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https://www.courtlistener.com/api/rest/v3/opinions/8484885/ | DECISION
The name FAIIVAE is a name of high rank in the Western District, and particularly in the village of Leone. The *232last holder of the name, FAIIVAE Pauna, died during the month of June of this year, and after his death a number of meetings were held by members of his family in the attempt to decide upon the succession to this honorable title.
At one of the meetings of the family, according to the allegations of plaintiffs, the name FAIIVAE was divided, and four persons were elected or agreed upon to hold the name — that is, the name which had been previously held by one person, FAIIVAE Pauna, should be held by four individuals, making a total of four FAIIVAES in the village of Leone — FAIIVAE Tupua, FAIIVAE Fautanu, FAIIVAE Sipai and FAIIVAE Aumavae.
This allegation is controverted by the defendant Aumavae. According to defendant’s evidence, no definite settlement was reached at the meeting, and the four persons mentioned were considered merely as candidates for the title.
A resolution to confer a title upon four persons is a most unusual proceeding. There are instances in the history of the Faiivae family where the name has been held for a limited period contemporaneously by two persons, but the division of a name, so as to be held at the same time by four persons, would be analogous to dividing the crown of a monarchy between four persons upon the death of a King —a condition certain to bring about anarchy and civil war.
The Court is convinced that no definite settlement was arrived at, as alleged by the plaintiffs, but that the meeting adjourned without deciding the matter.
Subsequently a meeting was held at which Satele of Vailoa and other chiefs, constituting the so-called “Seetalaluma” of the family, and some other members of the FAIIVAE family attended. At this meeting the family decided that the wishes of the late FAIIVAE Pauna should be carried out, and that his brother, Aumavae, the defendant, should succeed to the name.
*233The testamentary desires of the late FAIIVAE regarding the succession ,to the name had been formally expressed by him to His Excellency, the Governor, during his last sickness. For some unknown reason, very little consideration was given to the wishes of the deceased chief at the various preliminary meetings of the family. Plaintiffs urged that the late FAIIVAE had no power to name or to nominate a successor, but the proofs offered fail to convince the Court that the deceased chief had no voice in the naming of his successor. Leoso, the principal witness for the plaintiffs, testified that the late chief had been allowed to take the name and to retain the name upon condition that he would have no right to name a successor. This testimony has not been corroborated and lacks probability. There is no testimony to show that FAIIVAE Pauna ever accepted such a condition. On the other hand, FAIIVAE Ioane held the name during his lifetime and passed it down to his brother Pauna, the late chief.
The case at bar resembles somewhat the case of Lata v. Taatai, tried in the High Court in 1904, in which the Court said:—
“No less than six persons each claimed to have the absolute separate right to nominate and appoint the ‘Gaoteote’. This sole control claimed by individuals is an anomaly. They cannot exercise it, nor can they enforce obedience to their will except through superior force of arms.”
The law regarding succession is thus stated by the High Court in the case of Matautia Laifa v. Matautia Tautanu, 1 A.S.R. 226 (1910)
“The law regarding succession to titles in Samoa as laid down by this Court in the case of Lata v. Taatai regarding the name ‘Gaoteote’ (1904) recognizes the right of the holder of that title to nominate, and the right of the family to confirm the title of the successor. We follow that decision in this case with the additional principle that the holder of a title on his deathbed has a presumptive right to nominate his successor, subject to his family’s confirmation, *234and the burden of proof is upon the party seeking to prove that his title to the name ceases wholly with his death.”
In the case of Vili v. Faiivae, tried in 1907, the Court held:—
“The Plaintiffs have raised the question of the right of the sons of Matthew Hunkin, whose wife is alleged to have been a member of the FAIIVAE family, to the title. As to whether they have a right through their mother to the name “FAIIVAE” or not, is of little consequence. It is sufficient that both Ioane and the present FAIIVAE have held the position of head of the family, and have been recognized as the chief FAIIVAE for many years.”
In general, it may be said that a chief may express his wishes as to his successor, and that upon his death, his family will deliberate, taking into due consideration the wishes of the deceased chief. In the opinion of this Court, the written testamentary desires of the deceased chief should be given a large measure of consideration, in fact, they should form the basis of deliberation. The family meeting to decide upon the matter is a most useful and beneficial institution, as a deceased chief might express a preference for some one, who, through lack of citizenship, or by reason of a prison record, or of mental deficiency, would be unworthy of the name. The deliberations of the family meeting tend towards the ultimate naming of a person who would not disgrace the family name and serves to maintain a high standard of chieftainship.
It must be understood, therefore, that in the eyes of the law, a chief holding a high name is presumed to possess all the usual and incident rights in connection with the name, until the contrary is shown by positive evidence. The attempt of Leoso to show that the late FAIIVAE did not possess these usual and incident rights was signally unsuccessful. The evidence consisted of his own statement, which was flatly denied by the defendant’s evidence. To secure an even administration of justice it is essential that *235the truth shall be ascertained as nearly as may be, and to this end the burden of proof must be placed in this case upon those who claim that things were not what they seemed. In many cases, possession has been held to be presumptive proof of ownership until positively rebutted.
The Court is satisfied that the witnesses on both sides testified in reckless disregard of the truth, and such uncertain testimony may always be expected when a people depend upon their version of verbal statements to carry weight in a court of law twenty or more years after their utterance. In the year 1676, the people of England realized that there could be no truth and consequently little justice if such conditions were allowed to prevail, and a law was enacted entitled: “An Act for the Prevention of Frauds and Perjuries.” (St. 29, Car. II, c. 3.) The chief object of this law was to prevent the facility to frauds and the temptation to perjury offered by the enforcement of obligations depending for their evidence upon the unassisted memory of witnesses. One of the clauses of this statute renders void agreements not to be performed within one year. One eminent Chief Justice said “The design of this statute was not to trust the memory of witnesses beyond one year.”
While the provisions of this statute are not applicable to the case at bar, this Court must consider the vast amount of fraud and perjury which would be fostered and encouraged by a divergence from these principles. In this case, we have one writing which is reliable and authentic — the expression of the desires of FAIIVAE Pauna in his last illness. We have the fact of his control and possession of the name for a long period of years, and the additional fact that prior to Pauna’s succession, his older brother loane (also the brother of defendant) held the name. Upon the retirement of FAIIVAE Sipai all parties finally acquiesced in the possession of the name by the Vaiapuaa branch of *236the family, and the Court has no warrant for disturbing this possession upon the evidence produced by plaintiffs.
There would be no certainty to the succession of any of the high ranking titles, were claimants allowed to come in from all parts of the island, state a genealogical story of descent from one of the heads of the family in olden days, and claim a right to hold the name even though it might be necessary to divide it into four parts, or between six persons, as claimed in the case of Lata v. Taatai, mentioned above. In the course of the next generation, we might find the four or six multiplied to sixteen or twenty-four, or perhaps thirty-six.
The defendant, Aumavae, was undoubtedly nominated by the late FAIIVAE Fauna. A number of meetings were held, but the wishes of the late chief seem to have been disregarded until the meeting at which defendant was named FAIIVAE. In the opinion of the Court, this was a representative gathering. All of the relatives of the family were, of course, not present. It is apparent that it would be quite impossible to assemble all of the relatives, gathering them from all of the ramifications that have spread probably throughout the entire Samoan group since the time of the original FAIIVAE. The Court is satisfied that the Samoan naming ceremony was properly carried out at the meeting where Aumavae, the defendant, was named, and that the wishes of the deceased chief were given the consideration at this meeting that they deserved; and further that the action of this meeting at which but one candidate was decided upon is the only action which can be recognized by the Court.
The Court therefore holds that Aumavae was duly chosen as the FAIIVAE to succeed his brother, FAIIVAE Pauna, pursuant to the wishes of the deceased chief. Let a certificate of title issue accordingly.
*237In view of the great mass of irrelevant and uncertain testimony presented by plaintiffs as well as defendants, the costs, — assessed at $125.00 — will be divided equally between plaintiffs and defendant — $62.50 to be paid by each side. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484886/ | DECISION
The ancient and respected title of LUTALI in the village of Aunuu has been the subject of bitter controversy since the death of the last incumbent, LUTALI Taimea in 1908, resulting in this trial.
Pola and Motoi, plaintiffs herein, claimed the right to nominate the next LUTALI as members of the Lauvao family and pursuant to the verbal will of LUTALI Taimoa, deceased, desired to confer the name upon the son and heir of the deceased chief, one Totuga of Aunuu. Taofi, defendant, disputed this claim, insisting that for many years the Taofi had sole and exclusive control of the succession to the name LUTALI, even to the exclusion of a lineal male de*238scendant. Defendant Taofi even made preparations for the formal naming of his own son Fatu to the name in the face of objections from the other members of the family. A few days before the trial of this case, Utu and Pepa of Amouli filed a claim to the right to name a successor to the name LUTALI, denying both the claim of Pola and Motoi, plaintiffs, and the claim of Taofi, defendant, and likewise claiming exclusive control over the succession. Utu and Pepa were permitted to intervene in order that all claims to the name might be settled in one trial, and the case resolved itself into a triangular controversy between the three opposing sides; Pola and Motoi representing Totuga, son of the deceased chief; Taofi, representing Fatu, his own son; and Utu and Pepa, claiming the right to name without designating their choice.
The three sides presented to the Court their statements of the genealogy of the successive LUTALIS from far back in the distant past up to the time of the deceased chief. These genealogies differed in some essentials, but in many instances corroborated each other. This Court therefore accepted as the genealogy of the family such evidence as was corroborated by either or both of the opposing parties.
From the genealogy accepted by this Court, it is apparent that the late chief LUTALI Taimoa was the son of LUTALI Malulu, the son of LUTALI Leaituolevainuu who in turn was a son of LUTALI Alii. This Court rejects the evidence given as to genealogy prior to the time of LU-TALI Alii, as the traditions appear contradictory and confused, involving ghost stories and fantastic tales of the origin of the name, which may pass current around the fireside of the family, but cannot be seriously considered in a court of law. There have been, in addition a half dozen persons, other than those mentioned, who have borne the name, but who were either adopted sons or were more distantly related.
*239Defendant Taofi claims that LUTALI Alii named his own son LUTALI, but afterwards transferred the entire control of the name to the Taofi family. This statement appeared somewhat unusual to the Court, and defendants attempted to explain it by stating that LUTALI had gone to Manua, leaving a vacancy in the title. Taofi asserts that his family had exercised this control at the naming of each successive LUTALI down to the deceased chief, LUTALI Taimoa. Defendant is very positive in his testimony upon this point. He gives the name of each LUTALI since LU-TALI Alii, and the contemporary Taofi who conferred the name. However, no Taofi ever held the LUTALI and it will be noted that the name has not passed out of the control of the true descendants of LUTALI Alii, as the present Taofi proposed to do with it. The true descendants of LUTALI Alii have ultimately come into their inheritance, although at times adopted sons and other relatives have held the name. Taofi’s claim of absolute and entire control cannot be entertained by this Court. It is vigorously repudiated by both of the other sides, and is of such a nature as would require the clearest and most indubitable proof to sustain. In considering the arbitrary and illogical conduct of Taofi and his testimony upon the witness stand, the Court will state in passing that Taofi’s claim seems to have been based upon an arbitrary assumption of right by the Taofi family.
The Court has been fortunate in having before it the testimony of Taofi, Utu and of LUTALI Taimoa, deceased, upon the subject of the name LUTALI, as given in the case Utu et al. v. Taofi et al. (H.C. No. 6-1903) from which it was enabled to compare the statements of the witnesses in this trial with their testimony in the former trial. The testimony of Lutali Taimoa was of especial value to the Court. There was no testimony whatever in that case, showing that Taimoa held merely a life-interest in the name LUTALI, or that he was unable to pass it down to his lineal descendants.
*240Upon a consideration of the claim of Utu and Pepa, there is little evidence to sustain it. For many years, Utu, an Amouli chief, has claimed an interest in the name Lutali, and at one time, the Utu family actually named one Tui to the name of LUTALI. Tui was not recognized in the island of Aunuu and it seems that he was driven to the mainland village of Amouli, where he soon discontinued using the name of LUTALI. Presumably, the name LUTALI was about as important in Amouli as the name Mauga would be in the Gilbert Islands. Aside from this incident, Utu had nothing tangible to offer to the Court. His testimony was, however, valuable in so far as it corroborated or rebutted the traditions presented by the other two sides.
All of the testimony presented was open to the objection that it was given by interested witnesses. The only witnesses called were the parties themselves, Pola, Motoi, Taofi and Utu. In each instance, their bias was most apparent, and each witness seemed more anxious to prevail than to adhere to the truth, the whole truth and nothing but the truth. Notwithstanding, there was one salient fact, admitted by all parties, i.e., that LUTALI Taimea left a male heir of suitable age, to wit, his son Totuga. Even the plaintiffs Pola and Motoi exerted their energies in the endeavor to convince the Court that the right to name a successor was a prerogative of the Lauvao family, instead of asserting Totuga’s right to succeed to his father’s name.
In deciding this case, let it be understood that the Court does not recognize any superior right of the Lauvao family. If the Taofi family had presented the name of Totuga as their candidate in opposition to another candidate named by the Lauvao family, the Taofi family would prevail to the extent .that the Lauvao family has in this case.
Let a certificate issue, declaring Totuga to be the rightful holder of the name LUTALI:—
Costs, $60.00 will be divided equally between the parties. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484887/ | DECISION
The plaintiffs in this case are chiefs of the Villages of Pavaiai, Malaeloa and Faleniu in the Western District, and the defendant is a chief of Leone in the same District. The lands in dispute, OLOVALU, LEFISO and FANE-ATA are located in the County of Tualatai, and not far distant from the villages of Pavaiai, Malaeloa and Faleniu. The lands adjoin each other and it is claimed on behalf of the defendant that OLOVALU is the general name for the three pieces.
In the year 1907, the defendant, Uo Sopoaga surveyed the property, whereupon the plaintiffs brought this action denying the claim of the defendant to any of the property.
Upon the trial, plaintiffs showed a long train of ancestry reaching far back to a man known as “Olo” who lived on the land with his wife “Valu” whence the name of the settlement was derived. The testimony of the plaintiffs showed that they have continually used and cultivated the land since the time of “Olo” to the present day, and that they *242have cut their tax copra from the land since the beginning of the present Government.
Defendant, Uo Sopoaga, claims the land as a member of the Ilaoa and Tuiloua families, and traces back this claim to one Leutele, a chief of Atua District in Upolu. The testimony is far from clear as to the time that Leutele controlled or is alleged to have controlled this land, but it was prior to the advent of Christianity to the Samoan Island in the early part of the nineteenth century. According to the tradition presented by defendant, Leutele authorized his son Taatofa, to take possession of the land in dispute, and Taatofa came to Tutuila and lived upon the land by virtue of the authority of the Upolu Chief, Leutele. The defendant claims that he and his family are the direct descendants of Taatofa, and that they used the land, and at times occupied it, until the beginning of the present Government, when their claims were disputed by the plaintiffs.
The testimony of Naomi, an aged witness on behalf of defendant, showed that she had made use of the land many years ago, but that she had left the land on a journey to some islands to the west, and when she returned to Tutuila did not again go upon the land or make any further use of it.
Tuiloua, another witness for defendant, testified that he had used the land by cultivating a taro plantation on the eastern side at the time he married into a Pavaiai family, and while he was living in the family of Galoia, one of the plaintiffs. Tuiloua also left the property and has made no practical use of it since that time.
The testimony also showed that at one time the defendant and his ancestors used the land for the purpose of making oil from candle-nut trees. It is also claimed that defendant occasionally brought cocóanuts and bananas from the land to his home in Leone. Defendant was unable to fix the various times when the property has been used by his fam*243ily. He admitted that there were no candle-nut trees on the land at present, and that he could not show any cocoanut trees on the land which had been planted by defendant or his family. Both plaintiffs and defendant claim there are graves of their ancestors on the property, but the graves of plaintiffs’ ancestors have been kept in order, while the graves of defendant’s ancestors have been neglected.
It is evident that if defendant and his family did use the land as claimed, it was so many years ago that whatever title he may have derived from the Upolu chief has been long extinguished by defendant’s abandonment of the property, and by the actual, continued, visible, notorious, distinct and hostile possession of plaintiffs under color of title by descent from Olo and Valu.
Let decree therefore issue vesting the title of the lands in dispute in plaintiffs. The plaintiffs are advised to re-survey the property and present a proper plan showing the lands of each plaintiff to this Court for confirmation.
Costs are assessed at $60.00, $30.00 to be paid by defendant and $30.00 to be paid by plaintiffs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484888/ | *244DECISION
The original complaint in this case involved two pieces of land, Leagaoso and Tia. The defendant disclaimed ownership of the land Tia at the beginning of the trial, and the complaint was amended by striking out that part that referred to the land Tia. Upon an investigation by the Court, it developed that only a small portion of the land called Leagaoso was in dispute, and the case was finally resolved into a boundary dispute.
The testimony was not clear on either side, and it was impossible for the Court to secure accurately the dates of the important events which would cast light upon the possession and use of the disputed strip of land. However, it was shown that Atina, a member of plaintiff’s family, had built a house upon the land during the year that Mataafa returned to Apia from his exile in the Marshall Islands (1898). The testimony of deft, also showed that this house was erected contrary to defendant’s wishes and in the face of his protests. About two or three years ago, Atina’s house was removed, and shortly thereafter, the defendant surveyed the land and ran his western boundary line through the house site of Atina, whereupon plaintiff brought his suit.
The defendant, Tuiteleleapaga, also extended the stone paving outside his own house, so that it overlapped the stones marking the house site of Atina.
Upon the conclusion of the taking of testimony, it was found necessary to adjourn the case until the land could be inspected and resurveyed, and measurements taken of the disputed land. The Senior Member of the Court visited the property and ascertained that the western boundary of the land shown on the plan of Tuiteleleapaga ran through the house site of Atina twelve links from the western extremity of the house site, and that the stone paving outside the new *245house of Tuiteleleapaga overlapped the house site of Atina a distance of about two links.
The possession.of plaintiff and the members of his family to the land in dispute was open, notorious, actual, continued distinct and hostile and under title from his ancestors for a period of years in excess of the limitation recognized by this Court up to the time of filing the complaint in the case.
The Court finds that the proper boundary line lies immediately to the eastward of the house site of Atina and parallel to the westerly boundary shown on the plan of Tuiteleleapaga.
Let a decree, therefore, issue vesting title in the plaintiff to that section of the land shown on the plan of defendant fronting on the main road for a distance of twenty-nine links from the western boundary of said land.
Plaintiff is advised to survey the land claimed by him, including the above strip, and to present it to the Court for confirmation.
Costs are assessed at Forty Dollars. Inasmuch as plaintiff failed to prepare his case properly and has caused the Court unnecessary trouble and expense in ascertaining the facts the costs will be divided as follows, Plaintiff to pay costs of Fifteen Dollars, and Defendant to pay costs of Twenty-five Dollars. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484898/ | DECISION
The plaintiff in this case claims ownership of four pieces of land known as MAIA, LOTOPA, AFAGA and LEONEULI, situated in the county of Fitiuta. The defendant Togia opposes the claim of Tupuola and asserts that Togia and his ancestors have owned the four pieces of land for many years; that the plaintiff, his relatives and ancestors have been allowed to use the four pieces of land by the permission of Togia and his ancestors, but that Tupuola has wrongfully asserted ownership of the lands in dispute.
The evidence presented by each side shows many discrepancies and contradictions. It is admitted by Togia,that the ancestors of Tupuola have been buried on some of the lands, and Togia has attempted to explain this proof of ownership by asserting that Togia’s ancestor ordered Tupuola’s ancestors to be interred in the land of Togia. Togia testified that he returned to Manua in 1893 after an absence of four years in the Malua School, Upolu Island, and Tupuola’s relatives were then using the land; that they continued to use the lands for a period of twelve years, two years longer than is required by the law of adverse posses*271sion, until 1905- when Togia attempted to expel them from the land.
The testimony of Togia in his own behalf was, on the whole, weak and unconvincing. However the evidence regarding the transfer of a portion of the land LOTOPA by Togia to Taua places that piece of land in a different class from the other pieces of land, viz., MAIA, AFAGA and LEONEULI.
This transfer was admitted by Tupuola and he likewise admitted that Togia was the person who made the transfer to Taua of a portion of the land LOTOPA. In the opinion of the Court this proof of ownership establishes Togia’s title to the land LOTOPA.
Upon consideration of the evidence the court finds that the plaintiff Tupuola is the owner of the following three pieces of land, MAIA, AFAGA and LEONEULI, and that Togia is the owner of the land LOTOPA.
Let a decree issue accordingly.
Costs of court $35.00 will be assessed against both parties in equal shares, $17.50 to be paid by Tupuola and $17.50 to be paid by Togia. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484893/ | DECISION
Alo Feso, the above plaintiff, was formerly a resident of the village of Afao, in the Western District, where the land in controversy “ATAFU” is situated. He is now a resident of the village of Fagasa, having removed with his family from Afao about the time of the establishment of the present Government. Vae, the defendant, is a chief of the village of Afao. According to his testimony, he was born in Upolu, but came to Afao when a young man, and married the daughter of his predecessor in the title of Vae.
The land “ATAFU” is claimed by both parties, and the boundaries of the land, as given in the complaint, are admitted by the defendant, Vae.
According to the testimony of plaintiff and that of Letua, an Afao chief, and one of the adjoining property owners, the land was in the possession and use of Alo Taisi, deceased, the predecessor and brother of the present plaintiff, for a long period of years, prior to the establishment of this Government, having descended to Alo Taisi from one *256Samatua Vailuu. The evidence showed that Vae, the defendant, entered upon the land after the establishment of the present Government, and made extensive cultivations upon it — cocoanuts, bananas, taro, kava and arrowroot. During the time that Vae was planting the land the plaintiff and his predecessor were not living at Afao. Some testimony has been offered to show that they had agents at Afao, who cut copra from the land. The plaintiff failed to produce any of these agents to corroborate the testimony upon this point. It is clear, however, that since the entry of Vae upon the land, Vae has consistently treated the land as his own, and neither the plaintiff nor Alo Taisi took the proper steps to resist Vae’s claims. About the year 1909, Alo Taisi instituted an action against Vae in the District Court, under Regulation No. 7-1907, a Regulation Concerning Claims to Land in Tutuila and Manua and Trespasses Thereon. The complaint was dismissed because it was evident that Alo Taisi had not been “in the possession of” the land ATAFU, and had not been “using the fruits thereof openly and notoriously” for a period of more than one year prior to the enactment of the Regulation— July 27th, 1907. Alo Taisi was aware of Vae’s claims and cultivations on the land and should have filed his complaint in due season, in the High Court.
In the year 1911, Alo Taisi died, and shortly thereafter his successor, the present plaintiff, filed his complaint.
The defendant Vae testified that he first entered upon the land in the year 1901, and began to plant it. Vae claimed that he had been informed by his predecessor that the land was the property of the name Vae, and that there had been a taro patch on the land many years ago, presumed to have been planted by the ancestors of Vae. Vae admitted that there were some cocoanut trees on the land at the time of his entry, but that he did not know who planted them. The defendant proceeded to cultivate the *257land with great energy and resisted Alo Taisi’s claims and objections. There is little evidence in the testimony of Vae and his one witness, Maugaotega of Asili, to substantiate Vae’s claim of ownership. Neither his extensive plantations, nor the dismissal of Alo’s complaint under the Trespass Regulation affected the legal title to the land.
After both parties had rested their cases, it was considered necessary that a visit should be made to the land by the Court, accompanied by both parties to the suit. When the Court arrived in the village of Afao, a session of the High Court was held in that village, and the Pulenuu, Fuamatu, who is the leading chief of the village and an adjoining property-owner, was called by the Court as a witness. His testimony corroborated that of the plaintiff and Letua.
The Court then proceeded to inspect the land “ATAFU” which is situated over one-half mile inland of the village. There are no houses on the land, but it is very well planted with cocoanuts and bananas, and there are a few kava and arrowroot plants, which Alo admitted were planted by Vae the defendant. There are only about a dozen tall cocoanut trees on the land, but a large number of young cocoanut trees. It was evident to the Court, both from the testimony and the appearance of the land, that prior to 1901, the land had been very sparsely planted, and of little value. The tall cocoanuts had been planted long before the year 1901, while the young cocoanuts, bananas, kava, taro and arrowroot plants had undoubtedly been planted during the last few years.
The preponderance of evidence has established the fact that the predecessor of the present plaintiff, i.e., Alo Taisi, was the owner of the land at the time that Vae entered upon the land and planted it. It is likely that Vae acted in good faith in entering upon the land, and that Vae actually believed that the property ATAFU belonged to the *258name Vae. The improvements placed by Vae upon the land may have been made with the belief that he was planting his own property. For the purpose of this case, however, it is sufficient for the Court to consider that Alo Taisi, predecessor of the present plaintiff, was the owner of the land when Vae entered upon it, and his right of ownership has not been lost by any acts of the defendant Vae in clearing and planting the land, nor by the dismissal of Alo’s complaint under the Trespass Regulation.
It therefore devolves upon this Court to decide that the title to the land in dispute is vested in the plaintiff, Alo Feso.
This Court will render no decision regarding the cultivations of Vae upon the land, for the reason that this matter was not placed in issue in the pleadings, nor was this matter brought to the attention of the Court until after all the testimony had been taken, when the property was inspected by the Court. In view of the apparent ignorance of the defendant, Vae, the Court will state, en passant, that although the legal title to the property is by this decision vested in Alo Feso, still, in the opinion of this Court, an equitable claim by Vae for improvements made upon the property might be enforced.
The Court will quote from the Cyclopedia of Law and Procedure, Volume 22, on the subject of improvements upon the property of another:—
Page 11. By the rigid rule of the common law, on the principle that a person is under no obligation to pay for unauthorized improvements, made upon his land, one making such improvements without the owner’s knowledge or consent was not entitled to compensation therefor even though he acted under a bona fide belief of ownership.
Page 13. In many jurisdictions, statutes generally known as “betterment acts” or “occupying claimant laws” have been passed enlarging the rights of bona fide possessors with respect to improvements. It is generally the object of these laws to recognize the exist*259ence of the equitable right to compensation for improvements and to give a legal remedy for its enforcement where none existed before, and it has been held that as they are in derogation of the common law, they must be strictly construed and remedy provided thereby strictly followed. These laws generally follow the civil law rule and compel the owner of the land to pay to the bona fide occupant the amount due for improvements over and above the value of rents and profits during the period of occupancy, as a condition to the recovery of or entry on the land.
The parties are therefore advised to consider the question of compensation to Vae for his cultivations, and should arrange to visit the land together to count and estimate the value of the young cocoanuts and other cultivations of Vae, and if possible, they should enter into a written agreement regarding the compensation to be paid by Alo Feso to Vae.
If it should be impossible for the parties themselves to settle this matter amicably between them, recourse might be had to arbitration, that is to say, some person should be appointed by Vae to represent him, and Alo should appoint some person to act for him. Then, after a written agreement has been made by Alo and Vae to abide by the result of the arbitration, the two persons so appointed should meet together and select some third person. The three persons, acting as a board of arbitration, under the written agreement, should proceed to the land and estimate the value of Vae’s improvements, and the amount found by the majority of the Board to be due to Vae should then be paid by Alo, in accordance with the agreement. If a written agreement to arbitrate is entered into, and the two representatives of the opposing parties are unable to choose a third person, the representatives might request the President of the High Court to appoint the third arbitrator.
If no agreement can be arrived at, by arbitration or otherwise, Vae should file a complaint in the High Court and this tribunal will then consider the question of the *260right of Yae for compensation for improvements and the value of the improvements.
The final decree in this case will not be issued until six months after the date of the rendering of this decision. This will allow ample time for the parties to conclude their negotiations, or for the judicial determination of any equitable claim Vae may have for his improvements on the land.
The costs of this action, $75.00, will be borne by both parties, in equal shares. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484894/ | DECISION
Fauolo-Sila, a chief of Poloa in the Western District instituted this action in the High Court to determine the ownership of a number of pieces of land situated near Poloa. Upon the preliminary examination by the Court, the *261defendant disclaimed any knowledge of or claim to the sections of land called LALOMAFA and AGAPIOPIO in the complaint. It is possible that these sections may actually be in dispute between the parties, but as the defendant insisted that she had no claim to any lands called by the above names, the Court was obliged to strike these names from the complaint, and to proceed with the determination of the ownership of the eight pieces of land: LUMAUTU, PUGAPUGA, SOLOTAI (also called Masinauina), FETAI, LEPANO, SOLOTAO (also called Solouta), FAGAONE and TIALAA.
The plaintiff Fauolo-Sila has held the name Fauolo but a short time, but he produced witnesses to show that his predecessors in the name Fauolo have used and cultivated the above lands for a long period of years; that the above lands have always been the lands of the name Fauolo. The defendant claims ownership of the lands as a descendant of the name Taifane, one of the high chiefs of Poloa. Defendant claims that the lands in dispute are the lands of the name Taifane, and that the name Fauolo has no right or claim whatsoever to the lands in dispute. Lelea, husband of defendant, testified that he once redeemed these lands from a claim of a storekeeper in Leone on behalf of his (Lelea’s) wife’s family. The evidence as to the latter point was uncertain as to details and uncorroborated.
It is admitted by both parties that Fauolo Tago (a predecessor twice removed from present plaintiff) held the lands in dispute, plaintiff claiming that he held the lands as Fauolo lands, and defendant claiming that Fauolo Tago, her brother, held the lands as Taifane lands. During Tago’s tenure of the name Fauolo, he sold a piece of land (not included in this dispute) to one Lilo. This transfer was evidently acquiesced in by the defendant’s family. In addition to his testimony as to the long period of use and cultivation of these lands by the Fauolo family, the witness Luefale*262mana testified that he succeeded Tago in the name Fauolo and that the lands in dispute passed to him; and upon his retirement from the name, the name Fauolo and the lands in dispute passed to the present plaintiff.
The evidence of defendant in support of her contention was meagre and not properly corroborated, her only witnesses being herself and her husband, while the evidence of the use and cultivation of the land by the plaintiff greatly overweighed the evidence of the defendant on this point.
The evidence given applies about equally to all the various pieces of land. Some of the sections were inspected by the Court during a visit to Poloa, and it was found that there were no houses on the lands; that none of the lands were well cultivated or thoroughly planted, and that the lands were so remote from the village that they could have been planted and the fruit might have been cropped by anyone.
The Court is of the opinion that defendant’s brother Tago held these lands as the “matai” of the Fauolo family, and that the title to the lands passed first to Fauolo Luefalemana and from him to the present plaintiff.
Let a decree therefore issue, vesting the title of the lands in dispute in the name Fauolo.
Costs are assessed at $40.00 — $30.00 to be paid by defendant and $10.00 by plaintiff. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484895/ | DECISION
This action was instituted by Taavili against Ioane and Aifano to determine the right to hold the “matai” title of Ulu of the village of Vaitogi, which was claimed by both Taavili and Ioane. Aifano died before the trial of the case and Sagale was substituted as a party defendant.
The Register of “Matais” shows that the name of Ulu Taavili was registered in 1906. Since that time, petitions have been filed requesting the registration of the names of Ulu Ioane and Ulu Siafuafu. Later Siafuafu withdrew his name and requested that Ioane be registered. The Register shows that the Secretary of Native Affairs did not comply with these requests.
From the traditional genealogy presented by Taavili, it appears that his claim is derived from the female line, extending back for many generations. There are, of course, many breaks in the line of ancestry, where strangers have held the name. It is evident, however, that Samoan custom was followed, and the descendants of strangers did not succeed to the name; but the name reverted to the true line of descent.
*264Ioane’s claim is from his father, the immediate predecessor of Ulu Taavili, but it is admitted that Ulu Ufuti, the father of Ioane, was a stranger to the name. Sagale as a distant relative of the name supported the claim of Ioane.
While Taavili has prevailed in this case, his claim that he has entire control over the disposition of the name is unfounded. The decision of this Court is that Taavili has shown a better title to the name than Ioane; but he has only the ordinary rights pertaining to the name according to the Samoan custom.
Let a decree issue vesting the title in Ulu Taavili as long as he continues to be a resident of the village of Vaitogi.
Costs are assessed at $50.00 — $25.00 to be paid by Ulu Taavili and $25.00 by Ioane and Sagale. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484896/ | DECISION
The complaint is dismissed, as to defendant Samoa Shipping and Trading Company. The plaintiff failed to take proper steps to secure the delivery of his goods in accordance with the bill of lading and unreasonably delayed the presentation of his claim to the proper party.
*265The plaintiff also failed to take requisite steps for the recovery of the value of his goods within a reasonable length of time.
The court finds, therefore, that the defendant Samoa Shipping & Trading Company has been debarred by the conduct of the plaintiff from protecting its own interests in that it the Samoa Shipping & Trading Company was unable to promptly trace the final disposition of the goods in question.
However, the action of the court is not based on the seven day limitation contained in the sixth section of .the conditions of the Bill of Lading, as the court considers this limitation would have been unreasonable in this case, if the plaintiff had acted within a reasonable time.
As to the defendant, the Island Government, no liability has been shown and the complaint is also dismissed as to said defendant.
Costs are assessed at $20.00 to be paid by plaintiff. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484897/ | *266DECISION
Fuimaono and Léota Leulua’ialii of the village of Aoloáu filed the complaint in this case against Tupo of thé village of Solosolo, Upolu, claiming ownership of the lands “Leto’i” and “Matavai” and averring that Tupo has wrongfully attempted to dispose of them to Mr. E. W. Gurr. Mr. E. W. Gurr was permitted to intervene as guardian of Fanua E. Gurr and her children in order .to protect the rights secured by Seumanutafa and Fanua in High Court Case No. 5, 1903, which provides in the fifth paragraph of the decree of May 9th, 1903:—
“That Loa, Moi, Faletogo, Leutele, Fuimaono, Fuga, and Leulua’ialii, for themselves and their successors execute a quit-claim of all their joint and separate interests in said land in favor of Seumanutafa and Fanua.”
Plaintiffs claimed that the lands “Leto’i” and “Matavai” were the lands of Leota Leulua’ialii, and that Fuimaono had control of the lands of that name in Tutuila; they admit that the lands adjoin Mr. Gurr’s lands in the valley of Maloata. Defendant, Tupo, contends that he controls the lands of the name of Leota Leulua’ialii in Tutuila; he admits that the lands “Leto’i” and “Matavai” are held in the name of Leota Leulua’ialii, and admits that they adjoin other lands of Mr. Gurr in the valley of Maloata. The plaintiffs claim that the lands “Leto’i” and “Matavai” were not included in the lands in controversy in the trial of 1903, while defendant Tupo contends that the lands were included in the controversy in 1903.
The plaintiff styling himself “Leota Leulua’ialii” has no standing whatsoever in this case. The Register of “Matais” discloses the fact that he was registered as “Leota” in 1906. The distinguishing name “Leulua’ialii” seems to have been added for the purpose of this trial.
At the beginning of the trial, this Court held that the decree of May 9th, 1903, would not be changed by this *267Court. Evidence was taken by this Court to enable it to determine two doubtful points in the decree of 1903:—
1. The first paragraph of the findings of the Court in the 1903 case is as follows:—
“That Leota Leulua’ialii is the proprietor of all that portion of land claimed by the plaintiffs herein, and situated inland of a line drawn from the place called Silimosi and extending west to the place called Mataiupolu, subject to an adjustment of the boundaries of the said lands of Leulua’ialii with the proprietors of the adjoining lands.”
Plaintiffs claimed that the land “Leto’i” and “Matavai” were not included in the “land claimed by plaintiffs” Fatialofa and Isaia in the 1903 case. Defendant Tupo claimed that they were so included.
2. The fourth paragraph of the decree of 1903 provided:—
“That Leulua’ialii have judgment for the amount of the proceeds of the sale of the lands lying south of said line from Silimosi to Mataiupolu.”
and the fifth paragraph provided that Leulua’ialii should execute a quit-claim to Seumanutafa and Fanua, as quoted in the first paragraph of this decision. The plaintiffs in this case contend that Fuimaono was the Leulua’ialii mentioned, and that only Fuimaono or his assign could sign the quitclaim deed. Defendant Tupo claims that he is the person mentioned as Leulua’ialii, and that only he can sign the quit-claim deed and receive the proceeds.
As to the above points, the intervenor, Mr. E. W. Gurr, contends that the lands “Leto’i” and “Matavai” were included in the controversy of 1903; that they are part of the lands which the Court ordered to be transferred to Seumanutafa and Fanua. He further contends that Tupo is the person mentioned in the decree as Leota Leulua’ialii, and states that in pursuance of the decree, he has already paid Tupo two hundred and twenty dollars on account, which payment Tupo acknowledges.
*268This Court finds that in the trial of 1903, Fatialofa and others, the plaintiffs, claimed the entire valley of Maloata. Their claim was rejected as being “without foundation or color of title,” but the High Court in that case divided the property claimed by them into two general divisions :—
1. That portion of the land claimed by plaintiffs situated inland or south of a line drawn from the place called Silimosi and extending west to a place called Mataiupolu, which was awarded to Leota Leulua’ialii.
2. That portion of the land claimed by plaintiffs lying north or to the seaward of said line, extending .to the seashore, which was awarded to Loa, Moi, Faletogo, Leutele, Fuimaono (the present plaintiff) and Fuga.
The first division only is in dispute in this case, but the award of the Court in the second division shows that Fuimaono was present at the trial and was awarded certain interests in the seashore lands.
This Court is of the opinion that the lands “Leto’i” and “Matavai” were included in the controversy in 1903, that they were claimed by the plaintiffs Fatialofa and others in the previous trial, and that they were included in the first division of lands in the Court’s decree, awarded to Leota Leulua’ialii.
The defendant Tupo is a descendant of the original Leota Leulua’ialii of Solosolo, Upolu. At the trial in 1903, he was recognized by the Court as Leota Leulua’ialii of Solosolo. The plaintiff in this action, Fuimaono, who claims the rights of Leota Leulua’ialii was also present at the trial in 1903, and made no objection while Tupo asserted his claim as Leota Leulua’ialii. Fuimaono’s contention in this trial that Tupo was a mere figurehead, appointed secretly by Fuimaono to act as Leota Leulua’ialii is incredible in view of Tupo’s close connection with the name, and Tupo’s conduct of the case as an Upolu claimant.
*269Under the decision, Tupo was the only person .to whom Seumanutafa and Fanua could safely pay over moneys for the lands of Leota Leulua’ialii; and although Tupo has openly admitted in this trial his intention to deceive the Court in the former trial in re the birthplace of his mother, and he has been punished in this trial for contempt for attempting to give evasive answers after due warning had been given him, this Court cannot deprive him of any rights granted to him in the decree of 1903.
The Court finds that the name “Leota Leulua’ialii” or “Leulua’ialii” whenever it is used in the decree issued May 9th, 1903, refers to the defendant Tupo; that Tupo is the only person authorized to receive the money due to Leota Leulua’ialii or Leulua’ialii in that decree; and that the defendant Tupo is the only person who can legally quitclaim the property of Leota Leulua’ialii or Leulua’ialii as ordered by said decree.
The Court finds that Tupo and Mr. E. W. Gurr have been guilty of laches in delaying obedience to the decree of the High Court in 1903, and will assess each of them with a share of the costs of these proceedings.
Costs are assessed at $150.00, apportioned as follows:—
Plaintiff, Fuimaono ...................................... $50.00
Plaintiff, Leota Leulua’ialii ........................ 25.00
Defendant, Tupo ............................................ 50.00
Intervenor, E. W. Gurr, as guardian and representative.............................................. 25.00
$150.00 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484905/ | JUDGMENT
This cause coming on to be heard and being heard on the 18th day of . February, A.D., 1918, it is ordered by the Court that TOLI, the defendant in the above entitled cause, be the holder of the name PATEA for his life time or until such time as he may resign, then the name to go back to family for them to say who shall be successor to TOLI.
It is further ordered that the TEN DOLLARS paid by ULU, FAO, UFUTI and AUTA shall represent the cost in this action.
In witness whereof, I, A. Stronach, as president of the High Court have hereunto set my hand and Official Seal this the 16th day of February, A.D., 1918. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494075/ | MEMORANDUM OPINION
BERNARD MARKOVITZ, Bankruptcy Judge.
The chapter 7 trustee in these adversary actions seeks to compel an instrumentality of the Commonwealth of Pennsylvania to turn over the accounts of debtor Bonnie Tykla and debtor Robert Hampton in a deferred compensation plan (“DCP”) that the Commonwealth has established for its officers and employees. The chapter 7 trustee asserts that debtors’ DCP accounts *441are included in their respective bankruptcy estates by virtue of § 541(a) of the Bankruptcy Code. According the trustee, statutory restrictions imposed by Pennsylvania law on the transfer of debtors’ interests in their DCP accounts are not enforceable under applicable non-bankruptcy law within the meaning of § 541(c)(2) of the Bankruptcy Code.
The Commonwealth insists that the statutory restrictions imposed on the transfer of debtors’ interests in their DCP accounts are enforceable under Pennsylvania law and that their interests therein are excluded from their respective bankruptcy estates by virtue of § 541(c)(2).
We conclude that because the statutory restrictions imposed on the transfer of debtors’ interests in their DCP accounts are enforceable under Pennsylvania law, debtors’ interests in their DCP accounts are excluded from their respective bankruptcy estates in accordance with § 541(c)(2). Judgments will issue in both adversary actions in favor of the Commonwealth and against the chapter 7 trustee.
-FACTS-
Debtor Bonnie Tykla (Adversary No. 04-2430).
Debtor Bonnie Tykla has been employed as a nurse by Pennsylvania Department of Corrections since 1982 or 1983.
She filed a voluntary chapter 7 petition on August 21, 2002. A chapter 7 trustee thereafter was appointed.
The schedules accompanying the petition listed assets with a total declared value of $54,047.08 and liabilities totaling $89,223.50. Included among the assets listed was an interest in an account debtor had in a DCP established by the Commonwealth of Pennsylvania for its officers and employees.
Debtor listed the account as having a value of $1.00 and claimed that it was excluded from her bankruptcy estate by virtue of § 541(c)(2) of the Bankruptcy Code.
Debtor received a discharge on November 25, 2002. The bankruptcy case has to date not been closed.
The chapter 7 trustee subsequently commenced an adversary action against the Commonwealth, seeking to compel it to turn over to him debtor’s interest in the DCP account for distribution to her creditors. The chapter 7 trustee asserted in the complaint that debtor’s interest in the DCP was property of her bankruptcy estate and that the Commonwealth therefore was obligated to turn the funds in the account over to him. Debtor was not named as a defendant in the complaint and to date has not formally objected to the trustee’s prayer for relief as a necessary party in interest.
The Commonwealth and the chapter 7 trustee agree that this case can be decided on a case-stated basis and have stipulated as to the salient facts and submitted briefs in support of their respective positions. The matter is now ready for resolution.
Debtor Robert Hampton (Adversary No. 05-2947).
Robert Hampton also is employed by Pennsylvania Department of Corrections. The record does not indicate what his position is or how long he has been employed by Department of Corrections.
On October 9, 2002, Robert Hampton and his wife, Donna Hampton, filed a voluntary joint chapter 7 petition. The same chapter 7 trustee was appointed in this case as was appointed in the other bankruptcy case.
The schedules accompanying the petition identified assets with a total declared value of $80,890.00 and liabilities totaling *442$63,623.26. Included among the assets listed was an interest in an account debtor Robert Hampton had in a DCP the Commonwealth had ■ established for its officers and employees. Debtors asserted that Robert Hampton’s interest in the account had an “Unknown” value and claimed an exemption therein in an “Unknown” amount pursuant to § 522(d)(5) of the Bankruptcy Code.1
Shortly after debtors Robert and Donna Hampton received discharges on March 9, 2004, the chapter 7 trustee commenced an adversary action (Adversary No. 05-2947) against State Employees Retirement Board (“SERB”), an “instrumentality” of the Commonwealth of Pennsylvania, seeking to compel it to turn over to him the interest debtor Robert Hampton in his DCP account for distribution to his creditors. The chapter 7 trustee asserted that the interest of debtor Robert Hampton in his DCP account was property of his bankruptcy estate and that SERB was required to turn over the funds in the account over to him. Debtor Robert Hampton was not named in the complaint as a defendant and has filed no objection thereto.
The chapter 7 trustee and SERB agree that this adversary action also can be decided on a case-stated basis and have stipulated as to the salient facts and submitted briefs in support of their respective positions. The case is now ready for decision.
-ANALYSIS-
As compensation for their employment, debtors Tykla and Hampton also enjoy a generous salary and fringe benefits, including a partially funded employee pension plan. The trustee makes no claim to either of the above benefits of employment. Only the DCP is at issue here.
The question to be decided in both adversary actions is whether the interests of debtor Bonnie Tykla and debtor Robert Hampton in their respective DCP accounts lie within the scope of § 541(c)(2) of the Bankruptcy Code and thus are excluded from their bankruptcy estates.
Section 541 of the Bankruptcy Code provides in pertinent part as follows:
(a) The commencement of a case under ... this title creates an estate. Such an estate is comprised of the following property, wherever located and by whomever held:
(1) Except as provided in subsection ... (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case....
(c)(1) Except as provided in paragraph (2) of this subsection, an interest of the debtor in property becomes property of the estate under subsection (a)(1) ... of this section notwithstanding any provision in an agreement ... or applicable nonbankruptcy law—
(A) that restricts ... transfer of such interest by the debtor.... (2) A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.
11 U.S.C. § 541.
It is not disputed that debtors Bonnie Tykla and Robert Hampton had at least equitable interests in their respective DCP accounts for purposes of § 541(a)(1) when they filed their bankruptcy petitions.
To paraphrase § 541(c), such equitable interests become property of a debtor’s *443bankruptcy estate despite any provisions contained in an agreement or in an applicable non-bankruptcy law that restricted the transfer of that interest by the debtor. 11 U.S.C. § 541(c)(1)(a). If, however, such a restriction is imposed on a debtor’s beneficial interest in a trust and that restriction is enforceable under applicable non-bankruptcy law, the restriction is enforceable in that debtor’s bankruptcy case. 11 U.S.C. § 541(c)(2). The equitable interest in that event is not included—ie., is excluded—from the debtor’s bankruptcy estate and the chapter 7 trustee may not administer that interest for the benefit of the debtor’s creditors. In simpler terms, the equitable interest of debtor may not be used to pay creditors who in good faith provided services or goods after debtor agreed to pay. To the contrary, debtor may enjoy the benefit of the creditors’ largesse and, in addition, enjoy the DCP after all debts are discharged.
Having determined that debtors Bonnie Tykla and Robert Hampton each have at least an equitable interest in their respective DCP accounts, what remains to be determined is whether all of the requirements of § 541(c)(2) are satisfied.
Federal law, Patterson v. Shumate, 504 U.S. 753, 758, 112 S.Ct. 2242, 2246-47, 119 L.Ed.2d 519 (1992), as well as state law, Velis v. Kardanis, 949 F.2d 78, 80-81 (3d Cir.1991), may qualify as “applicable nonbankruptcy law” for purposes of § 541(c)(2).
The United States Court of Appeals for the Third Circuit has articulated the requirements of § 541(c)(2) when a debtor’s interest in an IRA is at issue. Orr v. Yuhas (In re Yuhas), 104 F.3d 612, 614 (3d Cir.1997).2
Modifying the requirements articulated in Yuhas for a debtor’s interest in a DCP, we hold that the following requirements must be satisfied for § 541(c)(2) to apply to a debtor’s interest in a DCP: (1) the DCP account is a trust; (2) the funds in the DCP account represent the debtor’s beneficial interest in the trust; (3) the DCP account qualifies under § 457 of the Internal Revenue Code for favorable tax treatment; (4) there is a statutory (or contractual) provision that restricts the transfer of the property in the trust; and (5) the provision is enforceable under non-bankruptcy law.
Characterizing the argument of the chapter 7 trustee is difficult because he has not cast it using these requirements. As we understand his position, the chapter 7 trustee denies that requirement (5) is satisfied in these cases and, as a consequence, also denies that requirement (1) is satisfied.
There are many economic advantages to participation in a DCP, but Commonwealth employees need not participate if they choose not to.
An employee’s individual DCP account is created by agreement between the employee and State Employees Retirement Board (“SERB”). The account is funded, inter alia, by amounts deducted from the employee’s payroll.
The enabling statute authorizing establishment of DCP accounts for Commonwealth officers and employees provides that all assets and income which have been or will be withheld or deferred:
... [Sjhall be held in trust in any funding vehicle permitted by section 457 of *444the Internal Revenue Code of 1986 for the exclusive benefit of the plan’s participants and their beneficiaries until such time as the funds are distributed to the participant or his beneficiary in accordance with the agreement between the participant and the State Employees Retirement Board ... All such assets and income withheld or deferred by the Commonwealth shall be held in trust ... in a special fund within the State Treasury of which the State Treasurer shall be the custodian. Such deferred compensation shall exist ... in addition to and shall not be a part of any retirement or pension system for officers and employees. (Emphasis added.)
72 Pa.C.S.A. § 4521.2(h)(1). (Purdon’s Supp.2005.)
Members of SERB, who are responsible for establishing and administering a DCP for Commonwealth officers and employees and promulgating rules and regulations for its operation, “shall be the trustees of the deferred compensation plan established for Commonwealth officers and employees”. (Emphasis added.) 72 Pa. C.S.A. § 4521.2(h)(2). (Purdon’s Supp.2005.)
The “trust” established for Commonwealth officers and employees is not a “garden-variety” trust; it is a spendthrift trust. The enabling statute provides as follows:
The trust established for Commonwealth officers and employees is declared to be a spendthrift trust, and any construction of a participant’s plan account as self-settled shall not cause the plan account to be treated as other than a spendthrift trust. (Emphasis added.)
72 Pa.C.S.A. § 4521.2(h)(3). (Purdon’s Supp.2005.)
Finally, the enabling statute imposes restrictions upon the transfer of a plan participant’s beneficial interest or right to receive payments under a DCP. It provides as follows:
Any benefit or interest available under a deferred compensation plan established under this section, or any distribution or payments made under such a plan shall not, except as specified by the plan, be subject to assignment, alienation, garnishment, attachment, transfer, anticipation, sale, mortgage, pledge, hypothe-cation, commutation, execution or levy, whether by voluntary or involuntary act of any interested person. (Emphasis added)
72 Pa.C.S.A. § 4521.2(h)(4). (Purdon’s Supp.2005)
According to the chapter 7 trustee, requirement (5) for § 541(c)(2) of the Bankruptcy Code to apply is not satisfied with respect to debtors’ respective DCP accounts. The restrictions imposed on the transfer of debtors Tykla and Hampton DCP accounts as set forth in § 4521.2(h)(4), in other words, are not enforceable under non-bankruptcy law, in this instance the common law of Pennsylvania.
According to the common law of Pennsylvania, a valid spendthrift trust exists when there is an express provision in the instrument creating the trust which forbids alienation of a beneficiary’s interest in the trust by creditors of the cestui que trust. In re Keeler’s Estate, 334 Pa. 225, 229, 3 A.2d 413, 415 (1939); Wilson v. U.S.A., 372 F.2d 232, 234 (3d Cir.1967).
The validity of a spendthrift trust is based on the principle cujus est dare, ejus est disponere (“He whose it is, it is his to dispose of’). An owner of property may establish a trust for some other person so as to give that other person the enjoyment and beneficial ownership of the property, while protecting the trust property from levy or attachment by creditors of that *445other person. C.I.T. Corp. v. Flint, 333 Pa. 350, 355, 5 A.2d 126, 127-28 (1939).
Things are different, however, where the creator of the trust and the designated beneficiary and equitable owner of the trust res are one and the same. It is against public policy for a person to establish a trust in which that same person retains the beneficial interest in the trust res while placing the res beyond the reach of that person’s creditors. In re Mogridge’s Estate, 342 Pa. 308, 311, 20 A.2d 307 (1941). A provision barring a creditor from reaching the interest of the settlor-cestui que trust is not enforceable under the common law of Pennsylvania. Morton v. Morton, 394 Pa. 402, 404, 147 A.2d 150, 151-52 (1959).
It is not disputed in these cases that the settlor of the DCP trust accounts and the beneficiaries thereof are one and the same. The funds comprising the interest of each debtor in this case in their DCP accounts were voluntarily withheld from that debt- or’s payroll. At the same time, each debt- or also designated himself or herself as the cestui que trust of the trust accounts.
The chapter 7 trustee would have us conclude in light of this that the restrictions placed on the transfer of each debt- or’s interest in his or her DCP trust account as set forth in § 4521.2(h)(4), which unquestionably qualifies as “applicable nonbankruptcy law” for purposes of § 541(c)(2) of the Bankruptcy Code, are not enforceable. Requirement (5) for § 541(c)(2) to apply to these cases, in other words, is not enforceable.
The chapter 7 trustee’s argument does not end there. The chapter 7 trustee apparently would have us further conclude that because these restrictions on the transfer of the debtors’ interests in their DCP accounts are not enforceable, the spendthrift trusts ostensibly established as a result of § 4521.2(h)(3) are not valid trusts. Requirement (1) for § 541(c)(2) to apply, in other words, also is not satisfied in these cases.
Were we dealing exclusively with the common law concerning spendthrift trusts where the settlor and a cestui que trust are one and the same individual, we would agree with the chapter 7 trustee. We are not, however, dealing with the common law, but instead with a statutory provision authorizing establishment of DCP trust accounts.
For the chapter 7 trustee to prevail in these cases, we would have to disregard § 4521.2(h)(3) or treat its words as mere surplusage. This we may not do. As was previously, § 4521.2(h)(3) “declares” a trust established by a Commonwealth employee who elects to participate in a DCP “to be a spendthrift trust”. In addition, this provision provides that “construction of a participant’s plan account as self-settled shall not cause the plan account to be treated as other than a spendthrift trust”.
A court must presume when analyzing a duly-enacted statute that the General Assembly did not intend to perform a useless act. Freundt v. Commonwealth of Pennsylvania, Department of Transportation, 584 Pa. 283, 289, 883 A.2d 503, 506 (2005). When it enacts a statute, the General Assembly intends for the entire statute to be effective and certain. 1 Pa.C.S.A. § 1922(2); Rossi v. Commonwealth of Pennsylvania, Department of Transportation, 580 Pa. 238, 243, 860 A.2d 64, 66 (2004).
The problems with this argument of the chapter 7 trustee do not end there.
It is a well-established principle in Pennsylvania that its jurisprudence is derived from the common law. Whenever possible, a statute should be interpreted in a manner that is consistent with existing *446common law. Balkiewicz v. Asenavage, 406 Pa. 501, 505-06, 178 A.2d 591, 594 (1962). Moreover, a statute cannot by implication alone be interpreted as abrogating existing common law. For the common law to be set aside, the legislature must affirmatively repeal or specifically preempt it. Metropolitan Property and Liability Insurance Co. v. Insurance Commissioner of the Commonwealth of Pennsylvania, 525 Pa. 306, 310, 580 A.2d 300, 302 (1990).
In previous cases their argument won the day and exposed the fatal flow in the Commonwealth’s employee plan and caused a contrary result. To cure this fatal flaw and allow creditors, some of which are Commonwealth residents, to lose the benefit of their largesse. The General Assembly in the decretal language employed in § 4521.2(h)(3) leaves little doubt that it intended to abrogate the common law rule concerning the invalidity of self-settled spendthrift trusts where a DCP trust account is involved.
Use of the word “declared” in § 4521.2(h)(3) indicates that an employee’s DCP account is a spendthrift trust by legislative fiat. It qualifies as a spendthrift because the General Assembly says so. We have no doubt that the General Assembly has the power to issue such a fiat. By specifically providing that any construction of a DCP trust account as self-settled “shall not” cause the account to be treated as other than a spendthrift trust, the General Assembly obviously had in mind the common-law principle that a self-settled trust is not valid and proscribed its application to DCP accounts established for Commonwealth officers and employees.
It should be noted that we have serious reservations concerning the wisdom of § 4521.2(h)(3). For one thing, it singles out Commonwealth officers and employees who participate in a DCP plan for special treatment to the detriment of their creditors. As it now stands, creditors of Commonwealth officers and employees who participate in a DCP may not pursue the assets in an officer’s or employee’s DCP account. Were the DCP account a “garden-variety” trust, creditors theoretically could pursue the trust res to satisfy such debts.
Such preferred treatment is not only detrimental to creditors of a DCP participant, in our estimation it also unfairly discriminates in favor of Commonwealth officers and employees who participate in a DCP established by the Commonwealth. Individuals who are not officers or employees of the Commonwealth of Pennsylvania but who also have DCP accounts established by private employers do not enjoy such protection from their creditors under the law of Pennsylvania.
While we think that the wisdom of § 4521.2(h)(3) is dubious at best, we have no alternative but to enforce it in these cases as a valid principle of the law of Pennsylvania. Because § 4521.2(h)(3) renders valid what otherwise would be an invalid spendthrift trust, we must reject the assertion by the chapter 7 trustee that requirement (5) of § 541(c)(2) of the Bankruptcy Code is not satisfied.
The above argument is not the only one put forth by the chapter 7 trustee. He asserts that the restrictions placed on the transfer of debtors’ DCP accounts are not enforceable for yet another reason.
We previously held in an unpublished opinion issued in In re Schoeneweis (Adversary No. 99-2846) that statutory restrictions imposed on the transfer of the interest of the debtor therein, who also was a Commonwealth employee, in a DCP account were not enforceable for purposes of § 541(c)(2). Subsections 4521.2(h)(3) and (4), we concluded, amounted to a so-*447called “special law” and therefore violated Article 3, § 32 of the Pennsylvania Constitution. We held that these statutory provisions did not treat “like” persons in “like” situations in a “like” manner.
The chapter 7 trustee has drawn our attention to the reasoning employed in In re Schoeneweis and maintains that the reasoning set forth in that memorandum opinion applies with equal force to the present cases and reviewing new evidence offered here but not offered previously.
After revisiting the matter, we now conclude that subsections 4521.2(h)(3) and (4)are not “special” laws and do not violate Article 3, § 32 of Pennsylvania’s constitution. Whereas the Commonwealth largely ignored and did not seriously respond in Schoenweis to the trustee’s contention that §§ 4521.2(h)(3) and (4) violate Article 3, § 32 of the Pennsylvania Constitution, it has seen fit this time to seriously address the contention in these cases and has briefed the matter. Now having the benefit of its input, we conclude that these statutory provisions are not constitutionally infirm.
Article 3, § 32 of the Pennsylvania Constitution provides as follows:
The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General Assembly shall not pass any local or special law:
(1) Regulating the affairs of counties, cities, wards, boroughs or school districts;
(2) Vacating roads, town plats, streets or alleys;
(3) Locating or changing county seats, erecting new counties or changing county lines;
(4) Erecting new townships, changing township lines, borough limits or school districts;
(5) Remitting fines, penalties and forfeitures, or refunding moneys legally paid into the treasury;
(6) Exempting property from taxation;
(7) Regulating labor, trade, mining or manufacturing;
(8) Creating corporations, or amending, renewing or extending the charters thereof.
Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law, but laws repealing local or special laws may be passed.
A strong presumption arises when a duly-enacted law is challenged on constitutional grounds that it is constitutional. Curtis v. Kline, 542 Pa. 249, 256 n. 3, 666 A.2d 265, 268 n. 3 (1995). One who challenges the constitutionally of such a law bears a “heavy” burden of persuasion. Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). A law will not be struck down “unless it clearly, palpably and plainly violates the Constitution”. Pennsylvania Liquor Board v. Spa Athletic Club, 506 Pa. 364, 370, 485 A.2d 732, 735 (1984).
Article 3, § 32 was included in Pennsylvania’s constitution to prevent the General Assembly from creating classifications granting privileges to one person, one company or one political subdivision of the Commonwealth. It was not, however, intended to prevent the General Assembly from creating any classifications at all that it deemed necessary to meet diverse needs. Wings Field Preservation Associates v. Commonwealth of Pennsylvania *448Department of Transportation, 776 A.2d 311, 316 (Pa.Cmwlth.2001).
The distinction between a “special” and a “general” law for purposes of Article 3, § 32 defies easy formulation. “Special” laws and “general” laws have been characterized as “opposites” of one another. Heuchert v. State Harness Racing Commission, 403 Pa. 440, 446-47, 170 A.2d 332, 336 (1961). Whereas a “special” law is not uniform in its application throughout the Commonwealth, a “general” law is. Id.
Legislation that applies to every member of a class, however, is “general” rather than “special”. Dufour v. Maize, 358 Pa. 309, 313, 56 A.2d 675, 677 (1948). For instance, legislation applying to all cities or to all counties of the same class is “general” rather than “special”. Legislation that applies to only one county of a class of which there are, say, ten members is “special”. Wings Field Preservation Associates, 776 A.2d at 316.
Application of this distinction to the cases at issue here leads us to conclude that §§ 4521.2(h)(3) and (4) qualify as “general” rather than “special” legislation.
To begin with, Article 3, § 32 proscribes nine types or categories of “special” legislation. The chapter 7 trustee has not shown that §§ 4521.2(h)(3) and (4) lie within the scope of any of these categories.
Furthermore, even if the above categories set forth in Article 3, § 32 are not exhaustive or §§ 4521.2(h) and (4) should happen to lie within the scope of any of the nine specified categoi’ies, the chapter 7 trustee has not met his “exceptionally heavy burden” of proving that §§ 4521.2(h)(3) and (4) qualify as “special” legislation for purposes of Article 3, § 32 and for that reason are not constitutional.
The class of individuals to whom these statutory provisions apply is comprised of officers and employees of the Commonwealth of Pennsylvania. Moreover they apply to every member of that class. Every officer and every employee of the Commonwealth is eligible to participate in a DCP authorized by § 4521.2(a). See 72 Pa.C.S.A. § 4521.2(2).
Determining that §§ 4521.2(h)(3) and (4) apply to all Commonwealth officers and employees does not terminate our analysis. We also must determine whether that classification passes “constitutional muster”.
The purpose and meaning of the Equal Protection Clause of the Federal Constitution and Article 3, § 32 of Pennsylvania’s constitution are sufficiently similar to warrant like treatment. Harrisburg School District v. Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088 (2003). Both embody the principle that “like” persons in “like” circumstances must be treated in a “like” manner. Id.
Neither of these constitutional provisions vitiates the power of the General Assembly to create classifications, which naturally flows from its inherent power to enact rules for the health, safety and welfare of the community. Id., 574 Pa. at 137, 828 A.2d at 1088. Nor do they prohibit different treatment of persons having different needs, so long as the classification created is reasonable rather than arbitrary and bears á reasonable relationship to the object of the classification. DeFazio v. Civil Service Commission of Allegheny County, 562 Pa. 431, 436-37, 756 A.2d 1103, 1106 (2000).
A classification, though discriminatory, must be upheld if it bears a reasonable relationship to a legitimate state purpose. Zogby, 574 Pa. at 137, 828 A.2d at 1088-89. If a court concludes that a distinction is not arbitrary, the court may not declare the classification to be *449void even though the court may be convinced that the classification does not rest on a sound basis. The test is not the General Assembly’s wisdom in creating the classification, but its good faith. Harrisburg School District v. Hickok, 563 Pa. 391, 397, 761 A.2d 1132, 1136 (2000).
A classification is considered reasonable for purposes of Article 3, § 32 if any set of facts can be conceived to sustain it. If, however, it is based on arbitrary or irrelevant distinctions created to circumvent Article 3, § 32, the classification must be struck down. Zogby, 574 Pa. at 137, 828 A.2d at 1089.
A court is free when analyzing a classification in light of Article 3, § 32 to hypothesize reasons the General Assembly might have had for creating such a classification. Id., 574 Pa. at 137-38, 828 A.2d at 1089.
Keeping the above principles in mind, we are constrained to conclude that §§ 4521.2(h)(3) and (4) pass “constitutional muster”. The class of individuals to whom these subsections apply — i.e., all Commonwealth officers and employees who have chosen to participate in a DCP authorized by § 4521.2(a) — bears a reasonable relationship to a legitimate state purpose.
The objective of the classification appears to be to permit the Commonwealth’s thousands of officers and employees to invest a portion of their earnings without paying federal income tax on the funds held back while ensuring that the fruits of the investment lie beyond the reach of that officer’s or employee’s creditors until the officer or employee receives a distribution from his or her DCP. Once distributed, they neither are free from federal taxation nor beyond the reach of the officer’s or employee’s creditors. While we have grave misgivings about the wisdom of this, we must reluctantly conclude that the classification at issue in these cases bears a reasonable relationship to a legitimate state purpose.
We therefore conclude that the argument of the chapter 7 trustee that §§ 4521.2(h)(3) and (4) are not enforceable under applicable non-bankruptcy law is without merit. Subsections 4521.2(h)(3) and (4) qualify as enforceable restrictions on debtors’ interests in a trust within the meaning of § 541(c)(2) of the Bankruptcy Code.
. The applicable provision in Yuhas was a New Jersey statute. The Third Circuit subsequently employed the same requirements where the relevant provision governing the transfer of a debtor’s interest in an IRA arose under Pennsylvania law. In re Davis, 108 Fed.Appx. 717, 719-20 (3d Cir.2004). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494076/ | REASONS FOR ORDER
JERRY A. BROWN, Bankruptcy Judge.
This matter came on for hearing on July 13, 2006 on motions for summary judgment filed by the debtor, Entergy New Orleans, Inc., the debtor’s parent company, Entergy Corporation, Inc., and the debtor’s affiliates, Entergy Services, Inc., and Systems Fuels, Inc. The motions for summary judgment sought denial of the motion for certification of classes filed by the Gordon plaintiffs and the Lowenburg plaintiffs; the motions for summary judg*476ment also requested that the class proofs of claim filed by those plaintiffs be disallowed. For the reasons set forth below, the debtor’s motion for summary judgment is granted in part; the court declines to apply Fed.R.Bankr.P. 7023 to this contested matter and will not certify either the Gordon plaintiffs or the Lowenburg plaintiffs as a class. The court denies the motion as to the objection to the class proofs of claim filed by each group. The court finds that the documentation appended to each proof of claim is sufficient at this time.
I. Background Facts
The debtor is a utility company serving the New Orleans area, and is subject to the regulatory jurisdiction of the New Orleans City Council. It is a wholly owned subsidiary of Entergy Corporation, a public utility holding company subject to the Public Utility Holding Act of 1935. The debtor filed for Chapter 11 protection on September 17, 2005 because of the damage caused to its operations and equipment by Hurricane Katrina, which caused severe damage to the Greater New Orleans area on August 29, 2005.
The Gordon plaintiffs are a group of the debtor’s customers who in 1999 filed a class action suit against the debtor, its parent company, and other Entergy subsidiaries in the Civil District Court for Orleans Parish in the state of Louisiana.1 The Gordon suit asserts state law causes of action for restitution of loss of money, damages for violations of Louisiana antitrust law, and damages for other state law violations, plus interest, costs and declaratory and injunctive relief arising from the Gordon suit defendants’ alleged manipulation and abuse of fuel adjustment charges and other costs related to the debtor’s fuel adjustment clause filings.2 The Gordon suit also seeks certification as a class action.3
At the same time the Gordon plaintiffs filed their class action suit, they commenced an administrative proceeding against the debtor with the New Orleans City Council as required by state law.4 No decision on class certification was made in the Gordon suit because the suit was stayed by the state district court pending the resolution of the administrative proceeding. In the administrative proceeding, the City Council found that the debtor had in fact overcharged New Orleans ratepayers and awarded $11,310,072 to ratepayers. The debtor credited its ratepayers for the amount of the city council’s award.
The Gordon plaintiffs appealed the city council’s decision because the award was not as large as they had requested. The appeal was pending before the Louisiana Fourth Circuit Court of Appeal when the debtor filed its Chapter 11 petition.5 The debtor filed a motion to lift stay in the bankruptcy court so that the appeal could continue, and the lift stay motion was granted. At that hearing, the Gordon plaintiffs requested that the stay also be lifted as to the Gordon class action suit. The bankruptcy court declined to lift the stay as to the class action suit, but allowed *477that it would entertain a motion to lift stay-in that matter when the appeal of the City Council decision is complete. After the hearing on the motion to lift stay, the debtor removed the state court class action suit to the United States District Court for the Eastern District of Louisiana under the theory that the suit was related to the bankruptcy. The class action suit remains stayed in the federal district court, and no action has been taken since removal. The Gordon plaintiffs were not certified as a class in either the City Council proceeding or the state court suit that was removed.
The Lowenburg plaintiffs are a group of the debtor’s customers who filed a class action suit against the debtor on April 15, 1998 in the Civil District Court for the Parish of Orleans alleging that the debtor charged rates in excess of what was allowed by the New Orleans City Council ordinances governing the debtor.6 The state court ruled that before the suit could proceed, the Lowenburg plaintiffs must first initiate an administrative proceeding with the New Orleans City Council seeking an interpretation of the City Council’s ordinance. The state court dismissed the Lowenburg suit without prejudice, and the Lowenburg plaintiffs filed a complaint with the City Council on September 11, 2000. That administrative proceeding was pending when the debtor filed for Chapter 11 protection. The debtor subsequently filed a motion to lift stay to allow the Lowen-burg plaintiffs to proceed with the matter before the City Council, and this court granted the motion. On April 20, 2006, the City Council issued its ruling in the Lowenburg administrative proceeding determining that the debtor had not violated the ordinance in question by charging excessive rates. The Lowenburg plaintiffs are currently appealing that decision in the Louisiana state courts. The Lowenburg plaintiffs were not certified as a class in either the City Council proceeding or the state court lawsuit that was dismissed.
On January 19, 2006, the debtor filed a motion to set the last day to file proofs of claim, requesting that the bar date be set on April 19, 2006. The order granting that motion was entered on February 17, 2006. On March 3, 2006, the Gordon and Lowen-burg plaintiffs filed a joint motion requesting certification of classes. They set the motion for hearing on March 29, 2006. The debtor, its parent, the Unsecured Creditors’ Committee, and the City Council filed objections to the motion. At the hearing on the motion, the debtor and its parent company agreed that they would not object to the filing of a class proof of claim by the putative representatives of the Gordon and Lowenburg plaintiffs on the grounds that class certification had not been granted prior to the filing of the proof of claim.7 The parties then agreed to postpone the hearing on the motion requesting certification of classes. On April 18, 2006, one day before the bar date, the Gordon and Lowenburg plaintiffs each filed a class proof of claim as agreed in the March 29, 2006 hearing, so that there would be a proof of claim filed before the bar date.8 On May 11, 2006 the debtor filed objections to both the Gordon and the Lowenburg claims on the basis that it is not possible from the face of the claims to determine how the claims were calculated. The debtor then filed the present motion *478for summary judgment asking the court to deny class certification and disallow both of the class proofs of claim.
II. Legal Analysis
A. Class Certification
The court has extensively reviewed the cases on class certification in the bankruptcy context and has concluded that the exact procedure to be followed in seeking class certification is unclear at best. The United States Fifth Circuit Court of Appeal, which this court is bound to follow, has not ruled on the issue of class actions in bankruptcy courts except to approve a line of bankruptcy cases that have allowed a class representative in a certified class action to file a complaint under 11 U.S.C. § 523 that the debts owed to the class members be excepted from discharge.9 Thus, this court looks to other courts for instruction on how class certification and class proofs of claim should properly be addressed.
The United States circuit courts of appeal that have ruled on class certification in the bankruptcy context take two different approaches to the issue of filing a class proof of claim. The minority view espoused by the Tenth Circuit holds that, “Class action procedures can be employed in a bankruptcy proceeding only to consolidate claims that have already been properly filed.” 10 In Standard Metals, the court held that a proof of claim filed by an investor for himself and on behalf of all other bondholders as a class was not allowed because the Bankruptcy Code does not permit filing a claim on behalf of a class. In that case, the debt owed to the bondholders was not scheduled, nor was notice mailed to any of the bondholders of either the bankruptcy or the bar date for filing proofs of claim. Although the Tenth Circuit did not allow the class proof of claim to be filed, on rehearing, it issued a per curiam opinion reversing the prior Standard Metals opinion and the orders of the bankruptcy court to the extent that the bankruptcy court did not require the debt- or to give actual notice to the bondholders and did not set a new bar date for the filing of claims by those bondholders.11 Thus, although the class proof of claim was not allowed in Standard Metals, the Tenth Circuit required the debtor to provide the putative class members with actual notice of the bankruptcy and the bar date and extend the bar date so that individual proofs of claim could be filed.
In contrast to the Standard Metals holding that class proofs of claim are impermissible, the predominant line of cases addressing class proofs of claim, originating with an opinion by the Seventh Circuit, allows a class representative to file a proof of claim.12 In American Reserve the plaintiffs were insurance policy holders who filed a class action suit against the debtor in state court. Before the state court could decide whether to certify the class, the debtor filed its bankruptcy petition, which stayed the state court proceeding. The plaintiffs then filed a class proof of claim to which the trustee for the debtor filed an objection. The court held that the filing by a representative of a class proof of claim was clearly contemplated by Fed. R.Bankr.P. 7023,13 which could be made *479applicable to contested matters by Fed. R.Bankr.P. 9014,14 and that it was within the bankruptcy judge’s discretion to apply Rule 7023 and allow a class proof of claim, stating:
Rule 9014 thus allows bankruptcy judges to apply Rule 7023-and thereby Fed. R.Civ.P. 23, the class action rule-to ‘any stage’ in contested matters. Filing a proof of claim is a ‘stage’. All disputes in bankruptcy are either adversary proceedings or contested matters, so Rule 23 may apply throughout a bankruptcy case at the bankruptcy judge’s discretion.15
The Seventh Circuit also noted that when the bankruptcy judge further examined the issue, he might well find that an order directing the trustee to send a notice of the bankruptcy, the underlying state court proceeding and a proof of claim form to each of the policyholders who was a potential claimant was a sufficient alternative to certifying a class in the bankruptcy court.16 Subsequent rulings by the Eleventh Circuit in Charter Company17 and the Sixth Circuit in Reid v. White Motor Corp.,18 have followed the Seventh Circuit’s approach and held that the filing of a class proof of claim is permissible.
The Eleventh Circuit in Charter Co., held that it would adopt the Seventh Circuit’s ruling in American Reserve and allow class proofs of claim to be filed. In Charter Co., stockholders filed suit against the company on behalf of themselves and other stockholders who had purchased stock during a certain period. The suit was filed against the Charter Co. and its officers and directors in a federal district court in Florida. Two weeks later on April 20, 1984, Charter Co. filed a Chapter 11 petition under the Bankruptcy Code. The class action suit was thus stayed as to the debtor company but continued as to the other defendants. On September 14, 1984, prior to the bar date, the named representatives in the district court suit filed a class proof of claim appending a consolidated and amended class action complaint to the proof of claim. The parties attempted unsuccessfully to settle the dispute, negotiating for over two years. In August 1986 the district court certified the class, and on October 7, 1986 Charter Co. objected to the proof of claim. The claimants responded to the objection by filing a motion requesting that the court apply Bankruptcy Rule 7023 via Rule 9014. The court held that the claimants timely filed their motion to apply Rule 7023 via Rule 9014 because until there was a contested matter, i.e., the claim objection, the motion to apply Rule 7023 could not be ripe.
The Charter Co. court also distinguished its holding from a previous Eleventh Circuit holding in GAC Corp.,19 which disallowed a class proof of claim, on the basis that in the GAC case the bankruptcy judge had set a bar date and in the bar date *480order had required each creditor in the putative class to file an individual proof of claim. Copies of the bar date order were mailed to each of the 280,000 putative class members and published twice in 53 newspapers worldwide. Further, the representative claimant in GAC failed to file a motion to make Fed.R.Civ.P. 23 applicable.20 Thus, in Charter Co. the Eleventh Circuit seems to make the distinction that where a class proof of claim is not permitted by the bankruptcy judge, and members of a putative class are required to file individual proofs of claim, the debtor must send actual notice to the putative class members of the bankruptcy and the bar date for filing proofs of claim.
In Reid, a Sixth Circuit case, an attorney filed an action in Michigan state court seeking class certification on behalf of his client and other former employees of the White Motor Corp.21 The class was certified in state court on August 5, 1977; the defendant, White Motor Corp., filed a voluntary Chapter 11 petition on September 4, 1980. On September 3, 1981 Reid, the Michigan attorney representing the class, filed a proof of claim in the bankruptcy as the purported agent of the class, but provided nothing to show his agency or authority to file a proof of claim on behalf of the class. Reid did file an attachment to the proof of claim listing names of individuals and dollar amounts, but did not identify the individuals as former employees of the debtor or as members of the class. No individual proofs of claim were filed by the individuals listed in the attachment to the class proof of claim. When the Chapter 11 petition was filed, the class action suit in state court was stayed under § 362 of the Bankruptcy Code, and the state court dismissed the suit on July 12, 1983 for failure to prosecute. The bar date for claims in the Chapter 11 case was August 30, 1983, and after the bar date passed, the trustee filed an objection to the class proof of claim.
The Reid court also held that it would follow the Seventh Circuit’s ruling in American Reserve to the extent that Bankruptcy Rule 9014 gives bankruptcy judges the discretion to invoke Rule 7023, and thereby Fed.R.Civ.P. 23, to any stage of contested matters, including class proofs of claim.22 The court went on to find that in this particular case, the class proof of claim would be disallowed because Reid failed to timely petition the bankruptcy court to apply the provisions of Rules 9014 and 7023.23 Additionally, Reid was not a member of the class he purported to represent; instead he was the attorney offering his services to the putative class, and as such he lacked standing to initiate the class action. Further, although an attorney could file a class proof of claim as an agent, Reid failed to file the paperwork required by Rule 2019 that would enable him to do so. Thus, although the Sixth Circuit in Reid approved of the Seventh Circuit’s holding in American Reserve that class proofs of claim are permissible, the class proof of claim in Reid failed for procedural reasons.
The present motion for class certification was initially brought by the plaintiffs *481in anticipation that class certification must be obtained before the plaintiffs’ putative class representatives could file a class proof of claim. The court is sympathetic to the plaintiffs’ desire to ascertain whether a class proof of claim would be acceptable to the court before the bar date had passed, so that if the class was not certified and individual claims were required from all the putative class members, the proper steps could be taken to ensure that those individuals were notified of the requirement in time to file individual proofs of claim. Although the procedure for requesting the application of Bankruptcy Rule 7023 to a contested matter appears to require the putative class member to file its class proof of claim, wait until an objection has been filed and then make a motion under Rule 9014 to apply Rule 7023,24 the court will entertain the motion to certify a class filed by the Gordon and Lowenburg plaintiffs as if that procedure had been followed; now that there is an objection to the motion to certify the classes, there is a contested matter to which 7023 could be applied through Rule 9014.
Thus, the court must first determine whether or not to invoke Rule 7023, which would permit the court to decide whether or not, under Rule 7023, a class should be certified. Such a determination is wholly within the discretion of the court.25 American Reserve and Craft26 both provide good analyses of the factors a bankruptcy judge should consider in determining whether or not to apply Rule 7023. American Reserve suggests that the bankruptcy court consider whether allowing a class action will serve its purpose of deterring bad behavior on the part of the debt- or, whether the complications attending the prosecution of a class action will unduly complicate the bankruptcy proceedings, whether the suit is based on a sound legal theory, the amount of money at stake, and the possibility of instead proceeding through the normal bankruptcy claim objection process.27 Craft states:
Those courts that would equate the determination of a class under Rule 7023 with the determination of whether to apply Rule 7023 do not recognize the concerns peculiar to bankruptcy law-which are the appropriate bases for exercise of discretion under Rule 9014. These concerns properly include, to a greater or lesser degree, prejudice to the debtor or its other creditors, prejudice to putative class members, efficient estate administration, the conduct in the bankruptcy case of the putative class representatives, and the status of proceedings in other courts28
The court will keep these factors in mind as a basis for its analysis of whether to apply Rule 7023 to the instant case.
1. Regulatory Considerations
One of the largest hurdles that the Gordon and Lowenburg plaintiffs must overcome is the regulatory framework by which the debtor is governed, and the process by which complaints involving the rates charged by the debtor to its customer are to be adjudicated. The debtor is *482regulated by the City Council for the City of New Orleans pursuant to Article IV, Section 21(c) of the Constitution of the State of Louisiana and the Home Rule Charter of the City of New Orleans. Under the Louisiana Constitution, the Louisiana Public Service Commission (“LPSC”) regulates most of the public utilities in the state of Louisiana, but some utilities that were municipally regulated as of the effective date of the Constitution continue to be regulated by those municipalities.29 New Orleans is one of those municipalities. Nonetheless, with respect to their duties as regulators of public utilities, the City Council and the LPSC perform approximately the same function; thus, the court finds that for purposes of the court’s jurisdictional analysis, the cases decided by Louisiana state courts with respect to the jurisdictional powers of the LPSC can also be applied to the jurisdiction of the City Council. The court also notes that the City Council has made an appearance in this proceeding and objects to class certification by this court of the Gordon and Lowenburg plaintiffs, in part on the grounds that it has at least primary if not exclusive jurisdiction to determine the rights of ratepayers with respect to rate matters concerning regulated utilities in the City of New Orleans.
The Louisiana Supreme Court has addressed the issue of jurisdiction over state regulated utilities in Daily Advertiser v. Trans-LA30 In Daily Advertiser the plaintiffs were residential and commercial customers of Trans-LA, a provider of natural gas; the customers attempted to file a class action suit in a state district court, alleging five state law causes of action related to alleged overcharges by the utility: antitrust violations, breach of contract pour autrui, breach of fiduciary duty, unjust enrichment, and fraud.31 The defendants filed an exception of lack of subject matter jurisdiction, claiming that only the LPSC, the regulatory body charged with overseeing Trans-LA, could hear the case because the LPSC had exclusive jurisdiction over the rates charged by Trans-LA.32 The plaintiffs argued that because their petition alleged state law causes of action seeking monetary damages that the LPSC could not hear their suit because it lacked the authority to award the relief they were seeking.
The Supreme Court described the jurisdiction of the LPSC as follows:
An antitrust or a damage action, as plaintiffs couch their claims, generally would constitute a civil matter over which the district court would have jurisdiction; damage suits of all kinds have long been the warp and woof of the caseload of the courts. Yet, the manner in which plaintiffs couch their claims does not automatically vest jurisdiction in the district court; rather, the nature of the relief demanded is dispositive. Nor does the fact that a party to an action qualifies as a public utility automatically divest a court of original jurisdiction; however, that fact renders another constitutional provision arguably applicable. The other relative constitutional provision is La. Const. Art. IV, *483§ 21(B), which vests jurisdiction over public utilities in general and rates in particular in the LPSC, providing:
The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.
Construing this provision we have held that it grants in mandatory language, constitutional jurisdiction to the commission over all common carriers and public utilities. We further have held that it provides the LPSC with broad and independent regulatory powers over public utilities. Indeed, we have labelled (sic) the LPSC’s jurisdiction over public utilities as plenary. We have also construed this provision as conferring upon the LPSC exclusive jurisdiction, in the first instance, to fix or change any rate to be charged by a public utility; the courts lack the power to fix or change rates until the LPSC has acted. Although courts are statutorily permitted to change, modify, alter, or set aside orders of the Commission, as justice may require, that statutory standard of review may not supercede or abrogate the constitutional scheme in which plenary ratemaking authority is delegated to the Public Service Commission. The only jurisdiction courts have over the fixing of utility rates is to review the LPSC’s orders on appeal. Even when exercising appellate jurisdiction over a rate order, a court may not, in the first instance, fix or change rates to be charged by a public utility, but rather must remand to the LPSC for it to determine the appropriate rate to be charged customers.33
The court went on to apply the exhaustion rule to matters involving the interpretation of LPSC orders or regulations, i.e., that until the plaintiff has exhausted his available remedies before the LPSC, he cannot resort to the courts. The court also held that the doctrine of primary jurisdiction required any matters related to the complaint that are not within the jurisdiction of the LPSC, but are instead entitled to adjudication in district court, be deferred until the LPSC proceeding is complete.34 Thus, the Louisiana state courts have developed a sort of bifurcated approach to handling suits against public utilities that involve some aspect of the ratemaking powers of the regulating body whereby the plaintiff is first required to pursue the available administrative remedies, and upon failure to achieve relief, may in some circumstances pursue a claim in state court. This appears to be the procedure followed by the Gordon and Lowenburg plaintiffs in their respective claims until the debtor filed its Chapter 11 petition.
In light of the extensive proceedings already underway before the proper administrative bodies and in the state courts, the court finds that the prescribed channels for adjudication of rate related complaints against the debtor are apparently working as they should; this is a factor weighing very heavily in favor of not invoking Rule 7023 in this proceeding.
2. Other Considerations
American Reserve directs the bankruptcy court to examine whether the class action process is a more desirable process than ordinary claim adjudication. The debtor argues that requiring it to send out *484notification of the putative class action proceedings to some 180,000 of its former customers is prohibitively expensive. Additionally, the debtor opposes any reopening of the bar date to allow individual claims to be filed, claiming that doing so would disrupt the formation of a reorganization plan. The debtor also has stated that it is willing to rely on the publicity surrounding its bankruptcy as well as the notices it published in several local and national newspapers as sufficient notice for purposes of barring putative class members who have not received actual notice from bringing claims at a later date. The court has some concerns, however, especially given the language in the American Reserve, Charter Co., and Standard Metals opinions indicating that in a situation where, as here, the debtor has the capability of sending actual notice to putative class members if the filing of individual claims is to be required, that those individual claimants should receive actual notice, especially if a class proof of claim is not allowed.
The debtor has not yet filed a plan of reorganization, nor does it appear close to doing so, thus the court does not see how the debtor could be prejudiced by a reopening of the claims bar date should the court decide to require the debtor to send actual notice to the putative class members.35 The court does recognize, however, that the costs that would be incurred by mailing notices and proof of claim forms to 180,000 potential class members are high and understands why the debtor would not welcome this added expense. This inconvenience to the debtor must be balanced by the prejudice to the putative class members if their class proofs of claim are rejected. The bar date has passed, so filing individual proofs of claim is no longer an option. Further, most if not all of the putative class members are likely unaware that they have a potential claim at all, and would not know to file a proof of claim even if the bar date were reopened unless the court required notices to be sent. Thus, reopening the bar date without requiring additional notice would seem to serve no purpose.
Fortunately, the agreement by the debt- or, its parent, Entergy, Inc., and the unsecured creditor’s committee, that they would not object to the proofs of claim of either the Gordon or the Lowenburg plaintiffs on the basis that a non-certified class representative filed a proof of claim on behalf of a subsequently certified class greatly simplifies the court’s decision at this time.36 The court chooses not to apply Rule 7023 to the present motion for class certification, but will allow the Gordon and Lowenburg plaintiffs to make a motion to apply 7023 to any claim objection filed by the debtor in the event that either class is certified by a court hearing the actions for class certification. This should also alleviate the concerns of the City Council who objected to the motion for class certification arguing it had already held that class certification is not possible in a regulatory proceeding:
As the elected representative of the residents of Orleans Parish and the regulatory authority with exclusive jurisdiction over [the debtor] ENO’s provision of electric and gas service to customers in *485Orleans Parish, the Council represents and protects all ENO ratepayers. Any relief ordered by the Council will accordingly include all relief to which any potential member of a class of such ratepayers is entitled. Certification of Claimants in this Docket as representatives of a class of all persons who are or have been customers of ENO is thus unnecessary and inappropriate.37
The state courts have jurisdiction to determine whether that is so in the appeals from the City Council’s decisions in both the Gordon and Lowenburg proceedings. There is no need for this court to interfere with the established process of adjudicating ratepayer/utility disputes.
B. Objection to proof of claim
The debtor objects to proof of claim number 826 filed by the Gordon plaintiffs and claim number 328 filed by the Lowenburg plaintiffs on the basis that it is not possible from the face of the claims to determine how the claims were calculated. This is not surprising given that the claims are disputed and unliqui-dated. Each claim consists of the official proof of claim form and an attachment that describes the nature of the state court and administrative proceedings that have been brought against the debtor. The court holds that the documentation filed with the claims detailing the administrative and judicial remedies sought by the plaintiffs in other' fora outside this court is sufficient documentation of the proof of claim at this time. Although dollar amounts are listed on the proof of claim form, it is clear from the attachment that the actual claim amount will be the judgment awarded, if any, in the actions against the debtor.38 The debtor’s request that the claimants provide a detailed calculation of the amount claimed will not be any more determinative of the actual amount of any claim than that which the claimants have already provided. No one can be sure that there will be claims, or what the eventual claim amount will be. If the need arises the court can estimate the claim for voting or other purposes under 11 U.S.C. § 502(c).
Properly filing a proof of claim constitutes prima facie evidence of the claim’s validity. If the debtor objects, it is its burden to present enough evidence to overcome the prima facie effect of the claim. If the debtor successfully rebuts the prima facie validity of the claim, then the claimant must come forward with additional proof.39 The court overrules the debtor’s objection to the two proofs of claim because the debtor provided no evidence to overcome the prima facie effect of the claims.
III. Conclusion
For the reasons set forth above, the court declines to apply Fed.R.Bankr.P. 7023 to this contested matter and will not certify either the Gordon plaintiffs or the Lowenburg plaintiffs as a class. The court denies the motion for summary judgment as to the objection to the proof of claim filed by each group. The court finds that the documentation appended to each proof of claim is sufficient at this time.
. The suit, No. 99-5707, is entitled Reverend C.S. Gordon, Jr., et al. v. Entergy New Orleans, Inc., Entergy Corporation, Entergy Services, Inc. and Entergy Power, Inc.
. See Motion and Memorandum for Certification of Classes (P-678).
.Id.
. Daily Advertiser v. Trans-La, 612 So.2d 7, 27 (La. 1993).
. Case No.2005-CA-1381 was argued before the Louisiana 4th Circuit Court of Appeal on September 6, 2006.
. The suit, No. 98-6638, is entitled Thomas P. Lowenburg, et al. v. Entergy New Orleans, Inc.
. Transcript of excerpt of proceedings held March 29, 2006 (P-745) at pp. 10, 12, 14, 16, 18-19.
.The Gordon proof of claim is for “$82,796,-573 plus”, and the Lowenburg claim is for "$240,000,000 plus”.
. In re Davis, 194 F.3d 570, 576 n. 3 (5th Cir.1999).
. In re Standard Metals Corp., 817 F.2d 625, 632 (10th Cir.1987).
. Sheftelman v. Standard Metals Corp., 839 F.2d 1383 (10th Cir.1987).
. In re American Reserve Corp., 840 F.2d 487 (7th Cir.1988).
. Bankruptcy Rule 7023 states: “Rule 23 *479F.R.Civ.P. applies in adversary proceedings.”
. Bankruptcy Rule 9014(c), which applies to a contested matter in a case ... not otherwise governed by these rules, states in part: "The court may at any stage in a particular matter direct that one or more of the other rules in Part VII shall apply.”
. In re American Reserve Corp., 840 F.2d 487, 488 (7th Cir.l988)(internal citations omitted).
. In re American Reserve Corp., 840 F.2d 487, 493-494 (7th Cir. 1988)
. In re The Charter Company, 876 F.2d 866 (11th Cir. 1989).
. Reid v. White Motor Corporation, 886 F.2d 1462 (6th Cir. 1989).
. In the Matter of GAC Corporation, 681 F.2d 1295 (11th Cir. 1982).
. Id at 1299.
. Reid v. White Motor Corporation, 886 F.2d 1462 (6th Cir.1989).
. Reid v. White Motor Corporation, 886 F.2d 1462, n. 8 (6th Cir.1989) (objection to class proof of claim creates contested matter for which bankruptcy court is permitted, but not obligated, to direct that Fed.R.Bankr.P. 7023 apply).
.Id. at n. 13 (court noted that Reid did not file his motion pursuant to Rule 9014 until after the bankruptcy court had granted the trustee's motion for summary judgment dismissing Reid's class proof of claim).
. Reid v. White Motor Corporation, 886 F.2d 1462 (6th Cir.1989); In re The Charter Company, 876 F.2d 866 (11th Cir.1989).
. Reid v. White Motor Corporation, 886 F.2d 1462 (6th Cir.1989); In re The Charter Company, 876 F.2d 866 (11th Cir.1989); In re American Reserve Corp., 840 F.2d 487 (7th Cir. 1988).
. In re Craft, 321 B.R. 189 (Bankr.N.D.Tex.2005).
. In re American Reserve Corp., 840 F.2d 487 (7th Cir.1988).
. In re Craft, 321 B.R. 189, 198-199 (Bankr.N.D.Tex.2005).
. La. Const. Art. IV, § 21. The current Louisiana Constitution was adopted in 1974, but the exception from LPSC jurisdiction for municipally regulated utilities is far older than the 1974 date.
. Daily Advertiser v. Trans-LA, 612 So.2d 7 (La. 1993) (holding that where manipulation or abuse of fuel adjustment clauses is alleged, the regulatory body charged with overseeing the operation of such clauses has exclusive jurisdiction over challenges to such clauses).
. Id at 13.
. Id at 14.
. Id at 16-17 (internal citations omitted).
. Id at 30-31.
. The debtor has filed a motion and scheduled a hearing on October 23, 2006 to request its third extension of the exclusivity period in which to file a plan of reorganization. The debtor initially filed its Chapter 11 petition on September 17, 2005 and over one year has passed since then.
. Transcript of excerpt of proceedings held March 29, 2006 (P-745) at pp. 10, 12, 14, 16, 18-19.
. New Orleans, LA Resolution R-04-66 (Feb. 5, 2004) at ¶ 6, filed as exhibit 1 to (P-711).
. See footnote 8, supra.
. In re O’Connor, 153 F.3d 258, 260 (5th Cir.1998). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494077/ | MEMORANDUM OPINION
JOHN H. SQUIRES, Bankruptcy Judge.
This matter comes before the Court on the motion of David R. Brown, the Chapter 7 trustee (“Trustee”) of the estate of James Christopher Szabo, to enforce the judgment and imposition of a resulting trust on the assets in the hands of Carol Szabo, Metrikis Properties, LLC, and other punitive relief. For the reasons set forth herein, the Court grants the Trustee’s motion to enforce the judgment and imposition of a resulting trust pursuant to 735 III. Comp. Stat. 5/2-1402, Rule 7069 of the Federal Rules of Bankruptcy Procedure, and Rule 69(a) of the Federal Rules of Civil Procedure. A resulting trust in one-half of property located in Addison, Illinois arose in favor of Frank Szabo, Jr. and is subject to the enforcement of the judgment.
I. JURISDICTION AND PROCEDURE
The Court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. It is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (0).
II. FACTS AND BACKGROUND
Frank Szabo was the owner of Szabo Contracting, which was in the business of installing sewer systems for municipalities. (Pl.Ex. No. 3 at 7.) Frank Szabo is the father of James Szabo and Carl Szabo. (Id.)
On May 9, 1999, Mountbatten Surety Company (“Mountbatten”), filed suit in DuPage County, Illinois against Szabo Contracting, Frank, James, Carl, and Carla Szabo, Frank’s wife at the time. (Pl.Ex. No. 1.) On September 2, 1999, Frank and Carla obtained a dissolution of marriage, and Frank was awarded property located in Elmhurst, Illinois (“Elmhurst Property”). (Id.)
On October 1, 1999, James and Carl formed a limited liability company known as ICS, LLC. Brown v. Szabo (In re Szabo), Bankr.No. 03 B 14242, Adv. No. 05 A 00988, 2006 WL 83408, at * 4 (Bankr. N.D.I11. Jan.9, 2006). Soon after the formation of ICS, LLC, Frank was involved in the company, first as an estimator and then as general manager. (PLEx. No. 3 at 9-10.)
*557In December 1999, an involuntary bankruptcy petition was filed against Szabo Contracting. (Pl.Ex. Nos. 1 & 3 at 7.) In November 2000, after several motions had been filed in the Szabo Contracting bankruptcy ease, Frank provided Carla a quit claim deed conveying the Elmhurst Property to her. (Pl.Ex. No. 5 at 116.) Carla was unaware of the transfer and, although Frank continued to live on the Property, Carla received no rent from Frank. (Trustee Citation Designation C at 10-14; Pl.Ex. No. 5 at 120.)
On August 6, 2001, Frank filed a Chapter 7 bankruptcy petition. (Pl.Ex. Nos. 1 & 3 at 4.) Frank did not list the Elmhurst Property on his bankruptcy schedules. (Frank Szabo Bankr.No. 01 B 27820,' Schedule A, Docket No. 8.) On September 1, 2001, Frank married Carol Szabo1 and a! pre-nuptial agreement between Frank and Carol was signed.2 (Pl.Ex. Nos. 1, 2 at 7 & 10, 4 at 57; Def. Ex. No. 1.)
In January 2002, while Frank was still in bankruptcy, Frank forged Carla’s signature on a quit claim deed conveying the Elmhurst Property to Carol. (Pl.Ex. Nos. 2 at 22 & 5 at 127; Trustee Designation C at 17.) The deed was made out to Carol’s maiden name, Metric, and was sent to her parents’ address in Wheaton, Illinois. (PI. Ex. No. 2 at 22.) Carla was unaware that the Elmhurst Property was in her name, she never transferred the Property to Carol, and she did not authorize Frank to sign her name on the deed. (Trustee Designation C at 17 & 19.)
On February 12, 2002, Frank and Carol obtained a $200,000 revolving line of credit from Oxford Bank which was secured by a mortgage on property located in Naper-ville, Illinois (“Naperville Property”). (PI. Ex. Nos. 1, 2 at 45^6, & 4 at 16.) The line of credit was to be used for investing in ICS, LLC or purchasing real estate. (Pl.Ex. Nos. 2 at 57 & 4 at 15.)
On February 14, 2002, Carol and Frank sold the Elmhurst Property. (Pl.Ex. Nos. 1 & 2 at 29-30.) The sale price was $475,000 and net proceeds of $223,525 were deposited into Frank’s account at Oxford Bank. (Id.) The proceeds of the sale were the property of Frank alone. (PLEx. No. 2 at 37-39.)
On February 19, 2002, Frank and Carol purchased a home in Florida (“Florida Property”) for $429,000. (Pl.Ex. Nos. 1, 2 at 30, & 5 at 137.) The warranty deed was executed and recorded in both Frank and Carol’s name. (Pl.Ex. Nos. 1, 2 at 41, & 5 at 144.) $223,525 of the purchase price came from Frank’s account at Oxford Bank, $200,000 came from the revolving line of credit at Oxford Bank, and the remaining money came from Carol in cash. (Pl.Ex. Nos. 1, 2 at 45-46, & 5 at 142-143.) On March 6, 2002, Frank was discharged from bankruptcy. (Frank Szabo Bankr. No. 01 B 27820, Docket No. 28.)
In April 2002, Frank and Carol obtained a loan for $215,000 from Charter One Bank secured by a mortgage on the Florida Property. (Pl.Ex. Nos. 1, 2 at 48, & 5 at 143.) The proceeds of the loan were used to pay off the revolving line of credit at Oxford Bank and loan closing costs. (Pl.Ex. No. 1; Def. Mem. Opp. 4.) Around this time, Carol transferred Frank’s outstanding credit card balance of $13,400 to *558her credit card account. (Def. Mem. Opp. 4; Pl.Ex. No. 5 at 106.)
In October 2002, Carol and Frank refinanced the original mortgage loan on the Naperville Property in the amount of $149,000. (Pl.Ex. Nos. 1 & 2 at 62-63.) A quit claim deed on the Naperville Property was executed listing Frank and Carol as joint tenants.3 (Id.)
On October 31, 2002, a judgment was entered in Mountbatten’s favor and against Carl and James in the amount of $763,544.31. (Pl.Ex. No. 1; J. Order ¶ 9, Docket No. 49.) After the judgment was entered, Frank agreed to acquire ICS, LLC from Carl and James for $500 each.4 (J. Order ¶ 11.) On November 21, 2002, Frank executed a quit claim deed conveying his interest in the Naperville Property back to Carol.5 (Pl.Ex. Nos. 16 & 2 at 64.)
On March 7, 2003, another judgment was entered in favor of Mountbatten and against James and Carl in the amount of $592,298.46. (J. Order ¶ 9.) On March 31, 2003, James filed a voluntary bankruptcy petition under Chapter 7 of the Bankruptcy Code. (Id. ¶ 5.) On the statement of financial affairs filed in his bankruptcy case, James listed the transfer to Frank of his interest in ICS, LLC in return for Frank’s assumption of secured indebtedness to Oxford Bank. (Id. ¶ 10.) The audited financial statements of ICS, LLC show that James’s and Carl’s equity in ICS, LLC was $333,500 each. (Id. ¶ 11.)
In August 2003, Oxford Bank debited the accounts of ICS, LLC for $330,113.07 and used those funds to pay off several loans between ICS, LLC and Oxford Bank. (Pl.Ex. Nos. 1 & 4 at 6.) Frank and Carol’s line of credit, secured by the Na-perville Property, was not paid off. (PI. Ex. No. 1.) Throughout 2003, Frank made draws on the line of credit to be used for ICS, LLC, increasing the balance to $125,422. (Def. Mem. Opp. 4; Pl.Ex. No. 2 at 57.)
In September 2003, Carol represented herself as owner of ICS, Inc.7 and applied for loans from Fifth Third Bank. (Pl.Ex. Nos. 1, 2 at 70, & 4 at 10.) On September 18, 2003, Carol guaranteed an equipment loan from Fifth Third Bank to ICS, Inc. in the amount of $380,000. (Pl.Ex. Nos. 1, 2 at 80, & 4 at 11.) On October 15, 2003, Frank purportedly provided Carol a self-created pledge of personal property, listing his interest in ICS, LLC, the Naperville Property, and the Florida Property, in an attempt to secure a $135,000 loan and commercial guaranty of $380,000. (Def.Ex. No. 4.)
*559In April 2004, LaSalle Bank completed a foreclosure on property located in Addison, Illinois (“Addison Property”). (Pl.Ex. Nos. 1 & 2 at 80.) Frank owned the Addison Property prior to the foreclosure and since at least 1999, Frank or his children have operated various construction operations out of the Addison Property. (Pl.Ex. No. 4 at 32; PI. Supp. Mem. 2.)
On April, 10, 2004, Frank and Carol obtained loans from Countrywide, secured by a mortgage on the Naperville Property, in the amount of $468,700. (Pl.Ex. No. 1; Def. Mem. Opp. 4.) With the proceeds of that loan, Frank and Carol used the funds to payoff the mortgages on the Naperville Property in the amount of $140,011. (Def.Mem.Opp.4.) The other proceeds were used to payoff $126,268 to Oxford Bank and to payoff the mortgage on the Florida Property in the amount of $200,574. (Id.) On September 2, 2004, the Trustee filed this adversary proceeding against Frank, ICS, LLC, and ICS, Inc. On September 28, 2004, Frank and Carol obtained a loan through Countrywide, secured by a mortgage on the Florida Property, in the amount of $503,250. (Def.Mem.Opp.5.) The proceeds of that loan were used to purchase the Addison Property. (Id.) Frank, along with the seller, signed a purchase agreement for the Addison Property dated September 28, 2004, agreeing to pay the purchase price of $500,000. (Pl.Ex. No. 6.) On September 29, 2004 Frank signed a handwritten document conveying title in the Addison Property to Carol. (Pl.Ex. No. 7.) The tax bills on the Addison Property were to be sent to Frank. (PI. Ex. No. 8.)
On October 30, 2004, a commercial lease on the Addison Property was signed by Frank for ICS, Inc. and Carol for Metrikis Properties. (Pl.Ex. No. 9.) More than a month later, in December 2004, Frank and his attorney created Metrikis Properties on behalf of Carol. (Pl.Ex. No. 12.)
On April 27, 2005, following the hearing of the adversary proceeding against Frank, ICS, LLC, and ICS, Inc., the Court entered judgment in favor of the Trustee and against Frank in the sum of $330,000 under 11 U.S.C. § 548(a)(1)(A) and (B), 11 U.S.C. § 550(a)(1), and 740 ILCS 160 of the Illinois Uniform Fraudulent Transfer Act. (J. Order at 7.) The Court also entered judgment against ICS, Inc. in the sum of $330,000. (Id.)
On May 2, 2005, five days after judgment was entered against Frank, the quit claim deeds on the Naperville Property from Carol to Frank and Carol and the quit claim deed from Frank back to Carol were re-recorded. (Pl.Ex. Nos. 1 & 2 at 64.)
On May 25, 2005, a citation to discover assets was served on Frank and Carol. (Pl.Ex. No. 1.) On May 26, 2005, one day after Frank and Carol were served, Carol transferred title to the Addison Property to Metrikis Properties. (Pl.Ex. Nos. 1 & 11.) On June 29, 2005, Frank appeared for his citation examination but Carol did not appear. (Pl.Ex. Nos. 1 & 4.)
On July 20, 2005, Carol filed a petition for dissolution of marriage against Frank (Pl.Ex. Nos. 1 & 2 at 14.) On July 22, 2005, Frank and Carol’s attorney was terminated in this matter. (Pl.Ex. No. 1.) Frank did not appear for his July 29, 2005 citation because he was without counsel. (Id.) The marital dissolution proceeding was not disclosed until August 9, 2005, the day that judgment for dissolution of the marriage was entered. (Id.) Under the marital settlement agreement, Frank was required to convey his interest in the Florida Property to Carol. (Def.Ex. No. 7.) A clause within the settlement states that Carol owns the Addison Property and Frank has no interest in the Property. *560(Id.) On August 12, 2005, Frank executed and recorded a quit claim deed conveying the Florida Property to Carol. (Pl.Ex. No. 1; Def. Ex. No. 8.)
On August 26, 2005, Carol first appeared for her citation examination, and on October 7, 2005, ICS, Inc., through a designated representative, appeared for its examination. (Pl.Ex. Nos. 2 & 5.)
The instant motion was filed by the Trustee on January 20, 2006. The Trustee alleges that Frank purchased the Addison Property for his own use and benefit, but that Metrikis Properties is the nominal title holder of the Property. The Trustee seeks to enforce the judgment against Frank by imposing a resulting trust on the Addison Property.
III. DISCUSSION
Pursuant to Federal Rule of Bankruptcy Procedure 7068 and Rule 69(a) of the Federal Rules of Civil Procedure, the procedure for enforcing federal court judgments shall be in accordance with the practice and procedure of the state of Illinois. The relevant provisions of Illinois law, 735 III. Comp. Stat. 5/2-1402, allow the judgment creditor to serve a citation in order to find assets that will satisfy the judgment. Under § 5/2-1402(c) a court may compel a judgment debtor to deliver assets to satisfy the judgment or may compel any third party cited to deliver assets if the judgment debtor could recover those assets. In the context of a citation to discover assets in Illinois, the court may impose a resulting trust on assets nominally held by a third party when the judgment debtor retains the beneficial interest in those assets. Kaibab Indus., Inc. v. Family Ready Homes, 111 Ill.App.3d 965, 67 Ill.Dec. 635, 444 N.E.2d 1119, 1126-27 (1983).
A resulting trust is “based upon the ‘natural equity’ that one who pays for property should enjoy it.” In re Estate of Koch, 297 Ill.App.3d 786, 232 Ill.Dec. 189, 697 N.E.2d 931, 933 (1998). It is an “intent enforcing trust” which arises by operation of law from the presumed intent of the parties. In re Estate of Wilson, 81 Ill.2d 349, 43 Ill.Dec. 23, 410 N.E.2d 23, 23 (1980). The presumed intent of the parties is inferred from their conduct, relationship, and surrounding circumstances. Carlson v. Carlson, 74 Ill.App.3d 673, 30 Ill.Dec. 607, 393 N.E.2d 643, 645 (1979); Davenport v. S.I. Sec., 268 B.R. 159, 162-63 (Bankr.N.D.Ill.2001) (citing Fender v. Yagemann, 29 Ill.2d 205, 193 N.E.2d 794, 796 (1963) and Judgment Servs. Corp. v. Sullivan, 321 Ill.App.3d 151, 254 Ill.Dec. 70, 746 N.E.2d 827, 831 (2001)).
In the most common situation involving real property, the general rule is that where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person who paid the purchase price. Carlson, 30 Ill.Dec. 607, 393 N.E.2d at 645; United States v. Marx, 844 F.2d 1303, 1309 (7th Cir.1988).
Under well established precedent in Illinois, a resulting trust arises and vests, if at all, at the time of conveyance. Fender, 193 N.E.2d at 796; Hanley v. Hanley, 14 Ill.2d 566, 152 N.E.2d 879, 882 (1958). The burden of proof to establish such a trust is on the party claiming it, and the evidence must be clear and convincing; if doubtful, or susceptible to other reasonable interpretations, the evidence is insufficient to show a resulting trust. Id; In re Davenport, 268 B.R. 159, 163 (Bankr.N.D.Ill.2001). This clear and convincing standard is a factual determination that is to be decided by the court. Hocking v. Hocking, 76 Ill.App.3d 29, 31 Ill.Dec. 451, 394 N.E.2d 653, 658 (1979).
*561Generally, it is presumed that when a husband gives title to property to his wife, the conveyance is a gift or advancement. Judgment Servs. Corp., 254 Ill.Dec. 70, 746 N.E.2d at 831; Coates v. Coates, 64 Ill.App.3d 914, 21 Ill.Dec. 656, 381 N.E.2d 1200, 1203 (1978). This presumption, however, may be rebutted by clear and convincing evidence. Carlson, 30 Ill.Dec. 607, 393 N.E.2d at 645. Some of the factors tending to overcome this presumption are making of improvements, payment of taxes, mortgage debt, occupancy, exercise of control of the property, and management of the property. Coates, 21 Ill.Dec. 656, 381 N.E.2d at 1204 (citing Scanlon v. Scanlon, 6 Ill.2d 224, 127 N.E.2d 435, 439 (1955)). It is the province of the court to determine whether the evidence is sufficient to overcome such presumptions. Davenport, 268 B.R. at 163 (citing Judgment Servs. Corp., 254 Ill.Dec. 70, 746 N.E.2d at 832). When the evidence presented is contradictory, the factual determinations necessary to decide the matter are left to the court, which has the ability to determine the witnesses’ credibility. Hocking, 31 Ill.Dec. 451, 394 N.E.2d at 658.
In many cases involving a resulting trust, the property owner transferred his or her property to a family member in an effort to prevent the loss of the property. See Carlson, 30 Ill.Dec. 607, 393 N.E.2d at 645 (imposing a resulting trust where wife conveys property to husband to protect the home from being used to satisfy a judgment); Matter of Engel, 87 Ill.App.3d 273, 42 Ill.Dec. 425, 408 N.E.2d 1134, 1136-38 (1980) (imposing a resulting trust where son holds in his bank account funds given to him by his mother while in a nursing home); Coates, 21 Ill.Dec. 656, 381 N.E.2d at 1203-04 (imposing a resulting trust where husband added wife on deed to avoid legal troubles).
The Trustee argues that the evidence in the instant matter points to the fact the Addison Property was transferred to Carol and subsequently to Metrikis Properties in order to deliberately avoid the Trustee and creditors. To support this argument, the Trustee shows that many of the actions of Frank and Carol were taken shortly after and in response to judicial proceedings.8
The Trustee asserts that the Addison Property was purchased by Frank and is now nominally held by Metrikis Properties for the benefit of Frank. The Trustee argues that this is evidenced by several factors and circumstances: (1) Frank signed the purchase contract and agreed to pay for the Addison Property, (2) Within a month of this adversary proceeding being filed against Frank and ICS, Frank transferred the Property to Carol, (3) Carol paid no consideration when Frank conveyed the Addison Property, (4) Frank orchestrated and paid for the creation of Metrikis Properties, (5) Title was then transferred to Metrikis Properties, five days after judgment was entered against Frank in this matter, (6) Frank or his companies paid the taxes on the Property, (7) Frank or his companies occupied the Property before foreclosure, (8) Frank or his companies continually occupied the Property after the conveyance, and (9) there is no evidence that Carol ever occupied or used the Property.
The Trustee also argues that, in an effort to create another interpretation of the facts, Frank and Carol created a series of *562stories and transactions in an attempt to avoid the judgment against Frank. First, Carol claims that she purchased the Addison Property. This claim, however, is quickly dispelled by the fact that Frank signed the purchase agreement and one day later conveyed the Property to Carol. (Pl.Ex. Nos. 6 & 7.)
Second, and most notably, Carol argues that Frank transferred the Property to Carol in order to repay her for loans that she made to him throughout their marriage. According to Carol, when Frank and Carol obtained the $503,250 loan secured by the mortgage on the Florida Property, Frank gave his proceeds to Carol in order to repay a $135,000 loan she made to him for the ICS, LLC business via the line of credit secured by the Naper-ville Property, to secure her guaranty on the Fifth Third Bank loan, and to repay the $13,400 credit card debt that was transferred to Carol’s credit card. (Def. Mem. Opp. 4-5; Def. Ex. No. 4.)
The Court is in the best position to assess the credibility of the witnesses and weigh the evidence. See Anderson v. Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (noting that deference is given to a trial court’s findings that involve credibility of witnesses because only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is stated); Torres v. Wis. Dept. of Health & Social Servs., 838 F.2d 944, 946 (7th Cir.1988) (citing Anderson). This Court does not find Carol’s story to be credible.9 Carol and Frank did not sign promissory notes and did not observe any other usual formalities that evidence a loan. Rather, Carol and Frank attempt to establish the existence of a loan through a homespun pledge of personal property that lists Frank’s interest in ICS, the Florida Property, and the Naperville Property to secure this loan. Other than this document, there is no documentation evidencing the indebtedness of Frank to Carol. Moreover, Carol transferred the Addison Property to Metrikis Properties after she was served with the citation, in violation of the citation’s injunctive provisions.
Neither the transactions leading up to the purchase of the Florida Property nor the transactions leading up to the purchase of the Addison Property show indebtedness of Frank to Carol. The Florida Property was purchased with $223,525 of Frank’s money, $200,000 from a line of credit, and $5,000 in cash from Carol. The line of credit was taken out by both Carol and Frank and was secured by Carol’s Naperville Property. Carol’s property was used solely as collateral for the line of credit. The Naperville Property was not liquidated and two months after the purchase of the Property, Frank and Carol paid off the line of credit with a loan secured by the Florida Property. Thus, the purchase of the Florida Property did not create a debt due from Frank to Carol.
Throughout 2003, Frank made draws on the line of credit, totaling $125,422, for the use and benefit of ICS, LLC. This line of *563credit was secured by a mortgage on Carol’s Naperville Property. Again, the Na-perville Property was used solely as collateral for the line of credit being paid by ICS. The Property was never liquidated to pay for the line of credit. Furthermore, as evidenced by the transactions with Fifth Third Bank, Carol represented herself as part owner of ICS,10 a defendant in this adversary proceeding, and, thus, allowed Frank to draw on the line of credit for the benefit of her company. Therefore, the draws on the line of credit did not create a debt due from Frank to Carol. Similarly, Carol’s guaranty of the equipment loan was made at the same time she represented herself as owner of ICS, Inc. Thus, as part owner, Carol guaranteed a loan on behalf of her company. It cannot now be considered a loan to Frank.
The $13,400 credit card transfer arguably could be considered a loan; however, there is no evidence documenting that an actual loan occurred, rather than a gift. It was not included in the homespun pledge of personal property, and there is no evidence of Frank ever making payments to Carol on the loan.
This Court does not find evidence of a loan between Carol and Frank. Furthermore, Carol’s story is not a reasonable interpretation of the evidence presented. In order to determine the origination of funds used to purchase the Addison Property, this Court must follow the money. It is undisputed that the funds used to purchase the Addison Property were proceeds of a mortgage loan on the Florida Property jointly owned by Frank and Carol. Furthermore, if one follows the money to the point where Frank and Carol purchased the Florida Property, it is clear that Frank and Carol contributed equally to that Property as well. The funds for the purchase of the Florida Property were partially from proceeds of the sale of the Elmhurst Property, Frank’s property, and partially from the proceeds of a loan secured by a mortgage on the Naperville Property, Carol’s property. The funds obtained through the loan secured by Carol’s property and her own cash nearly equals the funds produced by the sale of Frank’s Elmhurst Property. Thus, Carol and Frank contributed an equal share to the purchase of the Addison Property.
In examining the evidence in light of the guidelines set forth above, the Court finds that the circumstances needed to impose a resulting trust are present in this matter. This is a situation where the husband alone entered into a contract to purchase the Addison Property for an agreed upon sum, in which Frank contributed fifty percent of the funds used to purchase the Property. Other factors that indicate an intent to retain a beneficial interest in the property being nominally held by Metrikis Properties include: The husband conveyed the Property to Carol for no consideration, agreed to pay the taxes, occupied the building before and after the conveyance (Pl.Ex.Nos.3-5), and created and paid for the holding company that would eventually hold title to the Property. The totality of the evidence establishes that the Property was conveyed for the purpose of avoiding the Trustee and creditors, while still allowing Frank to benefit from the use of the Property. This Court concludes that the Trustee met his clear and convincing burden. A resulting trust in one-half of the Addison Property arose in favor of Frank *564at the time of conveyance on September 29, 2004.
Judgment was entered against Frank and ICS, Inc. on April 27, 2005, and citations were served upon Frank and Carol on May 25, 2005. After they were served citations, Frank and Carol filed and obtained a judgment for dissolution of their marriage. The property settlement agreement recites that Frank owes Carol $135,000 from the line of credit and that Frank is releasing any interest in the Florida Property. It also recites that Carol purchased the Addison Property with her non-marital assets. As noted above, however, the evidence supports the imposition of a resulting trust on the Addison Property. Furthermore, actions of the parties subsequent to the vesting of title have little effect on the issue of trust, except as to show the original intent of the parties. Hocking, 31 Ill.Dec. 451, 394 N.E.2d at 657. Subsequent declarations or admissions of the parties bear even less eviden-tiary weight than their actions. Id. The resulting trust arose nearly a year before the property settlement agreement. Therefore, because the resulting trust arose and vested at the time of conveyance, it is to be given full effect in these proceedings. For the foregoing reasons, a resulting trust in one-half of the Addison Property arose in favor of Frank and is subject to the enforcement of the judgment.
IV. CONCLUSION
For the foregoing reasons, the Court grants the Trustee’s motion to enforce the judgment and finds that a resulting trust in one-half of the Addison Property arose in favor of Frank and is subject to the enforcement of the judgment.
This Opinion constitutes the Court’s findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021.
. Carol was also known as Carol Lese and Carol Metric, her maiden name. (Pl.Ex. No. 2 at 6 & 27.)
. There is contradicting testimony regarding the pre-nuptial agreement. Frank testified that it was signed after the marriage. Carol testified that it was signed prior to the marriage. The actual pre-nuptial agreement is dated August 26, 2001. (Pl.Ex. Nos. 2 at 10 & 4 at 57; Def. Ex. No. 1.)
. The deed was not recorded until June 27, 2003 and it was re-recorded on May 2, 2005. (Pl.Ex. No. 2 at 64.)
. Three documents were executed to effectuate the transfer of ICS, LLC. (J. Order ¶ 12.) An "Intent to Purchase” was dated June 8, 2002, a "Transfer of Interest” was dated June 30, 2002, and a document entitled "Additional Concideration (sic) for Transfer” was dated June 30, 2002. (Id.) Mr. Sykora, the accountant for ICS, LLC, testified that he drafted the first two documents, but not the third. (Id.) He further testified that the documents he prepared were prepared in November 2002, and that Frank requested that he "back date” the documents. (Id.)
. The deed was not recorded until January 13, 2003, and it was re-recorded on May 2, 2005. (Pl.Ex. Nos. 1 & 2 at 64.)
. This exhibit incorrectly references Carla instead of Carol as the recipient of Frank's interest in the Naperville Property.
. Around May 2003, Frank created ICS, Inc. and was the sole shareholder. However, by August 2003, ICS, Inc. and ICS, LLC were commingled: ICS, Inc.'s receivables were deposited into ICS, LLC’s account and ICS, Inc. was using the checking account of ICS, LLC. (Pl.Ex. No. 4 at 6-7.)
. For example, during Frank’s bankruptcy case, Frank forged his ex-wife’s name on documents conveying property to Carol. Frank purchased ICS, LLC from James for $500 just days after judgment was entered against James. One day after citations were served on Frank and Carol, Carol transferred the Addison Property to Metrikis Properties.
. Both Carol and Frank have contradicted themselves throughout the citation proceedings. For example, in earlier proceedings, Frank explained that he did not know who owned Metrikis Properties. (Pl.Ex. No. 3.) Later in the proceedings, it became clear that not only did Frank help create Metrikis Properties, but his wife, Carol, was the owner of Metrikis Properties. (Pl.Ex. Nos. 3, 4, & 12.) By way of further example, Carol claimed that she was never an owner of ICS, Inc. (Pl.Ex. No. 2.) However, Carol represented herself as an owner of ICS, Inc. while applying for loans on behalf of ICS, Inc. (Id.) In her citation proceedings, Carol later claimed that she misrepresented herself as an owner in order to help Frank. (Id.)
. Carol argues that she is not an owner of ICS, Inc. that she was misrepresenting herself to the bank as owner in order to help Frank. The marital settlement agreement, however, releases Carol from all interest in ICS, Inc. suggesting that Carol had an interest to release. (Def. Ex. No. 7 at Article 5.) | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484899/ | DECISION
This action was brought by Lauti, a chief of Vatia, in Tutuila, and Liolio, a chief of Manua, against Faamau and Tafa, chiefs of Manua, to determine the ownership of the land known as LEFETAU in the settlement of Amouli, Manua.
The evidence presented by both plaintiffs and defendants was contradictory and weak as to important points. The Court endeavored to arrive at the true state of affairs by eliciting evidence from the witnesses produced; it should be remembered, however, that the primary duty of the Court is to hear the testimony that is produced by the parties, and the authority of the Court to question the witnesses is limited, inasmuch as the members of the Court must invariably maintain an impartial attitude .towards both parties to an action.
The preponderance of evidence in this case favors the claim of the plaintiffs, Lauti and Liolio, and the Court is therefore constrained to award the land to the plaintiffs.
Let a decree issue, therefore, vesting the title to the land in dispute, LEFETAU, in the plaintiffs Liolio and Lauti.
*273Costs are assessed at $30.00, to be divided as follows: $10.00 to be paid by Lauti and Liolio and $20.00 to be paid by Faamau and Tafa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484900/ | DECISION
It is evident that open bare-faced perjury has been committed in this case by some of the witnesses, but the Court regrets that it is unable to fix with certainty the crime upon any particular individual.
Nevertheless, it is necessary for this Court to determine the ownership of the land “Vaimanu” and the testimony produced by both sides has been considered by the Court; and while irreconcilable contradictions in the evidence have hampered the Court, the final decision has been unanimously arrived at by all the members of the Court.
The case of Fauaa is not a strong one, but the fact is admitted .that for a great many years, the claim of Alaipalelei has been resisted by the name Fauaa, and it has been resisted even by the counsel for defendant, who has but lately experienced a change of heart. Fauaa and his family *274have planted many cultivations on . the land. The court Relieves that Alapa has planted little or nothing on the land;
The evidence produced by the defendant was self contra-, dictory in many important respects. Alaipalelei stated on oath that he cut copra from the trees belonging to the land; that he did not know who planted the trees. Later he claimed that he had made the cultivations, but the latter statement was palpably an afterthought.
Both Fauaa and Alaipalelei claim that the Missionary Kuki was permitted to go on the land many years ago, but each claims that his side gave the authority. In view of the proceedings at the meeting held in Aitulagi, where the two Sateles, Satele Uga and Satele Pi, pleaded with Alapa to give up the land and Alaipalelei finally agreed to allow the Missionary Kuki to remain, the Court is constrained to find that Kuki went on the land by the authority of the name Fauaa.
It therefore follows that after the death of Kuki and the retirement of Kuki’s family from the land, the ownership reverted to the name Fauaa.
Let a decree issue, therefore, vesting title to the land Vaimanu in the name Fauaa.
Costs are assessed at $50.00, of which $30.00 are to be paid by Alapa and $20.00 by Fauaa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484902/ | DECISION
This is a proceeding brought by the plaintiff Mauga-Moimoi to prevent the defendant Taelase from registering under the name of Mauga.
It is alleged in Section 4 of the Complaint that “Taelase has been proven to have been absent from this Colony for a period of five or six years” and upon the hearing, this allegation was admitted by the defendant. Under Section 1 of Regulation No. 11-1907, which provides, “That no person, who, after the First day of January in the year 1908, has not been a resident continuously of Tutuila or Manu’a for five years immediately preceding the vacancy of a title, shall be eligible to succeed to any title which may, by law, enable the holder of the title to take a public office,” this admission alone is a sufficient reason for denying this defendant the right to register as Mauga.
The Court, however, desires to announce an additional and more general ground for its decision in order to dispose of this controversy finally, and to make known its general policy as to allowing the registration of two persons under the same name.
It appears from the evidence that at certain times in the history of the Mauga Family, there have been two Maugas at once, and at other times only one, and whenever there have been two at the same time, the uncontradicted evidence is that there have been strife, quarrels, and even bloodshed.
*278While under present conditions there could be no resort to actual violence, the court is satisfied that there would be disagreements without number and a state of perpetual disturbance and unrest in this powerful and highly influential family.
Another consideration, which strongly appeals to the Court and should appeal more, strongly to the members of this family, is the well recognized fact that the division of a “matai” name and the possession by each of several persons of a piece of a name (“fasi igoa”) is a sign of natural disintegration and must greatly weaken, if it does not eventually destroy, the strength and greatness of the name.
. In order, therefore, to preserve harmony, and to secure to the name of Mauga its proper dignity and importance, the Court refuses to allow the defendant to register in the name of Mauga. The Court wishes it clearly understood that this same rule will be applied, should other proceedings arise in which it is sought to have two persons registered under the same name.
The right of a second person to register as Mauga is the only question before the court and it does not decide anything as to the right of succession to the name, or as to who will be entitled to name the next Mauga, upon the death or retirement of the present holder of the name.
When this occurs, all persons, of all branches of the family, who are rightfully entitled to a voice in naming the next Mauga, will be recognized in accordance with the proper Samoan Customs relating thereto.
Costs are assessed at $30.00, of which the plaintiff Mauga, will pay $10.00, and the defendant, Taelase, will pay $20.00. . | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484903/ | DECREE OF COURT
This cause coming on to be heard by the High Court of American Samoa, and it appearing to the said Court from the sworn petition filed therein, and from the sworn answers filed by Fanua E. Gurr and C. V. McCarty, Pay Officer United States Naval Station, Tutuila, guardian ad litem for Teuila D. F. Gurr and Bernard Gurr, infants, that E. W. Gurr is trustee, and Fanua E. Gurr and Teuila D.'F. Gurr and Bernard Gurr are the cestui que trustents under certain deeds of trust, conveying certain real estate named in said petition, and that it is necessary for the care and preservation of said real estate and for the maintenance and support of the beneficiary Fanua E. Gurr and for the maintenance, support and education of the beneficiaries, Teuila D. F. Gurr and Bernard Gurr, that the interest of said beneficiaries in a part of said real estate be sold by said trustee:
*280Now therefore, it is ordered and adjudged by the said High Court that the said E. W. Gurr, trustee, be and he is hereby empowered and directed to sell at public auction or private sale, the right, title and interest of said beneficiaries in the lot or parcel of land particularly described in the petition, said tract or parcel of land being part of the land known as Maloloa, together with the dwelling-house situaated thereon and all other appurtenances thereto belonging; and said E. W. Gurr, trustee, is ordered to execute and deliver to the purchaser all necessary and proper deeds and conveyances to the right, title and interest of said beneficiaries in said parcel of land and the dwelling-house situated thereon; and the said E. W. Gurr, trustee, is authorized to receive the proceeds of said sale, and he is directed to expend so much of the same as, in his judgment is necessary for the care and preservation of the real estate named in the petition, for the support and maintenance of said Fanua E. Gurr and for the support, maintenance and education of the beneficiaries Teuila D. F. Gurr and Bernard Gurr, and to invest the residue of said proceeds, if any, for the benefit of said beneficiaries, paying the income derived from said investment to the beneficiaries in accordance with the deed of trust conveying to him the tract of land known as Maloloa. And said E. W. Gurr, trustee, is directed to file an annual account with the High Court of American Samoa showing in detail the expenditure and investment of the proceeds of said sale. And .this proceeding is retained for such further orders and decrees as to this court may seem necessary. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484904/ | The transactions which form the basis for this action are as follows:—
The defendant, Thomas Meredith, purchased, through one C. R. Shoup, an Engine for his vessel, the “ANNIE”, from the Anderson Engine Company. The purchase price of this engine was Thirteen Hundred and Fifty-two Dollars and eighty-five cents ($1,852.85), of which Four Hundred Dollars ($400.00) was paid before the Engine was shipped. The Bill of Lading and instructions, sent by the Anderson Engine Company, that the Engine was not to be delivered until the balance due was paid, did not arrive until several weeks after the Engine, and upon the defendant, Thomas Meredith, executing a letter of Indemnity to the Deutschen Handels und Plantagen-Gesellschaft der Sudseeinsein zu Hamburg, the Plaintiff, which Company is the Agent of the carrier, The Oceanic Steamship Company, the Engine was delivered to said Thomas Meredith. The balance due at the time of the delivery, together with freight, amounted to Eleven Hundred and Twenty-one Dollars and eight cents ($1,121.08). The sum of Seven Hundred and Fifty Dollars ($750.00) was paid upon the purchase price, after the receipt of the Engine, but the vessel having been wrecked *282and a balance of Three Hundred and Seventy-one Dollars and eight cents ($371.08) remaining unpaid, demand was made by the Anderson Engine Company upon the Oceanic Steamship Company for this amount and the Oceanic Steamship Company in turn- demanded payment from its agent, the Plaintiff. The Plaintiff paid the balance of Three Hundred and Seventy-one Dollars and eight cents ($371.08) on February 1st, 1915, a.nd now seeks to recover this amount with interest from that date, from Thomas Meredith and Annie T. Meredith, his wife. There can be no doubt about the liability of Thomas Meredith, for he' executed the letter of Indemnity, received the Engine} and made payments upon it. There is no evidence to show that the defendant, Annie T. Meredith, was a party, or in any way connected with the original transaction, or that she subsequently assumed any liability for any part of the purchase price of the Engine. The action is therefore dismissed as to the said Annie T. Meredith. As to the other defendant, Thomas Meredith, the judgment of the Court is that the Plaintiff, the D. H. & P. G. Co., recover of the said Thomas Meredith, the sum of Three Hundred, and Seventy-one Dollars and eight cents ($371.08), with interest at the rate of 8 % per annum on that amount, from February 1st, 1915, until paid, and that he be taxed with the costs in the sum of Ten Dollars ($10.00). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494078/ | MAHONEY, Bankruptcy Judge.
This is an appeal from a decision of the bankruptcy court1 which determined that a real estate transaction entered into between the debtors and Blue Heron, Inc., was not a fraudulent conveyance under Minnesota law because the debtors were not insolvent at the time of the transaction and were not made insolvent as a result of the transaction. The debtors, operating as debtors in possession in a Chapter 11 case, brought this action, in part, to avoid the real estate transaction by the exercise of the avoidance powers provided to debtors in possession by 11 U.S.C. § 544. In the bankruptcy court, the debtors also argued that there had been a violation of the *596Minnesota Consumer Fraud Act (Minn. Stat. § 325F.69), and that there had been a breach of contract. Those arguments were abandoned on appeal.
We affirm the decision of the bankruptcy court.
STANDARD OF REVIEW
The bankruptcy court’s factual findings are reviewed for clear error and its conclusions of law are reviewed de novo. Moon v. Anderson (In re Hixon), 387 F.3d 695, 700 (8th Cir.2004). A bankruptcy court’s finding regarding solvency is reviewed for clear error. Northwest Vill. Ltd. P’ship v. Franke (In re West-pointe, L.P.), 241 F.3d 1005, 1007 (8th Cir.2001).
DISCUSSION
To aid in understanding the complexity of this ease, the transaction needs to be described in detail. The bankruptcy court explained the history of the relationship between the debtors (referred to during the trial and hereafter as “the Phongs”) and Blue Heron and the substance of the transaction, as follows:
In June of 2003, the plaintiffs owned four parcels of real estate. They are referenced here as:
[[Image here]]
Three of the four properties were real estate investments. The Hominy Path property was the Phongs’ newly acquired homestead. The Fremont Ave. property liability included a mechanic’s lien in the amount of $250,000, owing Castle Roofing for repairs caused by a fire. The work was completed in the spring of 2003 and the amount was due in June. In the months shortly before the mechanic’s lien was due, the Phongs purchased both the Hominy and Chicago Ave. properties, using $400,000 in cash. They sought financing to pay the mechanic’s lien.
Mr. Phong had discussions with at least one, and possibly two, traditional lenders, but did not obtain traditional financing to cover the lien. Instead, he was introduced to the defendant Mark Erjavec, who was the owner of Blue Heron, which was in the business of purchasing mortgages in foreclosure. According to Mr. Phong, Mr. Erjavec offered to purchase all four properties from the Phongs and sell them back on a contract for deed. Additionally, according to Mr. Phong, Mr. Erjavec agreed to participate with Mr. Phong in partnership to enable Mr. Phong to acquire deteriorated properties that he could fix up and sell profitably, enabling him to make the increased payments that would be required to service the increased debt load. Mr. Phong testified that he was guaranteed ten to twelve properties per year. Finally, Mr. Phong testified that Mr. Erjavec assured him that an equity cushion of between $85,000 and $100,000 was available as a source to fund the increased payments in the meantime.
Mr. Erjavec disputes that there was an agreement, partnership or otherwise, but, acknowledges that the parties discussed generally a cooperative effort in obtaining and dealing with deteriorated properties. There was no discussion or *597agreement regarding how the acquisition of such properties would be financed, who would hold title, or how any profits would be applied between the parties. And, there was no written me-morialization of any arrangement. Mr. Erjavec disclaimed any knowledge regarding an equity cushion to fund increased payments and denied making any such representation.
Sometime in early June 2003, Mr. Er-javec delivered to the Phongs a draft of a proposed agreement and contract for deed. He testified that he went over the documents with the Phongs, reading and explaining the major portions. Included in the draft agreement, and also included in the agreement eventually signed, was this provision:
The Phongsisattanaks acknowledge and promise that this Agreement and the Contract for Deed reflect the entire agreement between them and Blue Heron and that there were (or are) no oral representations which are being relied upon by them as a basis for their decision to enter into this transaction with Blue Heron, Inc. Further, the Phongsisattanks [sic] acknowledge that any statements made prior to execution of the transaction documents by Blue Heron, Inc., its agents or employees, or yourself, outside this Agreement and the Contract for Deed have been disregarded by them as statements made during negotiations leading up to this transaction.
(Par. 8, p. 4., Def.Ex.K).
On June 30, 2003, the parties signed an agreement substantially the same as the earlier draft, and the defendants signed a contract for deed to the Phongs for the total purchase price of $950,000 for the four properties. The price was arrived at by adding up all liabilities against the properties, plus a $50,000 cash payment by the defendants to the Phongs, closing costs in the approximate amount of $18,000, and a fee assessed by the defendants for their participation. The agreement provided that the defendants were to assume the existing mortgages and pay the contract for deed on the Chicago property. The contract for deed recited that it was given by Blue Heron, subject to existing financing, but obligated the vendor to convey a marketable title to the Phongs upon payment of the contract in full. The Phongs delivered their warranty deed, subject to existing encumbrances, to Blue Heron on July 9, 2003.
The contract for deed required monthly payments from the Phongs of $7,304.68. No payments were made. No payments were made by the defendants on the mortgages and Chicago contract for deed either. Sometime late in the summer of 2003, the Phongs were contacted by at least one of the mortgagees and told that a delinquency existed. When informed of the transaction with the defendants, the mortgagee told the Phongs that the mortgage was not assumable, but, had a “due on sale” clause.
Mr. Phong contacted Mr. Erjavec, who acknowledged that he had made no payments on the mortgages and the Chicago contract for deed because the Phongs had made no payments to Blue Heron. At that point, Mr. Phong indicated that he wished to make the mortgage payments directly. Mr. Erjavec agreed and prepared a new amortization schedule for the payments due Blue Heron from the Phongs in the monthly amount of $2,500. The Phongs made a total of $4,000 to the defendants under the revised schedule by February 2004.
*598In February, Blue Heron assigned its rights under the Phong contract for deed to a company called Caberallo. The defendants had borrowed $240,000 from the principal of Caerallo [sic] to fund the Phong agreement and contract for deed. In return for the assignment, Caberallo cancelled all indebtedness owing the principal from the defendants.
In March 2003, Caberallo served the Phongs a notice of cancellation of the Phong contract for deed. The Phongs retained an attorney, who advised Ca-berallo that the contract for deed was an equitable mortgage and could not be cancelled, but, must be foreclosed upon as a traditional mortgage. Apparently, the assertion was persuasive. The parties entered into a written agreement substantially altering their rights and obligations under the contract for deed.
It was agreed that the non-homestead properties would be sold, all mortgages encumbering them paid out of the proceeds, and that the Phongs would receive marketable title to their Hominy homestead property. The Phongs were to pay $10,000 toward the balance of the contract for deed on the Chicago property, Caberallo would pay $65,000. The marketable title to the Hominy property was to be delivered upon the release of certain tax liens on the Chicago property resulting from the vendor’s liability for taxes owing the IRS. The agreement between the Phongs and Caberallo was fully consummated, except that the Phongs were given a limited warranty deed to their Hominy property. Caber-allo did not satisfy the Phongs’ purchase money mortgage on that property.
Order for Judgment at 2-6, Appellant’s Supplemental App., Tab 1 (footnotes omitted).
The court then found that, at the time of the transaction, the debtors were not insolvent, nor did the transaction render the debtors insolvent. On page 7 of the order, the court clearly laid out the status of the equity of the debtors after the transaction:
After the transaction, the plaintiffs’ equity was reduced only by the closing costs and transaction fee assessed against them, leaving them with an equity position of $410,200. This was their position following delivery of the deed:
[[Image here]]
Id. at 7.
A transfer is fraudulent as to pre-transfer creditors under Minnesota law if it is made by a debtor for less than reasonably equivalent value received when the debtor is either insolvent at the time of the transfer or is rendered insolvent by it. *599Minn.Stat. § 513.45(a).2 The bankruptcy-court correctly found, based upon an analysis of the testimony of the expert witness for the defendants, that because the debtors were solvent at all times, they had failed to meet their burden with regard to insolvency and therefore could not prevail on the fraudulent conveyance action.
On appeal, the debtors/appellants suggest that the bankruptcy court erred because it chose to believe the numbers presented by that expert, rather than the numbers presented by their own expert.3 A factual finding is “clearly erroneous” when although there is 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. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). When two permissible views of the evidence exist, the factfinder’s choice between them cannot be clearly erroneous. Anderson, 470 U.S. at 574, 105 S.Ct. 1504 (citing United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949)).
We find that the trial judge’s determination that the debtors/appellants were not insolvent at any time with regard to this transaction is not clearly erroneous. Since there cannot be a fraudulent conveyance under Minnesota law unless the transferor is insolvent at the time of the transaction or is made insolvent by the transaction, we affirm.
. The Honorable Dennis D. O’Brien, United States Bankruptcy Judge for the District of Minnesota.
. 513.45. Transfers fraudulent as to present creditors
(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
(b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.
. Debtors appealed the finding that the transaction with Blue Heron was not actually a sale but was an equitable mortgage. The characterization of the transaction does not change the numbers, and does not affect the solvency/insolvency determination. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484906/ | This cause coming on to be heard before His Honor, A. M. Noble, Associate Member of the High Court, plaintiff and defendant both being present, and it appearing to the Court that the matters in controversy have been amicably settled.
It is therefore, ordered, considered and adjudged by the Court that the plaintiff “VAA” is entitled to register himself under the “matai” name “SALANOA”, in the Register of “Matai” Titles in the office of the Secretary of Native Affairs.
It is further ordered, considered and adjudged by the Court that the cost of this action, to-wit, $10.00 be paid by the plaintiff “VAA”. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484907/ | DECISION
Guilty as charged in the indictment.
Sentence: To be confined at hard labor, for the duration of the present war with the Imperial German Government.
Recommendation as to Clemency.
The evidence shows that there has been, and probably now exists, considerable feeling between the Robert Reid and Huch families. In view of this, the possibility is recognized of the evidence as to Huch’s utterances being unconsciously somewhat over-emphasized or colored by such personal feeling. The evidence also shows that Huch is a half-caste, his father being German and his mother Samoan, and that his reputation has been generally good. For these reasons, considering his status and limited outlook, it is thought not unlikely that Huch was not fully cognizant of the serious nature of his threats, and that, speaking, as he did, in his own home circle, possibly he thoughtlessly uttered them in unpremeditated heat. The Court, therefore, recommends Huch to such clemency from the Executive as appears compatible with the safety of the Government’s interest. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484908/ | Rough Record
The above-entitled action is to try title to the “matai” name “TAGO”, who is to be the “matai” of the “TAGO” family and who is ,to be recognized as such by the Government and entitled to register the said name “TAGO”.
Court convened at 10 A.M., Wednesday, February 26th, 1919, under precept signed by J. M. Poyer,. Governor and President of the High Court.
Case called.
Parties present.
Both Plaintiff and Defendant, after being asked by the Senior Member of the Court if they were ready to proceed with trial, stated that they were ready.
The Plaintiff asked the Court if Metu could act as his counsel, which was granted.
The Defendant asked the Court if Nelson could act as his counsel, which was granted. ' • "
The Court ruled that the burden of proof by the greater weight of the evidence was upon the Defendant, Fafai, to show that'he has a right to register the “matai” name, “TAGO”. " " VA/"
*287FAFAI, the- defendant, after being duly sworn, testified as follows:—
Examination.by Counsel for Defendant, Nelson.
When was the name registered by you ?
June 8th, 1917.
When you filed the name for registration and put up notice, did anybody make objection to the registration of the name by you?
No.
How many days, months or years was it before objection was filed?
Records of the Court were here introduced which showed that the complaint was filed within twenty-three (23) days after the notice was posted.
By whose permission did you offer the name for registration?
By the permission of the Descendant of Mua.
Has Mua any descendants living?
Yes.
By what name?
Vaioli.
Cross examination by counsel for Plaintiff, Metu.
Are you sure that the descendant of Mua gave you the right to this name, Tago ?
I have no right to the name Tago myself, except through the “pule” of Mua.
Are you related to the descendant of Mua or are you related to Puletapuai?
I am not related to the descendant of Mua, Mua is related to Puletapuai, but he has no right to hold the name just the same as myself.
Who offered the registration of your name?
I.
Who is Mua’s father?
Taganekotemo.
Where did Vaioli obtain his right to this name from?
Vaioli is a son of the daughter of Mua.
¡Did his mother give the right to Vaioli?
Vaioli is a descendant but Luka (Puletapuai) had the name at that time, Luka (Puletapuai) turn the right over to Vaioli.
*288Did Taanuu, the mother of Vaioli give the right to this name to Puletapuai — Luka ?
Yes.
If it is true that Taanuu gave the right to this name to Luka, how could she give it to Vaioli also?
Puletapuai has just come to the village of Amanavae.
Are you sure that Puletapuai has just come to the village of Amanavae?
Yes, for we came together.
When Tagaluka had the “pule”, are you sure that he gave the right to Vaioli?
Yes, I am sure, because you were not present at the time.
If it is true that Puleluka turn over the right to Vaioli, why is it that the family are objection?
Because he has done some crooked thing, that he agreed that an adopted son should have the name, which has caused all the trouble. Examination by the Court, Judge Noble.
Is Puletapuai now living?
Yes sir.
How long did he hold the name, Tago ?
For several years.
In what way is Puletapuai related to the family of Tago ?
Because at the time he got the name there was no true male descendant in the family, that is no grown male descendant in the family at that time.
Don’t you know it to be a fact that Puletapuai has held the name for a long number of years and that he is related to the family of Tago, and as such, held the name, Tago, for a long number of years ?
It is true that he held the name, Tago, but he is not related in any way.
He is not related in any way?
No, sir.
Isn’t it true according to the Samoan Customs, that when a man resigns a “matai” name and names his successor, and the family concur with him, the man who is named by the one resigning is supposed to hold the name, according to the Samoan Custom?
Yes sir, but they are mistaken about this.
Isn’t it a fact that Puletapuai named a man, by name Piu, to hold the name Tago? and hasn’t the family agreed that Piu shall hold the name, Tago?
He didn’t inform the family that he had done this.
*289Hasn’t he decided on Piu now to hold the name?
Yes sir.
Isn’t it true that the only man who is objecting is Yaioli, and that the only way in which he is related to the family of Tago, is that he is a son of a daughter of a former Tago ?
Other members of the family have agreed upon Piu, but they all agreed upon me at first.
Now all of them want Piu?
I don’t know about that.
You then are not related to the family?
No sir.
The only claim you have to the right to register the name is that Yaioli a son of a daughter of a former Tago, gives you that right?
Exactly.
And Puletapuai, who was the last man to hold the name, Tago, and who held it for a number of years, is still living?
Yes sir.
And he wishes that Piu should succeed to the name, Tago?
Yes sir.
Witness Excused.
Case closed for Judgment, in favor of the Plaintiffs, and that .the costs of this action, to-wit: $20.00 be taxed against the defendant, Fafai.
Judgment: — That the defendant, Fafai, has no right to register the name Tago, and further that Piu, since he has been appointed to hold the name by the last Tago has the right to register the name, it is therefore ordered that he do so. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484910/ | JUDGMENT
This proceeding coming on to be heard by the High Court of American Samoa and it appearing to said Court that the land and premises, hereinafter described, being required by the United States Government for public purpose; viz., “Additional Fresh Water Supply, Tutuila, Samoa”, and it being desired to acquire the same in accordance with the laws of American Samoa (Codification of Regulations etc., Section 41), notice under the hand of the Registrar of Titles, dated November 21st, 1917, in the form required by law (Codification, Section 41, Schedule “A”) was duly served upon MAUGA, S. MAILO, TIUMALU, SAVEA, MAGEO, GAISOA, FANG, LETI, A. ASUEGA and HO CHING, these being all the parties interested as owners or otherwise in the hereinafter described land and premises, diligent inquiry having been made by the said Registrar of Titles to ascertain such interested persons and public notice having been duly given requiring all persons to make known to said Registrar of Titles their claims to any right or interest in said land and premises: And it further appearing that pursuant to said notice the said persons did on December 21st, 1917, appear before *292said Registrar of Titles but failed to state specifically the nature and grounds of their claims and the compensation demanded, thereby making it impossible for the said Government of the United States either to accept or refuse their demands as prescribed by law (Codification, Section 41, Subsections 7 and 8), and making a determination by reference to arbitrators necessary (Codification, Section 41, Subsection 10); and it further appearing to the Court that thereafter three arbitrators were duly appointed in accordance with law (Codification, Section 41, Subsection 11), who filed in writing with the said Registrar of Titles an award, assessing at the sum of Four Hundred and Fifty ($450.00) Dollars the value of the water shed, dam site, right-of-way for pipe line and all other lands and premises required by the Government of the United States for “Additional Fresh Water Supply, Tutuila, Samoa”, which land and premises are fully described as follows: I. A strip of land for the pipe line and surge pipe line for “Additional Fresh Water Supply, Tutuila, Samoa” and described as follows: A strip of land thirty (30) feet above and thirty (30) feet below, measured vertically, the location of the pipe line, including the actual location of the pipe line and including a strip of land thirty (30) feet on each side of a line extending up the hillside for a distance of one hundred (100) feet, for installation of a surge pipe line, at a distance of two hundred and eighty-seven (287) feet along the pipe line, from the initial point of the pipe line. 2. The site of the dam for said “Additional Fresh Water Supply, Tutuila, Samoa”, at a station 4411, or at a distance of four thousand, four hundred and eleven (4411) feet from the initial point. 3. The water shed for said “Additional Fresh Water Supply, Tutuila, Samoa”, is fully described as follows: Comprising all land draining into the valley of Faagalu Stream, from the tops of the *293mountain peaks to and including the site of the proposed dam, which is to he located at an elevation of seven hundred and ninety-one (791) feet above high water at this Station, containing seventy-six (76) acres of land, measured on the horizontal, starting at the location of the dam, thence South Magnetic for a distance of one thousand (1000) feet, measured horizontally; thence South fifteen (15) degrees West Magnetic for a distance of five hundred and fifty (550) feet, measured horizontally, to the top of the mountain peak named Matafao; thence North sixty-five (65) degrees West Magnetic for a distance of fifteen hundred (1500) feet measured horizontally, to the top of the mountain peak named Palapaloa; thence North sixty-three (63) degrees East Magnetic for a distance of twenty-five hundred and fifty (2550) feet, measured horizontally, to the top of the mountain peak, without name, and at an elevation of approximately fourteen hundred (1400) feet above sea level; thence South five (5) degrees West Magnetic for a distance of twelve hundred and fifty (1250) feet measured horizontally, .to the location of the dam.
And it further appearing to the Court that all other proceedings for the acquisition of land and premises, in American Samoa, for public purposes have been carried out in accordance with law: And it further appearing that the claims of the parties hereinbefore named are conflicting and that, unless said parties come to an agreement among themselves, it will be necessary to determine said claims by law: Now, Therefore, it is ordered and adjudged by the High Court that the award of the arbitrators, assessing the value of the land and premises heretofore described, at Four Hundred and Fifty ($450.00) Dollars, is hereby confirmed, and that upon the payment by the Government of the United States of the sum of Four Hundred and Fifty ($450.00) Dollars into the High Court of American Samoa, *294the said Registrar of Titles will in accordance with law (Codification, Section 41, Subsection 15) execute or procure the execution of a Deed Absolute, conveying all the right, title and interest in and to said land and premises, heretofore described, to the said Government of the United States and its successors and assignees: And it is further ordered that the sum of Four Hundred and Fifty ($450.00) Dollars shall be deposited, at interest, in the Bank of American Samoa, until such time as the claimants to said land and premises shall agree among themselves or until their claims shall be determined by law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484912/ | JUDGMENT
This case coming on to be heard by the High Court and it appearing to the High Court that the defendant purchased the land in controversy from a native chief, MATUU about thirty years ago for the sum of $60.00, which sum was paid by him, and it further appearing to the Court that the defendant is a foreigner and that he did not comply with Codification, Section 44, as to Registration of Land by persons other than Samoans and that therefore the land cannot now be registered by him; It is therefore ordered and adjudged that the rightful title to the land in controversy is vested in MATUU, the native proprietor, from whom the land was purchased and those persons who are rightfully entitled to stand in his place, if he be dead, and that such native proprietor or those entitled under him shall pay to the said defendant the sum of $60.00 with interest at the rate of eight per cent per annum from January 1st, 1887 until said sum is paid and that until the payment of said sum with interest said defendant shall retain possession of said land and shall have an equitable lien upon the same for the payment of the sum above named with interest.
*297It is further ordered and adjudged that the plaintiffs Atofau and Leoso pay $10.00 costs and that the defendant pay $10.00 costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484913/ | ORDER
This cause coming on to be heard before his Honor A. M. Noble, Judge of the High Court, upon motion of the defendant, Salavea, N., that he be permitted to continue the use of the Salavea name, pending the trial in the High Court, entitled Salavea, F. against Salavea, N., and all parties being present; and it appearing to the Court that the defendant, Salavea, N., has held and enjoyed the use of the name, Salavea, since the death of his father, Salavea, Malua, in the year 1908, without objection having been filed in the Court to the use of the name, Salavea, by any member of the Salavea family: It is therefore ordered, considered and adjudged by the Court that the defendant, Salavea, N., shall continue to hold and enjoy the use of said name with all the honors thereto appertaining until said cause shall have been determined in the High Court of American Samoa.
*298It is further ordered, considered and adjudged that the said Salavea, N., shall not interfere in any manner whatsoever with the lands over which the said Salavea, F.,. has control or over the land “FAATAUALA” now pending in the High Court of American Samoa.
It is further ordered, considered and adjudged, that no member of the Salavea family shall in any manner interfere with the said Salavea, N., in his use and enjoyment of the name, Salavea, until said trial, now pending in the High Court, shall have been fully determined. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484914/ | FINAL JUDGMENT
Under the terms of the Deed to the land in controversy, from TALAMAIVAO, as construed by the High Court, in Toomata v. People of Leone, 1 A.S.R. 142 (1906), the title to the land in controversy, a portion of the land “LEGAOA”, is vested in TOOMATA, now known as TUITELE, TALI and AMELIA VA. The portion of the land “LEGAOA”, which was given by this deed to AMELIA VA alone was by the High Court, in said case, awarded to the people of Leone.
*299The plaintiffs in this case have no standing in Court, at the present time, as their mother, AMELIA VA, is still living and has not conveyed her interest in said land to them.
The Judgment of the High Court is that the title to the land in controversy is vested in TOOMATA, now known as TUITELE, TALI and AMELIA VA, as tenants in common, each of these persons having an equal interest in the same.
The costs of this case are assessed at Twenty ($20.00) Dollars, of which Ten ($10.00) Dollars is to be paid by the plaintiffs and Ten ($10.00) Dollars by the defendants. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484916/ | DECISION
This is an action brought by the plaintiffs to prevent the registration of the “matai” name Vaotuua by the defendant, and to determine the claim of the plaintiffs to the “pule” in the “matai” name Vaotuua.
The records show that on August 24th, 1918, the defendant filed notice of his intention to register himself as Vaotuua-Tapili, and that objection to said registration was on September 10th, 1918 filed in the High Court by the plaintiffs.
The defendant contends that he has held the name Vaotuua since the death of his father Vaotuua-Ioani, in or about the year 1910, through the “pule” of his father and Neli, and that his name is registered in the Register of “Matai” Titles.
*301The plaintiffs admit that the defendant has held the name Vaotuua since the death of Vaotuua-Ioani; but claim that said name was given to defendant by the plaintiff. Taeleolo, who is the owner of the “pule” in the name, and that as the defendant did not register his name at the time as required by law, they now object to his registration of the same, unless he acknowledges the “pule” of the plaintiff, Taeleolo, in the name Vaotuua, and admits that he registers said name by and with her consent.
The Register of “Matai” Titles shows that Vaotuua-Tapili is not registered, but that the father of Tapili did register the name Vaotuua as required by law. That court has found from the trial of former cases, that many who have succeeded to “matai” titles since the enactment of the law (Regulation No. 8-1906, Section 45 of the Codification) requiring every person succeeding to the title of “matai” after October 31, 1906, to give notice to the Secretary of Native Affairs of said succession for registration, have, through ignorance and a lack of understanding of the law, been under the impression that once the “matai” name was registered it was sufficient compliance with the law, and such seems to be true in the case at issue. The father of Tapili having registered the “matai” name Vaotuua, the defendant, Tapili, understood the law to have been complied with, and that he did not have to register himself. The plaintiff Taeleolo admits that Tapili has held the name since the death of his father in 1910, and that in the month of August 1918 having learned that he had not complied with the law attempted to do so. The plaintiff Taeleolo also states .that the defendant was given the name by her. If as the plaintiff, Taeleolo, claims the name Vaotuua was given to defendant by her (which claim, however, the court does not find as a fact) and that he held the same for a period of approximately eight years without any objection on her part, he, the defendant *302believing that he had complied with both Samoan Customs and the laws of American Samoa, the Court holds that the plaintiffs are now estopped to deny the right of the defendant to have his name registered as Yaotuua-Tapili.
The other question presented is, as to the rights of the plaintiffs, Taeleolo and Sati, in the name Vaotuua. On this point the evidence is directly conflicting, each witness contradicting himself or herself, as well as every other witness. That part of the evidence, however, that is most reconcilable leads the court to the conclusion that the plaintiff, Taeleolo, is a true descendant of .the Vaotuua, and as such has the right to a voice in all matters affecting the Vaotuua family.
The Court decides that the “pule” in the name Vaotuua should not and does not belong to any one person to do with as she or he sees fit. That neither the plaintiffs Taeleolo or Sati, the defendant, Tapili, or the witness Neli, as claimed by them, have the sole “pule” in the name Vaotuua, but that the right to name the person to the name Vaotuua shall remain with the true descendants of the Vaotuua. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484917/ | JUDGMENT
This cause coming on to be heard and it appearing to the Court that the matters in controversy have been amicably settled between the plaintiffs and defendant, it is therefore considered, ordered and adjudged that the action be dismissed.
It is further ordered, considered and adjudged that the defendant Tafisi is entitled to register himself under the “matai” name “Maiava”. Plaintiffs pay cost of action $10.00. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484918/ | JUDGMENT
This cause coming on to be heard before His Honor A. M. Noble, Associate Member of the High Court, and it appearing to the Court that the matters in controversy have been amicably settled between the parties, plaintiffs and defendant.
It is therefore ordered, considered and adjudged that the action be dismissed.
It is further ordered, considered and adjudged that the plaintiffs pay the cost of this action, to-wit, $10.00. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484921/ | JUDGMENT
This cause coming on to be heard before their Honors A. M. Noble and Molioo on the 30th day of January, 1919, and it appearing to the Court that the subject matter of this action, to-wit; the land “LE’OFE” is embraced in the land “LEUSI”, which said land was by a former judgment of the High Court of American Samoa, on the 9th day of January, 1908, in a certain action entitled Alapa & Nuutofia v. Uo-Sopoaga, 1 A.S.R. 154 (1907), ordered and adjudged to be the property of the defendant Uo-Sopoaga in trust, however, for .the use and benefit of his wife, Yea and her children.
It is therefore ordered, considered and adjudged that the plaintiff take a non-suit.
It is further ordered, considered and adjudged that the costs of this action, to-wit; $10.00 be taxed against the plaintiff in this action. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484922/ | JUDGMENT
This cause coming on to be heard before their Honors A. M. Noble and Molioo on the 30th day of January, 1919, and being heard:—
It is ordered, considered and adjudged by the Court that the land “PU’AVAI” is, and the same is hereby declared to be the property of the Ilaoa family and that the holder of the “matai” name Ilaoa, shall have and exercise authority over the same and shall hold and use the same for the benefit of the members of the Ilaoa family.
It is further ordered, considered and adjudged that the costs of this action, to-wit; $20.00 be taxed against Maloata, the defendant in this action. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487476/ | Verdict, guilty; damages £16.
Judgment pronounced according to the Act of Assembly, May Term. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484923/ | JUDGMENT
This cause coming on to be heard before their Honors A. M. Noble and Molioo on the 30th day of January, 1919, and it appearing to the Court that the subject matter of this action, to-wit; the land “ALOFA”, was on the 25th day of July, 1917, sold and conveyed by the plaintiff Vele to the defendant Uo, as will fully appear by reference to Volume Two, Register of Transfers of the U.S. Naval Station, Tutuila, at pages 39 to 43 inclusive.
It is therefore ordered, considered and adjudged by the Court that the plaintiff take a non-suit.
It is further ordered, considered and adjudged that the costs in this action, to-wit; $10.00 be taxed against the plaintiff in this action. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484925/ | JUDGMENT
This cause coming on to be heard and it appearing to the Court that the parties to this action have reached an amicable settlement of the matter in controversy.
It is therefore, by consent of the parties to this action, ordered, considered and adjudged by the Court that the holder of the “matai” name, Sagatu, shall, at the request of the holder of the “matai” name, Faumuina, name the young man to hold the title, Nofoatolu, which said name, Nofoatolu shall render service to the “matai” name Faumuina, according to the Samoan Custom.
It is further ordered, considered and adjudged by the Court that the holder of the “matai” name Sagatu, shall, in naming the man to hold the title Nofoatolu, name a man who is a member of either the Sagatu or Faumuina family, and no other.
This the 21st of February, 1919. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484927/ | FINAL JUDGMENT
This case coming on to be heard and being heard before Judges, A. M. Noble, Molioo and Leaana, on the 19th day of November, 1919, and it appearing to the Court that all matters in dispute have been amicably settled by the parties to this action.
It is therefore, ordered, considered and adjudged, with and by the consent of the parties, Plaintiff and Defendants, that the said Sitaua, is by and with the consent of the members of the TOILOLO family permitted to register himself in the records of “Matai Titles” in the office of the Secretary of Native Affairs of American Samoa, under the “matai” name “Toilolo,” of the village of Fagali’i.
*314It is further ordered, considered and adjudged that the cost, $20.00 shall be divided equally between Plaintiffs and Defendants.
This the 19th day of November, 1919. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484928/ | DECISION
This is an action to try title to that certain tract of land adjoining the lands of the United States Naval Station, A. D. Meredith and others, on which is situated a small building occupied as a restaurant; and which said action came on to be heard in the High Court of American Samoa on the 19th day of November 1919 before Judges A. M. Noble, Pres. Leaana and Molioo, Associate Members of the High Court.
On the date of trial S. Mailo asked permission of the Court to file his claim to the land in question, and no objection being offered by either plaintiff or defendant, the request was granted.
*315In the trial of this case there was no dispute as to the original ownership of the land, all claiming from the' same source, the sole question being whether the land in question had passed out of the hands of the “matai” Mailo, and if so, where lay the present “pule” in the lands.
From the evidence the Court holds as follows:—
(1). That the land now occupied by Taito, a portion of which land was leased by Taito to A. Forsythe on June 21st, 1919 is known as Taufusi and not Laloifi.
(2). That at some remote time, the exact date being unknown, the lands of the chief Mailo were divided among his “nofofanau”, that certain portion known as Taufusi being allotted to Alagata, the name Alagata then becoming the “pule” of the same.
(3). That Alagata later took the name Taamu, and the Mailo family wishing a talking chief, the Alagata was dropped and the name Taamu was taken in its stead, Taamu being a “tulafale”.
(4). That the names Taamu and Taito descended from Alagata.
(5). That the name Taamu being accepted by the Mailo family in place of Alagata, Taamu thereupon acquired the “pule” over the lands formerly held under the name Alagata, and that as Alagata held the “pule” over the land Taufusi, Taamu succeeding the name Alagata thereby became “pule” over the land Taufusi.
(6). Taito having descended from Alagata has his rights in the lands of Alagata, and that he now holds said land with permission of Taamu.
(7). That having gone on the land Taufusi and having made considerable improvements, he, Taito, is entitled to use and enjoy the same, but can do no act which would work an injury to the rights of Taamu, without Taamu’s consent.
(8). That the lease from Taito to A. Forsythe is valid only until the death of Taito, Taito not being able to *316encumber the land for a longer period than his natural life, without the consent of Taamu. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487038/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 01:07 AM CST
- 843 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843
State of Nebraska, appellee, v.
Aubrey C. Trail, appellant.
___ N.W.2d ___
Filed November 10, 2022. No. S-21-557.
1. Pleadings: Parties: Judgments: Appeal and Error. A denial of a
motion to sever will not be reversed unless clear prejudice and an
abuse of discretion are shown, and an appellate court will find such an
abuse only where the denial caused the defendant substantial prejudice
amounting to a miscarriage of justice.
2. Trial: Witnesses. It is for the trial court to determine the extent to which
a sequestration order will be applied in a given case.
3. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the court has abused its discretion.
4. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
5. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
6. Sentences: Death Penalty: Aggravating and Mitigating Circum
stances: Appeal and Error. In reviewing a sentence of death, the
Nebraska Supreme Court conducts a de novo review of the record to
determine whether the aggravating and mitigating circumstances support
the imposition of the death penalty.
7. Constitutional Law: Criminal Law: Jury Trials. The Sixth Amendment
secures to criminal defendants the right to be tried by an impartial jury
drawn from sources reflecting a fair cross-section of the community.
8. Constitutional Law: Juror Qualifications. The fair-cross-section
venire requirement is not explicit in the text of the Sixth Amendment,
- 844 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843
but is derived from the traditional understanding of how an impartial
jury is assembled.
9. ____: ____. The representativeness constitutionally required at the
venire stage can be disrupted at the jury-panel stage to serve a State’s
legitimate interest.
10. Death Penalty: Juror Qualifications. An adequate voir dire where
jurors are directly involved in sentencing in a capital case entails the
opportunity to inquire into whether the views on the death penalty
would disqualify prospective jurors from sitting.
11. Juror Qualifications. Groups defined solely in terms of shared attitudes
that would prevent or substantially impair members of the group from
performing one of their duties as jurors are not distinctive groups for
fair-cross-section purposes.
12. Constitutional Law: Juror Qualifications: Proof. In order to establish
a prima facie violation of the fair-cross-section requirement under the
Sixth Amendment, a defendant must show (1) that the group alleged
to be excluded is a “distinctive” group in the community, (2) that the
representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community, and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury selection process.
13. Juries. An impartial jury is nothing more than jurors who will conscien-
tiously apply the law and find the facts.
14. Death Penalty: Juror Qualifications. Beliefs with respect to the death
penalty are within the individual’s control. Death qualification does not
create an appearance of unfairness, as it only results in the removal for
cause of those jurors who are unwilling to temporarily set aside their
own beliefs in deference to the rule of law.
15. Death Penalty: Juries: Proof. The State has a legitimate interest in
avoiding the burden of presenting the same evidence to different juries
for the guilt phase and the aggravation phase of trial.
16. Constitutional Law: Death Penalty: Juries. The State does not violate
the Sixth Amendment right to an impartial jury by death qualifying the
jury before a trial wherein it has alleged an aggravator that, if found by
the jury, will make the defendant eligible for the death penalty.
17. Equal Protection: Statutes. When a classification created by state
action does not jeopardize the exercise of a fundamental right or catego-
rize because of an inherently suspect characteristic, the Equal Protection
Clause requires only that the classification rationally further a legitimate
state interest.
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STATE V. TRAIL
Cite as 312 Neb. 843
18. Constitutional Law: Death Penalty. The Eighth Amendment and arti-
cle I, §§ 9 and 15, of the Nebraska Constitution are not violated by death
qualification in a capital case.
19. Constitutional Law: Trial: Joinder. There is no constitutional right to
a separate trial.
20. Trial: Joinder: Appeal and Error. Whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses were suf-
ficiently related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant.
21. Trial: Joinder: Proof: Appeal and Error. A defendant appealing the
denial of a motion to sever has the burden to show compelling, specific,
and actual prejudice.
22. Trial: Joinder. Severe prejudice occurs when a defendant is deprived
of an appreciable chance for an acquittal, a chance that the defendant
would have had in a severed trial.
23. ____: ____. Prejudice from joinder cannot be shown if evidence of
one charge would have been admissible in a separate trial of another
charge.
24. Conspiracy: Hearsay. The coconspirator exception to the hearsay rule
is applicable regardless of whether a conspiracy has been charged in the
information or not.
25. ____: ____. Under the coconspirator exception to the hearsay rule, the
declarant conspirator who partners with others in the commission of a
crime is considered the agent of his or her fellow conspirators, and the
commonality of interests gives some assurance that the statements are
reliable.
26. Conspiracy: Hearsay: Evidence. Whether or not a conspiracy has
been charged in the information, before the trier of fact may consider
testimony under the coconspirator exception to the hearsay rule, a prima
facie case establishing the existence of the conspiracy must be shown by
independent evidence, to prevent the danger of hearsay evidence being
lifted by its own bootstraps.
27. Trial: Witnesses. The exclusion or sequestration of a witness is within
the discretion of the trial court.
28. Trial: Witnesses: Appeal and Error. The denial of a sequestration
motion will not be overturned absent evidence of prejudice to the
defendant.
29. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
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30. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, the defendant must prove the
alleged error actually prejudiced him or her, rather than creating only
the possibility of prejudice.
31. Jurors: Jury Instructions: Presumptions. Absent evidence to the con-
trary, the legal system presumes that jurors, to the extent they are able,
will comply with curative instructions and judicial admonitions.
32. Motions for New Trial: Statutes. A motion for a new trial is a statutory
remedy and can be granted by a court of law only upon the grounds, or
some of them, provided for by the statutes.
33. Motions for New Trial: Proof. The asserted ground for a new trial must
affect adversely the substantial rights of the defendant, and it must be
shown that the defendant was prejudiced thereby.
34. Courts: Motions for Mistrial: Motions for New Trial: Appeal and
Error. A trial court is vested with considerable discretion in passing on
motions for mistrial and for a new trial, and an appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial or
a motion for new trial unless the court has abused its discretion.
35. Appeal and Error. It is an abuse of discretion to make an error of law
or clear errors of factual determination.
36. Judges: Witnesses: Appeal and Error. The trial judge is better situated
than a reviewing court to pass on questions of witness credibility and the
surrounding circumstances and atmosphere of the trial.
37. Motions for Mistrial. As a general matter, a defendant is not permitted
to profit from the defendant’s own bad conduct by disrupting courtroom
proceedings and then urging disruption as a ground for mistrial.
38. Criminal Law: Motions for Mistrial. Disruptive acts of the defendant
are not irremediable simply because they reflect some attribute consist
ent with the charged crime.
39. Constitutional Law: Due Process: Criminal Law: Jury Trials: Proof.
The Sixth Amendment right to a speedy and public trial by an impartial
jury, in conjunction with the Due Process Clause, requires that each ele-
ment of a crime be proved to a jury beyond a reasonable doubt.
40. Constitutional Law: Statutes: Death Penalty: Aggravating and
Mitigating Circumstances: Jury Trials. Under a statutory scheme
in which the death penalty cannot not be imposed unless at least one
aggravating factor is found to exist beyond a reasonable doubt, the
Sixth Amendment requires the factual determination of the aggravating
factor be entrusted to the jury.
41. Constitutional Law: Death Penalty: Aggravating and Mitigating
Circumstances: Jury Trials. The Sixth Amendment requires only the
right to a jury determination of the death-eligibility finding of one or
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more aggravating circumstances and it does not apply to the selec-
tion decision.
42. ____: ____: ____: ____. In a capital sentencing proceeding, just as in
an ordinary sentencing proceeding, a jury is not constitutionally required
to weigh the aggravating and mitigating circumstances or to make the
ultimate sentencing decision within the relevant sentencing range.
43. ____: ____: ____: ____. Nebraska’s sentencing scheme does not vio-
late the Sixth Amendment right to a jury trial or article I, § 6, of the
Nebraska Constitution, by leaving to the three-judge panel the ultimate
life-or-death decision upon making the selection decisions of whether
the aggravating circumstances justify the death penalty and whether
sufficient mitigating circumstances exist that approach or exceed the
weight given to the aggravating circumstances.
44. Constitutional Law: Sentences. The Cruel and Unusual Punishment
Clause prohibits (1) barbaric punishments under all circumstances and
(2) punishments that are not graduated and proportioned to the offense.
45. Constitutional Law: Statutes: Death Penalty: Aggravating and
Mitigating Circumstances. Nebraska’s statutory scheme, delegating
to the three-judge panel determinations of whether the aggravating
circumstances justify the death penalty and whether sufficient miti-
gating circumstances exist that approach or exceed the weight given
to the aggravating circumstances, does not violate the 8th and 14th
Amendments to the U.S. Constitution or article I, § 9, of the Nebraska
Constitution.
46. Sentences: Death Penalty: Appeal and Error. Proportionality review
requires the Supreme Court to compare the aggravating and mitigating
circumstances with those present in other cases in which a district court
imposed the death penalty.
47. Death Penalty: Aggravating and Mitigating Circumstances. The bal-
ancing of aggravating circumstances against mitigating circumstances is
not merely a matter of number counting, but, rather, requires a careful
weighing and examination of the various factors.
48. ____: ____. The death penalty can be imposed when only one aggravat-
ing circumstance is present.
Appeal from the District Court for Saline County: Vicky L.
Johnson, Judge. Affirmed.
Benjamin H. Murray, of Murray Law, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and James D. Smith,
Senior Assistant Attorney General, for appellee.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant was convicted by a jury of murder in the
first degree and criminal conspiracy to commit first degree
murder. He was also convicted, pursuant to a plea, of improper
disposal of human skeletal remains. A three-judge panel sen-
tenced the defendant to death. The defendant asserts on appeal
that the three-judge panel erred in determining the sentence
of death was not excessive or disproportionate to the penalty
imposed in similar cases. Alternatively, he argues Nebraska’s
death penalty scheme is unconstitutional because it allows
a panel of judges rather than a jury to make findings of
whether the aggravating circumstances justify the death pen-
alty and whether sufficient mitigating circumstances exist
which approach or exceed the weight given to the aggravating
circumstances. The defendant also challenges the constitution-
ality of death qualifying the potential jurors, arguing that it
creates a conviction-prone jury. Finally, the defendant chal-
lenges the denial of his pretrial motion to sever the conspiracy
and murder charges, the court’s release of the victim’s mother
from sequestration after she testified, the denial of his motion
for a mistrial after a verbal outburst and act of self-harm in
front of the jury, and the denial of a motion for a new trial
after evidence was submitted allegedly demonstrating the self-
harm would not have occurred but for the alleged misconduct
of jail staff. We affirm.
II. BACKGROUND
The State’s amended information charged Aubrey C. Trail
with one count of murder in the first degree, in violation of
Neb. Rev. Stat. § 28-303(1)(a) (Cum. Supp. 2020); one count
of improper disposal of human skeletal remains, in violation
of Neb. Rev. Stat. § 28-1301(2)(b) (Reissue 2016); and one
count of criminal conspiracy to commit first degree murder, in
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violation of Neb. Rev. Stat. § 28-202 (Cum. Supp. 2020). The
victim was Sydney Loofe (Sydney), who was 24 years old at
the time of her death on or about November 15, 2017.
The operative information gave notice that the State intended
to adduce evidence of the aggravating circumstances (1) that
the murder manifested exceptional depravity by ordinary stan-
dards of morality and intelligence and (2) that Trail has a
substantial prior history of serious assaultive or terrorizing
criminal activity. The State later removed the notice of second
aggravator.
As part of his trial strategy, Trail pled no contest to the
improper disposal of human skeletal remains. His plea was
accepted prior to the beginning of the jury trial on the remain-
ing two counts. The theory of the defense was that Trail was
involved in a consensual sexual relationship with a group of
women. This group always included Bailey Boswell, with
whom Trail lived. The group also at various points included
Ashley Hills, Anastasia Golyakova, and Kaitlyn Brandle. The
defense argued that because Hills and Golyakova had recently
left the group, Trail was hoping Sydney would become a new
member. According to the defense, Sydney was interested in
joining the group and was accidentally killed while the recipi-
ent of consensual erotic asphyxiation. Trail then panicked and
dismembered and disposed of Sydney’s remains.
1. Jury Selection
Before trial, defense counsel moved to “prevent death quali-
fication of the jury.” In the motion, defense counsel objected
to any mention—in the jury questionnaires, during jury selec-
tion, or during the trial of guilt or innocence—of the possible
sentences Trail might receive. Defense counsel asserted that
informing the jury of the possible penalty of death is unneces-
sary and results in excluding those jurors who cannot perform
their duties because of their beliefs on the death penalty.
According to defense counsel, this process results in those
charged with capital offenses being unjustifiably subjected to
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conviction-prone juries, which violates equal protection under
the 14th Amendment to the U.S. Constitution and article 1,
§ 3, of the Nebraska Constitution; the right under the 6th
Amendment to the U.S. Constitution to a fair and impartial
cross-section of jurors; and the right to heightened reliability
in capital cases as protected by the 8th Amendment to the
U.S. Constitution and article I, §§ 9 and 15, of the Nebraska
Constitution.
As is relevant to this appeal, defense counsel asserted that
“empirical research has demonstrated that the systematic
exclusion of jurors who have a moral objection to the death
penalty results in capital juries that tend to be . . . more
conviction-prone” and that these views are not representative
of a fair cross-section of the community. Further, asking jurors
about their views on the death penalty magnifies the effect of
conviction-prone beliefs. While defense counsel acknowledged
that the U.S. Supreme Court, in Lockhart v. McCree, 1 rejected
a claim that the process of death qualification violates the fair-
cross-section requirement of the Sixth Amendment and the
right to an impartial jury, defense counsel cited in the written
motion to various articles describing additional studies in the
30-plus years since McCree, indicating the process of death
qualification creates conviction-prone juries. No testimony or
other evidence was adduced in support of the motion.
Defense counsel stated that the justification for death quali-
fication presupposes a statutory scheme in which a single jury
determines both the guilt and the penalty. Defense counsel
argued that because in Nebraska, the jury does not deter-
mine the sentence in the penalty phase, informing the jury
of the possible sentence of death serves no legitimate pur-
pose. Accordingly, a potentially conviction-prone jury created
by death qualification cannot pass the heightened scrutiny
allegedly applicable to this conviction-prone classification
of jurors.
1
Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137
(1986).
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The court overruled the motion and proceeded with voir
dire. During voir dire, defense counsel renewed the objection
to “the death qualification of each individual juror during jury
selection.” The renewed objection was overruled.
Juror questionnaires and the judge’s statement from the
bench during voir dire informed the potential jurors that
the charges Trail faced could result in the death penalty. The
judge explained that the sentence itself would be determined
by a panel of judges, but that if Trail were found guilty of first
degree murder, the jurors would be asked to listen to some
more evidence and determine if the State had proved addi-
tional elements, after which their duty would be done and the
matter would go to the panel of judges for sentencing.
During the jury selection process, jurors Nos. 104 and 126
stated in chambers that their views against the death penalty
would impair their ability to be fair and impartial. Both jurors
were struck for cause on the State’s motion. Defense counsel
did not object to them being excused.
Jurors Nos. 23, 60, 78, 245, 261, and 275 were struck for
cause on defense counsel’s motion because they indicated their
belief in Trail’s guilt would interfere with their ability to be
fair and impartial.
Jurors Nos. 108, 113, and 262 indicated they did not believe
in the death penalty but could perform their factfinding duties
in a fair and impartial manner. Jurors Nos. 113 and 262 were
subject to peremptory challenges, but juror No. 108 was not.
2. Motion to Sever Murder and
Conspiracy Charges
Defense counsel moved pursuant to Neb. Rev. Stat.
§ 29-2002 (Reissue 2016) to sever the trial on the murder
charge from the other charges. As relevant to this appeal,
defense counsel asserted joinder would prejudice Trail because
evidence admissible in support of the conspiracy charge would
not be admissible in support of the murder charge, if those
two charges were tried separately. Defense counsel explained
there would be no evidence proving the conspiracy that would
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be truly independent of the murder charge. Defense counsel
believed that, because of this, there could be no prima facie
case through independent evidence establishing the existence
of the underlying conspiracy, which is necessary to admit
testimony under the coconspirator exception to the hearsay
rule. The defense argued the State was trying to introduce
hearsay evidence to establish a conspiracy, with its more flex-
ible hearsay rules, and then use that conspiracy to permit the
introduction of otherwise inadmissible hearsay testimony into
evidence to support the murder charge.
The State responded it intended to establish, without “imper-
missible hearsay,” a prima facie case of conspiracy, before
attempting to introduce evidence under the coconspirator
exception to the hearsay rule. The evidence to establish the
conspiracy, explained the State, would primarily consist of
the testimony of Hills, Golyakova, and Brandle, all of whom
Trail had tried to convince to participate in a murder. The State
asserted their testimony would be admissible as evidence of
premeditation on the murder charge and would be introduced
into evidence even if the trial of the conspiracy count were not
joined with the murder count.
The court overruled the motion to sever. However, it warned
the State that “it needs to structure its case to avoid the boot-
strapping problems and that I will be keeping an eye on the
case as it proceeds.”
3. Sequestration and Release
of Sydney’s Mother
Before trial commenced, the court granted defense coun-
sel’s motion to sequester witnesses. Sydney’s mother was the
first witness to testify at trial. After being cross-examined
by defense counsel, the State asked that Sydney’s mother be
released from her subpoena. The State said it would waive
sequestration and would be willing to allow the defense to
call Sydney’s mother out of turn if it wished, so that Sydney’s
mother could be present to watch the remainder of the trial.
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Cite as 312 Neb. 843
Defense counsel objected. Following a discussion in cham-
bers that was not on record, the court pronounced that it was
releasing Sydney’s mother from sequestration but would allow
the defense to reopen its cross-examination if it wished to do
so. Sydney’s mother was not recalled to testify by either party
after being released from sequestration.
4. Evidence Adduced at Trial
At trial, evidence was adduced that Trail and Boswell moved
into a basement apartment in Wilber, Nebraska, in June 2017.
They had been in a romantic relationship since the summer of
2016. To make money, they sold stolen goods, including sales
at a local antiques market.
(a) Sydney’s Contact With Trail and
Boswell in November 2017
In November 2017, Boswell posed as “Audrey” on an online
dating application (dating app). Boswell began messaging with
Sydney on November 11 and learned that her family lived
hours away from where Sydney lived in Lincoln, Nebraska.
She also learned that Sydney worked as a store clerk at a
Lincoln hardware store. Sydney and Boswell arranged a first
date on November 14. Text messages between them are con-
sistent with arranging a first date. Neither Trail nor any other
third party is mentioned in the text messages.
Sydney initially delayed giving Boswell her address, but
upon further request on the evening of November 13, 2017,
provided it. Within 1 minute of obtaining the address, Boswell
conducted an internet search for its location. Within 5 minutes
of obtaining that information, Boswell made a reservation at a
hotel nearby.
Trail and Boswell checked into that hotel before the first
date. After a couple of hours on their first date, Boswell
returned Sydney home. Sydney did not go to the hotel. Boswell
joined Trail at the hotel, where they again spent the night.
Sydney had accepted a second date with Boswell to occur
on November 15, 2017. On the morning of November 15,
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Trail and Boswell left the hotel and went to a hardware store
where they purchased dropcloths, a hacksaw, blades, and
tin snips.
Cell phone location information indicated that around the
time Sydney would have left for work, Trail and Boswell
drove to the vicinity of Sydney’s apartment. Trail and Boswell
then took the same route Sydney took to work.
Shortly after Sydney started her shift, Trail entered Sydney’s
workplace alone. Video footage showed that as Sydney walked
toward her station at the “guard shack,” she crossed paths with
Trail, who was walking into the store. Trail did not interact
with Sydney, and she did not appear to recognize Trail. As
Sydney walked away, Trail turned around twice to watch her.
Trail then called Boswell. Trail proceeded into the hardware
store where he purchased a chemical drain cleaner and a
long cord.
Cell phone location information showed that Trail and
Boswell went back to their Wilber apartment while Sydney
was at work. While in Wilber, Boswell made two trips to local
stores. On the first trip, she purchased bleach and large trash
bags. Later, she purchased duct tape and roasting pans.
Throughout the day, Boswell texted Sydney to ask how
her day was going and communicate that she was looking
forward to their date. Sydney left work at the end of her shift
on November 15, 2017. Boswell left the Wilber apartment
around 6 p.m. and picked Sydney up at her apartment around
6:54 p.m.
Trail was at the Wilber apartment. Boswell called Trail
at 7:11 p.m. Cell phone location information indicated that
Sydney arrived at Trail and Boswell’s apartment at approxi-
mately 8 p.m. on November 15, 2017, and that both Trail and
Boswell were present at the apartment at that time. The cell
tower lost all signal from Sydney’s phone at 8:40 p.m.
A resident of the apartment building where Trail and Boswell
lived smelled bleach late that night. The smell of bleach was
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so strong that the following day, another resident of the build-
ing became ill from it.
Sydney did not report to work the next day. She was never
seen alive again.
(b) Disposal of Sydney’s Body
and Cause of Death
Cell phone location information indicated that Trail and
Boswell left their apartment the afternoon of November 16,
2017, and traveled to an area in Clay County. On December
4 and 5, after tracing Trail’s and Boswell’s cell phone loca-
tion information, most portions of Sydney’s body were found
in a ditch in the area Trail and Boswell had traveled to on
November 16. The remainder of Sydney’s body, including most
of her internal organs, was never found. Law enforcement also
found duct tape, tarps, a sauna suit with the crotch missing,
gloves, and various items of clothing in the vicinity.
Sydney’s body had been segmented into 14 parts and
placed into garbage bags. An autopsy revealed the manner of
death to be homicidal violence that included an element of
strangulation. The hyoid bone in the neck had been crushed,
there was a scleral hemorrhage in one of her eyes, and there
was petechiae, or “little hemorrhages,” throughout the face,
including in the eyelids and under the eyelids. Scleral hemor-
rhages and petechiae are due to an occlusion of blood flow
and consistent with either manual or ligature strangulation.
When asked whether these signs are “very common in stran-
gulation cases,” the expert responded, “Yes. Manual strangu-
lation, yes.”
Expert testimony introduced by the State reflected that stran-
gulation due to erotic asphyxiation is rare and that a fracture
of the hyoid bone, which resides deep in the neck tissue, is
very uncommon during erotic asphyxiation. Sydney’s body
also showed indications that around the time of death, she
experienced blunt force trauma. This included bruises on the
back of the head and down the middle of her back and a deep
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bruise into the muscle of her inner thigh. Around the time of
her death, Sydney also suffered a torn earlobe around a pierc-
ing site. Abraded contusions around Sydney’s wrists revealed
evidence of restraints.
The autopsy was complicated by the absence of most of the
organs of Sydney’s torso and abdomen, as well as the absence
of other body parts, such as the upper part of the trachea, wind-
pipe, larynx, and veins and arteries of the neck. These appeared
to have been removed post mortem by use of a sharp blade.
The pathologist did not believe the mutilation of Sydney’s
body was due to animal predation.
In an interview with law enforcement after he was appre-
hended, Trail spoke of draining Sydney’s blood from her body
and being “very thirsty that day.” Numerous superficial post
mortem shallow cuts were found on Sydney’s body. These
included cuts underlining and framing a tattoo on Sydney’s arm
reading, “Everything will be wonderful someday.”
(c) Hills’, Golyakova’s, and Brandle’s
Relationships With Trail and Boswell
From July to November 2017
Before they were called individually to testify, defense
counsel objected at trial to the introduction of the deposition
testimonies of Hills, Golyakova, and Brandle on the grounds
that the State had failed to establish a prima facie case of a
conspiracy through independent evidence. The State responded
that evidence had already been adduced of overt acts of the
conspiracy, such as online dating recruitment, the purchases
at the hardware store the day before the murder, staying at
the hotel, driving by Sydney’s apartment and observing her at
work, and the cell phone evidence linking Trail and Boswell
to Sydney’s murder. The State explained that Sydney’s murder
was part of an overarching conspiracy beginning in July 2017
to kill someone, and to continue killing.
The court ruled that the State had not yet established a prima
facie case for a conspiracy through independent evidence.
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After that ruling, the State introduced, without objection, phys-
ical evidence that Golyakova and Brandle had been inside the
Wilber apartment. The State also introduced the testimony of
law enforcement that its investigation had linked Golyakova
to several stays with Trail and Boswell at a hotel in Falls City,
Nebraska, between July and October 2017. The State then
adduced Hills’ testimony.
(i) Hills’ Testimony and Prima
Facie Case of Conspiracy
Without objection, Hills testified that she met Boswell
through an online dating app in July 2017 and that she met
Trail through Boswell. Boswell used an alias.
Trail told Hills that he could help her get revenge on
an abusive stepfather. He invited Hills to become 1 of 12
other women he claimed were associated with him, whom he
referred to intermittently as “his girls” and “witches.” Trail
showed Hills nude photographs of the alleged witches, but she
never met any of them. Boswell was the “queen witch.” Trail
claimed to be a vampire.
In August 2017, Hills was introduced to Golyakova as a per-
son who Trail said might become “one of us” as a “watcher.”
Trail told Hills that she could leave his “coven” at any point
until she took her first “soul,” which she understood meant to
kill someone and “take their last breath.”
Hills believed Trail. She continued to associate with Trail
and Boswell. She was sexually involved with both. Their
sexual activities involved erotic asphyxiation. Hills had to fol-
low various rules that Trail set for her behavior, such as having
to check in every 3 hours while away from the Wilber apart-
ment, remaining unclothed while in the apartment, and having
to ask permission to do anything, even to use the restroom or
get a drink of water. If she did not follow these rules or oth-
erwise misbehaved, she was physically punished by being hit,
whipped, or choked. Trail paid her an allowance. Hills also
assisted in selling antiques.
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Hills described a process she observed a few times where
Boswell would start talking to a woman she met through a
dating app and then hand off the communication with that
woman to Trail. If the woman wanted to talk on the phone,
Trail would give the phone to Boswell after giving her a sum-
mary of prior text communications.
Hills stated that in August 2017, while at a grocery store,
Boswell briefly met with a woman she had been communicat-
ing with in that manner. Boswell directed the woman to go
speak with Trail. Trail and the woman spoke for a while before
Trail, Boswell, and Hills left the store. Hills testified that Trail
asked her afterward if she wanted that woman to be her “first
kill.” While Hills responded in the affirmative, she was told a
couple of weeks later that the woman had traveled to California
to visit family. Trail told Hills they “would either save her for
another time or find someone else.”
Trail, Boswell, Hills, and Golyakova went on a vacation
together that August. Shortly thereafter, Trail stated that he
wanted to kill Golyakova. Trail explained Golyakova was too
nice and “didn’t have the evil in her.” A plan was discussed to
do so, but never executed. Trail threatened Hills that he would
kill her family if she ever disclosed his plans.
Hills stated that Trail often spoke of torturing and killing
someone and said that causing pain to someone would make
the killer more powerful. Trail was aroused by the idea of
watching her and Boswell torture someone. He told Hills he
wanted the idea of torturing someone to be arousing for her
and Boswell too. Trail asked Hills to think about ways she
would torture her victim.
In September 2017, Hills told Boswell she wanted out.
Among other reasons, she did not want to kill Golyakova. Hills
moved to another town and had only sporadic contact with
Trail and Boswell thereafter.
During a break in Hills’ testimony, the court found in cham-
bers that the State had provided sufficient evidence to prove a
prima facie case of conspiracy and that “it may now get into
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the statements of . . . Boswell.” Defense counsel asked if “when
we start getting into the hearsay,” it could have a continuing
objection after making the first objection. The court granted the
continuing hearsay objection, which defense counsel explained
would be for any statements attributable to Boswell.
Hills resumed her testimony. She stated that Trail once
showed her Boswell’s “killing bag.” He had pulled out a ham-
mer, some pliers, and a sauna suit from the bag and showed
them to her. Trail told Hills she would get her own killing bag
“when it was time.” Trail said the sauna suit was so that they
would not get blood on themselves.
(ii) Golyakova
Golyakova testified at trial that in the late summer of 2017,
she met Boswell through a dating app. Boswell initially used
an alias. She was later introduced to Trail by Boswell, who
explained they were in an “open relationship.” She even
tually entered into a relationship with Trail and Boswell that
was somewhat similar to Hills’, but Boswell was in charge of
punishing her. Also, erotic asphyxiation was apparently not
involved. Golyakova soon told them she was not comfortable
with some of the rules, after which she no longer had to fol-
low them. Golyakova did household chores and assisted in the
antiques enterprise. Golyakova testified that she liked the idea
of someone taking care of her.
Trail spoke to Golyakova about having a coven and spe-
cial powers, but she did not believe him. Golyakova testi-
fied that Trail and Boswell eventually started talking to her
about whether she would be willing to torture and kill some-
one. They told her they wanted to make videos of people
being tortured, which they could sell. Trail and Boswell told
Golyakova that they could make $1 million, split it, and go
their separate ways. They sometimes also discussed murder-
ing someone in a certain manner, “like for sacrifices or some-
thing.” Trail and Boswell assured Golyakova that their victim
would be someone who had done bad things. Golyakova said
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she was not comfortable hurting anyone, and she left the
group in October.
(iii) Brandle
Brandle testified at trial that she met Boswell through a
dating app in October 2017. Boswell used an alias. Brandle
entered into a relationship with Boswell similar to the others,
except she was more focused on having a romantic relation-
ship with Boswell and did not want anything from Trail. She
understood that she was entering into a dominant-submissive
relationship and that Trail was part of a “package deal,” but
testified that there was no mention of choking. She had not
been in a dominant-submissive relationship before, but she
wanted to be with Boswell and decided to “give it a shot.” She
did not get directly involved in their antiques enterprise.
Brandle said there was some discussion of witches. Trail
told her that she was Boswell’s “familiar” and that they had
known each other in past lives. Trail also mentioned having
a coven of witches that she would meet someday. Trail told
Brandle she could ask for one wish, but she “would have to
pay the price.” Brandle explained that she was skeptical and
did not pursue that line of discussion. She was never told what
the “price” would be.
On November 13, 2017, Boswell complained about another
woman she claimed was stalking her and asked Brandle if
she would ever “kill for her.” During intercourse, while Trail
watched, Boswell asked Brandle if there was anyone she
“wanted to kill.” Boswell also asked Brandle to describe ways
someone could torture someone else. When the intercourse
became uncomfortable and Brandle wanted to stop, Trail told
her that it would stop if Brandle told Boswell what she wanted
to hear. Brandle testified that she tried to describe “torture
techniques” from the “Renaissance era” that she recalled learn-
ing about in school.
Brandle suffered an asthma attack and went back to her
home in Omaha, Nebraska. On the morning of November
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15, 2017, while Boswell was in the hardware store, Boswell
texted Brandle that she would be busy for the next couple
of days.
Brandle testified that she did not see Trail or Boswell again
until the afternoon of November 17, 2017. Brandle described
that on November 17, Trail and Boswell seemed quieter and
more tense than usual. Trail and Boswell picked Brandle up,
and they went to a hotel casino. Boswell showed Brandle a pic-
ture of a young woman whom she identified as her stalker and
asked Brandle to participate in her murder. Brandle initially
declined, but she accepted the proposition after Trail made
various threatening statements.
After participating in arrangements to leave Boswell’s car in
a store parking lot and taking a cab back to the hotel with the
idea that they would be using Brandle’s car for the supposed
murder they were planning, Trail told Brandle she did not
have to worry about participating anymore, because she had
already proved her loyalty. Trail and Boswell then convinced
Brandle to drive them across Nebraska for a supposed drug
deal. Brandle testified that Trail and Boswell continued to seem
tense and appeared to have quiet arguments.
Brandle testified that eventually either Trail or Boswell
suggested they were going to find someone to torture and
kill, as a way to make money. On November 21, 2017, during
intercourse at a hotel room, Boswell again asked Brandle to
talk about how people could be tortured. Brandle talked about
the same historical torture methods she had the previous time.
Boswell talked about dismembering people.
On November 22, 2017, Trail and Boswell had Brandle
drive them to Kearney, Nebraska. Trail and Boswell explained
they intended to find, as a victim, an exchange student who
was still around during the Thanksgiving holiday. Their
thinking, Brandle explained, was that such a victim would
be unlikely to be immediately missed. The idea was that
Boswell and Brandle would torture and murder the victim
while Trail watched. Brandle stated she tried to stay calm and
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cooperative because she believed that her family would be
hurt if she did not.
When a law enforcement officer left a voicemail on Brandle’s
phone and Trail was informed of that fact, they all left Kearney
without any further action toward attempting to identify a
potential murder victim. At that point, Trail and Boswell told
Brandle that a young woman was missing and that Boswell
was being falsely blamed because she was the last person seen
with the woman. Boswell cried and insisted she did not hurt
the missing woman.
Trail and Boswell eventually dropped Brandle off at a hotel
close to her home after Brandle learned from law enforce-
ment that her mother had filed a missing person report on
her. Brandle’s mother also informed her that her father was
gravely ill. Brandle told Trail and Boswell she wanted to
return home.
(d) Trail’s Testimony
Trail testified in his own defense. He stated at the outset
that he did not contest 85 percent of the prosecution’s case.
Trail said that in Trail and Boswell’s apartment, he and the
women he was involved with could talk about anything, “from
the mildest to the wildest” and “what you were is what you
were.” He and Boswell were not going to tell anyone they were
“wrong about anything.” He acknowledged “there was a lot of
talk in our house about killing people, torturing people.” Trail
claimed these were just fantasies.
Trail admitted that much, albeit not all, of his inspiration
in his discussions of these fantasies came from a book of fic-
tion about witchcraft where the characters torture people for
power. He did not believe this was true but thought the women
were interested in the discussions. Other discussions about
reincarnation and “spiritual” witches and vampires reflected
his personal beliefs.
Trail claimed that he met Sydney in the spring of 2017
while she was working at the hardware store and that
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Boswell met her about a week later. Trail described that
Sydney and Boswell developed a romantic relationship and
that Sydney was paid for participation in Trail’s illegal mon-
eymaking schemes. Sydney ended her arrangement with Trail
in September 2017.
Trail testified that in November 2017, Boswell asked Trail if
she could reach out to Sydney through the dating app she was
on. Sydney was upset when Boswell picked her up for their
first date and Sydney realized who her date was. But Boswell
convinced Sydney to consider “coming back and being with
us,” and they arranged a second date. Trail described the items
purchased on November 15 as intended for the repair and
cleaning of antiques.
According to Trail, Sydney went to the Wilber apartment on
the evening of November 15, 2017, to discuss the possibility
of rejoining the group. During that conversation, Trail asked
Sydney to either answer or turn off her phone. Sydney turned
off the phone.
Trail testified that Sydney eventually agreed to experiment
that night with erotic asphyxiation wherein Trail would hold
a cord connected to a ligature while Sydney and Boswell
engaged in sexual intercourse. And during these activities,
Sydney appeared to have a seizure, stopped breathing, and
died. Trail said he did not intend to kill Sydney. He explained
that doing so would be “counter-productive,” because he used
people for sex and to make money.
Trail testified he did not call an ambulance because he had
an extensive criminal history and had illegal drugs and stolen
goods in the apartment. He dismembered Sydney’s body as a
means of fitting it into a trunk to remove it from their apart-
ment without being noticed. He denied removing Sydney’s
internal organs. He dumped the trash bags containing Sydney’s
body in the location where they were eventually discovered by
law enforcement.
Trail described fleeing with Brandle’s assistance, claim-
ing that looking for an exchange student as a potential victim
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was simply part of a fantasy they never intended to act upon.
Likewise, he claimed the prior discussion with Hills about
killing the woman he met at a store was just a fantasy. In fact,
Trail claimed he told Hills the woman had moved to California
“[b]ecause the crazy bitch wanted to kill her.” He said he was
afraid she would actually do it and wanted to prevent that
from happening.
5. Courtroom Disruption
The trial lasted approximately 3 weeks. On the third day
of trial, around 10:30 a.m., after a witness was sworn in but
before she testified, Trail, seated at the counsel table, yelled,
“[Boswell] is innocent, and I curse you all.”
Immediately thereafter, Trail made a couple of slashing ges-
tures at his neck. Some blood was visible. Trail had secreted
a razor blade into the courtroom and had used it to inflict
wounds to his neck. The jury was immediately cleared from
the courtroom, and law enforcement and medical personnel
took over.
The judge told counsel that trial would be reconvened after
the jury was instructed to “disregard the outburst.” Defense
counsel moved for a mistrial, arguing the jury would be preju-
diced against Trail in determining the aggravator of having
a history of serious assaultive or terrorizing criminal activ-
ity. The court stated it would determine whether a mistrial
was warranted after individually interviewing the members of
the jury.
The court instructed the jury “to disregard the outburst that
you heard this morning and to not consider it in your delibera-
tions at the end of the trial.” Thereafter, each juror was indi-
vidually questioned by the trial judge in chambers with counsel
present. The court generally asked each juror if the juror had
heard the curative instruction and believed he or she could
remain fair and impartial and follow that instruction. Several
jurors were asked if the events of the day affected their ability
to remain a fair and impartial juror.
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Each juror assured the court that he or she could remain
fair and impartial. The court directed each juror to bring it
to the court’s attention if the juror later came to the conclu-
sion that the juror could no longer be fair and impartial. None
ever did.
The court overruled the motion for mistrial.
6. Motion for New Trial
The jury found Trail guilty of first degree murder and of
conspiracy to commit first degree murder. After the verdict,
defense counsel moved for a new trial on the grounds that
Trail was prevented from having a fair trial due to the court’s
rulings on several issues. However, Trail has only appealed
the denial of his motion as related to defense counsel’s
motion for mistrial following Trail’s verbal outburst and act
of self-harm.
With respect to Trail’s disruption in front of the jury, defense
counsel argued that, but for a lack of security measures, the
incident could have been prevented. This negligence, argued
defense counsel, “contributed to the severity of the event
and elevated it to the level that required a mistrial.” Defense
counsel also argued that the act of violence prejudiced the jury
against Trail inasmuch as it was contrary to the argument that
Trail was incapable of violence.
While the court’s ruling was pending, the State moved to
adduce additional evidence that it argued would show Trail’s
actions were calculated to disrupt the trial. The State asked
that the evidence be under seal, as it involved law enforcement
intelligence, courtroom security, and officer safety. Defense
counsel responded that he did not object and was tentatively
planning on offering the same or similar evidence as newly
discovered evidence in support of the motion for new trial. At a
later date, several exhibits were marked, offered, and received
under seal.
The court ultimately denied the motion for new trial, observ-
ing that Trail had not produced any evidence that the act of
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self-harm prejudiced him. The court found that the self-harm
was “a calculating gesture resulting in superficial cuts.”
7. Constitutionality of Panel Findings of
Sufficiency and Relative Weight of
Aggravating Circumstances
After the verdict, defense counsel waived Trail’s right to
a jury for the aggravation sentencing phase. Defense counsel
then moved to declare Nebraska’s death penalty statutes uncon-
stitutional, in violation of the Sixth and Eighth Amendments to
the U.S. Constitution and articles 1 through 6 of the Nebraska
Constitution. Defense counsel asserted that the sentencing pan-
el’s factual findings regarding the relative weight of the aggra-
vating and mitigating circumstances are facts increasing the
penalty for a crime beyond the prescribed statutory maximum
and must, therefore, be submitted to a jury. Defense counsel
also argued that Nebraska is an “outlier” by permitting the
determination of the death penalty to be made by a judicial
panel, rather than a jury, and that the “noticeable trend away
from judicial death sentencing” is strong evidence that soci-
ety does not regard such a procedure to be proper or humane.
Finally, according to defense counsel, a determination by a jury
of the relative weight of the aggravators and mitigators is nec-
essary to satisfy the Eighth Amendment’s heightened reliability
standards for capital punishment because the consensus of 12
jurors is less arbitrary and better expresses the conscience of
the community on the ultimate question of life or death. The
trial court treated the motion as a motion to quash and ulti-
mately found that it lacked merit and denied it.
8. Sentencing
Pursuant to Neb. Rev. Stat. § 29-2521(2) (Cum. Supp. 2020),
a sentencing hearing before a three-judge panel was held. The
panel found the State had proved beyond a reasonable doubt
the aggravating factor that the murder manifested exceptional
depravity by ordinary standards of morality and intelligence.
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This was supported by the fact that Sydney’s murder reflected
cold, calculated planning beyond the mere premeditation nec-
essary to support a conviction of first degree murder.
The panel also found to be present four out of the five factors
for a finding of exceptional depravity: (1) apparent relishing of
the murder by the killer, (2) infliction of gratuitous violence on
the victim, (3) needless mutilation of the victim, (4) senseless-
ness of the crime, or (5) helplessness of the victim. 2 The panel
explained that the mutilation of Sydney’s body made it impos-
sible to determine if Trail had inflicted upon Sydney gratuitous
violence beyond that necessary to inflict death, but all of the
other four factors were present. First, Trail’s actions before and
after the murder demonstrated he relished the act, having no
regard for Sydney’s life beyond his own pleasure. Second, the
needless mutilation of Sydney’s body demonstrated that Trail
had a mental state “senselessly bereft of any regard for human
life.” Third, noting that Sydney posed no threat to Trail and
Boswell, had no idea she was being led to an encounter with a
“man twice her size,” and was unable to defend herself or seek
help at the time of the murder, the panel found that Sydney
was a helpless victim. For similar reasons, the panel found that
her murder was completely unnecessary and senseless. Further,
the panel found that Trail had the capacity to appreciate the
wrongfulness of his conduct and to conform his conduct to
the requirements of the law.
The panel found no statutory mitigating factor or circum-
stances existed. The only statutory mitigating factor alleged by
Trail was that the “victim was a participant in the defendant’s
conduct or consented to the act,” as set forth in Neb. Rev. Stat.
§ 29-2523(2)(f) (Cum. Supp. 2020). The panel found this miti-
gating circumstance did not exist.
As a nonstatutory mitigating circumstance, the panel rec-
ognized Trail’s bad childhood and disadvantaged upbringing.
His parents left him when he was 2 years old, after which
2
State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
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time he lived for several years with grandparents who “had a
poor attitude toward the law.” When his mother later married,
Trail was adopted by his stepfather, who was abusive. Trail
spent his teenage years in troubled environments, including
a juvenile detention facility. He was incarcerated for the first
time at age 17 and has spent most of his life incarcerated or
on parole.
In weighing the aggravating circumstance against the exist-
ing nonstatutory mitigating factor, the panel found that—given
the degree of cold, calculated planning; the relishing of the
murder; and the mutilation of the victim, all demonstrating an
“extreme depravity in the mind of . . . Trail”—the aggravating
circumstance was entitled to great weight. The panel found
the weight of the nonstatutory mitigating circumstance of
Trail’s bad childhood and disadvantaged upbringing “does not
approach or exceed the weight of the overwhelming evidence
supporting the aggravating circumstance of exceptional deprav-
ity found in this case.”
Finally, the panel found in its review under Neb. Rev. Stat.
§ 29-2522(3) (Cum. Supp. 2020) that the sentence of death
would not be excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant. It noted cases such as State v. Torres, 3 State v.
Joubert, 4 State v. Moore, 5 and State v. Williams. 6
For his conviction of first degree murder, the panel sen-
tenced Trail to death. The presiding judge sentenced Trail
to 2 years’ incarceration for the improper disposal of human
skeletal remains and to 50 years’ incarceration for conspiracy
to commit first degree murder, both to run consecutively
to the murder conviction. Trail, represented by trial coun-
sel, appeals.
3
State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
4
State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
5
State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
6
State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
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III. ASSIGNMENTS OF ERROR
Trail assigns that the district court erred in (1) “death
qualifying” the jury; (2) denying his pretrial motion to sever;
(3) allowing an identified witness to remain in the courtroom
during trial, in violation of the court’s own sequestration
order; (4) denying his motion for mistrial; and (5) denying his
motion for new trial. He also assigns that the sentencing panel
erred when balancing the aggravating circumstances against
the mitigating circumstances and by concluding that his case
merits death when compared to similar cases. He asserts that
Nebraska’s death penalty statutory scheme violates the Sixth
and Eighth Amendments to the U.S. Constitution and articles
1 through 6 and 1 through 9 of the Nebraska Constitution,
because it permits judges, not juries, to make the factual find-
ings necessary to impose death sentences.
IV. STANDARD OF REVIEW
[1] A denial of a motion to sever will not be reversed unless
clear prejudice and an abuse of discretion are shown, and an
appellate court will find such an abuse only where the denial
caused the defendant substantial prejudice amounting to a mis-
carriage of justice. 7
[2] It is for the trial court to determine the extent to which a
sequestration order will be applied in a given case. 8
[3] An appellate court will not disturb a trial court’s deci-
sion whether to grant a motion for mistrial unless the court has
abused its discretion. 9
[4] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not be
disturbed. 10
7
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
8
State v. Swillie, 218 Neb. 551, 357 N.W.2d 212 (1984).
9
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
10
State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
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[5] The constitutionality of a statute presents a question of
law, which an appellate court independently reviews. 11
[6] In reviewing a sentence of death, the Nebraska Supreme
Court conducts a de novo review of the record to determine
whether the aggravating and mitigating circumstances support
the imposition of the death penalty. 12
V. ANALYSIS
On direct appeal, Trail challenges the denial of his pretrial
motions to prevent death qualification of the jury and to sever
the conspiracy and murder charges. He argues that the district
court erred during trial by releasing the victim’s mother from
sequestration after she testified and by denying his motion
for a mistrial based on his verbal outburst and self-harm. He
asserts that, after trial, the court erred in denying his motion
for a new trial based on that same incident. Finally, Trail
asserts the Nebraska death penalty statutes under which he
was sentenced are unconstitutional. Alternatively, he asserts
the three-judge panel erred in determining the sentence of
death was not excessive or disproportionate to the penalty
imposed in similar cases. We address each of these arguments
in turn.
1. Death Qualification
Trail argues the district court abused its discretion in inform-
ing the venire the death penalty was a potential sentence,
which led to questioning potential jurors about their ability to
remain fair and impartial despite their views on the death pen-
alty, which led to removing jurors for cause when they could
not remain fair and impartial. In other words, he challenges the
death qualification of the jury.
Trail asserts the exclusion of prospective jurors who were
opposed to capital punishment subjected him to a trial before
11
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
12
State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
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a more “conviction-prone” 13 jury than he would have had
without death qualification. He does not necessarily take issue
with the premise that views on capital punishment can interfere
with certain potential jurors’ ability to perform their duties, but
claims death qualification is unnecessary in Nebraska because
jurors do not impose the sentence. He claims the jury can
remain unbiased without death qualification because “it is pos-
sible to keep the issue of the death penalty out of the jurors’
minds all together.” 14
While Trail acknowledges Neb. Rev. Stat. § 29-2006(3)
(Cum. Supp. 2020) states that having opinions “such as to pre-
clude [a juror] from finding the accused guilty of an offense
punishable with death” is good cause to challenge the juror,
he describes this as a “relic from a time period in Nebraska
history during which it was widely known that the penalty for
murder was a mandatory death sentence.” 15 Trail asserts unnec-
essary death qualification violates the heightened reliability
standard applicable to capital cases under the 8th Amendment
to the U.S. Constitution and article I, §§ 9 and 15, of the
Nebraska Constitution; equal protection principles embodied in
the 14th Amendment to the U.S. Constitution and article I, § 3,
of the Nebraska Constitution; and the 6th Amendment right to
a jury trial.
(a) Sixth Amendment
The Sixth Amendment provides in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed . . . .”
The 6th Amendment is applicable to the States through the
14th Amendment.
13
Brief for appellant at 20.
14
Id. at 16.
15
Id. at 17-18.
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[7-9] The Sixth Amendment secures to criminal defendants
the right to be tried by an impartial jury drawn from sources
reflecting a fair cross-section of the community. 16 The fair-cross-
section venire requirement is not explicit in the text of the Sixth
Amendment, but is derived from the traditional understanding
of how an “impartial jury” is assembled. 17 The Constitution
presupposes that a jury selected from a fair cross-section of the
community is impartial. 18 The “‘representativeness’” constitu-
tionally required at the venire stage can be disrupted at the jury-
panel stage to serve a State’s “‘legitimate interest.’” 19
The U.S. Supreme Court has produced a body of case law
under the Sixth Amendment holding the State has a legitimate
interest in death qualifying juries that are directly involved in
capital sentencing. It has not addressed death qualification out-
side of that context.
The Court has expressly declined to conclude, as a matter of
judicial notice or on the records presented to it, that, in the con-
viction phase of trial, the exclusion of jurors opposed to capital
punishment results in an unrepresentative jury on the issue of
guilt or substantially increases the risk of conviction. 20 Even
assuming without deciding death qualification “‘slants’” 21 the
jury in favor of conviction, the Court has repeatedly held it
serves a proper purpose to exclude jurors whose views on capi-
tal punishment interfere with their ability to obey their oath
during the sentencing phase of trial. 22
16
Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249
(2010).
17
Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905
(1990).
18
Lockhart v. McCree, supra note 1.
19
Holland v. Illinois, supra note 17, 493 U.S. at 483.
20
Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776
(1968).
21
Lockhart v. McCree, supra note 1, 476 U.S. at 179.
22
See Lockhart v. McCree, supra note 1.
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The Court has explained there must be a balance between
the interests of the defendant and of the State in a capital case.
While a criminal defendant has the right to an impartial jury
drawn from a venire that has not been “tilted” 23 in favor of
capital punishment by selective prosecutorial challenges for
cause, the State has a strong interest in having jurors who are
able to apply capital punishment within the framework state
law prescribes. To balance these interests, a juror who is sub-
stantially impaired in the ability to impose the death penalty
can be excused by the State for cause while a juror who is not
thereby substantially impaired cannot be excused for cause. 24
Similarly, a juror who is substantially impaired in the ability to
choose life imprisonment can be excused by the defendant for
cause, while a juror who is in favor of the death penalty but
who is not thereby substantially impaired cannot be excused
for cause. 25
[10] In order to meaningfully effectuate these constitutional
protections, there must be an adequate voir dire. 26 The U.S.
Supreme Court has held that in a capital case where the jury
is directly involved in sentencing, this entails the opportunity
to inquire into whether views on the death penalty would dis-
qualify prospective jurors from sitting. 27 General questions
as to prospective jurors’ ability to remain fair and impartial
and to follow the law are inadequate substitutes for more spe-
cific questions, when requested, as to whether the jurors are
“unalterably in favor of, or opposed to, the death penalty in
every case.” 28
23
Uttecht v. Brown, 551 U.S. 1, 9, 127 S. Ct. 2218, 167 L. Ed. 2d 1014
(2007).
24
Id.
25
See, Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492
(1992); Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80
(1988).
26
See id. See, also, Lockhart v. McCree, supra note 1.
27
See Morgan v. Illinois, supra note 25.
28
Id., 504 U.S. at 735.
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In Lockhart v. McCree, 29 the Supreme Court held that even
though death qualification is more directly pertinent to the
penalty phase, it did not violate the Sixth Amendment to death
qualify a jury before the guilt phase of a capital trial. The
Court said in Witherspoon v. Illinois 30 that the State “crossed
the line of neutrality” by systematically excluding for cause
members of the venire who had general scruples against capital
punishment but who could nevertheless obey their oaths 31 and
said that culling all jurors “who harbor doubts about the wis-
dom of capital punishment,” but who were nevertheless capa-
ble of obeying their oath, produces a jury that does not “speak
for the community” and is “uncommonly willing to condemn
a man to die.” 32 The Court in McCree pointed out its state-
ments in Witherspoon were in the context of a system where
the jury had considerable discretion at sentencing. Regardless,
McCree explained a narrower elimination for cause of jurors
who are unable to apply the law to the facts because of their
beliefs on capital punishment does not similarly cross the line
of neutrality. 33
[11,12] Even assuming for purposes of its opinion that death-
qualified juries are “somewhat more ‘conviction-prone,’” 34 the
Court in McCree explained that “groups defined solely in terms
of shared attitudes that would prevent or substantially impair
members of the group from performing one of their duties as
jurors . . . are not ‘distinctive groups’ for fair-cross-section
29
Lockhart v. McCree, supra note 1.
30
Witherspoon v. Illinois, supra note 20.
31
Id., 391 U.S. at 520. See Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65
L. Ed. 2d 581 (1980). See, also, Gray v. Mississippi, 481 U.S. 648, 107 S.
Ct. 2045, 95 L. Ed. 2d 622 (1987); Wainwright v. Witt, 469 U.S. 412, 105
S. Ct. 844, 83 L. Ed. 2d 841 (1985).
32
Id., 391 U.S. at 520, 521. See, also, Adams v. Texas, supra note 31; Gray
v. Mississippi, supra note 31; Wainwright v. Witt, supra note 31.
33
Lockhart v. McCree, supra note 1.
34
Id., 476 U.S. at 173.
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purposes.” 35 In order to establish a prima facie violation of the
fair-cross-section requirement under the Sixth Amendment, a
defendant must show (1) that the group alleged to be excluded
is a “distinctive” group in the community, (2) that the represen-
tation of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of such
persons in the community, and (3) that this underrepresentation
is due to systematic exclusion of the group in the jury selec-
tion process. 36
[13,14] The Court reiterated an impartial jury is “nothing
more than jurors who will conscientiously apply the law and
find the facts.” 37 “[I]t is simply not possible to define jury
impartiality, for constitutional purposes, by reference to some
hypothetical mix of individual viewpoints.” 38 Also, the Court
noted the same allegedly conviction-prone individuals could
end up on the defendant’s jury through “‘luck of the draw.’”
It did not “understand the logic of the argument that a given
jury is unconstitutionally partial when it results from a state-
ordained process, yet impartial when exactly the same jury
results from mere chance.” 39 Beliefs with respect to the death
penalty, said the Court, are within the individual’s control.
Death qualification does not create an appearance of unfair-
ness, as it only results in the removal for cause of those jurors
who are unwilling “to temporarily set aside their own beliefs in
deference to the rule of law.” 40
Death qualification before the guilt phase, said the Court,
serves a legitimate state interest in obtaining a single jury
35
Id., 476 U.S. at 174.
36
Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
37
Lockhart v. McCree, supra note 1, 476 U.S. at 178 (internal quotation
marks omitted).
38
Id., 476 U.S. at 183.
39
Id., 476 U.S. at 178.
40
Id.
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that can properly and impartially apply the law to the facts
of the case at both the guilt and sentencing phases of a
capital trial. 41 Given that much of the same evidence would
be presented at both phases of the capital trial, it served
the interests both of the prosecution and of the defense to
avoid the burden of having to present the evidence and tes-
timony twice. 42 This is balanced against the fact that there is
less concern during the conviction stage of the effect of an
imbalanced jury. The Court explained, “[J]ury discretion is
more channeled” in its more traditional role of finding the
facts and determining the guilt or innocence of a criminal
defendant. 43
In Buchanan v. Kentucky, 44 the Court extended its rationale
from McCree to hold that the constitutional rights of a non-
capital defendant were not violated by death qualification of
the jury before the guilt phase of a joint trial with a capital
codefendant. The Court said the state has a significant interest
in having a joint trial of defendants when the crimes charged
arise out of one chain of events. The joint trial may benefit
the noncapital defendant as well. 45 In joint trials, the “jury
obtains a more complete view of all the acts underlying the
charges than would be possible in separate trials” and “may
be able to arrive more reliably at its conclusions regarding
the guilt or innocence of a particular defendant and to assign
fairly the respective responsibilities of each defendant in the
sentencing.” 46 Furthermore, the State has a genuine interest in
avoiding the burden of presenting the same evidence to different
41
See Lockhart v. McCree, supra note 1.
42
See id.
43
Id., 476 U.S. at 183.
44
Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336
(1987).
45
See id.
46
Id., 483 U.S. at 418.
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juries for different defendants charged with crimes arising from
the same events. 47
The Court said in Buchanan that these interests in a joint
trial, combined with the interest discussed in McCree in
having the same jury for the guilt and penalty phases of a
capital defendant’s trial, “argue[] strongly in favor of permit-
ting ‘death qualification’ of the jury.” 48 It also reiterated that
any concern about the possible effect of an allegedly imbal-
anced jury was not present because of the limited nature of
the jury’s discretion in the trial, which was generally more
“channeled than at a capital-sentencing proceeding.” 49 At sen-
tencing, under the statutory scheme at issue in Buchanan, the
jury’s sentence was limited to specific statutory sentences and
subject to review by the judge. In light of the presupposition in
Buchanan that jury members selected from a fair cross-section
of the community are impartial so long as they can properly
carry out their duties, as well as the State’s significant interests
in the joint trial, the Court held there was no violation of the
noncapital defendant’s 6th and 14th Amendments right to an
impartial jury.
Trail correctly points out that a panel of judges, rather than
the jury, decides the defendant’s punishment in capital cases
in Nebraska. 50 This has long been true. Accordingly, we have
acknowledged the death-qualification case law of the U.S.
Supreme Court is factually distinguishable; the juries in those
cases ultimately determined the sentence. 51 Nonetheless, we
have not been persuaded that this factual distinction is deter-
minative of Sixth Amendment challenges in capital cases in
Nebraska where juries have decided if any of the alleged
47
Id.
48
Id., 483 U.S. at 419-20.
49
Id., 483 U.S. at 420.
50
See 1973 Neb. Laws, L.B. 268.
51
See, State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987); State v.
Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).
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aggravating circumstances were proved beyond a reasonable
doubt. 52 In this context, we have specifically rejected the
argument that it is unconstitutional to death qualify juries in
capital cases in Nebraska because those juries do not ultimately
decide if the sentence shall be life or death. 53 Instead, we have
repeatedly held under the Sixth Amendment that it is permis-
sible to determine during voir dire whether jurors’ views on
capital punishment would prevent or substantially impair their
ability to impartially apply the law to the evidence—and to
exclude them for that reason. 54
Our case law on death qualification has not explicitly
addressed the argument raised by Trail in this appeal that the
State lacks a legitimate interest in death qualifying the venire
because it can ensure jurors’ beliefs will not interfere with
their duties by never telling them they are sitting in a capital
case. This novel argument does not cause us to question our
prior holdings.
We cannot, as Trail implicitly suggests, presume potential
jurors come to the jury pool ignorant of the law. To the con-
trary, jurors, as citizens of this state, are presumably aware the
law provides for the death penalty as a possible punishment
for murder under certain circumstances. And the circumstances
making the death penalty a legal possibility are likely to
become apparent during the course of the State’s presentation
of the evidence at trial. While the jurors will not know with
certainty whether the State has in fact alleged an aggravator in
any given case, they will not have the level of ignorance Trail
believes possible.
52
See id. See, also, State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002);
State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990); State v. Hankins,
232 Neb. 608, 441 N.W.2d 854 (1989); State v. El-Tabech, 225 Neb. 395,
405 N.W.2d 585 (1987); State v. Peery, 223 Neb. 556, 391 N.W.2d 566
(1986); State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986); State v.
Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); State v. Williams, supra
note 6.
53
Id.
54
See id.
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[15] Even if the jurors could be sufficiently ignorant of the
capital implications of a conviction at the guilt phase of trial,
once they are asked to determine if the State has proved an
aggravating circumstance beyond a reasonable doubt, any juror
knowledgeable of the law will understand it is a capital case.
And just as the U.S. Supreme Court has described the State’s
interest in having the same jury for the guilt and sentencing
phases and jointly trying a capital defendant and a noncapital
defendant in charges arising out of the same events, the State
has an interest in having the same jury determine both the
defendant’s guilt or innocence and the alleged aggravating
circumstances that, if found, will permit a three-judge panel
to impose the death penalty. The State has a legitimate inter-
est in avoiding the burden of presenting the same evidence to
different juries for the guilt phase and the aggravation phase
of trial. Thus, the State has an interest in determining at voir
dire whether any jurors will be unable to perform their duties
at the aggravation phase of the trial. In other words, the State
has a legitimate interest in death qualifying juries in capital
cases in Nebraska.
There is a presupposition that a jury selected from a fair
cross-section of the community is impartial despite a mix of
viewpoints. Groups defined by belief systems that substan-
tially impair persons from performing their duties as jurors are
not distinctive groups for fair-cross-section purposes. Even if
we assume the result of death qualification is a slightly more
conviction-prone jury, the State has a legitimate interest in
eliminating from the venire those jurors who cannot carry out
their duties because of their views. When the death penalty
cannot be imposed before the jury decides if an aggravating
circumstance exists, then the State has a reason to question
whether views on the death penalty will interfere with that
task, and to question the venire accordingly. Moreover, jurors’
discretion is much more channeled during the guilt and aggra-
vation stages of trial than at the ultimate sentencing hearing by
the three-judge panel.
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[16] We hold that the State does not violate the Sixth
Amendment right to an impartial jury by death qualifying the
jury before a trial wherein it has alleged an aggravator that,
if found by the jury, will make the defendant eligible for the
death penalty. Although Trail ultimately waived his right to a
jury determination of the alleged aggravator, he did so only
after the verdict and after the district court rejected his chal-
lenges to death qualification.
(b) Equal Protection
[17] We also disagree with Trail’s argument that death qual-
ification in Nebraska violates equal protection. The Nebraska
Constitution and the U.S. Constitution have identical require-
ments for equal protection challenges. 55 The Equal Protection
Clause of the 14th Amendment, § 1, mandates that no state
shall “deny to any person within its jurisdiction the equal
protection of the laws.” This clause does not forbid classifi-
cations; it simply keeps governmental decisionmakers from
treating differently persons who are in all relevant aspects
alike. 56 When a classification created by state action does not
jeopardize the exercise of a fundamental right or categorize
because of an inherently suspect characteristic, the Equal
Protection Clause requires only that the classification ratio-
nally further a legitimate state interest. 57 In equal protection
challenges, the burden is on a defendant to “‘prove the exis-
tence of purposeful discrimination.’” 58
Trail asserts death qualification creates a classification
between capital defendants and noncapital defendants when
it subjects capital defendants to allegedly conviction-prone
55
Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
56
Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013).
57
Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., supra note 55.
58
Batson v. Kentucky, 476 U.S. 79, 93, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986).
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juries that noncapital defendants do not have. He asserts that
because jurors can be kept in ignorance of the capital implica-
tions of their factfinding, such classification does not ratio-
nally further a legitimate state interest. Trail has not proved
purposeful discrimination.
We have already rejected Trail’s argument that the jury
can effectively be suspended in ignorance of the possibility
of the death penalty. And we note that in McCree, the U.S.
Supreme Court implicitly disagreed with the idea that the
death qualification of a jury is subject to heightened scrutiny. 59
The Court explicitly distinguished the exclusion of jurors who
have decided that their personal views would not allow them
to impose the death penalty from prior cases finding unconsti-
tutional the wholesale exclusion of individuals of a particular
skin color, ethnic heritage, or gender.
As discussed, the State is entitled to a jury that is capable
of performing its duties. Excluding prospective jurors based
on voluntary belief systems that render them unable to per-
form their duties does not create an appearance of unfairness.
For purposes of inquiry into views on capital punishment,
capital cases and noncapital cases are different. Views on
capital punishment are relevant to the ability of jurors to obey
their oaths in capital cases. We find no merit to Trail’s argu-
ment that death qualification of the jury violated his rights to
equal protection.
(c) Heightened Reliability Under Eighth Amendment
to U.S. Constitution and Article I, §§ 9 and 15,
of Nebraska Constitution
Trail makes one conclusory statement that death qualifica-
tion violates the heightened reliability required by the Eighth
Amendment to the U.S. Constitution and article I, §§ 9 and
15, of the Nebraska Constitution. Conclusory assertions unsup-
ported by coherent analytical argument fail to satisfy the
59
See Lockhart v. McCree, supra note 1.
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requirement of arguing an assigned error to obtain consider-
ation by an appellate court. 60
[18] In the absence of analytical support, we hold the
Eighth Amendment and article I, §§ 9 and 15, of the Nebraska
Constitution are not violated by death qualification in a
capital case. We note the U.S. Supreme Court’s opinion in
Witherspoon, which, as discussed, set constitutional limits on
excusing jurors for cause because of their beliefs on capital
punishment, was based in the Sixth Amendment and nowhere
implied the Eighth Amendment is implicated. 61 The Eighth
Amendment states: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punish-
ments inflicted.” The 14th Amendment applies those restric-
tions to the States. 62 Under article I, § 9, of the Nebraska
Constitution:
All persons shall be bailable by sufficient sureties,
except for treason, sexual offenses involving penetration
by force or against the will of the victim, and murder,
where the proof is evident or the presumption great.
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted.
Article I, § 15, states all penalties shall be proportioned to
the nature of the offense. Under the Eighth Amendment, “the
qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the
capital sentencing determination.” 63 None of these provisions
are violated by the process of death qualifying the jury so that
the members of the venire are capable of performing their
duties despite their personal views on capital punishment.
60
See State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
61
See Witherspoon v. Illinois, supra note 20.
62
Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014).
63
Calwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 86 L. Ed. 2d
231 (1985) (internal quotation marks omitted).
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(d) § 29-2006(3) Applicable Only
to Capital Indictments
In the course of arguing the district court erred in death
qualifying the jury, Trail asserts that § 29-2006(3) is inappli-
cable because, on the information alone, he was not eligible for
the death penalty. Section 29-2006(3) states:
The following shall be good causes for challenge to
any person called as a juror or alternate juror, on the trial
of any indictment: . . . (3) in indictments for an offense
the punishment whereof is capital, that his opinions are
such as to preclude him from finding the accused guilty
of an offense punishable with death . . . .
According to Trail, this is not a trial, described by § 29-2006(3),
“in indictments for an offense the punishment whereof is capi-
tal” because the death penalty was only a sentencing option
upon the State’s noticing and proving, after the merits phase,
additional facts at an aggravation hearing.
But Trail does not appeal the district court’s excusal of any
potential juror for cause under § 29-2006(3), and the State’s
interest in and constitutionality of death qualification does not
depend upon a statutory provision. Therefore, we need not
address Trail’s unique view that he was not charged with “an
offense the punishment whereof is capital” for purposes of
§ 29-2006(3) because the matters making him death eligible
were determined after the merits phase of the trial. Regardless
of whether that was the case, Trail was given timely notice
in the information that the State was planning on proving an
aggravating circumstance and the district court did not err in
death qualifying the jury for Trail’s trial.
2. Motion to Sever Murder
and Conspiracy Charges
Having found no merit to Trail’s challenges to death qualifi-
cation of the jury, we turn to his assignment that the court erred
by refusing to sever the trials on the charges for first degree
murder and conspiracy to commit first degree murder.
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[19,20] There is no constitutional right to a separate trial. 64
Instead, the joinder or separation of charges for trial is gov-
erned by § 29-2002, which states, in relevant part:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
....
(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint . . . the court may order an
election for separate trials of counts, indictments, infor-
mations, or complaints, grant a severance of defendants,
or provide whatever other relief justice requires.
In summary, whether offenses were properly joined involves a
two-stage analysis: (1) whether the offenses were sufficiently
related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant. 65 There is a strong presumption against
severing properly joined counts. 66
[21-23] Trail does not contest that the offenses were suf-
ficiently related to be joinable, but, rather, he asserts the join-
der was prejudicial. A denial of a motion to sever will not be
reversed unless clear prejudice and an abuse of discretion are
shown, and an appellate court will find such an abuse only
where the denial caused the defendant substantial prejudice
amounting to a miscarriage of justice. 67 A defendant appealing
the denial of a motion to sever has the burden to show compel-
ling, specific, and actual prejudice. 68 Severe prejudice occurs
64
State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
65
Id.
66
Id.
67
State v. Henry, supra note 7.
68
State v. Benson, supra note 64.
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when a defendant is deprived of an appreciable chance for an
acquittal, a chance that the defendant would have had in a sev-
ered trial. 69 Prejudice from joinder cannot be shown if evidence
of one charge would have been admissible in a separate trial of
another charge. 70
Trail argues he was prejudiced by the joinder because “it
is likely that all the evidence that might have been admissible
in a trial of either [the murder count or the conspiracy count]
tried separately would not have been admissible if Count
I, Murder in the First Degree were tried separately.” 71 Trail
does not point out which specific statements were entered
into evidence by virtue of the joinder, which would have been
inadmissible otherwise. Rather, he generally asserts the State
was allowed to introduce hearsay evidence to establish a con-
spiracy, lifting the conspiracy “‘by its own bootstraps,’” 72 then
utilizing that conspiracy evidence to get a conviction on the
murder charge.
Such arguments fall far short of showing compelling, spe-
cific, and actual prejudice. Most fundamentally, however, there
is no merit to Trail’s assumption that different hearsay rules
apply to proof of a conspiracy in a trial on a conspiracy charge
versus proof of a conspiracy in a trial on a murder charge.
[24-26] In State v. Hudson, 73 we specifically held that
the coconspirator exception to the hearsay rule is applicable
regardless of whether a conspiracy has been charged in the
information. Under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue
2016), a statement is not hearsay if it is “a statement by a
coconspirator of a party during the course and in furtherance
of the conspiracy.” Under the coconspirator exception to the
hearsay rule, the declarant conspirator who partners with oth-
ers in the commission of a crime is considered the agent of
69
Id.
70
Id.
71
Brief for appellant at 23.
72
Id.
73
State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).
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his or her fellow conspirators, and the commonality of inter-
ests gives some assurance that the statements are reliable. 74
Whether or not a conspiracy has been charged in the informa-
tion, before the trier of fact may consider testimony under the
coconspirator exception to the hearsay rule, a prima facie case
establishing the existence of the conspiracy must be shown by
independent evidence, to prevent the danger of hearsay evi-
dence being lifted by its own bootstraps. 75
Our review of the record demonstrates the district court
was aware of Trail’s concerns and insisted the State establish
by independent evidence a prima facie case of the conspiracy
before it admitted Boswell’s out-of-court statements. We find
no merit to this assignment of error.
3. Sequestration
Trail next argues the district court erred in allowing
Sydney’s mother to remain in the courtroom “in violation
of its own sequestration order.” 76 Trail elaborates that under
Neb. Rev. Stat. § 27-615 (Reissue 2016), he had a right to
have the witnesses excluded so that they could not hear the
testimony of other witnesses. Trail does not explain how he
was prejudiced by the district court’s ruling other than gen-
erally noting Sydney’s mother “remained in the front of the
courtroom for the majority of the balance of the trial within
sight of the jury and was able to hear the testimony of all the
other witnesses.” 77
[27,28] Section 27-615 provides, with certain exceptions
not here applicable that “[a]t the request of a party the
judge shall order witnesses excluded so that they cannot hear
the testimony of other witnesses . . . .” However, we have
long held that the exclusion or sequestration of a witness is
74
State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
75
See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).
76
Brief for appellant at 25.
77
Id. at 26.
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within the discretion of the trial court. 78 It is for the trial
court to determine the extent to which a sequestration order
will be applied in a given case. 79 Sequestration is based on
the belief that not hearing other witnesses’ testimony tends to
better elicit the truth and promote the ends of justice, but this
reasoning generally applies only to unexamined witnesses. 80
Thus, generally speaking, a request for sequestration of wit-
nesses is a request that they be excluded from the court-
room until called to testify. 81 The denial of a sequestration
motion will not be overturned absent evidence of prejudice to
the defendant. 82
The district court did not abuse its discretion in allow-
ing Sydney’s mother to remain in the courtroom after she
testified and after the court released her from sequestration.
Furthermore, Trail has failed to demonstrate he was prejudiced
by her presence. While the defense was given the opportunity
to recall Sydney’s mother in order to reopen cross-examination,
it did not elect to do so. The fact that the mother of a mur-
der victim was present in the courtroom in view of the jury
during trial does not in itself demonstrate prejudice to the
defendant.
4. Courtroom Disruption
Trail argues that his outburst at trial—“curse you all” and
cutting his neck with a razor blade—was of such a nature that
its damaging effect could not be removed by admonition or
instruction and that the court should have granted his motion
for a mistrial. Even if an admonition or instruction could
have otherwise removed the prejudice, according to Trail,
the court’s procedure of first ordering the jurors to disregard
78
State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999).
79
State v. Swillie, supra note 8.
80
See State ex rel. NSBA v. Miller, supra note 78.
81
State v. Hess, 225 Neb. 91, 402 N.W.2d 866 (1987).
82
State ex rel. NSBA v. Miller, supra note 78.
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the outburst and then asking them if they could follow the
court’s instruction was insufficient because it put the jurors in
a difficult position of stating they could not follow the court’s
order. Similarly, Trail argues his motion for a new trial should
have been granted because of his disruption. Trail suggests
the additional evidence submitted in support of the motion for
new trial, entered under seal, showed the self-harm was due to
“misconduct of agents of the prosecuting attorney,” 83 because
it would not have occurred had jail staff implemented extra
security measures warranted by specific knowledge. We hold
the district court did not err in denying Trail’s motions for a
mistrial and for a new trial.
[29-31] A mistrial is properly granted in a criminal case
where an event occurs during the course of trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus pre-
vents a fair trial. 84 A defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting to
prove error predicated on the failure to grant a mistrial. 85 The
defendant must prove that the alleged error actually prejudiced
him or her, rather than creating only the possibility of preju-
dice. 86 Absent evidence to the contrary, the legal system pre-
sumes that jurors, to the extent they are able, will comply with
curative instructions and judicial admonitions. 87
[32,33] A motion for a new trial is a statutory remedy and
can be granted by a court of law only upon the grounds, or
83
Brief for appellant at 36.
84
State v. Figures, supra note 9.
85
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
86
State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
87
See, David F. Herr & Roger S. Haydock, Motion Practice § 21.04 (8th ed.
2021) (discussing curative instructions); David Paul Nicoli, Federal Rules
of Criminal Procedure 23(b) and 24(c): A Proposal to Reduce Mistrials
Due to Incapacitated Jurors, 31 Am. U.L. Rev. 651 (1982). See, also, U.S.
v. Dunlap, 28 F.3d 823 (8th Cir. 1994).
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some of them, provided for by the statutes. 88 The grounds on
which a trial court may order a new trial after a criminal convic-
tion has been entered are specified in Neb. Rev. Stat. § 29-2101
(Reissue 2016). The asserted ground for a new trial must affect
adversely the substantial rights of the defendant, and it must be
shown that the defendant was prejudiced thereby. 89
[34-36] A trial court is vested with considerable discre-
tion in passing on motions for mistrial and new trial, 90 and an
appellate court will not disturb a trial court’s decision whether
to grant a motion for mistrial or a motion for new trial unless
the court has abused its discretion. 91 It is an abuse of discre-
tion to make an error of law or clear errors of factual deter-
mination. 92 Our deference to the trial court stems in part from
the recognition that the trial judge is better situated than a
reviewing court to pass on questions of witness credibility and
the surrounding circumstances and atmosphere of the trial. 93
The trial judge has a special perspective on the relationship
between the evidence and the verdict which cannot be recre-
ated by a reviewing court from the printed record. 94 The trial
court is likewise in a better position to make credibility deter-
minations of jurors’ statements concerning whether they were
influenced by extraneous information. 95
88
See Greenberg v. Fireman’s Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772
(1949). See, also, State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
89
State v. Tainter, 218 Neb. 855, 359 N.W.2d 795 (1984).
90
See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). See, also,
State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021); State v. Grant,
supra note 85.
91
See, State v. Figures, supra note 9; State v. Bartel, supra note 88.
92
See, U.S. v. McDaniel, 398 F.3d 540 (6th Cir. 2005); U.S. v. Petrie, 302
F.3d 1280 (11th Cir. 2002).
93
Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).
94
See id.
95
See Scherz v. Platte Valley Public Power and Irrigation District, 151 Neb.
415, 37 N.W.2d 721 (1949). See, also, State v. Jenkins, supra note 11.
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[37] The district court, after considering all the evidence
submitted by the parties at the hearing on the motion for new
trial, found Trail’s act of self-harm was “a calculating gesture,”
and we will not disturb this finding on appeal. As a general
matter, a defendant is not permitted to profit from the defend
ant’s own bad conduct by disrupting courtroom proceedings
and then urging disruption as a ground for mistrial. 96 “To hold
otherwise would provide a criminal defendant with a conve-
nient device for provoking a mistrial whenever he chose to
do so, either inside or outside the courtroom.” 97 As the U.S.
Supreme Court has explained in the context of the right to be
present at trial, an accused cannot be permitted through dis-
ruptive conduct to indefinitely avoid being tried. 98 “It would
degrade our country and our judicial system to permit our
courts to be bullied, insulted, and humiliated and their orderly
progress thwarted and obstructed by defendants brought before
them charged with crimes.” 99
In accordance with these principles, in State v. Grant, 100
we held the trial court did not err in denying the defendant’s
96
See, United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963); Hayes v.
State, 340 So. 2d 1142 (Ala. Crim. App. 1976); People v. Dunn, 141 Cal.
Rptr. 3d 193, 205 Cal. App. 4th 1086 (2012); Hammond v. United States,
345 A.2d 140 (D.C. 1975); State v. Ganal, 81 Haw. 358, 917 P.2d 370
(1996); State v. Doyle, 335 So. 3d 393 (La. App. 2021); State v. Eaton,
563 S.W.3d 841 (Mo. App. 2018); State v. Grant, supra note 85; People
v. Mabre, 166 A.D.2d 339, 561 N.Y.S.2d 10 (1990); State v. Joiner, 237
N.C. App. 513, 767 S.E.2d 557 (2014); State v. Linkous, 177 W. Va. 621,
355 S.E.2d 410 (1987). See, also, generally, Annot., 89 A.L.R.3d 960
(1979 & Supp. 2022). But see, e.g., People v. Blunt, 273 A.D.2d 146, 709
N.Y.S.2d 560 (2000) (defendant’s orations containing inadmissible and
highly prejudicial factual assertions were too extensive and damaging to
be dealt with through curative instructions and jury inquiries).
97
Hammond v. United States, supra note 96, 345 A.2d at 141.
98
Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
99
Id., 397 U.S. at 346.
100
State v. Grant, supra note 85.
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motion for a mistrial based on his conduct during trial of sud-
denly standing up and punching his counsel in the head, after
which a scuffle with law enforcement ensued to restrain him.
The defendant was subsequently found guilty of first degree
murder and use of a deadly weapon to commit a felony. The
court admonished the jury members and asked them to notify
the court if they could no longer be fair and impartial. None
did. While it appeared the altercation upset at least one mem-
ber of the jury, we pointed out the reactions at issue would
not have occurred without the defendant’s own outburst. 101
We would not “permit a defendant to benefit from his or her
own bad behavior during trial.” 102 We also found that because
the jury members were admonished and indicated they could
remain fair and impartial, the defendant had failed to demon-
strate prejudice. We reached a similar conclusion for similar
reasons in State v. Blackwell, 103 affirming the court’s denial of
a motion for new trial based on the defendant’s yelling at wit-
nesses during their testimony.
When the trial court has endeavored to promptly ameliorate
any prejudicial effect, even frequent offensive and violent out-
bursts by defendants will not ordinarily require a mistrial or a
new trial. 104 In United States v. Bentvena, 105 a series of “dra-
matic disturbances” by several defendants did not warrant a
mistrial when the prosecution had done nothing to provoke the
incidents and the judge did all in his power to minimize their
effect. To hold otherwise, explained the court, “would produce
little less than anarchy.” 106
[38] Neither are disruptive acts of the defendant irremedi-
able simply because they reflect some attribute consistent
101
See id.
102
Id. at 194, 876 N.W.2d at 664.
103
State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).
104
See, e.g., United States v. Bentvena, supra note 96.
105
Id. at 930.
106
Id. at 931.
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with the charged crime. For example, in People v. White, 107
a defendant on trial for escape was not entitled to a mistrial
after the jury saw him flee the courtroom when the State’s
last witness took the stand. The court found the defendant’s
“‘contumacious’” behavior should not entitle him to a mistrial
absent “irremedial prejudice.” 108 And it found that the trial
court’s actions in promptly escorting the jury members from
the courtroom and admonishing them to keep an open mind
adequately minimized the likelihood of prejudice. 109
As with these other defendants, we will not permit Trail
to benefit from his own bad behavior during trial. The court
described that, after yelling, “[Boswell] is innocent, and I curse
you all,” Trail made some slashing gestures at his neck and
some blood was visible. While dramatic, the incident was not
of such a nature to create irremediable prejudice.
We find no merit to Trail’s assertion that the violent dis-
ruption was irremediably prejudicial because he could not
thereafter argue to the jury he was incapable of violence and,
thus, innocent. The same could be said of any violent outburst
during the trial on charges of any violent crime. Moreover, it is
apparent it was never defense counsel’s strategy to argue Trail
was nonviolent, arguing instead that Trail had unintentionally
killed Sydney while engaged in sadomasochistic consensual
asphyxiation. Similarly, Trail’s statement about cursing “you
all” was not irremediably prejudicial because Sydney’s murder
was allegedly connected to witchcraft. And even assuming
Trail’s outburst was construed by jurors as a call to the super-
natural rather than a more mundane expression of outrage,
such beliefs were cumulative of Trail’s own testimony that he
believed in spiritual witches.
The trial court endeavored to promptly ameliorate any preju-
dicial effect by clearing the jury from the courtroom and
107
People v. White, 199 A.D.2d 558, 606 N.Y.S.2d 49 (1993).
108
Id. at 559, 606 N.Y.S.2d at 50.
109
See id.
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instructing it “to disregard the outburst that you heard this
morning and to not consider it in your deliberations at the end
of the trial.” After interviewing each of the jurors individually,
the district court found they were able to follow the cura-
tive instruction to disregard the outburst and remain fair and
impartial in their deliberations. We disagree with Trail’s asser-
tion that the court’s procedure of giving the curative instruc-
tion before individually interviewing the jurors pressured the
jurors into falsely proclaiming they could follow the court’s
instruction. We will not second-guess the court’s evaluation of
the credibility of the jurors’ assurances that they could remain
fair and impartial. The disruption was not so damaging that
a reasonable juror would be incapable of following curative
instructions or of knowing his or her own capacity to remain
impartial. The court did not err in finding that Trail did not suf-
fer actual prejudice.
Trail’s arguments pertaining to jail staff’s negligence are
irrelevant to our analysis, and we therefore do not determine
the extent of such negligence, if any. Whatever security meas
ures jail staff could have taken to prevent Trail from secret-
ing the razor blade into the courtroom, Trail’s responsibility
for intentionally disrupting the trial would remain the same.
Whether or not jail staff should have done more to prevent it,
Trail should not benefit from this “calculating gesture.”
The district court did not abuse its discretion in denying
Trail’s motions for a mistrial and a new trial. We turn to Trail’s
assignments of error relating to sentencing.
5. Constitutionality of Findings of Whether
Aggravating Circumstances Justify Death
Penalty and Relative Weight of
Aggravating and Mitigating Circumstances
Being Made by Judges Rather Than Jury
Trail assigns the district court erred in sentencing him to
death because Nebraska’s death penalty scheme is unconsti-
tutional. He argues that because a panel of judges rather than
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a jury makes findings of whether the aggravating circum-
stances justify the death penalty and whether sufficient miti-
gating circumstances exist that approach or exceed the weight
given to the aggravating circumstances, Nebraska’s death
penalty scheme violates article I, §§ 6 and 9, of the Nebraska
Constitution and the 6th and 8th Amendments to the U.S.
Constitution, made applicable to the states through the 14th
Amendment. We disagree.
Under Nebraska’s capital sentencing scheme, a jury, if not
waived, 110 only determines the existence of aggravating circum-
stances. 111 A jury’s participation in the death penalty sentenc-
ing phase, if not waived, 112 ceases after the determination of
aggravating circumstances. 113 A three-judge panel determines
the existence of mitigating circumstances, weighs aggravating
and mitigating circumstances, and determines the sentence. 114
Section 29-2522 provides the guidelines for the three-judge
panel’s sentencing determination:
The panel of judges for the sentencing determination
proceeding shall either unanimously fix the sentence at
death or, if the sentence of death was not unanimously
agreed upon by the panel, fix the sentence at life impris-
onment. Such sentence determination shall be based upon
the following considerations:
(1) Whether the aggravating circumstances as deter-
mined to exist justify imposition of a sentence of death;
(2) Whether sufficient mitigating circumstances exist
which approach or exceed the weight given to the aggra-
vating circumstances; or
110
See Neb. Rev. Stat. § 29-2520(3) (Cum. Supp. 2020).
111
See § 29-2520(4)(g).
112
See § 29-2520(3).
113
See § 29-2520(4)(g).
114
§ 29-2521.
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(3) Whether the sentence of death is excessive or dis-
proportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
In each case, the determination of the panel of judges
shall be in writing and refer to the aggravating and
mitigating circumstances weighed in the determination of
the panel.
(a) Sixth Amendment
[39] The Sixth Amendment right to a speedy and public
trial by an impartial jury, in conjunction with the Due Process
Clause, requires that each element of a crime be proved to
a jury beyond a reasonable doubt. 115 Article I, § 6, of the
Nebraska Constitution provides: “The right of trial by jury
shall remain inviolate . . . .”
In Apprendi v. New Jersey 116 and Ring v. Arizona, 117 the
U.S. Supreme Court held that under the Sixth Amendment, a
defendant has a right to have any “fact on which the legislature
conditions an increase in their maximum punishment” deter-
mined by a jury, even if the State characterizes that factual
finding as a sentencing factor rather than an element. 118 “[T]he
relevant inquiry is one not of form, but of effect.” 119
[40] The Court in Ring elaborated that under a statutory
scheme in which the death penalty cannot be imposed unless
at least one aggravating factor is found to exist beyond a
reasonable doubt, the Sixth Amendment requires the factual
determination of the aggravating factor be entrusted to the
jury. “[I]f the legislature defines some core crime and then
provides for increasing the punishment of that crime upon a
115
Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).
116
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).
117
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
118
Id., 536 U.S. at 589.
119
Apprendi v. New Jersey, supra note 116, 530 U.S. at 494.
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finding of some aggravating fact[,] . . . the core crime and the
aggravating fact together constitute an aggravated crime.” 120
The Court found that “enumerated aggravating factors [of
state laws] operate as the functional equivalent of an element
of a greater offense.” 121
The Court in Ring expressly observed, however, it was not
addressing whether the Sixth Amendment forbade determi-
nations by judges, rather than juries, of mitigating circum-
stances, the relative weight of aggravating and mitigating
circumstances, or the ultimate sentencing decision. In fact, the
Court in Ring reiterated the distinction between facts of mitiga-
tion versus aggravation, as well as its prior pronouncement in
Proffitt v. Florida 122 that “‘[i]t has never [been] suggested that
jury sentencing is constitutionally required.’” 123
In several cases, we have rejected the argument that
because the right to a jury determination is limited to guilt or
innocence of the crimes charged and the determination of the
aggravating circumstances, Nebraska’s sentencing scheme is
unconstitutional under the 6th and 14th Amendments to the
U.S. Constitution and article I, §§ 3 and 6, of the Nebraska
Constitution. 124 In State v. Gales (Gales I), 125 we explained
that Apprendi and Ring do not stand for the proposition that
a jury, rather than a judge or judges, must make the sentenc-
ing determinations listed under § 29-2522. Rather, Apprendi
and Ring affected only the narrow issue of whether there is
120
Ring v. Arizona, supra note 117, 536 U.S. at 605 (internal quotation marks
omitted).
121
Id., 536 U.S. at 609 (internal quotation marks omitted).
122
See Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913
(1976).
123
Ring v. Arizona, supra note 117, 536 U.S. at 597-98 n.4.
124
See, State v. Jenkins, supra note 11; State v. Lotter, 301 Neb. 125, 917
N.W.2d 850 (2018); State v. Hessler, 274 Neb. 478, 741 N.W.2d 406
(2007); State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
125
State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
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a Sixth Amendment right to have a jury determine the exis-
tence of any aggravating circumstance upon which a capital
sentence is based.
[41] We noted in Gales I that the U.S. Supreme Court, in
Tuilaepa v. California, 126 had described statutory schemes
similar to the one in Nebraska as being composed of an
“‘eligibility decision,’” in which there must be a determina-
tion of the existence of one or more prescribed aggravating
circumstances before a defendant is eligible for a sentence
of death and a “‘selection decision,’” in which the sentence
determines whether a defendant who is thereby death eligible
should in fact receive the death penalty, based upon an indi-
vidualized determination of the character of the individual
and the circumstances of the crime. 127 The “eligibility deci-
sion” stemmed from a series of U.S. Supreme Court deci-
sions holding that in order to render a defendant eligible for
the death penalty, the trier of fact must convict the defendant
of murder and also find one “‘aggravating circumstance’ (or
its equivalent) at either the guilt or penalty phase.” 128 We
pointed out that the U.S. Supreme Court, in both Proffitt 129
and Spaziano v. Florida, 130 had rejected arguments that the
selection decision, as opposed to the eligibility decision, must
be made by a jury, and the Court in Ring appeared to continue
126
Tuilaepa v. California, 512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d 750
(1994).
127
Gales I, supra note 125, 265 Neb. at 609, 658 N.W.2d at 614, quoting
Tuilaepa v. California, supra note 126.
128
Tuilaepa v. California, supra note 126, 512 U.S. at 971-72. See, Lowenfield
v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Zant v.
Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Coker
v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). See,
also, Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d
370 (1999).
129
See Proffitt v. Florida, supra note 122.
130
Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340
(1984), overruled, Hurst v. Florida, supra note 115.
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to approve of the distinction between eligibility and selection
decisions for purposes of the Sixth Amendment. 131 We accord-
ingly held that the Sixth Amendment requires only the right to
a jury determination of the death-eligibility finding of one or
more aggravating circumstances and it does not apply to the
selection decision.
Relying on the 2016 U.S. Supreme Court decision in Hurst
v. Florida, 132 Trail asserts that Gales I and its progeny are no
longer good law. We disagree.
In Hurst, the Court held that a “hybrid” 133 sentencing
scheme, in which the jury made a merely “advisory” 134 recom-
mendation of life or death and did not make a binding finding
as to the existence of any aggravating circumstance, violated
the Sixth Amendment. The sentencing scheme required the
jury to render an advisory verdict of life or death while
the sentencing judge then exercised independent judgment
to determine the existence of aggravating and mitigating fac-
tors and made an independent judgment, after weighing the
aggravating and mitigating factors, about whether the sen-
tence should be life or death. The sentencing statute specified
that a defendant was not death eligible until the court (not
a jury) made independent findings that the person shall be
punished by death—which included finding that sufficient
aggravating circumstances existed and that there were insuf-
ficient mitigating circumstances to outweigh the aggravating
circumstances. 135
The Supreme Court in Hurst rejected the State’s argument
that the scheme was constitutional because a jury implicitly
found at least one aggravating circumstance when it recom-
mended the death penalty. The Court explained, “The State
131
Gales I, supra note 125.
132
Hurst v. Florida, supra note 115.
133
Id., 577 U.S. at 95 (internal quotation marks omitted).
134
Id. (internal quotation marks omitted).
135
See id.
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fails to appreciate the central and singular role the judge
plays” 136 under the law wherein “[t]he trial court alone must” 137
make the “critical findings necessary to impose the death
penalty” 138 without which the defendant’s maximum authorized
punishment would be life imprisonment.
We recently addressed Hurst in State v. Jenkins. 139 We
held on direct appeal from the defendant’s conviction and
sentence to the death penalty that Hurst did not require us
to reexamine our prior conclusion that the Sixth Amendment
does not require the jury to determine mitigating circum-
stance, perform the balancing function, or conduct the pro-
portionality review.
Similarly, in State v. Lotter, 140 we held, for purposes of the
statute of limitations for a postconviction action, that Hurst
did not announce a new rule of law. We explained Hurst was
merely an application of Ring to the sentencing scheme under
which the judge alone found the existence of any aggravating
circumstance that made the defendant death eligible.
We explained in Lotter that isolated references in Hurst
to the sentencing scheme’s requirement that the court find
there were insufficient mitigating circumstances to outweigh
the aggravating circumstances did not mean that the Supreme
Court had held the jury rather than a judge must find that
the aggravating circumstances outweigh the mitigating ones.
Rather, we sided with the opinion of most federal and state
courts, which agree Hurst does not stand for the proposition
that a jury must find beyond a reasonable doubt that the aggra-
vating factors outweigh the mitigating circumstances. 141
136
Id., 577 U.S. at 99.
137
Id., 577 U.S. at 100.
138
Id., 577 U.S. at 98.
139
State v. Jenkins, supra note 11.
140
State v. Lotter, supra note 124.
141
Id.
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[42] After Jenkins and Lotter, the U.S. Supreme Court, in
McKinney v. Arizona, 142 implicitly confirmed the validity of
our analysis and the majority view. The Court held that on
remand for a reweighing of the aggravating and mitigating
circumstances (after federal habeas corpus review found the
trial court had erred by refusing to consider the mitigating
circumstance of the defendant’s post-traumatic stress disor-
der), a judge, rather than a jury, could conduct the reweigh-
ing. The Supreme Court specifically rejected the defendant’s
argument that its holding in Hurst required a jury to reweigh
aggravating and mitigating circumstances. The Court reiter-
ated, “[I]n a capital sentencing proceeding just as in an ordi-
nary sentencing proceeding, a jury (as opposed to a judge)
is not constitutionally required to weigh the aggravating and
mitigating circumstances or to make the ultimate sentencing
decision within the relevant sentencing range.” 143 The Court
explained that Ring and Hurst stand only for the proposi-
tion that a jury must find an aggravating circumstance that
makes the defendant death eligible. “In short,” said the Court,
“Ring and Hurst did not require jury weighing of aggravat-
ing and mitigating circumstances” 144 and “‘States that leave
the ultimate life-or-death decision to the judge may continue
to do so.’” 145
[43] By leaving to the three-judge panel the ultimate life-
or-death decision upon making the selection decisions of
whether the aggravating circumstances justify the death pen-
alty and whether sufficient mitigating circumstances exist that
approach or exceed the weight given to the aggravating cir-
cumstances, Nebraska’s sentencing scheme does not violate
142
McKinney v. Arizona, ___ U.S. ___, 140 S. Ct. 702, 206 L. Ed. 2d 69
(2020).
143
Id., 140 S. Ct. at 707.
144
Id., 140 S. Ct. at 708.
145
Id., 140 S. Ct. at 708, quoting Ring v. Arizona, supra note 117 (Scalia, J.,
concurring; Thomas, J., joins).
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the Sixth Amendment right to a jury trial or article I, § 6, of
the Nebraska Constitution.
(b) Eighth Amendment
Taking a more novel tack, Trail asserts Nebraska’s delega-
tion of the selection criteria and ultimate life-or-death deci-
sion to the three-judge panel violates the Eighth Amendment
to the U.S. Constitution and article I, § 9, of the Nebraska
Constitution. He asserts that allowing judge-determined death
sentences has fallen outside society’s evolving standards of
decency and that jurors, rather than judges, can more reliably
express society’s consensus of whether a sentence of death is
the adequate response to the defendant’s crimes. It does not
appear we have ever addressed this specific argument. We con-
clude it lacks merit.
[44] The Cruel and Unusual Punishment Clause prohibits
(1) “barbaric punishments under all circumstances” and (2)
punishments that are not “‘graduated and proportioned to
[the] offense.’” 146 Most cases involve disproportionality. 147
On disproportionality, there is a body of case law applying
categorical rules under the Eighth Amendment in light of
either the “nature of the offense” or the “characteristics of the
offender.” 148 In adopting such rules, the U.S. Supreme Court
has considered, first, “‘objective indicia of society’s standards’
. . . to determine whether there is a national consensus against
the sentencing practice at issue.” 149 It then has exercised its
own independent judgment, guided by “‘the standards elabo-
rated by controlling precedents and by the Court’s own under-
standing and interpretation of the Eighth Amendment’s text,
history, meaning, and purpose.’” 150
146
Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010).
147
See id.
148
Id., 560 U.S. at 60.
149
Id., 560 U.S. at 61.
150
Id.
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The U.S. Supreme Court has recognized that the Eighth
Amendment reaffirms the duty of the government to respect the
dignity of all persons “‘[b]y protecting even those convicted
of heinous crimes . . . .’” 151 “To enforce the Constitution’s
protection of human dignity, this Court looks to the ‘evolv-
ing standards of decency that mark the progress of a maturing
society.’” 152 This is necessary because the standard of extreme
cruelty is not merely descriptive, but necessarily embodies a
moral judgment, and what is considered cruel and unusual pun-
ishment must change as the basic mores of society change. 153
The U.S. Supreme Court has also said, “The fundamental
respect for humanity underlying the Eighth Amendment’s
prohibition against cruel and unusual punishment gives rise
to a special need for reliability in the determination that
death is the appropriate punishment in any capital case.” 154
In order to ensure that reliability, “the sentencing process
must permit consideration of the ‘character and record of the
individual offender and the circumstances of the particular
offense.’” 155
None of these Eighth Amendment principles are pertinent
to whether a jury, as opposed to a judge, weighs the aggra-
vating against the mitigating circumstances and makes the
ultimate determination if death is the appropriate punishment.
In fact, the U.S. Supreme Court has recognized as much. In
Clemons v. Mississippi, 156 in addition to addressing the Sixth
151
Hall v. Florida, supra note 62, 572 U.S. at 708, quoting Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
152
Id., quoting Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 1 L. Ed. 2d. 630
(1958).
153
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
154
Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d
575 (1988) (internal quotation marks omitted).
155
See Lockett v. Ohio, 438 U.S. 586, 601, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978).
156
Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725
(1990).
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312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843
Amendment, the U.S. Supreme Court held it does not violate
the Eighth Amendment for an appellate court, rather than
remand for a jury reweighing, to uphold a death sentence
by itself reweighing on appeal the aggravating and mitigat-
ing evidence. One aggravating circumstance found below
had been held on appeal to be unconstitutionally vague, but
the other aggravating circumstance was held to be valid. 157
The Court explained, “The primary concern in the Eighth
Amendment context has been that the sentencing decision be
based on the facts and circumstances of the defendant, his
background, and his crime.” 158 “[S]tate appellate courts can
and do give each defendant an individualized and reliable
sentencing determination based on the defendant’s circum-
stances, his background, and the crime.” 159 This holding in
Clemons was reaffirmed after Hurst 160 by the Court’s opinion
in McKinney. 161
In arguing that the Eighth Amendment is relevant to pro-
cedures such as whether a panel of judges rather than a jury
makes the final selection determinations necessary to impose
the death penalty, Trail relies on Hall v. Florida. 162 In Hall,
the U.S. Supreme Court held that a statutory scheme making
an intellectual quotient score final and conclusive on whether
a defendant was intellectually disabled, without allowing con-
sideration of additional evidence of intellectual disability,
violated the Eighth Amendment when the scientific com-
munity and the national consensus recognized the specified
score to be at the lower end of the inherent margin of error
for a range demonstrating intellectual disability. Applying
157
See id.
158
Id., 494 U.S. at 748.
159
Id., 494 U.S. at 749.
160
Hurst v. Florida, supra note 115.
161
McKinney v. Arizona, supra note 142.
162
Hall v. Florida, supra note 62.
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Cite as 312 Neb. 843
its prior holding in Atkins v. Virginia 163 that the 8th and 14th
Amendments to the U.S. Constitution forbid the execution of
persons with intellectual disability, the Court held the rigid
statutory rule respecting intellectual quotient scores “creates
an unacceptable risk that persons with intellectual disability
will be executed, and thus is unconstitutional.” 164
Hall is not apposite to the case at bar. Having a three-judge
panel weigh aggravators against mitigators and determine the
ultimate sentence does not create an unacceptable risk that
persons will be executed without the constitutionally required
consideration of character and record of the individual offender
and the circumstances of the particular offense.
[45] In State v. Mata, 165 we rejected the defendant’s argu-
ment that a system wherein a three-judge panel weighs the
aggravating and mitigating circumstances without guidance
from the jury is arbitrary and capricious under the 8th and
14th Amendments. In State v. Hessler, 166 we rejected the
defendant’s argument under the Eighth Amendment that a
sentencing panel is not in as good of a position as the
jury to assign a weight to the aggravating circumstances,
to weigh aggravating circumstances against mitigating cir-
cumstances, or to determine the sentence. While Trail’s 8th
Amendment arguments are somewhat different from those
addressed in Mata and Hessler, he presents no reason to
depart from our holdings in those cases that Nebraska’s
statutory scheme, delegating to the three-judge panel deter-
minations of whether the aggravating circumstances justify
the death penalty and whether sufficient mitigating circum-
stances exist that approach or exceed the weight given to the
163
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002).
164
Hall v. Florida, supra note 62, 572 U.S. at 704.
165
State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
166
State v. Hessler, supra note 124.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843
aggravating circumstances, does not violate the 8th and 14th
Amendments to the U.S. Constitution or article I, § 9, of the
Nebraska Constitution.
6. Proportionality Review
[46] Lastly, Trail argues that because his crimes involved
only one victim and one aggravator, the sentence of death
in this case is excessive or disproportionate to the penalty
imposed in similar cases. Under Neb. Rev. Stat. § 29-2521.03
(Cum. Supp. 2020), we are required upon appeal to determine
the propriety of a death sentence by conducting a proportional-
ity review. Proportionality review requires us to compare the
aggravating and mitigating circumstances with those present
in other cases in which a district court imposed the death pen-
alty. 167 This is to ensure that the sentence imposed in the case
under review is no greater than those imposed in other cases
with the same or similar circumstances. 168
[47] We disagree with Trail’s premise that the number of
victims or the number of aggravating circumstances is determi-
native. We have emphasized that the balancing of aggravating
circumstances against mitigating circumstances is not merely
a matter of number counting, but, rather, requires a careful
weighing and examination of the various factors. 169 It would
be virtually impossible to find two murder cases which are the
same in all respects. 170 Instead, the question is simply whether
the cases being compared are sufficiently similar, considering
both the crime and the defendant, to provide the court with
a useful frame of reference for evaluating the sentence in
this case. 171
167
State v. Mata, supra note 165.
168
See id.
169
State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
170
State v. Schroeder, supra note 12.
171
Id.
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STATE V. TRAIL
Cite as 312 Neb. 843
[48] Accordingly, we have held that the death penalty can
be imposed when only one aggravating circumstance is pres-
ent. 172 Where the record reveals that the sentence of death was
the result of reasoned judgment and the careful weighing and
examination of the various circumstances and factors in light
of the totality of the circumstances present, one aggravating
circumstance may be sufficient under our statutory system for
the sentencing court to conclude that imposition of the death
penalty is appropriate. 173
In our de novo review, we conclude that the requirements of
Neb. Rev. Stat. §§ 29-2519 to 29-2546 (Cum. Supp. 2020) have
been met. Trail does not contest that the State proved beyond
a reasonable doubt the aggravating circumstance of excep-
tional depravity to justify the imposition of the death penalty.
As the sentencing panel described, the murder reflected cold,
calculated planning to find and kill a helpless victim to sat-
isfy Trail’s curiosity and sexual proclivities. The carvings on
Sydney’s body and other acts of strategic mutilation demon-
strated he relished the murder and had “no regard for the life
of Sydney . . . beyond his own personal pleasure.” We find the
aggravating circumstance of exceptional depravity is sufficient
under the totality of the circumstances present to justify the
death penalty for Trail.
Trail does not assert on appeal any mitigating circumstance.
We agree with the sentencing panel that the nonstatutory miti-
gating circumstance of Trail’s upbringing does not approach
or exceed the aggravating circumstance.
We have reviewed our relevant decisions on direct appeal
from other cases in which the death penalty was imposed
and do not find the imposition of the death penalty is a
greater penalty than the sentences imposed in other cases
with similar circumstances. For example, in State v. Joubert,
we affirmed the death penalty when, among other things,
172
See, id.; State v. Dunster, supra note 169.
173
State v. Dunster, supra note 169.
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Cite as 312 Neb. 843
the defendant had “coldly planned” 174 “[the] murders far in
advance . . . to satisfy his intellectual or sexual curiosity or
urges.” 175 Further, the murders in Joubert were “‘totally and
senselessly bereft of any regard for human life.’” 176 In Mata,
in affirming the death penalty, we found it “sufficient to say
that [the victim’s] skull had been fractured by multiple blows
of blunt force trauma at or near the time of death and that
[the defendant] had dismembered [the victim’s] body and
disposed of it in pieces.” 177 “[The defendant] had relished
killing [the victim] with gratuitous violence and unnecessary
mutilation.” 178
Our proportionality review, required by § 29-2521.03, is
designed to ensure that no sentence imposed shall be greater
than those imposed in other cases with the same or similar
circumstances and that the review should include only those
cases in which the death penalty was imposed. 179 Like the
defendant in Joubert, Trail coldly planned Sydney’s murder
to satisfy sexual urges. Like the actions of the defendant in
Joubert and the defendant in Mata, Trail’s mutilation and dis-
memberment of Sydney’s body showed he relished the killing
and was bereft of any regard for human life. The crime com-
mitted against Sydney was utterly senseless and cruel. The
sentence of death in this case is not excessive or dispropor-
tionate to the penalty imposed in similar cases. We uphold the
sentencing panel’s imposition of the death sentence.
VI. CONCLUSION
For the foregoing reasons, we find no merit to Trail’s
assignments of error challenging the denial of his pretrial
174
State v. Joubert, supra note 4, 224 Neb. at 432, 399 N.W.2d at 251.
175
Id. at 430, 399 N.W.2d at 250.
176
Id.
177
State v. Mata, supra note 165, 275 Neb. at 30, 745 N.W.2d at 255.
178
Id.
179
See State v. Joubert, supra note 4.
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STATE V. TRAIL
Cite as 312 Neb. 843
motions to prevent death qualification of the jury and to
sever the conspiracy and murder charges, the district court’s
orders during trial releasing Sydney’s mother from sequestra-
tion after she testified and denying his motion for a mistrial
based on his outburst involving self-harm, and the district
court’s denial of his motion for a new trial. Further, we
reaffirm the constitutionality of the Nebraska death penalty
statutes and find Trail’s sentence of death was not excessive
or disproportionate.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484929/ | JUDGMENT
This cause coming on to be heard before the High Court of American Samoa on the 26th day of November, 1919, before Judges A. M. Noble, President of the High Court, and Molioo and Leaana, Associate Members, and it appearing to the Court that at a former hearing of said cause on November 14th, 1919 the defendant was adjudged to be ineligible to register a “matai” title in American Samoa on account of non-residence, Section 46 of the Codification, and the cause was, on motion of defendant, consented to by plaintiff, continued until November 26th, 1919, in order that the true members of the Salavea family could hold a meeting to decide upon a holder of the title;
And it further appearing to the Court upon said cause coming on to be heard on the 26th day of November 1919, that all the members of the Salavea family had agreed that one of said family, to-wit, Muaguta, should register the *317“matai” name Salavea and hold the said title, with the exception of the plaintiff, Itutua;
It is therefore ordered, considered and adjudged by the Court, it being admitted by plaintiff that Muaguta is a true member of the Salavea family and that all the members of said family, himself excepted, desired the said Muaguta to hold the “matai” name Salavea, that the said Muaguta is entitled to register himself in the office of the Secretary of Native Affairs as SALAVEA-MUAGUTA.
It is further ordered, considered and adjudged by the Court that the costs of said action, to-wit, $30.00, be paid $15.00 by plaintiff and $15.00 by defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484931/ | This cause coming on to be heard and it appearing to the Court that the defendant, did on December 1st, 1919, file notice of his intentions to register himself under the “matai” name, Tuanaitau, to succeed the late Tuanaitau-Numela;
And it further appearing to the Court that on the 8th day of December, 1919, the plaintiff, Soliai, filed in the High Court of American Samoa an objection to the registration by the defendant, Palepale, of the “matai” name, Tuanaitau, which said objection was the only objection filed during the thirty days succeeding the posting of said notice by the defendant, Palepale as required by Section 45 of the Codification of the Regulations and Orders for the Government of American Samoa.
And it further appearing to the Court that the plaintiff and defendant have reached an amicable settlement of the matter in controversy, and it is agreed by both the plaintiff and defendant that the defendant shall register his name as Tuanaitau-Palepale in the Record of “Matai” Titles in the office of the Secretary of Native Affairs:—
It is therefore ordered, considered and adjudged by the Court, by and with the consent of the parties, plaintiff and *320defendant, that the said Palepale is entitled to register himself in the Record of “Matai” Titles in the Office of the Secretary of Native Affairs as Taunaitau-Palepale.
It is further ordered that the cost, $10.00, be equally divided between plaintiff and defendant.
Consented toby:
/s/ Soliai
/s/ Palepale | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487003/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re WARBLOW, Minors. November 17, 2022
No. 360948
Jackson Circuit Court
Family Division
LC No. 22-001310-NA
Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to
his two minor children, MW and HW, under MCL 712A.19b(3)(b)(i) (parent caused physical
injury or sexual abuse and there is a reasonable likelihood the child will suffer from abuse if placed
in the parent’s home), (b)(ii) (parent had the opportunity to prevent physical or sexual abuse and
failed to do so), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood the
child will be harmed if returned to parent’s home). Respondent argues that the trial court erred by
(1) terminating respondent’s parental rights at initial disposition without first finding that
aggravated circumstances existed or reasonable efforts were made, and (2) finding that termination
was in the children’s best interests based solely on the doctrine of anticipatory neglect. We vacate
the trial court order and remand for the trial court to make a determination whether aggravated
circumstances exist or order that reasonable efforts be made.
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondent is married to CW, a nonrespondent parent in this matter. CW has three
children from previous relationships—MS, ES, and CP. MS and ES, now teenagers, share a
biological father. Respondent and CW share the two children who are subject to this appeal—
MW and HW.
This case arises from a February 2022 petition filed by the Department of Health and
Human Services (DHHS) seeking jurisdiction of MW and HW, to remove respondent from the
home, and to terminate his parental rights at initial disposition. The petition was based on recent
disclosures by ES that respondent sexually abused her when she was in fourth and fifth grade, as
well as a 2019 Child Protective Services (CPS) complaint that respondent forced MS to wait
-1-
outside for the school bus for an extended time in freezing temperatures. A preliminary hearing
was held, and respondent denied the allegations and waived a probable cause hearing. The court
ordered respondent to vacate the home, but allowed him to have supervised parenting time with
MW and HW.
A bifurcated bench trial for adjudication and disposition was held in March 2022. ES
testified about several instances in which she witnessed respondent physically abuse MS.
Additionally, ES testified that when she was in fourth and fifth grade, when she stayed home from
school, respondent would ask her to rub his leg, and then his erect penis, and she did. On one
occasion, respondent asked ES to take off her pants, and when she refused, he tried to bribe her
with television. ES has tried to run away three times, and has been hospitalized for mental health
issues four times. CW testified that she never witnessed respondent physically abuse any of the
children, or sexually abuse ES. She testified that he was a good father to MW and HW. She
denied that ES ever disclosed the allegations of sexual abuse to her. On cross-examination, CW
could not recall several CPS investigations concerning respondent’s physical abuse of MS in which
CW and respondent refused to cooperate with CPS. She believed that the children made up the
allegations, and she did not believe ES’s allegations of sexual abuse. Similarly, respondent denied
all allegations of physical abuse against MS and sexual abuse against ES. He admitted telling his
children not to speak to CPS. However, CW’s sister, SE, testified that she witnessed respondent
hit MS in the ear, and then lie about it to CW. ES was currently residing with SE.
The court first determined that, by a preponderance of the evidence, there were statutory
grounds to take jurisdiction of the children under MCL 712A.2(b). Then it proceeded to
disposition, and after hearing testimony from two CPS workers, concluded that statutory grounds
existed to terminate respondent’s parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (g), and
(j), and that termination was in the children’s best interests. Respondent now appeals.
II. REASONABLE EFFORTS
Respondent first argues that the trial court erred by terminating his parental rights at initial
disposition without first finding that aggravated circumstances or reasonable efforts to reunify the
family had occurred, and moreover, aggravated circumstances did not exist in this case.
An issue is preserved for appeal if it is raised in or addressed by the trial court. Glasker-
Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Although respondent’s
counsel asserted during closing argument that there were other options less than termination
available, respondent never specifically addressed or raised the issue of whether aggravated
circumstances existed to excuse DHHS from providing reasonable efforts to reunify the family.
Accordingly, this issue is unpreserved. It is therefore reviewed for plain error affecting
respondent’s substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). “To
avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “Generally, an error affects
substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.” In re
Utrera, 281 Mich App at 9. If these requirements are satisfied, this court “must exercise its
discretion in deciding whether to reverse.” Carines, 460 Mich at 763. Reversal is not warranted
-2-
if the plain, forfeited error does not seriously affect the fairness, integrity, or public reputation of
judicial proceedings. Id. at 763-764.
As an initial matter, petitioner argues that respondent waived this issue because at the bench
trial, “respondent-appellant conceded that the trial court could terminate based upon the finding of
sexual abuse at adjudication.” “A waiver is an intentional relinquishment or abandonment of a
known right.” Nexteer Auto Corp v Mando America Corp, 314 Mich App 391, 395; 886 NW2d
906 (2016). Reading the statement of respondent’s attorney in context, there was no waiver.
During closing argument of the dispositional phase of the hearing, petitioner’s attorney argued that
under caselaw, termination of one child is proper if there is sexual abuse of a sibling or half sibling.
In response, during closing argument, respondent’s counsel stated that petitioner was correct that
under caselaw, “the Court can find for termination in this case based upon the fact that there was
sexual abuse found at the adjudicative process in this case, that that is an option for the Court.
However, I don’t believe the [caselaw] states that is mandatory.” As stated, these were closing
arguments during the dispositional phase. This was after the trial court adjudicated the children,
and proceeded to disposition without discussing aggravated circumstances. Thus, when read in
context, the statement of respondent’s attorney did not waive this issue on appeal, but rather, was
in response to petitioner’s assertion that the court could terminate at disposition based on the sexual
abuse of a half sibling.
Reasonable efforts to reunify the family must be made by DHHS “in all cases except those
involving aggravated circumstances.” In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010)
(quotation marks and citation omitted). Absent aggravated circumstances, DHHS “has an
affirmative duty to make reasonable efforts to reunify a family before seeking termination of
parental rights.” In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017). As part of these
reasonable efforts, DHHS must create a service plan outlining the steps that DHHS and the parent
will take to rectify the issues and achieve reunification. In re Simonetta, ___ Mich App ___, ___;
___ NW2d ___ (2022) (Docket No. 357909); slip op at 3-4.
MCL 712A.19a(2)(a) provides that reasonable efforts to reunify the child and family must
be made in all cases except “if any of the following apply:”
(a) There is a judicial determination that the parent has subjected the child
to aggravated circumstances as provided in section 18(1) and (2) of the child
protection law, 1975 PA 238, MCL 722.638.
MCL 722.638(1) requires DHHS to file a petition for authorization by the court if:
(a) The department determines that a parent, guardian, or custodian, or a
person who is 18 years of age or older and who resides for any length of time in the
child’s home, has abused the child or a sibling of the child and the abuse included
1 or more of the following:
* * *
(ii) Criminal sexual conduct involving penetration, attempted penetration,
or assault with intent to penetrate.
-3-
(iii) Battering, torture, or other severe physical abuse.
If a petition is required to be filed under MCL 722.638(1), i.e., there are aggravating circumstances,
then MCL 722.638(2) requires that the petition include a request to terminate parental rights at
initial disposition “if a parent is a suspected perpetrator or is suspected of placing the child at an
unreasonable risk of harm due to the parent’s failure to take reasonable steps to intervene to
eliminate that risk.”
The petition in this matter included the allegations of sexual abuse by ES, as well as the
bus incident with MS. The petition stated that reasonable efforts made to prevent removal included
CPS investigations, law enforcement investigations, Jackson County Child Advocacy, inpatient
mental health hospitalizations, counseling, safety planning, and team meetings. This refers to the
history and past occurrences of this case, not to any parent-agency agreement providing services
to respondent. No agreement was ever offered or entered. At the preliminary hearing, although
incomplete in the provided transcript because of undecipherable comments, the trial court
seemingly declined to address reasonable efforts.1 The order after the preliminary hearing did not
have any boxes checked regarding reasonable efforts. Neither did the order entered after the
pretrial hearing.
At the end of the adjudicative phase of the bench trial, after the trial court found statutory
grounds to exercise jurisdiction, the court stated,
As I said, specific findings are on the Record. I did not hear the worker
testify as to reasonable efforts that those efforts were determined in a prior order.
Typically, where I would write them out in my order, I simply can check the box.
Also, same with contrary to the welfare findings. Those were made in a
prior—well, no, they weren’t made cuz [sic] the children were not removed.
There’s no need to make them. The alleged abuser was the one that was removed.
The court then proceeded to disposition. After the parties rested, and the court gave its findings
from the bench, it stated, “So I’ve already discussed reasonable efforts. A lot of this is the same.”
None of the boxes regarding reasonable efforts were check-marked in the order of adjudication or
the order of disposition. On the order following the hearing which terminated respondent’s
parental rights, the box next to paragraph number 6 was check-marked, which states that
“[r]easonable efforts were made to preserve and unify the family to make it possible for the
child(ren) to safely return to the child(ren)’s home. Those efforts were unsuccessful.”
From this record, it is clear that the trial court did not engage in any meaningful analysis
or articulate a factual finding that aggravated circumstances existed. Under MCL 712A.19a(2)(a),
there must be a “judicial determination that the parent has subjected the child to aggravated
circumstances” before DHHS is excused from making reasonable efforts. Thus, we vacate the
order terminating respondent’s parental rights, and remand to the trial court to “either order that
1
The court stated, “The Court will not—(undecipherable)—contrary to the welfare finding—or
not—(undecipherable)—reasonable efforts at this point.”
-4-
the petitioner provide reasonable services to the respondent, or articulate a factual finding based
on clear and convincing evidence that aggravated circumstances exist such that services are not
required.” In re Simonetta, 507 Mich 943, 943; 959 NW2d 170 (2021). Because the trial court
never addressed whether aggravated circumstances existed, the parties’ arguments regarding
whether aggravated circumstances existed under MCL 722.638(1)(a), i.e., whether respondent had
the intent to penetrate or the bus incident rose to the level of severe abuse, are not properly before
this Court, and will not be discussed herein. This also renders discussion of respondent’s second
issue on appeal, best interests, unnecessary.
The order terminating respondent’s parental rights is vacated, and we remand to the trial
court to make a finding that aggravated circumstances exist or order that reasonable efforts be
made. We retain jurisdiction.
/s/ Noah P. Hood
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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Court of Appeals, State of Michigan
ORDER
Noah P. Hood
In re Warblow Minors Presiding Judge
Docket No. 360948 Kathleen Jansen
LC No. 22-001310-NA Kirsten Frank Kelly
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall be completed within 28 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, this matter is remanded for the trial court to make a determination as to
whether aggravated circumstances exist or order that reasonable efforts be made. The proceedings on
remand are limited to this issue.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings, on remand shall be prepared and filed within 21 days
after completion of the proceedings.
Appellant may file a supplemental brief pertaining to the issue on remand within 21 days
after entry of the circuit court’s order deciding the matter or 21 days after the transcript of the hearing is
filed, whichever is later. Appellee may file a supplemental brief in response within 21 days after
respondent files his supplemental brief.
Presiding Judge
November 17, 2022 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487477/ | Verdict, guilty. Fined $20. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484933/ | JUDGMENT
This cause coming on to be heard and it appearing to the *323court that the matters in controversy have been amicably settled between the parties, plaintiff and defendant.
It is therefore ordered, considered and adjudged, by and with the consent of the parties, plaintiff and defendant, that the Ulufale family, under the control of the name “ULUFALE,” is the owner of the land “Lepapa”; that the defendant entered upon the land “Lepapa: through and with the consent of the plaintiff “Ulufale,” the said defendant being a member of the Ulufale family (not the name “Aivao” being a branch of the Ulufale family, but the defendant personally being a member of the Ulufale family); and that having gone upon the land “Lepapa” with the consent of the plaintiff Ulufale, and having made improvements thereon, the defendant is entitled to the use of said land. Plaintiff pay cost of action $10.00.
Consented to by,
/s/ Ulufale, Plaintiff
/s/ Aivao, Defendant
Interpreter,
/s/ G. Peters, Government Interpreter | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484934/ | JUDGMENT
This case coming on to be held before the High Court of American Samoa, Judges A. M. Noble, S. D. Hall, and Leoso, on the 22nd day of June, the year 1921, and it appearing to the court that under a former judgment of the High Court, signed by His Honor A. Stronach, on the 28th day of February, 1918, it was provided that the sum of Four Hundred Fifty ($450.00) Dollars, the price of the land in dispute should be deposited at interest in the Bank of American Samoa, until such time as the claimants to said land and premises shall agree among themselves or until their claims shall be determined by law;
And it further appearing to the court that the claims of the defendants have been amicably agreed upon among themselves, it is therefore, ordered, considered and adjudged by the court, by and with the consent of the parties that the said Four Hundred Fifty ($450.00) Dollars shall be divided equally among the claimants, viz: Mailo, Mauga, Tiumalu, Savea, Mageo, Gaisoa, Fano, and Asuega.
It is further ordered, considered and adjudged, that the *325costs of this action, Twenty-Five ($25.00) Dollars should be paid equally by the defendants.
Judgment of the Court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484936/ | JUDGMENT
This case coming on to be heard before His Honor S. D. Hall, Associate Member of the High Court, and it appearing to the Court that the matters in controversy have been amicably settled between the two parties, plaintiffs and defendants.
It is therefore ordered, considered and adjudged that the action be dismissed.
It is further ordered, considered and adjudged that the defendants pay the cost of this action, to wit, $10.00.
The designating name of Samu should exist as the plaintiff in this action as the “Matai” name Agasiva is the cause of action.
/s/ Sydney D. Hall
Secretary of Native Affairs | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484937/ | JUDGMENT
This cause coming on to be heard before Sydney D. Hall, Associate Judge of the High Court of American Samoa, and being heard and it appearing to the court that the matters in controversy had been amicably settled between the parties plaintiff and defendant, and it is therefore ordered, considered and adjudged that this action be dismissed, and “Laumaala” has been amicably divided among those named.
It is further ordered, considered and adjudged by the Court that the plaintiff pay the costs of this action $10.00.
Given under my hand and seal of the High Court of American Samoa this 23rd day of December, 1921. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484938/ | JUDGMENT
This cause coming on to be heard before Sydney D. Hall, Associate Judge of the High Court of American Samoa, and being heard and it appearing to the court that the matters in controversy had been amicably settled between the parties Plaintiff and Defendant, through the acknowledgment by the Defendants that the Plaintiff’s claim was justified, it is therefore ordered, considered and adjudged that this action be dismissed and “Tutu” shall be considered the Property of the Plaintiff Faga, it being proven that the Plaintiff Pili is now dead.
It is further ordered, considered and adjudged by the court that the Plaintiff shall be assessed his filing fee in this action to cover costs of court.
Given under my hand and seal of the High Court of American Samoa this 21st day of January, A.D., 1922. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484939/ | JUDGMENT
This cause coming on to be heard before S. D. Hall, Associate Judge of the High Court of American Samoa, and being heard and it appearing to the court that the matters in controversy had been amicably settled between the parties plaintiff and defendant, and it is therefore ordered, considered and adjudged that this action be dismissed, and Tulifiti registered in the name Toilolo.
It is further ordered, considered and adjudged by the court that the plaintiff pay the costs of this action $10.00.
Given under my hand and seal of the High Court of American Samoa this 26th day of June, 1922.
Consent admitted:
/s/ Tuiteleleapaga
Witness to above signature:
/s/ Faumuina | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487027/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SPINE SPECIALISTS OF MICHIGAN, PC, UNPUBLISHED
November 17, 2022
Plaintiff-Appellant,
v No. 358296
Macomb Circuit Court
LC No. 2020-003355-NF
MEMBERSELECT INSURANCE COMPANY,
Defendant-Appellee.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
Plaintiff, Spine Specialists of Michigan, PC, appeals as of right the trial court’s order
granting in part and denying in part defendant, MemberSelect Insurance Company, summary
disposition of plaintiff’s complaint under MCR 2.116(C)(7) and (10). We affirm.
I. FACTS
This case is a provider suit brought under Michigan’s no-fault act, MCL 500.3101 et seq.
The facts of this case essentially are undisputed. On January 21, 2017, Jeremy Woods was injured
in an automobile accident. Woods was the insured of defendant under a policy of no-fault
insurance at the time of the accident. Plaintiff provided medical care to Woods, and Woods
assigned to plaintiff his right to payment from defendant. Pursuant to the assignments, plaintiff
sought payment from defendant for the medical care it provided to Woods. Defendant refused to
pay plaintiff, and plaintiff initiated this action on September 21, 2020, seeking payment under the
assignments.
Defendant moved for summary disposition of plaintiff’s complaint under MCR
2.116(C)(7) and (10) on the basis that all or most of the amounts sought by plaintiff were barred
by the one-year back rule, MCL 500.3145, and/or by a release signed by Woods in connection
with the settlement of litigation between Woods and defendant. The trial court granted in part and
denied in part defendant’s motion for summary disposition. Specifically, the trial court granted
defendant summary disposition of plaintiff’s claims for benefits for services provided to Woods
before June 11, 2019, the effective date of the amendment to MCL 500.3145, and denied
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defendant’s motion for summary disposition for plaintiff’s claims for services from June 11, 2019
through August 12, 2020. The parties resolved the claims arising from June 11, 2019 through
August 12, 2020, and stipulated to dismissal of those claims. Plaintiff filed this appeal, challenging
the trial court’s order granting defendant summary disposition of plaintiff’s claims for medical
care it provided Woods from February 2, 2019 to June 11, 2019.
II. DISCUSSION
Plaintiff contends that the trial court erred by granting in part defendant’s motion for
summary disposition of plaintiff’s complaint under MCR 2.116(C)(7) and (10) on the basis that
the pre-amendment version of MCL 500.3145 barred plaintiff’s claims. We disagree.
We review de novo a trial court’s decision to grant or deny a motion for summary
disposition. Meemic Ins Co v Fortson, 506 Mich 287, 296; 954 NW2d 115 (2020). We also review
de novo questions of statutory interpretation. Le Gassick v Univ of Mich Regents, 330 Mich App
487, 495; 948 NW2d 452 (2019). A motion for summary disposition under MCR 2.116(C)(7)
should be granted when the claim is barred by a statute of limitations,1 or other basis stated in that
court rule. MCR 2.116(C)(7). When considering a motion under MCR 2.116(C)(7), we accept
the allegations of the complaint as true unless contradicted by documentation submitted by the
moving party, and consider any affidavits, depositions, admissions, or other documentary evidence
submitted. Estate of Miller v Angels’ Place, Inc, 334 Mich App 325, 330; 964 NW2d 839 (2020).
When there is no factual dispute, whether a plaintiff’s claim is barred under a basis set forth in
MCR 2.116(C)(7) is a question of law. Id.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019).
Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to
any material fact, and the moving party is entitled to judgment as a matter of law. Id. When
reviewing a motion for summary disposition granted under MCR 2.116(C)(10), we consider the
documentary evidence submitted by the parties in the light most favorable to the nonmoving party,
id., and will find that a genuine issue of material fact exists if “the record leave[s] open an issue
upon which reasonable minds might differ.” Johnson v Vanderkooi, 502 Mich 751, 761; 918
NW2d 785 (2018) (quotation marks and citations omitted).
MCL 500.3145, known as the one-year-back rule, “is designed to limit the amount of
benefits recoverable under the no-fault act to those losses occurring no more than one year before
an action is brought.” Joseph v Auto Club Ins Ass’n, 491 Mich 200, 203; 815 NW2d 412 (2012).
Before its amendment, effective June 11, 2019, MCL 500.3145(1), provided, in relevant part:
An action for recovery of personal protection insurance benefits payable under this
chapter for accidental bodily injury may not be commenced later than 1 year after
the date of the accident causing the injury unless written notice of injury as provided
herein has been given to the insurer within 1 year after the accident or unless the
1
We observe that the one-year-back rule is not a statute of limitations, but is instead a limitation
on damages. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 208; 815 NW2d 412 (2012).
-2-
insurer has previously made a payment of personal protection insurance benefits
for the injury. If the notice has been given or a payment has been made, the action
may be commenced at any time within 1 year after the most recent allowable
expense, work loss or survivor’s loss has been incurred. However, the claimant
may not recover benefits for any portion of the loss incurred more than 1 year before
the date on which the action was commenced. . . .
MCL 500.3145 was amended by 2019 PA 21, effective June 11, 2019, and now provides,
in relevant part:
(2) Subject to subsection (3), if the notice has been given or a payment has been
made, the action may be commenced at any time within 1 year after the most recent
allowable expense, work loss, or survivor’s loss has been incurred. However, the
claimant may not recover benefits for any portion of the loss incurred more than 1
year before the date on which the action was commenced.
(3) A period of limitations applicable under subsection (2) to the commencement
of an action and the recovery of benefits is tolled from the date of a specific claim
for payment of the benefits until the date the insurer formally denies the claim. This
subsection does not apply if the person claiming the benefits fails to pursue the
claim with reasonable diligence. [MCL 500.3145(2), (3).]
In this case, the claims in question relate to medical care plaintiff provided to Woods in
April and May 2019. Plaintiff filed its complaint on September 21, 2020, seeking payment for
those services. Because the claims are for “loss incurred more than 1 year before the date on which
the action was commenced,” under the pre-amendment version of the statute the claim is barred as
untimely. The amended version of MCL 500.3145 also contains a one-year-back provision, stating
that “the claimant may not recover benefits for any portion of the loss incurred more than 1 year
before the date on which the action was commenced.” MCL 500.3145(2). However, the amended
version of the statute includes a tolling provision, stating that the one-year-back rule “is tolled
from the date of a specific claim for payment of the benefits until the date the insurer formally
denies the claim.” MCL 500.3145(3).
The trial court in this case determined that the pre-amendment version of the statute applied
because the amended statute does not provide for retroactive application. “Statutes and
amendments to statutes are presumed to operate prospectively.” Andary v USAA Casualty Ins Co,
___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 356487); slip op at 2. This
presumption is overcome only when the Legislature clearly manifests an intent for retroactive
application. Buhl v City of Oak Park, 507 Mich 236, 244; 968 NW2d 348 (2021). In this Court’s
recent decision in Andary, although not addressing MCL 500.3145 specifically, this Court held
that the legislative amendments to the no-fault act in 2019 PA 21 and 2019 PA 22 do not apply
retroactively because “the Legislature did not clearly demonstrate an intent for the amendments to
apply retroactively to persons injured in pre-amendment accidents.” See Andary, ___ Mich App
at ___; slip op at 1. This Court observed that “[i]ndeed, 2019 PA 21 provided an effective date of
June 11, 2019, and it contains no language referring to retroactive application.” Id. at ___; slip op
at 2. In the absence of any Legislative statement of retroactive application, and in light of the
presumption against retroactive application of a statutory amendment, the trial court in this case
-3-
correctly determined that the amendment to MCL 500.3145 does not apply retroactively. See
Brewer v A D Transport Express, Inc, 486 Mich 50, 56; 782 NW2d 475 (2010) (“[P]roviding a
specific, future effective date and omitting any reference to retroactivity supports a conclusion that
a statute should be applied prospectively only” (quotation marks and citation omitted). )
Plaintiff argues, however, that the amended statute applies because, at the time the
amended statute became effective on June 11, 2019, the April-May 2019 claims were still viable
claims not yet denied by defendant. Plaintiff argues that because the pre-amendment version of
the statute does not have a tolling provision, applying the amended version of the statute preserves
plaintiff’s claims while applying the pre-amendment statute takes away claims that were viable on
June 11, 2019. Contrary to plaintiff’s argument, the relevant inquiry is not which version of the
statute preserves plaintiff’s claims. Generally, whether a statute applies depends upon the date on
which the cause of action arose. Hill v Gen Motors Acceptance Corp, 207 Mich App 504, 513-
514; 525 NW2d 905 (1994). “The substantive rights and liabilities of the parties are determinable
according to the law as it stood when the causes alleged by the plaintiff accrued.” Jones v Williams,
172 Mich App 167, 171; 431 NW2d 419 (1988).
Under the no-fault act, “[p]ersonal protection insurance benefits payable for accidental
bodily injury accrue not when the injury occurs but as the allowable expense, work loss or
survivors’ loss is incurred.” MCL 500.3110(4). Our Supreme Court has determined that “incur”
means “[t]o become liable or subject to, [especially] because of one’s own actions.” Proudfoot v
State Farm Mut Ins Co, 469 Mich 476, 484; 673 NW2d 739 (2003) (quotation marks and citation
omitted; alterations in the original). This Court has concluded when applying MCL 500.3110(4)
that “an expense is incurred or a patient becomes liable when an agreement to pay is executed and
treatment is received.” Bronson Health Care Group, Inc v USAA Casualty Ins Co, 335 Mich App
25, 35-36; 966 NW2d 393 (2020) (emphasis omitted); in accord, Clark v Al-Amin, 309 Mich App
387, 397; 872 NW2d 730 (2015). In this case, Woods’ PIP benefits accrued when each allowable
expense was incurred; each expense was incurred when Woods received treatment. See Bronson
Health Care Group, Inc, 335 Mich at 35-36. The April-May 2019 claims therefore accrued when
they were incurred in April-May 2019, when Woods received medical treatment from plaintiff.
Plaintiff argues, however, that the “wrong” on which its claims are based is defendant’s
failure to pay the claims, and that the claims therefore accrued when defendant denied the claims,
which plaintiff contends was August 13, 2020, after the June 11, 2019 effective date of the
statutory amendment. Plaintiff relies upon the general accrual statute, MCL 600.5827, which
provides that generally, a claim accrues “at the time the wrong upon which the claim is based was
done.” In this case, however, plaintiff has filed “an action for recovery of personal protection
insurance benefits . . . for an accidental bodily injury. . . .” MCL 500.3145(1). Plaintiff, as the
assignee of Woods, is seeking to assert against defendant Woods’ right to payment of PIP benefits
under the insurance policy issued to Woods by defendant.
Contractual terms of a policy of no-fault insurance are governed by the no-fault act.
Meemic Ins Co, 506 Mich at 302. Specifically, PIP benefits “are mandated by the statute under
the no-fault act, . . . and, therefore, the statute is the ‘rule book’ for deciding the issues involved in
questions regarding awarding those benefits.” Id. at 298, quoting Rohlman v Hawkeye-Security
Ins Co, 442 Mich 520, 524-525; 502 NW2d 310 (1993). Because the no-fault act provides for a
specific accrual statute within the act applicable to the determination of the accrual of PIP benefits,
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MCL 500.3110(4), that statute is the relevant accrual statute when, as here, plaintiff is seeking
payment of PIP benefits under the no-fault act. PIP benefits accrue when they are incurred, MCL
500.3110(4), and are incurred when the insured receives medical treatment and becomes obligated
to pay. See Bronson Health Care Group, Inc, 335 Mich App at 35-36.
In this case, the loss was incurred when Woods received medical treatment from plaintiff
in April-May 2019, and the claims for those services accrued at that time. The law in effect at the
time the claims accrued was the pre-amendment version of MCL 500.3145; the amended version
of the statute did not take effect until June 11, 2019, and does not apply retroactively. See Andary,
___ Mich App at ___; slip op at ___. The trial court therefore did not err by applying the pre-
amendment version of MCL 500.3145 to plaintiff’s April-May 2019 claims and granting defendant
summary disposition of those claims.
We decline to reach defendant’s argument that it also was entitled to summary disposition
on the alternative basis that Woods released defendant after defendant paid Woods for the amounts
in question because plaintiff failed under MCL 500.3112 to notify defendant in writing of the
assignment. Although defendant argued this basis in its motion for summary disposition before
the trial court, the trial court did not grant summary disposition on this basis, but instead on the
basis that the claims were precluded by the pre-amendment version of MCL 500.3145. On appeal,
plaintiff challenges only whether the trial court properly applied the pre-amendment version of
MCL 500.3145. Defendant’s contention that plaintiff’s claim is barred by Woods’ release
therefore is not properly before this Court because defendant did not file a cross-appeal raising this
issue. See Conagra, Inc v Farmers State Bank, 237 Mich App 109, 140; 602 NW2d 390 (1999).
Affirmed.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
-5- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487040/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 01:07 AM CST
- 827 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
In re Interest of Jordon B., a child
under 18 years of age.
State of Nebraska and Nebraska Department of
Health and Human Services, appellees, v. Allen B.
and Leah B., appellees, Christina Boydston,
guardian ad litem for Jordon B., appellee
and cross-appellant, Jason D. on behalf
of J.D. and L.D., intervenor-appellee,
and Andrew Todd and Alicia Todd,
appellants and cross-appellees.
___ N.W.2d ___
Filed November 4, 2022. No. S-22-019.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Judgments: Jurisdiction. A jurisdictional question that does not involve
a factual dispute is a question of law.
3. Interventions. Whether a party has the right to intervene is a question
of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusions
reached by the trial court.
5. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
6. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
7. Standing: Jurisdiction. Standing relates to a court’s power, that is,
jurisdiction, to address issues presented and serves to identify those
disputes which are appropriately resolved through the judicial process.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
8. Juvenile Courts: Standing: Appeal and Error. The right of appeal
in a juvenile case in Nebraska is purely statutory, and Neb. Rev. Stat.
§ 43-2,106.01 (Reissue 2016) controls who has the right to appeal from
a juvenile court’s placement order.
9. Juvenile Courts: Parent and Child. Foster parents who were never
awarded custody are not “custodians” or “guardians” for purposes of
Neb. Rev. Stat. § 43-2,106.01(2)(c) (Reissue 2016).
10. Parent and Child: Standing: Appeal and Error. Foster parents do not
have a legal or equitable right, title, or interest in the subject matter of
the controversy that gives them standing to appeal from an order chang-
ing a child’s placement.
11. Parent and Child: Statutes: Interventions. Although foster parents
have a statutory right to participate in review hearings, their ability to
participate is less than that of a party, and foster parents are not entitled
to intervene as a matter of right.
12. Juvenile Courts: Jurisdiction: Statutes: Parent and Child:
Interventions: Equity. A juvenile court, as a statutorily created court
of limited jurisdiction, has only the authority which the statutes confer
on it, and therefore, a juvenile court cannot allow foster parents to equi-
tably intervene independently of the statutes.
13. Juvenile Courts: Appeal and Error. The fact that a person has two
different relationships to a child does not confer that person with a
right to appeal when neither is a relationship listed in Neb. Rev. Stat.
§ 43-2,106.01(2) (Reissue 2016).
14. Jurisdiction: Interventions: Standing: Final Orders: Appeal and
Error. An appellate court exercises jurisdiction over an appeal from an
order denying intervention even if the appellant would not have standing
to appeal from the court’s final order or judgment on the merits.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Minors: Words and Phrases. “Sibling,” under the Foster Care Review
Act generally and under Neb. Rev. Stat. § 43-1311.02(9) (Cum. Supp.
2020) specifically, means a person with whom one shares a common
parent or parents.
17. Appeal and Error. An issue not presented to or decided by the trial
court is not appropriate for consideration on appeal.
Appeal from the County Court for Dodge County: Kenneth
J. Vampola, Judge. Affirmed.
- 829 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
Linsey A. Camplin and Sam Baue, of McHenry, Haszard,
Roth, Hupp, Burkholder, Blomenberg & Camplin, P.C., L.L.O.,
for appellants.
Leslie E. Remus and Trevor J. Rogers, Senior Certified
Law Student, for appellee Nebraska Department of Health and
Human Services.
Brianna L. McLarty, Deputy Dodge County Attorney, for
appellee State of Nebraska.
Timothy E. Sopinski, of Sopinski Law Office, for appellee
Allen B.
Adam R. Tripp, of Tripp Law Office, for appellee Leah B.
Pamela Lynn Hopkins, of Hopkins Law Office, L.L.C., for
guardian ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Andrew Todd and Alicia Todd appeal the order of the juve-
nile court for Dodge County which granted a change of place-
ment for Jordon B. They claim that they have certain rights as
foster parents, and they claim error in, inter alia, the juvenile
court’s determination that Andrew did not have standing to
intervene as an adult sibling of Jordon. In addition, Christina
Boydston, Jordon’s guardian ad litem, cross-appeals and claims
that the juvenile court erred when it found that Andrew was a
“sibling” of Jordon and when it failed to appoint counsel to
represent her or new counsel to represent Jordon after Andrew
challenged the credibility and veracity of her guardian ad
litem report.
We determine that as foster parents, the Todds do not have
standing to appeal the juvenile court’s placement order or the
- 830 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
right to intervene as parties. We further determine that Andrew
is not a “sibling” to Jordon, and for that reason, the juvenile
court did not err when it denied Andrew’s petition to intervene.
We further determine that the record does not show the guard-
ian ad litem requested appointment of counsel for herself or
new counsel for Jordon and that therefore, the juvenile court
did not err when it failed to make such appointments. We
therefore affirm the juvenile court’s order.
STATEMENT OF FACTS
Jordon was born in September 2020, and his biological
parents were Leah B. and Allen B. The Nebraska Department
of Health and Human Services (DHHS) removed Jordon from
Leah and Allen’s home on September 25. The juvenile court
for Dodge County granted temporary custody of Jordon to
DHHS based on concerns that Leah and Allen were not able to
care for him and provide an accurate feeding schedule. Such
concerns were based in part on the fact that two older sons of
Leah and Allen had been removed from their custody for simi-
lar reasons. The court appointed Boydston as Jordon’s guardian
ad litem.
Jordon was initially placed with Jason D. and Lesley D.
Jason is Leah’s father, and Lesley is Leah’s stepmother by
virtue of her marriage to Jason. Jason and Lesley had adopted
Jordon’s two older brothers after Leah’s and Allen’s parental
rights to the two were terminated.
After Jason and Lesley advised DHHS that they could not
provide permanency or long-term care to Jordon, DHHS placed
Jordon with the Todds. Andrew is Lesley’s adult biological
son. Andrew is not biologically related to Leah, but he is her
stepbrother by virtue of his mother Lesley’s marriage to Leah’s
father, Jason. Andrew is also a sibling to Jordon’s two older
brothers by virtue of Lesley’s adoption of the two boys.
In an order filed December 9, 2020, the court adjudicated
Jordon to be a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016). The court later approved a case
- 831 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
plan with a primary permanency plan of reunification, but the
court determined that custody should remain with DHHS and
that Jordon should remain in out-of-home placement.
On July 14, 2021, Leah filed a motion for change of
placement in which she requested that Jordon’s placement
be changed to the residence of Rita Pospishil, who is Allen’s
cousin. On the same day, Jason, as biological grandfather and
adoptive father, filed a complaint on behalf of Jordon’s two
older brothers requesting that they be allowed to intervene
in this case to seek a joint-sibling placement of Jordon with
them in Jason and Lesley’s home. The court allowed Jason to
intervene on behalf of the brothers, and it set a hearing on the
request for joint-sibling placement and on Leah’s motion to
change placement to Pospishil. The court ordered submission
of reports prior to the hearing, including, inter alia, a home
study with regard to Pospishil and a guardian ad litem report.
The hearing was set for September 16.
On September 9, 2021, the Todds filed a motion to intervene
in the case. They sought to intervene as Jordon’s foster par-
ents, and they alleged that Jordon had been placed with them
for most of his life and that it was in Jordon’s best interests
to continue placement with them. Andrew also alleged that he
was a relative of Jordon. He alleged that he was a stepuncle
to Jordon based on his stepsibling relationship with Leah and
that he was also a stepbrother to Jordon based on his mother
Lesley’s adoption of Jordon’s two older brothers. Andrew
alleged that he was a sibling of Jordon under the Foster Care
Review Act (the Act) and that as a sibling he had an interest
in the case.
After the hearing, the juvenile court filed an order on
October 27, 2021, in which it ruled on pending motions. The
court first addressed the Todds’ motion to intervene. The
court determined that the Todds did not have standing to
intervene on the basis that they were Jordon’s foster parents.
The court cited In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 870 N.W.2d 413 (2015), for the proposition that
- 832 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
although foster parents have a statutory right to participate
in review hearings, their ability to participate was less than
that of a party, and that foster parents do not have an interest
that entitles them to intervene in a juvenile case as a matter
of right.
The court then turned to Andrew’s request to intervene
on the basis that he was a sibling of Jordon. The court
defined the issue as being “whether Andrew . . . has stand-
ing to intervene as an adult stepbrother to Jordon pursuant to
Neb. Rev. Stat. [§] 43-1311.02.” The court cited Neb. Rev.
Stat. § 43-1311.02(1)(a) (Cum. Supp. 2020), which provides
as follows:
Reasonable efforts shall be made to place a child and
the child’s siblings in the same foster care placement or
adoptive placement, unless such placement is contrary
to the safety or well-being of any of the siblings. This
requirement applies even if the custody orders of the sib-
lings are made at separate times and even if the children
have no preexisting relationship.
The court cited In re Interest of Nizigiyimana R., 295
Neb. 324, 889 N.W.2d 362 (2016), in which we held that the
duty to make reasonable efforts to implement a joint-sibling
placement existed even if a court had terminated a parent’s
relationship with each child and even if the siblings had not
previously lived together and that the duty extended to joint-
sibling placements with unadjudicated siblings. The court
also referenced § 43-1311.02(9), which generally provides
that a sibling of a juvenile has a right to intervene for limited
purposes. The court noted that § 43-1311.02(1)(a) referred
specifically to situations in which the “children” have no pre
existing relationship. The court read this reference to mean
that § 43-1311.02 applied only to siblings who were children,
and it noted that the statute made no reference to adult sib-
lings. The court therefore concluded that “the limited right
to seek ‘joint-sibling placement, sibling visitation, or ongo-
ing interaction with their sibling’ in subsection (9) belongs
- 833 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
to minor siblings only.” The court therefore denied Andrew’s
motion to intervene as a sibling of Jordon.
In its October 27, 2021, order, the court next addressed
Leah’s motion to change Jordon’s placement to Pospishil and
the older brothers’ request for placement with them in Jason
and Lesley’s home. The court noted that DHHS had complied
with § 43-1311.02(1)(a) when it initially placed Jordon in
Jason and Lesley’s home. The court, however, further noted
the testimony of a DHHS caseworker that Jordon’s placement
had been changed because Jason and Lesley were “incapable
or unwilling to provide care for Jordon” and that therefore, “it
was not in Jordon’s best interest to put him in a home . . . that
was unable to provide for his basic needs due to the reported
issues of the other children in the home.” The caseworker fur-
ther testified that Jason and Lesley had not subsequently asked
that DHHS place Jordon back in their home and that the case-
worker did not become aware they were interested in taking
placement until the motion in this case was filed.
The court found that the primary permanency plan in this
case was reunification of Jordon with Leah and Allen and that
Leah and Allen were making progress toward reunification.
The court noted that the caseworker had testified that it was
in Jordon’s best interests to be in a placement that was more
conducive to the plan of reunification and that the caseworker
opined that Pospishil’s relationship with Leah and Allen was
conducive to that goal although Jason and Lesley’s relation-
ship was less conducive and could negatively affect the goal
of reunification.
The court stated that another witness who had supervised
Leah and Allen’s visitations with Jordon agreed that they were
making good progress and that it was in Jordon’s best interests
to be in a placement with Pospishil, who would be conducive
to the goal of reunification. The court further noted that the
home study showed that Pospishil had a good relationship
with Leah and Allen and that placement with her was recom-
mended. Based on this evidence, the court found that it was
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in Jordon’s best interests to grant Leah’s motion for change
of placement to Pospishil, and it ordered DHHS to prepare a
transition plan to effectuate the change. The court overruled
motions to reconsider that were subsequently filed by the
Todds and by Jason on behalf of Jordon’s older brothers.
The Todds appeal the juvenile court’s order, and Boydston
cross-appeals.
ASSIGNMENTS OF ERROR
The Todds claim that the juvenile court erred when it deter-
mined that they did not have the right to intervene as foster
parents and that Andrew did not have the right to intervene
because he was an adult sibling and not a child sibling. They
also claim that the court erred when it (1) granted Leah’s
motion to change placement to Pospishil, (2) denied the older
brothers’ motion for placement with them, and (3) overruled
the motions to reconsider.
Boydston claims on cross-appeal that the juvenile court
erred when it found that Andrew was a “sibling” of Jordon
when Andrew and Jordon do not have a common parent.
Boydston also claims the court erred when it failed to appoint
counsel to represent her or to appoint new counsel to represent
Jordon after Andrew challenged the credibility and veracity of
her guardian ad litem report.
STANDARDS OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 870 N.W.2d 413 (2015).
[2-4] A jurisdictional question that does not involve a factual
dispute is a question of law. Id. Whether a party has the right
to intervene is a question of law. Id. When reviewing questions
of law, an appellate court resolves the questions independently
of the conclusions reached by the trial court. Id.
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[5] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. In re
Guardianship of Jill G., ante p. 108, 977 N.W.2d 913 (2022).
ANALYSIS
Standing.
[6,7] In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
appellate court to determine whether it has jurisdiction over the
matter before it. In re Interest of Mekhi S. et al., 309 Neb. 529,
960 N.W.2d 732 (2021). Standing relates to a court’s power,
that is, jurisdiction, to address issues presented and serves
to identify those disputes which are appropriately resolved
through the judicial process. In re Interest of Meridian H., 281
Neb. 465, 798 N.W.2d 96 (2011).
In its brief of appellee, the State argues, firstly, that the
Todds do not have standing to appeal the juvenile court’s
placement order as foster parents and, secondly, that even if he
is a sibling to Jordon, Andrew also would not have standing
as a sibling to appeal the juvenile court’s placement order. No
objection is made to the standing of Boydston, the guardian ad
litem. In support of its position that the Todds lack standing,
the State cites Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016),
which provides as follows:
(1) Any final order or judgment entered by a juvenile
court may be appealed to the Court of Appeals in the
same manner as an appeal from district court to the Court
of Appeals. The appellate court shall conduct its review
in an expedited manner and shall render the judgment and
write its opinion, if any, as speedily as possible.
(2) An appeal may be taken by:
(a) The juvenile;
(b) The guardian ad litem;
(c) The juvenile’s parent, custodian, or guardian. For
purposes of this subdivision, custodian or guardian shall
include, but not be limited to, [DHHS], an association, or
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an individual to whose care the juvenile has been awarded
pursuant to the Nebraska Juvenile Code; or
(d) The county attorney or petitioner . . . .
Under § 43-2,106.01(2)(b), the guardian ad litem may appeal
a final order or judgment entered by a juvenile court. Therefore,
Boydston has standing to appeal the juvenile court’s order, and
we may consider the issues she raises in her cross-appeal. In
contrast, we must proceed to consider whether, and to what
extent, the Todds have standing as foster parents and then con-
sider Andrew’s standing as a purported sibling of Jordon.
Foster Parents Do Not Have Standing to
Appeal Under § 43-2,106.01 and Do
Not Have a Right to Intervene
in Juvenile Proceedings.
[8-10] We have stated that in assessing standing, the right of
appeal in a juvenile case in Nebraska is purely statutory, and
that § 43-2,106.01 controls who has the right to appeal from
a juvenile court’s placement order. In re Interest of Joseph C.,
299 Neb. 848, 910 N.W.2d 773 (2018). As set forth above,
§ 43-2,106.01(2) does not include “foster parent” in the list
of persons who may take an appeal. We have held that foster
parents who were never awarded custody are not “custodians”
or “guardians” for purposes of § 43-2,106.01(2)(c). See In re
Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).
Furthermore, in In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 974, 870 N.W.2d 413, 420 (2015), we determined
that foster parents “do not have a legal or equitable right,
title, or interest in the subject matter of the controversy that
gives them standing to appeal from the order changing [a
child’s] placement.”
[11,12] In In re Interest of Enyce J. & Eternity M., supra, we
also stated that although foster parents did not have standing
to appeal the order changing placement, we nevertheless had
jurisdiction to consider the order dismissing the foster parents’
complaint to intervene. We determined that although foster
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parents have a statutory right to participate in review hearings,
their ability to participate was less than that of a party, and we
held that foster parents are not entitled to intervene as a mat-
ter of right. Id. We further determined that a juvenile court, as
a statutorily created court of limited jurisdiction, has only the
authority which the statutes confer on it and that therefore, a
juvenile court could not allow foster parents to equitably inter-
vene independently of the statutes. Id.
We conclude that under this authority, the Todds’ status as
foster parents did not authorize them either to intervene or to
appeal the placement order. In their brief, the Todds recognize
this precedent, but they argue that the present case is different
because they assert that Andrew is both a foster parent and a
sibling. We next consider the effect of Andrew’s alleged status
as a sibling with regard to intervention and appeal.
Although Siblings Do Not Have Standing to Appeal
Under § 43-2,106.01, They Have a Limited Right
to Intervene Under § 43-1311.02(9).
[13] As noted above, the State argues that even if Andrew
is a sibling of Jordon, a sibling does not have standing under
§ 43-2,106.01 to appeal a placement order. As set forth above,
§ 43-2,106.01(2) does not include “sibling” in the list of per-
sons who may take an appeal. We therefore agree with the State
that even if Andrew is a sibling of Jordon, Andrew qua sibling
is not among those listed in § 43-2,106.01 as persons who may
appeal a juvenile court order. We further reject the Todds’ argu-
ment that Andrew may appeal because he is both a foster par-
ent and a sibling. The fact that a person has two different rela-
tionships to a child does not confer that person with a right to
appeal when neither is a relationship listed in § 43-2,106.01(2).
We conclude that the Todds, and Andrew specifically, do not
have standing under § 43-2,106.01 to appeal the placement
order whether as foster parents, a sibling, or both.
[14] However, as stated above, in In re Interest of Enyce J.
& Eternity M., supra, we stated that although foster parents
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did not have standing to appeal the order changing placement,
we had jurisdiction to consider the order dismissing the foster
parents’ complaint to intervene. Similarly, in In re Interest of
Nizigiyimana R., 295 Neb. 324, 331, 889 N.W.2d 362, 369
(2016), in which adoptive parents of a biological sibling of
the juvenile sought to intervene, we stated that “[w]e exercise
jurisdiction over an appeal from an order denying intervention
even if the appellant would not have standing to appeal from
the court’s final order or judgment on the merits.” Under this
precedent, we understand that even though the Todds may not
appeal the portion of the juvenile court’s order changing place-
ment, Andrew may appeal the portion of the order in which the
juvenile court denied him leave to intervene as a sibling.
In considering Andrew’s arguments regarding the denial to
intervene, we refer to In re Interest of Nizigiyimana R., supra,
wherein we cited In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 870 N.W.2d 413 (2015), for the proposition that a
juvenile court lacks authority to permit an equitable interven-
tion. We further rejected the argument that a sibling had a
statutory right to intervene pursuant to § 43-1311.02, which
imposed a duty on DHHS to make reasonable efforts with
regard to placement with the juvenile’s siblings. We deter-
mined that the statute, as it existed at the time, specifically
limited the right to enforce such duties to parties and that a
sibling was not considered a party. We concluded that “the only
persons who can enforce [DHHS’] duties under § 43-131[1].02
are a guardian ad litem, on behalf of an adjudicated child, or an
adjudicated child’s parent, guardian, or custodian.” 295 Neb. at
342, 889 N.W.2d at 375.
However, after our decision in In re Interest of Nizigiyimana
R., supra, the Legislature amended § 43-1311.02 to add sub-
section (9), which provides as follows: “A sibling of a child
under the jurisdiction of the court shall have the right to inter-
vene at any point in the proceedings for the limited purpose of
seeking joint-sibling placement, sibling visitation, or ongoing
interaction with their sibling.” Therefore, § 43-1311.02(9) now
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provides a sibling a limited right to intervene for the specific
listed purposes.
The juvenile court in this case recognized the limited right
of intervention under § 43-1311.02(9), but it determined that
Andrew did not have the right to intervene. The court appeared
to accept that Andrew was a sibling of Jordon. However, the
court determined that § 43-1311.02(9) did not apply to an adult
sibling, like Andrew, and that § 43-1311.02(9) only applied
to siblings who were children. In their brief of appellants, the
Todds claim that the juvenile court erred when it determined
that the right of intervention under § 43-1311.02(9) does not
apply to an adult sibling.
We note that in her cross-appeal, Boydston, the guardian
ad litem, does not dispute the decision to deny Andrew inter-
vention, but she claims that the juvenile court erred when it
concluded that Andrew was a “sibling” regardless of Andrew’s
age. If Boydston’s argument that Andrew is not a “sibling”
under § 43-1311.02(9) is correct, then we would not need
to consider whether the statute applies to adult siblings. We
therefore consider Boydston’s claim next, because, as will be
discussed below, our resolution of that question determines the
intervention issue.
Before moving on, we note that when the Legislature
amended § 43-1311.02 to give siblings a limited right to inter-
vene, it did not simultaneously amend § 43-2,106.01 to include
siblings among those who may appeal a juvenile court order.
The statutes therefore appear to create a situation in which a
sibling may intervene to advocate on the specified issues but
does not have a statutory right to appeal an adverse determina-
tion on those issues.
Andrew Is Not a “Sibling” of Jordon and Therefore
Did Not Have a Right to Intervene
Pursuant to § 43-1311.02(9).
As noted above, Boydston, as Jordon’s guardian ad litem,
may appeal the juvenile court’s order pursuant to § 43-2,106.01.
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Boydston claims on cross-appeal that the juvenile court erred
when it found that Andrew was a “sibling” of Jordon, but that
as an adult sibling, Andrew could not intervene. Boydston
argues that Andrew and Jordon are simply not siblings regard-
less of age because they do not have a common parent.
We agree.
Neb. Rev. Stat. § 43-1301(1) (Reissue 2016) of the Act
defines “[s]iblings” as “biological siblings and legal siblings,
including, but not limited to, half-siblings and stepsiblings.”
The Act also provides in Neb. Rev. Stat. § 43-1311.01(1)
(Reissue 2016) that “sibling means an individual who is con-
sidered by Nebraska law to be a sibling or who would have
been considered a sibling under Nebraska law but for a termi-
nation of parental rights or other disruption in parental rights
such as the death of a parent.” We note that although these
definitions set forth the types of siblings that are considered
“siblings” under the Act—including half siblings, stepsiblings,
and those who would be considered siblings but for a termina-
tion or disruption of parental rights—the definitions are circu-
lar in that they use the word “sibling” to define “sibling.” We
therefore resort to rules of construction to determine the mean-
ing of “sibling” under the Act.
[15,16] Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous. In re Guardianship of
Jill G., ante p. 108, 977 N.W.2d 913 (2022). Black’s Law
Dictionary defines “sibling” as a “brother or sister,” Black’s
Law Dictionary 1660 (11th ed. 2019), and it defines “brother”
as a “male who has one parent or both parents in common with
another person,” id. at 241, and “sister” as a “female who has
one parent or both parents in common with another person,” id.
at 1667. The plain and ordinary meaning of “sibling” requires
a common parent or parents. Therefore, we conclude that
“sibling,” under the Act generally and under § 43-1311.02(9)
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specifically, means a person with whom one shares a common
parent or parents.
Andrew argues that he is a “stepbrother” to Jordon because
he and Jordon have siblings in common. Jordon is a sibling to
his two older brothers because they share common biological
parents, and although the biological parents’ rights to the older
brothers have been terminated, pursuant to § 43-1311.01(1),
they are still considered Jordon’s siblings under the Act.
Andrew’s mother Lesley adopted Jordon’s older brothers, and
therefore, Andrew shares a common parent with, and is a sib-
ling to, Jordon’s older brothers under § 43-1301(1) as a legal
sibling and a half sibling. But although Andrew and Jordon
share two brothers as common siblings, Andrew and Jordon
are not siblings. Having a common sibling does not in itself
make two people siblings to one another. Instead, the two must
have a common parent or parents, and Andrew and Jordon
have no common parent. Andrew is a stepbrother to Jordon’s
mother Leah, which makes him a stepuncle rather than a step-
brother to Jordon, and sharing two brothers in common does
not make Andrew and Jordon siblings in the absence of a com-
mon parent.
Because Andrew is not a “sibling” to Jordon under the
Act, we need not consider the juvenile court’s reasoning that
§ 43-1311.02(9) does not apply to Andrew because he is an
adult sibling rather than a child sibling, and we make no
comment on that reasoning. The limited right to intervene
under § 43-1311.02(9) does not apply to Andrew because he
is not a “sibling” to Jordon. Therefore, based on different
reasoning, we determine that the juvenile court did not err
when it denied Andrew leave to intervene as a sibling under
§ 43-1311.02(9).
Boydston Did Not Request Appointment of Counsel.
Boydston also claims on cross-appeal that the juvenile court
erred when it failed to appoint counsel to represent her after
Andrew challenged the credibility and veracity of her guardian
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ad litem report. We determine that because Boydston did not
request appointment of counsel, the juvenile court did not err
when it failed to do so.
Boydston’s argument that the juvenile court erred when it
did not appoint counsel to represent her or different counsel
to represent Jordon appears to focus on testimony by Andrew
at the hearing wherein he disagreed with certain aspects of
her guardian ad litem report. Boydston also notes a portion of
the Todds’ brief on appeal in which they assert that her guard-
ian ad litem report raises “misleading and baseless concerns”
regarding their care of Jordon and that such concerns were
“disproven by the evidence.” See brief for appellants at 16.
[17] However, it does not appear that Boydston asked the
juvenile court to appoint counsel. Boydston does not assert in
her brief that she made such request, and the record does not
appear to include such a request. An issue not presented to or
decided by the trial court is not appropriate for consideration
on appeal. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263
(2018). Because the juvenile court was neither presented with
nor ruled upon a request for appointment of counsel, whether
such appointment was warranted is not appropriate for consid-
eration on appeal. Therefore, we do not consider this assign-
ment of error raised on cross-appeal.
CONCLUSION
We conclude that as foster parents, the Todds did not have
the right to intervene as parties and did not have the right
to appeal the juvenile court’s placement order. As urged by
Boydston in her cross-appeal, we also conclude that Andrew is
not a “sibling” to Jordon under the Act and that therefore, he
did not have a right to intervene pursuant to § 43-1311.02(9).
We therefore affirm the juvenile court’s order in which it denied
intervention by the Todds as foster parents or by Andrew as a
sibling. No party with a right to appeal has challenged the
juvenile court’s change of placement, and we therefore also
affirm the juvenile court’s placement order.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484940/ | CONSENT JUDGMENT
This cause coming to be heard and it appearing to the Court that the Defendant, did on August 25th, 1922, file notice of his intentions to register himself under the name (“matai”) Sala.
And it further appearing to the Court that on the 5th day of September, 1922, the Plaintiff, Mamea-Malala, filed in the High Court of American Samoa an objection to the registration by the Defendant, Tuiga, of the “matai” name Sala, which said objection was the only objection filed during the thirty days succeeding the posting of said notice by the defendant, as required by Section 79 of the Codification of the Regulations and Orders for the Government of American Samoa.
And it further appearing to the Court that the Plaintiff and Defendant at a meeting of the members of said Sala family have reached an amicable settlement of the matter in controversy, and it is agreed by both the Plaintiff and the Defendant that the Defendant shall register his name as Sala-Tuiga, in the Eecord of “Matai” Titles in the office *331of the Secretary of Native Affairs, and hold said title until such time of his decease, resignation, or subsequent misconduct that warrants his removal:
It is therefore ordered, considered and adjudged by the Court, by and with the consent of the parties, Plaintiff and Defendant, that the said Tuiga is entitled to register himself in the Record of “Matai” Titles in the office of the Secretary of Native Affairs as Sala-Tuiga.
It is further ordered that the costs of Court are covered by the original protest fee of $10.00, paid by the Plaintiff.
This 11th day of October, 1922.
Consented to by:
/s/ Mamea Malala
/s/ Sala Tuiga | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484941/ | JUDGMENT
This cause coming on to be heard and it appearing that the Defendant did on August 20th, 1921, file notice of his intentions to register himself under the “matai” name “Ulufale” and because of this attempt objections arose thereto on the part of certain so-called members of the family. A large number of the members of the family of Ulufale met in the month of August in the year 1921 and agreed to the registration of the “matai” name Ulufale by Tanielu.
Within the period as required by the Regulations objections to the registration of this name were made by certain people who designated themselves as members of *333the Ulufale family, and as a result of these objections the matter was properly brought before the High Court.
A large amount of testimony has been taken in this case. The testimony of one side at times wholly disagreeing with the testimony of the other side, this testimony all being based on history handed down by word of mouth or by tradition. It is an absolute physical impossibility for any court to tell which is right or to tell whether either is right. The human mind will err; it is not infallible. Therefore, history passing down by word of mouth is just as accurate and just as inaccurate as the human mind can be accurate and can be inaccurate. The only history; the only tale; and the only story, that can be a truthful story; that can be an accurate story, is the one written down the moment a thing happens, on parchment or some other material, and preserved.
Now, although the testimony has been inaccurate, the Court wants to state that it does not feel that there has been an intentional inaccuracy on the part of anyone. It is merely a mistake of the human mind. Therefore, the Court is guided in no small degree; in no small way, by what to it was the logical thing that happened at the time.
The Court will now analyze some of the testimony in this action and first will take up the testimony given by the objectors or Plaintiffs in this action.
The Plaintiff in this action has not only objected because he objected but he has objected because he claims a “pule” over the name “Ulufale”.
He claims a “pule” that rests and vests in the name “Auala,” and it is not denied that Auala is the father of the Plaintiff Sagapolu-Puaa. Now if the “pule” rests in Auala it cannot rest in Sagapolu. The “pule” cannot rest with a number of people, it must rest with one. Therefore the claim of the objector in this action that he should designate the next succeeding Ulufale is not well founded and it is *334the unanimous opinion of the Court in that he is not Auala — he is Sagapolu — if there is any “pule” over the name in the family of Auala it rests and vests in Auala and not in Sagapolu.
That then brings up the question “Has Auala a ‘pule’ in the name ‘Ulufale’ and if Auala has a ‘pule’ in the name ‘Ulufale’ how did he acquire this ‘pule’, and does this ‘pule’ exist as testified to by the objectors?”
It has been testified to that the person who exercised the “pule” and from who the name Auala derived the “pule” was a woman, Ta, who was the daughter of the first Ulufale —Ulufale-Leoo.
The second Ulufale according to the testimony of the Plaintiffs in this action was Ulufale-Taugaifala, the son of Ulufale-Leoo, a person who held the name Ulufale but apparently died (without issue.
The only child of Ulufale-Leoo having issue was the child Ta who had married Namu of Fagalua. If this is so — that the “pule” was given to Ta — what was the object in doing it? There was only one object — and the Court is unanimous on this — that the “Pule” should rest in the name Ulufale, otherwise there would be no necessity of doing this because if they did not desire the “Pule” to rest in the name Ulufale it would have been given to someone else. How are they to retain the “Pule” then in the name Ulufale if .there has been a “pule” given out to a member of the Ulufale family? Again because if they did not desire the “pule” to rest and vest in the name Ulufale why did they not give the “pule” to Namu who was the husband of Ta and to whose family Ta now belonged by marriage?
The testimony of the objectors goes on to show that from Ta the “pule” was passed on to Lolousi. Again a woman!
If “pules” exist how shall they be passed on ? There is only one answer to that question and that is — they shall *335bé passed on whenever possible through the male branch of a family, as the male branch absorbs the female branch and the female branch does not absorb the male branch. This is Samoan custom. This is Samoan history. And there is no instance existing in American Samoa today, according to the testimony of a witness, where the “pule” of a name rests with a woman.
There was another child born to this marriage of Ta and Namu and that was the child Luafaga, a male child, according to the testimony of the objectors, and that male child was right there to take that “pule” on and carry it down in the name Ulufale, which was the object of the “pule” if ever a “pule” existed in the name.
But what has occurred according to the testimony of the objectors? The “pule” is carried further and further away from the Ulufale family until now at the present time there is a desire on the part of certain people to vest the “pule” not only in the name Auala but also in the name Sagapolu.
According to the testimony submitted by the objectors Luafaga had descendants, and here the contesting parties in this action begin to agree as to who were the Ulufales.
Was there any necessity of anyone going to Luafaga and telling him to appoint his son Ulufale? I think the Court quite agrees that if any conversation took place Luafaga undoubtably said to his son Sagalimu “Sagalimu you take the name Ulufale.” That’s what occurred. That’s Samoan custom, and it is very unlikely that the “pule” rests with a member of the family so far removed.
Now the Defendant in this action and the representatives of the defendants have testified that the “pule” descended down in a regular line from Ulufale to Ulufale, designation being made by the previous Ulufale as to who the next Ulufale should be.
*336Disagreement between the two parties in the action is had as to the designating of the third and fourth Ulufales. From the fifth Ulufale — Ulufale Sagalimu — on down there is no disagreement.
What has Samoan custom prescribed as regards the naming of Matais? It has prescribed almost invariably up to the time the flag was raised in American Samoa that the previous “matai” designated the next succeeding “matai”.
The sixth Ulufale was Ulufale Setefano. The Defense testifies that Setefano was a child of Ulufale Maae. The Plaintiff testifies that he was a grandchild of an adopted son of Ulufale-Leoo, and that he was appointed to the name by Auala.
Did Auala appoint Setefano to the name? Bather if he had the “pule” in his power he would have appointed a member of his own family. Human nature is human nature.
Is there any real reason why Setefano was not appointed by the previous Ulufale? Was it not according to old Samoan custom that the appointment was made by the previous Ulufale?
The question was asked by the Court “What was the necessity of Lolousi having the ‘pule’ in the name” and what was the answer? Because her brother was in Upolu. Did it necessitate the “pule” resting in a woman to designate the son Luafaga to the name Ulufale when all that was necessary was to send him word to come back and assume the name? The Court cannot find that the necessity existed of the “pule” being vested in the way testified to by the Plaintiff in this action.
There is another strange thing in connection with this testimony that it seems Auala in exercising his “pule” according to the testimony of the Plaintiff in this action exercised it by designating a person as Ulufale, who, according to their testimony, was an adopted son. Was that *337the way he exercised the “pule”? Was the Ulufale family in such a condition but that at all times none but adopted children, according to their testimony, could be appointed to the name. I cannot help but feel that the Aualas have been fine men. I cannot help but feel that in view of the testimony of the objectors that Auala is a direct descendant of Ulufale and it is the desire of Auala that Ulufale at all times should be a direct descendant, that had this man whom he designated not been a direct descendant he would have appointed one of his sons who as they claim are direct descendants.
If he was not interested in the name he ought not to have had the “pule” and if he was interested in the name he should have appointed a blood descendant and the Court believes he did, because he would not have appointed Safue to the name when he had his own sons available at this time who, as they have testified to, were blood descendants.
But was not something contrary to old Samoan customs going on? Was not the old custom that the name would be designated by the previous Ulufale to the next succeeding Ulufale up ,to the time the flag came here?
The testimony of the objectors is to the effect that Auala appointed Ulufale-Mu. The Court is compelled to believe that if Auala appointed Ulufale-Mu he appointed someone who was a blood descendant as Auala had the interest and the perpetuity of the strain of blood of the family at heart at all times and would have appointed no one else than a blood descendant.
The Court is not denying that because of the evidence given by both sides that the Auala family is related to the Ulufale family. The Court is of one mind on this proposition that there is a relationship existing, that there is a right in the Auala family in the name the same as there is with other remote families in the name, but if there is *338any “pule” that exists in the name at all the “pule” exists in the name Ulufale and not in the name Auala.
What is a “matai”? He is a man that is at the head of a family. He is the man that has the family affairs in charge. He is the man that all the members of the family look up to. He is the man they come to for advice. He is thé man they come to for direction. He is the man they come to for everything, practically.
And if he is not the type of a man and a man that can assume the responsibilities that I have just mentioned he is not the man to be a “matai”. And if he is not that type of a man the family soon weakens and breaks up and eventually if weak “matais” are continually appointed the position of the family dies out.
In view of the fact that a man of this type is required to hold the position the next question that comes up is .this; and shall decide as to your man: Who or what is the best judge of whom that person shall be?
Under the old Samoan custom, wisdom was exercised at times but that very human trait, jealousy, very often entered into matters of this sort because of the authority that one person had to designate who should be the “matai”. As a result of this jealousy existing, what occurred? Family troubles followed strife and perhaps war, death and destruction. And the time has now come in the history and the life of Samoa when that method has changed to some extent, and perhaps will continue to change further. The family has become more prominent and the “pule” is gradually growing in the rest of the members of the family and not so much in the individual.. And that is as it should be.
The most powerful government in this world today is the government whose flag flies right here, and that is a government “by all the people” and not a government of *339one man. I do not mean to say that we do not have powerful men in the United States and strong men just as you have powerful men and strong men in your families here who will dominate the family to some extent but they will also consider the wishes of the family. The family will be just so strong as the support that it receives from the members of the family.
Now there are other circumstances to consider in this proposition. How has the candidate for a “matai” name been conducting himself? What interest has he shown in the family? Then that man should be the “matai” who is a blood relative, a close blood relative; who has shown by his conduct that he is capable of handling the affairs of the family, and has shown by his actions that his every interest is in the family. He must absolutely have the unqualified support of the entire family at all times — all branches at all times — because of his acts or attitude towards the family and towards the family property.
Now, no more than a single man who had the “pule” will be always infallible, will all the members of the family be always right. The members of the family will not be right if they do not take into consideration these things that I have just mentioned. Is their candidate a true descendant? Has he been rendering service to the family? Has he been taking care of the property of the family in the way that he should. If the family has not taken these things into consideration the family is neglecting its duty.
■ According to the testimony shown as regards this man Tanielu whose name was sought to be registered by members of the Ulufale family Tanielu does not live in Futiga. He lives in Iliili. It shows that he has not been Occupying any of the properties of the Ulufale family. The testimony does show that the man is qualified by relationship and ability to hold the position.
*340The Court is of the unanimous opinion that the young man although he is educated, and qualified by relationship to hold the position is not sufficiently intimate with the properties involved to hold this name and hold it successfully. This the Court must decide, but it is no reflection on the young man.
What does the testimony show? It shows that UlufaleMu has a son by the name of Ala. That this young man Ala, in keeping with the testimony on both sides, has been continually occupying these properties; that he has constantly rendered service to Ulufale; that he is a direct descendant of the second previous Ulufale and thus is qualified by relationship.
He has occupied and cultivated the lands and harvested the products of the lands in conjunction with the family and in accordance with testimony submitted by both sides of this action.
Again the Court says that the decision has been left with the Court. The Court will decide, and it is the unanimous decision of the court that the man Ala who is the eldest son of the previous Ulufale — Ulufale-Mu—shall hold the name Ulufale.
It is the further judgment of the Court that the “Pule” in the name shall rest in the family Ulufale. That Ulufale himself shall be guided by the wishes of a large majority of the members of the family. That on a decision where the family is closely split on the proposition that Ulufale shall then decide as to who shall hold the name.
And if there be no Ulufale living — no person who has held the name Ulufale — the closest blood descendant in the highest degree of the next previous Ulufale shall decided [sic]. This of course involves the proposition of the person deciding having reached the age of discretion.
*341No Court can take a [sic] prescribe a rule of procedure that is to be followed for years and years and do it successfully. Therefore the procedure will be this and the Court trusts the practice will be the same: That the majority of the family will decide as ,to who shall hold the “matai” name, taking into consideration the relationship of the candidate for the name Ulufale. Taking into consideration his character. Taking into consideration the fact as to whether he has been living with the family and rendered service or not. And the majority shall decide.
If the family is so split that it cannot agree, the previous “matai” Ulufale, if he is living, can step in and decide who shall be the “matai”. If he is not living, as the Court has already stated, the closest male true descendant in the highest degree of the name Ulufale may decide but this decision shall not preclude Court action.
Candidates to the name will be taken with the closest relationship and be considered until right on down the line someone having all the qualifications and satisfies the family and those in authority, who will be the leading members of those in authority, has been decided upon.
The Court costs in this action as hereby assessed in the amount of $75.00. $50.00 of which shall be paid by the Plaintiff and $25.00 by the Defendant. These costs shall be paid within thirty days from this day.
This 16th day of October, 1922. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484942/ | DECISION
In the matter of the proceedings before this court there are two charges that have had to be considered.
One, the charge of rape; the other a charge of disrespect towards County Chief Fuiamaono. The Court has given careful consideration not only to the charges involved but the testimony that has been given and it is the unanimous opinion of the Court and the decision of the Court that the charge of rape is unfounded and the defendant is not guilty of such charge.
The testimony conclusively shows in this connection that the relationship existing between the defendant and *343the Taupo was of such a nature that at all times were those matters that might be involved in an affair of this sort agreeable to both the defendant and that Taupo. The letters presented in evidence by the defendant and admittedly written by the Taupo show the state of her heart and the state of his heart, and further show the the [sic] Taupo was the willing recipient of the attentions of the young man.
We pass on from the first charge to the second one, viz., disrespect to the County Chief.
The testimony shows in this connection that the young man was well aware of Samoan custom and well aware of what his duty should have been to the County Chief in an affair of this sort.
It is very apparent from the evidence submitted that the young man had made his declaration of love and affection to the young lady previous to her ever having become Taupo of the chief Fuiamaono. It is further shown that she has at all times been a very willing receipient [sic] of his attentions.
Time passed on and the young lady became the Taupo of County Chief Fuiamaono. The assumption of this position by the young lady according to Samoan custom changed the positions of the parties involved.
The assumption of the Court is only natural, that the young man raised the question at this time as to how would he fare and what would be the result of this change of her situation in living. In words of this effect, according to the testimony of the defendant, the young lady replied, that it would make no difference that the affair could be carried on and again we refer to the letters which conclusively show that the affair was carried on.
In this connection there is no doubt — in view of the manner in which this affair was carried on — .that disrespect was shown to the County Chief, not only by the *344defendant but also by the young lady, the Taupo. It is hardly necessary to mention what the proper procedure should have been as regards these two parties but the Court will touch on this matter.
A stern duty devolved on both parties, not only according to Samoan Custom but on account of the relationship .that each of the parties bore to the County Chief. One of the duties was to have given up this affair, the other was for the Taupo to have resigned her position if she desired to carry it on and remove the barrier of relationship that existed. It should be borne in mind all the time .that this affair started before she became Taupo to Fuiamaono, and the result was that as time passed on illicit intercourse was held between the two parties.
This is proven conclusively by the testimony of both parties and brings to a focus the proposition of disrespect shown to the County Chief.
Now, disrespect to the County Chief could have been of two sorts. One, an intentional disrespect, where he had a vicious motive in mind to undermine the standing of the County Chief, to do something that would cast certain reflections on him. The other, unintentional disrespect a disrespect that was shown because of prevailing circumstances.
The workings of the human heart are mysterious and it is hard to solve its directions or the things involved when one’s affections are at stake.
The young man and the young lady were in love. It is conclusively show [sic] the relationship that existed after her selection .to the position of Taupo to the County Chief continued in much the same manner that had gone on before. There is no evidence to show that the young lady desired to discontinue these relationships in view of her changed position. It is evident that the heart of each had gotten the better of the judgment of each.
*345It is a fair assumption on the part of the Court that had the young lady not become the Taupo of Fuiamaono that the affair would have continued and it is the further assumption that they might have been married and be now man and wife but her changed position prevented that occurring.
So it resolves itself down to this question. Was it the intent on the part of the young man in carrying on this love affair to show intentional and vicious disrespect to the County Chief?
The Court is divided on this proposition. The American Judge and one Judge holding that it was not and the other Judge holding that it was. The continued sincerity of intention of this young man is absolutely proven by his testimony yesterday and his answer to the question “Do you desire to marry this young lady” and his reply being “yes”. The Court cannot in view of that answer and the majority opinion prevailing render any other judgment than that the young man is guilty of unintentional disrespect to the County Chief and unintentional disrespect must bring from the Court a judgment that has in it a certain amount of charity.
The future position of the Taupo rests with the Chief Fuiamaono as he appointed her to the position. In view of the careless disrespect shown for the position of the High Chief Fuiamaono, not the vicious, but the careless disrespect, it is the judgment of the Court that the young man be sentenced to a year in jail but that said sentence be suspended.
The sincerity of the young man as regards the young lady in view of the testimony given yesterday by him relative to the matter of marriage will be proven by what occurs in the future.
Costs of $15.00 are assessed against the Defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484943/ | OPINION
This cause coming on to be heard is an action to try title to a piece of property on the south side of the island of Ofu designated by the name “Toaga”, being the result of an attempt of Siupolu, otherwise known as Mrs. A. J. Ross, to register title to this land. Upon the posting of notice of her intention objections were filed in the year 1920 by Faoa, Mauia and Sunia, in one action, which two actions were joined when the case was brought to trial.
Soon after the trial started the parties of the first named action withdrew their objections.
There remained then the action between Alesana and Suianoa v. Siupolu and the trial proceeded.
A person to possess property must have some valid claim to the property. The claim of the Defendant, Siupolu, to title in this property was based on her relationship to a so-called previous occupant — and also on the fact that she, by agent, at least, had been using the property. This claim based on relationship was the result of a so-called descent from the name Tuiofu.
Tuiofu was a County Chief of Ofu. This is conceded by all parties to this action.
*347Now, how did Siupolu derive a so-called right and claim based on descent from Tuiofu and what does the testimony of the Defendant and the Defendant’s witnesses show?
They state in their testimony that the land was handed down from Tuiofu to Tauvao and in accordance with the testimony of Lepepa, one of the witnesses for the Defendant, the descent of Tauvao was in this manner; from Tuiofu to Sua Galuvae and down through the Sua’s to whom they claim to be Sua-Tauvao.
The Court will state here that Tuiofu and the Sua’s to Sua Tauvao were chiefs of Ofu, County Chiefs, or District Chiefs, and that this so-called Sua Tauvao was not made a Faatui of the Faalupega but married a Tau woman and removed to Tau where he lived.
Bear in mind that this had been held up to this time by the Faatui of the Faalupega and had descended from Faatui to Faatui.
Their testimony then disclosed that there was a son born who was Alalamua and later became Tuimanua and with the birthright from Tauvao also came the right to possession of the land “Toaga”, and then the claim or the right descended on down through the Tuimanua’s to Siupolu. The last Tuimanua being Tuimanua-Elisala, and Siupolu being the daughter of the last Tuimanua.
Now then we will take up the matter of occupation of this land. It is generally conceded that Tuimanua-Elisala occupied this land; that he planted coconuts on this land and perhaps may have planted other things on this land. It is claimed that Tuimanua Alalamua occupied this land. It is a fact that Siupolu, daughter of Tuimanua-Elisala, occupied this land by agent and cultivated it.
The Court will now take up the Plaintiff’s side in this action and the testimony that was produced bearing on .these two points. A claim based on relationship and on occupation.
*348In the first place, let us establish the relationship of the Plaintiffs to anyone who might have authority over this land. What family did they belong to? It is conceded that they belonged to the family of Misa.
Who was Misa?
Misa is today known as County Chief of Ofu. In days gone by he would be known as the Faatui of the Faalupega.
From what descent do they claim their title? Down through the direct line of Faatui of the Faalupega, from Tuiofu to the Sua’s, from the Sua’s to the Misa’s, and they belonging to that family base their claim on that relationship.
Bear in mind that this land vested in the Faatui of the Faalupega to the time of Sua-Tauvao, as he is designated by the Defendant and her witnesses, or Tauvao, a young man, as he is designated by the Plaintiffs and their witnesses. The testimony of the two contesting sides in this action differs as to whether this Tauvao was a Sua or not, or whether he was a “matai” or not. The Defendant stating that he was Sua and the Plaintiff stating that he was a young man and never bore a “matai” name. We have no conclusive evidence to prove which side is right in this matter. We merely have what has been handed down by word of mouth from generation to generation.
The question naturally arises in the minds of the Court “What happened to take this piece of land away from the line of descent which vested it in the Faatui of the Faalupega, and vest the title in a person who was not a Faatui (as has been testified to by all) and who went to Tau, married and lived there?”
What thing had happened to deprive the Faatui of the Faalupega, or as we would term him, the County Chief, of his title to the land? There was a Sua living and the Faatui of the Faalupega was still descending through the name Sua. The Defendant claims this is what happened, that the *349land passed from the possession of the County Chief or Faatui to a person who was not a County Chief. All this in spite of the fact that it had for generations rested in the Faatui.
Now if that happened then the ancestors of Siupolu to the time of Sua Tauvao must have rested secure in the possession of this land and therefore there would have been no dispute as regards the matter. If there was a dispute it must have been a minor one, because of the position that these people held in Manua.
The Plaintiffs and the Witnesses for the Plaintiffs testify that that is not what happened up to a certain time and they testify that things did happen that never should have happened at all. They testify that the title to this land descended from Tuiofu down through the Sua’s up to the time that Tuimanua sought and apparently did obtain possession of this land.
What happened according to the testimony developed in this action? It has been testified to that Tuimanua Alalamua occupied this land. This is disputed.
It has further been testified that Tuimanua-Elisala occupied this land, and this statement has been agreed to by both sides.
In connection with the occupation of this land by Tuimanua-Elisala, both sides, testify that Tuimanua-Elisala went to the Faletolu and asked the Faletolu and other people who were assembled at the same time, words to this effect: “Do you object to my possession of the land Toaga?” Bear in mind that he was Tuimanua. That testimony is absolutely sworn to by both sides. Why should he have had to do this if the title was absolutely secure in Sua-Tauvao, in Alalamua and in Elisala who became Tuimanua.
If the title was secure in Tuimanua-Elisala would there ever have been any question like that necessitated?
*350Would it have been necessary for him to have gone over to Olosega and there raise the same question again? And there, furthermore, have met objections in connection with this proposition on the part of two people.
Why should it have been necessary for him to go on further to the island of Ofu — practically cover the whole of the Manua Group — and put this same question up to the chiefs and the people of these various places? Remember, it is the King of Manua who is doing this.
The Court is compelled to take notice of all these things in arriving at its decision and it is essential that the Court speak these words to the people of Samoa in letting them know how it has arrived at the decision that it will announce shortly.
Were these things the actions of a man that possessed title or were they the actions of a man seeking title to this land?
The testimony further develops and it is conceded by all that Tuimanua Elisala occupied this land, but it shows that before he did occupy this land, or as he was in the act of occupying it, he put this question “Do you object to my title in this land” or words to that effect, to the chiefs and people of Ofu, Olosega, and Tau as well as the Faletolu.
Another question was raised in connection with Tuimanua-Elisala which the Court is compelled to go into.
The scheme of things in American Samoa are to the mind of the Court based on the old patriarchal system as described in the Bible and described in books of ancient history, several families operating under one head and operating as a unit. The head of the family is termed a “matai”. Possession of property and trusteeship over property passes down from “matai” to “matai”. When a “matai” dies he is succeeded by a “matai” who acquires the “Matai” name and also the trusteeship and. paternal supervision *351over the members of the family and the properties that are involved.
Is Tuimanua a “matai” name? No, it is a political name the same as Faatui.
It must have been a political name, because if it was not it meant that the King of Manua possessed — Manua, and that is not so, as we all know. The same as the expression “King of England” means nothing but the name of a position. “King George” is another proposition, referring to the King himself. So, in acquiring the name “Tuimanua” property did not pass because there was no property vested in that political name at all, property would pass by “matai” names.
Was Elisala a “Matai”? Testimony disclosed that he was not. He was given the name Tui at his birth and later on when he became a missionary took the name Elisala. That he belonged to the family of Alalamua is conceded and the property of the Alalamua family would vest in the “matai” Alalamua, whoever he was. If .there was no Alalamua at the time Elisala was Tuimanua undoubtably because of the relationship he bore to Alalamua he exercised the trusteeship over these lands but the fact remains that he never held a “matai” name. Now, if there was a “matai” elected or selected for the name Alalamua at the time that Elisala was Tuimanua that man would have jurisdiction over the properties of the Alalamua family and not Tuimanua-Elisala.
If there was no one elected to the name, there is no question in the minds of the Court but that Tuimanua-Elisala exercised the jurisdiction over their properties although he did not hold a “matai” name.
If there is any right to this land Toaga today through the name Tauvao or Sua Tauvao, whichever he may have been, it rests and vests in the name Alalamua and not in Tuimanua. Now that is absolutely according to Samoan *352custom and everyone in this room knows that because land passes from “Matai” to “Matai”, and authority over land is not passed because one held a political position. So it is conclusively proven that if Siupolu has any right to this land whatever it is derived from Alalamua and not from Tuimanua.
The Court wants this point to be clear in the minds .of the Samoan people because the court well realizes the importance of this decision.
Did the first King of Manua, immediately he became King, take title to all the lands of Manua? He did not. He took with that political title just the land he had jurisdiction over as a “matai”. He had the power and authority to direct the affairs of the people of Manua through the position that he held but he acquired no land.
The Plaintiffs by their testimony in this action seek to prove that this land descended from County Chief to County Chief, or, in other words, from Faatui to Faatui, and would have continued to have descended that way if it had not been for the injection of Tuimanua into the affairs and taking this property, but because the King of Manua desired possession of this piece of land and because he went around and sought to find out as to whether there were any objections to his possessing this piece of land, and because they dared not to object because of his position, he came into the possession of the land.
Bearing in mind all the time that this land had been in the possession of the Faatui of the Faalupega for generations and it was at a very recent date that the last Tuimanua went around and asked the people if they objected to his possession of this land. Has any testimony been given that shows that this land was purchased by Tuimanua? Only in a vague way there is the mention of mats having been passed. But the claim of the Defendant, Siupolu, by her testimony and the testimony of her witnesses, is based on *353the relationship that she bears to Tuimanua and not on possession by ancestors of hers as a result of their relationship.
Now, what happened to take this land over to Tau? Or, was it ever taken over to Tau? That question is in the minds of the Court. The Court is compelled to say that title or possession to this land was not taken .to Tau by Sua-Tauvao but that it rested with the Sua’s and passed down from the Sua’s to the other Faatui until the time of Tuimanua-Elisala, and that he acquired possession of this land because of a political position that he held and not because of any right through relationship.
When .the Court says “Because of the name he held” it means because of the fact that he was Tuimanua and that the people did not dare disregard his wish, though he had no right to this land because of relationship; nor do any of his descendants have any right to this land because of relationship.
It is the judgment of the Court that this land logically having passed from Faatui to Faatui would have continued to have passed from Faatui to Faatui, or County Chief, as he is known today, if something very unusual had not occurred in connection with the matter and .that unusual thing that occurred was the desire of possession on the part of a person who occupied a powerful political position.
Furthermore, it must not be forgotten that Tuimanua-Elisala never held a “matai” name.
Another feature to this case which the Court in closing and before it renders the words of judgment must bring before the people of American Samoa is the fact .that land cannot pass from a Samoan person to a person who has become a non-native except by trust deed issuing on the part of a parent or grand-parent.
*354In connection with the boundaries of the land “Toaga” the court desires to state the following:—
The Eastern or so-called Olosega boundary of the original land “Toaga” was an imaginary line running north from a rock known as “Lamaga” to the top of the mountain.
In describing the land known as Toaga today, the land which Siupolu sought to register the court will travel in a westerly direction, naming the various sections of land.
Traveling westward the first tract of land contained in the original land Toaga, is Muliuli, which has been in the possession of the family of Tuiolosega. The Western boundary of the land Muliuli, which has been designated by a marker, is the easterly boundary of the land known as Toaga today.
Within this land known as Toaga traveling westerly is a piece of land known as Sunuitao.
The third tract of land in the original tract known as Toaga forms the second tract of land in that now known as Toaga and is known as “Vaaui”.
These two tracts of land “Sunuitao and Vaaui” are the two tracts of land that make up the land known as Toaga today, and the boundaries are established by markers.
These two piece [s] of land are the pieces involved in this action, as this is the land involved in the survey as presented by Siupolu to the Registrar of Titles for registration.
Opinion closed.
JUDGMENT
This cause coming on to be heard before the High Court of American Samoa and the testimony of both parties in the action having been carefully considered, it is ordered, adjudged, and decreed, that title in this land Toaga shall *355vest in the family of Misa, of the Island of Ofn, and that the authority and jurisdiction over this land shall be exercised by the “matai”, Misa. That those members of the Misa family who are occupying properties within this land Toaga, and by Toaga the Court means the lands Sunuitao and Vaaui, shall remain in undisturbed occupation of this land. That prior rights shall be exercised by members of the Misa family as designated by Misa, meaning that prior rights to lands that are unoccupied within the land known as Toaga today shall be exercised by a member of the Misa family under the jurisdiction of Misa. If there are people using products of the land known today as Toaga, as just described by the court, who are not members of the Misa family, and Misa himself does not object to the use of the lands, they may use the lands until Misa objects or some member of the Misa family objects.
It is further ordered, adjudged and decreed that the costs of this action shall be $100.00, which shall be assessed in amounts of $50.00 each, against Siupolu, the Defendant and the Misa family.
Given under our hands and seal of the High Court of American Samoa this 18th day of December, 1922. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484944/ | OPINION
These proceedings are the result of a dispute as to who, because of a vacancy existing in the “matai” name “Save”, shall hold the name and assume control over the properties and over the affairs of the family Save.
This name belongs to the village of Leone and the properties involved as far as the Court can learn are all located within or adjacent to the limits of said village.
The trial of this case has taken considerable time and the Court and the parties involved have gone into all matters in connection with these proceedings most thoroughly. The Court has carefully gone over the testimony and statements involved in connection with these proceedings and investigation has disclosed the fact that the testimony contradicts itself in a great many instances and as a result of these contradictions the Court has had to exercise, as it has tried to in all instances, its best judgment and to decide whose favor the weight of testimony and evidence exists.
*357This name “Save”, and of course this holds good of all other “matai” names in American Samoa, had an origin. There is some dispute as to just how the name originated and by whose authority it originated. Certain of the testimony ascribes the origin to Maiava; certain of the testimony ascribes the original to Tuitele. The testimony agrees in this point: that the name was presented on the naming of a person to the “matai” name “Save” to the head of the family Tuitele, for his approval together with Fiu and Maiava.
There is a difference in the testimony as regards to just who held the name Save down to the person Losi who held the name Save. From there the testimony agrees as to who held the name Save and it seems upon Losi obtaining the name an unfortunate thing occurred, the name was split and we have this thing happen: that two persons at the same time were holding the same “matai” name and this condition continued down to the time of the holding of the name by the last “matai” Save-Matapuaa. This split in the name also resulted in the practical division of the properties. One branch of the family holding and cultivating certain properties and the other branch of the family holding and cultivating certain other properties, and as the Court has already stated, the attempt to name or designate a person to hold the name “Save” has resulted in no agreement on the part of the members of the family and because of this state of affairs matters have come before the Court and resulted in these proceedings.
It is an impossibility for the Court to determine a direct line of hereditary descent from the first Save to the last Save but if there is any balance of the testimony in favor of any one in this action it lies in favor of Tu’ugaifo. Both candidates for the name — the testimony discloses — are true sons of previous Saves, Tu’ugaifo of Save Tee and Faasegi of Save Taeago, and the claim to the right to the *358name as presented to the Court by Tu’ugaifo evidences more clearly a true line of descent from the original Save than the claim as presented by the opposing side.
This case is made especially difficult because of the fact, as the Court has already mentioned, that the name was split, and at this time the Court desires to state that in using the expression “the name was split” it intends to convey this meaning, that the authority involved in the name was divided between two persons.
This division of names is a practice indulged in to some extent in American Samoa and should be frowned on by all people as it results in only one thing and that is the weakening of the name and the gradual wiping out of the name in time. Authority of a name can rest only in one person and if it is divided it means weakness in the first place and perhaps other difficulties occurring. The authority in all names rests primarily in the family. There is in this connection at times certain conditions that have to be taken into consideration and considered in connection with the authority involved in the family.
In the handing down of a decision the rights to property have also to be taken into consideration, and the general family rights.
Rendered by Judge Hall
April 26th, 1923
Thursday
JUDGMENT
This cause coming on to be heard and it appearing that the Defendant did on 1st day of March, 1919, file notice of his intention to register himself under the “matai” name “Save” and because of this attempt objections arose thereto on the part of certain so-called members of the family.
Within the period as required by the Regulations objections to the registration of this name were made by *359certain people who designated themselves as members of the Save family, and as a result of these objections the matter was properly brought before the High Court, and as a result of the proceedings had:—
IT IS THE UNANIMOUS JUDGMENT OF THIS COURT THAT:—
First. The “matai” name shall rest in one person, and in this instance that person is Tu’ugaifo who will hold the name Save until such time as he either resigns from the name; or is removed for proper cause; or dies.
The authority in the name rests primarily with the family — the members of the family.
On the family deciding as to who shall hold the name at any time this decision shall be presented to Tuitele, Fiu and Maiava, for approval, and final approval shall rest with Tuitele, in whom the name originated, and his approval shall be given at all times if the family has agreed as to who shall use the name to the person who the family has agreed upon.
The family Save, as the testimony conclusively shows, is hereby declared a branch of the Tuitele family.
In case of a dispute as to the name among the members of the family the name Tuitele shall decide as to who shall hold the name as that name is the head of the families that make up the family of Tuitele and this is one of the families.
It is further declared and directed by the Court that proper service shall be rendered at all times by the members of the Save family to Tuitele and if such proper service is not rendered thereto by the members or by the head of the family, the “matai”, that person or those persons shall forfeit his or their position whether it is as member of the family or whether it is as “matai” in the family.
In the selection of a Save to succeed Tu’ugaifo the first consideration shall be given to a member from the so-called *360Taeago branch of the family. This does not mean that the person must be selected from that branch of the family at all but it does mean that in the consideration, at the time, of a person to succeed Tu’ugaifo as Save, the first consideration shall be in the Taeago branch. If no suitable candidate is found then consideration shall go to the other branch of the family. This statement merely involves a form of procedure, that is all, and is not dictation in any way.
Second. In the disposition of lands involved in this name the Court has as nearly as possible tried to continue the usage and rights in the properties as they have existed in the past and as they are bound by previous Court decision, and in this connection the Court will use as distinguishing names to represent the two branches of the family, Taeago for one and Matapuaa for the other.
The Taeago branch shall hold as follows and remain in undisputed possession unless they by reason of not rendering proper service to Save or for some other legal reason are removed from these lands: The Hi of the land Leasi that is at the present time being used by the Taeago branch. The Hi of the land Sina that is at the present time being used by the Taeago branch. Although the “matai” of the family has control over this land to the extent that he may remove the family if he so desires but the Court will recommend against that proposition as this land is bound by previous Court decision. The land Maugaula, Malaetia, Saoa, and Fusi, if there is such a land, although the Court is not absolutely sure.
The Matapuaa branch shall hold as follows: The Hi of .the land Leasi that is at present being used by the Matapuaa branch. The Hi of the land Sina that is at present being used by the Matapuaa branch. The land Fototausala, Faasala, Saumalemua, and Fagasaua.
*361The “matai” of the family will permit the Taeago branch of the family to use the lands designated and shall not, except for cause and just cause, remove the members of the Taeago branch of the family from these lands with the exception of the land Sina and as the Court has already stated the Court recommends against Tu’ugaifo removing the Taeago branch from the 1h of this land that they are at the present time using.
No land shall be sold by the “matai” of the family unless it is with the consent of the family, and this means the consent of the entire family. Lands may be leased by the “matai” with the consent of the branch that is using said lands.
The representatives of the Taeago branch of the family are hereby declared to be Afa and Fa’asegi. The representative of the Matapuaa branch is hereby declared to be Tu’ugaifo. Now by representative the Court means representing these branches of the family in Court and does not mean that these people are the only members of these branches of the family.
As to the designation of the guest house of the “matai” of the family it is hereby recommended that that matter be taken up with Tuitele together with the members of the Save family as represented by Save-Tu’ugaifo and that a land be designated as to where the guest house shall be and that land will be known as the official residence of the Save family.
The Costs in this action are $150.00, $75.00 of which will be paid by Tu’ugaifo and his branch and $75.00 by Afa and Fa’segi and their branch. Thirty days will be allowed by the Court in which to make this payment.
Given under our hands and seal of the High Court of American Samoa, this 26th day of April, 1923. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484945/ | JUDGMENT
It seems that during the year 1923, on the thirteenth day of June, Mailo appeared at the office of the Registrar of Titles and sought to register a certain piece of land situated in the village of Fagatogo as delineated and described in an accompanying map of survey and description. This land was designated as the land “Utunonu”. In accordance with custom and procedure, a notice was posted by the Registrar of Titles, and at the expiration of sixty days, if no objections were had, then said land would be registered in the name of Mailo.
Within the sixty day period the “matai” Tufono, supposedly representing the Tufono family, and the “matai” Te’o, representing the Te’o family, appeared at the office of the Registrar of Titles and objected to the *363registration of the so-called, land “Utunonu” by Mailo, at the same time depositing ten dollars objection fees, respectively.
At a time previous to the beginning of .these Court proceedings, the “matai” Tufono appeared at the office of the Registrar of Titles, stated that he desired to withdraw his objections to .the registration of the land by Mailo, and as a result his objections were withdrawn.
Time passed on and on the fourteenth day of July, in the year nineteen hundred and twenty-four, the High Court convened in an action of “Te’o versus Mailo” to try title to this land.
The trial had proceeded for a matter of one day, or perhaps two, when the family of Tufono appeared at the office of the Registrar of Titles and stated that they objected to the action taken by the “matai” Tufono in withdrawing his objections to the registration of .the land in dispute, stating at the time that the family had not been consulted by the “matai” as regards .the action that said “matai” had taken, and requesting protection of their rights and interests by the Court. And their claim as to the family not having been consulted is borne out by the testimony of the “matai” Tufono as given by the “matai” before this Court. And the testimony of various witnesses as given before the Court soon developed the fact that the Tufono family were interested parties in these proceedings. And, as a result, the Court directed that the objections of Tufono, representing the Tufono family, be revived and the Tufono family, as represented by Tufono, be made parties in action.
Testimony, survey, and exhibits indicate to the Court that there was a piece of land, known as “Utunonu”, lying west of the present Administration Building and extending in a westerly direction practically to the small stream just to the west of the American Judge’s house; and, according *364to the testimony of Mailo and some of his witnesses at least, extending in a southerly and northerly direction from the Main Road back to the boundary line of the Naval Station, which divides the Naval Station from Fagatogo; and, the land which is [in] dispute lies in a northerly direction and adjacent to the description as just mentioned; and, as already stated, this land in dispute was designated by Mailo as the land “Utunonu”.
Testimony as given soon developed the fact that the land in dispute and designated as “Utunonu” was known by other names by various witnesses, being designated in many instances as “Milomilo” and in one instance, as the Court recalls, as either “Milomilo” or “Falaga”. This discrepancy in names raised a question in the minds of the Court as to what is the true name of the land which is the subject of these Court proceedings, and testimony was had at great length, and recourse was had to the records in the office of the Registrar of Titles to throw light on this matter as to what was the true name of this land and perhaps to furnish any evidence as to who had authority over the land in dispute. Plans existing in the office .of the Registrar of Titles and transfers developed the fact that during the early period of the Government of American Samoa by the President of the United States, that transfers of land had occurred to the United States and that among the lands transferred were lands known as “Utunonu” and “Milomilo” and so forth, and surveys existed in the office of the Registrar of Titles covering these lands. And it further developed that the land “Utunonu”, as shown in these plans, had been transferred, or at least a part of it, by Mailo; that the land “Milomilo,” or at least a portion of it, had been transferred to Sarnia and by a person by the name of Krause.
Reference to these plans further disclosed the fact that the testimony of the Defendant to the fact that this land *365“Utunonu” sold to the Government extended from the roadway in the Naval Station to the boundary line between the Naval Station and the village of Fagatogo was not sold; that there was a narrow strip of land between “Utunonu” and the land in dispute; and that this narrow strip of land was designated in the records of the Registrar of Titles as “Milomilo”; so that the Court had presented to it this situation: to the seaward, the land known as “Utunonu” originally transferred to the Government, and in a northerly direction and adjacent to it, the narrow strip of land known as “Milomilo”, and according to the records in the office of the Registrar of Titles, transferred to the Government by Sarnia, and in a northerly direction and adjacent to this land, the land in dispute in these Court proceedings.
The Court will now leave this stated proposition for a minute as we have the locations definitely fixed in our minds and we will take up the claim of Te’o as ,to ownership and what the claim is based on. Te’o states in his testimony that the land “Utunonu” was obtained from Mailo-Matagi; that Mailo-Matagi had a sister by the name of Pafuti; and that she had a son who was Te’o; that this Mailo desired to erect a house for himself; and, as Te’o is stated to have been a carpenter, that Mailo requested his sister to request Te’o to construct this house, bearing this in mind all the time: that Te’o is related closely to Mailo and practically a member of the Mailo family. According to the testimony, the house was built by Te’o and he received in return for the construction of the house the piece of land designated as “Utunonu” by both Mailo and Te’o. This claim did not carry much weight with the Court. As already stated, Te’o was a member of the Mailo family and in accordance with Samoan Custom, it would have been very contrary to said custom for Te’o to have demanded payment for the construction of this house and *366it would hardly be conceived by the Court that Mailo gave this land to Te’o as that also would have been contrary to Samoan Custom as Te’o had a certain obligation to Mailo as did Mailo owe a certain protection to Te’o. Mention has been made in the testimony as to the planting of coconut trees on this land by various persons with the idea by said planting to establish ownership but the fact remains that no sufficient evidence has been given to prove that a sufficient planting occurred to indicate that a plantation was involved and, in one instance, as the Court recalls, it was testified that the Missionary Leve had planted some coconut trees on the land so that the claim based on the planting of coconut trees on the land does not carry much weight with the Court to the extent that it would indicate ownership. No evidence has been given at any time which indicates that Te’o lived on this land so the Court dismisses the objection of Te’o and that leaves remaining the objection of the family of Tufono by Tufono, the “matai”, to the registration of the land in dispute by Mailo.
Now, it is the unanimous opinion of the Court that the land “Utunonu” was controlled by Mailo and it is the unanimous opinion of the Court that the land “Milomilo,” and this is in accordance with the testimony, was controlled by Sarnia in the interests of the Tufono family, so the question before the Court is: is the land in dispute “Milomilo” or is the land in dispute “Utunonu” ? And these are facts that are borne out, not only by the testimony, but by the records in the office of the Registrar of Titles.
We will now recall that the land in dispute is not a physical continuation of the land “Utunonu” as sold to the Government by Mailo. There is a narrow strip of land known as “Milomilo” lying between the land “Utunonu” sold to the Government by Mailo'and the land in dispute. And this narrow strip of land was transferred to the Government by Sarnia as the records show. The defense, of *367course, could not help but recognize the condition as it existed in the records in the office of the Registrar of Titles so, on being questioned by the Court as to this narrow strip of land known as “Milomilo,” the testimony of the defense was that this narrow strip of land was given to Samia by Mailo but no sufficient reason has been given to the Court for the presentation of this narrow strip of land to Samia by Mailo.
Bear in mind that the land “Utunonu” is controlled by Mailo and the land “Milomilo” is controlled by Samia in the interests of the Tufono family and were the testimony true that the narrow strip of land to which the Court now refers, which the defense states was given to Samia, it is logical in the extreme to feel that the land is “Utunonu” and not “Milomilo” as it was transferred to the Government by Samia. What a strange gift to have made; a long strip of land lying right in the middle of the land designated as “Utunonu” by the defense.
Therefore, it is the unanimous opinion of the Court that this narrow strip of land as registered in the office of the Registrar of Titles was the land “Milomilo” and was controlled by Samia in the interests of the Tufono family and now, this brings us to the land adjacent to and in a northerly direction from this narrow strip of land which is the land in dispute. Where did this narrow strip of land come from? Why the narrow strip of land came from the land which is the subject of this Court action. And from Whom did the Government purchase the narrow strip of land? Why the Government purchased it from Samia. Keep in mind who controlled the land “Milomilo”: Samia. Were there any objections to the narrow strip of land by Mailo? Evidently none, at least none that received serious consideration as the land was transferred to the Government. The weight of evidence as given to the Court indicates the name of the land in dispute to be “Milomilo” and that the *368little strip of land sold to the Government by Samia was a part of this land.
The testimony developed the fact that when .the house of Leve, the previous Missionary to the present Missionary, Afele was to be constructed that the Chiefs of the village requested permission of Samia that the house might be constructed on the land which is the subject of these Court proceedings. According to testimony, objections were raised on the part of Mailo to the construction of the present home of the Missionary Afele but an objection does not mean ownership, an objection does not even entitle one to consideration unless such objection is so conclusively confirmed by testimony and fact that there can be no controversion. No substantial evidence has been given that the land in dispute is a continuation of the land “Utunonu” or that it bears the name “Utunonu.”
It is the unanimous judgment of this Court that the land in dispute is a part of the land “Milomilo” and the property of the Tufono family of the village of Fagatogo and it will be so registered in the office of the Registrar of Titles at the expense of said family. Court costs in this action are $150.00 which will be divided equally between Mailo and Te’o and these Court costs are to be paid within sixty days.
OPINION OF NATIVE ASSOCIATE JUDGES
By Judge Gagai: In the beginning of the case and in listening to the testimony given by different witnesses and questions asked by the parties and also the Court and after personal consideration I think myself in .the beginning in the case between Mailo and Te’o that Mailo had the authority to the land until the Court later found this strip of land which lies between the land “Utunonu” and the land in dispute. There I changed my previous opinion which I have already stated, in favor of Mailo, and this *369small strip of land shows in the Government records sold by Sarnia to the Government without any objection by Mailo. The Court has failed to find anything to prove that that small strip of land was a piece of land given to Sarnia by Mailo, as Mailo stated on the witness stand, as the records of the Government show that it was sold to the Government by Sarnia and we all know that there is no such small land existed in American Samoa. No man would like to have a piece of land like that because it would be of no use and therefore, in consideration of this small strip of land which lies between “Utunonu” and the land in dispute, it is very plain there that it must be a piece of a big piece of land because of this Court procedure. Furthermore, it has been stated by witnesses called by Mailo himself that the name of the land in question is “Milomilo” although there are other witnesses who had different name but it proves to me from the testimony of the witnesses whom Mailo himself insisted in calling and also the fact that this small strip of land lies between “Utunonu” and the land in dispute, and therefore, it is my belief that Tufono is the owner of this land. Furthermore, it is true that Tufono withdrew his objection but the duty of the Court is to do justice, to seek justice, and to deal it without consulting the members of his family because these lands are family lands and the family is as much interested in the lands as is the head of the family. The Court is right in reviving the right of the Tufono family in this case.
By Judge Leanaa: In order to shorten up the discussion of the Judges about the decision of the case, I would say that I concur, absolutely, with all that Judge Gagai has said; however, there are a few things I would like to add on which I also base my opinion, including things Judge Gagai has said and in which I concur. Lutu is considered ,to be one of the oldest Chiefs in the village of Fagatogo and he testified on the witness stand that he knows that the *370name of the land in dispute is “Milomilo” and that the strip of land lying between “Utunonu” and the land in dispute which was sold to the Government by Sarnia was a piece of “Milomilo.” Taamu is one of the “matais” of the Mailo family or division and he was called to the witness stand and he testified that in the construction of the house of Leve permission had been asked of Samia-Tuiasosopo and the name of the land in dispute is “Milomilo”. The present Mailo was not born in Fagatogo and therefore he doesn’t know much about lands in Fagatogo. The ex-Mailo, who is now Tinae, is a man whose veracity has been questioned. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484946/ | JUDGMENT
It is the unanimous decision of all three Judges that, according to the testimony in this case, the grandfather of Uo probably owned this land originally but the Uo Family turned it over to Fiu, the husband of Peka, and it was through her that Fiu had the possession of and the authority over the land. However, Fiu allowed the Samana *371Family to have possession and allowed them to cultivate the land for at least three generations and this is the first time that Uo has brought the matter to the attention of the High Court.
In other words, the Uo Family, through the grandfather of the present Uo, may have owned the land but through three generations, at least thirty-five years, the Samana Family have had the use and possession of the land with the full knowledge of the Uo Family and therefore, the Court decides that not only the use but the ownership of the land as well is in the present Samana.
The costs of two days in Court in the High Court are Fifty ($50.00) Dollars. That Fifty ($50.00) Dollars will be paid by Uo, the losing party, within sixty days from today.
Given under our hands and the seal of the High Court of American Samoa this sixteenth day of June, A.D., 1925. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484947/ | *372JUDGMENT
Sualofi of Leone, has filed with the Clerk of the High Court of American Samoa, his petition, asking that the “Matai” name Maiava be bestowed upon him, and to this petition Galo Uo also of Leone, has filed an objection.
The issues presented by the petition and the objection have come before the High Court for trial, and each of the two contestants have appeared by their respective attorneys and in person.
At the beginning of the trial Tuitele, who is the titular head of both the Maiava family, to which Sualofi belongs, and of the Ilaoa family, to which Galo belongs, asked an adjournment of the case, stating that he desired to bring the two parties together for the purpose of amicably naming the “Matai” “Maiava.” The request of Tuitele was granted by the court on the consent of Counsel for both sides, and the court stated that it hoped that a man worthy to bear this high name might be chosen out of court.
Tuitele later reported to the court that he had been unable to effect an amicable compromise on a candidate, and .the case therefore proceeded to trial.
At the beginning of the trial, on its adjourned date, the court stated that as the parties had been unable to agree on the question as to which of the candidates was best fitted to bear the “Matai” name, the issue to be tried, would be — which of the two candidates for the name was, by Samoan custom and law, legally entitled to bear the name. On this issue the trial proceeded and lasted two and one-half days.
The evidence which was very full disclosed the fact that Sualofi is a member of the Maiava family, and the son of Maiava-Fai, and that for a period of some years prior to this trial he had held the name Maiava, together with Pauga, and upon the objection of Uo, the father of Galo, *373who discovered that Sualofi had not registered his name, as required by law, the court forbid him to continue to use the “Matai” name Maiava. This evidence has not been rebutted, nor has it been denied by Galo or the Counsel for Galo that Sualofi is a true member of the Maiava family.
Galo is the son of Uo, whose father was Tuiloua. It is claimed by Galo that Tuiloua was a Maiava and that although Galo belongs to the Ilaoa family, the fact that his grandfather held the “Matai” name Maiava makes Galo a member of the family, and that Tuiloua’s claim to a place in the Maiava family is based upon the fact that he is descended from Seulele, the daughter of a Maiava who lived many years ago. Sualofi strenuously denies both that Tuiloua was a legal holder of the “Matai” name Maiava and that Tuiloua was a descendant of Seulele.
Both sides agree .that the holders of the “Matai” name since Maiava Leoo were as follows: Leoo, Lilo, Papalii, Lauiliu, Vaituliao, Palasi, Anoanoai, Foi, Moemai, Fai, Pupa and Pauga, but Galo claims that Tuiloua was also a holder of the name and was the Maiava in the period between Fai, the grandson of Palasi and Pupa, the son of Foi. It is admitted by both contestants that all of the above named Maiavas were of the Maiava family, and that none of them were of the Ilaoa family, except Tuiloua, if it is admitted that he ever was a holder of .the name.
A witness for Sualofi has named all of the descendants of Seulele, the daughter of Maiava-Leoo, from which branch Galo claims the right to the name, and Tuiloua does not thereon appear as one of her descendants.
Great stress is laid by the Counsel for Galo upon the testimony of his witness that Tuiloua, the grandfather of Galo, appointed Pupa to the name Maiava, and that Uo, the father of Galo, claims to have performed, as a member of the Maiava family, certain ceremonial rites at the time of the death of Maiavas Pupa and Pauga, but this *374testimony is put in doubt by the testimony of the witnesses of Sualofi, who explain that this naming of Pupa by Tuiloua was done in Upolu and that it was necessary to confirm this act by a meeting of the Maiava family, upon Pupas return from Upolu, and that the reason that Uo performed the ceremonial rites at the death of Pupa and Pauga, was because there was no one left at Leone to do this honor of the Maiava family, as all of them were at Pago Pago, and further that if any true member of the Maiava family, with authority, had been present Uo would not have been allowed .to pour the death oil.
A careful reading of all the testimony discloses that there is no dispute of the question that Sualofi is a true member of the Maiava family, and by Samoan custom entitled to bear the name Maiava, while the testimony as to the right of Galo to bear the name is not established by uncontradicted evidence, and is based upon facts and circumstances that have not been established by competent proof.
It does not sufficiently appear that Galo is a member of the Maiava family, but it does appear by uncontradicted evidence that Sualofi is a member of that family and has already held the name Maiava, and was disbarred from continuing to hold the name only for the reason that he had failed to satisfy the technicalities of American law.
Under the aforegoing circumstances as set forth, and .the evidence to support them, as adduced at this trial the court must decide that Sualofi is entitled to bear the name Maiava. Whether the holding of the Maiava name by Sualofi or Galo would add a greater lustre to the name, is a question that is not before this court, and it is accordingly not decided here.
It is accordingly ADJUDGED AND DECREED that the “Matai” name “Maiava” be bestowed upon Sualofi of *375Leone, the petitioner herein, and that Galo Uo, the objector, pay the costs of this action, to wit: $75.
So ordered by the Court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484948/ | JUDGMENT
After several months spent in an attempt to bring the two parties to this case and their supporters together to choose a man best fitted to bear the name Satele, the issues, raised by the petition and objection, have at length been brought to this court for a final determination.
At the opening of the trial the court plainly stated that in the event that the evidence should show that each of the parties was by law and Samoan custom equally entitled to bear the name Satele, then it would admit evidence to *376show which of the two candidates was better fitted to bear the name — but if the evidence should clearly indicate that one of the parties had a better right by law and custom to bear the name then and in that event the judgment of the Court would determine that issue only and not attempt to decide the question as to which of the two men is better fitted for the name and position.
A sharp issue has been raised on the question of the right by law and Samoan custom, of either Moso’oi or Faga to succeed to the “Matai” name. This issue, in a large measure depends for its determination on the decision of the question as to whether Uga or Pili, both of whom had the name Satele, and at the same time, was the legal holder of the title. Uga was the father of claimant Moso’oi and Pili was the father of claimant Faga.
The line of Sateles from Talifaitasi to Itula, the last holder, as given by the :—
Witness of Moso’oi
Talifaitasi
Taeatafa
Moasegiatu
Titae
Talili (Sioea)
Saualii
Peli
Moso’oi
Uga
Itula
Witness of Faga
Talifaitasi
Taeatafa
Titae
Laauletaupona
Moasegiatu
Saualii
Vaalulu
Sioea (Talili)
Uga
Pili
Itula
It will be noted that the witnesses for both sides agree that Talifaitasi, Taeatafa, Moasegiatu, Titae, Sioea (Talili) and Saualii have legally held the name Satele. In the *377line of Sateles, .the witnesses of Moso’oi include Moso’oi and Uga and the witnesses of Faga include Laauletaupona, Yaalulu and Pili. An examination of the tables of genealogical descent as given by the witnesses of Faga shows that Laauletaupona was the grandson of Talifaitasi, descended through the female line, and that Vaalulu was the son of Laauletaupona and that Pili was the grandson of Laauletaupona, also through the female line. The tables as given by witnesses for Moso’oi — show that Moasegiatu by his second marriage had a son Moso’oi and that Moso’oi’s son was Uga, who was the father of the claimant, and brother of the last Satele Itula.
Neither claimant or objector has succeeded in breaking down the testimony of the other, in regard to the genealogical descent, but each has attempted to strengthen its own version by cumulative testimony. That the parties to the case are aware of the fact that the decision must depend largely on the answer to the question whether Uga or Pili was the rightful holder of the name, is indicated by the amount of testimony given by the witness of each on the subject. Afoa, a witness for Faga states that the holders of his name have had the right as Matuas of the Satele family to name the Satele — and goes on to say that when Uga and Pili were candidates for the name, there were also two Afoas — one of whom named Pili and the other Uga and that the Afoa who named Uga did it only to spite the family. The witnesses for Moso’oi are just as sure that Afoa whose choice was Uga (they deny that any Afoa had the right to name a Satele) selected the legal holder of the name.
The fact is undisputed that Pili was a descendant through the female line and doubly so through Maufaoa, the daughter of Talifaitasi and Leuiga, the daughter of laauletaupona while (Satele) Moso’oi, if he was a descendant of Talifaitasi and his son Taeatafa, is a grandson *378of Taeatafa and a son of Moasegiatu — both acknowledged rightful Sateles. (Satele) Moso’oi’s son was Uga — therefore Uga, the father of the claimant is a direct descendant in the male line from Satele Talifaitasi, but by the second marriage of his grandfather Moasegiatu — whose son Satele Saualii died leaving male issue Faumuina-Lafoia, who was not a Satele.
The question therefore comes to this: — assuming that Pili and Uga were both Sateles at the same time, which had the better right to the name? Uga who descended through the male line or Pili who descended through the female line? Moso’oi’s witnesses state that by Samoan custom only the male line should be recognized and Faga’s witnesses give instances where the Satele was from the female line. Irrespective of this testimony the court takes judicial notice of the fact that in most jurisdictions, where name, title or position depends upon descent, it is the custom to choose the holder from the male line where possible. The fact that Itula, the last Satele, generally recognized by all the family, was a brother of Satele Uga goes far to establish the right of Uga to the name, and to prove that Moso’oi, their father, was a true Satele.
If the contentions of Faga’s witnesses as to the line of descent of the Sateles were correct then Satele Itula was an usurper, holding the name without a shadow of right — and if the contention of Moso’oi’s witness should prevail then we must hold that if there ever were such Sateles as Laautelaupona, Vaalulu and Pili, they were only the descendants of the nurses of Talifaitasi’s children. The Court rejects both contentions and holds that Pili and Uga were both Sateles, but that Uga being descended through the male line had the better right to the name.
This decision partly disposes of the question before the court i.e. as to whether Moso’oi or Faga has the better *379right to the name Satele, but as the weight of evidence on both sides is so evenly balanced, the question of fitness to hold the name may profitably be considered. Faga is a young, vigorous man who has had long training as a Fita Fita and is what may be called a “young Samoan” with some training in the ways of American institutions, laws and customs. He has not however, and perhaps by reason of this training, been close to the Satele family, either by residence or habit. His lands are not the lands of the family of Satele and he has not had an active interest either in the lands or affairs of that family.
Moso’oi is an older man, he is not vigorous, and no evidence has been offered as to his ability beyond the statement that he is a “kind and humble” man. This is always a good recommendation, but many kind and humble men are not fitted to hold high offices. Moso’oi however has dwelt most of his life in the Satele houses and lived on the Satele lands. He has been an active member of the family and is familiar with its customs and traditions. This is shown by the fact that he, as a witness, gave the genealogical story of the Satele family, while Faga left this task to Afoa.
Upon this statement of the case and upon a careful review of all the evidence it is the opinion of the Court that the interests of the Satele family will best be served by the holder of the name being Moso’oi, and that with him as the Satele, while the affairs of the family may not be as actively administered, there will be less chance of dissension in the family, as there would be if Faga were given the name. In arriving at this decision no consideration has been given to the undoubted fact that Satele Itula before his death expressed a wish that Moso’oi should succeed him, because such expressed wishes of holders of Matai *380names have been honored as often in the breach as in the observance. It is accordingly
ADJUDGED AND DECREED that the Matai name Satele be given ,to Moso’oi, the son of Uga and that the costs of this action, amounting to $75, be paid by Faga. RECOMMENDATION:
In view of the fact that the respective rights, by reason of descent, to the name Satele, of Moso’oi and Faga are so nearly equal, it is suggested by the Court to the Satele family, that in the event of the death of Moso’oi they give every consideration to the claims of Faga as Moso’oi’s successor. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484949/ | DECISION
At the close of the trial of this case, the court called the attorneys of both sides, together with a witness for each of the parties to the bench, and requested them to point out on the surveyed plan, filed for registration by Auau, the location of Patea’s house. Prior to this time Counsel for each side had stipulated upon the record that if it should be disclosed by an inspection of the property by the court, that the house of Patea was within the boundaries of the *381Kneubuhl survey, then the decision of the case would be for Patea, if outside, the decision should be for Auau.
The counsel and witness for Patea promptly located the site of Patea’s house within the boundaries of the survey but counsel for Auau and his witness Ufuti, were unable to mark the site of Patea’s house and upon consulting together decided to repudiate the stipulation which they had previously entered into. The court proposed this stipulation for the reason that in respect to the location of Patea’s house, as in every other material question in the case, the witnesses respectively for Patea and Auau had been diametrically opposed in their testimony.
If Patea’s house was proved to be within the boundaries of the survey then the evidence taken in the case would show that Patea and his predecessors Tuiaana, Iafeta and Taamuta and the present Patea himself, had lived upon the land in question continually for a period well over BO years, their possession being known to all, undisturbed and under a claim of right.
The name of the land surveyed is called by the surveyor for Auau “Fanua Tani Faasaviliga” and by Patea “Taanoa.” The evidence of Auau and his witnesses is that the land must be called “Fanua Tanu” because a pavement of stones or Fanua Tanu is located thereon. A Fanua Tanu, it is claimed, may be built only by a High Chief. It is admitted by Patea, that there is a Fanua Tanu on the surveyed property and he and his witnesses state that it was erected with the consent of Patea on the land Taanoa at the request of a High Chief Letuli, when his son married a girl of Pago Pago. Auau testified that the Fanua Tanu was erected by certain Tongan captives of an Auau taken in war many years ago.
Evidently the Fanua Tanu itself, has nothing to do with the name of the land surveyed. One of Auau’s witnesses testified that in speaking of a Fanua Tanu, a pavement of *382stones of itself and not any particular piece of land surrounding it would be understood.
The house of Auau which was blown down in the hurricane of 1926 was located on the surveyed land, but after its destruction, Auau was allotted a place to build a house by Patea outside of the surveyed plat. An inspection of the property made by the Court discloses without any doubt that Patea’s house is within the limits of the surveyed boundaries and that Auau is now living outside the surveyed boundaries.
The question of the ownership of this land arose for .the first time because Patea a short time ago proposed to build a new house on the Fanua Tanu and Auau objected to this location. When Patea persisted, Auau had the land surveyed and filed it for registration. Patea had not objected to Auau living upon the land but Auau had never attempted to build his house upon the Fanua Tanu and for the reason, as he says, that he was afraid of lizards that infested the place.
The only question provoking dissention between the parties during all the years that both of them have lived upon the land arose during the past year and that arose not as to the right of either of them to live upon the land itself, but only as to the right of Patea to build a house upon the pavement of stones, the Fanua Tanu.
Evidently the real question between the parties is as to which of them is the higher chief with the right to build on the Fanua Tanu and not the question as to the ownership of the land upon which both have lived without disturbance from the other and upon which Patea is now living and upon which his predecessors have lived continuously for more than 30 years.
Each party has introduced affirmative evidence showing:
*3831. The proper name of the land is Taanoa or Fanua Tanu.
2. That the Patea family permitted the building of the Fanua Tanu on their land, or the Fanua Tanu was built under the direction of Auau, by Tongan captives on Auau’s land.
3. That the Patea family has always had the authority over the land in question, or the Auau family has.
4. That the Patea family originally gave one of the Auau family permission to build on the land in question, or that Auau originally gave the Patea family this right.
On all these questions the evidence is equally convincing if standing alone but neither side has been successful in breaking down the testimony of the other side; in other words each party has attempted to prove his own case and has not attempted to break down the evidence of the other side except by asserting his own right.
As stated by the Court at the beginning of the case an uninterrupted user of land for a period of over 30 years, which user is known to all and under a claim of right, would establish at least a prima facie claim to title of the land. The evidence shows that the Patea family have used and occupied the land for a period of over 30 years, continuously, notoriously and under a claim of right, that a Patea still lives there and that Auau, although he did live there on and off, mostly off in Upolu, prior to January 1, 1926, does not now live there but on land admitted to be Pateas, and permitted by Patea. Under these circumstances and the facts that the survey was made by Auau, and that Patea has stated in Court that the survey is of his land Taanoa, it must be held that Patea has the authority over the land in question and may continue to live thereon as his predecessors have done.
Undoubtedly Patea will allow Auau, as a member of the Patea family, to rebuild his house on the old site which is *384within the boundaries of the surveyed property, if he should desire to do so, and in exchange for this courtesy, Auau must not object if Patea builds on this property when and where he may think proper. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484950/ | The High Court convened at the Courthouse at Fagatogo at nine-thirty o’clock in the forenoon of Thursday, November 18, 1926, to hear the above entitled cause:
Judges Wood, Lutu and Leaana presiding.
Parties present by counsel:
Asuega counsel for Atuatasi & Mamea.
Sarnia counsel for Aumavae.
Petition read.
Court: Before Alo Taisi died did he name a man to be a successor to him?
Asuega: No.
Sarnia: No.
STATEMENT OF THE COURT: There was an action in the High Court of American Samoa in 1907. In this action the parties were Alo Taisi and Aumavae against *385Alo Faitala. That case was discontinued and when it was discontinued, the parties to the case, that is Alo Taisi and Alo Faitala signed a Stipulation of Discontinuance. This stipulation says that: — “It is stipulated by and between the parties to the above cause, that the said cause may be and the same is hereby discontinued upon the following terms and conditions, to-wit — That the name “Alo” will be retained by both parties, Alo Taisi and Alo Faitala, during the lifetime of both of them. That neither will appoint a successor to hold the name “Alo” during his lifetime.” Alo Faitala is still alive, but he feels because of his age that he would like to have his son appointed “Matai”; but he, as Alo Faitala, signed a stipulation of discontinuance with Alo Taisi, who is now dead; and this Court will not violate that agreement, which would be unfair to the man who is dead, and his representatives. This stipulation provided:— “That either party may nominate a person to succéed him upon his death, and upon his death, said nomination will be placed before a family meeting to be composed of ‘matais’ connected with the family of Alo, whether resident of Fagasa or of any other place in the Colony; that the following persons and no others are entitled to attend and vote at said meeting; Alo Faitala or Alo Taisi as the case may be, and any of their children who are possessed of ‘matai’ names, whether living in Fagasa or anywhere else; Aumavae and any of his children who may be possessed of ‘matai’ names; Te’o and any of his children who may be possessed of ‘matai’ names; Tautua and any of his children who may be possessed of ‘matai’ names.” At this meeting they should decide one or two things, whether they in the future wanted but one Alo or “matai” in the family, or they should decide whether or not they would select for Alo the man who had been nominated by the man who died. It is contrary to the policy of the Government to have over one “Matai” in any one family, and this practice will be *386discontinued. If there is more than one “Matai” in a family now, it will remain like that until one of them dies, after which there will be only one “Matai”. This court will not appoint a “Matai” of the Alo family during the life time of Alo Faitala except upon one condition, and that condition is this, that the members of the family of Alo Faitala, and Alo Taisi, that is the “matais”; Aumavae and the “matais” of his family, Te’o and the “matais” of his family and Tautua and the “matais” of his family, get together and nominate someone to succeed Alo Faitala, if Alo Faitala feels he is too old to continue in the duty of a “Matai” of a Samoan family. If those parties, the “matais” that I have named, will get together and a majority of them will select a man to be “Matai”, as provided in this agreement, and this agreement does not provide that all of them must agree, but just a majority, the court will appoint that man to be the “matai” of the family, and he will be the only one who will hold the name Alo. This is not an arbitrary ruling on the part of the court, as the court is absolutely bound by this agreement signed by Alo Taisi and Alo Faitala, just as much as Alo Taisi and Alo Faitala were bound by it. This is what we call in the United States RES AD JUDICATA, something which has been decided by the court between the two parties previously. The court has no right to waive this agreement; the court must stand by it. I have changed this agreement in this way — the only provision of all these “matais” meeting was by the two Alos’ dying. I would no.t have allowed this case to come to a court trial if I had known of the existence of this paper which was not shown to me until yesterday afternoon. I want you to understand that this agreement does not provide for that meeting of the “matais” except in the case that one of the two “matais” dies, and nominates a successor, but this agreement lays down a method of procedure by which a “matai” in a certain event may be selected. You have two choices, *387either Alo Faitala shall be the sole “matai” of the family as long as he lives, or if Alo Faitala wants to resign now, he must submit the question of his successor to those “matais” and their families that are mentioned by him.
This case will be adjourned for one month from date, and in that time the court wishes to be informed of one or two things — whether Alo Faitala intends to continue as the Alo, and if not, if the various “matais” have met and by a majority vote of those present chose a new successor to Alo. By a majority vote is meant that if there are ten members present and six vote for one man, that man is chosen and will be appointed by the court. This stipulation that I have quoted was filed February 19th, 1908, and was witnesseth by J. L. Dwyer, Clerk of the Court.
Court adjourned at 10:30 a.m.
At a meeting of the family it was agreed that Taisi of Fagasa should hold the Matai name “Alo.”
/s/ H. A. Zuberano
Clerk | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484951/ | DECISION
At the opening of the trial of this case the Court advised the parties of the action taken at the Annual Fono of 1926 where it was unanimously decided that in the trial of “Matai” name cases, the question of hereditary right would take precedence over the question of fitness of the applicant to hold the “Matai” name.
The Court further instructed the parties that the question of fitness would become material only if both candidates for the name proved an equal hereditary right thereto or either or both of them was or were notoriously unfit.
The undisputed facts regarding the hereditary rights of the candidates were as follows:—
There have been six holders of the name Soliai:
Soliai Aiulua
” Samanu
” Apolo
” Muliufi
” Sitione
” Tema
Pine, the proponent of the petition for the name Soliai is the son of Soliai Muliufi, a grandson of Soliai Apolo, a great grandson of Soliai Samanu and a great great grandson of Soliai Aiulua.
Fia, the objector, and a candidate for the name, is the grandson of the sister of Soliai Samanu.
*389Soliai Tema the last holder of the name was the son of Soliai Samanu by a second marriage — Soliai Apolo the grandfather of Pine being a son by the first marriage.
It appears that at the time of Soliai Muliufi’s death his son Pine was a small child and for this reason Soliai Sitione was chosen to take the name and at Soliai Sitione’s death, a council of the family was held to choose between the young man Pine and Tema as holder of the name Soliai. The council chose Tema because of Pine’s youth and it was there agreed that the next holder of the name should be Pine.
Fia has always lived at Nu’uuli and is familiar with the affairs and property of the Soliai family and appears to have been a faithful servitor of the family.
Pine has lived almost all of his life at Pago Pago and has made trips to Nu’uuli from time to time in the interests of the family, yet the fact appears that at the time of Soliai Tema’s death it was Pine rather than Fia who paid the dead man’s taxes.
If Pine and Fia had shown equal hereditary rights to the name the Court, because of Fia’s residence and service to the family, would have had no hesitation in giving the name to him, but Pine’s hereditary right to the name appears indisputable as he is the lineal descendant not only of the first Soliai but of the three next Soliais, and evidently would have taken the name at Soliai Muliufi’s death, had he been of sufficient age. Pine’s character and fitness for the high name is undisputed, the only objection to him advanced by the objector is that he has not lived at Nu’uuli and has not, because of this reason, become familiar with the affairs of the family.
It is the Judgment of the Court that the “Matai” name Soliai shall be given to Pine, but only on the condition that on taking this name he shall go at once to Nu’uuli and *390there permanently reside, devoting his time and energy to the interests of the Soliai family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484952/ | DECISION
The parties in this case are Sua of Afono and Aoelua also of Afono. The land in dispute lies along the sea at Afono and is bounded on the east and west by lands of Tela.
Sua claims that the land in dispute is called Suatiama and has had it surveyed and offered it for registration in this Court under this name.
Aoelua claims the land offered by Sua for registration under the name Suatiama, includes lands called by him Failafua, which land he claims belongs to him as the holder of the name Aoelua.
The evidence points to the fact that Sua received the land Suatiama from his father Paselio, who formerly held the name Sua and that Paselio received the pule of the land from his father who was also a Sua, who received it from another Sua, Paslio’s grandfather. Sua (Paselio) it *391appears at one time, authorized the father of Aoelua (leremia) who was a Missionary to build a house on the eastern side of the land Suatiama, this was because leremia was a Missionary and had no other place in Afono for his guest house and school From this license granted to the father of Aoelua, the claim of ownership has grown up and is pressed by Aoelua.
The witnesses of Sua, Paselio and Tela are unshaken in their testimony that there is not now and never has been any division of the land Suatiama and that the testimony of Aoelua’s witnesses that the land Failafua is a separate entity over which the name Aoelua has the pule is without foundation. They testified that the land called by Aoelua and his witnesses Failafua is and always has been a part of the land Suatiama.
The testimony of Aoelua and his witnesses is not convincing. They say that the pule of the land called by them Failafua is in the name Aoelua and that the Aoelua in this case had the land from his father leremia and yet it appears that leremia never held the name Aoelua; that the predecessor of Tela had the name Aoelua and it was he who had the pule of the land called Failafua and transmitted this pule to the father of Aoelua, leremia. Tela who should know, said that there was no land named Failafua belonging to Aoelua, that the lands of Tela are called Failafua and Falesoa.
It is believed that the claim of Aoelua arises out of the original license to build a house granted by Paselio to leremia and that long continued residence by Aoelua and his father has developed a claim of ownership in Aoelua and his fellow Plaintiffs. This belief is strengthened by the fact that Aoelua and his predecessors have not cultivated the land until very recently and have exercised no pule over it except the building and rebuilding of houses on the original site granted by Paselio to leremia.
*392The judgment of the High Court will be in favor of Sua, that he has the pule of the land Suatiama as surveyed and filed here for registration; that Aoelua lives on this land under a license granted to his father leremia by Paselio and that this license is revocable by Sua who has the pule of the land Suatiama as surveyed and filed for registration.
In view of the fact that this case has occasioned very hard feelings among the people of Afono and that prior to trial Sua expressed his willingness to County Chief Leiato and District Judge Pele to give the land occupied by the house of Aoelua to him, it is recommended that this generous offer be renewed by Sua, but only on the condition that Aoelua absolutely waives any claim to the pule of the land on which he may be permitted by Sua to live. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484953/ | DECISION
The trial of the matai name Lei was held at Tau on the 8th day of June, 1927. The Judges present were as *393follows: — H. P. Wood, presiding Judge, Nua, Associate Judge and Muli, Associate Judge.
The parties appeared in person. Siluano testified in his own behalf and gave the history of the Lei family and his hereditary right to the name.
Vaeena, the objector, was represented by Pomele of Fitiuta, who stated that he was more intimately acquainted with the history of the family than Vaeena himself.
The Court stated to the parties the decision of the last Annual Fono wherein it was unanimously decided that hereditary right should have precedence over the question of fitness in deciding Matai names.
Siluano named the last ten Matais of the Lei family as follows:—
Taatu
Isumama
Toofala
Ee
Tone
Vagatai
Maea
Siluano
Vaeena
Loi Sulu
Siluano, the eighth named Lei is the same Siluano who is now an applicant for the name. It appears that he held the name Lei for four years and then came to Tutuila to study as a missionary. He remained in Tutuila for almost twenty years; and before his departure from Ofu named as his successor, one Vaeena, who was the father of the objector.
Toofala and Ee were brothers. Siluano is the grandson of Tone, who was the son of Ee. Vaeena is the son of Lei Vaeena, who was the son of Maea, who was either the own son or adopted son of Toofala.
The question of descent and the hereditary rights of the parties is uncomplicated, except by the question as to whether Maea was the true son or adopted son of Toofala. Siluano testified positively that Maea was the adopted son *394of Toofala and states that Maea was the true son of Lepa, and a man whose name was Muae, and that upon the death of Muae, Lepa married Toofala and that Toofala adopted Maea as his own son.
Vaeena, by his witness Pomele, was not prepared to deny this statement of Siluano’s but appeared to be of the opinion that Maea was the true son of Toofala.
Pomele testifying for Vaeena named the holders of the name Lei in practically the same order as did Siluano but stated that he did not remember any such holders of the name Lei as Ee, Tone and Vagatai. Pomele was not prepared to say there were no such holders of the name Lei but stated that he had not heard of them.
Each of the applicants for the name produced a character witness to testify as to the fitness of their candidate for the name. Pomele, as character witness for Vaeena, stated that if the name was given to Vaeena, he would be glad to go to Ofu and spend some time with Vaeena to help him learn the history of his family. It appears that Siluano already knows the history of his family, having been the holder of the name Lei for a period of four years, and would have nothing to learn about the affairs of the Lei family.
There is no question of the descent of Siluano from a holder of the name Lei. He is both a grandson and a great-grandson of a holder of the name.
Vaeena is also a descendant of a holder of the name Lei but whether or not his descent is in a true line of the blood is doubtful.
Siluano is without question familiar with all the affairs of the family. He has already held the Matai name Lei and has held it without objection, voluntarily surrendering it when he came to Tutuila to pursue his studies for the ministry. Siluano knows the traditions of the family and *395apparently Vaeena, although having lived in Ofu all his life, would have to rely on the services of a man in Fitiuta to teach him the history of the family and its traditions.
Under all the circumstances it is the opinion of the court that the interests of the family could best be served by the appointment of Siluano to the name Lei and this decision is based primarily upon his hereditary right to the name as established by the testimony.
Nua dissents from the decision of the majority and is of the opinion that Vaeena should have the Matai name Lei.
Vaeena to pay Court costs of $25.00. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484954/ | DECISION
This case came on to be heard before the High Court on the 6th day of September 1927. The proponent of the name, Chris Young and the objector Silia appeared in person. Chris Young testified in his own behalf and was supported by his witnesses Mrs. Sotoa and Matautia. Silia was also supported by Matautia.
*396The uncontradicted testimony of Chris Young was that the last seven holders of the name Taliutafa were:
Pule
Tupolo
Seiuli
Lipoi
Liusa
Faasua
Letuaina
of which the first three were also Tuimanuas. Pule’s grandsons were Seiuli and Tupolo, both holders of the name Taliutafa. Tupolo’s son was Lipoi. Liusa was the son of Lipoi. Liusa’s daughter Faailo married Taliutafa Faasua and their daughter Solomua married Taliutafa Letuaina.
The proponent Chris Young and his sister, Mrs. Sotoa, are respectively the son and daughter of Amepelia, who was also the daughter of Liusa.
The objector Silia traces his descent from Tuimanua Tialigo as follows: — Tialigo had a son Moaatoa, who was also Tuimanua. The daughter of Moaatoa, Peleese married Alalamua, having a son Alalamua, who was also Tuimanua. Tuimanua Alalamua married a woman Sofe. One of their children Elisala was a Tuimanua. A daughter Lalaai married Túfele Sililauga and Silia was a child of this marriage. Mrs. Sotoa contests this descent of Silia and states that Taliutafa Tuimanua had a daughter whose name was Peleese. This Peleese married Alalamua and of this marriage there was a daughter Savali who married Tauvao. Savali and Tauvao had a son whose name was Alalamua who was a Tuimanua. Lalaai was the daughter of Alalamua and then this daughter married Túfele Sililauga and Silia the objector was the son.
The Anoalo family of which Chris Young is a member claims to be the male line of descent of the Tuimanua *397family. Silia admits that the Anoalo family are the male line of descent of the Tuimanua family and he claims to be a member of this family. This claim is denied by Chris Young and Mrs. Sotoa. The name Taliutafa is an Anoalo name and the holder of the name Taliutafa is also by that token in line of descent of the Tuimanua family. As Chris Young testified, “according to the history of the Anoalo family whoever became the Taliutafa was the man to be appointed Tuimanua — the Taliutafa family is almost a royal family.”
Silia testified that the name Tuimanua is the head of the name Taliutafa as the name Taliutafa was created by a Tuimanua. Undoubtedly the Anoalo family is the family in the male line of the Tuimanuas. Taliutafa is the name of the head of the Anoalo family and accordingly whoever held the name Taliutafa was the logical successor to the name Tuimanua.
At the present time at least, it appears that the only lands held by the Anoalo family is a small piece of land in Tau called Lalopua. This land is about an acre in extent and at the present .time has nothing on it except the tombs of the Tuimanuas. Prior to the hurricane of 1926 there was a house on this land occupied by Chris Young and another member of the family but the house was destroyed by the hurricane and was not rebuilt. The Taliutafa and the Anoalo family is very small and owns apparently no lands except the land Lalopua. Silia testified that the land Lalopua belongs to the Tuimanua family. Chris Young and his witnesses testified that the land Lalopua belongs to the Taliutafa family but as the Taliutafa family is the Anoalo family and as the Anoalo family are the true descendants of the Tuimanua this piece of land is really owned by the descendants of Tuimanua which are Chris Young and his brothers and sisters.
*398On all the evidence it seems clear that Chris Young, if anyone, is entitled to the name Taliutafa and this particularly because he was given the name by the consent of the family as far back as 1917 and the ceremony of naming him in accordance with Samoan Custom of Kava and meetings of the family was duly observed; however, his name was never legally registered and accordingly he was never legally appointed as the holder of the name. Even the witness who was called by Silia in his behalf testified that by consent of the family Chris Young was named Taliutafa by Samoan custom and that the only objection to his holding the name at the present time was that he had not consulted him (the witness) before filing his name for registration.
There is not now and has not been for many years a Tuimanua. The Anoalo family are the descendants of the Tuimanuas by the male line but they neither hold the name Tuimanua or are legally the holders of the name Taliutafa. If, as testified, the Tuimanuas by the male line are Taliutafas and the Taliutafas are Tuimanuas, why should the name Taliutafa be perpetuated when the name Tuimanua is abolished by law? The holder of the name Taliutafa would be at the head of a very small family — brothers and sisters — and would have jurisdiction only over a very small piece of land Lalopua. The family Anoalo has had actual jurisdiction over this land since the passing of Elisala, the last Tuimanua, and by the mere fact of Chris Young taking the name Taliutafa they would have no greater jurisdiction over it, nor should the family pay less respect to Chris Young by .that name than as Taliutafa. He is still their brother and they look up to him as the head of their family.
The Court finds that Chris Young is a member of the Anoalo family; that the Anoalo family and the Taliutafas *399are practically the same in that none but legal descendants of Tuimanuas are entitled to the name Taliutafa and that both the Anoalo family and the Taliutafas are descendants of Tuimanuas.
If the name Tuimanua were still in existence it is very likely that Chris Young would be legally entitled to the name Taliutafa, but as the Tuimanua has been abolished by law, the name Taliutafa should also be abolished as the perpetuation of this name can lead only to local strife and discord in Manua.
The Court also finds that the Anoalo family are entitled to the custody of the land Lalopua and that in the absence of Chris Young from Manua his brothers and sisters, as members of that family and as lineal descendants of the Tuimanuas have the right to the custody and the control over this land in the same measure and degree as they have had in the past.
The costs in this case will be waived as the name Taliutafa is not given to either party. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484955/ | DECISION
This case came on to be tried before this Court on the filing for registration by Ui of Fagasa of the Matai name Tupuola and objection thereto filed by Muavae and his supporters.
It appears that there have been five holders of the name Tupuola in Fagasa. These holders were given by Ui as follows:
Falesau
Toligaulu
Sioeli
Mataio
Felise
The holders of this name as given by Muavae were as follows :
Polopa
Toligaulu
Sioeli
Mataio
Felise
The difference of opinion as to the first holder of the name Tupuola is not material to the issues in this case. Ui testified that Toligaulu was the son of Falesau; Sioeli was the son of Taligaulu; Mataio the son of Sioeli and Felise the son of Sioeli. Muavae’s testimony on these relationships were the same as Ui’s except that he testified that Mataio was the son of Toligaulu and not the grandson.
Both Ui and Muavae base their respective claims to the name Tupuola on their relationship to Felise the last holder of the name. Ui’s father was the brother of Felise as also was Muavae’s father; Muavae’s father being the older brother.
*401Both claimants of the name have spent all their lives in Fagasa doing service in the Tupuola family. Ui is about 25 and Muavae is about 36 years old. Leae, a surviving brother of Felise testified as a witness for Muavae and stated that he had the authority of the family and that it was his decision to have Muavae hold the name. Leae’s authority however, does not seem very potent as all the children of Felise and Mataio, who are living, are admittedly in favor of Ui’s candidacy for the name and are desirous of having him hold it.
It also appears that Ui lives in the Tupuola house with the consent and approval of the descendants of Felise and Mataio.
Expert witnesses testified that if both an equally qualified son and a brother of a deceased holder of a Matai name were candidates for the name, according to Samoan custom, the name would be given to the brother. In this case however, Leae is not a candidate for the name so the question does not arise. Whatever authority he might have in the decision as to the next holder of the Matai name may be disregarded in this case as it conclusively appears that he has no actual authority.
As the hereditary right of the two applicants for the Matai name Tupuola seem to be approximately equal, it is the opinion of the Court that the name should be given to the applicant who has the greater number of supporters in the family and comes within the rule that where two members of a family each claim the right to its Matai name, having almost equal rights to it, the Court will favor the one first filing the name for registration. As Ui filed the name for registration, has the greatest number of supporters in the family and, as his supporters are the closest in relationship to the last and next to last Matais of the family, he will be given the name Tupuola.
*402It is accordingly adjudged and decreed that the Matai name Tupuola be given to Ui of Fagasa and that the costs in this case be paid to the Court by the Plaintiff Muavae in the extent of $25.00. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484956/ | DECISION
This case came on to be heard by the High Court on the 26th [of] March 1928. Talafili, the proponent of the name Velega, was present with three witnesses and Tili, the objector, also produced three witnesses.
The witnesses were asked to name the last six or seven holders of the “Matai” name Velega. The witnesses of Talafili named the following:
Velega Tupuola
” Vagatai
” Vaeao
” Fiti
” Setoga
*403The witnesses of Tili named the following: —
Velega Vagatai
” Lilii
” Tili
” Tupuola
” Vaeao
” Piti
” Setoga
The discrepancy in the order is immaterial to the issue of heredity involved — except in this respect — Talafili’s witnesses say .that Velega Vaeao was the true son of Velega Vagatai and Tili’s witnesses say that Vaeao was the adopted son of Tupuola. The importance of this divergence in the testimony of the opposing parties lies in the fact that Tili is the son of Velega Setoga who, it is generally admitted, was the adopted son of Velega Piti, while Talafili as the grandson of Fiti — by the female line — in direct descent.
As between a son of an adopted son who was given a “Matai” name by the family and a grandson in direct line of descent — there could be no opportunity for discussion— the grandson in direct line would be the heredity successor to the name. The fact that Tili’s witnesses claim that Velega Vaeao was an adopted son would tend to put Talafili in the same class with Tili — for Talafili is descended from Piti who is admitted to be the son of Velega Vaeao. While Tili and his father, the former Velega Setoga admit that Setoga was an adopted son — the witnesses of Talafili do not admit that Vaeao was an adopted son — but stoutly maintain that he was the true son of Velega Vagatai.
It appears that on the retirement of Velega Setoga, because of old age, he desired his son Tili to succeed him, *404but at a meeting of the family called to make a choice, the members of the family, in a majority, chose Talafili and rejected Tili. A witness on Tilfis behalf stated that as between a designation by a retiring holder of a “Matai” name and the choice of the family, the latter would prevail.
Under these circumstances, i.e.:
1. That Tili is undoubtedly the son of an adopted son.
2. That Talafilfis descent, whether through a Velega adopted into the family or a true Velega is in doubt.
3. That Talafili is admitted to be the choice of a majority of the family.
The name Velega will be given to Talafili.
None of the witnesses, although some of them are quite old, are old enough to have known of their own knowledge whether or not Velega Vaeao was an adopted son, but all of the witnesses know, and it is admitted by all, that Velega Setoga is an adopted son and that Tilfis only claim is through Setoga.
The question of fitness for the position of “Matai” is not material, having been ruled out by the Fono of 1926, which made only heredity the issue. If this were not the fact,, the result of the case may have been different.
Talafili is given the “Matai” name Velega.
The costs of this trial ($25.00) are assessed against the Plaintiff. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484957/ | DECISION
This action is brought by Eseru of Fatumafuti and Sagaiga of Pago Pago as joint Plaintiffs against Iulio of Pago Pago, in the endeavor to establish their authority over the land Siufaga in Pago Pago. It is their contention that Iulio is, and has been exercising the authority over the land Siufaga in derogation of their right.
Shortly before the beginning of this action, a like proceeding was brought by Eseru as sole plaintiff, but in the course of his testimony it developed that he claimed to share this authority with Sagaiga and for this reason the first case was dismissed without prejudice to the bringing of this second action.
The land Siufaga is located at the Pago Pago end of the Bay and has been the subject of several suits at law. In one of these suits Mauga Taafasau was plaintiff and the defendants were Tali, Vaivao, Talali and Leauma. The land Siufaga was stated to be the piece or parcel bounded on the east by the land of Fanene and on the west by Gaga*406moe. Mauga Taafasau claimed the authority over this land as Mauga family land and the Court held “That the section of land known as Mulifanua is the absolute property of Vaivao of Leloaloa. That the Sections claimed by Tali and Fanene Vaamoolo are held by them separately as determinable fees upon condition of service to Mauga as members of Tei and Ananalo, and all reversions are vested in the plaintiff Mauga and his successors.” “All other, the remainder of said land in dispute is the absolute property of the plaintiff (Mauga).”
In the survey plan of the land “Siufaga” in that action there was included a smaller portion of land also called “Siufaga” and on this smaller portion is drawn in Mauga’s house and a house of Sagaiga. This action was followed by injunction proceedings by Mauga against Sagaiga relating to the land of Tali, which was held by Tali as a determinable fee on condition of service to Mauga, and the Court enjoined Sagaiga from “interfering” in any way with the quiet possession of Tali.
Eseru claims the authority over Siufaga as being the eldest son of Mauga Taufaasau — Sagaiga claims authority as being the holder of the matai name Sagaiga, which name he contends has an equal authority with Mauga over the land Siufaga. (It is agreed by all the parties to this action that the land in dispute is the small piece located between the land held by Tali and the land Faatautuli.)
Eseru admits that the name “Eseru” signifies nothing in the way of authority — his sole claim is by reason of his relation to Mauga Taufasau. Eseru also claimed the authority over the land Fatumafuti, but it is conclusively shown by the High Court case of Sagaiga and Tufaina against Mauga Moimoi and Mauga Taufasau that neither Sagaiga or Eseru had the authority over the land but that the sole authority was in the name Mauga.
*407Much testimony was given by the plaintiffs and the defendants but no real evidence was produced to aid the Court in its decision. Tinae, who claims to be a member of the Sagaiga family testified for the plaintiffs and Mauga Moimoi testified for the defendants.
It is significant that Sagaiga was not a party plaintiff with Mauga Taufausau in the action against Tali, Yaivao, Fanene et al. as he most certainly should have been if his authority over the land Siufaga was co-extensive with that of Mauga as claimed by him. It is also significant that an injunction was granted by the Court against Sagaiga in relation to the land Siufaga at the request of Mauga. These instances seem to point conclusively to the fact of Maugas’ sole proprietorship over the larger plot Siufaga which includes the smaller.
It was shown that the defendant Iulio is a grandson of Mauga Taufasau through the male line — his father being the younger but favorite son of Mauga Taufasau. Iulio is not a Matai, but exercises his authority by the consent of Mauga Moimoi who claims the sole authority to the land Siufaga (large and small portions) by reason of holding the name Mauga.
The Court must be guided by the former decisions of the High Court, and from these it appears:
1. That the authority of the land Siufaga, both the small and larger portions are in the name Mauga.
2. That Sagaiga has the right to have a house on the land held by Tali as a determinable fee and also the right to a house on the smaller parcel Siufaga.
3. That Eseru has no authority over the land Siufaga, large or small parcel.
4. That the name Mauga has the authority over the land Siufaga (large) subject only to the determinable fees of Tali and Fanene Faamoolo, and exclusive authority over Siufaga (small).
*4085. That the Mauga having this authority over Siufaga (small) may delegate his authority to whom he will — and having delegated it to Iulio, Iulio may exercise this authority till it is revoked by Mauga.
Judgment for defendant accordingly. Court costs in this action to be paid by the plaintiffs Eseru and Sagaiga.
This case having come on for trial in the High Court on the 20th day of January 1928, having been advanced on the calendar by the Court for the purpose of settling an acrimonious dispute between Sagaiga and Iulio as to the pule of certain lands in Pago Pago called Siufaga and,
A decision having been rendered in that case giving the authority to the land Siufaga, both small and large portions, to Mauga and it subsequently appearing by a statement made in the office of the Secretary of Native Affairs and American Judge by Mauga that the land at the time of the trial of this case occupied by Iulio was not a part of the land Siufaga but was a piece of land called Fafinelesola and therefore that the decision in this case did not settle as it purported to do, the right of pule to the land as between Sagaiga and Iulio and,
By a decision by the District Court of American Samoa rendered on 6 October 1927 in an action wherein Iulio was Plaintiff and Sagaiga was Defendant, brought by the Plaintiff against the Defendant for trespass upon the former’s land, a judgment was rendered in favor of the Plaintiff Iulio against the Defendant Sagaiga in the sum of $125.00 damages.
NOW THEREFORE, in order that the question attempted to be settled by the High Court by its decision of January 1928 may be later determined by the High Court.
IT IS ORDERED, ADJUDGED AND DECREED that the decision of the High Court in the case of Eseru and Sagaiga Plaintiffs against Iulio defendant be and hereby is in all respects annulled and that the decision of the *409District Court in the case of lulio against Sagaiga be reinstated as rendered.
Pending the decision of any case which may be brought by Sagaiga, Eseru, Mauga or lulio regarding the right of ownership or pule of the land now occupied by lulio, Sagaiga or any other person attempting to build a house upon said land or in any way to commit waste thereon by cutting trees, destroying plantations or planting them is enjoined by this Court.
SO ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484958/ | *410OPINION
This case has been heard to determine who shall succeed Paleafei Palemoe as the holder of the Matai name Paleafei.
Paleafei is a Matai name of the Village of Laulii in the Eastern District. It was not brought out in the testimony how many people there are in the family but there were only nine members of the family in Court and only a few more were mentioned by witnesses.
It seems to be agreed that the last seven holders of the name Paleafei were as follows: — Tia, Maeva, Lauivaa, Sagatu, Tupu, Sagatu and Falemoe.
Atofau of Leone filed the name Paleafei for registration basing his claim first upon the undoubted fact that he is the choice of an old lady of the Paleafei family — Siala—for the name, and second that he is a member of the Paleafei family. Siala is undoubtedly a woman of strong character and has had much to say in the affairs of the Paleafei family. Tia was the father of Siala. Maeva was the son of Tia’s sister. Lauivaa was the husband of Siala’s sister. Sagatu was Siala’s brother. Tupu was the husband of Siala and Palemoe was a brother of Siala. Siala claims that they were all appointed because of her pule or influence of her mother, they respectively holding the pule of the name.
Atofau claims to be in the seventh generation from a Paleafei whose other name he does not know. He has traced his descent and it is in the record of the trial. It is not necessary to go into it in the opinion. This descent as traced by Atofau and acknowledged by Siala is denied by Mulivai the objector to the name and by his witness Pele of Laulii who claims to have intimate and authoritative knowledge of the affairs of the Paleafei family.
Mulivai is a grandson of Paleafei Sagatu. Sagatu is stated to be a grandson of the first Paleafei Ulu. There is at the present time, an Ulu living in Vaitogi, who is also a grandson of Paleafei Ulu.
*411Atofau is the matai of a large family but the family is living in the Western District. He states that if he were appointed to hold the name Paleafei he would resign from the name Atofau and assume control of the affairs of the Paleafei family at Laulii, himself going there to reside. Atofau states that he is familiar with the lands of the Paleafei family but knows nothing of their other affairs. He states that he knew the last two holders of the name Paleafei, that is Paleafei Sagatu and Paleafei Falemoe, but although Paleafei Tupu was living during his lifetime, he did not know him. This seems unusual if Atofau is a member of the Paleafei family.
Atofau is a man of about fifty years old and Mulivai is a man about twenty-six years old. This is the first time that Atofau has ever been a candidate for the name Paleafei and as it appears from the record it is the first time he has ever been asked to be a candidate for the name, although there have been at least two vacancies in the name in his life time. Apparently this is his first real contact with the affairs of the Paleafei family.
Siala as before stated claims that she has the exclusive pule to the name Paleafei and that her choice of Atofau as the holder of the name is alone sufficient to secure his appointment. Undoubtedly the pule of Siala has been strong but it is very questionable whether the desire of any one person in a Samoan family should be sufficient to give the name to anyone and especially unless it appears that this person is undoubtedly a member of the family, has served former holders of the name and is familiar with the family’s affairs.
It is questionable in the light of all the testimony whether or not Atofau really is a member of the Paleafei family. This is denied by Mulivai and his supporters. It is not denied by Atofau or Siala that Mulivai is a member of the Paleafei family, yet neither he, his mother or Ulu, who *412is also a member of the family were invited to attend the family councils in the choice of a successor to Falemoe.
In the opinion of the Court it would not be according to the best policy for Atofau to resign his name in the Western District and turn over the affairs and lands of the Atofau family to any new Matai while he took up a residence in Laulii in the Eastern District and attempted to take over the affairs and lands of a family which was not unanimous in their choice of him as Matai.
It is usual in most Matai name cases to find at least one of the candidates who has without question lived in the family and rendered service to some former Matai of the family but in this case certainly Atofau never has and it is disputed whether or not Mulivai has.
It was brought out in the testimony that the last holder of the name Paleafei requested his successor to be Pate who is the grandson of Siala. This testimony was brought forth by Mulivai.
It is the object of the Court in its decisions in Matai name cases to appoint someone to be the holder of the Matai name in dispute who will as far as possible be agreeable to all the members of the family and thus .prevent dissension among them, as well as one who is-familiar with all the material affairs of the family. It does not appear to the Court that Atofau would fulfill these specifications and there is also a question as to how successful Mulivai would be as a Matai in the Paleafei family during the lifetime of Siala who evidently wants Atofau to hold the name. As between Atofau and Mulivai it is the opinion of the Court that Mulivai has established the strongest claim to the name Paleafei and the Court will award the name Paleafei to him unless the supporters of Mulivai will agree upon some undoubted member of the Paleafei family who has lived in the family in Laulii and is familiar with all its affairs, to be its Matai.
*413The name Paleafei will be given to Mulivai unless Atofau and Siala will consent to give the title to some undoubted member of the family who is familiar with its affairs and traditions.
The court costs in this case amounting to $50.00 will be paid as follows: $25 by Atofau and $25 by Mulivai. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484960/ | JUDGMENT
The above case came on to be heard before the High *415Court, with Judges Foxall, Lutu and Pele sitting, at Tau on Tuesday, February 5,1929 at 10:00 A.M.
The Court inquired as to whether or not the parties to the controversy were willing to have the case continued for twenty-four hours, during which time they would go into conference and attempt to amicably agree upon a holder of the name. It was explained that all those who were interested in the name, no doubt, knew who was entitled to hold the name, but if they could not come to an amicable settlement of the matter the Court would decide the issue.
Both sides agreed to retire and discuss the question, reporting to the Court the following morning, February 6, 1929.
At 10:00 A.M., Feb. 6, 1929, the Court again convened. Asoau, counsel for Taulafoga who offered the name for registration, then informed the court that at his suggestion both sides agreed that Ale, the objector, should hold the name.
It is therefore adjudged and decreed that the Matai Name “Siva” be given to Ale, and that the Court costs of this action, amounting to $25.00, be divided between Taulafoga and Ale, the parties hereto. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484962/ | JUDGMENT
The above case came on to be heard before the High Court, with Judges Foxall, Lutu and Pele sitting, at Leone, Tutuila, American Samoa at 10:00 A.M. of March 21, 1929.
The court inquired as to whether or not the parties to *417the controversy had been able to reach an agreement as to who should hold the “Matai” Name “Faleafine.”
Ufuti, representing Tae, and Pagofia, representing Saiselu, both requested the Court to dismiss the case without decision.
It is therefore adjudged and decreed that the within case, to determine the right of Tae of Vaitogi to register the “Matai” Name “Faleafine” be dismissed, and it is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485514/ | In this matter Claimant Robert Parkerson, represented by counsel John A. Marin of California, has filed a motion for change of venue and for a dismissal of the complaint for exoneration from or limitation of liability. The court will set this matter for a hearing March 19, 1986 at 9:00 a.m. in the High Court.
Counsel for the moving party is not a member of the .American Samoa Bar Association. Under the Rules of the High Court only members of this bar may practice in this court. Prior to this hearing counsel for the moving party must associate a member of this bar and secure approval Of the court to appear as counsel Pro Hac Vice. In prior matters in this case the court accepted briefs from counsel not members of this bar. This, however, is a motion and counsel must comply with local court rules before proceeding. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485515/ | This case b&gan in 1973 when the Tuia Suasuai family, designated Plaintiff in this proceeding, petitioned the Territorial Registrar for the registration of 2.78 acres of land as its communal property. The Salave'a family filed an abjection to the registration, claiming the land as its own. The Territorial Registrar referred the matter to the Land and Titles Division of the High Court, which after lengthy proceedings ordered• in 1977 that the land be registered to the Tuia family. The Salave'a family appealed, and in 1981 the Appellate Division ordered a new trial on the ground that it was unable to ptrocur© a transcript of the first trial.
*2The new trial took place on April 4, 1986. ■Each side presented only one witness. Each witness testified that his family had always owned and cultivated the land, had been paid by the government for the use of the land during World War-11, and had continued to cultivate plantations on the land down to the present day. The Court held that neither side had proven its case, and that therefore "Plaintiffs cannot prevail* since "all ties go to the defendant."
Counsel for the Tula family has moved for a new trial on the ground that the Court misunderstood the testimony of his witness. The Court observed that plaintiff's witness "admitted that Defendant family had occupied the land since 1947, * whereas the witness testified that both families had cultivated parts of the land since 1947.
It is doubtful whether this misunderstanding, if it was a misunderstanding, was crucial to the holding of the Court on retrial. The actual testimony of plaintiff's witness is fully consistent with the Court's conclusion that neither side has proven its title to the land. Moreover, counsel has not persuaded the Court that this picture would be altered by a new trial of the case --- much less that same extraordinary factor such as the discovery of important evidence unavailable at the time of trial compels a new trial in the interest of justice. The argument of plaintiff's counsel does, however, suggest the need for a modification or clarification of the Court's order so as to make it more consistent with the Court's conclusions of law and fact.
Finding that neither side had established its ■title, the Court ordered judgment for the* defendant. In an ordinary action brought by a plaintiff seeking to use the power of the court to deprive a defendant of something in bis possession, it makes perfect sense that a "tie* should result. in a judgment for the defendant. But in this case there is no proper plaintiff and no proper- defendant. Nobody sued anybody for anything. ■ Rather, under the rules of this Court prior to 1981, "the Territorial Registrar simply bundles up the file, forward(s) it to the court and somehow the case is tried.* Trial Court Decision, page 1. The Tuia family was designated "plaintiff" because it attempted to register the land; the Salave'a family was designated "defendant" because it objected. Anyone who objected to a registration of land would have been designated a "defendant" under the then-*3prevailing rules, no matter how weak his title and without any requirement that he ever have occupied or cultivated any part of the land. Under these circumstances it makes no sense for the "defendant" to be declared the legal owner of the land with the right to register its title on the sole ground that the "plaintiff" did not succeed in establishing its own title. Accordingly, the action should be dismissed without prejudice to the rights of either party.
The Court recognises that this order might result eventually in yet another trial of the case, albeit perhaps a trial in which there? would be "legally cognisable pleadings which at least define the issues." Decision, page 1. It is hoped, however, that the order will instead facilitate the Court's earlier suggestion that "the two senior matais should get together and try to dispose of this matter Fa'a Samoa." Decision, page 2. In the meantime, the Court's 1978 order restraining both families from damaging each other's crops or committing any other acts that will cause strife or problems between the two families remains in force*.
Order giving judgme*nt for the Defendant vacated. Action dismissed without prejudice. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484963/ | JUDGMENT
The above case came on to be heard before the High Court, with Judges Foxall, Lutu and Pele sitting, at Leone, Tutuila, American Samoa on Thursday, March 21, 1929, at 10:00 o’clock A.M.
The court expressed its desire to have the people directly concerned in any case, amicably agree upon its disposition where possible, citing the results obtained along these lines in Manua.
*418The court then inquired as to whether the parties to the litigation were willing to consider the case before the court, with a view to agreeing between themselves as to its disposition, if they had not already done so.
Both sides agreed to retire and discuss their differences and report back to the court at 2:00 P.M. that afternoon.
Upon the convening of the court at 2:00 P.M. both parties stated that they had agreed between themselves as to what was proper to be done. They desired the case to be dismissed and stated to the court that upon the completion of a few family arrangements, which they had already agreed upon, the land would again be offered for registration without objection.
It is therefore adjudged and decreed, upon the motion of the parties hereto, that the above case be dismissed, and it is therefore so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484964/ | JUDGMENT
The above case came on to be heard before the High Court, with Judges Foxall, Lutu and Pele sitting, at Leone, *419Tutuila, American Samoa at 10:00 A.M. of March 21, 1929.
The court inquired as to whether or not the parties to the controversy had been able to reach an agreement as to who should hold the Matai Name “Pule.”
Pule, representing Fafitoga and Tuifao, acting as his own counsel, both requested the court to dismiss the case without decision.
It is therefore adjudged and decreed that the within case, to determine the right of Lafitoga to register the Matai Name “Pule,” be dismissed and it is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484965/ | JUDGMENT
The above case came on to be heard before the High Court with Judges Foxall, Lutu and Pele sitting, at Ili’ili, Tutuila, American Samoa, at 10:30 A.M. of May 23, 1929.
The Court inquired as to whether or not the parties to the controversy had been able to reach an agreement as to who should hold the Matai Name “Lepule”.
*420Melei, representing himself and Panga, and Molimale, representing himself, both requested the Court to dismiss the case without decision.
It is therefore adjudged and decreed that the within case, to determine the right of Molimala of Taputimu to register the Matai Name “Lepule,” be dismissed, and it is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484966/ | JUDGMENT
The above case came on to be heard before the High Court with Judges Foxall, Lutu and Pele, sitting at Ili’ili, Tutuila, American Samoa, at 10:30 A. M. of May 23, 1929.
The Court inquired as to whether or not the parties to the controversy had been able to reach an agreement as to who should hold the Matai Name “Alaia.”
Magalei, representing Uele, and Vei, representing Mai-lei, both requested the Court to dismiss the case without decision.
It is therefore adjudged and decreed that the within case, *421to determine the right of Mailei of Vaitogi to register Matai Name “Alaia” be dismissed, and it is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484967/ | DECISION
And now, to wit, this 6th day of February A. D. 1930, all the testimony in the above case having been carefully considered, the Court is of the opinion
That Levu Taliililagi never had the full pule and authority of the family and land of the Levu;
That in any event he would have no right to give land which is the Tulaga Maota or residence of the Matai to anyone;
That probably the only reason Futi was suffered to occupy and use the land in question was because he was using the name Tagata, a name of the Levu family.
*422The decision of the Court therefore is, that the pule and authority of the land in question (viz: That portion of “FALE MALAMA” covered by the survey which extends from the center of the road running through the village of Nu’uuli and extending in a northwesterly direction, being that portion shown by said survey lying on the landward side of said road), is in the Matai Name Levu,
That said land be registered in the name of Levu,
That the Court costs be assessed at $75.00, payable as follows:
$60.00 by Levu Fuatau
$15.00 by Futi. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484968/ | *423OPINION AND DECREE
The both parties to this proceeding came before the Court and agreed that the Court should take testimony and determine as to whether or not the land “AUTA-PINF was ever properly registered in the name of either Patea or Tui-Poi.
After a careful consideration of all the testimony and the records concerning the registration of this land it appears
That the land was offered for registration by Patea on March 10,1924 ;
That a notice of said offer was duly posted at the Administration Building according to practice;
That prior to the expiration of the sixty (60) day period, during which period everyone is given the opportunity to file objections to the registration, Tui-Poi came to the Registrar of Titles and made objection to the registration of the land by Patea;
That Patea agreed that the land should be registered in the name of Tui-Poi
That he accordingly registered the land in the name of Tui-Poi;
That the notice that the land had been offered for registration in the name of Tui-Poi was never posted;
That the registration of the land in the name of Patea was improper because of the objection of Tui-Poi and the agreement of Patea, and further because the matter of the objection should have either been withdrawn by Tui-Poi or the High Court should have heard the case and determined the real ownership.
And now, therefore, this 12th day of February, A.D. 1930, it is decreed that the registration, now appearing in the books of the Registrar of Titles, of the land “AUTA-PINF in the name of Tui-Poi be, and it is hereby decreed null and void; it is further decreed that the land be posted *424for the usual 60 day period as offered by the heirs of Patea for registration in the name of Patea, and that Tui-Poi may file formal objections to said registration if he so desires, and the usual procedure for registration of lands be otherwise followed in this case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484969/ | DECISION
This case has been heard by the High Court to determine the title to the land Malaesa situated in Tualatai County. *425Afoa a chief of Taputimu has filed a survey of the land for registration and Satele the County Chief of Tualatai has filed an objection to the registration of the land in the name of Afoa as Chief.
Where the question of ownership of land is in dispute and there is no written record or paper showing a positive title the best evidence of ownership is the answer to the question who has been using the land in dispute for the past twenty years or more under a claim of right and without objection by other parties.
Afoa is a man about fifty years old and has held the matai name Afoa for about twenty-two years. It is his testimony and that of his witnesses that he has used this land as his own not only for the past twenty-two years but that as a boy it was used by his predecessors and planted in taro, coconuts, etc. Two descendants of two previous holders of the name Afoa also testified that during their lives and memory — and they were both well along in years — that the land in question was used exclusively by the Afoa family under a claim of right without objection from Satele. Satele testified that the land belonged to the Satele family and that a former holder of the name assigned the land to an Afoa to use but did not give him the title which was retained by Satele. Satele also testified that the Afoa family owned no lands of their own, that the several lands used by them are all the property of Satele.
It appears that all the copra on the land in question had been cut in the name of Afoa for many years and that the present holder of the name Afoa has been one of the largest producers of copra in Tualatai County. No claim to the surplus copra checks issued by the Government has ever been made by Satele. These checks have been paid to Afoa without question.
Witnesses for Satele were as positive as were Afoa’s witnesses that the land in question was merely assigned to *426Afoa by Satele and that the title is still in Satele, but actions speak louder than words and in the absence of written records of title the court must look at conditions as they exist and have existed and these conditions do not support the idea that the Afoa family have no lands except through the kindness of Satele or that the Afoa family should have worked the land in question for over twenty years at least and taken all the fruit and profits therefrom without objection from Satele unless the land actually belonged to the Afoa family.
Satele and Afoa are members of a large family. Afoa claims the right as matua to name Satele and Satele claims the right to name Afoa. This question will not be decided in this case but it is evident that the mutual obligations of the two families and their rights and interests in the land have become confused during the passage of many years. It is regretted that a settlement of this case could not have been made out of court. Every opportunity was given the parties to get together for a settlement but after two adjournments of the case for this purpose the parties reported their inability to come together for this purpose. It was stated in court that Afoa if successful in this case intended to sell the land in question. It is a bad thing for Samoans to sell their land whether to another Samoan or a half-caste or a white man, as the Samoan lands are the chief support of a Samoan family. Afoa must have the consent of the members of the Afoa family before he sells this property and the sale must be approved by the proper authorities of the Government.
JUDGMENT FOR AFOA holding that the title of the land Malaesa is in him as the matai of the Afoa family. Costs of $35.00 to be paid by Satele. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487021/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re HENRY HAWKINS MEMORIAL FAMILY
EDUCATIONAL TRUST.
SIERRA JEFFERSON and AMINAH JOHNSON- UNPUBLISHED
JEFFERSON, November 17, 2022
Appellants,
v No. 359029
Washtenaw Probate Court
CHANA HAWKINS and KAROLYN SCOTT, LC No. 21-000643-TT
Trustees of the HENRY HAWKINS MEMORIAL
FAMILY EDUCATIONAL TRUST,
Appellees.
Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Appellants, Sierra Jefferson and Aminah Johnson-Jefferson, appeal by right the trial court’s
order of instructions terminating the Henry Hawkins Memorial Family Educational Trust and
denying appellants’ request for accounting. Because we conclude that the trial court erred when
it determined that appellants were not entitled to an accounting, we reverse the portion of the order
denying that request and remand with instructions to the trial court to enter an order directing the
trustees to provide an accounting that complies with the requirements of MCL 700.7814(3).
I. BASIC FACTS AND PROCEDURAL HISTORY
On February 2, 1995, Henry Hawkins executed a will in which he established the Henry
Hawkins Memorial Family Educational Trust Fund (the “Trust”). The Trust was funded with
$100,000 from Hawkins’s estate and was for the use and benefit of lineal descendants of three of
his family members. The money from the Trust was to be used “for the purpose of giving financial
assistance to qualified lineal descendants who wish to obtain a post-high school education, either
at a trade or technic[a]l school, a two year college, a four year college or university, or a graduate
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or professional school.” The Trust afforded the trustees with broad discretion to administer the
funds, including to whom the funds would be awarded, how much, and when.
Hawkins died sometime in 2001, and by its own terms, the Trust was to terminate 20 years
after his death. Accordingly, on June 9, 2021, appellees Chana Hawkins and Karolyn Scott, two
of the Trust’s three trustees, petitioned the trial court for instructions relative to termination of the
Trust and distribution of its residue. Although appellants, who were applicants for financial
assistance during the life of the Trust,1 did not object to the termination of the Trust, they petitioned
the court for a full accounting of the Trust’s funds, claiming such accounting was never received
during the life of the Trust. Concluding appellants were “qualified trust applicants” but not
“qualified trust beneficiaries,” the trial court denied the request. This appeal followed.
II. STANDARDS OF REVIEW
This Court reviews de novo the trial court’s interpretation of a trust. In re Theodora
Nickels Herbert Trust, 303 Mich App 456, 458; 844 NW2d 163 (2013). The Court also reviews
de novo issues of statutory interpretation. In re Estate of Koch, 322 Mich App 383, 392; 912
NW2d 205 (2017). A trial court’s findings of fact are reviewed for clear error. In re Filibeck
Estate, 305 Mich App 550, 553; 853 NW2d 448 (2014). “Clear error occurs when this Court is
left with the definite and firm conviction that a mistake has been made.” Skaates v Kayser, 333
Mich App 61, 81-82; 959 NW2d 33 (2020) (quotation marks and citation omitted).
III. DISCUSSION
The Court’s goal when interpreting a statute is to give effect to the intent of the Legislature.
In re Estate of Koch, 322 Mich App at 392. “If the statutory language is unambiguous, this Court
must enforce the statute as written.” Id. at 393. “The provisions in EPIC must be liberally
construed and applied to promote its underlying purposes and policies, including to discover and
make effective a decedent’s intent in distribution of the decedent’s property[.]” In re Estate of
Horton, 325 Mich App 325, 330; 925 NW2d 207 (2018) (quotation marks and citations omitted).
Under MCL 700.7814(1), a trustee is required to “keep the qualified trust beneficiaries
reasonably informed about the administration of the trust and of the material facts necessary for
them to protect their interests.” Unless the request is “unreasonable under the circumstances, a
trustee shall promptly respond to a trust beneficiary’s request for information related to the
administration of the trust.” Id. In addition, the statute requires that:
A trustee shall send to the distributees or permissible distributees of trust
income or principal, and to other qualified or nonqualified trust beneficiaries who
request it, at least annually and at the termination of the trust, a report of the trust
property, liabilities, receipts, and disbursements, including the source and amount
of the trustee’s compensation, a listing of the trust property and, if feasible, their
respective market values, and, if applicable, any disclosure required under section
7802(5). In the trustee’s discretion, the trustee may provide the report to any trust
1
In addition to being an applicant, Sierra Jefferson was awarded funds from the Trust in 2018.
-2-
beneficiary. Upon a vacancy in a trusteeship, unless a cotrustee remains in office,
a report shall be sent to the qualified trust beneficiaries by the former trustee. A
personal representative, conservator, or guardian may send the qualified trust
beneficiaries a report on behalf of a deceased or incapacitated trustee. [MCL
700.7814(3).]
Thus, under MCL 700.7814, there are four classes of persons that are entitled to some form
of accounting: distributees, permissible distributees, qualified trust beneficiaries, and nonqualified
trust beneficiaries. Distributees and permissible distributees are to receive the information “at least
annually and at the termination of the trust,” while qualified and nonqualified beneficiaries are to
receive it only if they request it.
The term “distributee” is defined by statute:
“Distributee” means a person that receives a decedent’s property from the
decedent’s personal representative or trust property from the trustee other than as a
creditor or purchaser. A trustee of a trust created by will is a distributee only to the
extent that distributed property or an increment of the distributed property remains
in the trustee’s hands. A beneficiary of a trust created by will to whom the trustee
distributes property received from a personal representative is a distributee of the
personal representative. For the purposes of this subdivision, “trustee of a trust
created by will” includes a trustee to whom property is transferred by will to the
extent of the devised property. [MCL 700.1103(o).]
The term “permissible distributee,” however, is not defined by statute. This Court has interpreted
the term to mean “a person who is permitted, not entitled, to receive trust property from the trustee
other than as a creditor or purchaser.” In re Rhea Brody Living Trust (On Remand), 325 Mich App
476, 483; 925 NW2d 921 (2018), vacated in part on other grounds 504 Mich 882 (2019).
In turn, the term “qualified trust beneficiary” is defined under MCL 700.7103(g) as:
a trust beneficiary to whom 1 or more of the following apply on the date the trust
beneficiary’s qualification is determined:
(i) The trust beneficiary is a distributee or permissible distributee of trust
income or principal.
(ii) The trust beneficiary would be a distributee or permissible distributee
of trust income or principal if the interests of the distributees under the trust
described in subparagraph (i) terminated on that date without causing the trust to
terminate.
(iii) The trust beneficiary would be a distributee or permissible distributee
of trust income or principal if the trust terminated on that date.
The term “nonqualified trust beneficiary” is not defined by statute and has not been interpreted by
the Court. Presumably, a nonqualified trust beneficiary would be one who is a trust beneficiary
but does not fall within the three categories listed in MCL 700.7103(g).
-3-
Appellants assert that the trial court erred when it determined that appellants were not
qualified trust beneficiaries and, therefore, not entitled to an accounting of the Trust under MCL
700.7814. In appellants’ view, the trial court misinterpreted the statute when concluding they were
not qualified trust beneficiaries entitled to an accounting. In denying appellants’ request, the court
considered appellants to be “qualified trust applicant[s]” but not “qualified trust beneficiar[ies],”
and made reference to the broad discretion afforded to the trustees, the limitations on the trustees’
civil liability, and the fact that recipients could not object to the award or amount of assistance
provided by the Trust. We agree with appellants that the trial court erred when it concluded they
were not entitled to an accounting.
Sierra Jefferson asked for and received a $3,000 distribution from the Trust in 2018 for use
in her higher education. She also asked for, and may have received, other distributions from the
Trust in 2019. There is no question that Sierra Jefferson was not entitled to these distributions,
thus making her a permissible distributee under MCL 700.7814(3). And as a permissible
distributee, Sierra Jefferson was supposed to receive annually and at the termination of the Trust
“a report of the trust property, liabilities, receipts, and disbursements, including the source and
amount of the trustee’s compensation, a listing of the trust property and, if feasible, their respective
market values, and, if applicable, any disclosure required under section 7802(5).” MCL
700.7814(3).
The record regarding Aminah Johnson-Jefferson is less clear. Appellants assert that she
asked for, and was told she would be given, distributions from the Trust. There does not appear
to be record evidence of this, however. Nevertheless, there does not appear to be any dispute from
appellees that she was otherwise eligible to receive Trust distributions should they be awarded.
Thus, like Sierra Jefferson, Aminah Johnson-Jefferson was permitted, but not entitled to,
distributions from the Trust, making her a permissible distributee under MCL 700.7418.
Both appellants are permissible distributees under the Trust, as well as qualified trust
beneficiaries. First, appellants are “trust beneficiaries” under MCL 700.7103(l)(i) because they
have a contingent present or future beneficial interest in the Trust. See In re Rhea Brody Living
Trust, 325 Mich App at 480 (defining beneficial interest as “[a] right or expectancy in something
(such as a trust or an estate), as opposed to legal title to that thing.”). Appellants’ interest was
contingent, and not vested, because their request for assistance had to be approved by the trustees.
Moreover, as explained above, appellants are permissible distributees under MCL 700.7814(3),
thus making them qualified trust beneficiaries under MCL 700.7103(g)(i).
As qualified trust beneficiaries and permissible distributees of the Trust, appellants were
entitled to receive “a report of the trust property, liabilities, receipts, and disbursements, including
the source and amount of the trustee’s compensation, a listing of the trust property and, if feasible,
their respective market values . . . .” MCL 700.7814(3). Although appellants received some
documentation of the Trust in the form of bank records, there is no dispute that appellants did not
receive, at minimum, the “disbursements” made by the trustees to other financial-assistance
applicants. Therefore, we reverse the portion of the trial court’s order that denied appellants’
request for an accounting and remand for entry of an order directing the trustees to provide an
accounting that complies with the requirements of MCL 700.7814(3).
-4-
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Appellants, as the prevailing parties, may tax costs. MCR 7.219(A).
/s/ Noah P. Hood
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
-5- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487059/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 01:08 AM CST
- 381 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
In re Margaret L. Matthews Revocable Trust.
Wells Fargo Bank, N.A., as Trustee of the Margaret L.
Matthews Revocable Trust, appellee, v. Salvation
Army and Visiting Nurse Association of the
Midlands, doing business as Visiting Nurse
Association, appellees, and Nebraska Synod
of the Evangelical Lutheran Church in
America, substituted for Pella Evangelical
Lutheran Church, appellant.
___ N.W.2d ___
Filed September 9, 2022. No. S-21-507.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an
appellate court reviews trust administration matters for error appear-
ing on the record; but where an equity question is presented, appellate
review of that issue is de novo on the record.
2. Declaratory Judgments. Whether an action for declaratory judgment is
to be treated as one at law or one in equity is to be determined by the
nature of the dispute. The test is whether, in the absence of the prayer
for declaratory judgment, the issues presented should properly be dis-
posed of in an equitable action, as opposed to a legal action.
3. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions concerning the matters at issue.
However, the court may give weight to the fact that the trial court heard
and observed the witnesses and their manner of testifying, and accepted
one version of the facts rather than the other.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is an appellate court’s duty to determine whether it
has jurisdiction to decide the issues presented.
5. ____: ____. Where a lower court lacks subject matter jurisdiction to
adjudicate the merits of a claim, issue, or question, an appellate court
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
6. Trusts: Declaratory Judgments. Nebraska’s declaratory judgment stat-
utes allow trustees and persons interested in the administration of a trust
to seek a declaration regarding any question arising in the administration
of a trust.
7. Trusts. A trustee or beneficiary may apply to an appropriate court for
instructions regarding the administration or distribution of the trust if
there is reasonable doubt about the powers or duties of the trusteeship
or about the proper interpretation of the trust provisions.
8. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final judgment or
final order entered by the tribunal from which the appeal is taken.
9. Final Orders: Words and Phrases. To be final, an order must dispose
of the whole merits of the case. When no further action of the court is
required to dispose of a pending cause, the order is final.
10. Declaratory Judgments: Parties. When declaratory relief is sought,
it is a statutory requirement that all persons shall be made parties who
have or claim any interest which would be affected by the declaration,
and no declaration shall prejudice the rights of persons not parties to
the proceeding.
11. Trusts: Courts: Jurisdiction. The act of registering a trust gives the
county court jurisdiction over the interests of all notified beneficiaries to
decide issues related to any matter involving the trust’s administration,
including a request for instructions or an action to declare rights.
12. Trusts: Words and Phrases. The term “beneficiary” includes per-
sons with a present or future beneficial interest in a trust, vested or
contingent.
13. Trusts: Intent. The primary rule of construction for trusts is that a court
must, if possible, ascertain the intention of the testator or creator.
14. Corporations: Charities. A gift, donation, or bequest by name, without
further restriction or limitation as to use, to a corporation organized and
conducted solely for charitable purposes, will be deemed to have been
made for the objects and purposes for which the corporation was orga-
nized, and not to the corporation itself.
15. Charities: Intent. The charitable intent of the donor is ascertained by
reference to the charitable purposes of the donee.
Appeal from the County Court for Douglas County: Derek
R. Vaughn, Judge. Affirmed.
William J. Lindsay, Jr., and Zachary W. Lutz-Priefert, of
Gross & Welch, P.C., L.L.O., for appellant.
- 383 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
Krista M. Eckhoff, Jesse D. Sitz, and Brian Barmettler, of
Baird Holm, L.L.P., for the Salvation Army and the Visiting
Nurse Association of the Midlands.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Stecker, D.J.
Heavican, C.J.
The late Margaret L. Matthews established and amended
a revocable trust prior to her death wherein she made three
bequests: one each to the Salvation Army and the Visiting Nurse
Association of the Midlands, doing business as Visiting Nurse
Association (VNA), appellees, and one to Pella Evangelical
Lutheran Church (Pella). As amended, each bequest encom-
passed the named beneficiary, as well as its charitable succes-
sors and assigns. Prior to Matthews’ death, Pella had ceased
to exist. Wells Fargo Bank, N.A. (Wells Fargo), as trustee of
the trust, filed a petition for declaratory judgment concern-
ing Pella’s existence. The Nebraska Synod (Synod) of the
Evangelical Lutheran Church in America (ELCA), appellant,
a conglomerate of churches to which Pella belonged prior to
cessation, was allowed to intervene and asserted that it was
entitled to Pella’s share of the trust property.
After trial, the Douglas County Court determined that the
Synod was not Pella’s charitable successor and assign, and it
ordered that Pella’s share be distributed pro rata to the Salvation
Army and the VNA, the remaining named beneficiaries, pursu-
ant to the terms of the trust. The county court accordingly
denied the Synod’s complaint in intervention. We affirm.
I. FACTUAL BACKGROUND
In 2006, Matthews established a revocable trust. Pursuant to
the trust, and upon her death, property was to be distributed to
a number of charitable organizations. Wells Fargo was selected
to serve as trustee.
The provisions located within article VIII of the trust pro-
vided for the following distribution of trust property: “(a)
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
One-half (1/2) to the SALVATION ARMY, WESTERN
DIVISION, Omaha, Nebraska; (b) One-sixth (1/6) to the
BETHESDA LUTHERAN HOME FOUNDATION, INC.,
Watertown, Wisconsin; (c) One-sixth (1/6) to the VISITING
NURSE ASSOCIATION, Omaha, Nebraska; and (d) One-
sixth (1/6) to the PELLA LUTHERAN CHURCH, Omaha,
Nebraska.” (Emphasis omitted.) The trust also provided that in
the event any of the beneficiaries did not exist at the time of
Matthews’ death or was no longer a charity, the bequest would
instead be allocated to the remaining existing and qualified
charities, pro rata.
In 2010, Matthews amended her trust, modifying only article
VIII. Through this amendment, Matthews removed Bethesda
Lutheran Home Foundation, Inc., as a beneficiary, reallocated
shares of trust property, and added the language “its chari-
table successors and assigns” to each charitable beneficiary
as follows: “(a) One-half (1/2) to the SALVATION ARMY,
WESTERN DIVISION, Omaha, Nebraska, its charitable suc-
cessors and assigns; (b) One-fourth (1/4) to the VISITING
NURSE ASSOCIATION, Omaha, Nebraska, its charitable
successors and assigns; and (c) One-fourth (1/4) to the PELLA
LUTHERAN CHURCH, Omaha, Nebraska, its charitable suc-
cessors and assigns.” (Emphasis omitted.)
After Matthews’ death in January 2018, Wells Fargo, serv-
ing as trustee, registered the trust with the court and filed a
petition for declaratory judgment. Wells Fargo sought a dec-
laration concerning distribution of trust property pursuant to
the terms of the trust as it pertained to Pella. After receiving
notice of the declaratory judgment action, the Synod filed
a motion to intervene, asserting that it was the proper and
lawful successor of Pella and that, as such, it was entitled to
Pella’s share of trust property. The Salvation Army and the
VNA resisted this claim, arguing that Pella had no charitable
successors or assigns and, as a result, that Pella’s share should
be distributed between the two pro rata, pursuant to the terms
of the trust.
- 385 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
On December 28, 2018, the county court authorized inter-
vention and permitted the Synod to align as a defendant. A trial
was held on the matter in April 2021 to determine whether the
Synod was Pella’s charitable successor and assign. The follow-
ing evidence was introduced at trial.
Pella was a local Lutheran congregation in Omaha, Nebraska,
whose activities were overseen by the Synod, a regional
governing body within the ELCA. The Synod oversees 200-
plus Lutheran congregations in Nebraska that together with
the other regional synods across the nation, make up the
national ELCA.
Although incorporating under state law was not a require-
ment of the ELCA, Pella was organized as a corporation
under Nebraska law and was governed in part by its articles
of incorporation. As a member of the Synod and the ELCA,
Pella was also subject to, and governed by, the ELCA’s model
constitution in addition to its own local constitution. Whenever
required provisions are updated or added to the model constitu-
tion by the ELCA, those provisions are automatically deemed
to be implemented as part of all local constitutions in effect,
even where local constitutions do not make any changes. The
model constitution in effect at the time Pella dissolved indi-
cated that Pella’s affiliation with the ELCA could be terminated
if the congregation took action to dissolve, ceased to exist, was
removed from membership in the ELCA according to internal
discipline procedures, or followed internal procedures other-
wise set forth in the model constitution. If the congregation
ceased to exist, title to any undisposed property would pass to
the Synod.
In 2012, the Synod assigned the Reverend Juliet Focken to
assist Pella in its search for a part-time minister after it had
become clear that Pella could not support a full-time minis-
ter. In 2013 and 2014, Focken held numerous meetings with
Pella’s council members to suggest and work through their
options moving forward. Some of these options included the
continued use of a part-time minister, the merger with another
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congregation of the Synod, or dissolution. As a result of wan-
ing membership and other financial and pastoral concerns,
Pella ultimately made the decision to dissolve and cease wor-
ship services. The Synod again assigned Focken to oversee and
assist Pella in this process, and it provided guidance to Pella
regarding specific steps for dissolution.
Members of Pella were provided notice of a dissolution
meeting; however, the notice did not feature a dissolution plan
and did not indicate who received copies of this notice. At the
meeting, no record was made to show that the requisite number
of voting members were in attendance, nor that the requisite
number of members voted in favor of dissolution. Matthews
herself did not receive such notice, but Pella’s then-pastor
testified that Matthews did not receive a letter because of her
mental state and that Matthews would not have understood its
contents even if she had received a copy.
As part of the dissolution process, Pella evaluated its real
and personal property and Focken compiled a list of Pella’s
assets, which were transferred to fellow congregations or given
away to church members. In March 2014, nearly 4 years prior
to Matthews’ death, Pella held its last worship service. Any
property or assets that remained at that time were transferred to
the Synod through warranty deeds, including Pella’s building.
Focken then transferred Pella’s members to other congrega-
tions; some members voluntarily transferred, and others, such
as Matthews, were administratively transferred to a receiving
congregation at Augustana Lutheran Church (Augustana) in
Omaha. The remaining assets that had been transferred to the
Synod were sold or disposed of shortly thereafter, including
transfers of property to other congregations across Nebraska.
Pella’s building was sold that same month.
Brian Maas, the bishop and administrative leader of the
Synod, testified to the hallmarks that indicate the existence of
a congregation: It gathers regularly for worship, is served by
a ministry leader, has an active identification number within
the ELCA, and is recognized by the Synod and internally as
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a congregation. According to Maas, even if there was never a
formal vote to dissolve Pella, the fact that Pella lacked all of
the hallmarks of a congregation meant that “within the eyes”
of the Synod Pella had “ceased to exist.” Maas also testified
that after Pella closed, all of the usual hallmarks of a closure
had occurred. The Synod had given notification to its council;
distributed assets (including the church building, the parson-
age, and some financial accounts); and archived all the records
it had for Pella.
Maas discussed the nature of individual churches which
were also corporate entities. Maas stated that a congregation’s
existence as a church was not contingent or dependent upon
the entity’s corporate structure and that there are congregations
within the Synod which are not formally incorporated. The
Synod does not formally require congregations to dissolve with
the Secretary of State’s office. A congregation which lacked
the requisite hallmarks would be deemed to no longer exist
regardless of whether it was still incorporated under the laws
of its home state, and, alternatively, congregations which had
all the hallmarks of existence would be deemed to exist even
if that congregation was not incorporated under the laws of its
home state.
The VNA vice president of development and communica-
tions, along with a Salvation Army major, who was also a
minister and divisional secretary of business for the Salvation
Army’s division located in Iowa, Nebraska, and South Dakota,
both testified for appellees. The VNA vice president detailed
the long-term relationship between the VNA and Matthews,
including that the VNA had cared for Matthews’ husband in
its hospice services and that a number of its hospice nurses
had established close personal relationships with Matthews
that lasted long after care for her husband had ceased. The
Salvation Army major detailed a similar relationship between
Matthews and the Salvation Army. According to the major,
Matthews provided the Salvation Army with over 70 gifts
during her lifetime, amounting to over $125,000 in support
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Cite as 312 Neb. 381
for its charitable mission. Matthews was often in attendance
at special events hosted by the Salvation Army, and some
of its employees developed close personal relationships with
Matthews that included visits to Matthews’ home on a regular
basis to watch movies and spend time with Matthews.
After considering the evidence, the county court concluded
that the Synod failed to prove that it was Pella’s charitable
successor and assign, as such terms were used in the trust.
The county court found that (1) Pella had failed to properly
dissolve according to the Nebraska Nonprofit Corporation
Act (NNCA) and its own internal governance documents, (2)
Pella did not establish any separate foundation or charitable
entity to remain associated with the ELCA following dissolu-
tion, (3) the Synod did not support the charitable functions
of Pella in the same manner as Pella had prior to its dissolu-
tion, and (4) Matthews had not intended to make a distribu-
tion to the Synod. Accordingly, the county court denied the
Synod’s complaint in intervention and ordered that Pella’s
share of the trust be distributed to appellees pro rata pursu-
ant to the alternative distribution provisions of the trust. The
Synod appealed.
II. ASSIGNMENTS OF ERROR
The Synod assigns that the county court erred in (1) con-
cluding that the Synod was not an appropriate successor to
Pella, (2) concluding that the Synod was not entitled to receipt
of Pella’s share of Matthews’ assets and that such assets should
not have been distributed to the Synod, (3) finding that Pella
failed to follow its own requirements for dissolution, (4) mak-
ing a resolution of a doctrinal dispute, and (5) failing to prop-
erly follow the religious associations statutes.
III. STANDARD OF REVIEW
We begin by clarifying our standard of review. Beginning
in 1982 with In re Zoellner Trust, 1 this court stated that all
1
In re Zoellner Trust, 212 Neb. 674, 678, 325 N.W.2d 138, 141 (1982).
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
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“[a]ppeals involving the administration of a trust are equity
matters and are reviewable in this court de novo on the record.”
A de novo on the record standard was thereafter applied to most
appeals involving trust administration issues. However, an
error on the record standard has also been utilized in a smaller
number of appeals regarding trust administration issues. We
recognized both standards of review in In re R.B. Plummer
Memorial Loan Fund Trust 2 and focused on the specific issues
presented to determine whether de novo review applied.
[1] In In re Margaret Mastny Revocable Trust, 3 we con-
cluded that this issue-specific approach was preferable and
more consistent with our standard for appellate review under
the Nebraska Probate Code. Accordingly, we held that “absent
an equity question, an appellate court reviews trust administra-
tion matters for error appearing on the record; but where an
equity question is presented, appellate review of that issue is
de novo on the record.” 4
[2] Pursuant to these holdings, whether this court reviews
the issues de novo on the record or for error on the record
requires examination of the issue underlying the claim. While
this case began as a declaratory judgment action, similar to a
trust administration issue, we have held that whether an action
for declaratory judgment is to be treated as one at law or one
in equity is to be determined by the nature of the dispute. 5 The
test is whether, in the absence of the prayer for declaratory
judgment, the issues presented should properly be disposed of
in an equitable action, as opposed to a legal action. 6
2
In re R.B. Plummer Memorial Loan Fund Trust, 266 Neb. 1, 661 N.W.2d
307 (2003).
3
In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 700
(2011).
4
Id. at 198, 794 N.W.2d at 710.
5
See Homestead Estates Homeowners Assn. v. Jones, 278 Neb. 149, 768
N.W.2d 436 (2009).
6
Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994).
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
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Utilizing that test in the present case, the issues resemble
injunctive relief, an equitable remedy. The purpose of an
injunction is to restrain actions that have not yet been taken. 7
Similarly, the Synod has requested, through its complaint in
intervention and answer to Wells Fargo’s petition, that the
court find the Synod to be Pella’s charitable successor and
assign, and the Synod asks the court to order Wells Fargo to
either do or refrain from doing a specified act, i.e., to distrib-
ute Pella’s share to the Synod rather than to the other named
beneficiaries.
[3] Accordingly, we review this case de novo on the record. 8
In a review de novo on the record, an appellate court reap-
praises the evidence as presented by the record and reaches its
own independent conclusions concerning the matters at issue. 9
However, the court may give weight to the fact that the trial
court heard and observed the witnesses and their manner of
testifying, and accepted one version of the facts rather than
the other. 10
IV. ANALYSIS
1. Jurisdiction
[4] Before reaching the legal issues presented for review, it
is our duty to determine whether we have jurisdiction to decide
them. 11 This case presents multiple jurisdictional questions, so
we find it necessary to exercise that duty here.
(a) Subject Matter Jurisdiction
of County Court
[5] Where a lower court lacks subject matter jurisdiction
to adjudicate the merits of a claim, issue, or question, an
7
Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).
8
See In re Margaret Mastny Revocable Trust, supra note 3.
9
Id.
10
Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).
11
Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (2019).
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appellate court also lacks the power to determine the merits
of the claim, issue, or question presented to the lower court. 12
Thus, we begin with a review of the county court’s jurisdiction
in this matter.
According to Neb. Rev. Stat. § 30-3814(a) (Reissue 2016),
to the full extent permitted by the Nebraska Constitution, the
county court has jurisdiction over all subject matter relating to
trusts. Neb. Rev. Stat. § 30-3819 (Reissue 2016) states that by
registering a trust or accepting the trusteeship of a trust, the
trustee submits to the jurisdiction of the court of registration
in any proceeding under Neb. Rev. Stat. § 30-3812 (Reissue
2016). Section 30-3812(c) specifically states that a judicial
proceeding involving a trust may relate to any matter involving
the trust’s administration, including a request for instructions
and an action to declare rights.
[6,7] We have said that Nebraska’s declaratory judgment
statutes allow trustees and persons interested in the admin-
istration of a trust to seek a declaration regarding any ques-
tion arising in the administration of a trust. 13 A trustee or
beneficiary may apply to an appropriate court for instruc-
tions regarding the administration or distribution of the trust
if there is reasonable doubt about the powers or duties of
the trusteeship or about the proper interpretation of the trust
provisions. 14
Wells Fargo requested that the county court declare that
Pella did not exist, declare that Pella was not a beneficiary,
and order Wells Fargo to distribute the trust’s assets to the
Salvation Army and to the VNA. Wells Fargo also requested
that the county court find that such actions would not vio-
late Wells Fargo’s duties as trustee and to find that the trust
shall terminate upon payment of expenses, taxes, and dis-
tribution of remaining trust assets. Essentially, Wells Fargo
12
See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
13
In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).
14
Id.
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
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requested that the county court instruct it, as trustee, on its
duties and powers related to payment of charitable bequests
within Matthews’ trust. This action is thus authorized pursu-
ant to §§ 30-3812(c), 30-3814(a), and 30-3819, as well as
the Nebraska Uniform Declaratory Judgments Act, 15 and the
county court had jurisdiction to adjudicate Wells Fargo’s peti-
tion for declaratory judgment.
(b) Appellate Jurisdiction
[8,9] For an appellate court to acquire jurisdiction of an
appeal, there must be a final judgment or final order entered by
the tribunal from which the appeal is taken. 16 To be final, an
order must dispose of the whole merits of the case. When no
further action of the court is required to dispose of a pending
cause, the order is final. 17
In this case, Wells Fargo registered the Matthews trust and
filed a petition with the court seeking a declaratory judgment
regarding distribution of trust funds. Wells Fargo requested
that the county court declare that Pella either did not exist or
was not a charity at the time of Matthews’ death, declare that
Pella was not entitled to a share of trust assets, and order Wells
Fargo to distribute the trust’s assets to the Salvation Army and
to the VNA.
After hearing from Wells Fargo and from the Synod, the
county court entered an order denying the Synod’s com-
plaint in intervention. It held that pursuant to the terms of
the trust, “Pella[’s] share of the Trust shall be distributed pro
rata to the Salvation Army and [the VNA].” The order also
stated that any additional motions or matters pending that
were not decided in accordance with the order were denied
as moot. This order disposed of the whole merits of the case
by granting the relief sought by Wells Fargo in its petition
15
Neb. Rev. Stat. § 25-21,149 et seq. (Reissue 2016).
16
In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).
17
Olsen v. Olsen, 248 Neb. 393, 534 N.W.2d 762 (1995).
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
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for declaratory judgment. Pursuant to this order, Wells Fargo
would have the authority to disburse funds to the Salvation
Army and to the VNA, and there were no remaining issues
which would require further action by the court. Accordingly,
this was a final, appealable order.
(c) Notice to Augustana
In its petition for declaratory judgment, Wells Fargo named
the three charitable beneficiaries listed in the trust—the
Salvation Army, the VNA, and Pella—but did not name either
the Synod or Augustana. The record indicates that the Synod
and Augustana each obtained property, assets, or congregation
members from Pella when it dissolved, and this raises a ques-
tion of whether either entity is a necessary party to this action.
While the Synod intervened in the matter, Augustana did not
intervene and took no action in this case. Thus, we must con-
sider whether Augustana’s absence deprived the county court,
and this court, of jurisdiction over this matter.
[10] When declaratory relief is sought, we have said that it
is a statutory requirement that all persons shall be made par-
ties who have or claim any interest which would be affected
by the declaration, and no declaration shall prejudice the
rights of persons not parties to the proceeding. 18 However, the
declaratory relief sought by Wells Fargo in this case relates to
its duties as trustee, and thus, in addition to our rules regard-
ing declaratory judgments, it also implicates the Nebraska
Uniform Trust Code.
By registering a trust, the trustee submits personally to
the jurisdiction of the court of registration in any proceeding
under § 30-3812 relating to the trust while the trust remains
registered, and to the extent of their interests in the trust, all
beneficiaries of a trust properly registered in this state are
subject to the jurisdiction of the court of registration for the
purposes of proceedings under § 30-3812, provided notice is
18
SID No. 2 of Knox Cty. v. Fischer, 308 Neb. 791, 957 N.W.2d 154 (2021).
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given pursuant to Neb. Rev. Stat. § 30-2220 (Reissue 2016). 19
Section 30-2220(a)(2) states that notice by publication can be
accomplished by publishing at least once a week for three con-
secutive weeks a copy thereof in a legal newspaper having gen-
eral circulation in the county where the hearing is to be held,
the last publication of which is to be at least 3 days before the
time set for the hearing.
After Matthews’ death in January 2018, Wells Fargo regis-
tered Matthews’ trust with the Douglas County Court on July
16. In September, Wells Fargo filed a petition for declara-
tory judgment regarding the distribution of a trust under the
Nebraska Uniform Trust Code and the Nebraska Uniform
Declaratory Judgments Act. 20 The county court set a hearing
date for November 5. A notice of the hearing was forwarded
by the court registrar to The Daily Record, a legal newspaper,
with instructions for publication of the notice as required
by statute. 21
Wells Fargo thereafter filed an affidavit of mailing in accord
ance with statute, 22 affirming to the court that notice of the
proceeding was first published in Douglas County, Nebraska,
and that on September 20, 2018, Wells Fargo sent copies of
the notice of hearing and petition for declaratory judgment
by certified mail to 26 parties. Of the 26 notices mailed, 12
were directed to the registered agent and former directors
of Pella, 2 were directed to the Salvation Army’s registered
agent and legal department, 1 was directed to the Nebraska
Attorney General, and 11 were directed to the registered
agent and directors of Augustana. As a result of this notice,
the Synod sought, and was allowed, to intervene in the action
and align as a defendant. A copy of the Synod’s complaint in
19
See § 30-3819(a) and (b).
20
See §§ 30-3812(c), 30-3814(a), 30-3819, and 25-21,149 et seq.
21
§ 30-2220(a)(2).
22
§ 30-2220(c) (“[p]roof of the giving of notice shall be made on or before
the hearing and filed in the proceeding”).
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intervention was mailed to all interested parties, including at
least 11 directors of Augustana. Hence, we find that Augustana
was properly notified of these proceedings.
[11,12] We have said that “[t]he act of registering a trust
gives the county court jurisdiction over the interests of all
notified beneficiaries to decide issues related to any matter
involving the trust’s administration, including a request for
instructions or an action to declare rights.” 23 The term “ben-
eficiary” includes persons with a present or future beneficial
interest in a trust, vested or contingent. 24 We have also held
that Nebraska’s declaratory judgment statutes allow trustees
and persons interested in the administration of a trust to seek
a declaration regarding any question arising in the administra-
tion of a trust, including a request for the court to instruct the
trustee of its duties and powers. 25
In this action, the county court had jurisdiction to make a
declaration of rights of the beneficiaries of the trust and to
accordingly instruct Wells Fargo as to the distribution of trust
property. Because Augustana was properly notified of the trust
proceedings, Augustana’s absence did not deprive the county
court of jurisdiction and the county court’s judgment in the
matter is binding on Augustana to the extent of its interests
in the trust. Consequently, this court has jurisdiction over this
claim. We turn now to the merits of the Synod’s claim.
2. Doctrinal Issues
The Synod assigns that the county court erred in making a
resolution of a doctrinal dispute, an issue which underlies each
of the Synod’s arguments. The Synod argues that the deter-
mination of whether Pella had ceased to exist is a doctrinal
matter, which can only be made by the Synod, and that such
23
In re Trust Created by Hansen, supra note 13, 274 Neb. at 206-07, 739
N.W.2d at 177 (emphasis supplied).
24
In re Trust Created by Hansen, supra note 13.
25
Id.
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determination cannot be adjudicated by the court using neutral
principles of law.
The Synod misunderstands this court’s use of neutral prin-
ciples of law to adjudicate disputes involving religious enti-
ties. We have applied the NNCA 26 to assess church closings
and property transfers to affiliate churches and have applied
a neutral principles of law approach to adjudicate disputes
where religious organizations disagree with one another as to
the state of the law or resolution of their dispute.
For example, in Glad Tidings v. Nebraska Dist. Council, 27
this court applied the NNCA to adjudicate an intrachurch
dispute regarding property held by each entity. In Glad
Tidings, a local church wanted to dissolve and a larger
affiliate church ordered that certain property belonging to
the local church must be transferred to the larger affiliate.
The local church sought a declaration that the board of direc-
tors had exceeded its authority in transferring such property
to the larger affiliate. We applied the NNCA and the Model
Business Corporation Act to define the term “transaction”
as it related to the dispute and concluded that no transaction
had occurred between the local and larger church entities.
We did not overstep the authority of each church entity to
decide its own outcomes in regard to doctrinal matters, but
instead looked to the rules governing corporations to resolve
a nondoctrinal question between the entities concerning the
property dispute.
And in Aldrich v. Nelson, 28 this court found that the dis-
trict court had jurisdiction to adjudicate the dispute, even
where the issue presented was an internal church dissolu-
tion dispute between a local Lutheran church and the larger
26
See Neb. Rev. Stat. §§ 21-1901 to 21-19,177 (Reissue 2012 & Cum. Supp.
2020).
27
Glad Tidings v. Nebraska Dist. Council, 273 Neb. 960, 734 N.W.2d 731
(2007).
28
Aldrich v. Nelson, 290 Neb. 167, 859 N.W.2d 537 (2015).
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affiliated synod. We stated the court was allowed to apply neu-
tral principles, defined as “‘secular legal rules whose applica-
tion to religious parties or disputes [do] not entail theological
or religious evaluations,’” in order to determine the outcome
of the issue from a secular, not religious, perspective. 29 Here,
the same is true: The county court was not tasked with deter-
mining the doctrinal question of whether Pella existed with
such hallmarks that it qualified as a congregation within the
ELCA and was subject to the control of the Synod. Instead,
the county court was tasked with analyzing whether Pella’s
methods of dissolution had an impact on whether the Synod
was Pella’s charitable successor and assign and thus entitled to
Pella’s portion of trust property.
The Synod agrees that Pella did not exist at the time of
Matthews’ death. The parties disagree as to whether Pella had
a charitable successor and assign for purposes of the trust. In
order to interpret the meaning of the phrase “charitable suc-
cessors and assigns,” the county court looked to the NNCA to
assess whether Pella, as a nonprofit corporation incorporated
in the State of Nebraska, had dissolved in a manner consistent
with State law such that the specific charitable activities of
Pella would be supported by the Synod moving forward, mak-
ing the Synod a charitable successor and assign of Pella. The
county court did not make a resolution of a doctrinal dispute
in determining the issues of this case. This assignment of error
is without merit.
3. Religious Associations Statutes
After arguing that this issue is a doctrinal matter, the Synod
next argues that the county court erred in analyzing the issues
under the NNCA, asserting that such statutes do not control
the issue of Pella’s existence. The Synod argues that the
county court should have looked to the statutes concerning
29
Id. at 170, 859 N.W.2d at 540.
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religious associations and the vesting of property in religious
entities which have ceased to exist. 30
Contrary to the Synod’s position on this matter, these stat-
utes merely establish a method for church entities to obtain
good title for real and personal property owned by a church
which is abandoned or which ceased to exist. 31 These statutes
might have been applicable if Pella had dissolved without first
transferring its real and personal property to the Synod. But
here, Pella ensured that the Synod was able to obtain good
title and executed warranty deeds for its property to the Synod.
The religious association statutes do not resolve the issue of
whether the Synod was a charitable successor and assign of
Pella such that it is entitled to Pella’s share of the trust. This
assignment of error is without merit.
4. Pella’s Dissolution
Next, the Synod argues that the county court erred in finding
that Pella failed to follow its own requirements for dissolu-
tion. Pella, as a religious nonprofit corporation incorporated
under the laws of Nebraska, was subject to the NNCA. Under
the NNCA, steps for corporate dissolution are set forth at
§ 21-19,130. The record indicates that Pella sent notice regard-
ing a special meeting to vote on dissolution, but that no record
was made as to which members received notice, which mem-
bers were present at the meeting, or how many members voted.
This evidence is therefore insufficient to prove that Pella com-
plied with the two-thirds or majority vote provisions required
by the NNCA for dissolution.
The evidence is also insufficient to prove that Pella com-
plied with its own internal requirements for dissolution.
According to the ELCA’s model constitution, a congregation’s
affiliation with the ELCA can be terminated if the congrega-
tion takes action to dissolve, ceases to exist, is removed from
30
See Neb. Rev. Stat. §§ 21-2801 to 21-2803 (Reissue 2012).
31
See § 21-2801(3).
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membership, or follows the procedures laid out at “*C6.05.”
for termination, which include a resolution indicating intent
to terminate, 30 days’ notice of the meeting to the bishop of
the Synod, and a special meeting and two-thirds vote of vot-
ing members present, among other provisions. These provi-
sions within the model constitution are required provisions
and were binding on Pella even in the absence of a change
to Pella’s local constitution. But again, the record does not
contain evidence that Pella gave the required notice, that the
notice was received by the correct parties, or how many mem-
bers attended the special meeting or voted in favor of dissolu-
tion. Testimony from both Maas and Focken also showed that
Pella’s council and leadership members had received a copy of
the ELCA’s suggested steps for dissolution, but that Pella did
not follow them.
In dissolving its congregation, Pella did not follow the steps
for dissolution set forth in the NNCA or the steps set forth in
Pella’s own constitution and bylaws, nor did Pella follow the
ELCA’s suggested steps for dissolution. Pella thus failed to fol-
low its own requirements for dissolution, and this assignment
of error is without merit.
5. Successors and Assigns
Finally, the Synod assigns that the county court erred in
concluding that the Synod was not “an appropriate successor”
to Pella and that as such, the Synod was not entitled to Pella’s
share of the Trust.
(a) Natural Versus Charitable Successors
The Synod argues, in part, that the Synod was Pella’s natural
successor or appropriate successor and asserts that any property
held by Pella should thus become the property of the Synod.
The trust stated that the bequest was for Pella, if in existence as
a charity, or to Pella’s “charitable successors and assigns.” Use
of the term “natural” in this context is inappropriate and does
not resolve the issues raised by either party; hence, we limit
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our analysis here to whether the Synod is a charitable successor
and assign of Pella.
(b) Plain Meaning of Successors and Assigns
The term “successor” is defined as (1) “[s]omeone who suc-
ceeds to the office, rights, responsibilities, or place of another;
one who replaces or follows a predecessor”; or (2) a “cor-
poration that, through amalgamation, consolidation, or other
assumption of interests, is vested with the rights and duties
of an earlier corporation.” 32 The term “assignee” is defined as
“[s]omeone to whom property rights or powers are transferred
by another.” 33 However, “[u]se of the term is so widespread
that it is difficult to ascribe positive meaning to it with any
specificity.” 34 Here, both parties have focused their arguments
on whether the Synod was a successor to Pella.
In concluding that the Synod was Pella’s successor per these
plain definitions, the Synod compares this case to Crumbley v.
Solomon, 35 wherein a local church entity known as Franklin
Tabernacle attempted to withdraw from a larger church entity,
the Holiness Baptist Association, by a majority vote of its
members. The opposing members of Franklin Tabernacle and
trustees of the Holiness Baptist Association sued the with-
drawing members to establish a right of the association to
control local church property. The Crumbley court held that
the disputed property was being held in trust by Franklin
Tabernacle for the benefit of the Holiness Baptist Association.
For that reason, where the deed to property held by the local
church used the phrase “successors and assigns,” it contem-
plated that the association was such a successor.
However, the Crumbley decision was based on application
and interpretation of statutory framework that we do not share
32
Black’s Law Dictionary 1732 (11th ed. 2019).
33
Id. at 147.
34
Id.
35
Crumbley v. Solomon, 243 Ga. 343, 254 S.E.2d 330 (1979).
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with Georgia and was the result of a very different factual cir-
cumstance wherein the two church entities were in disagree-
ment with one another as to the rightful owner of the property.
In Crumbley, the local church had vested rights in the disputed
property; here, Pella merely had a contingent interest in the
trust. The rules of the local church in Crumbley stated that
all property would be held for the larger entity, regardless of
the decisions of the local church to leave the larger entity at
a later time. Here, Pella’s property would pass to the ELCA
if the congregation was both dissolved and its property was
undisposed, but Pella otherwise retained a right to deed its
property to other Lutheran congregations or entities. Crumbley
does not resolve the issues presented here.
Next, the Synod compares this case to Larkin v. City of
Burlington. 36 In Larkin, the city entered into a development
agreement with Northshore concerning undeveloped property.
A later dispute between the parties was settled pursuant to a
consent judgment which allowed Northshore to apply for a
permit seeking no more than 60 residential units on the site
of the property and which was binding on the successors and
assigns of Northshore. After Northshore went into foreclo-
sure, the property was sold to the plaintiff landowner, who
filed for a permit to develop the land pursuant to the consent
judgment. The Vermont Supreme Court concluded that “[t]he
boilerplate language ‘successors and assigns,’ when refer-
ring to corporations, ordinarily applies only when another
corporation, through legal succession, assumes the rights and
obligations of the first corporation.” 37 The development agree-
ment was not binding on the plaintiff landowner because he
had not assumed the rights and obligations of Northshore
in developing the premises and was not a continuation of
Northshore’s corporate entity.
36
Larkin v. City of Burlington, 172 Vt. 566, 772 A.2d 553 (2001).
37
Id. at 569, 772 A.2d at 557.
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While both parties have focused their arguments here on
whether the Synod has proved that it assumed any rights and
obligations of Pella such that Larkin would control the dis-
position of trust assets one way or another, both parties have
incorrectly framed the issues presented by this case: When
Matthews amended her trust, she made a bequest to Pella as
a charitable organization and specifically allowed that the
bequest could only be made to Pella, if it continued to exist
as a charity, or to its charitable successors and assigns, if such
successor organization was also a charity. The trust did not
provide rights to a mere corporate successor, and the holdings
in Larkin regarding corporate successors and assigns distracts
from the real issue.
Whether the Synod was Pella’s successor for purposes of
corporate property ownership would answer the question of
what to do with property owned by or vested in Pella. But
resolution of that question does not answer what to do where
a property interest has not yet vested in Pella, as is the case
here. 38 In order to be entitled to Pella’s share of trust property
under the terms of the trust, the Synod must prove that it is a
charitable successor or assign of Pella.
(c) Charitable Successor
[13-15] The primary rule of construction for trusts is that a
court must, if possible, ascertain the intention of the testator or
creator. 39 A gift, donation, or bequest by name, without further
restriction or limitation as to use, to a corporation organized
and conducted solely for charitable purposes, will be deemed
to have been made for the objects and purposes for which
the corporation was organized, and not to the corporation
38
See In re Trust Created by Haberman, 24 Neb. App. 359, 886 N.W.2d
829 (2016) (until testator’s death, beneficiary’s interest in trust property is
merely contingent expectancy).
39
In re Wendland-Reiner Trust, 267 Neb. 696, 677 N.W.2d 117 (2004).
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itself. 40 The charitable intent of the donor is ascertained by
reference to the charitable purposes of the donee. 41
Membership in Pella was already waning at the time
Matthews amended her trust to add the “charitable successors
and assigns” language, apparently in an effort to avoid compli-
cations if Pella ceased to exist either as an entity or as a charity
prior to Matthews’ death. Through this amendment, Matthews
established a clear intention to leave money not just to Pella,
the Salvation Army, or the VNA as corporate entities, but as
charities which undertook specific charitable purposes. Thus,
in order to establish a right to Pella’s share of trust property,
the Synod must prove that it can and will carry on the chari-
table goals and purposes of Pella.
According to the testimony of Maas, local congregations
such as Pella are gathered to form their local worshiping
community. The Synod, on the other hand, is a “district-like
organization” that oversees as many as 233 congregations
in Nebraska. According to Maas, members and staff of the
Synod work to oversee congregations, taking care of paper-
work, as well as other legal and administrative matters. Unlike
the local congregations, the Synod typically holds services
annually, not weekly. The Synod ultimately functions differ-
ently than Pella and does not share the same specific purposes
which were previously undertaken by Pella, a local congrega-
tion of which Matthews was a member. Based on our de novo
on the record review, we find that the Synod has not proved
it was a charitable successor and assign of Pella. The Synod’s
first assignment of error is without merit.
Where the Synod has not proved that it is a charitable suc-
cessor and assign to Pella, it is not entitled to a share of trust
40
In re Estate of Harrington, 151 Neb. 81, 36 N.W.2d 577 (1949). Accord
Root v. Morning View Cemetery Assn., 174 Neb. 438, 118 N.W.2d 633
(1962).
41
Dept. of Mental Health v. McMaster, 372 S.C. 175, 642 S.E.2d 552
(2007).
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property; hence, the Synod’s second assignment of error is also
without merit.
V. CONCLUSION
This court has jurisdiction to adjudicate the issues pre-
sented. Resolution of the issues does not require this court to
resolve any doctrinal matters, and the county court also did not
make a resolution of any doctrinal matters. The county court
did not err when it analyzed the issues using the NNCA, nor
when it concluded that Pella failed to follow its own proce-
dures for dissolution.
Based upon a de novo on the record review of the issues
presented, we find that the Synod did not prove it was a chari-
table successor of Pella. The Synod’s assigned errors are with-
out merit. Accordingly, we affirm the decision of the county
court, which denied the Synod’s complaint in intervention
and ordered distribution of Pella’s share of trust assets to the
Salvation Army and the VNA, pro rata, pursuant to the terms
of the trust.
Affirmed.
Miller-Lerman, J., not participating. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494079/ | DECISION & ORDER
JOHN C. NINFO, II, Chief Judge.
BACKGROUND
On March 14, 2005, David R. Green (the “Debtor”) filed a petition initiating a Chapter 11 case. On the Schedules and Statements required to be filed by Section 521 and Rule 1007, the Debtor indicated that he was indebted to ESL Federal Credit Union (“ESL”) on a Home Equity Line of Credit Agreement (the “ESL Note”) in the amount of $194,996.00, which was secured by a Home Equity Line of Credit Mortgage (the “ESL Mortgage”) that was a lien on his residence at 23 Carefree Lane, Par-ma, New York (the “Carefree Lane Property”).
*789On June 20, 2005, ESL filed an Adversary Proceeding (the “ESL Adversary Proceeding”), which requested that the Court determine the amounts due on the ESL Note and Mortgage to be nondis-chargeable.
The Complaint in the ESL Adversary Proceeding alleged that: (1) in order to obtain the loan evidenced by the ESL Note and secured by the ESL Mortgage, the Debtor provided ESL with: (a) an affidavit (the “Green Affidavit”) confirming that he had paid off a $275,000.00 loan from GMAC Mortgage Corporation (the “GMAC Loan”) that was secured by a mortgage on the Carefree Lane Property (the “GMAC Mortgage”); and (b) a satisfaction of the GMAC Mortgage (the “GMAC Satisfaction”); (2) the Debtor’s representation that he had paid off the GMAC Loan was false, misleading and fraudulent, and the GMAC Satisfaction was fictitious, false and unauthorized by GMAC Mortgage Corporation; (3) ESL entered into the loan evidenced by the ESL Note and Mortgage in reliance upon the Debtor’s representations in the Green Affidavit and the GMAC Satisfaction; (4) ESL was damaged by the Debtor’s conduct because: (a) the GMAC Loan had never been paid off and the GMAC Mortgage had never been satisfied or released; (b) there was in excess of $230,000.00 due on the GMAC Mortgage when the loan evidenced by the ESL Note and Mortgage was made; and (c) when the loan evidenced by the ESL Note and Mortgage was made, the amounts due on the GMAC Mortgage and two other mortgages that were liens on the Carefree Lane Property, including an HSBC Mortgage, exceeded the fair market value of the Property; (5) under Paragraph 7 of the ESL Note, ESL was entitled to recover any attorneys’ fees and expenses incurred in protecting the Carefree Lane Property or its rights in the Property, which should also be determined to be nondischargeable; (6) the Debtor obtained the loan evidenced by the ESL Note and Mortgage by larceny, in violation of New York Penal Law Section 155 et. seq.; and (7) ESL was entitled to an Order determining the amounts due on the ESL Note and Mortgage, together with recoverable expenses, including attorneys’ fees, were nondischargeable pursuant to Sections 523(a)(2), (4) and (6).
On July 21, 2005, the Debtor interposed an Answer to the Complaint, which asserted that: (1) the Green Affidavit was intended only to cover a prior $200,000.00 mortgage in favor of GMAC that was refinanced by the GMAC Mortgage; (2) the Debtor did not provide ESL with the GMAC Satisfaction; (3) ESL was aware of the existence of the GMAC Mortgage, but it agreed to make the loan evidenced by the ESL Note and Mortgage notwithstanding the existence of that Mortgage and the two other mortgages that were liens on the Carefree Lane Property; and (4) ESL could recover expenses, including attorneys’ fees, only to the extent specifically provided for by Paragraph 7 of the ESL Note.
On October 17, 2005, ESL made a “Motion for Summary Judgment,” which was opposed by the Debtor. At that time, because the Court was unwilling to make a determination on the Section 523(a)(4) larceny cause of action until it made a determination on the Section 523(a)(2) fraud and Section 523(a)(6) willful and malicious injury causes of action, it adjourned the Motion so that the parties could obtain additional information from GMAC about the execution and delivery of the GMAC Satisfaction.
Thereafter, the Debtor indicated that he would pay the ESL Note and Mortgage in *790full as part of his Chapter 11 Plan. As a result, the Motion for Summary Judgment was tracked with the plan and confirmation process.
On June 5, 2006, ESL filed a supplement (the “Supplement”) in support of the Motion for Summary Judgment. It advised the Court that: (1) notwithstanding the Debtor’s promise to pay the ESL Note and Mortgage in full, ESL filed a criminal complaint with the appropriate New York State authorities based upon the Green Affidavit and GMAC Satisfaction allegations set forth in the Complaint in the ESL Adversary Proceeding, resulting in an indictment of the Debtor on a charge of grand larceny in the second degree; and (2) at a trial in New York State Supreme Court on May 25, 2006, the Debtor was found guilty of grand larceny in the second degree.
After the Debtor’s case was converted to a Chapter 7 case on September 5, 2006, the ESL Motion for Summary Judgment was restored to the Court’s calendar.
At a hearing on September 28, 2006, the Debtor’s attorney once again asserted that ESL had not met its burden to demonstrate that there was no material issue of fact as to the justifiable reliance element necessary for it to prove in order to prevail on its Section 523(a)(2) fraud cause of action. Not having recalled that the Complaint in the ESL Adversary Proceeding included a Section 523(a)(4) larceny cause of action, the Court: (1) allowed ESL to make an oral motion to amend its Complaint to include a Section 523(a)(4) larceny cause of action based upon the larceny conviction; and (2) reserved on the Motion and afforded the Debtor an opportunity to make a written submission in response to the approved oral amendment.
On October 30, 2006, the Debtor’s attorney filed a letter submission (the “Submission”), which asserted that: (1) there were substantial issues of fact with respect to the justifiable reliance element of ESL’s Section 523(a)(2) fraud cause of action, and a conviction of grand larceny in the second degree did not meet that burden because that crime did not include an element of justifiable reliance; (2) although the Debt- or had no objection to the approved oral amendment of the ESL Complaint to include a Section 523(a)(4) larceny cause of action, ESL should be required to serve the Debtor with a written amended complaint so that he could more fully respond to that cause of action; (3) the Court had no direct evidence that the Debtor had been convicted of the offense of grand larceny in the second degree, and his attorney had no personal knowledge of such a conviction; (4) the issue of the Debtor’s guilt or innocence of the crime of grand larceny in the second degree had not been fully determined for purposes of collateral estoppel or res judicata, because the conviction was being appealed; and (5) the attorneys’ fees that ESL would be entitled to recover and have this Court determine to be nondischargeable should be limited to those specifically provided for in the ESL Note, which limited the expenses, including attorneys’ fees, to those incurred in protecting the Carefree Lane Property or protecting the rights of ESL in the Property.
DISCUSSION
Section 523(a)(4) provides that a discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) does not discharge an individual debtor from any debt for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.
Section 155.05.1 of the New York Penal Law provides that a person steals *791property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.
Section 155.40 of the New York Penal Law provides that a person is guilty of grand larceny in the second degree when he steals property and when the value of the property exceeds fifty thousand dollars.
The Submission did not deny that the Debtor was convicted of the crime of grand larceny in the second degree in connection with the amounts obtained and due on the loan evidenced by the ESL Note and Mortgage, it simply asserted that the Debtor’s conviction is on appeal.
As a result, ESL has met its burden to show that its debt, as evidence by the ESL Note and Mortgage, is nondischargeable pursuant to Section 523(a)(4).
The provisions in the ESL Note and Mortgage, specifically Paragraph 7 of the Note, are not general and comprehensive provisions for the recovery of all costs and expenses incurred in collecting the amounts due on the ESL Note and Mortgage. Recovery is specifically limited to the costs and expenses incurred in protecting the mortgaged property or ESL’s rights in the property.
By November 28, 2006, ESL shall file with the Court and the Debtor’s attorney an application setting forth the specific time records and dollar amounts claimed for services performed to obtain a subordination of the HSBC Mortgage on the Carefree Lane Property.
To the extent that ESL believes that, pursuant to its loan documents and In re Lutgen, 1999 WL 222605 (W.D.N.Y.1999), it is entitled to costs and expenses, including reasonable attorneys’ fees, other than those incurred to obtain a subordination of the HSBC Mortgage on the Carefree Lane Property, by November 28, 2006, it shall also file with the Court and the Debtor’s attorney a separate application setting forth the specific time records and dollar amounts claimed for any such services.
By December 15, 2006, the Debtor shall advise the Court and ESL that it agrees with the amounts claimed on either or both of the permitted applications, or it shall file written opposition to either or both of the applications that shall specifically identify which services, by time entry, he believes are non-recoverable and why.
If the Debtor files any written opposition, the matter shall be heard on the Court’s 9:30 a.m. calendar on December 20, 2006.
Otherwise, the amounts claimed and agreed to or not opposed shall be included in the Court’s final Decision & Order of nondischargeability.
CONCLUSION
The principal and interest due on the ESL Note and Mortgage is determined to be nondischargeable pursuant to the provisions of Section 523(a)(4).
In the event that the Debtor’s conviction of grand larceny in the second degree is overturned by a New York State Appellate Court, upon written notice given by the Debtor’s attorney, the ESL Adversary Proceeding shall be restored to this Court’s calendar to afford ESL the opportunity to further prosecute its Section 523(a)(2) and 523(a)(6) causes of action.
This Decision & Order is interlocutory. This Court will enter a final Decision & *792Order when the recoverable amounts due to ESL for expenses, including reasonable attorneys’ fees, are determined.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484970/ | JUDGMENT
The issues in this case raised by the filing for registration of the land Maota by Tolouma of Leone and the objections to said registration by Aumavae of Leone, Magalei of Faleniu and Satele of Vailoa, having come on to be heard by this Court on said 30th and 31st days of July and 8th day of August, 1930.
And the proponent having appeared in person or by his attorney Teo and the objector Aumavae having appeared in person, and by his attorneys Atofau and Crossfield Hunkin, and the objector Magalei having appeared in person, and the objector Satele having appeared in person, and by his attorney Tuaolo of Pago Pago, and
It appearing by a judgment of this court made and entered in an action for the determination of title to land, wherein Atofau was the Plaintiff and Nuutofia and others *428were the Defendants, that the land Siasiaga belongs to the family of Salemeanai, and
It further appearing that the said objector Aumavae lays claim to the three parcels of land known as Maota, Siasiaga and Toefisia in the name of Aumavae personally and that the said Magalei lays claim only to the parcel designated in the map as Maota in the name of Soa, and that the said Satele lays claim to all of the three parcels designated as Maota included within the survey, in the name of Satele.
And it appearing to the court that the title of the parcel of land designated on the map filed by the proponent, called Siasiaga is in the family of Salemeanai and that the title to the parcels in the survey filed by the proponent named and designated Maota and Toefisia, are in the proponent,
IT IS ORDERED, ADJUDGED and DECREED That the title of said land named and designated Siasiaga on the map filed for registration by Tolouma, is in the family of Salemeanai and that the title of the land named and designated on the said map filed by the proponent as Maota and Toefisia, is in the proponent Tolouma of Iliili.
The court costs in this case amounting to $60.00 will be paid as follows:
Magalei ................................................................$10.00
Satele .................................................................... 25.00
Aumavae .............................................................. 25.00 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484971/ | DECISION
This Matai name case came on to be heard by the High Court of American Samoa on the 13th and 14th days of October 1930.
The proponent of the name Chris Young, appeared personally and by his Counsel Sotoa of Tau.
The objector Túfele appeared in person.
The objector Atuelua appeared in person and by Counsels Meauta and Vaouli.
The objector Silia appeared in person and by his Counsel Fuata.
*430Under the Samoan custom the holder of a Matai name is selected by the family and the name registered in the Court. In the case of Tuimanua, the ruler, the title was formerly conferred by the Tootoos and Faletolus. This procedure was the selection of a ruler and not a matai.
Before any testimony was taken in this Matai name case Tuimanua on October 13th, 1930 the Court explicitly stated that it was considering the name Tuimanua as a Matai name only and that the Court was assembled to hear the case as a Matai name case and not as the name of a ruler or king. The Court put the question to those assembled whether they agreed to this and the answer was that they did.
In the month of March 1930, the Secretary of Native Affairs, at the request of the Governor of American Samoa, went to Manua and held a conference with the Tootoos and Faletolus of Tau and Faleasao regarding the question of giving the Matai name Tuimanua to whomsoever might appear to be entitled to the name. It was then explained clearly to those present that the Governor had no objection to the name Tuimanua being offered for registration as a Matai name of a family but that the Governor was unwilling that it should be offered for registration as a title of a ruler, as under our present Government the District Governor has the sole authority under the Governor of American Samoa in the Manua Islands. The Tootoos and Faletolus at the request of the Secretary of Native Affairs sent representatives of those concerned in the name Tuimanua to Tutuila and a conference was held on the 7th day of March 1930 between the Governor, Túfele and Chris Young. At this conference the Governor again explained his position and stated that he had no objection to the name Tuimanua as a family name or High Chief name being continued if the holder of the name should *431be loyal and set a good example of loyalty toward the United States Government and did not attempt to exercise government authority, and he also stated that Chris Young had agreed that the title Tuimanua as far as it means king ceased when the Islands were ceded to the United States. He also stated that Chris Young had informed him that if he should be given the name Tuimanua he would support the District Governor and not attempt to exercise authority against him.
At this conference it was agreed by all those present that the Matai name Tuimanua might be registered any time any claimant wanted to register it.
In accordance with the agreement reached at this conference Chris Young filed application for registration of the Matai name Tuimanua and Túfele, Atuelua and Silia filed objections. The case was brought on for hearing by the High Court of American Samoa on the 13th and 14th days of October 1930.
It plainly appeared in the testimony of Sotoa and other witnesses appearing before the High Court that they either did not understand what had been agreed upon in the conferences that had been held before the case came to trial regarding the name Tuimanua as a Matai name and not as a title of a ruler, or else that they did not choose to abide by the decision arrived at in the Governor’s office on March 7, 1930.
The Court heard all the testimony in the case and was prepared to render a decision but on account of the evident understanding of some of the witnesses that the name was considered as applying to a ruler or king, and not as a Matai name, before such decision was made, it was thought advisable to clear up this question with another conference with the Tootoos and Faletolus of Tau and Faleasao, and to that end the Secretary of Native Affairs held a *432conference with these Chiefs of Manua at Tau at the home of Judge Nua on the 7th day of January 1931.
At this conference the Secretary of Native Affairs reviewed the result of the former conferences which had been held as aforesaid and prepared a form of agreement to be signed by the Tootoos and Faletolus of Tau and Faleasao which agreement was as follows:—
“We, the Tootoos and Faletolus of Tau and Faleasao assembled at Tau this 7th day of January 1981 do agree that in the event that the High Court of American Samoa should decide that any one of the claimants before the Court is entitled to the Matai name Tuimanua this name “Tuimanua” is to be given to him as a Matai of the Anoalo family and has no significance as a title of a king or other ruler.
We also agree that we, as Tootoos and Faletolus have no authority over the name Tuimanua but that the authority of the name rests entirely with the Anoalo family and that in the event of the death of the holder of the name or other vacancy in this name, the successor will be appointed by members of the family in the same manner as other Matais of families of American Samoa.”
This agreement was read in Samoan before those assembled and Sotoa requested that time should be given to those present to consider the contents of the statement which they were asked to sign. The Secretary of Native Affairs told them that the decision had already been held up too long and suggested that they take several hours to consider the matter again and that they meet with him later in the day at Judge Nua’s house and give him their decision. There were 22 Tootoos and Faletolus present at the first conference January 7th and at .two o’clock of that day there were 8 of the Tootoos and Faletolus present, who stated that they were acting for all of the Tootoos and Faletolus. They presented .to the Secretary of Native Affairs a statement signed by them saying that they refused to accept the agreement as presented to them.
*433In view of the fact that the proponents for the Matai name Tuimanua were allowed to offer their name for registration on the distinct understanding that in the event that the High Court of American Samoa should decide .that any one of the claimants before the Court should be entitled to the Matai name Tuimanua, the name Tuimanua would be given to him as the Matai of .the Anoalo family and would have no significance of a king or ruler, and as the Tootoos and Faletolus are now unwilling to abide by their agreement, it is the opinion of the Court that it should refuse and it does refuse to give the name Tuimanua to any of the claimants for it.
It is evident that the name Tuimanua is not a Matai name as the term is commonly understood in American Samoa.
The costs of $50.00 will be paid as follows:—
Chris Young ....................................................$ 12.50
Túfele .................................................................... 12.50
Atuelua ................................................................ 12.50
Silia ...................................................................... 12.50 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484973/ | DECISION
This “Matai” name case came on for trial on the 28th day of October 1931.
Present: Chief Justice H. P. Wood
Associate Judge Puletu
Owing to the illness of Judge Muli he was unable to sit and his absence as trial Judge was waived by both parties.
The proponent of the “Matai” name Ponausuia, Tuia, filed the name for registration in October 1922. The case came on for trial on the 27th of February 1928 and as the objectors Sama, Tuuu, Luia, Semaia and Faautu then had no candidate for the name to oppose Tuia the trial of the case was indefinitely postponed and Tuia was appointed by the Court as acting “Matai” of the family until the case should finally be tried.
At the postponed hearing of the case, the objectors have selected Fuaau as their candidate.
The proponent of the name by his witnesses names as the last five holders of the name Ponausuia:
Ponausuia Vao
*441Ponausuia Naea
Ponausuia Saole
Ponausuia Pili
Ponausuia Tagiaafi
The relationships of these holders of the name to each other is not made entirely clear by the evidence but it is stated positively by Tuia’s witnesses that Ponausuia Naea was the father of Ponausuia Tagiaafi and the proponent Tuia. Tuia has therefore both a father and a brother who held the name Ponausuia.
The objectors name the following as the last five holders of the name Ponausuia:
Ponausuia Palaola
Ponausuia Matauti
Ponausuia Levao
Ponausuia Saole (who they stated lived in Aunuu)
Ponausuia Tagiaafi
It will be noticed that the objectors did not name Naea as a Ponausuia but that he was the father of Tuia and did hold the name Ponausuia was testified to by three disinterested witnesses, all old men who have lived on the Bay for many years, Taamu, Mailo and Faagata.
The objectors to the name base their claim of their candidate upon the testimony of an old lady Faautu who claims to have the “pule” of the family at the present time as far as naming the “matai” through the daughters of Ponausuia Paloala. These daughters were Taeli and Taemosi. It is claimed that these daughters exerted their “pule” to name Ponausuia Matauti and later Ponausuia Tagiaafi, the latter of whom the witness stated was not a true member of the family.
It is plain from the testimony that Tuia has lived on the Ponausuia lands for many years and has rendered service *442to at least four of the holders of the name. He has worked the plantations of the family and is familiar with its affairs and has had a father and a brother who held the name Ponausuia.
On the other hand it appears very doubtful if any of the objectors have lived on the Ponausuia lands or have rendered service to any of the former holders of the name or had ancestors who held the name.
The court, as stated by it during the course of the trial is reluctant to recognize the “pule” of any individual to name a “Matai” of a family unless the nominee is a member of the family, is a choice of the majority of the family and appears to be well fitted for the position.
Tuia appears to the Court to fulfill the conditions named and Fuaau does not.
IT IS THEREFORE THE JUDGMENT of the Court that the “Matai” name PONAUSUIA shall be given to the proponent of the name Tuia.
The costs of this action amounting to $25.00 will be paid by the objectors. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484974/ | DECISION
This case involving the right to file the matai name Ilaoa came on to be heard in the High Court of American Samoa on the 6th day of November, 1931.
Present: Chief Justice H. P. WOOD, Associate Judge LUTU, Associate Judge PELE
Galo of Leone, the proponent of the name resides at Leone and was represented by Atof au as Counsel.
Aumavae of Leone, objector to the holding of the name by Galo, and a claimant for it, was represented by Kolose as Counsel, and also lives in Leone.
Fonoti of Tafuga, also an objector to the holding of the name Galo or Aumavae and a claimant for it, was represented by Atumata as Counsel.
The matai name Ilaoa belongs to Leone in the Western District and the Ilaoa family is a large one, having at least seven matais. There are several branches of the family, at least two male branches and one female branch. Galo and Fonoti belong to the Uo branch and Aumavae to the branch of the same name.
Some attempt has been made by the family to agree upon a holder of the name but it is evident that the good of the family has been subordinated to selfish interests.
Before testimony was taken the Court informed the parties it takes the following matters into consideration in the appointment of a matai:
*4441. That he is a member of the family.
2. That he is familiar with the affairs of the family.
3. That he is a choice of a large majority of the members of the family.
4. That he is a capable man to handle the affairs of the family.
The holders of the matai name Ilaoa are as follows:
Ilaoa Vaafusuga
Ilaoa Tuiloua (1)
Ilaoa Aumavae
Ilaoa Kaino
Ilaoa Taatofa
Ilaoa Tuiloua (2)
Ilaoa Lealofi
Galo named Ilaoas Taatofa, Tuiloua and Lealofi to establish his membership in the family. It appears that the father of Lealofi was the brother of Taatofa and Tuiloua.
Galo is the son of Uo who was the oldest son of Tuiloua. There is on record in the files of the Court a letter written to the Secretary of Native Affairs by the then holder of the name Ilaoa before his death expressing his wish to resign from the title and bestowing it upon Galo. As there was some objection to this transfer among the members of the family, Galo filed for the name in the usual way and prior to the death of Ilaoa and Fonoti and Aumavae has objected.
It appears that Galo has rendered service to Ilaoa in various ways such as providing food, paying taxes, furnishing money in times of emergency etc., and that he and his father Uo both live at the present time in the Ilaoa house. Galo has not at the present time a matai name.
Fonoti is the younger brother of Galo’s father and his claim based on hereditary right to the matai name Ilaoa is naturally the same upon which Galo’s is based. He also has *445rendered service to Ilaoa but for the past ten years or more he has not resided at Leone but at Tafuga, the home of his wife’s family, in which he holds the high name of Fonoti, said .to be the second in Tualauta County after the name of Letuli.
Galo has as supporters two matais of the family and the descendants of Ilaoa Taatofa and Lealofi and some of the descendants of Tuiloua.
Fonoti has as his supporters the descendants of Ilaoa Kaino, some of the descendants of Tuiloua and the female branch of the family represented by Puletu.
Aumavae is the matai of the branch of the Ilaoa family of that name. He lives in Leone, has rendered service to Ilaoa, is supported by two matais of the family. He traces his descent from Ilaoa Aumavae, who was the fifth from the last holder of the name. Aumavae has rendered service to Ilaoa and has been seven times the Pulenuu of Leone and is undoubtedly a capable man.
It will appear from the foregoing digest of the testimony that all of the candidates in some respects fulfill the qualifications for a matai as laid down at the beginning of the trial. It is no easier for the court to choose a matai of the family then it was for the family itself; however the Court must make a decision and under all the evidence it appears that Galo more fully fulfills the qualifications as above set forth then the other two candidates. He is undoubtedly a member of the family. He is undoubtedly familiar with the affairs of the family and while it cannot be said that he is the choice of a large majority of the family, he is certainly the choice of as many members as either of the other two candidates and in addition to this he was the absolute choice of the last holder of the name and is endorsed by the descendants of the next to the last holder of the name and by part of the descendants of Tuiloua. There is no question of his capability to handle the affairs *446of the family as he is a man of education and business ability.
Fonoti meets with practically all of the requirements but he has not lived in Leone during the past ten years, so must of necessity have been out of touch with the affairs of the family. He is also the holder at the present time of a high name.
Aumavae also fulfills to a large extent the conditions for holding the matai name but it is not shown that his family has been as close in descent to the holders of the name Ilaoa as have either Galo or Fonoti. At best he is a descendant from an Ilaoa Aumavae who lived many years ago, and in addition he is the present holder of a matai name in the Ilaoa family.
Under all the evidence in the case it is the judgment of the Court that the name Ilaoa should be given to Galo.
The court costs in this case amounting to $25.00 will be paid as follows: Fonoti $12.50 and Aumavae $12.50. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484975/ | DECISION
The Matai name Feafeaga came on to be heard at a term of the High Court held in the Courthouse at Fagatogo on the 21st day of December 1931.
Present: Chief Justice H. P. WOOD, Associate Judge LUTU, Associate Judge PELE.
The proponent of the name Ene was present and represented by his counsel Tauamo. The objectors to the name Malu, Save, Sisipeni and Mapu were present and represented by their attorney Save.
All the objectors agreed upon Malu as their candidate for the name Feafeaga.
Ene is the son of Feafeaga Leniu. He gave as the last five holders of the name Feafeaga Elia, Feafeaga Tiaita, Feafeaga Falaima, Feafeaga Eli and Feafeaga Leniu.
Feafeaga Leniu has been dead three or four years and Eli his predecessor has been dead between ten and thirteen years. It is the contention of Ene that his father Leniu was the holder of the name Feafeaga after Eli’s death and that while he was the holder of the name Ene rendered service to him and lived in his house and that while Eli was the holder of the name he also rendered service to him. It is the undisputed fact that Ene has always lived in Iliili and has always lived in the Feafeaga family. His application for the registration of the Matai name Feafeaga was signed by Letuli, Ui, Leituala (his brother), Pupa, lasa, Siuli, Faauma, Siatitui, Tauamo, Tovio and Tuiaana.
Melu the candidate of the objectors to the registration of the name by . Ene is not related to any of the holders of the name Feafeaga as given by him. These holders are *448Matutia, Falaima and Eli. He does not admit that the father of Ene, Leniu held the name Feafeaga but does admit that since the death of Eli, Ene and his brother Leituala have lived in the Feafeaga home and has taken care of the affairs of the family together with Leituala and his father. Malu gives as his right to hold the name Feafeaga that he is descended from a woman by the name of Umuvale who married a man by the name of Toilolo. Malu is the fourth in descent from Umuvale. Umuvale did not hold the name herself but Malu testified that by another marriage of Umuvale a grandson held the name Feafeaga and that he was the first holder of the name.
It appears to the court that Ene has established a right to the name Feafeaga superior to that of any right established by Malu- in that he was the son of Leniu who held the name Feafeaga. That he has lived all his life in Iliili, has rendered service to the last two holders of the name Feafeaga and that as appears by his testimony, he is the choice of a large majority of the Feafeaga family. Malu has lived in Iliili not over three years. He is not a descendant of any of the holders of the name Feafeaga mentioned by either of the parties but at the most is the great grandson of the woman whose grandson by another husband held the name Feafeaga.
Whether or not Leniu held the name Feafeaga it is a fact that he and his two sons Leituala and Ene have since Eli’s death lived in the Feafeaga house and carried on the affairs of the Feafeaga family.
IT IS THE OPINION OF THE COURT AND ITS JUDGMENT that the Matai name Feafeaga shall be given to Ene of Iliili.
The court costs of $25 to be paid by Malu, but as there were three objectors besides himself, each one of the objectors must contribute to the court costs $6.25. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484977/ | The High Court was convened at the Courthouse in Fagatogo at 9:00 A. M. Monday June 13,1932.
CHIEF JUSTICE: This is the matai name Amituanai of Fagaalu. The registration of the name was filed by Ekuati of Fagaalu. An objection has been made by Lesio Kalala of Upolu.
Before we proceed I will ask you if you have considered taking this matter before the Commission which has been appointed to hear cases in the first instance? I have to advise you that if you do not take this case before a Commission you must consider the decision of this Court as final. Another thing that I want to impress in your *455minds is this. On one side we. have here a young man of Fagaalu and on the other side we have a woman who has a very high name in Upolu. We want to have you thoroughly understand that when you come into this Court there is no recognition taken of any names whatsoever — the lowliest man in American Samoa stands just as good a chance as the highest chief in Eastern or Western Samoa.
I further want to ask if these parties have gotten together and conferred and endeavored to settle this case outside of court. If you should come into court here and if this young man here should be successful in court here Kalala would feel perhaps that proper respect has not been paid to her and if on the other hand Kalala was successful, the people on the other side would feel that the Court favored a woman with a high name. The Court does not want any feeling like that whatsoever. Have you made any attempt to settle this outside of court.
ASUEGA Counsel for Ekuati. We did not meet with the other side.
CHIEF JUSTICE: Have you anything to say Mailo?
MAILO Counsel for Objectors. It is just exactly what our side desires to meet together with the other side and try to arrive at a friendly decision with the family.
CHIEF JUSTICE: As I so often said here a conference is absolutely useless if both parties go in with the idea of getting their own way. If they both think the same way they will never get together — you must both be prepared to consider giving up something to each other.
I want to say something more. I know something about this case — I do not know it because people have told me about it, but because I have looked over the records here. The first thing I know is that Ekuati is the son and own son of the last holder of the name and another thing I know, *456because the court has handed it down in a decision, is that Lesio Kalala is a member of the family, and that in the case where a piece of land was deeded to Kennedy by Uso and Amituanai the Court said that Kalala had an interest in that land because she is a member of the family. I know those two things.
If you decide that you would like two days to arrive at a friendly agreement, which is always best, I will grant an adjournment but there is no use in granting an adjournment if you cannot get together. I will also say this — The High Court gives a matai name usually on the following — first we ask if the man is a true descendant of the last holder of the name and then we ask if he is the choice of the family and third we ask if he would make a good matai.
LESIO KALALA: I made four attempts to gather the family but the family seems to me that they try to avoid my attempts. Up to date I earnestly request the court for a postponement as I only desire to have a conference of all the family to arrive at a friendly decision without having a court case.
CHIEF JUSTICE: What does the other side say — I want to tell you that Kalala is a member of the family and has a right to sit in the conferences. This court does not recognize that any one man has the right to name a matai. It does not recognize matuas or anything like that.
ASUEGA: It may be that Kalala is true in making her attempts but probably it was only a few of the members there but maybe all the other members of the family did not know about it. We want to have a friendly meeting of the family — we do not want to break up the family, we want them to live in a friendly manner and feeling; therefore I request the court for a few days postponement until both sides have a chance to have a meeting together. *457CHIEF JUSTICE: I will adjourn the case until Friday morning June 17th at 9:00 A.M.
The High Court reconvened at the courthouse in Fagatogo at 9:00 A.M. Friday June 17th, before
Chief Justice WOOD — Associate Judges PELE and LUTU
CHIEF JUSTICE: This is the adjourned case of Kalala v. Ekuati. The case was adjourned on June 13th for the purpose of giving the parties a chance to come to an agreement — I would like a report of what has been done.
ASUEGA: We did not come to an agreement — my side still wants our candidate to have the name and Kalala suggested that if two holders of the name could be made and finally we did not arrive at a definite decision and I respectfully request .the Court if it would be pleased to postpone this case again and that we would continue trying to settle this matter outside of court.
CHIEF JUSTICE: I will tell you right now that this Court will never appoint two holders of a name. It was done over in Upolu and it was the most unsatisfactory thing, and as long as I am Judge here it will never be done here. I will tell you another thing, you can try this case whenever you want, we do not care when you do. The Court will give this name in this case and in all others to the man who is a direct descendant of the holders of the name and it will give it to the man who has the vote of most of the members of the family and if he is a good man.
All you have to do is to have a meeting of the family and if you have a man who has the majority of the votes of the family the court is going to give him the name if he is a good man, so you have nothing to fight about.
I want to tell you that every time you come here and ask for an adjournment it will cost you $10.00, so there is a *458$10.00 cost against you now before we adjourn. We have to have the Judges sent for and everything arranged for the case. This is the 17th of June, I am going to give you until the 24th of June and unless you want to pay another $10.00 for adjournment you must tell me the day before if you have not reached a decision as I am not going to hold this case open indefinitely, as it is a very easy one.
LESIO KALALA: I wish to thank the Court for accepting the request of the family for another postponement as we prefer to settle this matter outside of Court because it will result into a friendly feeling among the members of the family if we can settle it outside.
CHIEF JUSTICE: Remember what I said about how the court decides a case, because there is no use of your going out and having a wrong idea of that.
Court is now adjourned until June 24th.
I, Kalala-Lesio herewith withdraw my objection to the registration of the matai name “AMITUANAT” by Etuati and join in his application for registration of the name. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484978/ | DECISION
This case came on to be heard on the 2nd day of August 1932 in the Courthouse in the Administration Building, U.S. Naval Station.
Present: Chief Justice WOOD, Associate Judge PELE, Associate Judge LUTU.
The proponent of the name Taleni was represented by his counsel Tuuga and the objector Uele was represented by his counsel Magalei.
It appeared from the testimony that Taleni the proponent of the name is the grandson of Maea Fatafuna, who was the last holder of the name. Uele according to the testimony of his counsel is the grandson of Maea Aiona.
The holders of the name Maea as named by Taleni are:
Maea Leoo
Maea Fatafuna
and the holders of the name Maea as named by counsel for the objector are:
Maea Gasese
Maea Aiona
Maea Manavafeea
The Maea family is a small one and no one seemed to know just the number and extent of the lands owned by it. It was generally admitted that the last holder of the name had been dead for many years and that there had been no holder of the name since his death. Both Taleni and Uele *460testified that they had worked on the family lands but neither of them had assumed the duties of the Maea.
Magalei who was the chief sponsor for Uele testified that Fatafuna, the grandfather of Taleni, received his name Maea from Aiona. Magalei states that Uele is the grandson of Maea Aiona and the son of Magalei Tauau. Magalei claims the pule of the Maea family as Magalei and desired the Court to appoint his candidate to the name Maea with the understanding that he, Magalei, the chief of an entirely different family, would have the pule of the Maea family. It is not altogether clear to the Court just how Magalei derives this pule although he endeavored to explain it to the Court.
The evidence was undisputed that there was many years ago a holder of the name called Fatafuna and that Taleni is the grandson of this man. That there was a holder of the name Maea called Aiona from whom Uele traces his descent through Magalei is strenuously denied by Taleni and his counsel.
The Court is not permitted to discuss the relative fitness for the position of matai unless the claims of each are equal to the name, than [sic] the balance will tip in the favor of the one best prepared to hold the name by reason of education.
In this case it seems clear to the Court that Taleni has established the best hereditary right to the name Maea. He has stated that if given the name he will not recognize the pule of Magalei and will himself exercise the pule of the name over the affairs of the family. If the name were given to Uele it is very doubtful if he would do this as he apparently recognizes the pule of Magalei.
Upon all the evidence the Court is of the opinion that the matai name should be given to Taleni and it so decrees, with the costs of $25.00 to be paid by Uele and Magalei. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484979/ | DECISION
This case came on to be heard by the High Court of American Samoa on the 5th day of October 1932.
Presiding — Chief Justice H. P. WOOD, Associate Judge MULL
Judge Nua who sat when the case was first called for trial on August 23rd, 1932 had returned to Manua and on consent of both parties the case proceeded with two judges.
The application for registering the matai name Tuiasosopo was filed by Mariota of Fagatogo and objection to the registration of the matai name was filed by Petelo, requesting that the name be given to Galu.
*462Mar iota’s witnesses were himself and Masaniai of Vatia, both of whom testified that the matai name Tuiasosopo belongs to the Village of Vatia. Mariota is the son of the last holder of the name Tuiasosopo Sarnia. It appears that after the application for the registration of this name as filed by Mariota and before this objection was filed by Petelo, a meeting of the family was held in Vatia and although there was some objection to the giving of the name to Mariota, a large portion of chiefs of the family agreed upon him as the next holder of the name. Kava was served to him and the customary feast was prepared and eaten. At the serving of the kava and at the feast Falemalama, who has held the name Tuiasosopo until two or three years ago and who resigned the matai name, participated.
At the close of the testimony offered by Mariota and his witness, the objector Petelo announced that he and his supporters decided to offer Falemalama as their candidate instead of Galu. Mariota objected to this procedure and the court sustained his objection and offered to postpone the trial until he could prepare his case to meet the new conditions, but after a conference Mariota decided to proceed.
In behalf of the candidacy of Falemalama it appeared that he had first taken the name in 1906 — the testimony pointed to the fact that he is the son of a former holder of the name, Tuiasosopo Peni and grandson of a holder of the name, Tuiasosopo Tuimalu. In 1921 Falemalama resigned his name in favor of Sarnia who took the name Tuiasosopo, but about a year after this Sarnia died and Falemalama resumed the title, which he has held up to a few years ago, when being pronounced unable to work by the Chief Medical Officer he was given a certificate to this effect and exempted from taxes, he thereupon resumed the *463name Falemalama, and since that time there has been no holder of the name Tuiasosopo.
Mariota is undoubtedly the son of Tuiasosopo Sarnia and Falemalama is without a doubt the son and grandson of holders of the name. These facts are not disputed. Mariota also claimed that his father Sarnia was the great great grandson of Tuiasosopo Tiumalu. This was disputed by Falemalama and his witnesses.
While from a family inheritance standpoint both Falemalama and Mariota have strong claims to the name Tuiasosopo, with strength of Falemalama’s claim perhaps predominating, yet the fact that Falemalama is at least seventy years old and has been certified to be in such physical condition that he is exempted from taxes, weighs heavily against him. That he is no longer a power in the family is shown by the fact that the great majority of the matais of the family are no longer willing to obey his wishes. Mariota is a young man and if he is given the name he will in all probability hold it for many years and thus save the family from dissension bound to arise in choosing a new matai.
It is the opinion of the court that the interests of the family would best be served by giving the name Tuiasosopo to Mariota and this accordingly is its decision, but the court does not feel the interests of the family can be well served by a matai who does not live in the Village where the family of which he is the matai has its situs and accordingly will require of Mariota that he go to Vatia at frequent intervals in order to carry on the business of the family of which he is the matai.
The costs of $35.00 will be paid by Petelo, Falemalama and Galu. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484980/ | DECISION
This case came on to be heard on the 2nd day of November 1932 at the Courthouse in the Administration Building before Chief Justice H. P. Wood, Associate Judges Muli and Puletu.
The matai name Fanene was filed for registration by Filo and objections were made by Taofi, Pulu and Laufaia.
After the case originally came to trial at the request of Pulu and Laufaia the case was adjourned for two weeks in the hope of settlement, but as no settlement had been effected, the case proceeded, and it was announced that Pulu had agreed .that the name should be given to Filo, which left three claimants Filo, Laufaia and Taofi.
*465Each of the three claimants traces his descent from the original holder of the name Leulua’ialii, but none of the three agree as to who the descendants of Fanene Leulua’ialii were.
From all the testimony it appears reasonably certain that the last lineal descendant from Leulua’ialii was Fanene Mose and that this Fanene was deprived of his name by a Mauga because he did not embrace the religion of the London Missionary Society.
At that time there were two Maugas, Manuma and Lei. After the name Fanene was taken from Mose, Manuma gave the name to Tavai and Lei gave the name to Mataumu. Fanene Tavai died first and Fanene Mataumu later resigned the name in favor of Fanene Tili. As there had been two holders of the name in the persons of Tavai and Mataumu, so now another Fanene was appointed to hold the name with Fanene Pulu. This man’s name was Vaomaolo.
Filo, who is the son of Fanene Pulu and the grandson of Fanene Tili, claims that Tili was the great great grandson of Fanene Fogatau, who was the grandson of Leulua’ialii.
Taofi who is the son of Kaisa, who he calls Too, and the nephew of Fanene Vaomaolo who was the son of Mataumu, claims that Mataumu was the grandson of Fanene Fogatau and the great grandson of Leulua’ialii.
Laufaia traces his descent through a woman Manu, who was the sister of Fanene Mose, who is claimed to be a great grandson of Leulua’ialii.
It will be seen that there is considerable variation in the testimony as to the structure of the family tree, but this much seems certain, that in the memory of living man, the following have held the name Fanene:—
1. Tavai
2. Mataumu
3. Tili
*4664. Vaomaolo
5. Pulu
Filo is the son of Pulu and the grandson of Tili — there seems to be no question of this relationship.
Taofi is according to his testimony the grandson of Fanene Mataumu and the nephew of Fanene Yaomaolo.
Laufaia is the grand-nephew of Mose, whose father is said to have been Fanene Tafao.
When this case is put on paper there does not seem to be any doubt that Filo has the best hereditary right to the name Fanene. His descent is direct from his father and grandfather while the descent of Taofi and Laufaia are both through members of the family who are not proven to hold the name Fanene.
This Court cannot under its present mandate from the Samoan people decide matai names except on the strict basis of heredity. Worth and ability go for naught in considering successors for matai names. On the basis of heredity it is the unanimous opinion and decision of the Court that the matai name Fanene be given to Filo and that with this name he have all the rights and privileges thereof, including the lands of the Fanene family as trustee for it.
The costs of this case amounting to $25.00 will be paid as follows: — Laufaia $12.50 and Taofi $12.50. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484982/ | H. P. WOOD, Chief Justice
DECISION
This case came on to be heard on the 14th day of December 1932 before Chief Justice H. P. Wood.
In the year 1922 a survey of the land called Pogia, said survey having been made for an Aumavae in 1906, was filed for registration by the present Aumavae, a “matai” of the Samoan family in Leone.
Within the statutory period objections were made to this registration by Atofau, Samana, Tuugaifo and Tuiteleleapaga.
Prior to the time that the case came to trial — during the term of Judge Foxhall as American Judge — the objections of the above named chiefs were withdrawn and the land Pogia as surveyed and filed for registration by Aumavae was filed in Aumavae’s name.
The objectors then appeared and claimed that their objections had been withdrawn through the promises and connivance of Aumavae and his brother Faiivae, .the latter of whom had told them that if they would withdraw their objections Aumavae would register only the small piece of land called Pogia which they admitted that he owned *473as “matai”. After the objections were withdrawn Aumavae proceeded to register the land originally offered for registration.
Atofau, Samana and Tuiteleleapaga continued to use that part of the land called by Aumavae, Pogia, claimed by them respectively. Aumavae then brought an action of trespass aganst each of the objectors.
It appears from the testimony taken in the trespass action that Faiivae is called a brother by Aumavae and that he has an interest in the land Pogia; that after Atofau, Tuugaifo, Samana and Tuiteleleapaga had filed their objections to the registration of this land, he met them in Fagatogo and told them that if they would withdraw their objections Aumavae would register only that land called Pogia which they admitted that he owned.
It was on this statement of Faiivae to them that their objections were withdrawn. Faiivae does not admit that he did this with Aumavae’s consent or approval but on the other hand when he told Aumavae what he had done Aumavae did not repudiate Faiivae’s action. On this testimony the trespass case was dismissed and Aumavae was given permission to again file the land Pogia claimed by him, for registration and the objectors to this to record their objections.
The land case came on for trial on the 14th of December 1932 before the Chief Justice sitting alone, as all the District Judges were objected to by one or the other of the parties in the case.
The objection of Tuugaifo was withdrawn and the only objections were those of Atofau, Samana and Tuiteleleapaga. Atofau because of illness was not present in Court but his testimony was taken in the presence of the other objectors and Aumavae, in Taputimu. Tuiteleleapaga who died since he first filed his objection was represented by *474Napo, who is probably the logical successor to his father as the holder of the name Tuiteleleapaga.
In the trial of this case the testimony is entirely conflicting. Each of the parties gave evidence that the land claimed by them in the area claimed by Aumavae had been held, used and cultivated by their predecessors for many years before 1900 to the present time without objections by Aumavae until he first filed the land Pogia for registration in 1922.
Aumavae claimed that he and his predecessors had used and cultivated the land Pogia as surveyed and filed by Aumavae for registration an equal length of time and that he or his predecessors had permitted the several objectors to cultivate the land claimed by them. No evidence was given by any of the parties conclusive against the claims of the others.
Under all the evidence and the fact that the claims of the original objectors were withdrawn at the request of and on the promise of Faiivae, the so-called brother of Aumavae, who was admitted by Aumavae to have an interest in this land Pogia, and that Aumavae knowing of this after it was done did not repudiate Faiivae’s action but took advantage of it by proceeding to register the land without the objectors’ knowledge.
It is the judgment of this Court that Atofau, Tuiteleleapaga and Samana shall have title to and continue to hold the lands respectively claimed by them and that Aumavae shall have title to and hold that part of the land Pogia which the objectors admit is called by that name, and which they admit belongs to him as “matai” of the Aumavae family.
Further, that this land Pogia be surveyed by Aumavae and registered in the Court and that Tuiteleleapaga, Samana and Atofau respectively survey and register in *475the Court the lands claimed by them and awarded to them by this decision.
The costs of $50.00 in this case shall be borne as follows: $35.00 by Aumavae and $5.00 each by Atofau, Samana and Tuiteleleapaga. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484983/ | DECISION
This case was brought before the High Court to determine title to a small piece of land in Leone called Laloasi by Suafoa, who offers it for registration. Avegalio, an objector, who claims title to part of this land calls *476the land claimed by him Aupuga and Salavea who claims all the land offered by Suafoa except that part thereof claimed by Avegalio, Mulivai.
Avegalio has withdrawn his objection for the reason that Suafoa has agreed to give him the piece of land which he claims which is that part of the land offered for registration which lies on the western side of the stream running through the surveyed land from north to south.
Suafoa and his witness base their claim to the remainder of Laloasi on the ground that it is family land of the Suafoa family, which family they state has had the sole and exclusive use of the land during the lifetime of the past five holders of the name Suafoa; have lived on it and planted plantations on it without objection or hindrance from anyone for at least fifty years, except that at one time there was an objection to the burying of one of the Suafoas on the land by the Salavea family, which objection was disregarded.
One witness in behalf of the Suafoa family was an old lady named Milo, over seventy years old, who had lived on the land over fifty years, and testified that none of the Salavea family have lived on or cultivated this land in that time. On the contrary, that it has been exclusively used and occupied by the Suafoa family.
Salavea does not claim the land as the matai of a Samoan family but as an individual. His claim is based upon his statement that the land was given to his grandfather by his great-grandfather Sua, that this grandfather gave it to Salavea’s father and that his father gave it to him. Salavea says that he has not lived on the land since he became a matai, which he says was about twenty years ago, but the Court records show that he became a matai in 1889, forty-three years ago. He also claimed that his father lived on this land and built houses *477on it in the past, to the eastward of the land claimed by Avegalio and while he does not deny that the Suafoa family has been living on the land for many years, yet he states that such occupancy is by the permission of him and his predecessors in title, especially by the permission of his Aunt Sa, a woman eighty-four years of age, his father’s sister.
Sa’s statement is that Suafoa and his descendants have lived on the eastern part of the land (east of the stream) and that she personally gave permission to Suafoa Penupenu (the fourth in line from the present Suafoa) to live on the land in her house and that against her will after leaving her house he built a house for himself on this land and subsequently another house and continued living on the land and that his successors have lived there for fifty years but until how recently she does not state. She also testified that the Salavea family were also living on the land when the American Flag was raised. She claims the pule to the land at the present time.
As the parts of the land filed for registration claimed by each of the parties at the time of trial are not surveyed, this Court cannot now accurately apportion it by this decision. It seems to be agreed that Avegalio is entitled to that part of the land offered for registration which lies west of the stream and north from the road passing through it to the northern boundary. As to this piece of land it is the decision of the Court that the title to it is to Avegalio. As for the rest of the land, it is the decision of the Court that the title thereof is in the matai name Suafoa, if for no other reason, that the weight of testimony is that the Suafoa family has had an uninter-' rupted and adverse use of this land for a period of at least forty years under a claim of right, whereas the Salavea family has not used or cultivated this land for at least twenty years.
*478If. the parties desire a more precise definition of the boundaries of the land claimed by them, let them have them surveyed for registration in this case.
Court costs of $25.00 to be paid by Salavea. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484997/ | JUDGMENT
This case involving .the succession to the High Talking Chief name Tuaolo in Pago Pago came on to be heard before the High Court on the 16th day of September 1936.
Present: Chief Justice H. P. WOOD, District Judge PULETU, District Judge MULI.
The candidates for the name were, proponent, Katina *534represented by Counsel Tupua; and objectors Manutapili represented by Counsel Fano and Amisone represented by Counsel Asuega.
The proponent and objectors all named three of the former holders of the name as follows: — Tuaolos Leaoa, Tuli and Maliuga. Manutapili in addition to these named Tuaolos Fealofani and Siasaga. Amisone also named Siasaga.
The evidence offered by Katina which was uncontradicted, is that he is the grandson of Tuaolo Leaoa. Manutapili is the brother of Tuaolo Maliuga. Amisone is the son of the brother of Tuaolo Tuli by a second marriage.
Each of the candidates testified as to the service rendered to the last holder of the name Maliuga. Both Katina and Amisone and three witnesses for each stated under oath that Maliuga immediately before his death made a request that each of them respectively be considered by the family as the holder of the name after his death. Katina and Amisone are comparatively young men; Amisone being a teacher in the public school. Manutapili is not a young man.
Under the rule of “hereditary right” recommended to the court as a guide to its decisions in matai name cases in the Fono of 1926 it seems to all the members of the Court that Manutapili more nearly fits in with the requirements of this assumption than either Katina or Amisone. An own brother, we think, is closer in relation to the deceased holder of a matai name than a grandson of a former holder, especially as the father of Katina did not hold the name; and certainly Manutapili being the brother of the last holder of the name is closer in relationship than Amisone who is the son of a brother of a former holder of the name.
It is accordingly ADJUDGED AND DECREED that the matai name TUAOLO shall be held by MANUTAPILI *535of Fagatogo, on the condition however that he from the time of assuming the name change his residence to Pago Pago, which is the situs of the Talking Chief name Tuaolo.
Court costs of $25.00 shall be paid equally by Katina and Amisone. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484984/ | DECISION
This “matai” name case came on to be heard by the High Court on the 18th day of January, 1933.
Presiding: Chief Justice H. P. Wood
Associate Judge Puletu
Associate Judge Muli
The name Levao of Tau was offered for registration by Taa and the objectors were Puipui, Tuanuu and Maloata. Prior to the hearing of the case Puipui joined with Tuanuu in favor of the latter’s candidacy. The present parties are Taa, Tuanuu and Malaota.
It appears from the testimony that this case involves only the name Levao. There are no lands belonging to the name, which appears to be a courtesy .title given many *479years ago by a member of the Tuimanua family, Lalopua, to a man who had rendered sufficient service to him. The name has been held at different times by members of the Punuluu family to which it was originally given, and other times by the Nuualofa family.
Taa, a member of the Nuualofa family, has not lived in Manua for about twenty years. His home has been in Utulei. Tuanuu, a member of the Punuluu family is a “matai” holding a high talking chief’s name at the present time in Ofu; and Maloata, also a member of the Punuluu family is not a “matai” and lives in Tau.
Taa gives as the last holders of the name, Sautia, Tagipo, Peu, Sava, Toliatoato, Mana and Lologo. He traces his descent from Toliatoato and shows that he is this Levao’s great great grandson in the female line.
Tuanuu gives but five holders of the name and traces his descent from Fauato, whose great great grandson he appears to be. The five last holders of the name as given by him are Sautia, Tagipo, Tote, Gutupio and Fauato.
Maloata is admitted to be the true son of the last holder of the name. He gives the last four holders of the name Levao only, and as follows — Sautia, Vaaia, Taufaasoa and Mana.
It will be seen that all the parties agree that Sautia, who was a member of the Punuluu family was the last holder of the name. Two of them agree that Tagipo preceded Sautia and none of them agree on the past holders of the name.
This Court decides “matai” name questions on the basis of heredity. This being the case how can it be held that any of these candidates have as good a right to the “matai” name as Maloata. They all agree that he is the son of the last holder of the name and it is not proved that there ever was a Levao Toliatoato or Fauato from whom Taa and Tuanuu respectively claim descent. Even if it is admitted that there was a Toliatoato or a Fauato, Taa and Tuanuu *480are great great grandsons respectively of these Levaos while Maloata is the son of the last holder of the name.
It is the unanimous decision of this Court that the name Levao be given to Maloata and that the cost of $25.00 be paid in equal parts by Taa and Tuanuu, that is $12.50 each. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484986/ | *482DECISION
The Matai name case Afu came on to be heard by the High Court on the 24th of February 1933 before Chief Justice H. P. WOOD, and Associate Judges MULI and PULETU.
The proponent of the name Semaia bases his claim upon the alleged fact that he is the grandson of the sister of the last holder of the name.
It is not certain from the testimony for how long a period the matai name Afu has been vacant but it is reasonably certain that there has not been a holder of the name for the past 25 or 30 years and in the meantime the pule of the Afu family and its lands has been held by the matai name Paopao, first by Paopao Pati and later by Paopao Petelo; and this pule has been exercised by the Paopaos with the consent of the Afu family.
The affairs of the family of Afu are not clear from the testimony. It was stated that there were four matais of the Afu family, Paopao, Afu, Sami and Suaava. Of these four it is distinctly stated that Paopao is the chief matai. This would indicate that a mistake has been made by the witnesses and that the real fact is that Afu is the sub-matai of the Paopao family. This would explain why Paopao upon the vacating of the name Afu by death or otherwise should have the pule of the lands of the sub-matai.
Sami has filed an objection to the registration of the name Afu by Semaia and bases his claim upon the alleged *483fact that he is a successor of a holder of the name Afu through one Gauia who did not hold the name Afu, but that he Sami had been exercising the pule of the Afu lands and family affairs through the direction and consent of Paopao.
Upon these facts it may be reasonably conjectured that Semaia is a descendant of the family of the last holder of the name while Sami although not a descendant of a holder of the name Afu has been exercising a pule of the Afu lands by the consent of the chief matai of the Paopao family, of which the name Afu is a sub-matai.
Semaia was unwilling to take the stand in his own behalf and only appeared as a witness by direction of the Court. He apparently knew but little of the affairs of the family and was a most unsatisfactory witness by reason of the fact that he is extremely deaf. The Court has serious doubts as to his fitness to hold a matai name and as such conduct the affairs of the Samoan family as among themselves and to represent them before government officials.
This Court has a mandate from the Fono which directs it to award the matai name to that candidate having the best hereditary right to it and although Semaia’s hereditary right is no doubt superior to that of Sami yet the Court does not consider that this mandate directs it to appoint such a man as matai as, in its opinion, will be detrimental to the affairs of the family over which he is to have such a large control.
This family has been without a matai for over 25 years and in the opinion of the Court it will be less harmed by leaving its affairs in the status quo than by having such a matai as Semaia.
In this case the Court will neither appoint Semaia or Sami as matai of the Afu family but as indicated from the *484bench will hold the case open until both parties agree on a matai, or a majority of the Afu family agree upon a candidate who will be acceptable to the Government of American Samoa. If and when this is done the Court will register the matai name for the person so chosen without further cost, and the cost of the trial in the present case will be divided equally between Sami and Semaia, that is $12.50 each. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484989/ | *492The High Court convened at the Courthouse in Fagatogo on Thursday May 11, 1933 at 9:00 a.m. to hear the above entitled case.
Presiding: Chief Justice E. C. JOHNSON, Associate Judge
PELE, Associate Judge MULI
Túfele, District Governor of Manua: I request the Court to please postpone this case as we would like to try and settle this case outside of court. Especially as I am the District Governor, I therefore request the Honorable Court if this case could be postponed and try to settle outside either among the parties concerned or before a Samoan commission.
Chief Justice: The Court would like to ask you a question, Túfele. Pisa of Olosega has filed for registration the matai name Gala and Moelupe has filed an objection. Do you represent either side in the case — just who do you represent or who are you interested in?
Túfele: I have no special interest in this case except as a District Governor I would like to see if this case could be settled outside of court for the benefit of the family in order that they may live in peace and happiness.
Chief Justice: Do you mean one family or both families?
Túfele: Both families.
Chief Justice: Moelupe stand up. You object to the registration of the name Gala by Pisa, do you think that there is any chance of arriving at a satisfactory conclusion of this case if it is postponed today?
*493Moelupe: There is no chance that I know of because I have already tried to settle this matter outside of Court but I have failed.
Chief Justice: Have you made an honest attempt to get together with Pisa’s family to try and settle it — how many times have you tried?
Moelupe: About two or three times I have made an attempt to Pisa to withdraw this case from Court but Pisa refused.
Chief Justice: Pisa, what have you to say about this, do you want the case contined? [sic]
Pisa: I would like to have the case tried.
Pele: We would rather see matai name cases settled outside.
Chief Justice: The Court would always rather see a matai name case settled among the people themselves but I want to remind you that this case was up for trial three weeks ago when Pisa came to see me in the movie pavilion and I warned him that he must make an attempt to try and settle the case outside. We must settle the cases sometimes. We have Pisa and Moelupe, the two parties to the case here who want to try the case but we have on the other hand Túfele who is the District Governor in Manua and who wants to postpone the case and try to settle it outside. It does not look now as if they will be able to settle this case. The Court will say this. The case will be continued once more if one of the parties will guarantee the cost of ten dollars in this case for bringing in the two district judges and preparing for the case. If this ten dollars is not guaranteed by anyone the case will go on this morning.
Pisa: As far as my side is concerned we would like to settle this case outside of court as District Governor Túfele suggested but there is no question of settling this case outside. Moelupe made one attempt but he was trying *494to settle this case in his favor which caused more argument, therefore we came before the court this morning and we think it is better to try the case.
Chief Justice: Is there anything else you want to say, Túfele? It appears that both parties are here with their witnesses and want to try the case and unless very good reason is shown we will have to go ahead and try the case.
Túfele: As I previously stated before the court I have no particular interest in this case except that I would like to see the parties settle this case outside of court, but I can see now that the parties now want to try the case and it is better for the court to try the case now.
Chief Justice: The court has a great regard for what Túfele says and would be very reluctant to try the case if he states that it should not be tried, but it now appears from his last statement that it is best to go ahead with the case. Pisa, will you take the stand?
This is the matai name case Gala. The registration of the name was filed by Pisa of Ofu and objection to the registration of this name has been made by Moelupe of Ofu. Before we proceed I surmise that it is almost unnecessary to remind the respective parties that you have a Judicial Commission that has been created to hear cases of this kind, that is, matai name and land cases. You find yourself before the High Court this morning and the High Court presumes that you have waived your right to go before the Judicial Commission. If you do not choose to take this case before your Commission the decision of this court will be absolutely final. You will have no appeal from the decision which the court will arrive at.
Proponent takes stand and is duly sworn.
Q. Pisa, are you represented by counsel?
A. Yes, Savali.
*495Q. Where do you live, Pisa?
A. Ofu.
Q. How long have you been living in Ofu ?
A. About three years.
Q. Where were you living before you went to Ofu?
A. InTutuila.
Q. Whereabouts in Tutuila?
A. Pagatogo.
Q. How long were you living in Fagatogo ?
A. About twenty years.
Q. How old are you ?
A. I think about twenty-seven.
Q. Are you a matai?
A. No.
Q. If you are not a matai are you a member of the Gala family?
A. The Gala family have chosen me to be the matai of the family.
Q. How many members are there in the Gala family? A. There are fifteen matais of the Gala family.
Q. How many people are in the family?
A. Two members.
Q. Is the Gala family a large or small family?
A. A large family.
Q. I want you to answer my question that I asked before as to whether you are a member of the Gala family.
A. No.
Q. Are you aware of the fact that the Fono has passed a mandate down to the court that only matais shall be selected by virture [sic] of their hereditary right.
A. I do.
Q. Who do decend [sic] from in the Gala family?
A. I descend from Seu.
*496Q. You say that the Gala family have gotten together and request that your name be posted for the name Gala.
A. Yes.
Q. How many members in that family supported your candidacy for the matai name Gala?
A. Thirteen.
Q. Are they men or women?
A. They are all matais.
Q. In other words there are fifteen matais in the Gala family.
A. No.
Q. You testify [sic] a few minutes ago that there were fifteen matais in the family. I want to find out now how many there are.
A. Two.
Q: Who is the chief matai?
A. Muasau.
Q. Is there a lesser matai in the family, what is his name, if there is.
A. Yes, Seu.
Q. Which name do you want, a chief matai name or the lesser matai name.
A. The name Gala which the family chose for me.
Q. Is the title that you aspired to a vacant title or is it held by some one else.
A. Vacant.
Q. Then you are going to be one of the lesser matais under Muasau.
A. Yes.
Q. Is Muasau living now?
A. Yes.
Q. Is Seu living?
A. Yes.
Q. Does [sic] Muasau and Seu support your candidacy?
A. Yes.
*497Q. You stated that the Gala family is a very large family — fifteen members who support your candidacy is not a third of the family, is it?
A. First the Muasau and Seu have met together.
Q. That is not the question. Pisa, you testified that the Gala family is a very large family and you only have fifteen people who supported your candidacy — how many people are there in the Gala family, can you tell us that?
A. Just two members.
Q. Who was the last holder of the matai name Gala ?
A.. GalaMagalei.
Q. Did you know GalaMagalei?
A. No.
Q. Who held the matai name Gala before Magalei?
A. If the court please I do not know the history of the family as I said I have only been living in Ofu for only a few years, but I have my counsel here Savali who can tell the history of the family.
Q. Do you think you could make a good matai — why did not Savali file the name for registration? Your counsel will have a chance to assist you after we have finished questioning you. Can you answer the question?
A. Gala Falemalu.
Q. Who held the name before Falemalu ?
A. Taatu.
Q. Who held the name before Taatu?
A. Mulivai.
Q. How does it happen that your memory has been so recently refreshed — you did not know it a minute ago.
A. My side have agreed Savali to make the story for the family.
Q. You are the candidate and you must be able to trace your own ancestry. I am afraid you are going to find yourself outside of court before long. Let me enlighten you Pisa, as to what principles the court uses in selecting a man *498for a matai name. They [sic] are three principles — the first one is, that, is the person who files for the name a true member of the family. That is the one we are principally interested in now because the court cannot see at the present time how you have any hereditary right to this title. The court will proceed. Your case has not been prejudiced in the least. The court is going to find out right now whether you have any connection with any other holders of the matai name Gala or any other matai name.
Seu: I request the court to permit Savali to give the court the history of the family as Pisa does not know much about the history of the name.
Chief Justice: Do you claim that your candidate Pisa is a direct descendant of a holder of the matai name Gala?
Seu: Pisa married a woman who descends from this name.
Chief Justice: We will give you a chance to testify on the stand later, Seu. Pisa, did you know Gala Magalei the last holder of the name?
A. No.
Q. Do you know how many years Gala Magalei held the title?
A. No.
Q. When did Magalei die?
A. I do not know.
Q. Who has held the title since Magalei died?
A. None.
Q. Do you know the relationship between Magalei and Falemalu?
A. No.
Q. Do you know the relationship between Falemalu and Taatu?
A. No.
*499Q. Do you know the relationship between Taatu and Mulivai?
A. No.
Q. Did you render any service to the matai Gala Magalei?
A. No.
Q. Who is your father?
A. TeoofUpolu.
Q. Did your father ever live in Ofu?
A. No.
Q. Do you know whether the lands that go with the name Gala are small lands or large lands?
A. I only heard that they have a lot of land of that name, but I do not know.
Q. In other words you do not know the boundaries of the land and belonging to that name ?
A. I do not know.
Q. You are proposing your name here to be the matai of the Gala family when you do not know where the lands are, you have no hereditary right, you do not know the descent between the other matais, in fact you know very little about it.
A. That is right.
Q. You nor your father ever planted any lands there?
A. That is right.
Q. You did not build any houses on the land ?
A. No.
Q. Have you ever been convicted of any crime, Pisa?
A. Yes, a long time ago.
Q. What was the crime?
A. It was a case between and my former wife, [sic]
Q. By all of the Samoan customs that exist do you honestly and conscientiously believe you have a right to this matai name Gala?
*500A. It is only through the consent of Seu and Muasau that chose me.
Q. Suppose Seu should come to me and say that he would like to have me the matai name Gala. I could not hold that name because I have no hereditary right to the name.
A. It was not only the consent of these two men for me to hold the matai name Gala but I claim I have a little right to this name through my marriage.
Pele: Why let Muasau and Seu chose [sic] you as a holder of this name Gala?
A. It is through there [sic] being satisfied as to my service rendered to them.
Q. Is that the only reason why Muasau and Seu want you to hold the name Gala, or is there another reason?
A. The other reason they know I married a woman of this family and have children by her.
Q. Your wife who is a woman of this family, who is her father?
A. Seu is the father of my wife.
Q. Is Seu a son of Gala?
A. Yes.
Q. What Gala was that?
A. Gala Taatu.
Q. Who is Gala Taatu’s father?
A. I do not know.
Chief Justice: You just testified that Seu’s father was Gala Taatu, is that correct?
A. Yes.
Q. Are you not aware of the fact that Tuiofu of Olosega married Vai who was a daughter of Taatu and it was their son who was named Seu? It is not the son of Taatu but the grandson. If you do not know, alright.
A. I do not know.
Muli: When Muasau and Seu want you to hold the name Gala did you notify the other party of this case?
*501A. Yes. Seu sent for them.
Q. Did they meet together?
A. No. Moelupe was not present in this meeting.
Q. How many meetings of the family that they have been trying to get together in your favor?
A. Three.
Q. Moelupe was not present in those meetings?
A. He was not present, he was invited to come to all these meetings but he did not come.
Chief Justice: Savali, the reason for the court taking Pisa as a witness was because it wanted to get his testimony as quick as possible. You can cross-examine and after you finish you can take the stand.
Savali: No questions.
Chief Justice: Do you want to get on the stand yourself?
A. Yes.
Q. Pisa, are you going to be responsible for and vouch for everything your counsel says?
A. Yes.
Q. Do you want to ask any questions Moelupe ?
Moelupe: I have a counsel.
Q. Does your counsel want to ask any questions? You do not have to ask them. If counsel representing Moelupe wants to cross-examine Pisa, then go ahead.
Utu: Do you know the piece of land which is known as the home of the name Gala in Ofu?
A. I do not know the boundaries of Gala’s land.
Chief Justice: Who has been cultivating the lands of Gala in the last few years ?
A. As I previously stated, I do not know.
Pele: The place where Gala is supposed to build a house and live are you living in that place now?
A. No.
*502No further questions, witness excused.
Q. Pisa, have you any other witnesses ?
A. Savali and Seu.
Witness takes stand and is duly sworn.
Chief Justice: Your name is Savali?
A. Yes.
Q. If you have a statement to make confine your statement to what you have seen with your own eyes and not what you have heard from the other people. Who prepared this list that you sent down here to our office?
A. I.
Q. This will be introduced into the evidence and marked exhibit “A”. Is that the statement that you are going to make now?
A. Yes.
Q. If that is all that you are going to say the court will briefly outline what it is and you will not have to testify to that.
A. Thank you.
Q. The court thanks you for preparing this information, whether it will cause you to win or lose. It wishes that every Samoan who brings a matai name into court would prepare one just like it. Is there anything else you want to say than what is contained in this paper.
A. No.
Q. Your [sic] are counsel representing Pisa who is a candidate for the matai name Gala. Pisa has testified that he was the son of Peo of Upolu. Pisa married Tuiloa.
A. That is correct.
Q. Tuiloa was the daughter of Tuiofu, was she not?
A. No.
Q. Tuiloa was the daughter of Seu ?
A. Yes.
Q. Seu was the son of Tuiofu ?
A. Yes.
*503Q. Tuiofu married Vai, did he not?
A. Yes.
Q. Vai was the daughter of Gala Muasau?
A. Daughter of Muasau Taatu.
Q. Tuiloa is a descendant of Gala Muasau Taatu?
A. Yes.
Q. Pisa married Tuiloa?
A. Yes.
Q. Pisa is not a descendant of the Gala family, is he?
A. That is right.
Q. Only Pisa’s wife is a descendant?
A. That is right.
Pele: Do you know the lands of the name Gala?
A. I know the two lands.
Q. Do you know the land in the village that the family lives?
A. Yes.
Q. What is living there now?
A. Moelupe’s family is living there now.
Q. How about the lands in the bush? Who is using those lands?
A. Used by Moelupe branch.
Q. Why is that Moelupe is using these lands and you are a descendant of the name Gala ?
A. Because these lands have always been used by Moelupe family and now at the present time we try to get these lands back from them.
Q. Is that the reason why you want Pisa to hold the name Gala in order to get the lands back?
A. Yes, we chose Pisa to hold the name Gala and we desire for him when he got the name to go and live on the land of Gala.
Q. Who was the last Gala?
A. Magalei.
Q. Does Magalei live on the lands of Gala?
*504A. No.
Q. Who was before him?
A. There was no other Gala.
Q. There was no other Gala before that?
A. GalaFuamalu.
Q. Was Fuamalu living on the lands of Gala ?
A. Yes.
Chief Justice: Who was your father, Savali?
A. Lape.
Q. Did he marry Faliloa?
A. Yes.
Q. Who was Lape’s father?
A. Gala Taatu.
Q. Therefore you are the grandson of a former holder of the name Gala?
A. Yes.
Q. Did Lupe ever hold the name Gala ?
A. No.
Q. The court then wonders how you chose Pisa to hold this title when he has no right, while you yourself are a grandson of a holder of the name.
A. It is because it was the consent of the descendants of this name that Pisa who is the cousin of one of the descendants should hold the name.
No further questions, the witness excused.
Chief Justice: Have you another witness Pisa?
A. Yes, Seu.
Witness takes stand and is duly sworn.
Q. Seu, you live in Ofu, do you not?
A. Yes.
Q. Who did you marry?
A. Latilua, who was the daughter of Liufau.
Q. How many children have you ?
A. Four.
Q. Is one of them named Tuiloa?
*505A. Yes, she is the younger one.
Q. Who did she marry?
A. Pisa.
Q. The candidate for the name Gala ?
A. Yes.
Q. Can you give us any more information than has been given us by Pisa and Savali? If you cannot give us anything new the court will take cognizance of the fact that what you are about to say will corroborate the testimony already given.
A. No additional new thing that I want.
Q. If there is nothing new the court will take Judicial notice that what you would give would substantiate the evidence by Pisa and Savali.
Moelupe: Is there a descendant of Gala Falemalu in my side?
A. Yes.
Q. Where does he live, in Of u?
A. He is living with Leui.
Q. Where does Gala Magalei come from?
A. Tau.
Q. Where was Gala Taatu living?
A. He lived in Lauf au.
No further questions, witness excused.
Chief Justice: You have no more witnesses, Pisa ?
A. No.
Q. Moelupe will you and your witnesses proceed.
Objector takes stand and is duly sworn.
Q. Where do you live Moelupe?
A. Ofu.
Q. How old are you?
A. Forty-one.
Q. Areyouamatai?
A. Yes.
Q. What is your matai name?
*506A. Moelupe.
Q. Are you going to give up this matai name and take the title Gala if the court awards it to you?
A. I do not want to be the holder of this name, but I filed this objection because these people have selected a candidate for the name.
Q. The court has assumed that you had a candidate or you were the candidate yourself. The court finds outs [sic] that you filed the objection because Pisa has no right to the name but then what is the court going to do. Are you cultivating the Gala lands now ?
A. Yes.
Q. By virtue of what right ?
A. Because I descend from Gala.
Q. Who has the pule sili of that land ?
A. Misa.
Q. Who is Misa?
A. I mean the name Misa, that is the holder of the name Misa has the pule sili of the land and the name Gala.
Q. Is Moelupe a matai or a lesser matai of the Gala family?
A. He is a matai of the Gala family.
Q. Is he a chief Matai or lesser matai ?
A. He is the matai sili.
Q. Is Misa living at the present time?
A. There is a holder of the name Misa.
Q. What is the connection with the name Misa and the holder of the name Gala ?
A. If the court will permit me to make the story.
Q. Go ahead.
A. Misa Alefua married with Tuumafua who was the daughter of Gala. They had three children, Misa Tuimalie, son, Agafala, daughter, and Misa Vaepapala, son. Agafala then married Mao. They had a son who was Puni. Puni then married with a Tongan woman who was Elisiva. *507They had a son who was Misa Poto. Misa Poto then married with Tufele’s daughter in Fitiuta. Her name was Fata. They had a son and that was me. That is my interest and claim to the name.
Q. The court has your genealogy all right but you say you are not a candidate for the name. The court has deposited in your hands the right to give some individual the right to hold the matai name Gala. We have only one candidate who wants the name, who is Pisa and Moelupe objects to that but has no candidate himself for the name.
Utu: The candidate of our side is Tunufai.
Chief Justice: Moelupe, why have you not mentioned Tunufai before?
Utu: Because our family did not select a candidate at that time but we filed the objection to this case and if we are going to win the case then we will go back home and select the man for the case.
Q. You have no business bringing this case into court until you have decided on who is going to hold the name. You are going to waste the court’s time and there will be no one appointed to the name and then you will have to come back into court for another day or two and increase your costs two or three times what it ordinarily should be.
Utu: Our family did not have any meeting in Tutuila but we only met now here in Tutuila and if the court will be willing to accept Tunufai.
Chief Justice: Moelupe, how many of your family are present here in court this morning?
A. Nine.
Q. How many have you in your family altogether ?
A. Lots of them — plenty.
Q. Do you think your entire family would be willing to accept Tunufai as the candidate for the name Gala?
*508A. Whoever myself and Utu agrees upon the whole family will agree.
Q. That does not sound any too well to the court. When you come into court this morning you did not have a candidate.
A. We had a talk and agreement with Utu before we came in court that our candidate was Tunufai.
Q. Tunufai, stand up. How old are you?
A. Thirty-three.
Muli: Who is taking care of the lands of the Gala in the village of Ofu?
A. Me.
Q. Are you living on land of Gala or land of Moelupe?
A. My sisters are living there on the Gala land, but I am living on another different land.
No further questions, witness excused.
Chief Justice: The Chief Justice has this observation to make after consultation with his associates. In the first place the Chief Justice and his associates are fully convinced that Pisa has no right, title, or interest in the name Gala, in that he is not a direct descendant of any of the Gala’s name. It is true that Tuiloa is a descendant of Gala, but Tuiloa is only Pisa’s wife. On the other hand we find Moelupe coming in here this morning merely objecting to Pisa’s registration of the name and having no candidate himself. Of record, there was no person claiming the title. Moelupe merely objected. The court asked if he was a matai and he said yes. The court asked if he would resign from the matai name Moelupe if given the name Gala, and he said no.
The court is not going to render a decision, that is if and when the case comes to trial again, the court is going to say this, that the question is going to stay in status quo, that is the person who is now cultivating the land can still cultivate *509it until another court action is brought. The court is not giving the title Gala to anyone. The court will reserve the right to give the name to the one it thinks has the best right.
The court recognizes that Savali is a grandson of a holder of the name Gala and why he should come in this morning and want Pisa to hold the name, I cannot understand. Savali appears to be a direct descendant of the name Gala.
The Court thereby assesses the costs as follows: $12.50 to be paid by Pisa, and $12.50 to be paid by Moelupe. Just remember the title Gala has not been given to a soul. When the candidate for the name Gala is proposed again remember that he must be a man who has descended from the title Gala and has served the family well. Select a good man to hold the name and the court will give the title to him. Therefore, this case is dismissed and only by virtue of a new petition being filed can this case be reopened. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484990/ | DECISION
This is the matai name case Tuitele. The registration for the name was filed by Save on June 18th, 1933. Objection to the registration of this name was filed by Magauli or Tulifua on June 22, 1933. A further objection was filed by one Toamalama to both previous candidates on June 27, 1933. A still further objection was filed by Uaine to all of the candidates on June 30, 1933. And a final objection was filed by one Patolo on July 8th, 1933 to all of the candidates concerned. Therefore we have five candidates contesting each other’s right to the matai name Tuitele of the Western District.
Unfortunately the above mentioned candidates could not compose their differences after the court had waited several months in order that the Samoans could arrive at some decision as to who the next Tuitele should be. Therefore this case was set down for trial on Tuesday December 5th, 1933 and full testimony was taken as to all of the candidates’ rights to the name Tuitele.
The questions for consideration and determination by the Court are (1) the right of succession to the title of TUITELE, and (2) the determination of a successor out of the several claimants. The trial likewise calls for an opinion and decision concerning certain alleged Samoan customs and rights.
After listening to the testimony it is evident that the title TUITELE is an old name. Several of the holders of this name in years past have been classed as “KINGS” of Tutuila. To be sure, at the present time it is one of the most important matai names, and the name TUITELE is one of *511the highest Chiefs in the District of Falelima West, Tutuila.
Tuitele-Toomata-Penitila, one of the last TUITELE S and a District Governor of the Western District, died about the year 1902, leaving a widow and several sons and daughters. It seems that a few days before his death he created his son Salatielu, then a “Fitafita,” “TOOMATA” a princely title of the Samoans which was held by the late Tuitele his father. At that time that is to say in or about the year 1902 the matter of the selection of a new TUITELE was presented to the High Court for determination since there were many contenders for the title and their differences could not be composed in favor of any one particular candidate. The Court after listening to what appeared to be much testimony and little evidence handed down a decision signed by Judges Gurr and Mauga which provided in part as follows — “The present ‘Toomata’ is a young man (referring to Salatielu), enlisted in the service of the United States Navy. He has also stated that he did not wish now the title of his father, ‘Tuitele’, and as Atofau, Save, Maiava and Leoso and Toomata signified their desires to accept either Atofau, Save or Maiava as may be decided by the Court to assume the title, it is the opinion of the Court, for the considerations, opinions and. facts hereinbefore stated, that for the present the title should be vested in Save during his lifetime, or during good behavior, and at his death or earlier divesting of the title, the title should go to Toomata xxx.”
Tulifua commonly known as John Magauli one of the candidates who objected to Save offering the name Tuitele for registration testified that he was a descendant of one Taivai, who held the name Tuitele, the said Taivai being a half brother of Tuitele Penitila. He further testified that Toomata Tulifua first married the daughter of Lotoau and that they had a son who was Taivai. Taivai then married *512with Miliama who was the daughter of Poloa of Leone and as a result of this union they had a son who was Yuga and a daughter known as Pologa and still a further daughter Vaotupu. Vaotupu was married to Maugalei and as a result among other children that were born from this union the claimant Tulifua or John Magauli was their son. There is additional testimony indicating that Taivai married Miliama and as a result of this union several children were born among them being one Va, a female descendant. It appears further from the testimony that Talamaivao, a man from Upolu, Western Samoa married Va and as a result of this union the claimant Tulifua or John Magauli was born. It would appear from the testimony of this claimant that he is without a doubt a descendant of a former holder of the name Tuitele, and the testimony indicates that he is a descendant through the female side of a former holder of this name.
Leoso and Atofau presented as their candidate one Toamalama. Leoso introduced in evidence a written statement concerning the history of his right to name the candidate Tuitele. Leoso claims the pule of this name and claims that he has the right to select the holder of the matai name Tuitele. Leoso further claims that he is one of the original founders of the Town of Leone. That he as one of the original founders of this Town claims the right to choose the next Tuitele and all the authority with reference to this title was vested in him. It appears that one of the original holders of the title Tuitele lost his title in a game of lafoga and it further appears that for several generations there was no titular head of the family and that Leoso exercised authority. It does not appear contradicted that Leoso who was designated the “Matua” or “Head Tulafale” of the Chief Tuitele who was deprived of this title in the game of quoits, exercised considerable control of that district surrounding Leone on the Island of *513Tutuila. After this title was lost by virtue of the aforementioned circumstances it appears that the old Leosos made several attempts to regain the title and were subsequently successful and one Toomata Talae son of Somea once more acceded to the seat of his fore-parents and was called “Tuitele”; Leoso still retaining his position was “Matua” or head of the family. It cannot be doubted that Leoso one of the highest talking chiefs in Samoa originally exercised considerable influence in the selection of the Tuitele, however, it does not appear that the name Leoso has exercised any influence over the selection of the Tuiteles over the last half century. Atofau, a representative head of the division of the Tuitele family, likewise supported the candidacy of Toamalama in conjunction with Leoso. It appears that Atofau is the head of the family which is part of the Maiava family and it is through his connection with Maiava that he claims a right to the name Tuitele. It would appear that Atofau and Leoso in support of their candidate Toamalama as well as other candidates have not thoroughly become embued with a certain resolution which was presented to the Fono by the Samoan people in the year 1930, — which resolution provided that only those with the best hereditary right shall succeed to a matai name. The Court considers this resolution to have the full force and effect of law and the decisions in the past few years have been rendered in accordance with the wish of the Samoan people as expressed in the Fono of 1930.
The last holder of the name Tuitele was one Salatielu a son of Tuitele Penitila by his third marriage with one Vao of Iliili. It should be noted here that Save succeeded to the title Tuitele after Tuitele Penitila died, and held the said title until his death a few years later whereupon Salatielu the son of Tuitele Penitila succeeded to the matai name.
*514The next candidate to object to Save filing his name for registration as Tuitele was one Uaine, a faifeau of the L. M. S. Church living at Atauloma. From the statements made by Uaine on the stand and which were uncontradicted it appears that he is the son of Tuitele Penitila a former holder of the name in controversy. As aforesaid, it further appears that Tuitele Penitila was married at least four times and that Uaine the candidate or claimant for the name was born as the result of the union of Tuitele Penitila with one Tuamauga of Fagaitua. In the contradicted testimony it would appear that Uaine is a half brother of Tuitele Salatielu, the last holder of the name Tuitele. Tulifua, otherwise known as John Magauli, during the trial of this case contested the right of Uaine to succeed to the name on the ground that he was not a blood son of Tuitele Penitila, a former holder of the name. Tulifua was cautioned by the Court that if he made such a statement before the Court could take cognizance of said statement he would have to introduce proof to show that Uaine, a contender for the title, was not a blood son of the late Tuitele Penitila. Whereupon, Tulifua said he would later introduce testimony showing that his contention was true. No testimony was introduced discrediting Uaine and Uaine’s evidence or his contention for the title as given on the stand, therefore it must stand as correct.
The next candidate to object to Save offering the name for registration was one Patolo who claimed that he descended from Tuitele Faiivae Sipai. Fua who championed the candidacy of Patolo testified that when Atofau Leie married the daughter of Alaiasa of Upolu they had two children as a result of this marriage, a son named Leoso Ena and a daughter Matamanu. Utuga married Matamanu and as a result of this marriage a son was born who was named Tuitele Tafaivalu. Then one Sailua Faiivae married Matamanu and had a daughter *515Sailauasu. One Alemasalanoa of Falefa married Sailauasu and they had a son who was Faiivae Sipai. Tuitele Faiivae Sipai married the daughter of Savea and as a result of this union a daughter by the name of Motu was born. Tuitele Faiivae Sipai then married one Toso and they had a daughter who was Tausoa who Fua claimed was his mother. Tuitele Faiivae Sipai so the testimony indicates again married Sulifa and they had a son who was named Sipai. It further appears from the testimony that Tuitele Faiivae Sipai again married one Sina and as a result of this marriage Patolo, a claimant to the name Tuitele, was born. If the testimony of Fua is to be considered correct, and it has not been shown otherwise, it would appear that Patolo is a descendant of the former holders of the name Tuitele.
Save, who originally filed the name for registration on June 18th, 1933 testified as follows as to his right to the name Tuitele. He claims that Tuitele Leoo married with' Sina, and that as a result of this union a son was born who was named Tuitele Vaemalenoo. This son later married, one Vaoalii and they had a son who was called Tuitele Niuumi. Tuitele Niuumi then married one Matauaina and a son was born to this couple who was called Tuitele Vaema. Tuitele Vaema then married Saiautai and a son was born who was Tuitele Seuluulutavai. This son married a woman of Fagaitua and as a result of this marriage Tuitele Faasala was born. Tuitele Faasala married one Vaomaomao and as a result of this union a son Savevava was born. Savevava then married and a daughter was born to him by the name of Tomuailemotu. Salanoa of Fagasa then married this daughter and they had a son who was Tuitele Tumasitoga. Save claims that his right to the name in dispute comes from the first Tuitele right down to Tuitele Faasala which Save descends from. He further contends *516that there have been many holders of the name Tuitele from his branch.
Preceding the last holder of the name Tuitele, and by virtue of the decision rendered by Judges Gurr and Mauga in 1902, Tuitele Save held the name for a period of several years until the last Tuitele, Salatielu, acceded to this title at the death of Tuitele Save. It appears from the evidence that the present Save does not contend that he is a descendant of the recent Tuitele Save and it further appears that the present Save is not a descendant from the Toomata branch of the Tuitele family.
In view of the fact that the respective claimants to this name appear to have traced their ancestry and right to the title from various sources, it behooves the Court and therefore becomes incumbent upon this tribunal to reply more or less on certain evidentiary facts which happened within the lives and life being of certain witnesses appearing at the trial of this case.
It is more or less plain to the Court who the last several holders of the name Tuitele have been, however, in some instances the respective holders of the title Tuitele have been disputed. It is clear however to the Court that during the last 25 or 30 years certain known individuals have held the title Tuitele. The Court dismisses without prejudice the rights of several claimants who have testified as to their claim arising perhaps a hundred or more years back. The Court observes that on or about the year 1902 one Tuitele Penitila was a holder of this important name. That a few years subsequent to the year 1902 one Tuitele Save held this matai name, and that at his death some fifteen years ago Salatielu, a son of Tuitele Penitila, succeeded to the title by virtue of a court decision given about 1902. It is uncontradicted that the claimant Uaine who testifies that he is a son of Tuitele Penitila by virtue of Tuitele Penitila’s marriage with one Tuamauga as his second wife. The *517claimant Uaine therefore is a half brother of the late holder of the name Tuitele, Salatielu, and as such the decision of the Court is that said UAINE had the best right and claim to the name TUITELE, and the same is hereby awarded to him.
The costs of this case namely $125.00 are to be paid by each of the claimants in equal proportion — that is to say each claimant must pay the sum of $25.00. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484991/ | DECISION
In May 1933 the matai name Gala was set down for a hearing. Pisa filed the name for registration originally and Moelupe objected to Pisa being given the name Gala. After *518a hearing was had on this matter it developed that Pisa had no hereditary claim to this name and that Moelupe did not propose a candidate and the Court found it necessary to continue the case indefinitely in the hope that the name Gala would be bestowed upon some individual with the entire consent of the family as well as the other contesting parties.
On January 26th, 1934 the High Court convened at Tau, Manua for the purpose of hearing several matai name cases and the Gala name naturally was again set down for a hearing, at which time, Moelupe of Ofu had as his candidate one Tunufai and Savali of Ofu offered himself for the name.
Moelupe and his witnesses as well as Savali and his witnesses testified substantially the same as to who the past holders of the name Gala had been. They are as follows:
Gala Alailavai
Gala Mulivai (otherwise known as Muasau)
Gala Ta’atu
Gala Falemalu
Gala Magalei
Moelupe testified in addition to these people who had held the name Gala, that there was one Tamasoa who had held the name Gala later than any of the above mentioned candidates. Moelupe further testified that his candidate Tunufai was a direct descendant of the late holder of the name, Gala Tamasoa, and that as such a descendant from Tamasoa his candidate Tunufai had the best right to the name Gala. There will be more to be said on this score later in this decision.
Moelupe, in his testimony, stated that Tunufai, the candidate he proposed for the name was a son of the last holder of the name Gala, Tamasoa. He further testified that Tunufai was a blood son of Gala Tamasoa and Sivali. *519Since Moelupe and his candidate claim their right to .this name from the last alleged holder of the name Gala, being one Tamasoa, the Court does not find it necessary to concern itself with any of the testimony of Moelupe other than whether a Gala Tamasoa actually existed or not. This question has been seriously disputed by Savali who testified that he never knew of a Gala Tamasoa. Savali testified that he did know of a Tamasoa but he never knew of Tamasoa holding the name Gala. The Court called as its own witnesses, disinterested parties, in the persons of Sotoa, Misa, a county chief of Ofu and others, to ascertain whether they had ever seen or knew of a Gala Tamasoa. Some of these witnesses were more than sixty years of age and it was alleged by Moelupe and Tunufai that Tamasoa had the name Gala some fifteen years ago. These disinterested witnesses having been called by the Court as witnesses for the Court testified that they never heard of Tamasoa ever having the name Gala. Túfele District Governor of Manua was likewise called upon to enlighten the Court with reference to Tamasoa having the name Gala. Túfele in no instance testified that he had ever seen or heard of Tamasoa being the Gala. This is rather significant since Moelupe’s claim on behalf of his candidate is that his candidate is the son of the last holder of the name being one Tamasoa.
To the contrary Savali testified substantially as follows, that Gala Aliivaa, an old holder of the name married and as result of this marriage there was a daughter born who was named Fogasina. Fogasina later married Muasau and as a result of this union a son was born who was named Gala Muasau Mulivai. This son married the daughter of one Sotoa and as a result of this marriage there were several children born, one being Gala Fa’atu who married the daughter of Ena of Olosega. As a result of this union a boy was born who was known as Lapi, who is the father of *520the present candidate Savali. Lapi married the daughter of Moa of Fitiuta and as a result of this union one boy and two girls were born. The boy being Savali who is the present candidate for the name Gala.
It is quite clear to the Court that Savali has the best hereditary claim to the name Gala if we cannot consider Tamasoa as being the last holder of the name Gala. We also have additional testimony indicating that there are considerable lands that go with the name Gala and that on these lands some of the former holders of the name Gala, to wit, Mulivai and Ta’atu, have been buried. The testimony also indicates that Falemalu was buried there.
In view of the preponderance of the testimony against the existence of Gala Tamasoa, the Court has but one alternative, and that is to award the name Gala to Savali, who according to hereditary descent from previous holders of the name Gala has by far the best right to the name and it is so Ordered.
The costs of this case are $35.00 — $25.00 to be paid by Moelupe and $10.00 to be paid by Savali. | 01-04-2023 | 11-18-2022 |
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