year, neighboring residents had an adequate remedy at law and were not entitled to a preliminary injunction against fuel storage at facility in question.Tavai v. American Samoa Government, 6 A.S.R.2d 97.

Even when minority shareholder has proved that she will probably prevail at trial on at least some charges of impermissible self-dealing by corporate management, she is not entitled to a preliminary injunction unless she also proves that she or the corporation will be irreparably injured if no interim relief is granted pending trial on the merits.Haythornwaite v. Transpac Corp., 6 A.S.R. 2d 110.

Preliminary injunction against defendant’s unauthorized construction on family communal land would be denied, as injunction would serve no purpose but punishment for past deeds, where: defendant had been assigned the building site by the late senior matai; defendant was rebuilding a home destroyed by fire; plaintiff matai did not object to defendant’s having a home on communal land, but only to her doing so without his signature on the building permit; defendant would owe her contractor liquidated damages for any delay; and the normal requirement of security or bond requirement was not applicable.A.S.C.A. § 41.1309(b).Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Preliminary injunction against construction on certain land was denied where petitioner’s case consisted of a claim to the land based on an uncertain family history, while respondent claimed ownership based upon a differing family history plus a showing of established use and settled occupation; and where petitioner did not show that the construction would irreparably alter the land or cause any other great or irreparable injury.Gaoa v. Tulifua, 13 A.S.R.2d 30.

Injunctive relief was denied absent surveys delineating the exact interests of plaintiffs which required such relief.Vaivao v. Craddick, 14 A.S.R.2d 108.

Plaintiff failed to establish sufficient grounds for a preliminary injunction enjoining defendant/matai from building on a portion of family communal land, where the court had previously found that the matai’s sleeping quarters were traditionally located at that site, the matai was building the home as sa`o for the benefit of the extended family rather than for herself or her immediate family, and the plaintiffs failed to show they would suffer great or irreparable harm if an injunction did not issue.Mauga v. Asuega, 17 A.S.R.2d 4.

In denying a preliminary injunction, the court balanced the relative hardships of plaintiff’s legitimate nuisance complaints and a business’ significant financial detriment from the proposed constraints, as well as the public interest in having the business available for consumers’ use.Gurr v. Scratch, 22 A.S.R.2d 103.

A preliminary injunction is unwarranted when an environmental organization fails to plead specific harm to itself or its members and when it did not seek a stop order from the territorial Development Planning Office.A.S.C.A. §§ 4.1040, 24.0505(c).Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

Suits to restrain assessment or collection of any federal tax in any court are prohibited by the federal Anti-Injunction Act.26 U.S.C. § 7421(a).Alamoana Recipe Inc. v. American Samoa Gov’t, 24 A.S.R.2d 156.

Where halting construction would promote waste by exposing a partially built structure to the ravages of the elements, the equities weigh against it.Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

Where a seawall benefits all parties in a land dispute, and the presence of a trench and construction materials and a planned monument and park do not create great or irreparable harm, and where delay of a project will likely increase costs, a preliminary injunction will not be issued.Save Family v. Leone Catholic Parish, 4 A.S.R.3d 265 (Land & Titles Div. 2000).

§ 8(5)¾Substantial Likelihood of Success

A party seeking preliminary injunction need not show with absolute certainty that he will prevail on the merits, nor is a movant required to prove a greater than fifty percent likelihood that they will prevail on the merits.A movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101.

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.Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

Where the evidence does not lend substance to the plaintiff’s mere claim of ownership, but there is support for the position of the defendant, there is not a substantial likelihood that the plaintiff will prevail at trial. Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

If a preliminary injunction applicant demonstrates a legitimate issue to litigate with more deliberate consideration, the criterion of likely success on the merits at trial is sufficiently met.Fiame v. Tuiolemotu Family, 6 A.S.R.3d 310 (Land & Titles Div. 2002).

§ 8(6)¾Irreparable Injury

In a Samoan land dispute between members of the same family, building a house on the disputed land will cause great and irreparable injury within the meaning of a statute regulating injunctive relief, since at the trial on the merits the court might find that the senior matai of the family has an obligation to consult with family members before building the house.Talili v. Satele (Mem.), 3 A.S.R.2d 36.

A party should not be allowed to avoid an injunction that would otherwise issue against him simply by doing all the irreparable harm he plans to do with no advance warning to those who will be injured.Talili v. Satele (Mem.), 3 A.S.R.2d 36.

Where plaintiff family member admitted that he had other living quarters, refusal of court to issue a preliminary injunction forbidding senior matai of family to interfere with ongoing construction on family land would not be likely to cause irreparable injury.A.S.C.A. § 43.1301(j).Mailo v. Nua, 5 A.S.R.2d 59.

Indignity and sense of hurt felt by petitioners with respect to respondents’ construction on disputed land was not “irreparable injury” within meaning of the preliminary injunction statute.A.S.C.A. § 43.1301(j).Gaoa v. Tulifua, 13 A.S.R.2d 30.

When considering the irreparable harm criteria in an application for an injunction pending appeal, the court needs to balance the equities.Craddick Development, Inc. v. Craddick, 29 A.S.R.2d 64.

The law treats harm to land as unique.Loss of land cannot be replaced by like land.Craddick Development, Inc. v. Craddick, 29 A.S.R.2d 64.

Where a permanent concrete structure does not constitute per se an irreversible and irremediable encumbrance to land, there is no great or irreparable injury to the plaintiff.Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

§ 8(7)—Permanent Injunctions

As an equitable remedy, the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually money damages.A.S.C.A. § 43.1302.Thompson v. Toluao, 24 A.S.R.2d 127.

Actual physical interference with the use and enjoyment of another’s land constitutes the most common type of nuisance and is subject to the issuance of a permanent injunction.A.S.C.A. § 43.1302.Thompson v. Toluao, 24 A.S.R.2d 127.

A trial court’s grant of permanent injunctive relief is reviewed for an abuse of discretion, or application of erroneous legal principles.Le`i v. Olo, 25 A.S.R.2d 33.

An applicant is entitled to a permanent injunction if, after a full and final trial on the merits of the applicant’s claim, it is determined that a judgment for money damages will inadequately remedy the complained of wrong.Amerika Samoa Bank v. Hunkin, 4 A.S.R.3d 278 (Land & Titles Div. 2000).

The court may issue a permanent injunction only after full and final trial on the merits has been conducted and a determination has been made that a judgment for money damages will provide an inadequate remedy.CSS, Inc. v. Poasa, 5 A.S.R.3d 140 (Trial Div. 2001).

Injunctive relief was proper where, despite having executed agreement to dissociate himself from company, party continued to act on behalf of company and interfere with its activities.CSS, Inc. v. Poasa, 5 A.S.R.3d 140 (Trial Div. 2001).

§ 8(8)—Compared to Stay Pending Appeal

The decision to grant or deny a stay pending appeal, similar to that on a preliminary injunction, depends partly on the “balance of equities” and partly on the likelihood that the appeal will be successful.T.C.R.C.P. 62(a),(c).Asifoa v. Lualemana, 17 A.S.R.2d 10.

An injunction will be stayed in the following situations: there is a strong chance the judgment will be vacated on appeal; compliance with the judgment during the pendency of the appeal would amount to an effective denial of the right to appeal or would otherwise work extraordinary hardship on the appellant; little or no hardship would be imposed on adverse parties by appellant’s non-compliance; or some combination of these conditions overcomes the presumption in favor of allowing each party the present enjoyment of his lawful rights.Asifoa v. Lualemana, 17 A.S.R.2d 10.

In assessing the likelihood of success on appeal, a court may stay an injunction when it has enough doubt about the substantive correctness of its decision, such as when new and difficult questions of law are involved.Asifoa v. Lualemana, 17 A.S.R.2d 10.

General principle of stays of injunctive relief and granting of injunctions pending appeal is preservation of the status quo pending appeal.Asifoa v. Lualemana, 17 A.S.R.2d 100.

Similar to a petition for a preliminary injunction, the decision to grant or deny a motion for a stay of an injunction pending appeal depends partly on the “balance of equities” and partly on the likelihood of appeal’s success.A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.Lutali v. Foster, 24 A.S.R.2d 81.

Corporate directors claiming economic loss are not entitled to a stay of an injunction pending appeal when they lack standing because they are not parties to the lawsuit against the corporation and when their individual economic interests are not coincidental with or necessarily those of the corporation; in any event, prospective monetary loss as a result of an injunction is insufficient to suspend an injunction.A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.Lutali v. Foster, 24 A.S.R.2d 81.

Regarding a motion to stay pending appeal, the moving party bears the burden of showing cause as to why an injunction should be stayed and must show that he is likely to prevail on the appeal’s merits.A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.Lutali v. Foster, 24 A.S.R.2d 81.

The general principle underlying stays of injunctive relief is that the status quo should be preserved pending appeal.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

§ 9Equitable Remedies

§ 9(1)—General Provisions

Court of equity will not set aside previous decision where parties thereto did not act forthrightly to have decision changed.Tiumalu v. Mailo, 1 A.S.R. 434.

Principles of equity are part of English common law and therefore part of law of American Samoa.Mauga Family v. Mauga, 1 A.S.R. 587.

Courts of equity may vacate a judgment obtained by mistake, fraud or false testimony and grant a new trial.Jewett v. McMoor, 1 A.S.R. 611.

Where a corporation with outstanding debts and claims against it dissolves and reincorporates, equity will hold all assets traceable to the original corporation liable to discharge the debts and claims.Kneubuhl Maritime Services Corp. v. Adams, 8 A.S.R.2d 20.

For the purpose of determining whether a party that is a business entity has clean hands and may have the benefit of equitable remedies, the entity is chargeable with the acts and intentions of the agents who conducted the transaction on which it bases its claim.Hardy v. Anderson, 9 A.S.R.2d 79.

Where the trial court properly assessed that both parties breached their contract, its decision in equity requiring the parties to share expenses will be affirmed.EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

When an adverse party would not be prejudiced, an independent action for equitable relief from judgment may be treated as a motion for relief from final judgment, and vice-versa.Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b).Rocha v. Rocha, 24 A.S.R.2d 55.

The elements of an independent action for equitable relief from judgment require (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law.Rocha v. Rocha, 24 A.S.R.2d 55.

Because the fraud which is the basis of an independent action for equitable relief from judgment must be “extrinsic,” the fraud must have prevented the raising of an argument or the assertion of a claim or defense at trial, or deprived a party of his right to a “day in court”; as such, perjury and false testimony are inadequate grounds for relief.Rocha v. Rocha, 24 A.S.R.2d 55.

A court may dispose of an entire controversy by granting both equitable relief and damages, in order to avoid a multiplicity of lawsuits.Thompson v. Toluao, 24 A.S.R.2d 127.

Conduct which has been induced by trickery cannot later be used as a basis for estoppel.Jennings v. Thompson, 25 A.S.R.2d 77.

Liability under a quasi-contract theory is implied-in-law by the equitable principle against unjust enrichment.Farapo v. Schuster, 26 A.S.R.2d 112.

Restitutionary claims under the quasi-contract theory do not apply to family situations.Farapo v. Schuster, 26 A.S.R.2d 112.

A court in equity will not be bound by an unyielding formula, but must shape its relief to match the nature of the transaction, considering all of the circumstances bearing on the matter.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

The High Court of American Samoa is guided by the tenets and principles of equity in all matters within the court’s jurisdiction.The concept of equity is founded on the basic precepts of “common honesty, clear fairness and good conscience.”G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d82 (Trial Div. 1997).

Fraud shall not prevail, substance shall not give way to form, and technical considerations will not prevent substantial justice from being done.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.G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d82 (Trial Div. 1997).

As a matter of equity, the court will not remain idle and implicitly condone a fraudulent attempt to hide assets from 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.G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d82 (Trial Div. 1997).

Where the law is inadequate, the court may utilize its equitable powers to contrive new remedies.G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d82 (Trial Div. 1997).

§ 9(2)¾Estoppel, Unclean Hands

Equity requires that party bringing action has acted conscientiously and fairly.Mauga Family v. Mauga, 1 A.S.R. 587.

Where lessees’ attorney states to lessor that signature of co-owner is not necessary to contract, lessor is estopped from asserting lease is invalid because of lack of signature.Steffany v. Scanlan, 3 A.S.R. 456.

Where lessee in prior judicial proceeding maintained that lease was valid contract, he is estopped from maintaining in subsequent proceeding that lease is not valid contract.Scanlan v. Steffany, 3 A.S.R. 583.

Where lessee’s attorney states to lessor that signature of co-owner is not necessary to validity of lease, he is estopped from denying validity of lease because such signature was not obtained.Scanlan v. Steffany, 3 A.S.R. 583.

Doctrine of estoppel depends on four conditions: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the facts; and (4) he must rely on the former’s conduct to his injury.Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

When it acts in a sovereign capacity, the government is generally not subject to estoppel.Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

Estoppel may be applied against the government if, in addition to other factors necessary to give rise to an estoppel, the government’s wrongful conduct threatens to work a serious injustice, and the public interest would not be unduly damaged by the estoppel.Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

Territorial government was not estopped from rearresting a prisoner where: (1) the prisoner, although ineligible for parole, had been paroled because of a clerical error; (2) prisoner had been released for only twenty-eight days before his rearrest, so that he had not been reintegrated into the community and could show no substantial injury resulting from his release and rearrest; (3) since there had been no significant reintegration into the community, no serious injustice was worked by the rearrest; and (4) since the prisoner had been recently convicted of a violent crime, it was not clear that the public interest would not be unduly damaged by the estoppel.Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

Statute providing that court “may” annul illegally contracted marriages follows the general rule that annulment is an equitable remedy which may be barred by equitable defenses including estoppel, laches, or the doctrine of unclean hands.A.S.C.A. § 42.0203.Pritchard v. Purcell, 11 A.S.R.2d 16.

Equitable doctrines of clean hands and estoppel will not bar annulment of bigamous marriage where party seeking annulment is apparently motivated by remorse for his offense against society’s moral and legal code, but these doctrines do bar an action by a party who has merely tired of his bargain and seeks annulment as a substitute for divorce.Watson v. Watson, 11 A.S.R.2d 30.

Equitable bars to causes of action based on the plaintiff’s own wrong are not designed only for the litigants, but also protect the courts from the appearance and substance of helping to make crime pay.Watson v. Watson, 11 A.S.R.2d 30.

Equitable considerations in favor of granting annulment of bigamously contracted marriage despite estoppel and clean hands doctrine, including the argument that by denying annulment the court would countenance the continued perpetration of crime and that annulment might help to clarify the rights of innocent third parties, do not appear in a case where the prior marriage has been dissolved.Watson v. Watson, 11 A.S.R.2d 30.

Application of equitable principles of estoppel and clean hands to action for annulment of formerly bigamous marriage was bolstered by territorial statutes providing that court “may” annul any marriage that was illegally contracted, and setting forth strict rules against judgment by default, collusive suits, and the granting of judgment in favor of a guilty party.A.S.C.A. §§ 42.0203, 42.0204-11.Watson v. Watson, 11 A.S.R.2d 30.

Neither law nor equity should aid a party who founds his cause of action on his own immoral or illegal act.Watson v. Watson, 11 A.S.R.2d 30.

Defense of estoppel requires that the party who raises the defense establish his own good faith or “clean hands.”Huff v. Huff, 15 A.S.R.2d 83.

Equitable estoppel is appropriate when (1) the party to be estopped knows the facts; (2) he intends that his conduct shall be acted on or so acts that the party asserting estoppel has a right to believe it is so intended; (3) the party asserting estoppel is ignorant of the facts; and (4) the party asserting estoppel relies on the conduct to his injury.Jennings v. Jennings, 21 A.S.R.2d 40.

Once a stipulation is made in the course of judicial proceedings, estoppel prevents its withdrawal absent a showing of fraud or mistake.Stipulations entered into freely and fairly are not to be set aside except to prevent manifest injustice.T.C.R.C.P. 16.Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 88.

A void contract is a legal nullity, and cannot serve as the basis for equitable estoppel; while a voidable contract may be affirmed by the parties and rendered valid by the doctrine of estoppel—parties to a transaction conceded to be fair and supposed to be lawful, on the faith of which many other transactions have been entered into, are estopped from questioning its validity and repudiating the transaction to the injury of others.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

§ 9(3)¾Laches

Where plaintiffs had waited three years to file suit after territorial Attorney General had announced that a territorial statute was unconstitutional, and government had granted a number of leases during the intervening years that did not conform to requirements of the statute, action for declaratory judgment that the statute was unconstitutional would be entertained but demand for the invalidation of leases signed prior to the date suit was filed was barred by laches.Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Although laches is technically an equitable defense and action for mandamus a proceeding at law, laches is available as a defense to a petition for writ of mandamus.Siofele v. Shimasaki, 9 A.S.R.2d 3.

Elements of laches are unreasonable delay by one party in asserting his rights and resulting undue prejudice to the other party.Siofele v. Shimasaki, 9 A.S.R.2d 3.

One month delay in seeking judicial review of denial of the right to run for elective office was unreasonable where (1) the election was to be held two weeks after petitioners first sought judicial relief and (2) one of the petitioners, although absent from the territory, could have secured counsel or instructed his co-petitioner to assert their rights.Siofele v. Shimasaki, 9 A.S.R.2d 3.

Where land claimant waited fifty-two years, before attempting to evict those upon the land, and innocent third parties bought land, built homes, and raised families on the land, the doctrine of laches would apply to limit any recovery, and good faith improvers would have a right to compensation upon eviction.Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Action to recover littoral rights taken by the government ninety years ago is barred by the doctrine of laches and by a statute which bars causes of action to recover real property if not brought within twenty years after they accrue.A.S.C.A. § 43.0120(6). Vaivao v. Craddick, 14 A.S.R.2d 108.

Doctrine of laches provides that where plaintiff’s cause of action can be perfected by an act he must perform and he is not restrained or disabled from performing it, he cannot indefinitely suspend the statute of limitations by delaying such performance.Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

The classic elements of laches are an unreasonable delay in a party’s assertion of his rights and undue prejudice to the other party.Jennings v. Jennings, 21 A.S.R.2d 40.

An action challenging ordinances condemning land for the coastal road was barred by laches when the plaintiff did not file suit until 90 years after the ordinances were enacted.A.S.C.A. § 37.2050.Anderson v. Vaivao, 21 A.S.R.2d 95.

Laches will generally be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party.Jennings v. Thompson, 25 A.S.R.2d 77.

As an equitable defense, laches is committed to the sound discretion of the trial court, and is reviewed for an abuse of that discretion.An appellate court will not reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment upon a weighing of relevant factors, and should not substitute its own judgment for that of the lower court.Jennings v. Thompson, 25 A.S.R.2d 77.

When the limit within which a plaintiff might bring an action against a defendant is fixed by a statute of limitations, the doctrine of laches is inapplicable.Passi v. Amerika Samoa Bank, 28 A.S.R.2d 130.

If the delay in perfecting a right to sue is out of the plaintiff’s control, the cause of action will accrue when the right is perfected, but if the plaintiff controls the condition, plaintiff must perfect the right within a reasonable time, which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay.Bradcock v. American Samoa Gov’t, 28 A.S.R.2d 182.

When deciding whether the plaintiff perfected the right to sue within a reasonable time, the court may consider not only when the administrative claim was filed, but when it could have been filed.The express purpose of this rule is to prevent the frustration of legislative intent by allowing a plaintiff to unilaterally extend the limitation period.Bradcock v. American Samoa Gov’t, 28 A.S.R.2d 182.

Laches is an affirmative defense that requires a finding that a plaintiff delayed inexcusably or unreasonably in filing suit and that delay was prejudicial to the defendant.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

The decision on whether to apply laches depends upon the particular circumstances of the case at question.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Under laches analysis, Court determined that plaintiffs’ commencing of action to enforce judgment less than 14 months after judgment was entered was neitherunreasonable nor an inexcusable length of time.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where plaintiff possessed actual knowledge of land claim, failed to take any steps to counter said claim during pendency of earlier case and in fact did not act until 13 years after Court had ordered registration of land in other party’s name, the doctrine of laches applied.Amituanai v. Sataoa, 6 A.S.R.3d 341 (Land & Titles Div. 2002).

Laches is the unreasonable delay in one party’s assertion of its rights resulting in another party’s undue prejudice.Amituanai v. Sataoa, 6 A.S.R.3d 341 (Land & Titles Div. 2002).

Claimant to land ownership is charged with actual notice upon receiving information that would put person of ordinary prudence to inquiry that would lead to knowledge of adverse title.Amituanai v. Sataoa, 6 A.S.R.3d 341 (Land & Titles Div. 2002).

Laches is an equitable doctrine that bars an action where there has been an unreasonable delay in bringing the suit, and the other party has been prejudiced as a result of the delay.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 9(4)—Tolling

Court will give effect to purpose of statute of frauds in American Samoa and look with disfavor upon uncorroborated oral testimony of events which supposedly took place years prior to testimony.Tupua v. Aumavae, 1 A.S.R. 231.

English Statute of Frauds was not brought to American Samoa as a part of common law.Steffany v. Scanlan, 3 A.S.R. 456.

There is no Statute of Frauds in American Samoa since it is not part of common law of England which was brought to United States and is of force only when specifically enacted by legislature.Scanlan v. Steffany, 3 A.S.R. 583.

Tolling is frequently deemed consistent with the purposes of statutes of limitation, particularly when the plaintiff was unable to bring suit due to circumstances that were in the primary control of the defendant.Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Unlike its quite differently phrased and structured counterpart in the Federal Tort Claims Act, the statute of limitations applicable to American Samoa’s Government Tort Liability Act has been held to be subject to tolling during the minority of an injured person.A.S.C.A. § 43.1204.Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Though mislabeled with an appellate-division rather than a civil-division number and not specifically requesting statutorily-provided injunctive relief, a petition for judicial review of a Workmen’s Compensation Commission order was sufficient to toll the statute of limitations and so avoid dismissal.Felise v. Workmen’s Compensation Commissioner, 24 A.S.R.2d 95.

T.C.R.C.P. 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.T.C.R.C.P. 6.Patau v. Hildre, 27 A.S.R.2d 83.

§ 9(5)¾Subrogation

SEE TORTS § 17 – SUBROGATION

A person who is legally obliged to pay a debt of another person and who actually does pay that debt acquires the legal rights of the creditor under the equitable principle of subrogation.American International Underwriters v. American Samoa Government, 3 A.S.R.2d 115.

ASG provides free medical attention to American Samoans and qualified residents, but it can, under the equitable principle of subrogation, look to the tortfeasor for reimbursement.A.S.C.A. § 13.0601.Puailoa v. Barber, 19 A.S.R.2d 48.

The liability of an uninsured vehicle’s owner is secondary to that of a principal tortfeasor who was driving with the owner’s permission; while a plaintiff may collect from either defendant, the vehicle’s owner has a right of indemnity and subrogation against the driver.Vaiti v. So’oso’o, 19 A.S.R.2d 71.

American Samoa’s Workmen’s Compensation Act does not explicitly provide for a right of subrogation where an employee receives compensation without a formal award and then recovers from a third party; however, an employer has an equitable right of subrogation and is entitled to be reimbursed from an employee’s net recovery, whether by judgment or settlement, from a third party.A.S.C.A. §§ 32.0501 et seq.Vaeao v. Samoa Air, 20 A.S.R.2d 37.

§ 9(6)¾Constructive Trusts

To allow lienholder to obtain higher priority by foreclosing in jurisdiction that does not have a federal district court, where Congress apparently intended to create uniform set of priorities and parties contracted accordingly, would give rise to unjust enrichment.Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Where the registered owners of land acquired it from plaintiff by fraud, a constructive trust in favor of plaintiff was properly imposed against both the land and proceeds from its sale.Fania v. Sipili, 14 A.S.R.2d 70.

When real property was obtained by constructive fraud or undue influence, violating a fiduciary relationship, a constructive trust provides the remedy to transfer the property to the person entitled to it.Jennings v. Jennings, 21 A.S.R.2d 40.

A constructive trust is a remedy used by a court of equity to compel a person who has acquired property to which he is not justly entitled to transfer it to the person entitled thereto.The wrongful act giving rise to a constructive trust need not amount to fraud or intentional misrepresentation.All that must be shown is that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment.Jennings v. Thompson, 25 A.S.R.2d 77.

A constructive trust may arise from violation of a fiduciary duty, such as where the property is obtained by constructive fraud or undue influence.Where there is a preexisting fiduciary relationship between the parties, a person whose property has been taken is entitled to restoration of the property itself.Jennings v. Thompson, 25 A.S.R.2d 77.

A constructive trust is one created by operation of law and imposed by a court in equity to prevent a fraud.Facts giving rise to a constructive trust in themselves give rise to an action to enforce such trust.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

Generally, while it is a factor to consider, the parties need not have entered any agreement as a prerequisite to the imposition of a constructive trust as an equitable remedy.Stephens v. Stephens, 30 A.S.R.2d 55.

While generally land titles may not rest on parol evidence, constructive trusts are excepted from the requisite of written evidence under the statute of frauds.Stephens v. Stephens, 30 A.S.R.2d 55.

In considering the imposition of a contructive trust, what is important in a confidential family situation is the breach of reposed trust.In order to for a constructive trust to be justified, the legal titleholder of property must commit some wrong rendering his or her acquisition or retention of the property unconscionable.Stephens v. Stephens, 30 A.S.R.2d 55.

A confidential or fiduciary relationship will not of itself trigger a constructive trust, but is a notable prelude to imposition of this remedy.Stephens v. Stephens, 30 A.S.R.2d 55.

The very existence of close family connections creates, or at least most often creates, a confidential or fiduciary relationship for purposes of imposing a constructive trust.Stephens v. Stephens, 30 A.S.R.2d 55.

§ 10Judgments

§ 10(1)¾Enforcement of Judgments

SEE AMERICAN SAMOA GOVERNMENT § 5(6) – SUPERVISION OF JUDGMENTS AND SETTLEMENTS

Statement by prior court on family’s right in land which was not essential to judgment was obiter dictum and is not binding on subsequent courts.Mulu v. Taliutafa, 3 A.S.R. 82.

Where judgment is ambiguous, interpretation will be adopted which is more reasonable, effective and conclusive and which is characterized by justice and fairness.Yuhashi v. Lopeti, 3 A.S.R. 322.

A proffered “settlement” of an already litigated claim, purporting to “adjust” boundaries established by the court, has no effect when it (1) was never judicially approved; (2) resulted from negotiations between a licensed legal practitioner and an adverse party represented by counsel in the absence of the latter party’s counsel; (3) clearly results in disadvantage to the latter party; (4) was renounced by the latter party soon thereafter; and (5) bears a close resemblance to an earlier “settlement” asserted in court by the legal practitioner, the existence of which the adverse party denied immediately after having consulted his attorney.Te’o v. Sotoa, 5 A.S.R.2d 90.

Territorial statute prohibiting sale of real property of a Samoan to satisfy a judgment does not prohibit judgment creditor from recovering the cash proceeds resulting from a voluntary sale of property by the judgment debtor.A.S.C.A. § 43.1528(a).Te’o v. Continental Insurance Co., 6 A.S.R.2d 135.

Policy underlying statutory prohibition on sale of Samoan real property to satisfy judgment, unlike policy underlying statutory homestead exemptions in the United States, is to discourage alienation of land; a Samoan who has voluntarily alienated his land and converted it into cash has placed himself not only outside the language of the statutory protection but also beyond its rationale.A.S.C.A. § 43.1528(a).Te’o v. Continental Insurance Co., 6 A.S.R.2d 135.

Where land of which judgment debtor was the equitable owner had been fraudulently conveyed to judgment debtor’s minor children, then caused by debtor and her husband to be sold by the children to a third party, proceeds from sale to third party were subject to seizure by judgment creditor.Te’o v. Continental Insurance Co., 6 A.S.R.2d 135.

Court would exercise its equitable discretion to allow husband of judgment debtor, who had made payments on land contract and paid for a house on the land, to retain in preference to the judgment creditor half of the proceeds from sale of land which had been held in the name of the judgment debtor.Te’o v. Continental Insurance Co., 6 A.S.R.2d 135.

When a judgment creditor moves to seize property of the judgment debtor and the Court has determined that the property does belong to the judgment debtor, the property should ordinarily be held by the Court rather than by the creditor, the debtor, or the person previously in possession pending judicial determination of the creditor’s right to seize it.In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Court did not deprive attorney of life, liberty, or property without due process of law, either by injury to his reputation or otherwise, where (1) attorney had represented judgment debtor; (2) attorney also represented other members of judgment debtor’s family; (3) after judgment, the judgment debtor and her family had agreed to changes in the record ownership of property formerly recorded as property of the judgment debtor, had arranged for the sale of the property, and had removed themselves from the territorial jurisdiction of the court; (4) attorney had in his possession the proceeds of the sale, which judgment creditor alleged to be the property of the debtor but which debtor and other family members claimed to be the property of other family members; (5) court had held the funds to be the property of the judgment debtor and subject to seizure by the judgment creditor; and (6) court ordered the funds to be deposited in the registry of the court pending further proceedings.In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Proposed settlement of previously litigated land claim which purports to adjust the boundaries set by the court’s judgment should ordinarily be submitted to court for its approval.Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Court would not sign consent judgment where one party was represented by counsel, other side was unrepresented, consent judgment required unrepresented party to pay attorney fee that would not have been awarded if the case had been litigated, and court could not be sure that the principal amount had been correctly calculated.Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Signature by person unrepresented by counsel on document designated as settlement or consent judgment does not automatically entitle the document to judicial enforcement without prior judicial scrutiny.Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Risk of abuse inherent in consent judgments ordinarily outweighs their usefulness as a means of saving time, at least in a jurisdiction where trial court routinely resolves uncontested matters by means of brief evidentiary hearings a few days after suit is filed.Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Where court order required disputed funds to be kept in bank pending outcome of the litigation, but an officer of one party to the litigation secretly withdrew and spent the funds in violation of the order, an opposing party which agreed to a settlement under which it would receive “the funds in the bank” did not thereby waive its right to receive the funds which had been wrongfully withdrawn, since it was entitled to rely on compliance by other parties with the court order.Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Court order discharging plaintiff in interpleader, a bank, from further liability in connection with the interpleaded funds did not discharge the bank from continuing compliance with previous order prohibiting the disbursal of other funds pending the outcome of the litigation.Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Where one party to litigation, in violation of a court order, had released money to another party which had then spent it, both parties were jointly and severally liable to a third party who was held entitled to the money; as between the two parties who violated the order, the party who received and spent the money would be required to indemnify the party who merely released it.Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Court order permitting release of a prisoner should not be construed to require the release of the prisoner when such release would be contrary to the best judgment of the commissioner of public safety and when defendant’s counsel had not informed the court that release had been denied by the commissioner.American Samoa Government v. Felise (Mem.), 11 A.S.R.2d 132.

The general rule of merger provides that when a final and personal judgment is rendered in favor of the plaintiff, the plaintiff cannot thereafter maintain an action on the original claim or part of the original claim, although he may be able to maintain an action upon the judgment.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Under A.S.C.A. § 43.0120(5), actions founded upon a judgment must be brought within 10 years.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

§ 10(2)¾Validity of Judgments

Trial court judgment becomes final on parties who do not appeal or who dismiss their appeals, and they cannot appear in trial court proceedings on remand after successful appeal by other parties.Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances.T.C.R.C.P. Rule 60.Willis v. Willis, 4 A.S.R.2d 144.

A strong presumption of validity attaches to an order of the High Court signed by a Justice thereof.Satele v. Uiagalelei, 6 A.S.R.2d 143.

Territorial government is bound by court orders in proceedings to which it is a party and should not issue legal opinions that counsel disobedience to such orders.American Samoa Government v. Satele, 7 A.S.R.2d 153.

Signature of judge on a court order certifies that the judge has in fact exercised his judgment, that the premises of the order are true, that the order itself is lawful, and that it is appropriate under all the circumstances that the order be given the force of law.Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Judgment affirming a decision of land commission, in which one party had made a claim to ownership of land and another party had filed an objection, and in which the commission’s decision purported only to reject the claim advanced by the original claimant, did not convey to the objector a title good against the world.Willis v. Fai`ivae, 10 A.S.R.2d 121.

It is not clear that court has the power to alter the rank or priority of liens by approving an ex parte stipulation to which the lienholders were not parties.S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

Not being vested with prosecutorial discretion, courts can approve a consent-decree provision limiting the defendants’ liability to ASG for past violations, but it is inappropriate for a court to enter an order prohibiting the prosecution of future violations of law.American Samoa Government v. StarKist Samoa, Inc., 16 A.S.R.2d 27.

That judgment debtor did not receive certain funds when he had expected to receive them, that some of the expected receipts were subjected to a tax lien and to a pre-judgment garnishment in another case, and that the judgment debtor applied the remainder to his living and business expenses in addition to his judgment debt, did not excuse his noncompliance with a court order to notify the court in advance should it appear that he would be unable to make a scheduled payment on the judgment debt.Association of Apartment Owners v. Hudson (Mem.), 12 A.S.R.2d 81.

Rule that a judgment binds parties “and their privies” is merely a corollary of the proposition that a buyer or other assignee receives only the title his assignor had the right to convey.Puailoa v. Estate of Lagafuaina (Mem.), 12 A.S.R.2d 84.

A rule that anyone who buys land is bound by the results of lawsuits against anyone else who should ever buy land from the same seller would carry the privity rule beyond the limits of its logic; in practice it would encourage litigants to bring suit not against the parties whose claims they really wish to contest, but against the least effective and attractive available members of some class to which the real adverse parties happen also to belong.Puailoa v. Estate of Lagafuaina (Mem.), 12 A.S.R.2d 84.

Proposition that a litigant may be bound by the result of a prior lawsuit to which neither he nor anyone on whom his claim depends was a party would carve a gaping hole in the rule that no one can be denied property without having had a day in court.Puailoa v. Estate of Lagafuaina (Mem.), 12 A.S.R.2d 84.

Where wrongful death complaint had omitted the name of the decedent’s mother, but the pleadings as a whole could be construed to ask for recovery on behalf of both mother and father, both of whom had an equal right to recover for their son’s death, judgment awarding damages to the father alone would be construed as being in favor of mother and father jointly.Te`o v. Continental Insurance Co. (Mem.), 13 A.S.R.2d 42.

Parties who did not object to offer for registration of land in accordance with statutory procedure were bound by the result in the ensuing registration proceedings, although they were not parties to the proceeding, because registration proceedings have in rem effect.A.S.C.A. §§ 37.0101 et seq.Tufono v. Vaeao, 13 A.S.R.2d 47.

Funds that are in the judgment debtor’s possession, freely available for his personal expenses and actually used by him for such expenses, are similarly available for garnishment and the satisfaction of his debts.United Airlines v. Pritchard, 15 A.S.R.2d 56.

A judgment creditor’s rights do not depend upon whether the debtor has obtained money by earning it or because it was lent or given to him.United Airlines v. Pritchard, 15 A.S.R.2d 56.

Garnishment may not be evaded by placing in the debtor’s hands possession and control of a fund freely available to him but not to his creditors.United Airlines v. Pritchard, 15 A.S.R.2d 56.

Claims for costs incurred in securing vessel while it was in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the claims of the litigants.46 U.S.C. § 31326.United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Creditor who already obtained a judgment and a writ of execution and levied upon the property of judgment creditor prior to the notice of ASG’s tax lien, prevails against the ASG as a judgment lien creditor with respect to such property.26 U.S.C. § 6323(a); A.S.C.A. § 11.0401 et seq.Shantilal Brothers, Ltd. v. KMST Wholesale, 15 A.S.R.2d 115.

Concerning an unwritten contract, which affords no contractual or legal basis for variation from the rule that each party pays his own attorney fees, plaintiff was entitled to recover only the principal amount plus six per cent pre-judgment interest.Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

Former counsel’s failure to communicate a judgment to a client, if true, might or might not give rise to a cause of action for malpractice, but this does not give the court jurisdiction it does not have.Taulaga v. Patea, 17 A.S.R.2d 206.

The general rule is to award prejudgment interest, although this award always lies soundly within the court’s discretion.However, it is also true that when certain “peculiar” circumstances exist, the discretion to deny prejudgment interest is sustained.These peculiar circumstances have fallen into three categories:(1) “plaintiff’s delay in bringing suit,” (2) “the existence of a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved,” and (3) “judgment in an amount substantially less than that claimed.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The court has inherent equitable power to give priority to costs arising out of the administration of property within its jurisdiction.Korea Deep Sea Fisheries Assn. v. M/V Corona #1, 27 A.S.R.2d 53.

Where it appears that a judgment is void, and a party has moved the court to aid in the enforcement of that judgment, the court must examine the validity of the judgment, whether the examination is on subject matter grounds or other grounds, including the lack of capacity to sue.Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

A judgment that is void may be collaterally attacked.Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

A judgment for a corporation that has lost the capacity to sue, as when it no longer exists as an entity or has merged into another corporation, is void.Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

The court may void a judgment even after the parties have subsequently entered into a settlement, even though the decision, as a practical matter, invalidates the settlement.Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

When a judgment has been set aside, neither that judgment nor any other former judgment in the case ever again becomes the judgment of the court unless the trial court expressly reinstates it and, in effect, renders a new judgment on the later date.Interocean Ships, Inc. v. Samoa Gases, 3 A.S.R.3d 190 (Trial Div. 1999).

Where filing date was day prior to date purportedly signed by judges, Court determined that latter date was inadvertent, typographical error and inconsequential to enforceability of order.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

Where date signed by judges differs from date of filing, the date of filing controls.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

§ 10(3)¾Orders in Aid of Judgment

Territorial statute providing that judgment debtor may apply for an order setting payments on the judgment in accordance with his ability to pay is an important protection for debtors in the absence of a bankruptcy statute, and court should use the full reach of its equitable powers to effect the statutory protection.A.S.C.A. § 43.1501.R.S.T.T.A.N. Hisatake, Inc., v. Dullabhbhai K. Patel & Co., Ltd., 3 A.S.R.2d 99.

Territorial statute providing that court should set payments on a judgment in accordance with debtor’s ability to pay did not defeat creditor’s right to foreclose a chattel mortgage.A.S.C.A. §§ 37.1002, 37.1103, 43.1501.R.S.T.T.A.N. Hisatake, Inc., v. Dullabhbhai K. Patel & Co., Ltd., 3 A.S.R.2d 99.

Even without a showing of “clean hands,” the Orders in Aid of Judgment statute permits relief from having to pay the entire amount of a judgment at once.A.S.C.A. § 43.1501 et seq.Huff v. Huff, 15 A.S.R.2d 83.

When deciding the propriety of an order in aid of judgments, courts are guided by considerations of justice and equity.Carpenters Fiji, Ltd. v. Pen, 29 A.S.R.2d 58.

In the absence of a bankruptcy statute, the law of American Samoa favors orders in aid of judgment which permit the debtor to retain a reasonable amount of income producing property to provide for reasonable living requirements and family obligations.Carpenters Fiji, Ltd. v. Pen, 29 A.S.R.2d 58.

T.C.R.C.P. 18(b) authorizes the concurrent joinder of two claims.However, Rule 18(b) is not applicable to an action, which seeks an order in aid of judgment.Korea Deep Sea Fisheries Association v. Ho Pyo Hong, 31 A.S.R.2d 162.

§ 10(4)¾Declaratory Judgments

Court will issue declaratory judgment in appropriate case pursuant to authorizing statute, and will liberally construe statute to assume jurisdiction on merits if possible.Title 11, A.S.C. § 6671 (1973).In re High Chief Title Mauga, 4 A.S.R. 132.

Court will issue declaratory judgment to resolve matai title dispute pursuant to constitutional duty to protect Samoan culture and customs.Rev. Con. of Am. Samoa, Article I, Section 3.In re High Chief Title Mauga, 4 A.S.R. 132.

Court will issue declaratory judgment if facts alleged show substantial controversy between adverse parties, sufficiently immediate and pressing that if jurisdiction is refused, other litigation will likely ensue between same parties.In re High Chief Title Mauga, 4 A.S.R. 132.

Repeated litigation and dissention over matai title status is sufficient to establish case or controversy amenable to declaratory judgment.In re High Chief Title Mauga, 4 A.S.R. 132.

In absence of authorizing statute, court cannot decree declaratory judgment, and Samoa has no statute authorizing declaratory judgments.Bottling Corporation of Samoa v. Lee, 4 A.S.R. 499.

Court will assume jurisdiction and declare meaning of statute, if parties dispute same, although pleadings do not seek declaratory relief.R.C.A.S. § 3.1801.Meredith v. Mola, 4 A.S.R. 773.

Court would not exercise its power to render a declaratory judgment where the party seeking the judgment had not exhausted his administrative remedies.Election Office v. Tuika, 9 A.S.R.2d 1.

Court would not exercise its power to render a declaratory judgment where the only relief it could grant would require the court to assume a super-visory role over administrative processes.Election Office v. Tuika, 9 A.S.R.2d 1.

Even if an actual controversy exists, a court has the discretion to refuse declaratory relief when, under all the circumstances, it is unnecessary or improper at the time it is sought.A.S.C.A. § 43.1102.Sala v. American Samoa Gov’t, 21 A.S.R.2d 50.

To bring a declaratory relief action, there must be a justiciable issue based on alleged facts showing, under all the circumstances, that a substantial controversy exists between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment; the test generally applied is the relative certainty that litigation will eventually follow if declaratory relief is not granted.A.S.C.A. § 43.1101.Sala v. American Samoa Gov’t, 21 A.S.R.2d 50.

American Samoa’s declaratory-judgment statute limits such relief to a person “interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property.”A.S.C.A. § 43.1101.Multitauaopele v. Togafau, 26 A.S.R.2d 52.

The court retains the discretion not to grant declaratory relief if “not necessary or proper.”A.S.C.A. § 43.1102.Multitauaopele v. Togafau, 26 A.S.R.2d 52.

The test generally applied in determining whether a case presents a justiciable issue which can serve as a basis for a declaratory judgment suit is whether it is relatively certain that coercive litigation will eventually ensue between the same parties if a declaratory judgment is refused.American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Courts will not grant declaratory judgments until administrative remedies have been exhausted unless such administrative remedies are inadequate.Moetoto v. Tauileva, 28 A.S.R.2d 144.

A declaratory judgment is a judgment that calls for a broad adjudication of rights other than those on which the immediate relief is dependent.A judgment is not declaratory if it declares no more than is necessary to sustain the immediate relief prayed for.Lutu v. Ale, 28 A.S.R.2d 43.

Trial court has discretion to refuse declaratory relief when it is not necessary or proper at the time it is sought.Tauia v. American Samoa Gov’t, 1 A.S.R.3d 64 (Trial Div. 1997).

In most declaratory relief actions, exhaustion of administrative remedies is a prerequisite to judicial review.Tauia v. American Samoa Gov’t, 1 A.S.R.3d 64 (Trial Div. 1997).

Although it would be helpful to have a determination as to whether a tenancy in the entirety issue applies to the territory, under A.S.C.A. § 43.1101 the court must have a true case or controversy before it in order to issue a declaratory judgment.Fiame v. Fiame, 4 A.S.R.3d 95 (Trial Div. 2000).

For there to be a case or controversy amenable to a decision on the merits, it must be relatively certain that coercive litigation will eventually ensue between the same parties if a declaratory judgment is refused.Fiame v. Fiame, 4 A.S.R.3d 95 (Trial Div. 2000).

The High Court will not entertain a claim for declaratory relief which asks the Court to declare that a person is a duly selected and sworn Senator, as the Constitution of American Samoa reserves such matters to the Senate, and such claims are of the type that admit of legislative, rather than judicial, resolution.Fa`amausili v. Am. Samoa Gov’t, 6 A.S.R.3d 259 (Trial Div. 2002).

A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus.A declaratory judgment can then be used as a predicate to further relief, including an injunction.Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

Under A.S.C.A. § 43.1101, a person is entitled to declaratory relief if he is “interested under a deed, will or other written, or under a contract, or . . . desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property.”Kneubuhl v. Ala’i, 7 A.S.R.3d 272 (Land & Titles Div. 2003).

§ 10(5)¾Default Judgments

A defendant who has defaulted through failure to answer may nevertheless appear at the hearing of motion for default judgment to contest the amount of damages.T.C.R.C.P. Rule 55(b).Development Bank v. Lava, 5 A.S.R.2d 24.

Failure of co-signor of promissory note to appear in action on the note was “excusable neglect” justifying relief from default judgment where co-signor had always relied on her husband to manage the family’s legal affairs, husband had assured her that they would be represented by counsel, and she was unaware of judgment against her until well after its entry.T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Rule allowing relief from default judgments should be liberally construed; any doubt should be resolved in favor of setting aside the judgment so that the case may be decided on its merits. T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Court would exercise its discretion to set aside an entry of default where defendant’s failure to timely answer was due to administrative oversight, prior to the expiration of time to answer defendant had appeared in opposition to a motion for injunctive relief, plaintiffs’ claim involved a substantial sum of money, there was doubt about whether the complaint and summons were properly served, and plaintiffs were not prejudiced by defendant’s delay.Pene v. ASPA, 8 A.S.R.2d 78.

Clerk’s entry of default may, in court’s discretion, be set aside for good cause.T.C.R.C.P. Rule 55(c).Pene v. ASPA, 8 A.S.R.2d 78.

In cases where a party seeks relief from a default judgment, all but the most egregious neglect will usually be excused in deference to the principle that cases should ordinarily be tried on their merits.T.C.R.C.P. Rule 60(b).Satele v. Uiagalelei, 8 A.S.R.2d 97.

Motions for relief from judgment after trial should not be granted as freely as those seeking relief from default judgments, so as to encourage diligent preparation before trial and so as not to relegate the many hours spent at trial by opposing parties and the court to the status of pre-trial discovery.T.C.R.C.P. Rule 60(b).Satele v. Uiagalelei, 8 A.S.R.2d 97.

While the court must be slow in granting default judgments, mindful of its partiality for trial on the merits, it must also balance this concern with finality of judgments and protection of the judicial process.E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Default judgments are not favored this may be why a court must hold a hearing on damages before entering a judgment on an unliquidated claim even against a defendant who has been totally unresponsive.In general, however, a litigant must make a strong showing to demonstrate that he or she is entitled to relief from a default judgment under T.C.R.C.P. 60(b).E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Rule 60(b) relief from a default judgment is an extraordinary remedy and is granted only under exceptional circumstances.Additionally, once granted, a default judgment is accorded a high degree of deference, both in the federal courts and in American Samoa, and the granting or denial of such motions is left largely to the discretion of the court.E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Traditionally,relief from a judgment of default should be granted where the defaulting party acts with reasonable diligence and tenders a meritorious defense.E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

The standards for relief when a judgment of default has been entered are substantially higher than when an entry of judgment stands alone.E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Before a default judgment may be entered, a court must scrutinize the evidence itself.Scalise v. Gorniak, 26 A.S.R.2d 85.

Evidence of amount of debt, presented in support of motion for default judgment should consist not of a conclusory affidavit by attorney, but of bank ledgers and other direct evidence from which a court can conclude for itself whether the amount has been correctly calculated.Scalise v. Gorniak, 26 A.S.R.2d 85.

Even though defendant failed to serve copy of answer on the plaintiff, court cannot grant a default judgment in favor of plaintiff in the face of an answer effectively denying liability.Vance Intl. v. Penn, 27 A.S.R.2d 79.

A default judgment is not a matter of right.It is a drastic remedy that should only be granted in extreme situations and a trial court has sound discretion to determine whether default judgment is appropriate.Rakshan v. American Samoa Gov’t, 28 A.S.R.2d 151.

T.C.R.C.P. 12(a), providing for default judgments, requires that a defendant serve his answer within 20 days after the service of the summons and complaint against him.Ames v. Dept. of Treasury, 4 A.S.R.3d 78 (Trial Div. 2000).

Tardy service alone does not entitle a defendant to a default judgment since under T.C.R.C.P. 55(e) no judgment by default shall be entered against the American Samoa Government unless the claimant establishes his claim or right to relief by evidence to be scrutinized by the court; default judgments are drastic remedies used only in extreme situations, as where the adversary process is halted by an unresponsive party; serving an answer a day late is not such an extreme situation.Ames v. Dept. of Treasury, 4 A.S.R.3d 78 (Trial Div. 2000).

A court should be slow in granting default judgments, mindful of its partiality for trial on the merits, and despite untimely delays on a defendant’s part, it would be inappropriate to allow default judgment.Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

In American Samoa, the court must scrutinize the evidence before a default judgment may be entered, even in the case where the amount sought in the complaint is fully liquidated.AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

In motions for default judgment the court looks to direct evidence to determine whether the claimed indebtedness has been correctly calculated.AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

Where plaintiff’s sought default judgment against individual, but evidence presented was unclear as to how such person was liable for supplies to shipped to separate business entity, court would not enter default judgment.AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

The rate of pre-judgment interest which the law presumes, in the absence of a written stipulation by the debtor to a different permissible rate, is 6%.AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

Any claim for pre-judgment interest beyond the statutorily-mandated 6% rate is usurious and unenforceable.AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

In American Samoa, the court must scrutinize the evidence before a default judgment may be entered.Cummins Engine Co., Ltd. v. Bay Area Diesels, Inc., 6 A.S.R.3d 99 (Trial Div. 2002).

Before default judgment may be granted, the evidence on file must satisfy the court that the calculation of the debt in question is accurate.Cummins Engine Co., Ltd. v. Bay Area Diesels, Inc., 6 A.S.R.3d 99 (Trial Div. 2002).

Where default judgment on a debt is sought, direct evidence of the debt, such as invoices and receipts, is necessary to sufficiently establish the amount—a conclusory affidavit will not suffice.Cummins Engine Co., Ltd. v. Bay Area Diesels, Inc., 6 A.S.R.3d 99 (Trial Div. 2002).

§ 10(6)¾Interlocutory & Collateral Orders

Counsel who wished to readvance an argument that had been rejected by the court should have done so by filing a timely motion to reconsider the court’s interlocutory order, not by simply ignoring the order.Lutu v. Semeatu, 13 A.S.R.2d 88.

Where defendant asserts a right which is or includes a right not to bear the burden of the suit itself, regardless of the outcome, he may immediately appeal a denial of that right under the collateral order exception.Kim v. American Samoa Government, 17 A.S.R.2d 193.

Generally, an interlocutory order during the course of a judicial proceeding is not a final decision that can be immediately appealed to the High Court, but is reviewable only by means of appeal from an adverse judgment in the main proceeding.Kim v. American Samoa Government, 17 A.S.R.2d 193.

An interlocutory order is final and thus appealable if it finally determines claims of right separable from and collateral to rights asserted in the main action, too important to be denied review, and too independent of the cause itself to require that appellate review be deferred until the whole case is adjudicated.Kim v. American Samoa Government, 17 A.S.R.2d 193.

To fall within 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.Kim v. American Samoa Government, 17 A.S.R.2d 193.

A collateral order is generally regarded as effectively unreviewable and therefore final — even if a later appeal from an adverse judgment in the principal action is possible — when substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated.Kim v. American Samoa Government, 17 A.S.R.2d 193.

Defendant’s appeal of an interlocutory order denying his asserted absolute right to appointment of an interpreter on request falls within the collateral order exception since he is asserting a right not to be tried under such circumstances, and such right is effectively unreviewable, since denial of an interpreter generally requires a showing of prejudice to obtain a reversal.Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

An interlocutory appeal of an agency action or ruling is available only if review of the final agency decision would not provide an adequate remedy.A.S.C.A. § 4.1040(c).Sala v. American Samoa Government, 20 A.S.R.2d 80.

An interlocutory order during the course of a trial or other judicial proceeding is generally not a “final decision” within the meaning of A.S.C.A. § 3.0309 and similar statutes.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

An interlocutory order falling within the collateral order exception can be appealed.To fall within the 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.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

A collateral order is generally regarded as unreviewable where substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated.Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

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.Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

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.Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

§ 10(7)¾Res Judicata & Collateral Estoppel

Fact which is in issue in former suit and determined therein by court of competent jurisdiction cannot be raised in later action by same parties or their privies whether the former and latter cause of action be identical or different.Sapela v. Mageo, 1 A.S.R. 143.

Where issue of adverse possession has been correctly determined by previous decision, court will not reconsider it upon motion for new trial.Taliutafa v. Toaga, 2 A.S.R. 218.

Where plaintiff in former suit represented class in which petitioner of present suit is included, former decision becomes law of case and applies to present petitioner so that new trial is not necessary.Taliutafa v. Toaga, 2 A.S.R. 218.

Privity involves person so identified in interest with another that he represents same legal right; privity in relation to doctrine of res judicata is privity as it exists in relation to subject matter of litigation.Toomata v. Vea, 2 A.S.R. 564.

Material facts or questions which were issue in former action, and were admitted or judicially determined, are conclusively settled by judgment rendered therein, and such facts or questions become res judicata and may not again be litigated in subsequent action between same parties, whether second action is on same or different cause of action.Toomata v. Vea, 2 A.S.R. 564.

Doctrine of judicial estoppel makes it mandatory upon court to find that party is member of certain family since this fact had been previously determined in prior litigation.Toomata v. Vea, 2 A.S.R. 564.

Judgment determining property rights binds only those who were parties and persons in privity with them.Mulu v. Taliutafa, 3 A.S.R. 82.

Rights of person not party to suit nor in privity with party are not affected by prior judgment concerning land presently in dispute, nor is such judgment res judicata with respect to him.Tialavea v. Aga, 3 A.S.R. 272.

Court is bound by prior decision between same parties which found that disputed lands were communal family lands.Faamuli v. Leiato, 3 A.S.R. 308.

Party may be estopped from taking inconsistent position in subsequent judicial proceeding.Scanlan v. Steffany, 3 A.S.R. 583.

Where suit is dismissed by plaintiff voluntarily, he is not estopped from taking inconsistent position in subsequent proceedings.Scanlan v. Steffany, 3 A.S.R. 583.

Party may not be estopped from maintaining inconsistent position in subsequent judicial proceeding unless he was successful in prior judicial proceeding.Scanlan v. Steffany, 3 A.S.R. 583.

Court will not dismiss application to register land where prior decision evicted applicant from land where there are two new parties to action who were not parties to previous case.Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Court will not dismiss application to register land where prior decision held that applicant should be evicted from land and enjoined from returning since present case is different kind of action.Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where no judgment for prior court decision can be found, decision cannot constitute res judicata against any of parties in present case, but transcript may be used as evidence in determining ownership of land.Aumoeualogo v. Mamoe, 4 A.S.R. 742.

Parties and their privies are barred from relitigating same cause of action, since first judgment settles all matters that were or might have been determined therein.Tuitasi v. Lualemaga, 4 A.S.R. 798.

In subsequent suit between parties and privies involving different cause of action, parties are only barred from relitigating matters determined in first proceeding and not those that might have been determined.Tuitasi v. Lualemaga, 4 A.S.R. 798.

Person not party to nor in privity with litigant in prior action may invoke res judicata against prior litigant or privy in earlier action.Tuitasi v. Lualemaga, 4 A.S.R. 798.

Person not party nor in privity is denied due process if judgment in prior action binds him.Tuitasi v. Lualemaga, 4 A.S.R. 798.

To be in privity and barred by res judicata, non-party must be so identified in interest with party to former litigation that he represents same legal right in respect to subject matter involved.Tuitasi v. Lualemaga, 4 A.S.R. 798.

Plea of res judicata is affirmative defense that must be pleaded and proved by proponent, unless appearing affirmatively in pleadings of party against whom asserted.Tuitasi v. Lualemaga, 4 A.S.R. 798.

Defense of res judicata is properly raised by motion to dismiss.Tuitasi v. Lualemaga, 4 A.S.R. 798.

Where private parties litigate land dispute, and Government is not party to dispute, court’s determination of ownership in one of parties does not preclude greater right in Government nor does it determine rights of Government in land.Mageo v. Government, 4 A.S.R. 874.

Under principle of res judicata, judgment or decree of court of competent jurisdiction on merits concludes parties and privies to litigation and constitutes bar to new suit involving same cause of action.Willis v. Taupo, 4 A.S.R. 934.

Where another member of family brings second suit identical to one previously denied against same defendant, he is barred by res judicata.Willis v. Taupo, 4 A.S.R. 934.

Where plaintiff brought action for eviction and this remedy was denied, he cannot again bring same action concerning the same land against same defendant.Willis v. Taupo, 4 A.S.R. 934.

Under principle of res judicata, any right, fact, or matter in issue and directly adjudicated on or necessarily involved in determination of action in which judgment is rendered is conclusively settled and cannot again be litigated between parties and privies whether or not claim or subject matter of two suits is same.Willis v. Taupo, 4 A.S.R. 934.

Basis of res judicata is that there should be end to litigation and that party should not be harassed twice by opponent.Willis v. Taupo, 4 A.S.R. 934.

Where previous decision determined predecessor title holders, court will not ignore determination in order to accept unsupported statement of contestant to contrary.Taufaasau v. Manuma, 4 A.S.R. 947.

Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution.Taulaga M. v. Patea S., 4 A.S.R.2d 186.

A trial court decision that was not appealed and that adjudicated ownership of a tract of land acquired the effect of res judicata and bound the court in later dispute between the same parties over the same tract of land.Te’o v. Sotoa, 5 A.S.R.2d 90.

Party who unsuccessfully sought title to a tract of land in previous action and failed to appeal may not later resurrect same claim to same land.Sialega v. Taito, 5 A.S.R.2d 99.

Since corporation unrepresented by counsel was presumed to be a relatively sophisticated litigant, court would sign “stipulated judgment” agreed to by the corporation as long as its officers understood that the stipulated judgment was substantially greater than would be taken against the corporation if it simply did not appear.Wattie Exports Limited v. Pacific Industries, Inc., 6 A.S.R.2d 30.

Garnishee bank that had elected not to retain counsel and whose employee attended garnishment hearing but did not request to testify could not argue in collateral attack on resulting judgment that it had been denied an opportunity to be heard.Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

Losing candidate for matai title and his supporters, who from the time of the adverse judgment had attempted to prevent the reunification of the family and compliance by the prevailing candidate with the traditional prerequisites for formal ceremonial assumption of the title, would not prevail in a subsequent suit seeking removal of the prevailing candidate on the ground that he had not undergone such a ceremony. In re Matai Title Sotoa, 6 A.S.R.2d 91.

After a final judgment, rule of res judicata bars relitigation by the parties of questions raised by the pleadings or of related questions that might have been raised and thus ordinarily precludes court from reopening the proceeding in order to consider evidence and arguments for a reduction or increase in the amount of the judgment.Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Trial court decision adjudicating land ownership that was not appealed became res judicata and bound the court in a later dispute between the same parties over the same tract of land.Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Judgment in prior case, between same parties and involving same land as the present case, was res judicata and therefore bound the parties and the court notwithstanding losing party’s contention that the judgment did not accord with Samoan custom.Aoelua v. Tela, 10 A.S.R.2d 20.

Where judgment in prior case, between same parties but involving different land, had rejected one party’s contention that he was the owner according to Samoan custom of all lands occupied by the other party, court deciding subsequent case must reject this contention notwithstanding the party’s contention that the prior judgment did not accord with Samoan custom.Aoelua v. Tela, 10 A.S.R.2d 20.

Judicial decision stating that a certain tract (1) was “the property of” a named party, (2) that she should have the rents during her lifetime, and (3) that she should make a will saying who she wanted to receive the rentals after her death, adjudicated the question of title to the property as between the parties to the case and their successors in interest.Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Res judicata applies only where the parties and the subject matter of the earlier case are identical to those of the case at hand.Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Collateral estoppel applies only against a party who was represented in earlier litigation; a party who wins a lawsuit is not automatically entitled to a similar judgment against people who were not parties to the earlier litigation and who are not successors in interest of anybody who was.Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

When more than one lawsuit arises from a single chain of events and the first lawsuit decides mixed questions of law and fact, the doctrine of stare decisis precludes relitigation only by parties who have already litigated the questions or who had a fair chance to do so in the first lawsuit.Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Trial court decision whose application to persons who were not parties had been reversed by appellate court as a denial of due process should not be mechanically imposed upon such persons in subsequent litigation brought against them by the original plaintiff.Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Appellant is collaterally estopped from denying the separate and independent nature of two matai titles where the identical factual issue was decided in prior litigation between the same parties and the issue was essential to resolution of the prior controversy.Tela v. Aoelua, 12 A.S.R.2d 40.

Prior judicial decision regarding the registration of land is res judicata, even if it was wrongly decided; 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 was already fully litigated.Tela v. Aoelua, 12 A.S.R.2d 40.

Statute providing that land should not be registered when a competing application for registration is pending neither renders void a final judgment entered in violation of its terms, nor otherwise permits a collateral attack on that judgment.A.S.C.A. § 37.0101.Tela v. Aoelua, 12 A.S.R.2d 40.

Since res judicata requires an existing final judgment rendered upon the merits, the dismissal of a prior action with prejudice for failure to prosecute is not res judicata where the court amended its order to clarify that it was not a judgment on the merits.Patau v. Rosendahl Corp., 14 A.S.R.2d 79.

Barring land claims by res judicata or collateral estoppel is improper if the parties or their predecessors-in-title were not parties in the previous case.Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

Even under the mutuality doctrine, which has largely been abandoned, the government could sue a convicted criminal for civil damages, and the defendant would be estopped to deny the facts entailed by his conviction.Galea`i v. Atofau, 16 A.S.R.2d 76.

Collateral estoppel applies whether defendant’s conviction resulted from a trial or from a guilty plea, even if induced by a plea bargain.Galea`i v. Atofau, 16 A.S.R.2d 76.

With the abandonment of the mutuality requirement, individual victims of crime can now benefit from collateral estoppel in the same ways and to the same extent that the government has always done.Galea`i v. Atofau, 16 A.S.R.2d 76.

Majority rule gives judgments based on guilty pleas the same collateral effect as other criminal convictions and, as such, are conclusive of all issues that would have been resolved by a conviction following a trial.Galea`i v. Atofau, 16 A.S.R.2d 76.

The traditional requirement is that a party should be estopped only with respect to those matters that were genuinely at issue and genuinely decided in the earlier case.Galea`i v. Atofau, 16 A.S.R.2d 76.

At least when a defendant’s admission to a crime was made upon the advice of competent counsel, collateral estoppel applies with respect to issues which were distinctly and directly put at issue by the pleadings, which were central rather than peripheral to the proceeding, and which were essential to the outcome.Galea`i v. Atofau, 16 A.S.R.2d 76.

Neither a guilty plea nor a verdict after trial estops the defendant with respect to any issue not squarely resolved by the judgment; with respect to these elements a plaintiff must present evidence other than the guilty plea, and a defendant is free to controvert any such evidence.Galea`i v. Atofau, 16 A.S.R.2d 76.

Samoan communal land belongs to families rather than individuals, and a judgment against the family is binding on the family despite the succession of matai-title holders through time.Taulaga v. Patea, 17 A.S.R.2d 34.

A person who takes an interest in real property from one who litigated the property’s title is in privity with him and so is bound by res judicata.Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

Res judicata applies only to a “final” judgment between the “parties” or those in privity with them.Restatement (Second) of Judgments §17 (1988).Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

Even if erroneous, a court’s decision as to whether a parcel of land is a person’s individual land or a family’s communal land is binding on later courts.Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

A court order requiring the Registrar to issue a land-registration certificate did not bar a plaintiff from litigating the issue of whether a registration of somebody else’s property, affirmatively identified as such by the applicant in his registration documents, is nevertheless a valid registration, when neither this issue nor the plaintiff was previously before the court.Ava v. Logoai, 19 A.S.R.2d 75.

An objection to a proposed lease, when found to be nothing more than an attempt to revive a previously litigated ownership question, will not be entertained due to res judicata.Utu v. Alaimalo, 22 A.S.R.2d 92.

Because a guilty plea in a prior criminal action necessarily eliminates a full and contested presentation of evidence on the issues and may only indicate a compromise or an expectation of a more advantageous disposition of a criminal accusation, the policy underlying collateral estoppel would not be truly served by making a guilty plea conclusive in a civil action.Amisone v. Talaeai, 23 A.S.R.2d 52.

A case does not have res judicata or collateral estoppel effect when the parties and subject matter in a later case are different.Reid v. Puailoa, 23 A.S.R.2d 101.

While in rem and in personam claims may be joined, res judicata applies from an in personam action against a shipowner to an in rem action against his ship (and vice versa); thus, one may not sue twice on the legal fiction that a ship and her owner are two different parties.Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 23 A.S.R.2d 156.

In a state where the welfare of the child is the primary consideration in shaping a custody decree and where the custody decree is not irrevocable or unchangeable, the custody decrees of that state’s courts are ordinarily not res judicata in that state or elsewhere, except as to the facts before the court at the time of judgment.In re A Minor Child, 28 A.S.R.2d 33.

The sum and substance of the whole doctrine of res judicata is that a matter once judicially decided is finally decided.American Samoa Gov’t v. Meredith, 28 A.S.R.2d 92.

A collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective.American Samoa Gov’t v. Estate of Fuimaono Tuinanau, 28 A.S.R.2d 187.

The doctrine of res judicata precludes relitigation of the legal and factual issues that were settled between the same parties in prior litigation.American Samoa Gov’t v. Meredith, 1 A.S.R.3d 14 (App. Div. 1997).

The doctrine of res judicata precludes relitigation of issues that could have been raised but may not have been raised in the prior litigation.American Samoa Gov’t v. Meredith, 1 A.S.R.3d 14 (App. Div. 1997).

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.American Samoa Gov’t v. Meredith, 1 A.S.R.3d 14 (App. Div. 1997).

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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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 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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

Where future suits are foreseeable at the time of the first action, the defendant cannot claim that there was a lack of incentive to litigate the issue so as to avoid the application of the doctrine of collateral estoppel.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

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.Mailei v. Faumuina, 1 A.S.R.3d 206 (Land & Titles Div. 1997).

Res judicata is a rule of substantive law and not of practice or procedure. Mailei v. Faumuina, 1 A.S.R.3d 206 (Land & Titles Div. 1997).

Res judicata cannot be set aside by employing A.S.C.A. § 3.0242(b).Mailei v. Faumuina, 1 A.S.R.3d 206 (Land & Titles Div. 1997).

Where a prior case previously adjudicated the same issues between the same families and was resolved in a final judgment as to the communal nature and ownership of the land, the communal nature and ownership of the land is res judicata in a subsequent case.Taylor v. Solaita, 3 A.S.R.3d 218 (Land & Titles Div. 1999).

Full faith and credit requires this court to respect the res judicata effect of an earlier judgment in deciding the same issues presented in an action currently litigated.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Res judicata applies to a “final” judgment between the “parties” or those in privity with them.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where earlier, final judgment determined that vessel owners’ association was legal entity with vested ownership interest in vessels, and where plaintiffs in instant action and association were parties in the prior action, association was estopped from relitigating same issues in instant action.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where case involves the same parties and issue regarding land ownership and court has previously adjudicated the land at issue to be communal land of a certain family, court will recognize the res judicata effect of the previous decision to reinforce the holding that the land at issue is that family’s communal land.Tuigamoa v. Tu`ugaolo, 5 A.S.R.3d 239 (Land & Titles Div. 2001).

Res judicata, or claim preclusion, applies when (1) there has been a final judgment on the merits (2) in a prior action involving the same parties or their privies and (3) the prior action involved the same claim.Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

A judgment will have preclusive effect if the same parties are involved or if a non-party was in privity with a party to the previous action.Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Privity is a term that describes the relationship between a party and a nonparty that is deemed close enough to warrant the application of claim or issue preclusion to the party.Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Res judicata requires that the subject matter of the earlier case be identical to that of the case at hand.Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Res judicata prevents not only the relitigation of matters actually determined in a previous, final case, but also precludes the court from hearing other matters which could properly have been raised and determined in that action, whether or not such matters were in fact considered.Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

A person who takes an interest in real property from one who litigated the property’s title is in privity with him and is bound by res judicata.Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Collateral estoppel, or issue preclusion, bars the relitigation of issues actually adjudicated in previous litigation between the same parties.Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

To foreclose relitigation of an issue under collateral estoppel: 1) the issue at stake must be identical to the one alleged in the prior litigation; 2) the issue must have been actually litigated in the prior litigation; and 3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action.Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

The party claiming issue preclusion has the burden of proving each element necessary to bar relitigation of the issue.Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

The Trial Division of the High Court is not bound by an erroneous salary calculation determined by the American Samoa Government Wage and Hour Board.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 91 (Trial Div. 2002).

The doctrine of res judicata holds that a final judgment on the merits in an action bars a later action involving the same parties, or their privies, and the same issues.Tiapula v. Isumu Leapagatele’s Children, 6 A.S.R.3d 324 (Land & Titles Div. 2002).

§ 10(8)—Merger

Defense of merger was inapplicable when Court treated action as action upon personal judgment rather than action in rem on maritime lien.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

§ 11Post Judgment Motions & Appeals

§ 11(1)—Motion for New Trial or Reconsideration

§ 11(1)(a)—General Provisions

A motion for a new trial may be styled a motion for “reconsideration”, as long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors claimed in regards to its decision.Lualemana v. Asifoa, 17 A.S.R.2d 151.

Motion for reconsideration or new trial will be denied when parties agree to a settlement.Willis v. Fai`ivae, 18 A.S.R.2d 61.

The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional.A.S.C.A. § 43.0802(a).Rocha v. Rocha, 20 A.S.R.2d 63.

The purpose of requiring a motion for new trial, which sets forth with particularity the grounds for reversal, is to avoid unnecessary appeals by giving the trial court the opportunity to correct any errors it may have made.Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

It is unimportant whether a motion is styled a motion for new trial or a motion to reconsider as long as it is timely and clearly informs the court of claimed errors.Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

To appeal a decision of the trial division, a motion for new trial must be filed within 10 days after ajudgment or order is entered.A.S.C.A. § 43.0802 and A.C.R. Rule 4(a)(1).The denial of amotion for relief from judgment under T.C.R.C.P. Rule 60 qualifies as an order under the foregoing rules.Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

Arguments that could have been made at trial may not be made for the first time either on a motion for new trial or on appeal.In re Matai Title “Tuaolo”, 28 A.S.R.2d 137.

A party moving for reconsideration or new trial must do more than reiterate the trial court’s reasons for a decision and then make a blind assertion that we were incorrect.It is the attorney’s, not the court’s, job to advocate, do legal research, and construct the legal theory upon which a losing party might oppose our decision.G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 204.

On a motion for a new trial, the court will not consider arguments that the moving party failed to raise during the original trial.Clifton v. Voyager, 31 A.S.R.2d 12.

The court will not accept arguments on issues raised for the first time in a motion for a new trial if they could have been properly raised at trial.This is true even in the case of an interesting and possibly important argument.Clifton v. Voyager, 31 A.S.R.2d 12.

A motion for reconsideration or new trial is a necessary precondition for filing an appeal.Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

If no timely motion for reconsideration or new trial conforming to the “particularity” requirement of T.C.R.C.P. 7(b)(1) is filed within statutory ten-day deadline, then Appellate Division lacks jurisdiction to entertain appeal.Suluai v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 216 (Trial Div. 2002).

The common practice of American Samoa courts is to consider their orders—which often contain a recitation of the facts, procedural history, and legal reasoning—asjudgments for purposes of filing post-judgment motions.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

All civil cases in American Samoa are bench trials, and there is no mechanism or rule that envisions a motion for a mistrial; thus, a motion for mistrial in a civil action in American Samoa will be treated as a motion for a new trial.Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

A trial court in American Samoa should explicitly state its disposition of a prejudgment new trial motion, even if it does not explain its reasons.Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

There is no basis for reconsideration of a denial of a summary judgment motion.RDL, Inc. v. American Samoa Community College, 7 A.S.R.3d 103 (Trial Div. 2003).

§ 11(1)(b)—Time for Filing

Court rules require a “motion to alter or amend” a judgment to be served on opposing parties within ten days of judgment.T.C.R.C.P. Rule 59.Olotoa v. Bartley, 3 A.S.R.2d 21.

Territorial statute requiring motions for new trial to be “filed” within ten days of judgment would not be construed to require service on opposing parties within the ten day period.A.S.C.A. § 43.0802.Olotoa v. Bartley, 3 A.S.R.2d 21.

Statutory period for filing a motion for a new trial commences with the announcement of judgment. A.S.C.A. § 43.0802.Judicial Memorandum, 4 A.S.R.2d 172.

The Clerk of Court will file a written entry of any judgment announced from the bench; the failure of the Clerk to do so, however, does not prevent the statutory period for filing motions for new trial from commencing with the announcement of judgment by the court.A.S.C.A. § 43.0802.Judicial Memorandum, 4 A.S.R.2d 172.

Events subsequent to the announcement of judgment, such as the issuance of a written opinion, receipt by counsel of notice of the judgment, or the correction of an error or omission in the judgment, do not extend the time for filing motions for new trial.Judicial Memorandum, 4 A.S.R.2d 172.

A correction so substantial as to create a new judgment, or a statement from the bench indicating informally what the judgment will be but reserving formal announcement of judgment until a later date, would cause the statutory period for filing motions for new trial to begin on the date of the correction or of the formal announcement rather than on the date of the initial announcement.Judicial Memorandum, 4 A.S.R.2d 172.

Counsel uncertain of the date by which motion for new trial must be filed should request the court’s guidance rather than assume the filing date has been extended.Judicial Memorandum, 4 A.S.R.2d 172.

Statute imposing ten day time limit on motions for new trial is jurisdictional and leaves court no discretion to extend or disregard the time limit.A.S.C.A. § 43.0802(a).Satele v. Uiagalelei, 8 A.S.R.2d 97.

The requirement that a motion for a new trial be filed within ten days after the announcement of the judgment is a mandatory prerequisite to the exercise of jurisdiction by the Appellate Division.A.S.C.A. § 43.0802(a).In re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

The filing of a motion for new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal.A.S.C.A. § 43.0802(a).Lualemana v. Asifoa, 17 A.S.R.2d 151.

A motion for a new trial is deemed filed when presented to the clerk for filing, absent valid reasons for rejecting it.Rocha v. Rocha, 20 A.S.R.2d 63.

In order for the appellate court to have jurisdiction over an appeal, (1) a motion for new trial or reconsideration must be filed within ten days after the announcement of the judgment or sentence, and (2) the notice of appeal must be filed within ten days after the denial of that timely motion.A.S.C.A. § 43.0802.Toluao v. Fuimaono, 21 A.S.R.2d 12.

A.S.A.C. § 26.0320(h) requires that “[w]ithin 10 days after receipt of the decision the applicant or any other interested party may file a written motion for reconsideration.”McGuire v. Zoning Board, 26 A.S.R.2d 59.

Memoranda supporting motion for a new trial must be filed no later than 10 days after the judgment to provide the adverse party an opportunity to respond.A.S.C.A. § 43.0802(a).Korea Deep Sea Fisheries v. M/V Corona, 27 A.S.R.2d 120.

Court will not entertain a motion to alter or amend a judgment when adverse party has been served with the motion later than 10 days after entry of judgment.T.C.R.C.P. 59(e).Korea Deep Sea Fisheries v. M/V Corona, 27 A.S.R.2d 120.

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).PAL Air International, Inv. v. Porter, 1 A.S.R.3d 1 (App. Div. 1997).

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.Bank of Hawaii v. Neru, 1 A.S.R.3d 69 (Trial Div. 1997).

Where a party timely submits a motion for new trial on grounds that the court abused its discretion in an evidentiary finding, but fails to timely file its brief and arguments, the motion will not be considered.Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

Under A.S.C.A. § 43.0802(a), a motion for new trial must be filed within 10 days after the announcement of the judgment, and a late filing is not excused on the ground that the meaning of the judgment was not made clear until later.Fou v. Talofa Video, 2 A.S.R.3d 152 (Trial Div. 1998).

Under A.S.C.A. § 43.0802(a), a motion for reconsideration must be filed within 10 days after the announcement of the judgment, and where a late filing is not excusable, the court lacks jurisdiction to consider it. Alai`asa v. Fanene, 2 A.S.R.3d 186 (Land & Titles Div. 1998).

Where party filed his motion for reconsideration on last day of 10-day period specified in A.S.C.A. § 43.0802(a), but failed to serve opposing parties until one day later, filing was nonetheless proper. Pita v. Garrett, 3 A.S.R.3d 213 (Land & Titles Div. 1999).

The 10-day time limit in which a party must file a motion for reconsideration or new trial is a mandatory time limit and is jurisdictional.Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

Where court partially granted motion for reconsideration or new trial, the court’s order granting such motion effected a new judgment and the time limit for filing a subsequent motion for new trial ran from the date of that order.Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

The new trial motion and appellate deadlines may begin to run despite the fact that no written judgment has issued.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

Where the court issues a judgment separate from its order, such is made clear in the court’s order, and the time to move for a new trial, and to appeal, begins running when the separate judgment is entered into the docket.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

Where court clerk stamped order amending judgment and docketed the same as court’s amended judgment pursuant to longstanding practice of court, such filing did not violate T.C.R.C.P. 58 or T.C.R.C.P. 54(a) and motion for reconsideration filed fourteen days later was properly considered tardy and dismissed.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

A motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence.In this context, the word ‘within’ is interpreted to include only the final limit and not the starting point.Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

A motion for a new trial may be made no later than 10 days after the judgment, and it may also be made before the judgment.Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

§ 11(1)(c)—Particularity Requirement

A motion for new trial should be sufficiently thorough and specific to inform the court and opposing counsel of the particular grounds for the requested relief.T.C.R.C.P. Rule 7(b)(1).Judicial Memorandum, 4 A.S.R.2d 172.

A motion for new trial must set forth “with particularity” the grounds on which the trial court decision should be reversed.T.C.R.C.P. 7(b)(1).Taulaga v. Patea, 17 A.S.R.2d 34.

The purpose of the particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made.T.C.R.C.P. 7(b)(1).Taulaga v. Patea, 17 A.S.R.2d 34.

A motion for a new trial must clearly apprise the trial court of the specific errors being alleged; a general statement that the court erred as a matter of fact, law, or custom does not fulfill this requirement.In re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made.In re Matai Title “Lolo”, 26 A.S.R.2d 46.

When the grounds in a motion for new trial are stated too generally, the motion may be rendered null.Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 167.

T.C.R.C.P. Rule 7(b) requires that motions, unless made during a hearing or trial, shall be made in writing and state with particularity the grounds therefore.This rule is especially important in motions for a new trial to put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal andto avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways.Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 167.

On a motion for new trial or rehearing the moving party must state with particularity the grounds of a motion.American Samoa Gov’t v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 170.

A party must cite the court to specific allegations of error, accompanied by legal citation where appropriate, or a motion for new trial or reconsideration shall be denied.In extreme instances, we may even treat the motion as a nullity, cutting off the party’s right to further appeal.In re Minor Child, 30 A.S.R.2d 22.

In making a motion for new trial, an attorney must do more than present the court with unresearched and unsupported conclusory assertions.Failure to do so will subject the attorney to personal sanctions under T.C.R.C.P.11.In re Minor Child, 30 A.S.R.2d 22.

In order to properly bring motion for new trial, party must fully apprise trial court of asserted errors in its judgment so that it may consider for itself whether any such errors occurred and make appropriate corrections, thereby obviating obvious appeals.Suluai v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 216 (Trial Div. 2002).

§ 11(1)(d)—Grounds for New Trial or Reconsideration

Courts of equity may vacate a judgment obtained by mistake, fraud or false testimony and grant a new trial.Jewett v. McMoor, 1 A.S.R. 611.

Neither surprise at the time of a trial nor mistake as to the nature of the action are sufficient grounds for new trial.Jewett v. McMoor, 1 A.S.R. 611.

Generally, mere fact that damages awarded in original proceeding were excessive will not merit new trial.Jewett v. McMoor, 1 A.S.R. 611.

Court will not grant new trial where there is sufficient, competent evidence to support judgment in the original proceeding.Jewett v. McMoor, 1 A.S.R. 611.

To justify setting aside verdict and granting new trial, court must come to irresistible conclusion that verdict was not the product of free, sound and unbiased exercise of judgment.Jewett v. McMoor, 1 A.S.R. 611.

Party moving for new trial must show by affidavit that alleged newly discovered evidence was not known to movant at time of trial.Jewett v. McMoor, 1 A.S.R. 611.

Cumulative and impeaching evidence are not the kinds of evidence required to justify a new trial on grounds of newly discovered evidence.Jewett v. McMoor, 1 A.S.R. 611.

Rehearing will be granted if showing made that prior decision was based on false testimony which adverse party could not refute at time of prior hearing.Leano v. Leti, 2 A.S.R. 524.

Before court may grant rehearing, it must be satisfied that owing to mistake of law or misunderstanding of facts, decision has done injustice to particular case.Gi v. Mageo, 2 A.S.R. 383.

In order to grant a new trial on basis of newly discovered evidence, court must be convinced that evidence was not available nor could have become available with due diligence before trial and that evidence will probably change result of trial; new trial will not be granted where evidence is merely cumulative.Faagau v. Fuaga, 3 A.S.R. 488.

To warrant getting new trial on grounds of newly discovered evidence, it must appear that evidence will probably change result of trial, that it had been discovered since trial, that it could not have been discovered before trial by exercise of due diligence, that it is material to issue, and that it is not merely cumulative or impeaching.Malaga v. Mase, 3 A.S.R. 518.

Fact trial court presiding judge was called as witness and testified in connection with claims considered by War Damages Commission, of which he was member, is not error which would entitle appellant to new trial where testimony related to ministerial duties performed sixteen years ago which were matters of record.Mageo v. Government, 4 A.S.R. 874.

Where appellant requests new trial on ground of new evidence but, after continuance, fails to produce new evidence, request will be denied.Mageo v. Government, 4 A.S.R. 874.

Where appellant requests new trial, but nothing in record or during hearing on appeal warrants new trial, request will be denied.Mageo v. Government, 4 A.S.R. 874.

Where personality, character, demeanor and credibility of litigants are vital elements in case, appellate court will not try case de novo.Taufaasau v. Manuma, 4 A.S.R. 947.

Litigant could not raise on motion for new trial an issue about which the court had expressed serious concern at trial and which the parties expressly stipulated to exclude from the litigation.Olo v. Tulisua, 6 A.S.R.2d 129.

Defendant’s motion for a new trial, made on the ground that he had received no actual notice of the trial date, was denied where it was shown that such notice was given in accord with statutory procedure by delivery to the defendant’s home and receipt by his son two months prior to trial.Ava v. Moe, 8 A.S.R.2d 95.

Trial court properly declined to grant motion for reconsideration based on an issue that had not been properly raised at trial.Moea`i v. Alai`a, 12 A.S.R.2d 91.

A motion for new trial or rehearing in a non jury case should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons. The burden on the moving party is to show substantial reasons that such relief should be granted.American Samoa Gov’t v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 170.

The decision to hold a new trial is within the discretion of this court.The court will grant a motion for a new trial only where the moving party can show that the original decision is contrary to the clear weight of the evidence.Clifton v. Voyager, 31 A.S.R.2d 12.

On a motion for a new trial, the court will not consider arguments that the moving party failed to raise during the original trial.Clifton v. Voyager, 31 A.S.R.2d 12.

T.C.R.C.P. 59(a) does not specify the grounds for a new trial, but in nonjury actions, a new trial may be granted where the record shows a manifest error of law or fact; and a court may alter or amend judgment under T.C.R.C.P. 59(e) if it has made a clear error of law or fact.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Reconsideration is appropriate if the trial court is presented with newly discovered evidence, committed clear error or the initial decision was manifestly unjust, or if there is an intervening change in controlling law.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

Reconsideration of an order is appropriate if the court is presented with newly discovered evidence, or if it committed clear error, or if the initial decision was manifestly unjust, or if there is an intervening change in controlling law.Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

Trial Court Rule of Civil Procedure 59 gives a trial court broad discretion to permit a new trial in the interests of justice.Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

Even when there is substantial evidence supporting the trial court’s decision, a new trial, and attendant reweighing of the evidence, may be conducted where the interests of justice would be furthered.Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

Where new trial was warranted and previous associate judges sitting on case were unavailable, court could properly empanel other associate judges to hear case.Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

In reviewing its previous decision on motion for reconsideration or new trial, Court is not required to guess at or construct legal theory upon which moving party opposes original decision.Suluai v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 216 (Trial Div. 2002).

A motion for reconsideration or new trial should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons.Boral Gas of American Samoa, Inc. v. Iaulualo, 7 A.S.R.3d 57 (Trial Div. 2003).

§ 11(2)—Relief from Judgment or Order – Rule 60 Motion

For motions to set aside a judgment, the Ruel provisions stating that collateral attack on the judgment must be made within a reasonable time can rarely time-bar attack based on voidness, but a judgment which the Court has power to make and which affords minimal due process is valid even if incorrect; the issue is essentially one of jurisdiction.Nouata v. Pasene, 1 A.S.R.2d 25 (App. Div. 1980).

A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances.T.C.R.C.P. Rule 60.Willis v. Willis, 4 A.S.R.2d 144.

Territorial statute permitting court to subordinate rules of “practice or procedure” to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure.A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60.Willis v. Willis, 4 A.S.R.2d 144.

Party’s untrue statements that his wife had been delinquent in pursuing a divorce action pending in Hawaii constituted “misrepresentation” justifying relief from territorial court decision to lift stay of local divorce proceeding that had been expressly conditioned on diligent pursuit of the Hawaii action.T.C.R.C.P. Rule 60(b).Wray v. Wray, 5 A.S.R.2d 34.

A non-fraudulent misrepresentation may form the basis for relief from judgment within rule permitting such relief in cases of “fraud, misrepresentation, or other misconduct.”T.C.R.C.P. Rule 60(b).Wray v. Wray, 5 A.S.R.2d 34.

A court deciding whether a party is entitled to relief from judgment should not consider objections that could have been raised in an appeal.T.C.R.C.P. Rule 60(b).Wray v. Wray, 5 A.S.R.2d 34.

Whether to grant relief from a judgment is a matter within the discretion of the court, and the court should not grant relief when there is no chance that correction of the flaw in the proceedings leading to judgment would yield a different outcome on retrial.T.C.R.C.P. Rule 60(b).Wray v. Wray, 5 A.S.R.2d 34.

A party seeking relief from a judgment must show a “meritorious defense,” not a “defense on the merits”; a defense can be meritorious although it concerns jurisdiction, standing, forum non conveniens, or any other issue that might cause a court which had reviewed both parties’ positions never to reach “the merits.”T.C.R.C.P. Rule 60(b).Wray v. Wray, 5 A.S.R.2d 34.

Doubts about whether to grant relief from a judgment should be resolved in favor of relief when the judgment was a default or otherwise resulted from a proceeding that was not fully litigated.T.C.R.C.P. Rule 60(b)Wray v. Wray, 5 A.S.R.2d 34.

Party’s failure to file a timely motion for new trial was due to “excusable neglect” when she had received no notice of the trial and, as her adversary knew, was unable to learn of the trial and the resulting judgment until after the deadline for filing had passed.T.C.R.C.P. Rule 60(b).Wray v. Wray, 5 A.S.R.2d 34.

Motion for relief from judgment was not being used as an impermissible substitute for appeal when motion was based on facts and arguments that party opposing motion withheld from court and opposing counsel at the time of trial.T.C.R.C.P. Rule 60(b).Wray v. Wray, 5 A.S.R.2d 34.

Co-signor’s allegation that bank had secured her signature on promissory note through specific material misrepresentation was a “meritorious defense” creating the possibility of a different result on retrial which, coupled with her excusable neglect to appear in lawsuit on the note, entitled her to relief from resulting default judgment.T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Defendant seeking relief from default judgment on the ground that her failure to defend resulted from excusable neglect must not only prove that her neglect was excusable but also allege facts which, if proved upon retrial, would be likely to produce a different outcome.T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Once a party has established a “meritorious defense” creating the possibility of a different result on retrial, court deciding whether to grant relief from judgment against that party should not assume the truth of opposing party’s factual allegations that would, if proven upon retrial, produce the same result as in the judgment from which relief is sought.T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

In order to secure relief from a judgment, a party has the burden of proving not only that there was a technical flaw in the proceedings but also that the flaw had some effect on the outcome.T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

The court has discretion whether to grant relief from judgment, and denial of a motion for relief should be overturned only if the trial court has abused its discretion.T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

Garnishee bank that failed to respond to a writ of garnishment, to respond meaningfully to an order to show cause why judgment should not be entered against it, to appeal the judgment, and to justify its lapses was not entitled to relief from the judgment entered against it.T.C.R.C.P. Rule 60(b).Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

Circumstances constitute “other reason justifying relief from operation of judgment”where (1) plaintiff had demanded and was owed an amount in excess of $15 million; (2) court granted summary judgment for $5 million against vessel at a time when the vessel could not have been sold for more than $5 million; (3) at time of motion for relief from judgment the vessel had not yet been sold to satisfy the judgment, but could be sold for more than $10 million; (4) judgment was in rem against the vessel only; (5) the owners of the vessel were not sued personally and did not appear in the action; (6) the owners had borrowed $11 million from plaintiff and had made no payments; and (7) the owners would therefore receive a windfall of several million dollars if the vessel were sold for over $10 million and the plaintiff limited to recovery of the prior $5 million judgment.T.C.R.C.P. 60(b).Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Even where party seeking relief from judgment on the ground of newly discovered evidence shows that the evidence could not have been discovered with due diligence before trial, the judgment should not be vacated unless the new evidence seems likely to produce a different outcome upon retrial.T.C.R.C.P. Rule 60(b).Satele v. Uiagalelei, 8 A.S.R.2d 97.

Party was not entitled to relief from stipulated judgment on the ground of mutual or unilateral mistake, where: (1) the party was an institution which had agreed to the stipulated judgment after negotiations during which it was advised by counsel; (2) the basis for the alleged mistake was that, at the time of the stipulation, it was wrongly assumed that certain funds were being kept in a bank in accordance with a court order; (3) in fact, the funds had been withdrawn and spent in violation of the court order by an officer of the party seeking relief from the judgment; (4) the officer was the party’s chief agent for the safekeeping and disposition of the funds, and a participant in the negotiations leading up to the stipulation; (5) the funds had been spent on expenses of the party seeking relief; and (6) in support of its motion for relief, the party submitted an affidavit from a current officer stating that his predecessor had misunderstood the stipulation, but submitted neither an affidavit from the previous officer nor an explanation of why it could not present one.T.C.R.C.P. Rule 60(b).Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Although deadlines for filing motions for new trial and appeal are set by the legislature and court is not free to overlook or extend them, a party may file a motion for relief from judgment after the statutory deadline for filing a motion for new trial.A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b).Gi v. Temu (Mem.), 12 A.S.R.2d 33.

To prevail on a motion for relief from judgment, a party must show not only that the judgment was wrong but also that he has some compelling justification for not having called the mistake to the court’s attention within the ten days provided for filing a motion for new trial.A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b).Gi v. Temu (Mem.), 12 A.S.R.2d 33.

Depending on the circumstances, parties’ receipt of notice of judgment from their attorney after expiration of the statutory time limit for filing a motion for reconsideration or new trial might support a motion for relief from the judgment.A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b).Gi v. Temu (Mem.), 12 A.S.R.2d 33.

A motion for relief from judgment cannot be used as a substitute for appeal by one who had a fair chance to appeal and chose not to do so.T.C.R.C.P. Rule 60(b).Gi v. Temu (Mem.), 12 A.S.R.2d 62.

Rule of civil procedure empowering court to relieve a party from a final judgment uses the word “may” and is subject to the court’s sound discretion.T.C.R.C.P. Rule 60(b).Taulaga v. Patea, 12 A.S.R.2d 64.

Motions under the first three sections of rule allowing relief from final judgment must be made no more than one year after entry of judgment.T.C.R.C.P. Rule 60(b).Taulaga v. Patea, 12 A.S.R.2d 64.

Sections of rule allowing relief from judgment for specific reasons such as mistake or newly discovered evidence on the one hand, and catch-all provision encompassing “any other reason justifying relief” on the other, are mutually exclusive so that resort to the latter may not be had to escape time limits applicable to motions grounded on the former.T.C.R.C.P. Rule 60(b)(1)-(3), 60(b)(6).Taulaga v. Patea, 12 A.S.R.2d 64.

Where judgment adjudicating title to land had been final for twenty-three years, discretion would be exercised in favor of finality and an end to the needless protraction of litigation; after twenty-three years of settled expectations the equities were against the reopening of judgment.T.C.R.C.P. Rule 60(b).Taulaga v. Patea, 12 A.S.R.2d 64.

Where trial court denied a motion for relief from judgment while an appeal from the underlying judgment was pending, appellate court could hear an appeal from the denial of relief from judgment, either because:(1) the trial court was not deprived of jurisdiction by the filing of the notice of appeal, so that the appeal from its order denying relief from judgment would be in order; or (2) the trial court lacked jurisdiction after notice of appeal from the judgment, but the appellate court could treat the notice of appeal from the denial of relief from judgment as a motion for a limited remand to the trial court to permit it to consider the motion.T.C.R.C.P. Rule 60(b).Uiagalelei v. Fai`ai, 12 A.S.R.2d 103.

A party may be relieved from judgment on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.T.C.R.C.P. Rule 60(b).Uiagalelei v. Fai`ai, 12 A.S.R.2d 103.

That counsel had not found two reported cases prior to trial, because their captions did not refer to the land involved in the litigation, was insufficient reason not to have discovered evidence consisting of certain statements made at the hearing of these cases; more thorough research could have unearthed the cases before trial, and in any event the evidence disclosed by the cases could have been obtained through normal pretrial discovery.T.C.R.C.P. Rule 60(b).Uiagalelei v. Fai`ai, 12 A.S.R.2d 103.

Relief from an order of dismissal may be granted where a prior judgment upon which the order is based has been amended rather than reversed or vacated if the amendment completely removes the premise on which the order was based.T.C.R.C.P. 60(b)(5).Patau v. Rosendahl Corp., 14 A.S.R.2d 79.

Trial Court Rule providing that a court may relieve a party from an order for any reason justifying relief from the operation of the judgment applies where the prior judgment upon which the order is based is amended to completely remove the premise on which the order was based, when to do so would cause defendant no genuine hardship but to do otherwise would deny plaintiff any access to the courts.T.C.R.C.P. 60(b)(6).Patau v. Rosendahl Corp., 14 A.S.R.2d 79.

Relief from a judgment under Rule 60(b) of the Trial Court Rules of Civil Procedure is not available to a party who could have raised the same claims or defenses by motion for new trial but did not.In re Matai Title Muagututi`a, 15 A.S.R.2d 1.

Relief from final judgments may be granted under certain extraordinary circumstances.T.C.R.C.P. 60(b).Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

Finding citations of legal authority that could have been discovered by due diligence before judgment does not constitute “excusable neglect.”T.C.R.C.P. 60(b)(1).Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

The court construed a defendant’s objection to paying interest as a motion for relief from the judgment.T.C.R.C.P. 60(b).Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

“[O]ther reason[s] justifying relief from the operation of the judgment” were found when a case was not actually litigated, the stipulation resulted from dealings between an attorney and an unrepresented party, the unrepresented party may have believed himself to be stipulating only to pay $9700 “inclusive of interest,” and that interpretation was not altogether unreasonable under the circumstances.T.C.R.C.P. 60(b)(6).Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

When judgment has resulted from confession or default, a motion for relief from the judgment is made within a reasonable time, and a minimal showing that a trial might have produced a different outcome is made, a strong presumption arises that the judgment should be set aside “so that cases may be decided on their merits.”T.C.R.C.P. 60(b).Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

The “order in aid of judgment” statute requires the court, upon application from a judgment debtor, to order a payment schedule which “shall allow the debtor to retain such property and such portion of his income as may be necessary to provide the reasonable living requirements of the debtor and his dependents,” specifically including traditional, Samoan family obligations.A.S.C.A. § 43.1501.Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

A Rule 60(b) motion cannot be used to save a litigant from strategic choices that later turn out to be unwise.Lualemana v. Asifoa, 17 A.S.R.2d 151.

Although an untimely motion for reconsideration or new trial is ordinarily denied for lack of jurisdiction, the court construed it as a motion for relief from judgment because the movant claimed that he had not been represented by counsel at trial and had therefore not been notified of the judgment against him.T.C.R.C.P. Rule 60(b).Lualemana v. Asifoa, 17 A.S.R.2d 151.

Although courts have granted relief from judgment when a party did not learn of the judgment prior to the appeal deadline through some fault of the clerk or another court official, it is an abuse of discretion for the court to grant relief when the party missed the appeal deadline through his own or his lawyer’s fault.Lualemana v. Asifoa, 17 A.S.R.2d 151.

A motion for relief from judgment cannot be used as a substitute for appeal by one who has missed the deadline for appeal.T.C.R.C.P. 60(b).Jennings v. Jennings, 19 A.S.R.2d 34.

A motion for relief from judgment on the ground of excusable neglect must be brought not more than one year after the judgment was entered or taken.T.C.R.C.P. 60(b).Jennings v. Jennings, 19 A.S.R.2d 34.

A failure to respond to the court’s notice of dismissal and to move within the ten days required by statute for a reconsideration of its order of dismissal did not constitute “excusable neglect” under Rule 60(b).A.S.C.A. § 43.0802(a); T.C.R.C.P. 60(b)(1).Jennings v. Jennings, 19 A.S.R.2d 34.

An oversight by the Court or a court official, as opposed to one by a party or his counsel, is generally regarded as an “other reason justifying relief from the judgment” under Rule 60(b)(6); motions grounded on such oversights need not be brought within one year, but only within a reasonable time.T.C.R.C.P. 60(b)(6).Jennings v. Jennings, 19 A.S.R.2d 34.

A party who moves for relief from a judgment must prove a substantial likelihood that such relief will lead to a different outcome on the merits.T.C.R.C.P. 60(b).Jennings v. Jennings, 19 A.S.R.2d 34.

The failure of defendants’ former counsel to properly seek a continuance of trial, on the grounds that one of the defendants was seeking medical treatment, does not constitute excusable neglect justifying relief from judgment.T.C.R.C.P. Rule 60(b).Scratch v. Sua, 23 A.S.R.2d 20.

Granting relief from a final judgment is at the trial court’s discretion; its ruling will be reversed on appeal only for abuse of discretion.Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).Reid v. Puailoa, 23 A.S.R.2d 101.

Motions for relief from a final judgment are primarily granted in regard to default judgments or other situations, such as those involving fraud, in which a failure to consider a case’s merits would result in an obvious injustice.Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).Reid v. Puailoa, 23 A.S.R.2d 101.

Because of the strong interest in the finality of judgments, relief from a final judgment is rarely available, even if a judgment is subsequently found to be wrong.Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).Reid v. Puailoa, 23 A.S.R.2d 101.

Only the most extraordinary circumstances will support a finding of a void judgment, and even then usually only as to default judgments; as such, changes in precedent and factual errors do not result in voidness.Fed. R. Civ. P. 60(b)(4); T.C.R.C.P. Rule 60(b)(4).Reid v. Puailoa, 23 A.S.R.2d 101.

Relief from a final judgment is available when a prior judgment forming its basis has been reversed or vacated, in the sense of res judicata or collateral estoppel; as such, relief is unavailable if the law used by a court was merely overruled or declared to be erroneous in an unrelated proceeding.Fed. R. Civ. P. 60(b)(5); T.C.R.C.P. Rule 60(b)(5).Reid v. Puailoa, 23 A.S.R.2d 101.

Relief from a final judgment is available if giving it prospective application would be inequitable; an order has prospective application if it compels or prohibits certain future actions or requires a court’s supervision of conduct between the parties.Fed. R. Civ. P. 60(b)(5); T.C.R.C.P. Rule 60(b)(5).Reid v. Puailoa, 23 A.S.R.2d 101.

Under the “catch-all” clause, which permits a court to reopen a judgment for “any other reason justifying relief,” courts have “broad authority to vacate judgments when doing so is appropriate to accomplish justice.Fed. R. Civ. P. 60(b)(6); T.C.R.C.P. Rule 60(b)(6).Reid v. Puailoa, 23 A.S.R.2d 101.

Obtaining relief under the “catch-all” provision is extremely difficult because the party seeking relief must allege and prove such “extraordinary circumstances” as are sufficient to overcome the overriding interest in the finality of judgments.Fed. R. Civ. P. 60(b)(6); T.C.R.C.P. Rule 60(b)(6).Reid v. Puailoa, 23 A.S.R.2d 101.

The interest in the finality of judgments is especially strong in regards to land titles.Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).Reid v. Puailoa, 23 A.S.R.2d 101.

Relief from a final judgment is available when a prior judgment forming its basis has been reversed or vacated, in the sense of res judicata or collateral estoppel; as such, relief is unavailable merely if the law used by a court was later overruled or declared to be erroneous in an unrelated proceeding.Fed. R. Civ. P. 60(b)(5); T.C.R.C.P. Rule 60(b)(5).Reid v. Puailoa, 23 A.S.R.2d 144.

The interest in the finality of judgments is especially strong in regards to land titles.Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).Reid v. Puailoa, 23 A.S.R.2d 144.

Granting relief from a final judgment is at the trial court’s discretion.Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).Reid v. Puailoa, 23 A.S.R.2d 144.

Motions for relief from judgment on the basis of fraud must be made within a “reasonable time” and not more than one year after judgment.T.C.R.C.P. 60(b)(3).Rocha v. Rocha, 24 A.S.R.2d 30.

Relief from judgment under the “catch-all” clause is only available if made within a “reasonable time” and if the grounds do not fall under one of the rule’s enumerated subsections.T.C.R.C.P. 60(b)(1)-(6).Rocha v. Rocha, 24 A.S.R.2d 30.

The rules of civil procedure do not limit a court’s power to (1) entertain an independent action for relief from a judgment, order, or proceeding, or (2) set aside a judgment for fraud upon the court.Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b).Rocha v. Rocha, 24 A.S.R.2d 55.

As the “saving clause” permitting a court “to set aside a judgment for fraud upon the court” is narrowly construed, only a deliberate scheme to subvert or corrupt the court’s impartial functions constitutes “fraud upon the court.”Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b).Rocha v. Rocha, 24 A.S.R.2d 55.

Because of the interest in the finality of judgments, “fraud on the court” (1) is typically confined to the most egregious cases, such as an attorney’s exerting improper influence on the court or the bribery of a judge or juror, in which the integrity and impartial functioning of the court is directly impinged; and (2) must be proven by “clear and convincing evidence.”Rocha v. Rocha, 24 A.S.R.2d 55.

Relief from a judgment under Rule 60(b) is discretionary and a denial of a Rule 60(b) motion should only be reversed if the trial court has abused its discretion.E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

An order based on a material mistake of fact can be reopened and modified at the court’s discretion.Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 88.

Despite its broad language, granting relief from a final judgment is generally only available upon a showing of extraordinary circumstances.The movant must allege and prove such extraordinary circumstances as will be sufficient to overcome the overriding interest in the finality of judgments, especially where the reopening of a judgment could unfairly prejudice the opposing party.T.C.R.C.P 60(b)(6).American Samoa Gov’t v. Meredith, 28 A.S.R.2d 10.

An oversight by a court official can sometimes justify relief from judgment under T.C.R.C.P.60(b)(6).American Samoa Gov’t v. South Pacific Island Airsystems, Inc., 29 A.S.R.2d 62.

Regardless of whether the appellate court vacates its decision, an appellant is not entitled to vacatur of the decision of the trial division.Voyager, Inc. v. High Court of Am. Samoa, Trial Div., 29 A.S.R.2d 187.

Under T.C.R.C.P. 60(b), a motion for relief from judgment, must be filed within a reasonable time of judgment (and no later than one year after judgment if based on extrinsic fraud).Masanai v. Patea S. of Vatia, 31 A.S.R.2d 99.

T.C.R.C.P. 60 does not preclude the application of the Statute of Limitations for attacking judgments, nor does it preclude the application of the equitable doctrine of laches.Masanai v. Patea S. of Vatia, 31 A.S.R.2d 99.

When a matai title decree has been vacated and the case remanded, the vacation of the judgment inures to the benefit of all of the losing parties, whether they perfected their appeal or not, because it vacated the underlying judgment and granted all parties rights to a new trial on their interest in the title.Faumuina v. Vaouli, 31 A.S.R.2d 2.

§ 11(3)—Stay of Proceedings

§ 11(3)(a)—General Provisions

In deciding a motion for a stay of judgment pending a decision on the appeal, the Justice of the High Court who did not sit on the case at the trial court level ordinarily hears the motion. Asifoa v. Lualemana, 17 A.S.R.2d 10 (App. Div. 1990).

In the absence of a Justice qualified to sit as a member of the Appellate Division, a motion for a stay of judgment was properly referred to the judge who presided at trial.A.C.R. 27(c).Asifoa v. Lualemana, 17 A.S.R.2d 10 (App. Div. 1990).

A court should not automatically or casually grant a stay of judgment pending appeal; the court’s discretion to grant a stay should be exercised only if cause is shown.A.S.C.A. § 43.0803; T.C.R.C.P. 62(a), (c); A.C.R. 8.Asifoa v. Lualemana, 17 A.S.R.2d 10 (App. Div. 1990).

To minimize the costs imposed on the prevailing party by a delay in executing a money judgment, a court can require a supersedeas bond and award post-judgment interest.T.C.R.C.P. 62(d).Asifoa v. Lualemana, 17 A.S.R.2d 10 (App. Div. 1990).

Ordinarily, a judgment of the High Court is automatically stayed for ten days in order to allow the losing party an opportunity to move for a new trial.T.C.R.C.P. 62(a).In re Matai Title Mulitauaopele, 17 A.S.R.2d 71.

If a party wishes a stay beyond the automatic ten-day period, pending consideration of his motion for new trial or pending appeal, the Court may in its discretion grant such a motion.T.C.R.C.P. 62(b), (d).In re Matai Title Mulitauaopele, 17 A.S.R.2d 71.

Execution of a final judgment of the High Court will not be stayed pending appeal unless the appellate, trial, land and titles division, or Chief Justice orders a stay for cause shown upon such terms as it or he may fix.A.S.C.A. § 43.0803.Asifoa v. Lualemana, 17 A.S.R.2d 100.

In determining whether to stay execution of a judgment pending appeal, the court considers: (1) the likelihood of appellant prevailing in the appeal, (2) whether appellant will suffer irreparable harm if a stay is not granted, (3) whether appellee will suffer irreparable harm if a stay is granted, and (4) whether the public interest would be affected by a stay.Asifoa v. Lualemana, 17 A.S.R.2d 100.

The High Court of American Samoa has no authority, statutory or otherwise, to order a stay of admiralty proceedings in a federal district court.Fa’atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court refused to approve parties’ stipulation to lift a stay of an action in federal district court when no such stay was issued because of the lack of statutory authority to do so.Fa’atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

Regarding a motion to stay pending appeal, the moving party bears the burden of showing “cause” as to why an injunction should be stayed and must show that he is likely to prevail on the appeal’s merits.A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.Lutali v. Foster, 24 A.S.R.2d 81.

A motion to stay execution of judgment pending appeal is properly initiated in the trial court pursuant to A.C.R. Rule 8(a).Euta v. Etimani, 25 A.S.R.2d 54.

A judgment cannot be stayed pending appeal, pursuant to A.C.R. Rule 8(a) except by court order for cause shown.A.S.C.A. § 43.0803; T.C.R.C.P. Rule 62(a); Euta v. Etimani, 25 A.S.R.2d 54.

Although A.C.R. Rule 8(a) contemplates than an application for a stay of execution pending appeal must ordinarily be made in the first instance to the trial court, a hearing at the appellate level was granted in this case in view of the immediate availability of a full appellate panel.Alamoana Recipe Inc., v. American Samoa Gov’t, 25 A.S.R.2d 46.

A petitioner is entitled to a stay of enforcement only on showing 1) a substantial likelihood of ultimately prevailing on the merits and 2) great or irreparable injury if a stay is not issued before a full and final determination can be made.G.H.C. Reid & Co., Ltd. v. American Samoa Government, 26 A.S.R.2d 139.

An application for a stay of proceedings pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940 will not be granted merely because the applicant is in the military or at a particular duty station. 50 U.S.C.A. App. § 501 et seq.Nunu v. Nunu, 27 A.S.R.2d 146.

To deny an application for a stay of proceedings pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940, the court must reach the opinion that the applicant will not be prejudiced by his military service.50 U.S.C.A. App. § 501 et seq.Nunu v. Nunu, 27 A.S.R.2d 146.

In exercising our discretion as to whether or not to grant a stay under the Soldiers’ and Sailors’ Civil Relief Act of 1940, the court is not required to make explicit factual findings, nor to assign a rigid burden of proof.50 U.S.C.A. App. § 501 et seq.Nunu v. Nunu, 27 A.S.R.2d 146.

A motion for a stay pending appeal is premature in the absence of an appeal.T.C.R.C.P. 62(b).In re Matai Title “Tuaolo”, 28 A.S.R.2d 137.

A motion for a stay pending appeal is evaluated according to four criteria: (1) the likelihood that appellant will prevail in the appeal; (2) irreparable harm to the appellant if the stay is not granted; (3) irreparable harm to appellees if the stay is granted; and (4) whether the public interest would be affected by the stay.G.M. Meredith & Associates v. Blue Pacific Management Corp., 29 A.S.R.2d 54.

Equitable principles and broad powers apply equally well to circumstances where a judgment debtor seeks a stay of execution.Carpenters Fiji, Ltd. v. Pen, 29 A.S.R.2d 58.

Even though the usual appeal in a matai title case is fact-oriented and, given the clearly erroneous standard applicable to preponderance of evidence issues, is unlikely to result in reversal, a stay is often the better option, as time tends to heal family divisions inevitably existing when the court is called upon to select a successor matai.In re Matai Title “Mulitauaopele” of the Village of Laulii, 30 A.S.R.2d 62.

Judgments of the court in non-criminal actions cannot be stayed pending appeal except for cause shown.A.S.G. v. Atualevao, 31 A.S.R.2d 29.

Under A.C.R. 8(a), a party must apply to the trial court for a stay of execution of the judgment pending appeal.A.S.G. v. Atualevao, 31 A.S.R.2d 29.

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.G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 100 (Trial Div. 1997).

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 and determine whether or not the motion for reconsideration is likely to be successful.G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 100 (Trial Div. 1997).

The Court looks at four factors in making its determination whether to grant a stay of execution pending appeal: (1) likelihood that the appellant would prevail in the appeal; (2) irreparable harm to the appellant if a stay is not granted; (3) irreparable harm to appellees if a stay is granted; and (4) whether the public interest would be affected by a stay.Falatea v. Aumoeualogo, 2 A.S.R.3d 52 (App. Div. 1998).

Under T.C.R.C.P. 62(d), a trial court may stay a judgment or order while an appeal is pending, but where no appeal is pending a motion to stay is premature.Alai`asa v. Fanene, 2 A.S.R.3d 186 (Land & Titles Div. 1998).

A court should not automatically or casually grant a stay of judgment pending appeal.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

The court’s discretion to grant a stay of judgment pending appeal should be exercised only if cause is shown.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

In determining whether to grant or deny a motion for stay of an injunction pending appeal, the Court should look at both the balance of equities and the likelihood of the appeal’s success.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

Where Court could discern no issue on appeal, and where equities weighed evenly for and against a stay of the trial court’s judgment, stay was properly denied.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

Where appellant claimed access to evidence supporting application for stay was being hindered by opposing party, Court determined that ruling on stay would be made without prejudice so that appellant could reraise issue if persuasive facts and law were found in materials previously inaccessible by him.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

Although under Fed. R. Civ. P. 62(d), a party appealing the order of a district court involving a money judgment is entitled to a stay of that judgment as a matter of right upon posting of a supersedeas bond, under A.S.C.A. § 43.0803 and T.C.R.C.P. 62(d)), a stay upon posting of a supersedeas bond is not a matter of right, but is subject to the discretion of the court, and a court should not grant a stay of judgment pending appeal automatically or casually, but for cause shown.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Although under Federal Rule of Civil Procedure 62(d), a party appealing a money judgment is entitled to a stay of that judgment as a matter of right upon posting of a supersedeas bond, under the laws of American Samoa—A.S.C.A. § 43.0803 and T.C.R.C.P. 62(d)—a stay upon posting of a supersedeas bond is not a matter of right, but is rather subject to the discretion of the court which should grant a stay only for cause shown.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

A stay of judgment is appropriate where the law is not settled as to an issue in the case, where it will be very difficult for a party to recover sums already paid out, and where, by virtue of a previous court order, the majority of sums at issue have been paid out.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

Under T.C.R.C.P. 62(d), the Court possesses the discretion to substitute other types of judgment guarantees for supersedeas bonds if a judgment debtor demonstrates the present ability to pay the judgment and presents to the Court a plan whereby this ability is guaranteed, the Court may substitute this plan for a bond; the party seeking such a departure from a security bond has the burden to demonstrate why a bond is not required.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

The court has discretion to stay execution or other process to enforce a judgment pending disposition of a motion for new trial upon appropriate conditions to secure the interests of the prevailing party at trial.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 216 (Trial Div. 2002).

Factors to consider in deciding whether a stay should be granted include: (1) the likelihood of the movant would prevail on the motion or appeal; (2) irreparable harm to the movant if a stay is not granted; (3) irreparable harm to the other party if a stay is granted; and (4) a stay’s effect on the public interest.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 216 (Trial Div. 2002).

Stay of both judgment and order of garnishment was proper where insurance company judgment-debtor raised serious questions of the sufficiency of evidence in motion for new trial, where garnishment would impede insurance company judgment-debtor’s normal business operations and ability to meet its insurer obligations, and where insurance company was willing to post bond in the amount of the judgment.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 216 (Trial Div. 2002).

At the court’s discretion, it may grant a stay, pending appeal, of the execution of judgment in a civil action.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

The court’s discretion to grant the stay pending appeal should be exercised only for cause shown and a stay should not be granted casually.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

In order to demonstrate good cause for a stay pending appeal, the moving party must establish: 1) failure to grant the stay would cause irreparable harm; 2) a likelihood of success on appeal; and 3) the public interest would be harmed by not granting the stay.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

§ 11(3)(b)—Likelihood of Appellate Success

Deciding whether a stay should be granted pending appeal entails three inquiries: (1) whether the losing party, should he prevail on appeal, will have suffered great or irreparable harm in the meantime if a stay should not be granted; (2) the harm, if any, that a stay would impose on the party who prevailed at trial; and (3) the likelihood of success on appeal.In re Matai Title Mulitauaopele, 17 A.S.R.2d 71.

A judgment is commonly stayed when the trial court either has applied novel legal principles to situations in which the correct decision may be a close question or has applied settled legal law to situations about which reasonable persons can differ.In re Matai Title “Mulitauaopele” of the Village of Laulii, 30 A.S.R.2d 62.

A court may stay an injunction when it has doubts about the substantive correctness of its decision.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

An appeal which merely suggests that the losing party’s arguments and factual position were better and should have prevailed, without showing clear error on the part of the trial court, is not likely to succeed.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

§ 11(3)(c)—Irreparable Harm/Balance of Equities

In most matai title cases the balance of hardships will militate strongly in favor of granting a stay pending appeal, as the only hardship on the prevailing party is that he must wait a year or so to register the title; on the other hand, if the prevailing party quickly registers the title, holds the traditional installation ceremonies, but has his right to hold the title reversed on appeal, the consequences for the whole family could be disastrous.In re Matai Title Mulitauaopele, 17 A.S.R.2d 71.

Even though the Appellate Division has rarely, if ever, reversed a judgment of the Land and Titles Division in a matai-title case, the “balance of hardships” will generally weigh heavily in favor of granting a stay.In re Matai Title Mulitauaopele, 17 A.S.R.2d 71.

Where appellants had substantial commercial and subsistence plantings on certain land, the trial court judgment evicting them from such land would be stayed pending appeal, where the issue on appeal was not frivolous, trivial, or presented merely for delay, and executing judgment before appeal would destroy the status quo and harm appellant more than staying judgment pending appeal would harm appellee.Asifoa v. Lualemana, 17 A.S.R.2d 100.

Under T.C.R.C.P. Rule 62(d), the trial court has discretion to stay a judgment pending appeal when a bond or undertaking is given.The decision depends on the likelihood of success on appeal, and on weighingthe “balance of equities,” meaning to balance the harm to the party prevailing at trial if the stay is granted, against the hardship to the losing party if it is not.Euta v. Etimani, 25 A.S.R.2d 54.

Factors affecting the balance of equities pertaining to a T.C.R.C.P. Rule 62(d) motion for a stay pending appeal may include: (1) the complexity of the collection process; (2) the time it may take to collect a judgment after affirmance on appeal; (3) the availability of funds to pay the judgment; and (4) the ability to pay the judgment.Euta v. Etimani, 25 A.S.R.2d 54.

In considering the foregoing issues of prejudice in granting a stay pending appeal, great weight will be given to preserving the status quo, and a motion for a stay for that purpose generally ought to be granted if the appeal is not frivolous, nor taken for the purpose of delaying the inevitable. G.M. Meredith & Associates v. Blue Pacific Management Corp., 29 A.S.R.2d 54.

The court will not stay the enforcement of a judgment voiding and setting aside a matai registration and declaring a person ineligible for a matai title when the importance of continuing family deliberations on the successor to the title, free of the requested stay, outweighs the harm to the appealing parties.The harm to the appealing parties is outweighed in the following circumstance: the family will be effectively deprived of meaningful participation in deliberations that could lead to a consensus selection of the next titleholder before the decision on appeal, if a stay is granted; one appealing party is the registrar who will not be incurably hurt without a stay; and the other appealing party is unlikely to suffer perpetual harm because the selection of a successor to the title is not imminent.In re Matai Title “Mulitauaopele” of the Village of Laulii, 30 A.S.R.2d 62.

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.Star-Kist y Samoa, Inc. v. Comm’r of the American Samoa Gov’t Workmen’s Comp. Comm’n., 1 A.S.R.3d 67 (Trial Div. 1997).

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.Star-Kist y Samoa, Inc. v. Comm’r of the American Samoa Gov’t Workmen’s Comp. Comm’n., 1 A.S.R.3d 67 (Trial Div. 1997).

A stay is not a matter of right, even if the appellant might suffer irreparable injury, but is subject to judicial discretion and dependent upon the circumstances of the case.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

In balancing the equities involved in staying execution of an injunction pending appeal, the Court must examine: (1) whether the appellant would suffer irreparable harm if the stay was refused; (2) whether the appellee would suffer irreparable harm if the stay was granted; and (3) how a stay would affect the public interest.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

The general principle underlying stays of injunctive relief is that the status quo should be preserved pending appeal.Alamoana & Yu-Tong Co. v. American Samoa Gov’t, 4 A.S.R.3d 3 (App. Div. 2000).

A supersedeas bond is required of a petitioner seeking to set aside a judgment and from which the other party may be made whole if the action is unsuccessful; such bond guarantees that an appellant will be able to pay the judgment if it loses the appeal, and it compensates a party for the loss of use of its money during the period of time between entry of the judgment and resolution of appeal.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

The court has discretion to grant a stay pending appeal upon the filing of a supersedeas bond approved by the court.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 216 (Trial Div. 2002).

Where court is considering a stay of a money judgment, the judgment-debtor’s ability to pay, the availability of funds to him or her, and other difficulties in the collection process are relevant to the court’s deliberations.Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 216 (Trial Div. 2002).

Monetary loss does not constitute irreparable harm.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

Part of assessing irreparable harm when considering a stay involves the balancing of equities.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

Where Appellant sought stay of investiture ceremony pending appeal of matai title decision, equities weighed against stay, as investiture ceremony would not affect outcome of appeal and Appellant could nonetheless attend ceremony and avoid family unrest.Contrarily, granting stay would negatively impact a significantly greater number of people which could result in more family turmoil.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

§ 11(3)(d)—Public Interest

Although public interest tends to favor simple solutions without controversy, where court believed that discord would result if the investiture ceremony was delayed, where vast majority of family supported court-sanctioned candidate and were already investing in title investiture ceremony, and where family had previously delayed matai selection process for many years, court determined that public interest could be equally or more greatly harmed by delaying investiture ceremony as by allowing it to continue.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

§ 11(4)—Appellate Jurisdiction

If appellant files what is construed as written transcript order and timely prepays cost, appeal is perfected, even if clerk fails to timely prepare transcript.In re Matai Title Alalamua, 4 A.S.R. 974.

24 A.S.C. 459 et seq. provides that a compensation award becomes final unless petition for judicial review is filed within thirty days of date award is filed.In re Westerlund v. Scanlan, 4 A.S.R. 998.

Arguments that could have been made at trial may not be made for the first time on a motion for new trial or in an appeal.Olotoa v. Bartley, 3 A.S.R.2d 21.

That appellant disagrees with trial court’s judgment of the credibility of the witnesses does not raise an appealable issue.Fagaima v. Fonoti, 3 A.S.R.2d 112.

Appeal should not be dismissed on hypertechnicality, as this would defeat ends of justice, especially if court itself is partially responsible for delay.In re Matai Title Alalamua, 4 A.S.R. 974.

Issues not raised in trial court proceeding cannot be raised on appeal from the resulting judgment.Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

Though no party raised question of timeliness, where record indicated that appeal was filed after expiration of the applicable time limit, court would require appellant to show cause why the appeal should not be dismissed.American Samoa Gov’t v. Ofa, 6 A.S.R.2d 1.

Motion for new trial is a statutory prerequisite to appeal, and no issue can be raised on appeal that was not raised in motion for new trial.A.S.C.A. § 43.0802.Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

Territorial election statutes provide no right of appeal to board of registration from chief election officer’s determination that a person is ineligible to run for elective office.A.S.C.A. §§ 4.0101 et seq., 6.0101 et seq.Siofele v. Shimasaki, 9 A.S.R.2d 3.

Contention raised for the first time in oral argument on appeal, which was inconsistent with the contentions made by appellants at trial and in their brief on appeal, need not and should not be addressed by the appellate court.Leota v. Sese, 12 A.S.R.2d 18.

Parties who did not file a motion for new trial or reconsideration within ten days of judgment gave up their right to appeal the decision.A.S.C.A. § 43.0802(a),(b).Gi v. Temu (Mem.), 12 A.S.R.2d 33.

A motion for relief from judgment cannot be used as a substitute for appeal by one who had a fair chance to appeal and chose not to do so.T.C.R.C.P. Rule 60(b).Gi v. Temu (Mem.), 12 A.S.R.2d 62.

If an appellant fails to follow the rules and therefore has not perfected his appeal, it is subject to dismissal at the Appellate Division’s discretion.A.C.R. 10(b)(5).Alaimalo v. Sivia, 16 A.S.R.2d 117.

It would be inappropriate to grant interim relief on an appealed motion when the court believes it is without jurisdiction of the appeal.Kim v. American Samoa Gov’t, 17 A.S.R.2d 1.

The requirement that before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence is jurisdictional.A.S.C.A. § 43.0802(a).Taulaga v. Patea, 17 A.S.R.2d 34.

If no timely motion for reconsideration or new trial conforming to the “particularity” requirement of T.C.R.C.P. 7(b)(1) is filed within the statutory ten-day deadline, then the Appellate Division lacks jurisdiction to entertain an appeal.A.S.C.A. § 43.0802(a).Taulaga v. Patea, 17 A.S.R.2d 34.

The requirement that a notice of appeal shall be filed within 10 days after the denial of a motion for a new trial is jurisdictional.A.S.C.A. § 43.0802(b).Taulaga v. Patea, 17 A.S.R.2d 34.

The ten-day time limit to file a motion for a new trial is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as they concern the right to appeal.A.S.C.A. §§ 43.0802(a), 46.2402(a).American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

The filing of a motion for new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal.A.S.C.A. § 43.0802(a).Lualemana v. Asifoa, 17 A.S.R.2d 151.

A motion for reconsideration under Rule 60(b) cannot to be used as a substitute for appeal by one who has missed the deadline for appeal.T.C.R.C.P. 60(b).Lualemana v. Asifoa, 17 A.S.R.2d 151.

Order on appeal is effectively unreviewable when a showing of prejudice to the defense is required to obtain a reversal.Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

Unlike violations of non-jurisdictional rules, for which the Court has the power to impose sanctions other than dismissal, a would-be appellant’s failure to comply with the mandatory steps necessary to give the Court jurisdiction leaves it powerless to grant any relief.Taulaga v. Patea, 17 A.S.R.2d 206.

The Appellate Division can hear an appeal only if a motion for new trial has been made within ten days of judgment, and only if a notice of appeal has been filed within ten days of the denial of a motion for new trial.A.S.C.A. § 43.0802.Taulaga v. Patea, 17 A.S.R.2d 206.

On appeal, a party should not make an objection to evidence after it has already been admitted without objection at the trial level.Solomona v. Governor of American Samoa, 18 A.S.R.2d 14.

A motion for relief from judgment cannot be used as a substitute for appeal by one who has missed the deadline for appeal.T.C.R.C.P. 60(b).Jennings v. Jennings, 19 A.S.R.2d 34.

The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional.A.S.C.A. § 43.0802(a).Rocha v. Rocha, 20 A.S.R.2d 63.

A mere disagreement with a trial court’s factual findings does not raise a legal issue.Rakhshan v. American Samoa Gov’t, 20 A.S.R.2d 115.

The Chief Justice’s rulemaking authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal.Fa’amaoni v. American Samoa Government, 20 A.S.R.2d 127.

If there is no timely motion for reconsideration or new trial within the statutory ten-day deadline the court has no jurisdiction to entertain an appeal, regardless of any argument, equitable or otherwise.Fa’amaoni v. American Samoa Government, 20 A.S.R.2d 127.

Attempts to, in essence, appeal a final and unappealable decision may be sanctioned by either the trial or appellate courts.Toluao v. Fuimaono, 21 A.S.R.2d 12.

Statutory provision providing for judicial review of Workmen’s Compensation Commission orders excludes other avenues of judicial review but does not preclude reconsideration proceedings at the administrative level.A.S.C.A. §§ 32.0652-32.0653.Harris v. Commissioner of the American Samoa Gov’t Workmen’s Compensation Commission, 24 A.S.R.2d 124.

Filing a motion for new trial is a mandatory jurisdictional prerequisite for appeal.Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

To appeal a decision of the trial division, a motion for new trial must be filed within 10 days after a judgment or order is entered.A.S.C.A. § 43.0802 and A.C.R. Rule 4(a)(1).The denial of a motion for relief from judgment under T.C.R.C.P. Rule 60 qualifies as an order under the foregoing rules.Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

Mere disagreement with the appellate court’s interpretation of statutes, rules, and case authorities is not a basis for rehearing.Soli Corp. v. Amerika Samoa Bank, 25 A.S.R.2d 94.

Parties are restricted on appeal to contesting the lower court’s final judgments; they cannot assert positions outside those parameters.Foster v. Lutali, 26 A.S.R.2d 16.

Final decisions of the District Court may be appealed to the High Court.A.S.C.A. § 3.0309. Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20.

Appeals to the High Court from the Zoning Board “may be taken in like manner to appeals under the Administrative Procedure Act.”McGuire v. Zoning Board, 26 A.S.R.2d 59.

Judicial review is available to a “person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case.”McGuire v. Zoning Board, 26 A.S.R.2d 59.

When a statute prescribes administrative remedies, which must be exhausted before judicial review is allowed, these procedures are jurisdictional. McGuire v. Zoning Board, 26 A.S.R.2d 59.

It is inappropriate for the Trial Division to revisit a principle settled by the Appellate Division.Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

A security or bond is not ordinarily required when land disputes are under appeal.Craddick Development, Inc. v. Craddick, 29 A.S.R.2d 64.

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. Mailei v. Faumuina, 1 A.S.R.3d 206 (Land & Titles Div. 1997).

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.Tuaolo v. Fruean, 1 A.S.R.3d33 (App. Div. 1997).

Where party had every opportunity to raise due process argument at initial hearing, his failure to do so then constituted lack of diligence, and such was proper grounds for denying petition when argument later raised.Fuavai v. District Court, 2 A.S.R.3d 56 (App. Div. 1998).

The Appellate Division of the High Court has jurisdiction over an appeal from a conviction for Careless Driving Causing Property Damage in the District Court based upon a stenographic record pursuant to A.S.C.A. § 3.0309.Vaapuu v. American Samoa Gov’t, 3 A.S.R.3d 1 (App. Div. 1999).

Where judgment at end of first trial phase determined ownership of land at issue it had resolved an ultimate issue and appeal from said judgment was ripe.Pita v. Garrett, 3 A.S.R.3d 213 (Land & Titles Div. 1999).

A decision is final for purposes of appeal if it effectively ends litigation on the merits and leaves little for the court to do but execute the judgment. Pita v. Garrett, 3 A.S.R.3d 213 (Land & Titles Div. 1999).

The High Court has jurisdiction to review only the “final decisions” of the District Court.Lafaele v. American Samoa Gov’t, 4 A.S.R.3d 35 (App. Div. 2000).

A pre-trial or interlocutory order is final if it resolves an issue separate and distinct from the question of guilt or innocence.Lafaele v. American Samoa Gov’t, 4 A.S.R.3d 35 (App. Div. 2000).

In order to be appealable under the collateral order exception, a pre-trial or interlocutory 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.Lafaele v. American Samoa Gov’t, 4 A.S.R.3d 35 (App. Div. 2000).

Pre-trial orders denying bail reduction, denying dismissal of an indictment on double jeopardy grounds, or denying dismissal of an indictment on speech or debate grounds all involve an asserted right, the legal and practical value of which would be destroyed if not resolved before trial, and are therefore directly appealable.Lafaele v. American Samoa Gov’t, 4 A.S.R.3d 35 (App. Div. 2000).

The District Court’s pre-trial order denying a defendant’s right to a jury trial is not a “final” order which may be appealed at that time, and thus the Appellate Court is without jurisdicion to review the matter unless and until a final decision is reached at the District Court level.Lafaele v. American Samoa Gov’t, 4 A.S.R.3d 35 (App. Div. 2000).

Review of a final administrative decision for errors of law is a matter ordinarily within the exclusive jurisdiction of the Appellate Division of the High Court.Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 91 (Trial Div. 2002).

A civil appeal is limited to the issues which were raised in the motion for new trial. The appellate court has no jurisdiction to consider any other issues.In re Matai Title “Mauga”, 6 A.S.R.3d 313 (Land & Titles Div. 2002).

§ 11(5) —Petition for Rehearing

There is no right to a new trial or a new appeal before the same judge or judges that heard the original trial or appeal.Star-Kist Foods, Inc., v. The M/V Conquest, 6 A.S.R.2d 42.

The fact that an associate judge who heard a case at trial also heard the case on appeal, a violation of A.S.C.A. § 3.1007(b), was not a basis for reconsideration of the appeal where a quorum existed without the violating judge, the violating judge’s vote was not outcome determinative, the decision of the court was unanimous, and the complaining party waited until after the decision was rendered to object.Soli Corp. v. Amerika Samoa Bank, 25 A.S.R.2d 94.

If a party fails to object to the presence of an associate judge on the appellate panel until after the decision has been rendered, this failure constitutes a waiver of the objection.Soli Corp. v. Amerika Samoa Bank, 25 A.S.R.2d 94.

Rule 40 does not permit reconsideration of the same matters addressed in the original appeal “in the absence of demonstrable mistake.”Toleafoa v. American Samoa Government, 26 A.S.R.2d. 71.

General allegations and bald-faced assertions do not provide the particularity which Rule 40 requires.Toleafoa v. American Samoa Government, 26 A.S.R.2d. 71.

A petition for rehearing “shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition.”A.C.R. 40.Toleafoa v. American Samoa Government, 26 A.S.R.2d. 71.

A rehearing is not a matter of right, but a privilege granted at the discretion of the appellate court.Fanene v. Fanene, 30 A.S.R.2d 115.

The function of a rehearing is to correct errors of law or fact that the appellate court may have overlooked, leading to material errors.Fanene v. Fanene, 30 A.S.R.2d 115.

A rehearing is not a matter of right, but is a privilege granted at the discretion of the appellate court. A.C.R. 40.Tuaolo v. Fruean, 1 A.S.R.3d40 (App. Div. 1997).

A petition for rehearing must specify with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended.Fuavai v. District Court, 2 A.S.R.3d 56 (App. Div. 1998).

The court may deny a petition for rehearing where the grounds for said petition are new arguments, raised only for the first time on review.Fuavai v. District Court, 2 A.S.R.3d 56 (App. Div. 1998).

§ 11(6) —Appellate Procedures

§ 11(6)(a)—Generally

Since Chief Justice is required to sit in hearing of appeal, there can be no denial of due process by fact he hears appeal even though he also was trial judge, and law revising appellate procedure to make trial judge ineligible to sit on appeal does not become effective prior to July 1, 1962.Scanlan v. Steffany, 3 A.S.R. 583.

Function of appellate court in damages case is not to take evidence but to determine whether grounds of appeal are meritorious.Faatamala v. Haleck, 4 A.S.R. 888.

Substitution of “Courts of American Samoa” for “United States court” should be made when applying United States Supreme Court Rules.Fanene v. Government, 4 A.S.R. 957.

When applying United States Federal Rules of Civil Procedure to courts of American Samoa, “Trial Division of the High Court of American Samoa” should be substituted for “District Court” and “Appellate Division of the High Court of American Samoa” substituted for “United States Supreme Court.”Fanene v. Government, 4 A.S.R. 957.

Strict compliance with court rules is generally required, exceptions to be made only for most diligent and deserving appellants.In re Matai Title Alalamua, 4 A.S.R. 974.

Where defendant’s trial in District Court was continued so that he could appeal the District Court’s denial of his motion to appoint an interpreter, his motion to strike additional facts included by the District Court in the record on appeal was consolidated for argument with the merits of the appeal.Kim v. American Samoa Gov’t, 17 A.S.R.2d 1.

An appeal that raises no legal issues is an abuse of process and if brought by a lawyer would violate his or her duty not to bring a frivolous appeal.Rakhshan v. American Samoa Gov’t, 20 A.S.R.2d 115.

A petition for review of an Immigration Board’s decision need not be dismissed or be refiled to correct the names of the appellees in the caption when the petition incorrectly included the American Samoa Government, the Attorney General, and the Chief Immigration Officer as appellees.A.S.C.A. §§ 41.0209, 43.0201(b); H.C.R. 3.Farapo v. American Samoa Gov’t, 23 A.S.R.2d 51.

A motion for leave to proceed on appeal in forma pauperis must be filed in the first instance in the Trial Division and be accompanied by an affidavit setting forth appellant’s financial inability, his belief in redress, and the issues on appeal.H.C.R. 24(a).Schuster v. American Samoa Gov’t, 24 A.S.R.2d 137.

Because an appeal in a civil case is only permitted after an entry of judgment, a single justice of the High Court may dismiss an appeal for lack of a trial-court judgment.A.C.R. 2, 3, 4, 27(c).Shadow Yacht v. Tago, 24 A.S.R.2d 163.

A motion to stay execution of judgment pending appeal is properly initiated in the trial court pursuant to A.C.R. Rule 8(a).Euta v. Etimani, 25 A.S.R.2d 54.

Appeals to the High Court from the Zoning Board “may be taken in like manner to appeals under the Administrative Procedure Act.”McGuire v. Zoning Board, 26 A.S.R.2d 59.

Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the proceedings in the matter under review.A.S.C.A. § 4.1042; A.C.R. 17(a). McGuire v. Zoning Board, 26 A.S.R.2d 59.

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.Tuaolo v. Fruean, 1 A.S.R.3d40 (App. Div. 1997).

Certiorari is a discretionary form of review, not one of right.Fuavai v. District Court, 2 A.S.R.3d 41 (App. Div. 1998).

Appellant’s ability to demonstrate compliance with appellate procedures held immaterial where Court’s original ruling, highlighting alleged procedural deficiencies, also contained alternate, substantive basis for denial of stay.Falatea v. Aumoeualogo, 2 A.S.R.3d 52 (App. Div. 1998).

An appellant has the burden of showing that the trial court erred.Mulitauaopele v. Maiava, 29 A.S.R.2d 116.

§ 11(6)(b)—Notice of Appeal

Previous statute requires notice of appeal to be filed within seven days after judgment is rendered.(CAS 10). Betham v. Faumuina, 3 A.S.R. 537.

Appeal may be dismissed on grounds that notice was not filed with express authority.Betham v. Faumuina, 3 A.S.R. 537.

In interest of justice where counsel for appellants lack formal legal training, appellate court may permit arguments outside scope of grounds set out in notice of appeal.Mageo v. Government, 4 A.S.R. 874.

Notice of appeal filed thirty-one days after entry of judgment but seven days after denial of motion for reconsideration is a timely filing within rule establishing schedule requirements for appeals in civil cases.A.C.R. Rule 4(a)(1).Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

A party whose motion for a new trial has been denied, in whole or in part, has ten days from that date to file a notice of appeal.A.S.C.A. § 43.0802(b).Willis v. Fai`ivae, 17 A.S.R.2d 179.

The court does not have jurisdiction to extend time for filing a notice of appeal.American Samoa Gov’t v. South Pacific Island Airsystems, Inc., 29 A.S.R.2d 62.

The court will only extend time for filing a notice of appeal upon reasonable certainty that the aggrieved party has not received the relevant order.Furthermore, the court must be satisfied that the aggrieved party acted expeditiously as soon as he did receive notice.American Samoa Gov’t v. South Pacific Island Airsystems, Inc., 29 A.S.R.2d 62.

Delay of three days after allegedly receiving notice indicates that one did not act as expeditiously as soon as notice was received.American Samoa Gov’t v. South Pacific Island Airsystems, Inc., 29 A.S.R.2d 62.

Under A.S.C.A. § 43.0802(b) and A.C.R. 4(a)(1) a notice instituting an appeal of a judgment or order of the Land and Titles Division cannot be filed until, and must be filed within ten days after, the court denies a motion for reconsideration or new trial.Alai`asa v. Fanene, 2 A.S.R.3d 186 (Land & Titles Div. 1998).

Statutory requirement of filing an appeal within 10 days after denial of motion for new trial is mandatory.Alai`asa v. Peka, 5 A.S.R.3d 12 (App. Div. 2001).

§ 11(6)(c)—Appellate Briefs

Matter will be decided against party to an appellate proceeding who, without good cause, fails to file a brief within the time prescribed by rule.Tupuola v. Tu’ufuli, 1 A.S.R.2d 80 (App. Div. 1983).

Where failure of pro se appellants to file brief within time period prescribed by rule was partly due to negligence of appellants but also partly due to the inadvertent omission of the rule in question from the copy of the court rules made available to the public in the court library, appellants’ “motion for clarification” filed prior to the deadline would be construed as a timely motion for extension of time in which to file the brief.Appellate Court Rules 3(c), 31(a).Pene v. American Samoa Power Authority (Mem.), 11 A.S.R.2d 27.

An appellant’s brief is due forty days after the record is filed.A.C.R. 31(a).Alaimalo v. Sivia, 17 A.S.R.2d 25.

An appeal is subject to dismissal if the appellant does not file a brief.A.C.R. 31(c).Alaimalo v. Sivia, 17 A.S.R.2d 25.

Parties who decline to file an appellees’ brief risk having their positions go unrecognized by the court.Rakhshan v. American Samoa Gov’t, 20 A.S.R.2d 115.

A violation of the timing requirements of A.C.R. 31(a) does not result in mandatory dismissal of the appeal; dismissal is discretionary with the Appellate Division, which may consider the circumstances related to the untimely filing, and any prejudice resulting to the Appellees.Ulufaleilupe v. Uiagalelei, 3 A.S.R.3d 22 (App. Div. 1999).

When delay is not the result of negligence on the part of Appellant’s counsel or his client, and package was misplaced, not simply delayed in normal course of mailing from a remote location, outright dismissal of the litigant’s claims would be unduly harsh.Ulufaleilupe v. Uiagalelei, 3 A.S.R.3d 22 (App. Div. 1999).

Although Appellee had ample time to respond to the untimely-filed Appellant’s brief, but did not do so, and the merits of the appeal could not be considered, the client will not be significantly prejudiced by holding the case over to the next appellate session.Ulufaleilupe v. Uiagalelei, 3 A.S.R.3d 22 (App. Div. 1999).

§ 11(6)(d)—Appellate Motions

Motion to enlarge the time prescribed by appellate court rules in which to file brief must be served on all other parties to the appeal.Appellate Court Rules 27, 31.Leota v. Sese, 10 A.S.R.2d 155.

Motion filed without service on all other parties as required by appellate court rule would ordinarily be denied without prejudice to the right of moving party to file a new motion in compliance with the rule.Appellate Court Rule 27.Leota v. Sese, 10 A.S.R.2d 155.

Where ex parte motion to enlarge time was filed so late that a new motion with service on other parties could probably not be timely filed, a single judge hearing the motion to enlarge time would provisionally extend the time period subject to the rights of other parties to move for reconsideration of the extension and to review by the full appellate court.Appellate Court Rules 27, 31.Leota v. Sese, 10 A.S.R.2d 155.

Motion for extension of time in which to file appellate briefs must be filed with proof of service on the opposing party.Appellate Court Rule 27(a).Hawaiian Airlines v. American Samoa Gov’t ex rel. Neru (Mem.), 11 A.S.R.2d 116.

Requests for extensions of time should be made before rather than after expiration of the time period in question.Hawaiian Airlines v. American Samoa Gov’t ex rel. Neru (Mem.), 11 A.S.R.2d 116.

Where effect of an extension of time to file appellee’s brief would be to deny appellant its opportunity to be heard at an impending session of the Appellate Division, the extension would not be granted.Hawaiian Airlines v. American Samoa Gov’t ex rel. Neru (Mem.), 11 A.S.R.2d 116.

Appellate court cannot entertain an ex parte motion for stay of immigration order, since applicable rule requires that notice be given to all parties.Appellate Court Rule 18.Rakhshan v. Immigration Board, 12 A.S.R.2d 72.

At its discretion and within certain prescribed limits, the Court, sitting as a trial court, may grant an ex parte motion for an extension of time if the motion is made before the expiration of the period originally prescribed; this is in contrast to the Appellate Division, which may not grant ex parte motions for extensions.T.C.R.C.P. 6(b); A.C.R. 25 & 26.Willis v. Fai`ivae, 16 A.S.R.2d 101.

A request for enlargement of the time provided for any of the actions required to perfect an appeal should be made in the form of a motion, with copies served on adverse parties.A.C.R. 25(b), 26(b).Alaimalo v. Sivia, 16 A.S.R.2d 117.

Even if an appellant makes a timely motion for extending the time for ordering a transcript and filing a brief, the court will only grant extensions which will not prejudice the appellee.Alaimalo v. Sivia, 17 A.S.R.2d 25.

A motion to extend the time to order a transcript and file a brief was denied due to the length of the delay in making the motion and the consequent prejudice to the appellees, as well as the very slight possibility that the appeal would succeed on the merits.Alaimalo v. Sivia, 17 A.S.R.2d 25.

§ 11(6)(e)—Failure to Raise Issue Below

Where defendant and counsel do not object to use of term “King” to describe witness during trial, they cannot object to it on appeal.Lualemana v. Filo, 3 A.S.R. 642.

Appellate court will not permit witness to testify on appeal where she could have testified at trial and no effort was made to have her testify nor was any continuance requested to enable her to testify.Leapaga v. Masalosalo, 4 A.S.R. 868.

Issues, other than jurisdictional, not raised in trial court will not be considered on appeal.(RPAD, Rule 7A) Taufaasau v. Manuma, 4 A.S.R. 947.

Appellate court must rely upon record of Trial Division of the High Court in considering appeal, and where assumption of appellant is not supported by record, court cannot accept it.Taufaasau v. Manuma, 4 A.S.R. 947.

The post-trial and appellate stages of a proceeding, which with a few extraordinary exceptions must be based upon the record made at trial, are not the appropriate forum for counsel to request corrections of English translation of Samoan testimony.Lea’e v. Lea’e (Mem.), 3 A.S.R.2d 56.

Appellate review is confined to the record.On a party’s request, “the court shall receive briefs and hear oral argument”; and the court has the discretion to receive evidence to supplement the record.A.S.C.A. § 4.1043(a).McGuire v. Zoning Board, 26 A.S.R.2d 59.

§ 11(6)(f)—Transcripts

A court reporter is to produce a transcript within a thirty days after receiving an order for it.A.C.R. 11(b).Rocha v. Rocha, 17 A.S.R.2d 15.

A party who wishes to order only part of a transcript should clearly designate the parts he is ordering; if unclear, the risks of any uncertainty must be borne by the party requesting the transcript.A.C.R. 11(b).Rocha v. Rocha, 17 A.S.R.2d 15.

Party to appeal, other than a party to a criminal or administrative agency proceeding who has been given leave to proceed in forma pauperis, must bear the cost of preparing such portion of the transcript as he wishes to include the record on appeal.Appellate Court Rules 10(b)4, 24.Pene v. American Samoa Power Authority, 10 A.S.R.2d 61.

Litigants who demanded costs of litigation, compensatory and punitive damages on account of mental distress said to have been caused by a brief disconnection of their electricity, and an injunction against future disconnections, and whose electricity had been disconnected after they had stopped paying their electric bill in retaliation for conduct of the electric company in an unrelated land dispute, had no constitutional right to a free trial transcript for use on appeal.Pene v. American Samoa Power Authority, 10 A.S.R.2d 61.

Appellants who cannot afford to pay for a trial transcript lose only the right to urge that the trial court’s findings of fact were unsupported by the evidence; they remain free to seek the correction of such errors of law as may appear from the facts as found by the trial court, or to negotiate with opposing parties an agreed statement of the evidence in lieu of a transcript.Appellate Court Rules 10(b)(1), 10(b)(2), 10(d).Pene v. American Samoa Power Authority, 10 A.S.R.2d 61.

An appellant must place a written order for a partial transcript, as well as having a copy of the order filed with the clerk of court and served on the appellee, within 10 days after receiving the reporter’s or clerk’s estimate.A.C.R. 10(b)(1).Alaimalo v. Sivia, 16 A.S.R.2d 117.

At the time of ordering transcripts, a party must deposit cash equal to the estimated cost, and counsel must file a copy of the reporter’s receipt with the clerk of court.A.C.R. 10(b)(4).Alaimalo v. Sivia, 16 A.S.R.2d 117.

A transcript order or a notice of intention to proceed without a transcript must be made within ten days after receiving the court reporter’s estimate of the cost of the transcript.A.C.R. 10(b).Alaimalo v. Sivia, 17 A.S.R.2d 25.

Within ten days after receiving the court reporter’s estimate of the cost of the transcript, an appellant must give notice to the court and appellees of the issues intended to be presented on appeal.A.C.R. 10(b)(1).Alaimalo v. Sivia, 17 A.S.R.2d 25.

An appeal is subject to dismissal at the discretion of the Appellate Division if an appellant did not comply with the provisions of A.C.R. 10(b).A.C.R. 10(b)(5).Alaimalo v. Sivia, 17 A.S.R.2d 25.

An appellant has ten days to file an order for a transcript, to deposit with the reporter an amount of cash equal to the estimated cost of the transcript, and to file with the Clerk of the High Court the receipt for such deposit.A.C.R. 10(b)(1), (4).Aoelua v. Aoelua Family, 18 A.S.R.2d 1.

An order for a transcript must be in writing, must be filed with the Clerk, and must be served on the appellee.A.C.R. 10(b)(1).Aoelua v. Aoelua Family, 18 A.S.R.2d 1.

The only way to secure an extension of time in which to order a transcript is to file a motion with notice to the opposing parties, although the appellant would then bear the heavy burden of explaining why the motion was not filed before the expiration of the deadline.Aoelua v. Aoelua Family, 18 A.S.R.2d 1.

Within ten days after receiving the reporter’s or clerk’s estimate of the transcript’s cost, an appellant must file a written order for a transcript or file a certificate that no parts of the transcript are to be ordered; the appellate court may, on its own motion, dismiss the appeal for a failure to do so.A.C.R. 10(b)(1), 10(b)(5).Toluao v. Fuimaono, 21 A.S.R.2d 12.

§ 11(7)—Costs of Appeal

Attorney fees may be awarded to an appellee where the appellant has taken a frivolous appeal.Tuika v. Ala`ilima, 8 A.S.R.2d 163.

Appellant who ordered production of a trial transcript and later attempted to countermand the order would be required to pay pro rata share of the cost of producing the transcript, where (1) another appellant had requested an estimate of the cost of a transcript; (2) court reporter, in reliance on first appellant’s order for a transcript, had served both appellants with an estimate that assessed half the cost against each appellant; (3) second appellant had then ordered a transcript within the ten-day period prescribed by appellate court rule for parties to decide what parts of the transcript would be necessary; (4) first appellant’s countermand of his order took place well after the expiration of the ten-day period.Appellate Court Rule 10(b)(1).Moea`i v. Alai`a, 10 A.S.R.2d 103.

A party who desires costs to be assigned shall state them in an itemized and verified bill of costs which shall be filed with the clerk, with proof of service, within 14 days after the entry of judgment.A.C.R. 39(d).Pene v. Bank of Hawaii, 18 A.S.R.2d 75.

Attempts to, in essence, appeal a final and unappealable decision may be sanctioned by either the trial or appellate courts.Toluao v. Fuimaono, 21 A.S.R.2d 12.

Losing litigants should not be encouraged to bring hopeless appeals simply to delay the effect of a judgment, but in a legitimate appeal the effects of delay in collecting a judgment can partially be neutralized by an undertaking and an award of post‑judgment interest.Euta v. Etimani, 25 A.S.R.2d 54.

§ 11(8)—Findings of Law – De Novo Review

The appellate court reviews a grant of summary judgment de novo.Thompson v. National Pacific Insurance, 20 A.S.R.2d 85.

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.

When an appellate court finds that a trial court’s decision was correct and supported on one ground, it may not consider the alternative grounds upon which the decision was based.Amerika Samoa Bank v. Pacific Reliant Industries, 20 A.S.R.2d 102.

An appellate court reviews a trial court’s interpretation of law de novo.Nelson & Robertson Pty., Ltd. v. Diocese of Pago Pago, 21 A.S.R.2d 6.

Questions of law are reviewed de novo.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.Misaalefua v. Hudson, 1 A.S.R.3d 23 (App. Div. 1997).

Questions of law or mixed questions of law and fact are reviewed de novo.Korea Deep Sea Fisheries Assn. v. Ho Pyo Hong d/b/a Koreansa ShippingAgency, 3 A.S.R.3d 24 (App. Div. 1999).

An appellate court reviews questions of law de novo.Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

An appellate court reviews questions of law de novo but may not set aside the findings of fact of the Trial Division unless they are clearly erroneous.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 11(9)—Findings of Fact – Clearly Erroneous

Appellate court will not upset findings of fact by trial court unless clearly erroneous.Faagau v. Fuaga, 3 A.S.R. 488.

Appellate Division will not reverse findings of fact of Trial Division unless clearly erroneous.Tiumalu, v. Tiumalu, 3 A.S.R. 502.

Finding of fact of Trial Court will be set aside upon appeal if contradicted by decisions in previous High Court cases which Trial Court failed to take judicial notice of.Leasiolagi v. Faumui, 3 A.S.R. 509.

Appellate Division of High Court may affirm, modify, reverse or set aside judgment or order appealed from, but cannot set aside findings of fact by Trial Division unless clearly erroneous (CAS 213)Malaga v. Mase, 3 A.S.R. 518.

Appellate court will not reverse findings of trial court unless clearly erroneous.Lualemana v. Magalei, 4 A.S.R. 849.

Appellate court is bound by the findings of fact of trial court unless clearly erroneous.Leapaga v. Masalosalo, 4 A.S.R. 868.

Appellate division is bound by findings of fact of trial division unless clearly erroneous.(CAS 3.0503)Mageo v. Government, 4 A.S.R. 874.

Trial court, which is judge of facts, is in better position than appellate court to ascertain circumstances at time ordinance was promulgated.Mageo v. Government, 4 A.S.R. 874.

Evidence before appellate court of land formed by accretion which was not presented during trial to determine extent of land condemned will not upset fact finding of trial court.Mageo v. Government, 4 A.S.R. 874.

Where finding of trial court is substantiated in record, appellate court will not reverse unless clearly erroneous.Faatamala v. Haleck, 4 A.S.R. 888.

Appellate court will not set aside fact findings of trial division unless clearly erroneous.(CAS 3.0503)Faatamala v. Haleck, 4 A.S.R. 888.

Assignment of error that evidence was not sufficient to support decision of trial court must show particulars in which it is insufficient.Faatamala v. Haleck, 4 A.S.R. 888.

Appellate court may affirm, modify, set aside or reverse any judgment or order appealed from or remand for new trial, but it may review facts as well as law only in appeal from district courts.(CAS 3.0503)Tigi v. Government, 4 A.S.R. 894.

Appellate court will not set aside findings of fact by Trial Division unless clearly erroneous.(CAS 3.0503)Fuga v. Mageo, 4 A.S.R. 899.

Where trial court could reasonably come to conclusion that land surveyed was property of defendant, appellate court will not upset finding.Fuga v. Mageo, 4 A.S.R. 899.

Appellate Division of the High Court will not set aside findings of fact of trial court unless clearly erroneous.(CAS 3.0503)Utu v. Aumoeualogo, 4 A.S.R. 906.

Where evidence presented to trial court supports findings of fact, appellate court will not upset findings.Utu v. Aumoeualogo, 4 A.S.R. 906.

Where trial court finds land transaction void as fraudulent attempt to evade law, appellate court will not upset fact finding.Ross v. Scanlan, 4 A.S.R. 913.

Appellate Division is bound by findings of fact of trial court unless clearly erroneous.(CAS 3.0503)Willis v. Government, 4 A.S.R. 926.

Appellate court will presume that matters in record were considered by trial court.Willis v. Government, 4 A.S.R. 926.

Where there is evidence supporting the findings of fact of the trial court and there is no clearly erroneous findings of fact, appellate court will affirm judgment of trial court.Willis v. Government, 4 A.S.R. 926.

Where findings of trial court are based upon agreed facts, appellate court may review conclusions or inference of fact, as well as rulings of law.Bottling Corporation of Samoa v. Lee, 4 A.S.R. 938.

Trial court, when presented with no disputable issues of fact, must apply law to facts before it, and not make finding of fact contradictory to evidence before it.Bottling Corporation of Samoa v. Lee, 4 A.S.R. 938.

Trial court must decide case on basis of evidence before it and not on basis of “assumption” or “wholly unjustifiable mental gymnastics.”Bottling Corporation of Samoa v. Lee, 4 A.S.R. 938.

Appellate court will not set aside findings of fact by Trial Division of the High Court unless clearly erroneous.(CAS 3.0503)Taufaasau v. Manuma, 4 A.S.R. 947.

Where ground for appeal is that evidence does not warrant finding of fact by trial court, statement of grounds shall specify what element has not been satisfactorily proved or what finding is clearly erroneous.(RPAD, Rule 7A) Taufaasau v. Manuma, 4 A.S.R. 947.

Appellant has burden of showing decision appealed from was clearly erroneous and that, in absence of such error, trial court would have reached decision more favorable to him.Taufaasau v. Manuma, 4 A.S.R. 947.

No other grounds of appeal other than those set out in notice of appeal shall be considered unless error is so manifest that the court will take notice of it on its own initiative.Taufaasau v. Manuma, 4 A.S.R. 947.

Where on appeal appellant goes into matters that are not in record, were not raised in cross-examination at trial, and were not specified in notice of appeal, he fails to meet burden of showing error in decision of trial court.Taufaasau v. Manuma, 4 A.S.R. 947.

Where trial court was aware of facts and issues with respect to forcefulness and character of potential matai title holder and where its decision indicates careful evaluation of this testimony, appellate court will not find decision clearly against weight of evidence.Taufaasau v. Manuma, 4 A.S.R. 947.

The Appellate Division can set aside the findings of the trial court only if they are clearly erroneous.Willis v. Willis, 2 A.S.R.2d 102 (App. Div. 1986).

The standard of appellate review of judicial findings is the “clearly erroneous” standard set forth in United States v. United States Gypsum Co., 333 U.S. 364 (1948).In re Matai title “Aoelua,” 2 A.S.R.2d 104 (1986).

Appellate court will not reverse trial court’s finding with regard to hereditary right of candidates for matai title where judgment is supported by substantial evidence.In re Matai Title Togiola, 3 A.S.R.2d 127.

In the absence of evidence of contrary Samoan custom, appellate court would not reverse trial court judgment that candidate for matai title could cumulate two separate claims to ancestry from original titleholder in determining the degree of his blood relationship to titleholder.In re Matai Title La’apui, 4 A.S.R.2d 7.

A trial court’s findings of fact must not be disturbed on appeal unless they are clearly erroneous.In re Matai Title Tauaisafune, 6 A.S.R.2d 59.

When factual determinations rest upon credibility of witnesses the appellate court must defer to the judgment of the trial judge, who had firsthand opportunity to consider the witnesses and their submitted proofs.In re Matai Title Tauaisafune, 6 A.S.R.2d 59.

Appellate court has no authority to increase the amount of damages awarded by trial court unless the amount was clearly erroneous.A.S.C.A. § 43.0801.Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

Disparity from place to place in amounts generally awarded for pain and suffering is accounted for by many factors, including variations in the value of money and in social attitudes toward pain, and that awards tend to be lower in American Samoa than in some other jurisdictions does not make such an award clearly erroneous.A.S.C.A. § 43.0801.Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

Appellate division of territorial court reviews findings of fact by land and titles division for clear error.A.S.C.A. § 43.0801(b).Tuileata v. Amituana`i, 8 A.S.R.2d 173.

Where each party has presented evidence to the trial court which supports its own claim to land ownership, the trial court’s findings will not be disturbed on appeal unless clearly erroneous.A.S.C.A. § 43.0801(b).Suapilimai v. Faleafine, 9 A.S.R.2d 16.

Trial court findings of fact for which there is substantial evidence in the record are not clearly erroneous, and will not be disturbed on appeal, even though there is also substantial evidence in the record that would have supported a contrary finding by the trial court.A.S.C.A. § 43.0801(b).Suapilimai v. Faleafine, 9 A.S.R.2d 16.

Parties who readvanced on appeal the evidence and factual contentions they presented to the trial court did not thereby establish that the contrary findings of the trial court were clearly erroneous.Satele v. Fai`ai, 9 A.S.R.2d 20.

Question of the extent of land awarded to a party by an earlier court decision was one of fact, and trial court’s resolution of this question should be upheld on appeal unless clearly erroneous.Willis v. Fai`ivae, 12 A.S.R.2d 37.

Appellant who seeks to overturn the trial court’s findings of fact on appeal bears the heavy burden of showing that these findings were “clearly erroneous” in light of the record.A.S.C.A. § 43.0801(b).Toleafoa v. Tiapula, 12 A.S.R.2d 56.

Where trial court finding that appellant had relinquished possession of house by many years of absence was supported by testimony that appellant lived in another village and rarely visited the village in which the disputed house was located, the finding was not clearly erroneous and appellate court would not disturb it.A.S.C.A. § 43.0801(b).Toleafoa v. Tiapula, 12 A.S.R.2d 56.

It is not within the province of the appellate court to re-weigh the evidence and interfere with a decision based on the lower court’s choice of one version of the facts over another; findings of facts may not be set aside by the appellate court unless clearly erroneous.A.S.C.A. § 43.0801(b).Utuutuvanu v. Mataituli, 12 A.S.R.2d 88.

Trial court’s finding of facts may not be set aside on appeal unless clearly erroneous.A.S.C.A. § 43.0801(b).Moea`i v. Alai`a, 12 A.S.R.2d 91.

Whether or not a dissatisfied litigant had himself presented substantial evidence in trial is not the test for clear error; rather, the question is whether there was substantial evidence to support the trial court’s conclusions.Moea`i v. Alai`a, 12 A.S.R.2d 91.

When determining whether trial court finding of facts is clearly erroneous, appellate court must give due regard to trial court’s opportunity to weigh credibility of witnesses.T.C.R.C.P. 52(a).Moea`i v. Alai`a, 12 A.S.R.2d 91.

The Workmen’s Compensation Commission’s findings of fact and inferences derived therefrom are to be upheld by the High Court if supported by “substantial evidence,” using a reasonableness standard.Continental Insurance Co. v. Workmen’s Compensation Commission, 15 A.S.R.2d 130.

Appellate court may set aside findings of the trial court only if they are clearly erroneous.Uiagalelei v. Ulufale, 17 A.S.R.2d 158.

The trial division’s factual findings may not be set aside by the appellate division unless clearly erroneous.A.S.C.A. § 43.0801(b); T.C.R.C.P. 52(a).Saufo’i v. American Samoa Gov’t, 19 A.S.R.2d 54.

The “clearly erroneous” standard is used by an appellate court to test a lower court’s findings of negligence, as well as related findings such as “proximate cause.”A.S.C.A. § 43.0801(b); T.C.R.C.P. 52(a).Saufo’i v. American Samoa Gov’t, 19 A.S.R.2d 54.

On appeal, a trial court’s factual determinations are reviewed for clear error, and questions of law or mixed questions of law and fact are reviewed de novo.Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70.

Where an appellate court cannot say that a decision of the trial court was clearly erroneous, that decision will be allowed to stand.Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70.

It is not the appellate court’s function to decide factual issues de novo.Afoa v. Asi, 20 A.S.R.2d 81.

The test for clear error is whether there is substantial evidence supporting the trial court’s conclusions—not whether a dissatisfied litigant himself presented substantial evidence. Afoa v. Asi, 20 A.S.R.2d 81.

An appellate court is not obliged to search the record for error.EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

An appellate court should not, and on unsubstantiated assertions of error cannot, substitute its judgment for that made by the trier of fact at the conclusion of trial.EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

A finding is “clearly erroneous” only when the entire record produces the firm and definite conviction that the trial court committed error.EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

On appeal, a trial court’s findings of fact are clearly erroneous only when the entire record produces a definite and firm conviction that a mistake has been made.Iosia v. National Pacific Insurance Ltd., 20 A.S.R.2d 123.

On appeal, a clearly erroneous standard applied to questions of fact, but questions of law are reviewed de novo.A.S.C.A. § 43.0801(b).Anderson v. Vaivao, 21 A.S.R.2d 95.

On appeal, the test is not whether facts in the record are sufficient to support a decision for the appellant but whether sufficient evidence supported the trial court’s decision.Afualo v. Puailoa, 21 A.S.R.2d 115.

On appeal, the relevant test is not whether facts in the record were sufficient to support a decision for an appellant, but whether sufficient evidence existed to support the trial court’s decision.Taeleifi v. Willis, 21 A.S.R.2d 118.

Because an appellate court uses the “clearly erroneous” standard of review, it is possible for trial courts to make different factual findings in cases with different parties.Reid v. Puailoa, 23 A.S.R.2d 101.

Factual findings of the Land and Titles Division will not be disturbed unless the appellate court finds them to be clearly erroneous.A.S.C.A. § 43.0801(b).A factual finding is clearly erroneous when, despite evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Toeaina v. Malae, 25 A.S.R.2d 31.

A trial court’s determination of negligence is reviewed under the “clearly erroneous” standard, not by a de novo reweighing of the evidence at the appellate level.The test for clear error is not whether a dissatisfied litigant has presented evidence of superior evidentiary support to sustain his version of the facts, but whether the trial court’s findings are substantially supported.Moananu v. Alofipo, 25 A.S.R.2d 37.

In matters of fact, the Appellate Division reviews only for clear error, pursuant to A.S.C.A. § 43.0801(b).Mulitauaopele v. Mulitauaopele, 25 A.S.R.2d 43.

The question of whether a litigant’s conduct was a substantial factor is for the trial court to determine unless testimony is so undisputed and uncontradictory that reasonable men could not differ.Crispin v. American Samoa Gov’t, 25 A.S.R.2d 49.

Factual findings of the Trial Division will not be reversed on appeal unless they are clearly erroneous. A.S.C.A. § 43.0801(b).Euta v. Etimani, 25 A.S.R.2d 54.

The standard of review applied to a courts denial of a request for recusal is, in accordance with A.S.C.A. § 43.0801(b), “clearly erroneous.”In re Matai Title “Faumuina”, 26 A.S.R.2d 1.

An appellate court will not set aside a trial court’s findings in the absence of clear error.A.S.C.A. § 43.0801(b). The test is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20.

The court will not second-guess decisions properly in the jury’s province, particularly decisions with firm foundations.American Samoa Gov’t v. Snow, 26 A.S.R.2d 78.

The Appellate Division of this court can set aside findings of the trial court only if they are clearly erroneous, and may not simply re-weigh the facts presented at trial.Uiagaleleli v. Ulufale, 26 A.S.R.2d 118.

The findings of the trial court may not be set aside on appeal unless clearly erroneous.Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

On an appeal on a stenographic record from a traffic conviction in the District Court the trial court’s findings of fact are reviewed for clear error.A.S.C.A§ 46.2403(b).Vaapuu v. American Samoa Gov’t, 3 A.S.R.3d 1 (App. Div. 1999).

It can not be said the trial court’s finding appellant guilty of Careless Driving Causing Property Damage was clearly erroneous where the evidence showed without dispute that the collision occurred outside of Appellant’s lane as marked by the solid white line painted on the pavement some 12-16 inches from the (gravel) shoulder of the roadway.Vaapuu v. American Samoa Gov’t, 3 A.S.R.3d 1 (App. Div. 1999).

A trial court’s factual determinations are reviewed for clear error.Korea Deep Sea Fisheries Assn. v. Ho Pyo Hong d/b/a Koreansa ShippingAgency, 3 A.S.R.3d 24 (App. Div. 1999).

A trial court’s factual determinations are reviewed for clear error.American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Trial court’s findings of fact can be set aside only if clearly erroneous.In Re Matai Title Tagoilelagi, 3 A.S.R.3d 66 (App. Div. 1999).

Under A.S.C.A. § 43.0801(b), the court is prohibited from setting aside findings of fact by the land and titles division unless such findings are clearly erroneous.Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

An appellate court will not set aside a trial court’s findings of fact in the absence of clear error.Timu v. McMoore, 6 A.S.R.3d 41 (App. Div. 2002).

This court will not disturb the trial court’s findings when they are supported by substantial evidence, even if a contrary finding would also be supported by substantial evidence.Timu v. McMoore, 6 A.S.R.3d 41 (App. Div. 2002).

Findings of fact of trial court may not be set aside by appellate court unless clearly erroneous, i.e., not supported by substantial evidence in record.Williams v. Tupuola, 6 A.S.R.3d 44 (App. Div. 2002).

When factual issue comes down to credibility of witnesses, appellate court must defer to trial court’s judgment.Williams v. Tupuola, 6 A.S.R.3d 44 (App. Div. 2002).

A trial court finding of fact is clearly erroneous when “the entire record produces the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge’s assessment of conflicting and ambiguous facts.”TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 11(10)—Credibility of Evidence and Witnesses

Trial court is judge of facts and credibility of witnesses as well as of law, and appellate court will not find error in trial court’s determination of which witnesses to believe.Willis v. Government, 4 A.S.R. 926.

Appellate court should not substitute its own judgment of the credibility of witnesses for the judgment of the trial court.National Pacific Insurance Co. v. Oto, 3 A.S.R.2d 94.

Credibility of witnesses is uniquely the prerogative of the trial court.Utuutuvanu v. Mataituli, 12 A.S.R.2d 88.

Trial court does not merely determine which version of events is more researched, less contradicted, or better sounding story, but also assesses the credibility of the live witnesses before it.Moea`i v. Alai`a, 12 A.S.R.2d 91.

In resolving issues of witnesses’ credibility, motive, and character, the Appellate Division is limited to the trial court’s transcripts and will presume their determinations to be correct, unless clearly erroneous.A.S.C.A. § 43.0801(b).Rocha v. Rocha, 20 A.S.R.2d 63.

If internally consistent, a trial court’s findings based on its decision to give credibility to the testimony of a particular witness(es), each having told a coherent and facially plausible story not contradicted by extrinsic evidence, can virtually never be clear error.Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70.

It is for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses.The Appellate Division will not overturn the trial court’s resolution of conflicting evidence, when substantial evidence supports its ruling.Reine v. Taotoai, 25 A.S.R.2d 136.

In reviewing a decision of the Land and Titles Division or the Trial Division, the Appellate Division utilizes a “clear error” standard.This standard of review applies to the lower court’s evaluation of witnesses’ credibility.Paolo v. Utu, 26 A.S.R.2d 18.

The reviewing court gives weight to the trial judge’s assessment of conflicting and ambiguous facts.American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Credibility of witnesses is uniquely the prerogative of the trial court.Timu v. McMoore, 6 A.S.R.3d 41 (App. Div. 2002).

Standard of clear error applies to lower court’s evaluation of witnesses’ credibility.Williams v. Tupuola, 6 A.S.R.3d 44 (App. Div. 2002).

Credibility determinations are the prerogative of the trial court and an appellate court will not upset those determinations.Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

Family history and tradition, standing alone, does not constitute substantial evidence when there is direct evidence to the contrary.Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

§ 11(11)—Administrative Agency Decisions

SEE ADMINISTRATIVE LAW § 5 – JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

Court should grant an interlocutory stay of an administrative board decision only if there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted.Leti v. Immigration Board, 8 A.S.R.2d 107.

That a different conclusion might also have been supported by the evidence is insufficient to warrant reversal of the Workmen’s Compensation Commission’s conclusions.Continental Insurance Co. v. Workmen’s Compensation Commission, 15 A.S.R.2d 130.

If made upon unlawful procedure, a decision of the Immigration Board may be reversed, modified, or remanded for further proceedings by the Appellate Division of the High Court.A.S.C.A. § 41.0212(3).Farapo v. American Samoa Gov’t, 23 A.S.R.2d 136.

A court utilizes a “clearly erroneous” standard of review in reviewing Workmen’s Compensation Commission orders.Harris v. Commissioner of the American Samoa Gov’t Workmen’s Compensation Commission, 24 A.S.R.2d 124.

Appeals of Zoning Board decisions proceed in like manner to appeals under the Administrative Procedures Act, in that the administrative record must be submitted within 30 days and the court is confined to that record, though it may receive evidence to supplement the record.Ala`ilima v. Zoning Board, 25 A.S.R.2d 146.

The court is not to reweigh the evidence on factual questions and is to give “appropriate weight to the agency’s experience, technical competence, and specialized knowledge.”A.S.C.A. § 4.1043(b).McGuire v. Zoning Board, 26 A.S.R.2d 59.

A.S.C.A. § 4.1040 provides for appellate review of a final administrative decision in a “contested case.”In such cases, the Appellate Division may reverse or modify an agency decision if it is contrary to law or based on factual findings which are “clearly erroneous,” or if it is otherwise arbitrary, capricious or abusive of discretion.A.S.C.A. § 4.1043-44.Pen v. Lavata`i, 30 A.S.R.2d 10.

Certain administrative functions, such as the determination of whether an alien should be deported according to existing immigration and probably the determination of whether an alienation of land is improvident within the meaning of A.S.C.A. § 37.0203(c), are beyond the reach of any judicial review because they are committed to agency discretion by law.Pen v. Lavata`i, 30 A.S.R.2d 10.

An administrative decision does not concern a contested case under A.S.C.A § 4.1040 when a party was not represented at Land Commission hearings and could not contest the lease.Pen v. Lavata`i, 30 A.S.R.2d 10.

Appellate courts lack subject matter jurisdiction to consider issues thatwere not presented to the administrative agency.Pen v. Lavata`i, 30 A.S.R.2d 10.

Under A.S.C.A. § 4.1041(b) a stay of an administrative decision may be issued on appropriate terms without an evidentiary hearing.B.H.P. Petroleum South Pac., Inc.v. American Samoa Gov’t, 2 A.S.R.3d 1 (App. Div. 1998).

Under A.S.C.A. § 4.1043(a) and (b), the Appellate Division is authorized to hear testimony and receive evidence, and in reviewing an agency’s determination, must give appropriate weight to the agency’s experience, technical competence, and specialized knowledge.Coleman v. Fuimaono, 2 A.S.R.3d 44 (App. Div. 1998).

Judicial power in American Samoa, like the United States, is limited review of presently pending cases or controversies.Island’s Choice, Inc. v. American Samoa Gov’t, 5 A.S.R.3d 3 (App. Div. 2001).

Courts reviewing federal agency actions under the Administrative Procedures Act are limited to compelling agency actions or holding actions unlawful.Courts cannot grant monetary relief.Island’s Choice, Inc. v. American Samoa Gov’t, 5 A.S.R.3d 3 (App. Div. 2001).

In American Samoa, pecuniary relief is not available in judicial review of administrative proceedings.Island’s Choice, Inc. v. American Samoa Gov’t, 5 A.S.R.3d 3 (App. Div. 2001).

If a disappointed bidder wishes for monetary relief, the proper course of action is not through appellate review of administrative proceedings, but rather through such means as a trial de novo.Island’s Choice, Inc. v. American Samoa Gov’t, 5 A.S.R.3d 3 (App. Div. 2001).

Where party had moved for reconsideration or new trial before Administrative Law Judge and had also petitioned for judicial review, motion for new trial needed to be decided before judicial review could take place.Forsgren v. American Samoa Gov’t, 5 A.S.R.3d 13 (App. Div. 2001).

When administrative law matter becomes ripe for review by denial of party’s motion for reconsideration or new trial, petitioner should thereafter file entire record of the administrative proceeding, including transcripts of hearings, within 30 days of request to proceed.Forsgren v. American Samoa Gov’t, 5 A.S.R.3d 13 (App. Div. 2001).

Agency jurisdiction is generally the power granted to a particular department, board or commission of government to effectively administer the laws enacted by the Legislature under that agency’s authority.Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

The Administrative Procedures Act of 1969 (A.S.C.A. § 4.1001 et seq) establishes the general procedures which all A.S.G. departments, boards, and commissions must follow when empowered to act as agencies with rule-making or contested case decision making authority.Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

Under the Administrative Procedures Act, hearings are to be conducted under minimal due process requirements and relaxed rules of procedure and evidence, which are set forth in A.S.C.A. §§ 4.2025-4.1037.Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

According to A.S.C.A. § 4.1032(5), administrative hearings are conducted by a “hearings officer”, otherwise known as an “administrative law judge”.Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

The Administrative Procedures Act affords an aggrieved party the right, upon exhausting the administrative decision making process, to limited judicial review of an agency’s final decision by the Appellate Division of the High Court. Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

Under the Administrative Procedures Act, the High Court must, in most instances confine its review of administrative decisions to the record and decision as developed and issued by the agency.Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

Under the Administrative Procedures Act, the Court may not substitute its judgment on the weight of the facts for that of the agency and the Court is required to give appropriate weight to the agency’s experience, technical competence and specialized knowledge.Nat’l Pac. Ins. Co., Ltd., v. Comm’r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 11(12)—Abuse of Discretion

Trial judge asking of leading questions rests in his discretion and will not be controlled by appellate court unless abused.Ross v. Scanlan, 4 A.S.R. 913.

A trial court’s decision to exclude spectators from the courtroom during testimony of a particular witness must not be disturbed on appeal unless the decision was an abuse of discretion.Masaniai v. American Samoa Gov’t, 6 A.S.R.2d 114.

Court may exercise its discretion to deny an extraordinary writ where petitioners have unduly delayed in asserting their rights.Siofele v. Shimasaki, 9 A.S.R.2d 3.

A failure to follow the clear meaning of A.S.C.A. § 1.0409(d) results in prejudice to all involved.The legislature has required that the judiciary issue written findings of fact and conclusions of law.The trial court has no discretion to ignore that legislative mandate.In re Matai Title “Faumuina”, 26 A.S.R.2d 1.

The burden is on appellant to produce a record which shows the court abused its discretion.American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Trial court’s decision to grant or deny continuance will only be overturned upon clear showing of abuse of discretion.Williams v. Tupuola, 6 A.S.R.3d 44 (App. Div. 2002).

Trial court did not abuse its discretion in granting substitution of parties and in denying continuance. There was ample evidence that change caused unfair surprise and no prejudice was demonstrated.Williams v. Tupuola, 6 A.S.R.3d 44 (App. Div. 2002).

A trial court’s decision to bifurcate resolution of issues is reviewed for abuse of discretion.Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

A trial court does not abuse its discretion by considering apportionment during the damages phase of the trial rather than the liability phase.Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

§ 11(13)—Harmless and Reversible Error

Error of Trial Court will not mandate reversal of judgment where case has been properly disposed of and there is nothing upon which error can operate.Dwyer v. McDonald, 1 A.S.R. 652.

Where appellant has local counsel to represent her at hearing on appeal, court’s refusal to grant continuance to permit her time to bring counsel from United States was not error.Betham v. Faumuina, 3 A.S.R. 537.

Fact judge wrote opinion using his notes and reporter’s notes does not constitute error.Scanlan v. Steffany, 3 A.S.R. 583.

Argumentative remarks on appeal do not constitute grounds for reversing or setting aside decision of trial court.Mageo v. Government, 4 A.S.R. 874.

Where error in trial court proceedings is in favor of appellant, there is no grounds for reversal.Faatamala v. Haleck, 4 A.S.R. 888.

Where court refuses to permit witnesses requested by counsel to testify about blood relationship, but court decides issue in favor of party requesting witness, then refusal is not prejudicial error.Utu v. Aumoeualogo, 4 A.S.R. 906.

Trial court holding that no candidate prevailed on issue of best hereditary right was not substantial error justifying reversal by appellate court, where (1) trial court found that there were “minute distinctions” among candidates’ blood relationship to original titleholder, and (2) candidate who prevailed at trial would clearly have had the best hereditary right under traditional rule that hereditary right to title depends on blood relationship to any holder of the title.In re Matai Title Le’iato, 3 A.S.R.2d 133.

There is no clear error requiring appellate division to reverse a decision denying registration of land where (1) prior cases relied on by the appellant to show his presence in the area concerned another tract of land and (2) witnesses testified that appellant neither had houses or plantations in the area nor, owing to his long absence from the territory, had knowledge of the true extent of his family lands.A.S.C.A. § 43.0801(b).Tuileata v. Amituana`i, 8 A.S.R.2d 173.

Where trial court, in deciding that a trusteeship devolved upon the appellee in his capacity as a successor in matai title to the original trustee, had failed to consider a plausible argument raised at trial to the effect that the trusteeship should instead have devolved upon the original trustee’s successors in the office of district governor, but the appellee had recently assumed the office of district governor, the question whether the trusteeship devolved upon the holders of the office of district governor of the matai title was moot in the context of the case and remand to trial court was inappropriate.Mose v. Tufele, 12 A.S.R.2d 31.

Argument that trial court had incorrectly referred to disputed land by appellee’s name for it, rather than by the different name used by appellant, would not advance the merits of appellant’s case where appellee prevailed on the basis of competent evidence quite unrelated to the name of the land.Utuutuvanu v. Mataituli, 12 A.S.R.2d 88.

Denial of an interpreter generally requires a showing of actual prejudice to the defense to justify reversal on appeal.Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

Even if the trial court’s decision concerning the value of the marital estate was perhaps mistaken in some particulars, it was not clearly erroneous.Rocha v. Rocha, 20 A.S.R.2d 63.

The trial court did not commit manifest error when it refused to allow a proffered expert to testify in terms of a hypothetical, based upon test results of a person whose qualifications were never properly presented, particularly when the final decision could be a matter of life and death.EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

A trial court’s errors require reversal unless it is more probable than not that the prejudice resulting from the error did not materially affect the verdict. T.C.R.C.P. 52(a).Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

§ 12Conflict of Laws

SEE CONSTITUTIONAL LAW § 3(4) – CONFLICT OF LAWS

§ 12(1)—Law of the Forum

Deregulation of airlines does not leave territorial court free to look only to the territorial law of contracts in deciding cases relating to lost baggage, since detailed federal regulations apply to baggage liability and since even in areas not expressly regulated the continued federal interest in air transportation suggests that federal common law should provide the rule of decision.American Samoa Gov’t ex rel. Uikirifi v. Hawaiian Airlines, Inc., 10 A.S.R.2d 31.

In the absence of citation of authorities concerning applicable foreign law, the foreign law is presumed not to differ from that of the forum.Pritchard v. Purcell, 11 A.S.R.2d 16.

Even if petitioner could prove her marriage void under applicable foreign law, action for annulment would be subject to equitable defenses and limitations applicable to annulment actions in the forum.Pritchard v. Purcell, 11 A.S.R.2d 16.

Full faith and credit requires that a forum should respect an earlier judgment to the extent that issues presented therein received a res judicata determination.U.S. Const., Art. IV, § 1.In re A Minor Child, 28 A.S.R.2d 33.

Under the full faith and credit clause, a forum state has as much leeway to modify or depart from a foreign judgment as does the state in which it was rendered.U.S. Const., Art. IV, § 1.In re A Minor Child, 28 A.S.R.2d 33.

In a conflict of law situation, the law of the forum with the most significant relationship to the transaction and the parties will be applied in contract situations.Pal Air Int’l, Inc. v. Porter, 30 A.S.R.2d 104.

In determining which forum has the most significant relationship to a transaction and the parties for determination of what law to apply in a contract action, five factors are of primary consideration:(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.Pal Air Int’l, Inc. v. Porter, 30 A.S.R.2d 104.

§ 12(2)—Foreign Courts and Judgments

Statutes enacted in other jurisdictions, or applying to different but related subjects than those before the court, are among the factors courts should consider in applying and fashioning judge-made law.Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Unless presented with evidence that foreign law differs from local law, courts will assume that it does not.Theo H. Davies & Co. v. Pacific Development Co., 6 A.S.R.2d 5.

Under statute providing for the registration and enforcement of a foreign judgment, court would not register a divorce judgment on behalf of one who was not a party to the divorce but who claims to be the “owner” of the judgment by virtue of the assignment, without information concerning the circumstances of the acquisition of the judgment.A.S.C.A. § 43.1703.Parisi v. Parisi, 9 A.S.R.2d 116.

Where court of foreign jurisdiction had issued new judgment substantially reducing the amount of its original judgment, the original judgment could no longer be registered in accordance with statute allowing for registration and enforcement of foreign judgments.A.S.C.A. § 43.1701 et seq.Parisi v. Parisi, 10 A.S.R.2d 106.

Court would accept foreign judgment for registration and enforcement in the name of the judgment creditor, but would not register and enforce an assignment to her attorney whose principal effect was to allow the attorney to avoid Court rule requiring admission to the Bar pro hac vice.A.S.C.A. § 43.1701 et seq.; H.C.R. 145.Parisi v. Parisi, 10 A.S.R.2d 106.

Since Oregon court had no jurisdiction to transfer title to land in American Samoa, judgment attempting to do so was entitled to full faith and credit only if the question of jurisdiction had been fully and fairly litigated in the court which rendered the original judgment.Godinet v. Godinet (Mem.), 11 A.S.R.2d 156.

Court may modify a foreign alimony judgment, at least with respect to those portions of the judgment that have already come due, notwithstanding the entitlement of the foreign judgment to full faith and credit.Godinet v. Godinet (Mem.), 11 A.S.R.2d 156.

Uniform Enforcement of Foreign Judgments Act applies only to foreign judgments entitled to “full faith and credit” in American Samoa, but the Act does not define such judgments.A.S.C.A. § 43.1702.In re Petition of Puailoa, 13 A.S.R.2d 22.

Judgments of the courts of foreign nations are not entitled to full faith and credit in courts of the United States.U.S. Const. Art. IV, § 1; A.S.C.A. § 43.1702.In re Petition of Puailoa, 13 A.S.R.2d 22.

Judgments of the courts of foreign nations may be recognized in American Samoa under the doctrine of comity, by which a nation recognizes in its territory the legal acts of another nation with due regard both to international duty and convenience and to the rights of persons protected by its laws.In re Petition of Puailoa, 13 A.S.R.2d 22.

Recognition of any particular judgment of a foreign court depends on wide ranging local policy considerations, including whether the foreign proceeding comports with due process requirements.In re Petition of Puailoa, 13 A.S.R.2d 22.

Petitions for registration of Western Samoan adoption decrees were denied where the petitions revealed nothing about the facts underlying the foreign judgments, sought a blanket declaration to the effect that Western Samoan adoption decrees were entitled to full faith and credit in American Samoa, and were conspicuously unrelated to any underlying rights at stake requiring “enforcement” in American Samoa.A.S.C.A. § 43.1701 et seq.In re Petition of Puailoa, 13 A.S.R.2d 22.

The Uniform Enforcement of Foreign Judgments Act was designed to give a foreign judgment creditor the same right to enforce his judgment in American Samoa that he would have in the State or Territory in which he obtained the judgment.A.S.C.A. § 43.1701 et seq.Huff v. Huff, 15 A.S.R.2d 83.

Where enforcement of California judgment is sought in American Samoa, party against whom enforcement is sought is entitled to the same process here that he would receive in California.A.S.C.A. § 43.1701 et seq.Huff v. Huff, 15 A.S.R.2d 83.

The High Court of American Samoa has no authority, statutory or otherwise, to order a stay of admiralty proceedings in a federal district court.Fa’atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

A foreign divorce decree was not recognized when (1) the decree was not properly authenticated, (2) the foreign jurisdiction lacked a legitimate interest in the parties’ marital status, (3) the sole purpose of seeking a divorce in a foreign court was to evade American Samoa’s laws, and (4) the divorce proceedings were ex parte and did not give reasonable notice to the defendant.Stevens v. Stevens, 21 A.S.R.2d 76.

In enforcing a foreign judgment, the High Court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action.Euta v. Etimani, 25 A.S.R.2d 54.

The High Court of American Samoa is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§ 43.1701‑09.DeStael v. Strasburg, 25 A.S.R.2d 96.

§ 13Writs

§ 13(1)—General Provisions

Appellate Division of High Court has power to issue writ of prohibition against Trial Division, following common law practice, based on statute authorizing court “to issue all writs . . . not inconsistent with law or with the rules made by the Chief Justice.”5 A.S.C. 403 (1973).Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

The writ of mandamus is meant to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief, and if the defendant owes the plaintiff a clear, indisputable, and non-discretionary duty.Lutu v. Ale, 28 A.S.R.2d 43.

Certiorari is a discretionary form of review, not one of right.Fuavai v. District Court, 2 A.S.R.3d 41 (App. Div. 1998).

§ 13(2)—Procedural Details

Standard of review in a mandamus proceeding, where respondent has apparently performed the duty that petitioner seeks to enforce, is whether that duty was performed in accordance with law.Siofele v. Shimasaki, 9 A.S.R.2d 3.

Court may exercise its discretion to deny an extraordinary writ where petitioners have unduly delayed in asserting their rights.Siofele v. Shimasaki, 9 A.S.R.2d 3.

The party seeking a writ of mandamus bears the burden of showing a clear and indisputable right to it.Mulitauaopele v. Maiava, 24 A.S.R.2d 134.

A single justice of the Appellate Division may grant or deny any request for relief, including a petition for an extraordinary writ, except to dismiss or otherwise determine an appeal or other proceeding; this decision may be reviewed by a full panel of the Appellate Division.A.C.R. 27(c).Soli Corp. v. Amerika Samoa Bank, 24 A.S.R.2d 166.

The writ of mandamus is one of a number of common-law writs referred to as extraordinary writs or extraordinary remedies.The standard for issuance does not change, regardless of what the court calls the writ.Mulitauaopele v. Maiava, 29 A.S.R.2d 116.

A party should file a writ seeking extraordinary relief, such as a writ for certiorari, in a timely fashion.If the law does not specify the time limit for filing the particular writ, the filing should occur within a reasonable time.Fuavai v. District Court, 2 A.S.R.3d 41 (App. Div. 1998).

Where rules did not provide time limit for filing a writ of certiorari to the High Court, the analogous rule for review of an agency’s decision under the Administrative Procedures Act (30 days) would be used due to the similarities between the review of an agency’s decision under the APA and the High Court’s review of a District Court’s judgment of contempt.Fuavai v. District Court, 2 A.S.R.3d 41 (App. Div. 1998).

Review under certiorari is limited to whether a judicial body acted within the scope of its authority, and does not address errors of law or fact committed by an inferior tribunal within the limits of its jurisdiction.Fuavai v. District Court, 2 A.S.R.3d 41 (App. Div. 1998).

§ 13(3)—Elements

§ 13(3)(a)—Generally

Court will grant mandamus to compel performance of a ministerial act or mandatory duty where the petitioner has a specific, well-defined legal right, respondent has a corresponding specific, well-defined duty, and there is no other adequate remedy.Siofele v. Shimasaki, 9 A.S.R.2d 3.

The extraordinary writ of mandamus will not be issued unless (1) other forms of relief are unavailable, (2) the alleged duty is clearly mandatory and not discretionary, and (3) defendant owes the duty to the plaintiff.Mulitauaopele v. Maiava, 24 A.S.R.2d 97.

The extraordinary writ of mandamus will not be issued 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.Lutu v. Ale, 28 A.S.R.2d 43.

The standard for issuing the alternative writ of mandamus is that the petitioner must make out a prima facie case for granting the peremptory writ.Porter v. Registrar of Vital Statistics, 28 A.S.R.2d 175.

Mandamus 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.

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.American Samoa Gov’t v. Adams, 29 A.S.R.2d 180.

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.Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 87 (Trial Div. 1997).

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.Adams v. Reavis, 1 A.S.R.3d 146 (Trial Div. 1997).

Where statute did not authorize, but instead prohibited, work release of inmate, writ of mandamus would not lie.Adams v. Reavis, 1 A.S.R.3d 146 (Trial Div. 1997).

§ 13(3)(b)—Plaintiff’s Specific Legal Right

Appellate Division has authority analogous to U.S. Supreme Court to insure orderly administration of justice by issuing writ of prohibition to determine Trial Division’s in rem admiralty jurisdiction.Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

A writ of mandamus is appropriate only if the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.Lutu v. Ale, 27 A.S.R.2d 138.

A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the “plain duty” and “plain right” required for the issuance of a writ of mandamus.Lutu v. Ale, 28 A.S.R.2d 43.

Where the right to view a public record is established, mandamus may compel disclosure of the record by whoever is preventing such disclosure.Lutu v. Ale, 28 A.S.R.2d 43.

A writ of mandamus will not issue to enforce rights that are common to everyone and enjoyed by the public at large.Lutu v. Ale, 28 A.S.R.2d 43.

§ 13(3)(c)—Defendant’s Indisputable Duty

Court will issue mandatory injunction compelling public official to perform purely ministerial duty involving no discretion, such as certifying election of senate candidate.Meredith v. Mola, 4 A.S.R. 773.

Court lacks power to issue writ of mandamus compelling Governor to perform duties which are partly discretionary and partly ministerial.Bottling Corporation of Samoa v. Lee, 4 A.S.R. 938.

Administrative body’s failure to act may be addressed through extraordinary writ proceedings.T.C.R.C.P. Rule 88.Siofele v. Hall, 12 A.S.R.2d 9.

Two week period without formal response from bar association to petitioner’s letter requesting reinstatement was not the sort of “failure to act” which might be remedied by extraordinary writ proceedings, especially where petitioner did not file a formal application or provide requested information to the bar association.Siofele v. Hall, 12 A.S.R.2d 9.

A writ of mandamus will not be issued if the application or interpretation of a statute is discretionary.Mulitauaopele v. Maiava, 24 A.S.R.2d 134.

A writ of mandamus is appropriate only if the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.Lutu v. Ale, 27 A.S.R.2d 138.

A writ of mandamus may not compel the reversal of a decision of a legislative leader, exercising the proper discretion of his legislative capacity, but where the required act of a legislative leader is purely ministerial, mandamus may lie to compel it.Lutu v. Ale, 28 A.S.R.2d 43.

The petitioner will fail the second prong of the test for issuing an alternative writ of mandamus unless he/she establishes that the duty of respondent is purely “ministerial.” A duty is ministerial only if it is clearly proscribed and does not involve an exercise of judgment or discretion.Porter v. Registrar of Vital Statistics, 28 A.S.R.2d 175.

Determining whether an act is discretionary is a necessary incident to determining whether the defendant has a “plain duty” to perform the act under the second criterion of the three-part test.Mulitauaopele v. Maiava, 29 A.S.R.2d 116.

§ 13(3)(d)—Other Avenues of Relief Exhausted

Where statute provided for appeal to board of registration from a denial of voter registration by election officer, and for judicial review of an adverse decision of the board of registration, court would not issue writ of mandamus to election officer ordering him to register prospective voter who had not appealed to board of registration.A.S.C.A. §§ 6.0224, 6.0230.Siofele v. Shimasaki, 8 A.S.R.2d 81.

A prerequisite to granting a writ of mandamus is the absence of other adequate relief.American Samoa Government v. District Court, 10 A.S.R. 2d 18.

Where statutory right of appeal from alleged errors of law by district court provided government with an adequate remedy, government’s petition to High Court for writ of mandamus should be denied.A.S.C.A. § 46.2405.American Samoa Government v. District Court, 10 A.S.R. 2d 18.

The extraordinary writ of mandamus is only available if other forms of relief are unavailable.Soli Corp. v. Amerika Samoa Bank, 24 A.S.R.2d 166.

§ 14Garnishment

SEE SECURED TRANSACTIONS § 7 – GARNISHMENT OF FUNDS

Where owner of mortgaged property retained the right to use and possession of the property until default, and where there was no evidence of default on the debt secured by the mortgage, garnishment by unsecured judgment creditor of rents derived from the property did not interfere with the rights of the mortgagee. A.S.C.A. § 37.1005.Landrigan v. Opelle, 5 A.S.R. 2d 155.

Where evidence established that debtor retained most of the proceeds of property given to secure obligation to creditor rather than using the proceeds to repay the obligation, garnishment of those proceeds to satisfy debt to a third party judgment creditor would not interfere with the rights of the secured creditor.Landrigan v. Opelle, 5 A.S.R. 2d 155.

A garnishee who fails to appear in response to a writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of plaintiff’s demand.A.S.C.A. § 43.1806(c).Amerika Samoa Bank v. Haleck, 6 A.S.R. 2d 54.

Garnishee who fails to appear in response to a writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of the plaintiff’s demand.A.S.C.A. § 43.1806(c).Development Bank v. Savusa (Mem.), 11 A.S.R.2d 46.

In order to rebut the statutory presumption of indebtedness by a garnishee, the garnishee not only must show that he is not in fact indebted to plaintiff in the amount in question, but also must give sufficient excuse for not having appeared or answered the interrogatories.A.S.C.A. § 43.1806(c).Development Bank v. Savusa (Mem.), 11 A.S.R.2d 46.

Where a garnishee does not give sufficient excuse for not having appeared or answered interrogatories, it is within the Court’s discretion to hold him liable for the whole amount of the judgment debt.A.S.C.A. § 43.1806(c).Development Bank v. Savusa (Mem.), 11 A.S.R.2d 46.

Garnishee who was evasive and dishonest, in an apparent attempt to assist the judgment debtors in avoiding payment, would be held liable for the whole amount of the judgment debt.A.S.C.A. § 43.1806(c).Development Bank v. Savusa (Mem.), 11 A.S.R.2d 46.

It is generally unlawful to garnish more than 25% of an individual’s disposable earnings, or to deduct earnings unless the employee has agreed in writing.15 U.S.C. § 1673; A.S.C.A. § 32.0333.Sa’aga v. Sa’aga, 20 A.S.R.2d 18.

An application for an order directing the Government of American Samoato show cause why it should not be held liable for a judgment remains unsupported if it is not accompanied by evidence that the Governor has given prior approval to the garnishment of the Government pursuant to A.S.C.A. § 43.1803(b).Development Bank of American Samoa v. Mau, 25 A.S.R.2d 17.

Judgment may not be rendered against garnishee who has not been notified of controversion pleading and of time and place of trial.Coffelt v. Pacific Rim Consulting & Inspecting Corp., 5 A.S.R.3d 168 (Trial Div. 2001).

Judgment may not be entered against garnishee until principal debtor defendant on underlying debt has been given seven days’ written notice of controversion proceeding and trial date.Coffelt v. Pacific Rim Consulting & Inspecting Corp., 5 A.S.R.3d 168 (Trial Div. 2001).

Where Court found principal defendant controlled garnishee as his alter ego, based on organizational and operational history of corporate garnishee, and principal defendant’s general authority to handle affairs of purported sole owner and operator of garnishee, service of controversion pleading and notice of trial on principal defendant satisfied requirement of notification to garnishee.Coffelt v. Pacific Rim Consulting & Inspecting Corp., 5 A.S.R.3d 168 (Trial Div. 2001).

Where Judgment creditor failed to prove by preponderance of evidence that garnishee was indebted to principal defendant or had any of principal defendant’s property at time writ of garnishment was served on garnishee, Court properly dismissed judgment creditor’s controversion proceeding and terminated his garnishment proceeding.Coffelt v. Pacific Rim Consulting & Inspecting Corp., 5 A.S.R.3d 168 (Trial Div. 2001).

§ 15Alternative Dispute Resolution

§ 15(1)—Mediation

RESERVED

§ 15(2)— Voluntary Arbitration

RESERVED

§ 15(3)— Compulsory Arbitration

RESERVED

§ 15(4)—Condemnation Proceedings

SEE REAL PROPERTY § 1(3) —Eminent Domain

A.S.C.A. § 43.1011 does not provide a clear standard of review of arbitrated condemnation proceedings.American Samoa Gov’tv. .Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

§ 15(5)—Appeal of Arbitrator’s Decision

A.S.C.A. § 43.1011 does not provide a clear standard of review of arbitrated condemnation proceedings.American Samoa Gov’tv. .Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

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.American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

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.American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

A.S.C.A. § 43.1010 requires that the arbitration award contain findings or conclusions of the panel; reflecting how the award was determined. American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

Where an award does not contain specific, written findings or conclusions of the panel, but merely arrives at amount, the award should be remanded.American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

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