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https://www.courtlistener.com/api/rest/v3/opinions/8485552/ | Justice Murphy
dissenting?
I am unable to join with the majority in this case. The question of whether or not aiatai titles should be litigated in the High Court in the first place has been questioned in a variety of forums an various occasions. I do not propose to rehash that issue. I do say that so long as these cases are being decided in Court the Court should comply with the procedure set forth by the Fono. I refer, of course, to the requirement that findings of fact and conclusions of law be made. A. S. C. A. S' i.Q4Q9id). Granted, Conclusions of law are difficult to come by, since we are not dealing with legal issues at all, but customs and traditions. ÍThe majority nevertheless makes an effort in its decision to announce a legal principle regarding the determination of "clans®.> As anyone who has heard very many of these cases knows every family and village has its own customs and traditions and methods of arriving at a consensus in the decision making process. The family leaders themselves often disagree as to precisely what these customs and traditions are. I believe that the Court should announce as its "conclusions of law* just what customs, traditions or if you will, rules it is using to reach its decision. One family may count its faletama from the first descendants of the original titleholder. A different family may count them from. the point of view that each succeeding titleholder creates a new "clan* or faletama. It doesn't matter which custom is followed, but the Court should announce what formula it is using. Likewise, the findings of fact should be specific. They inay be wrong, but they should be specific. In other words, a *138candidate should know why he lost and why the other fellow won.
In this case, the Court held that all candidates were about equal as to hereditary right, support of the clans iwithout deciding how many clans the family has) and forcefulness, character etc. The sol© determining factor announced was the fourth statutory consideration ie* value of the holder of the title to the family, village and country. In my opinion, this is not what the Fono had in mind.
The majority has examined the trial transcript and finds that the Court had before it sufficient evidence to reach the conclusion it arrived at. I don't doubt that mor do 1 argue that the candidate selected is not the • best choice. 1 am simply stating that the Court did not tell us how it reached its decision. It is required under the statute to do -so.
As pointed out by Counsel Burr in his brief, Chief Justice Jochimsen expressly rejected this method in 1975.
The family members look to the Court to make these findings, not only for purposes of the case at bar, but for future guidance of the family when the next vacancy occurs. If the Court does not make clear where it is coming from, it can choose whom so ever it pleases without any real explanation. This case was handled a bit too casually for me. The appellee didn't even bother to file a brief until compelled to do so, long after the time provided in the rules had passed. I'm sure the trial Judges took this case seriously, but that doesn't come across in the decision rendered. 1 would remand the case back to the trial Court to either expand or clarify their decision or to grant a new trial. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485555/ | PER CURIAM:
This is an appeal from a judgment of the Land & Titles Division of the High Court, which awarded the Matai title "La’apui" of the Village of Fitiuta. Title was awarded to the claimant Lefano Falealili, and a competing claimant, Va’alele Ale, now takes this appeal.
The appellant’s first contention is that the trial court erred in finding that appellee has a 1/16 hereditary right to the title. The basis for this holding is that appellee is descended from the first titleholder through his mother and also *8through his father. Since his relationship to the first titleholder on each side is that of a great-great-great-grandson (1/32), the trial court accepted his claim that his blood relation to the title was 1/16. This was the same relation claimed by the appellee, whose 1/16 relationship was based on his claim to be a great-great-grandson of the original titleholder. (Appellee, however, traced his ancestry to a different "original titleholder" than the one identified by appellant and some of the other candidates.) Appellee argues that it is contrary to Samoan custom for a person who is related to a title on both sides of his family to claim a greater hereditary right than if he were related on only one side.
This is apparently a case of first impression. The issue seems to be another unplanned consequence of the trial court’s decision In Re Matai Title Sotoa, No. 5-82, holding that hereditary right may be traced only to the original titleholder. Since appellant does not contest that holding, but rather relies upon it and praises it, we do not have occasion to reconsider tt in this case. Appellant does not, however, offer any authority --- either in the form of evidence of family tradition or Samoan custom adduced at trial, or of argument based on customs and traditions of which the court might take judicial notice --- for his position that a candidate may not cumulate more than one relationship to a title. Instead he offers a detailed explanation of what the trial court decided and the bare (although vigorous and repeated) assertion that the court was wrong. In the absence of a clear showing that the trial court erred either as a matter of fact or as a matter of law, we will not disturb its finding.
In any case, we are inclined to agree with the trial court. In choosing a matai the court should strive to decide as the family itself would decide in accordance with fa’a Samoa. Barring a case in which a candidate’s parents were so closely related as to suggest an impropriety, it seems quite likely that a candidate descended from two different clans of the family would be more likely to prevail than if he were descended from only one clan. We reserve any dispositive judgment on this question, however, for a case in which the issue is properly developed through expert testimony at trial or through reasoned and supported argument about the applicable customs.
*9The next issue for our determination is the appellant’s contention that the procedural rules for the composition and deliberations of the Land & Titles Division were violated when the Justice of the High Court, who was the Chief Justice in this particular case, withdrew from the deliberations of the four Associate Judges, limiting his participation to presiding at the trial and preparing and signing the opinion. We find no error in the court’s having chosen this manner to conduct its deliberations. The statute itself, by allowing the Justice of the High Court to have a determining vote only if there is a division among the four Associate Judges, is directed toward producing a consensus on their part. See A.S.C.A. § 3.0240. If the permanent Justice of the court deems it appropriate to withdraw from the deliberations at some point to effect that result, we find no impropriety, provided he has presided over the trial and participates in the written final judgment of the court.
Finally, the appellant argues that the Land & Titles Division was clearly erroneous in finding that neither candidate prevailed in demonstrating support of a majority or a plurality of the clans of the family. This is a matter on which the evidence both as to the number of clans and their respective support for the candidates was controverted, and we find no basis on this record to set aside the lower court’s determination..
We hold also that the lower court was not clearly erroneous in finding that the prevailing candidate had preference on the issue of value to the family, village, and country. We agree with the appellant that his background and accomplishments are exceptional, but note that the appellee, too, has demonstrated fidelity and loyalty to the community and a constancy that qualifies him to the award of title under the criterion of his value to the family, village, and country. The High Court noted the following in its decision:
We hasten to point out that seldom in our experience have we been presented with such a slate of outstanding candidates for a title each of whom is a credit to the family, to the village and to the territory. This was not an easy decision and the family is fortunate to have such men offering their services as matais.
*10We concur in that observation, and note that the appellant has made a strong showing on appeal based on his excellent educational background, his employment accomplishments, his church affiliations, his civic activities, and his income capacity. Nevertheless, we find that the Land & Titles Division was not clearly erroneous in making the decision as it did. Its judgment is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485556/ | Murphy, J.,
concurring:
I concur that the judgment of the Trial Court be affirmed. I continue to question the usefulness of an Appellate procedure in matai cases. See AP No. 20-85 Aoelua v. Tagoa’i (March 20, 1986) (Murphy concurring); AP No. 7-86 Registration of Le’iato (December 22, 1986) (Murphy dissenting)
In this case Appellant has made an effort to raise issues of law which the majority opinion discusses. In reality they are not legal issues. Whether a family traces hereditary rights directly to the original title holder or to the last living holder of the title is not, for example, a legal issue. It is a matter of custom and tradition and should not be treated otherwise by either the judicial or legislative branch of the government. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485558/ | The defendant was convicted of homicide by vehicle and now moves for a reconsideration of the judgment.
The statute defining the crime of homicide by vehicle, A.S.C.A. § 22.0706, prescribes three elements. It must be proved that the. defendant violated a traffic law, that someone died, and that the violation of law was the "proximate cause" of *15the In this case the two judges found that the cu_. ,ndant was exceeding the posted speed limit, that her vehicle struck and killed Aitofi Tusani, and that the defendant’s excessive speed was the proximate cause of the death.
The defendant contends that none of the three elements was proved beyond a reasonable doubt at trial. Instead, defendant argues, the court made three inferences not supported by the evidence.
First, the defendant contends that the court was bound to find from the evidence that the speed limit was thirty miles an hour rather than twenty miles an hour, and therefore that the defendant was not speeding. This contention is based on defense counsel’s cross-examination of the police officer who investigated the accident. The officer had testified that the posted speed limit where the accident occurred is twenty miles per hour. Defense counsel asked the officer if that was because this stretch of road is near the Community College, and the officer answered'affirmatively. Defense counsel then asked the officer whether school was in session at the time of the accident. The officer said it was not. Since A.S.C.A. § 22.0323 establishes a thirty mile per hour limit except where otherwise posted, defense counsel urged the court to regard the speed limit as thirty miles per hour at the time of the accident. The court, however, concluded that the posted limit of twenty miles per hour was in effect at all times, and observed that in any event judicial notice could be taken of the fact that classes at the Community College are not confined to the hours kept by elementary and secondary schools.1
*16Whether the speed limit was twenty or thirty miles per hour is a question of law. The only relevant fact in evidence was that a sign near the scene of the accident announced a twenty mile per hour limit. If the prosecution had objected to the introduction of the police officer’s opinion of why the Commissioner of Public Safety had posted the sign, the objection might well have been sustained. When the opinion of a person who has not been qualified as an expert is introduced without objection, the court is not bound to accept the opinion as fact but must give it the weight to which the court believes it is entitled. Moreover, even if the court were to agree with the officer’s opinion of the Commissioner’s motives in causing the sign to be posted, the legal effect of such posting was to estabish a twenty mile per hour limit at all times. See A.S.C.A. 8 22.0323(b). Thus the observation from the bench to which the defendant now particularly objects, to the effect that a court on a small island can take judicial notice of the business hours of an important governmental institution on the same island, was not necessary to the holding that the speed limit was twenty miles per hour.
The defendant also urges reconsideration of the finding that excessive speed was the proximate cause of the victim’s death. Defense counsel correctly characterises as "speculation" the court’s statement from the bench that the accident could have been avoided if the defendant had been observing the twenty mile per hour speed limit. *17Defense counsel further asserts that "the speed of the vehicle would be immaterial if, as the evidence suggests, the injury was caused by the act of braking the vehicle and the deceased falling off the braking vehicle and striking her head." Defendant’s memorandum at 4.
The concept of "proximate cause" is not an easy one to describe or to apply. Some traditional formulations suggest that the determination is a metaphysical one, amounting to the selection from among the many factors that led up to an event the one that "really" or "actively" caused it. Later formulations have tended to characterize the determination as a value judgment, selecting from among many factual causes the most culpable or socially undesirable. Indeed, the term has long fallen into disfavor with legal scholars on the ground, among others, that it tends to confuse values with facts and thereby to allow judges to make determinations that should have' been made by juries and vice versa. See generally V?. Prosser & P. Keeton, The Law of Torts 272-80 (5th ed. 1984). Since the term is explicitly contained in A.S.C.A. § 22.0706, however, we must do the best we can with it. In this case the problem is perhaps simplified by the absence of a jury, leaving the judges to make both the factual and the legal conclusions comprehended within the concept of proximate cause; but it is also complicated somewhat by the criminal nature of the proceeding, which dictates that the facts must be proved beyond a reasonable doubt.
There is no way to know for sure what would have happened -if the defendant had been observing the speed limit. A trier of fact, however, must not insist on proof to a scientific certainty of any element in a case, least of all an element that necessarily rests on what counsel for the defense calls "speculation." If triers of fact charged with deciding what "proximately caused" an event were absolutely forbidden to draw inferences from the record evidence, based partly on their own experience of human nature and of the physical laws of the universe, then no one would ever be convicted under the homicide by vehicle statute or any similar law.2 But this is not the test.
*18Rather, we hold that the element of proximate causation comprehends two inquiries: the court must be satisfied as a matter of law that the traffic regulation which the defendant violated was intended to prevent the sort of harm that actually occurred; and the trier of fact must be satisfied beyond a reasonable doubt that the violation was a substantial factor in bringing about the accident.
The focus in each of these inquiries is not on what might have happened if things had been different, but on the relationship between the violation and the event that actually did happen. If, for instance, the defendant’s violation of the law had consisted solely in not having brake lights or in having left her driver’s license at home, then the violation would not have been a substantial contributing factor in the death. Speeding, on the other hand, is forbidden precisely because speeding cars tend to kill people in just the way Aitofi Tusani was killed. The law designates an authority to establish for each part of the highway a speed beyond which the likelihood of accidents is deemed unacceptably high. In this case defendant was exceeding this limit by a factor of somewhere between 25 and 125 per cent. Two girls were walking across the road to catch a bus that had stopped for them. The defendant’s car hit one of the girls, who was then carried on the hood for some distance before falling to the pavement. She died a few days later, never having regained consciousness. In our capacity as judges of the law, we would regard it as a usurpation to deny the trier of fact the right to conclude from such evidence that the speeding proximately caused the victim’s death. And in our capacity as triers of fact, we are morally certain that it did.
Defendant maintains that' the girl entered the roadway with insufficient attention to traffic conditions and that this rendered the accident inevitable regardless of defendant’s speed. If the evidence suggested that the girl had suddenly darted into the road, most formulations of the proximate cause standard would treat the victim’s *19act as a “supervening cause" that would prevent the defendant’s violation of law from having been the proximate cause of the injury.3 On the basis of the evidence, however, we are convinced beyond a reasonable doubt that Aitofi was walking rather than running and was well into the roadway by the time she was hit. Indeed, between the time Aitofi had entered the roadway and the time of the accident a second girl who was walking a few feet behind her had also entered the roadway. Any minimally competent driver who was observing the twenty mile speed limit and whose eyes were on the road would have been able to stop in time to avoid the accident. Since there is no evidence that the defendant was not keeping her eyes on the road,4 we conclude that speed was the proximate cause of the accident.
*20As for defendant’s suggestion that the victim died when her head struck the pavement and that such an injury might just as well have been fatal if the defendant’s initial speed had been twenty miles per hour as if it had been twenty-seven or forty-five, it illustrates the difficulties of analyzing situations other than the one that actually happened. For the reasons we have discussed, however, we reject the assumption that the victim would have been trapped on the hood of the moving car in the first place if defendant had been observing the speed limit.
The defendant’s final contention is that there was insufficient evidence from which to conclude beyond a reasonable doubt that the injury actually caused the victim’s death. Defense counsel points out that no autopsy was done, and suggests that the victim might have been suffering from a tumor. No evidence was introduced, however, to give even the vaguest support to any such alternative hypothesis. When a head injury is followed immediately by a coma and soon thereafter by death, and when there is no evidence whatever that anything else was wrong with the deceased, triers of fact invariably conclude that he died from the injury. In this case the conclusion was bolstered by the uncontested expert testimony of the attending physician. It is immaterial that something else might have been done to make the diagnosis even more certain.
The motion for reconsideration is denied.
. The court further concluded, in accordance with the testimony of all witnesses including the defendant herself, that the defendant had been traveling between twenty-five and forty-five miles per hour at the time of the accident. If the court had accepted the defendant’s view that the speed limit was thirty miles per hour except when classes at the Community College were in session, it would have been necessary to make a more precise finding with regard to the speed of the vehicle. The defendant herself testified that she was proceeding at twenty-seven miles per hour just before she struck the victim. The somewhat complicated testimony of the other witness offered by the defense suggests *16a speed of about thirty-five miles per hour. The circumstantial evidence and the testimony of the two prosecution witnesses suggest a somewhat higher rate of speed. Since the court found a traffic violation that proximately caused the victim’s death even on the defendant’s own relatively low estimate of her speed, a more precise finding was unnecessary.
The principal factual dispute between the prosecution and the defense was not about speed but about whether the defendant was attempting illegally to pass one or more cars that had stopped to let the victim and her sister cross the road. The court found that this had not been proved beyond a reasonable doubt.
. Ironically, the defendant’s proposed substitute for the drawing of such inferences by the court is that the court should accjept similar inferences drawn by the defendant’s witnesses as though they were uncontroverted *18facts. See Defendant’s Memorandum at 3 ("The court is engaging in speculation and its conclusion is not supported by the evidence presented. Defendant and her witness John Kane both testified that the accident would have occurred had the car been going twenty miles an hour.").
. Defense counsel seems to argue not just that defendant’s speeding was not the proximate cause of the victim’s death, but that it was not a cause of the death at all. This, however, is almost certainly untrue, since a lower speed sustained even for á few seconds would have delivered the defendant to the point of impact at a moment when the victim had already passed. For that matter, an even higher speed would have caused the car to reach the scene before the victim did. Thus the question is not whether the trier of fact may conclude that the defendant’s speed was a "cause in fact," but whether her violation of the speeding law, from among the many causes that led in fact to the accident, is the one to which the law should attribute the consequences.
If we were át all inclined to believe that the victim had darted precipitously into the road, we would acquit the defendant not because she was not negligent and not because her speed was not a cause of the accident, but because the victim’s action --- an action of a kind that is at least as likely as excessive speed to create a grave risk of the type of harm that occurred here --- would prevent the defendant’s action from being the legal or "proximate" cause.
. Nor, in any case, could the defendant be exonerated from the legal effects of her violation of the law on the ground that she also committed some other sort of negligence that would have caused the accident anyway. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487017/ | 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
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 17, 2022
Plaintiff-Appellee,
v No. 359167
Eaton Circuit Court
MAHER MOHAMMAD GHUNAIM, LC No. 21-020223-FC
Defendant-Appellant.
Before: K. F. KELLY, P.J., and LETICA and RICK, JJ.
RICK, J. (dissenting).
I would reverse the trial court’s order denying defendant’s motion to suppress statements
that he made to the police while hospitalized because defendant was subject to a custodial
interrogation without being advised of his Miranda1 rights and the prosecution failed to establish
that his statements were voluntary. Accordingly, I respectfully dissent.
I. BACKGROUND
This appeal arises from a recorded video interview between defendant, an immigrant from
Jordan, and Detective Heather Stefan. At the time of the interview, defendant was hospitalized as
a result of a suicide attempt.2 Defendant was connected to an intravenous line (IV) and medical
apparatus and confined to a hospital bed. Detective Stefan and LeeAnn Kinsey, an employee of
Children’s Protective Services, privately spoke with defendant in his hospital room after asking a
“suicide watcher” to leave defendant’s room.
1
Miranda v Arizona, 384 US 436, 444-445; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
The majority refers to defendant’s hospitalization as an “alleged suicide attempt.” The
prosecution never disputed that defendant was hospitalized as a result of a suicide attempt below
and the record makes clear that at the time of the interview, defendant was under “suicide watch.”
Moreover, Detective Stefan testified that she was aware of defendant’s history of attempted suicide
and mental health issues.
-1-
The entire interaction was approximately one hour. Detective Stefan closed the hospital
room door. She spoke with defendant for approximately 40 minutes, during which time defendant
made incriminating statements. During the interview, defendant repeatedly sobbed and expressed
suicidal ideations. Detective Stefan and Kinsey repeatedly told defendant that they were there to
help him, but that they could not help him unless he told them what happened. Ultimately,
defendant made incriminating statements favorable to the prosecution. Defendant subsequently
filed a motion in the district court to suppress his statements. The district court granted the motion
after an evidentiary hearing. Defendant was nonetheless bound over to the circuit court after his
preliminary examination. Defendant again filed a motion to suppress in the circuit court, which
the circuit court denied. This appeal followed.
II. CUSTODIAL INTERROGATION
Defendant argues that evidence pertaining to his hospital interview with the police was
inadmissible because he was interrogated while in police custody without having been read his
Miranda rights. It is undisputed that defendant was interrogated. The majority concludes that
defendant was not subjected to a custodial interrogation. I disagree.
“The ultimate question whether a person was ‘in custody’ for purposes of Miranda
warnings is a mixed question of fact and law, which must be answered independently by the
reviewing court after review de novo of the record.” People v Barritt, 325 Mich App 556, 561;
926 NW2d 811 (2018) (quotation marks and citation omitted). However, “the trial court’s factual
findings concerning the circumstances surrounding statements to the police” are reviewed for clear
error. Id. “A finding is clearly erroneous if, after reviewing the entire record, an appellate court
is left with a definite and firm conviction that a mistake has been made.” Id. (quotation marks and
citation omitted).
The United States Constitution and the Michigan Constitution both protect the right against
self-incrimination. US Const, Am V; Const 1963, art 1, § 17. In Miranda v Arizona, 384 US 436,
444-445; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the United States Supreme Court established a
procedural safeguard designed to offer additional protection for this right. “[T]he police must
warn a defendant of his or her constitutional rights if the defendant is taken into custody for
interrogation.” Barritt, 325 Mich App at 561. “Statements made by a defendant to the police
during a custodial interrogation are not admissible unless the defendant voluntarily, knowingly,
and intelligently waives the constitutional right against self-incrimination.” Id. at 561-562.
This Court has recognized that the term “custody” is a “term of art that specifies
circumstances that are thought generally to present a serious danger of coercion.” Id. at 562. The
first step in determining whether a person was in custody is to consider whether “in light of the
objective circumstances of the interrogation, a reasonable person would have felt he or she was
not at liberty to terminate the interrogation and leave.” Id. (quotation marks, citations and
alteration omitted); see People v Roberts, 292 Mich App 492, 504; 808 NW2d 290 (2011)
(“Custody must be determined on the basis of how a reasonable person in the suspect’s situation
would perceive his or her circumstances and whether the reasonable person would believe that he
or she was free to leave.”). However, when a defendant is physically unable to walk away from
an officer, the proper analysis is not focused on whether the person was free to leave, but on
whether the person was free to terminate the encounter. See Florida v Bostick, 501 US 429, 436;
-2-
111 S Ct 2382; 115 L Ed 2d 389 (1991) (holding that when a person’s “freedom of movement was
restricted by a factor independent of police conduct . . . . the appropriate inquiry is whether a
reasonable person would feel free to decline the officers’ requests or otherwise terminate the
encounter.”) (Emphasis added).
“Whether an individual is effectively ‘in custody’ is based on the totality of the
circumstances.” Roberts, 292 Mich App at 505. When analyzing whether a person was in custody,
“[t]he relevant circumstances are as follows: (1) the location of the questioning, (2) the duration
of the questioning, (3) statements made during the interview, (4) the presence or absence of
physical restraints during the questioning, and (5) the release of the interviewee at the end of the
questioning.” Barritt, 325 Mich App at 562-563 (citations omitted). No one circumstance
controls. Id. at 563. “[T]he fact that the defendant was in the hospital does not automatically
imply that the environment was coercive.” People v Kulpinski, 243 Mich App 8, 25; 620 NW2d
537 (2000).
Here, I would conclude that under the totality-of-the-circumstances analysis, the trial court
finding that defendant was not in custody was clearly erroneous. The majority concludes that the
fact that defendant was interviewed in his hospital room weighs against a finding that defendant
was in custody. While a hospital room is generally not a coercive environment, id., the majority
discounts the circumstances of defendant’s hospitalization and other facts. As recognized by the
majority, defendant was hospitalized in Lansing on October 15, 2020, for a suicide attempt, and
was ultimately transferred to Ascension St. John Hospital in Detroit on October 21, 2020, after he
complained of chest pains. Detective Stefan interviewed defendant on October 22, 2020.
Detective Stefan took concrete steps to create an environment akin to a more traditional police
interrogation room. Before the interview began, Detective Stefan asked the additional person who
was in the room—the parties agree that this person was a suicide watcher—to leave. Detective
Stefan turned the lights on without asking for permission, further establishing that she, rather than
the hospital or defendant, was in control of the environment. Detective Stefan then sat right next
to defendant’s bed while Kinsey stood at the foot of the bed. Neither one asked if defendant was
comfortable with having them in such close proximity. Later, when a person knocked on the door,
it was Detective Stefan who told them to come in—further signifying that she was the one in
control of the room, not the hospital and not defendant. While it is not clear what that person was
doing, Detective Stefan told the person to “go ahead,” suggesting that the individual needed her
permission to proceed. When another person attempted to enter the room, Detective Stefan said,
“Can I ask you to maybe come back in a little bit?” The video of the interrogation demonstrates
that, while framed as a request, this was a command. These facts, when considered together, make
clear that during the interrogation, Detective Stefan was in charge of that room and everybody
inside of it. Although the door to the room remained unlocked, this does not outweigh the fact that
the questioning took place in an environment dominated by Detective Stefan.
The majority also concludes that “there was no evidence that Det. Stefan used defendant’s
condition or hospitalization as a tool to obtain his statements.” However, the circumstances
underlying defendant’s hospitalization are paramount here. Detective Stefan acknowledged that
defendant was receiving medical care, in part, because of his attempted suicide attempt. Moreover,
Detective Stefan acknowledged that she requested the “suicide watcher” to leave defendant’s
hospital room before the interview, explaining that individuals on “suicide watch” are “not allowed
to be alone.” The recorded interview shows that defendant was immediately and consistently in
-3-
visible distress throughout the interview. He frequently sobbed and hyperventilated. Defendant
repeatedly requested Stefan to shoot him. Despite this, the detective continued questioning
defendant. Moreover, Detective Stefan acknowledged that defendant’s request for her to shoot
him may have indicated that defendant was not in a “very good state of mind.” Detective Stefan
also acknowledged that defendant had a history of suicide attempts and mental health issues. There
was no indication that defendant was free to leave the hospital room, physically or medically.
While Detective Stefan testified that defendant’s IV was on “rollers,” she did not know whether
defendant could walk or get out of the bed. While she knew the circumstances of defendant’s
hospitalization, Detective Stefan did not inquire as to defendant’s mental status or what
medications, if any, defendant was being administered that could have affected defendant’s
comprehension. It is unlikely that a reasonable person, who was admitted to the hospital for a
suicide attempt, transferred to a different hospital to treat his other medical issues, and under
suicide watch, would feel free to leave the hospital room given the circumstances.
Moreover, there was evidence that proceedings against defendant had already begun at the
time the questioning began. This further bolsters that Detective Stefan should have advised
defendant of his Miranda rights. Throughout the interview, Detective Stephan interrogated
defendant by asking questions and making statements that she knew were reasonably likely to
elicit an incriminating response. At the motion hearing, Detective Stefan testified that she
previously spoke to defendant’s accuser, and she then spoke with defendant because he was a
suspect in her criminal investigation. Early in the interview, it was clear that Detective Stefan was
already convinced that defendant was guilty and just wanted him to confess. At the conclusion of
the interview, Detective Stefan told defendant that she intended to submit a report to the
prosecutor’s office and that there was a good chance he would go to prison. Kinsey then informed
defendant that she would be seeking termination of his parental rights; while this did not directly
pertain to the criminal case, it provides further support for the conclusion that the government had
already decided that defendant had committed the abuse of which he was accused and was
initiating the appropriate proceedings. Given these circumstances, it is highly improbable that
defendant felt free to terminate the encounter, and defendant was therefore entitled to be given the
appropriate warnings. Bostick, 501 US at 436; Barritt, 325 Mich app at 574. Accordingly, I am
left with a definite and firm conviction that a mistake has been made relative to the trial court’s
factual findings regarding custody. Barritt, 325 Mich App at 561.
III. VOLUNTARY STATEMENTS
The majority also concludes that the trial court did not err by concluding that defendant’s
statements were voluntary. I disagree.
The prosecution has the burden of proving the voluntariness of a defendant’s statement by
a preponderance of the evidence. People v Daoud, 462 Mich 621, 634; 614 NW2d 152 (2000).
“When reviewing a trial court’s determination of the voluntariness of inculpatory statements, this
Court must examine the entire record and make an independent determination, but will not disturb
the trial court’s factual findings absent clear error.” People v Shipley, 256 Mich App 367, 372-
373; 662 NW2d 856 (2003). A clear error occurs if the finding “leaves this Court with a definite
and firm conviction that a mistake was made.” Id. at 373.
-4-
The United States and Michigan Constitutions guarantee that a criminal defendant receive
due process of law. US Const, Am XIV; Const 1963, art 1, § 16. “[T]he use of an involuntary
statement in a criminal trial, either for impeachment purposes or in the prosecution’s case in chief,
violates due process.” People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988). “Statements
of an accused made during custodial interrogation are inadmissible unless the accused voluntarily,
knowingly, and intelligently waived his or her Fifth Amendment rights.” People v Gipson, 287
Mich App 261, 264; 787 NW2d 126 (2010).
“Whether a statement was voluntary is determined by examining the conduct of the police.”
Shipley, 256 Mich App at 373; see also Daoud, 462 Mich at 635 (“whether a waiver of Miranda
rights is voluntary depends on the absence of police coercion”). In People v Cipriano, 431 Mich
315, 333-334; 429 NW2d 781 (1988), our Supreme Court held that the test of voluntariness is
whether, considering the totality of all the surrounding circumstances, the
confession is the product of an essentially free and unconstrained choice by its
maker, or whether the accused’s will has been overborne and his capacity for self-
determination critically impaired. The line of demarcation is that at which
governing self-direction is lost and compulsion, of whatever nature or however
infused, propels or helps to propel the confession. [Quotation marks, citations, and
alteration omitted.]
In assessing whether a statement is voluntarily, the trial court must consider, among other things,
the following factors:
the age of the accused; his lack of education or his intelligence level; the
extent of his previous experience with the police; the repeated and prolonged nature
of the questioning; the length of the detention of the accused before he gave the
statement in question; the lack of any advice to the accused of his constitutional
rights; whether there was an unnecessary delay in bringing him before a magistrate
before he gave the confession; whether the accused was injured, intoxicated or
drugged, or in ill health when he gave the statement; whether the accused was
deprived of food, sleep, or medical attention; whether the accused was physically
abused; and whether the suspect was threatened with abuse.
The absence or presence of any one of these factors is not necessarily
conclusive on the issue of voluntariness. The ultimate test of admissibility is
whether the totality of the circumstances surrounding the making of the confession
indicates that it was freely and voluntarily made. [Id. at 334 (citations omitted).]
For a confession to be involuntary, “there must be a substantial element of coercive police conduct”
because “coercive police activity is a necessary predicate to the finding that a confession is not
‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” People
v Wells, 238 Mich App 383, 388; 605 NW2d 374 (1999) (quotation marks and citations omitted).
The United States Supreme Court addressed the issue of a hospital room interrogation in
Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978).
-5-
Mincey was brought to the hospital after [a] shooting and taken immediately
to the emergency room where he was examined and treated. He had sustained a
wound in his hip, resulting in damage to the sciatic nerve and partial paralysis of
his right leg. Tubes were inserted into his throat to help him breathe, and through
his nose into his stomach to keep him from vomiting; a catheter was inserted into
his bladder. He received various drugs, and a device was attached to his arm so
that he could be fed intravenously. He was then taken to the intensive care unit.
At about eight o’clock that evening, Detective Hust of the Tucson Police
Department came to the intensive care unit to interrogate him. Mincey was unable
to talk because of the tube in his mouth, and so he responded to Detective Hust’s
questions by writing answers on pieces of paper provided by the hospital. Hust told
Mincey he was under arrest for the murder of a police officer, gave him the
warnings required by Miranda v. Arizona, and began to ask questions about the
events that had taken place in Mincey’s apartment a few hours earlier. Although
Mincey asked repeatedly that the interrogation stop until he could get a lawyer,
Hust continued to question him until almost midnight. [Id. at 396 (citation
omitted).]
The Supreme Court stated that it was “hard to imagine a situation less conducive to the exercise
of a rational intellect and a free will than Mincey’s.” Id. at 398 (quotation marks omitted). The
Court emphasized that Mincey was nearly in a coma; the questioning took place only a few hours
after the injuries were inflicted; he described his leg pain as “unbearable;” he was confused and
provided incoherent answers; his body was “encumbered by tubes, needles, and a breathing
apparatus;” and he asked for the interrogation to end and requested a lawyer. Id. at 398-401.
This Court recently addressed a similar issue in People v Posey, 334 Mich App 338, 365,
368; 964 NW2d 862 (2020). We concluded that a defendant’s hospitalization with serious injuries
and use of pain medication is not alone sufficient to render a statement involuntary. In Posey, the
defendant was interviewed by police the day after he was hospitalized and operated on for a
gunshot wound. The defendant relied on Mincey for the proposition that his statements were
involuntary. Id. at 364, 366. The defendant argued that the statements were involuntary because
he “was experiencing some pain from his injuries and was affected by his pain medication.”
However, this Court nonetheless concluded that there was “no indication that his condition was so
debilitating as to make him lose his free will.” Id. at 366. This Court emphasized that the
defendant was “alert and articulate;” there was “no sign that he was impaired by any medication
during the interview;” he never requested to end the interview; “he was alert and conscious the
whole time;” and there was “no evidence that [his] mental condition was significantly
compromised or diminished.” Id. at 366-367. This Court also noted that the interview lasted only
25 minutes and the defendant “initially lied to the police.” Id. Additionally, the defendant waived
his Miranda rights. Id. at 366.
In People v Peerenboom, 224 Mich App 195, 197; 568 NW2d 153 (1997), the defendant
was hospitalized after allegedly participating in a bombing. The defendant argued that her
statements were involuntary and suppression was required because the police officers failed to
provide her with Miranda warnings. This Court rejected the defendant’s argument because the
treating physician testified that the defendant’s medication “did not reduce her willpower or impair
-6-
her ability” to refuse to answer. The interviews were brief, the defendant “was generally able to
respond intelligently to questioning,” and “she had the presence of mind to lie” to the police. Id.
at 198-199. These factors, according to the Court, supported the trial court’s finding of
voluntariness. Id. at 199. The Court also concluded that defendant had not been arrested and no
formal restraint was placed on her freedom of movement. Id. at 198.
The instant case is distinguishable from Posey and Peerenboom. In those cases there was
no indication that the police took any measures to exploit the defendant’s condition. In the instant
case, defendant was in a weakened, vulnerable state. One reasonable conclusion is that the police
took objective measures to use defendant’s condition and obtain his confession. As discussed
earlier, regardless of her intent, Detective Stefan created a hostile, coercive environment, and she
did not inform defendant of any of his rights. Moreover, Detective Stefan was clearly aware of
defendant’s vulnerable state and the circumstances of defendant’s hospitalization.3 Based on the
record, defendant was in the hospital because he had attempted suicide. Throughout the interview
it was clear that he was in severe emotional distress. For example, defendant began to cry within
the first two minutes of the interview. There were also points when he sobbed uncontrollably,
hyperventilated, and even asked Detective Stefan to shoot him. Therefore, unlike in Posey, 334
Mich App at 366-367, there was evidence that defendant’s mental condition was “significantly
compromised or diminished.” The majority concludes that the video recording “does not
demonstrate that defendant was in way compromised” and that it was defendant’s “choice to be in
the hospital.” Upon my review of the video, I could not reach such a conclusion for the reasons
already explained. Moreover, the record is silent as to whether defendant was voluntarily or
involuntarily hospitalized as a result of the suicide attempt. The record does, however, indicate
that defendant was under supervision by a “suicide watcher”. In my opinion, this supports a
finding that defendant was not free to leave the hospital room and that defendant’s statements were
not voluntary.
Detective Stefan capitalized upon defendant’s emotional distress by telling him that there
was help available and that she was there to help him. She then conditioned this help on his
cooperation. For example, when defendant said that he had lost everything, Detective Stefan told
defendant that everything was out of his grasp but that he could get it back by cooperating.
Additionally, Detective Stefan mentioned defendant’s daughter numerous times throughout the
interview. She intimated that he needed to confess if he wanted to ever see her again. As noted,
3
I encourage the majority to consider cases of confessions elicited from defendants who struggle
with mental illness and disabilities, which have led to the wrongful incarceration (and exoneration
in some cases) of innocent criminal defendants. For example, Eddie Joe Lloyd was incarcerated
for 17 years before he was exonerated. Lloyd was found guilty, in part, based on a confession he
gave to police while he was institutionalized in a psychiatric hospital. See Rogal, Protecting
Persons with Mental Disabilities from Making False Confessions: The Americans With
Disabilities Act as a Safeguard, 47 NM L Rev 64, 70 (2017); see also The National Registry of
Exonerations, Eddie Joe Lloyd
(accessed
October 25, 2022).
-7-
Kinsey was also present and assisted in the questioning. More generally, throughout the interview
Detective Stefan repeatedly told defendant that she was there to “help” him and that she would be
able to help him if he was “honest” and told her what happened. However, it became clear at the
end of the interview that Detective Stefan had no genuine intention of helping defendant. For
example, when defendant asked how she was going to help him, she only gave a vague answer
about getting substance abuse treatment in prison. More generally, Detective Stefan at times
seemed to convey that defendant had no choice but to cooperate with her and be truthful. For
example, when defendant stated that he could not remember something, Detective Stefan retorted
that he was not being honest.
I also recognize that there are some relevant factors which either weighed in favor of the
trial court’s finding or were not applicable. The parties agree that defendant was 40 years old, and
there is no reason to believe that his age left him susceptible to coercive tactics. Defendant had
some prior experience with law enforcement, half of which resulted from prior suicide attempts.
The questioning lasted approximately one hour, but defendant began making incriminating
statements shortly after it began. There was no evidence pertaining to defendant’s education level,
but he appeared to at least be intelligent enough to understand what was happening. However,
English is not defendant’s primary language. Defendant appeared alert, he spoke coherently, and
he appeared to understand what was happening. There was also no evidence that defendant was
deprived of food, sleep, or obvious medical attention, and defendant was not physically abused.
Nonetheless, when viewing the totality of the circumstances, I would conclude that the
evidence established that the police interrogated defendant while he was in a delicate and
vulnerable state. Defendant’s confession was a byproduct of his diminished capacity. Although I
recognize that this case is subject to the highly deferential “clear error” standard of review, the
prosecution failed to meet their burden of proof on this record. See Daoud, 462 Mich at 634;
Cipriano, 431 Mich at 334. I am left with “a definite and firm conviction that a mistake was
made.” Shipley, 256 Mich App at 373. I would hold that the trial court clearly erred by finding
that defendant’s confession was voluntary and by denying his motion to suppress. I would reverse
the trial court’s order.
For the reasons explained, I respectfully dissent.
/s/ Michelle M. Rick
-8- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487042/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 01:07 AM CST
- 707 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
Schreiber Brothers Hog Company, LLC,
a Nebraska limited liability company,
and Steven Schreiber, an individual
member, appellees, v. Jerald
Schreiber, an individual
member, appellant.
___ N.W.2d___
Filed October 28, 2022. No. S-21-570.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. Jurisdiction: Appeal and Error. Appellate courts have an independent
obligation to ensure they have appellate jurisdiction.
4. Actions. A special proceeding includes every special statutory remedy
that is not itself an action.
5. Actions: Words and Phrases. An action is any proceeding in a court by
which a party prosecutes another for enforcement, protection, or deter-
mination of a right or the redress or prevention of a wrong involving and
requiring the pleadings, process, and procedure provided by statute and
ending in a judgment.
6. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
7. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as by diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
8. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
9. Final Orders: Appeal and Error. A substantial right is not affected
when that right can be effectively vindicated in an appeal from the final
judgment.
10. Restitution: Unjust Enrichment. To recover under a theory of unjust
enrichment, the plaintiff must allege facts that the law of restitution
would recognize as unjust enrichment.
11. Contracts: Unjust Enrichment. One who is free from fault cannot be
held to be unjustly enriched merely because one has chosen to exercise
a contractual or legal right.
12. ____: ____. The doctrine of unjust enrichment is recognized only in the
absence of an agreement between the parties.
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Appeal dismissed in part, and in part reversed
and remanded with directions.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellant.
Jonathan M. Brown, of Walentine O’Toole, L.L.P., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After Steven Schreiber filed a complaint asking for the dis-
solution of the limited liability company he owned in equal
shares with his brother, Jerald Schreiber, the district court
ordered dissolution and directed a receiver to liquidate the
company’s assets. Those assets included two buildings owned
by the company but located on land owned by Jerald. Jerald
made the only offer to purchase the buildings, but Steven
contended that if the buildings were sold to Jerald at the
price offered, Jerald would be unjustly enriched. The parties
later agreed that the district court should order the receiver to
accept Jerald’s offer, but that Steven and the company should
be allowed to continue to pursue a claim of unjust enrich-
ment. Following a trial, the district court found that Jerald
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
was unjustly enriched and ordered him to pay an additional
$400,184 to the company. The district court also denied a
motion filed by Jerald asking the district court to provide fur-
ther directions to the receiver.
In Jerald’s appeal of these rulings, we find that we lack
jurisdiction to review the order denying the motion for further
directions but that the district court erred in its unjust enrich-
ment finding. We therefore dismiss in part, and in part reverse
and remand with directions.
I. BACKGROUND
1. Dissolution Action Filed;
Receiver Appointed
Jerald and Steven formed the Schreiber Brothers Hog
Company, LLC, in 2011. They each owned a 50-percent inter-
est in the company and managed it together for a number
of years.
This case began when Steven commenced an action in the
district court on behalf of the company and himself seeking the
judicial dissolution of the company pursuant to Neb. Rev. Stat.
§ 21-147(a)(5) (Cum. Supp. 2021). Jerald eventually agreed
that the company should be dissolved and that a receiver
should be appointed to wind up the company’s affairs. The
district court subsequently ordered dissolution and appointed a
receiver to wind up the company’s activities.
2. Complaint Amended to Raise Claims
Regarding Hog Buildings
After the receiver had begun his work and liquidated most of
the company’s assets, Steven and the company obtained leave
to file an amended complaint. The amended complaint added
several additional claims for relief, all of which pertained to
two buildings used in the company’s hog production busi-
ness which the receiver had not yet sold. The two buildings
are referred to by the parties as a “finishing building” and a
“nursery.” All agree that these buildings were owned by the
company, but located on land owned only by Jerald.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
In the amended complaint, Steven and the company requested
that the district court quiet title to the real property upon which
the buildings were located in the company’s name on the basis
of adverse possession. Alternatively, they requested that the
district court grant the company a prescriptive easement or
easement by necessity to allow it and any successors in interest
or grantees to enter the real property upon which the buildings
were located as the company had during its operation. As a
final alternative, Steven and the company alleged that if they
did not obtain any of the previously described relief, the com-
pany was entitled to a judgment for unjust enrichment against
Jerald in the amount of the fair market value of the property.
The amended complaint alleged that an appraisal obtained by
the receiver estimated the market value of the buildings to be
$450,000.
After conducting some discovery, Steven and the company
voluntarily dismissed their claims for adverse possession, pre-
scriptive easement, and easement by necessity.
3. Hearing on Disposition of
Hog Buildings
Before adjudicating the remaining claim of unjust enrich-
ment, the district court held a hearing regarding what action the
receiver should take as to the buildings. Prior to the hearing,
counsel for Steven and the company argued that the district
court should either enter an order declaring the buildings the
“de facto assets of Jerald” and ordering him to pay for their
reasonable value or order that the buildings be dismantled.
Counsel for Jerald argued that the buildings should be sold to
the highest bidder.
The district court received evidence at the hearing, including
testimony from Steven, Jerald, and the receiver. The evidence
established that when the buildings were constructed in 1994
and 1997, the company was not yet formed, and that Jerald and
Steven were working together as part of a general partnership.
Jerald testified that at the time the buildings were built on his
- 711 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
property, Steven knew that the buildings were being built on
land that Jerald owned.
After the formation of the company, the buildings came to
be owned by the company, but Jerald continued to own the real
property where they were located. The receiver testified that he
attempted to sell the buildings along with the rest of the com-
pany’s assets, but that many parties who made initial inquiries
about purchasing the buildings lost interest upon learning that
the land upon which the buildings were located was not for
sale and that there was no legal right of ingress and egress to
access the buildings. The receiver testified that Jerald made
the only offer to purchase the buildings and that he offered to
purchase them for their assessed value, which was $18,000.
Jerald confirmed that he was willing to purchase the buildings
for $18,000. He also acknowledged that he was not willing to
grant an easement to allow a buyer of the buildings to access
them. He testified that he would not want to have “someone
else going in and out of there any time of the day or night on
their own accord.”
An appraiser hired by the receiver also testified. The
appraiser testified that in his opinion, the buildings were
worth $450,000. He testified that he formed this opinion
by calculating the difference between the value of the land
together with the buildings and the value of the land without
the buildings. The district court also received evidence about
whether or not the buildings were operational. On this point,
there was some disagreement by the witnesses. The receiver
described the buildings as operational, but Jerald and his son
testified the buildings were in a state of significant disrepair
from nonuse, termination of utilities, frost and thaw cycles,
and condensation damage.
At the conclusion of the hearing, the parties agreed that they
would submit written briefs to the district court and that the
district court would take the matter under advisement. The dis-
trict court also scheduled a trial on the remaining unjust enrich-
ment claim asserted by Steven and the company.
- 712 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
4. Trial on Unjust Enrichment Claim
On the day the unjust enrichment claim was scheduled to
be tried, the district court stated on the record that the parties
had reached an agreement that the receiver should be directed
to accept Jerald’s offer to purchase the buildings for $18,000,
“with the understanding that nothing with respect to that stipu-
lation of the parties would be construed as a final determina-
tion on the [unjust enrichment claim,] which [Steven and the
company] then would pursue.” The district court later entered
a written order to the same effect.
With respect to the district court’s consideration of the
unjust enrichment claim, the parties agreed that the district
court could consider all evidence and testimony offered at the
prior hearing regarding the disposition of the buildings. Jerald
and Steven also provided additional limited testimony.
After taking the matter under advisement, the district court
entered a written order finding that judgment should be entered
in favor of the company and against Jerald on the unjust
enrichment claim. The district court relied heavily upon an
opinion of the Arkansas Court of Appeals, Trickett v. Spann,
2020 Ark. App. 552, 613 S.W.3d 773 (2020). We discuss this
case in more detail in the analysis section below.
The district court also found that because the buildings
could not be sold with a right to ingress and egress, they had
value only to Jerald. It reasoned that if Jerald were allowed to
obtain the property for only the price for which he offered to
purchase them, the company would not receive “reasonable
compensation” and Jerald would receive a “personal windfall
to which he is not entitled.”
On the issue of damages, the district court noted some
of Jerald’s evidence showing that the buildings would need
repairs before they could be used, but concluded that the
appraiser’s opinion was the only credible evidence of valua-
tion. The district court found that the reasonable value of the
buildings was just over $418,000 and ordered Jerald to pay the
difference between that amount and the $18,000 he previously
- 713 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
tendered to purchase the buildings. Because the buildings were
owned by the company, the district court dismissed Steven’s
claim for unjust enrichment.
5. Motion for Further Directions
After the receiver was appointed, Jerald filed a motion pur-
suant to Neb. Rev. Stat. § 25-1087 (Reissue 2016) requesting
that the district court enter an order providing further direc-
tions to the receiver. Among other things, Jerald requested that
the district court order the receiver to pay certain bills Jerald
claims were incurred by the company, both before and after the
appointment of the receiver. The motion alleged that Jerald had
requested that the receiver pay the bills and that the receiver
had refused.
The district court held a hearing on the motion for further
directions on the same day it held trial on the unjust enrich-
ment claim. At the hearing, Jerald testified regarding several
bills he contended were incurred by the company, but the
receiver had refused to pay. The receiver also testified. When
asked by Jerald’s counsel about several of the bills for which
Jerald sought court direction to pay, the receiver testified that
he had not yet paid the bills, but he would consider paying
them. With respect to other bills, he testified that he did not
believe they were legitimate expenses of the company. In
response to a question about whether a bill should be paid,
the receiver stated that he had a “budget problem,” which
we understand to refer to the fact that the amount of the bills
Jerald was asking the district court to direct the receiver to pay
exceeded the funds held by the receiver.
In the same document in which the district court explained
its unjust enrichment finding, it denied the relief requested in
the motion for further directions without further explanation.
6. Appeal
Jerald filed an appeal within 30 days of the district court’s
order finding unjust enrichment and denying the motion for
further directions. We moved the case to our docket.
- 714 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
II. ASSIGNMENTS OF ERROR
Jerald assigns several errors on appeal, but they can be con-
solidated and restated as three: He contends that the district
court erred (1) in its finding that the company was entitled to
recover on its unjust enrichment claim, (2) in its calculation
of the amount that Steven was unjustly enriched, and (3) in its
denial of Jerald’s motion for further directions regarding the
payment of bills.
III. STANDARD OF REVIEW
The parties disagree on the standard of review we should
apply to Jerald’s arguments concerning the unjust enrichment
judgment. Steven and the company contend that our opinion in
City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848,
809 N.W.2d 725 (2011), holds that claims of unjust enrich-
ment are actions at law and that thus, we should apply the
standard of review we would normally apply in reviewing a
bench trial of a law action, i.e., the court’s factual findings are
not disturbed unless clearly wrong, but questions of law are
reviewed independently. Jerald, on the other hand, contends
that because the unjust enrichment claims were raised in the
context of an action to dissolve the company and actions to
dissolve a limited liability company are actions in equity, we
should apply the standard of review applicable to appeals from
bench trials of equity actions, i.e., de novo on the record, with
this court independently resolving both questions of law and
questions of fact. See Schmid v. Simmons, 311 Neb. 48, 970
N.W.2d 735 (2022). We find that we need not resolve this dis-
pute as to the standard of review. Jerald’s unjust enrichment
arguments primarily turn on issues of law, and even under the
more deferential standard of review urged by Steven and the
company, we find that the district court’s unjust enrichment
finding is erroneous.
[1,2] A jurisdictional question that does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714
- 715 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
(2021). When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusions. Id.
IV. ANALYSIS
1. Appellate Jurisdiction
[3] While the issue of appellate jurisdiction was not initially
raised by the parties, we have an independent obligation to
ensure we have appellate jurisdiction. State v. Reames, 308
Neb. 361, 953 N.W.2d 807 (2021). With that duty in mind,
we ordered the parties to submit supplemental briefing on
the issue. We now consider that issue, first as to the denial of
the motion for further directions and then as to the finding of
unjust enrichment.
(a) Motion for Further Directions
We begin our analysis of our jurisdiction to review the
district court’s denial of Jerald’s motion for further directions
with Neb. Rev. Stat. § 25-1090 (Reissue 2016). That statute
provides that “[a]ll orders appointing receivers” and “giving
them further directions” may be appealed. Id. Jerald takes the
position that because the district court did not give further
directions but denied his request to do so, this statute does not
authorize our review. We agree. Jerald argues, however, that
we have jurisdiction to review the district court’s order because
it qualifies as a final order under Neb. Rev. Stat. § 25-1902
(Cum. Supp. 2020). We consider that issue next.
Section 25-1902 currently recognizes four categories of final
orders. In our view, however, the order denying the motion for
further directions could fit into only one such category: those
orders “affecting a substantial right made during a special pro-
ceeding.” § 25-1902(1)(b).
[4,5] A special proceeding occurs where the law confers a
right and authorizes a special application to a court to enforce
it. See In re Grand Jury of Douglas Cty., 302 Neb. 128,
922 N.W.2d 226 (2019). A special proceeding includes every
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
special statutory remedy that is not itself an action. See Kremer
v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538
(2010). An action is any proceeding in a court by which a party
prosecutes another for enforcement, protection, or determina-
tion of a right or the redress or prevention of a wrong involving
and requiring the pleadings, process, and procedure provided
by statute and ending in a judgment. In re Grand Jury of
Douglas Cty., supra. Every other legal proceeding by which a
remedy is sought by original application to a court is a special
proceeding. Id.
Applying these rules, we find that once the district court
granted dissolution and appointed a receiver, a special pro-
ceeding commenced. Neb. Rev. Stat. § 21-148(e) (Reissue
2012) authorizes the district court, on application of a mem-
ber of a limited liability company (LLC), to “order judicial
supervision of the winding up of a dissolved [LLC], including
the appointment of a person to wind up the company’s activi-
ties.” Judicial supervision of the winding up an LLC is thus a
remedy that may be sought by application to a court, but it is
not an action. Treating judicial supervision of a receivership
as a special proceeding is also consistent with our precedent.
In Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013),
we held that we could review a district court’s determination
that a receiver could deny a claim for payment of services
as an action that affected a substantial right during a special
proceeding.
[6-9] The fact that the order denying the motion for further
directions was issued in a special proceeding does not, by
itself, make the order appealable. The order must have also
affected a substantial right. See § 25-1902(1)(b). A substantial
right is an essential legal right, not a mere technical right. In
re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021). A
substantial right is affected if an order affects the subject mat-
ter of the litigation, such as by diminishing a claim or defense
that was available to an appellant before the order from which
an appeal is taken. Id. It is not enough that the right itself
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be substantial; the effect of the order on that right must also
be substantial. Id. A substantial right is not affected when that
right can be effectively vindicated in an appeal from the final
judgment. In re Estate of Larson, 308 Neb. 240, 953 N.W.2d
535 (2021).
We have approvingly cited a commentator who has sug-
gested that in the context of multifaceted special proceedings
that are designed to administer the affairs of a person, an order
that ends a discrete phase of the proceedings affects a substan-
tial right because it finally resolves the issues raised in that
phase. See id., citing John P. Lenich, What’s So Special About
Special Proceedings? Making Sense of Nebraska’s Final Order
Statute, 80 Neb. L. Rev. 239 (2001). We have employed that
“discrete phase” rubric in a number of probate proceedings.
See, In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94
(2022); In re Estate of Beltran, supra; In re Estate of Larson,
supra; In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868
(2012). We have also held that in probate cases, while an order
ending a discrete phase of the proceeding is appealable, one
that is merely preliminary to such an order is not. See In re
Estate of Larson, supra.
Although the judicial supervision of the winding up of an
LLC is not designed to administer the affairs of a person, it
can be a multifaceted proceeding that is designed to administer
the affairs of an LLC. Indeed, it bears substantial similarity to
a probate proceeding: Probate is the legal process by which
a deceased person’s debts are paid and assets distributed; the
judicial supervision of the winding up of an LLC is the legal
process by which a dissolved LLC’s debts are paid and assets
distributed. See § 21-148(b). We also note that the Nebraska
Court of Appeals has previously analyzed whether an order
entered in a receivership proceeding affected a substantial right
by applying the discrete phase analysis. See Sutton v. Killham,
22 Neb. App. 257, 854 N.W.2d 320 (2014). We find it appro-
priate to apply the discrete phase rubric to orders entered in the
judicial supervision of the winding up of an LLC.
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Applying that discrete phase rubric, we conclude that the
order denying the motion for special directions did not end
a discrete phase of the proceedings and thus did not affect a
substantial right. In the motion for further directions, Jerald
sought an order specifically directing the receiver to pay cer-
tain expenses. At the hearing on that motion, the receiver’s
testimony demonstrated that he had not made a final determi-
nation of the expenses that he would pay. Indeed, he testified
that he would consider paying some of the expenses that were
the subject of Jerald’s motion but that a “budget problem”
complicated that task.
Given the evidence adduced and the district court’s order,
contrary to the parties, we do not understand the district court’s
denial of the motion for further directions to be a final deter-
mination that the receiver need not pay the expenses at issue.
Rather, we understand the district court merely to have deter-
mined that additional, specific direction was not necessary at
that time. Because the district court’s order denying Jerald’s
motion for further directions did not affect a substantial right
of Jerald’s, we find that we lack jurisdiction under § 25-1902.
And because we can discern no other basis of appellate juris-
diction, we dismiss that portion of Jerald’s appeal.
(b) Unjust Enrichment
We now consider whether we have appellate jurisdiction to
review the district court’s resolution of the unjust enrichment
claims. We begin our analysis of that question by consider-
ing whether this case implicates Neb. Rev. Stat. § 25-1315
(Reissue 2016). Specifically, we consider whether the fact
that the judicial supervision of the winding up of the company
apparently remained ongoing at the time the appeal was filed
precludes appellate review of the district court’s resolution of
the unjust enrichment claim under § 25-1315.
Section 25-1315(1) provides, in relevant part:
When more than one claim for relief is presented in an
action, . . . or when multiple parties are involved, the
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court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon
an express determination that there is no just reason for
delay and upon an express direction for the entry of judg-
ment. In the absence of such determination and direction,
any order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not ter-
minate the action as to any of the claims or parties . . . .
As we have recently explained, § 25-1315(1) is implicated
only when a case presents more than one claim for relief or
involves multiple parties, and the court enters an order which
adjudicates fewer than all the claims or the rights and liabili-
ties of fewer than all the parties. See Mann v. Mann, ante p.
275, 978 N.W.2d 606 (2022). For purposes of determining
whether a case presents more than one “claim for relief” under
§ 25-1315(1), we have said the term is not synonymous with
“issue” or “theory of recovery,” but is instead the equivalent of
a cause of action. Mann v. Mann, supra.
We find in this circumstance that § 25-1315(1) is not impli-
cated. Although the parties have asserted more than one claim
for relief during the course of this case, the order adjudicat-
ing the unjust enrichment claim did not adjudicate fewer than
all the remaining claims in the case or leave claims asserted
against certain parties for future resolution. Steven initially
asserted a claim for judicial dissolution on behalf of the com-
pany, but that claim was resolved when the court ordered
dissolution. Steven and the company also asserted claims for
adverse possession, prescriptive easement, and easement by
necessity, but those claims were involuntarily dismissed. At the
time the district court decided the unjust enrichment claim, it
was the only claim remaining in the case.
Because we find that § 25-1315(1) is not implicated, we
have appellate jurisdiction to review the district court’s order
resolving the unjust enrichment claim if it satisfies § 25-1902.
Cf. Mann v. Mann, supra. We find that the order is appealable
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under § 25-1902, because it affects a substantial right in a spe-
cial proceeding.
We have already explained our conclusion that the judicial
supervision of the winding up of the company is a special
proceeding. We also find that the order resolving the unjust
enrichment claim was entered in that special proceeding. The
claim of unjust enrichment arose once the judicial supervi-
sion of the winding up process began and Jerald was the only
interested buyer for the buildings. The parties later agreed
that the receiver should be directed to sell the buildings to
Jerald at the price he offered to pay. The unjust enrichment
claim was then litigated under the theory that the sale to
Jerald at that price would result in his unjust enrichment.
The district court’s eventual order found unjust enrichment
and effectively ordered Jerald to pay additional amounts for
the buildings. The unjust enrichment claim was inextricably
bound up within the judicial supervision of the winding up
of the company. Under these circumstances, we find that the
order resolving the unjust enrichment claim was entered in a
special proceeding.
We recognize that a claim for unjust enrichment will, in the
vast majority of cases, be litigated in an action. After all, it is
usually a claim that one party prosecutes against another for
the enforcement, protection, or determination of a right or for
the redress or prevention of a wrong; is usually decided by way
of pleadings, process, and procedure provided by statute; and
usually ends in a judgment. See, e.g., Bloedorn Lumber Co. v.
Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018). Under these
assuredly rare circumstances, however, we find that the unjust
enrichment claim was entered in a special proceeding.
Having determined that the order resolving the unjust enrich-
ment claim was entered in a special proceeding, we return to
the discrete phase rubric discussed above. Here, we find that
the order resolving the unjust enrichment claim ended a dis-
crete phase of the proceeding. It ended the phase of the pro-
ceeding dedicated to resolving the claims of Steven and the
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company that Jerald was unjustly enriched by his purchase
of the buildings and should be required to pay more to the
company. The district court held a trial on this issue and then
entered an order determining that Jerald was unjustly enriched
and ordering him to pay an additional $400,184 for the pur-
chase of the buildings. In this respect, the order is much like
the order we found appealable in Sutton v. Killham, 285 Neb.
1, 825 N.W.2d 188 (2013). In that case, we reviewed an order
of summary judgment finding that a receiver correctly denied
a claim for payment of services. We see no meaningful dif-
ference between the conclusive determination that a party in
receivership had no liability for a debt in Sutton v. Killham
and the district court’s conclusive determination that a party in
receivership was owed a debt here.
We also find similarity between this case and In re Estate of
McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012). We described
that case as one in which a party sought partition of certain
real property within a probate proceeding. See id. at 372, 820
N.W.2d at 874 (“we are presented with the partition of real
property in an estate proceeding”). The testator left four tracts
of land to his three daughters, one of whom sought partition
of the property. The county court found that partition of the
property should be made and appointed a referee. The referee
concluded that the real property should be partitioned by sale;
however, one of the daughters opposed the partition by sale.
Ultimately, the court ordered partition by sale, and the daughter
appealed. Before we reached the merits of the case, we con-
sidered whether or not we had appellate jurisdiction. We con-
cluded that the circumstances qualified as an order that affected
a substantial right. We reasoned:
The county court’s order directing the referee to sell the
property would affect the right of the devisees to receive
the real estate in kind and would force them to sell their
interests in the land. The distribution of the real estate is
a discrete phase of the probate proceedings and would
finally resolve the issues in that phase of the probate of
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the estate. It could be months before an appeal from the
order of confirmation would be finally resolved. In the
interim, distribution of the assets of the estate would have
to wait until that phase of the probate was finally resolved
regarding distribution of the real estate. The sale of the
real estate would diminish the right of the devisees to
have the real estate distributed in kind.
Id. at 374, 820 N.W.2d at 876.
Similar reasoning applies in these circumstances. As in In
re Estate of McKillip, the district court here fully resolved an
issue presented within a multifaceted proceeding. And, like
the situation in In re Estate of McKillip, delaying review of
that finally resolved issue will complicate the resolution of the
entire proceeding. Here, the question of whether the company’s
unjust enrichment recovery will stand obviously affects the
resources the receiver will have available in completing the
winding up of the company’s affairs.
For these reasons, we find that the order of the district court
awarding the company an unjust enrichment recovery from
Jerald affected a substantial right during a special proceeding.
We turn to the merits of that issue now.
2. Unjust Enrichment Merits
The district court concluded that Jerald was unjustly enriched
at the company’s expense when he purchased the buildings
for $18,000. Unjust enrichment claims do not arise from an
express or implied agreement between the parties; rather, they
are imposed by law “when justice and equity require the
defendant to disgorge a benefit that he or she has unjustifi-
ably obtained at the plaintiff’s expense.” Bloedorn Lumber Co.
v. Nielson, 300 Neb. 722, 729, 915 N.W.2d 786, 792 (2018)
(internal quotation marks omitted).
Jerald attacks the district court’s unjust enrichment judg-
ment on a number of fronts. One such argument is that the
district court erred by basing its unjust enrichment finding on
the fact that the transfer of the buildings to Jerald for the price
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he offered would result in his receiving a windfall and the
company’s not receiving reasonable compensation. According
to Jerald, “financial disparity” in a transaction alone cannot
establish unjust enrichment liability. Brief for appellant at 3.
Jerald is undoubtedly correct that an unjust enrichment
recovery is not available solely because a court finds that one
party to an exchange obtained a better deal, or even a much
better deal, than another. Our cases and other authorities
confirm that unjust enrichment, while a flexible remedy, is a
narrower concept. This idea is helpfully summarized in the
comments to the Restatement (Third) of Restitution and Unjust
Enrichment:
[T]he law of restitution is very far from imposing liabil-
ity for every instance of what might plausibly be called
unjust enrichment. The law’s potential for intervention
in transactions that might be challenged as inequitable is
narrower, more predictable, and more objectively deter-
mined than the unconstrained implications of the words
“unjust enrichment.” . . .
The concern of restitution is not, in fact, with unjust
enrichment in any such broad sense, but with a narrower
set of circumstances giving rise to what might more
appropriately be called unjustified enrichment. Compared
to the open-ended implications of the term “unjust enrich-
ment,” instances of unjustified enrichment are both pre-
dictable and objectively determined, because the justifica-
tion in question is not moral but legal.
1 Restatement (Third) of Restitution and Unjust Enrichment
§ 1, comment b. at 5 (2011) (emphasis in original).
Consistent with these thoughts, we have emphasized that
“‘[t]he fact that a recipient has obtained a benefit without
paying for it does not of itself establish that the recipient
has been unjustly enriched,’” Kalkowski v. Nebraska Nat.
Trails Museum Found., 290 Neb. 798, 806, 862 N.W.2d 294,
301-02 (2015), quoting 1 Restatement (Third) of Restitution
and Unjust Enrichment, supra, § 2(1), and that the doctrine
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does not exist to rescue a party from the consequences of a
bad bargain, Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813
(1996). Or, as the Texas Supreme Court has articulated the
same basic idea, “[u]njust enrichment is not a proper remedy
merely because it might appear expedient or generally fair
that some recompense be afforded for an unfortunate loss to
the claimant, or because the benefits to the person sought to
be charged amount to a windfall.” Heldenfels Bros. v. City of
Corpus Christi, 832 S.W.2d 39, 42 (Tex. 1992) (internal quota-
tion marks omitted).
[10,11] Rather than a tool that a court can use to correct any
transaction it might find unfair or unequal, the unjust enrich-
ment remedy can be taken off the shelf in more limited situ-
ations. As we have held, to recover under a theory of unjust
enrichment, the plaintiff must allege facts that the law of resti-
tution would recognize as unjust enrichment. City of Scottsbluff
v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725
(2011). We have explained that this rule does not mean that
prior cases must have recognized a specific fact pattern as
unjust enrichment in order for an unjust enrichment recovery
to be available. It does mean, however, that an unjust enrich-
ment plaintiff must demonstrate that under the circumstances,
principles of the law of restitution would authorize a recovery.
We have said that it is a “bedrock principle of restitution”
that unjust enrichment occurs when there is a “transfer of a
benefit without adequate legal ground” or a “transaction that
the law treats as ineffective to work a conclusive alteration
in ownership rights.” Id. at 866, 809 N.W.2d at 743, quoting
Restatement (Third) of Restitution and Unjust Enrichment, § 1,
comment b. (internal quotation marks omitted). We have also
said one who is free from fault cannot be held to be unjustly
enriched merely because one has chosen to exercise a contrac-
tual or legal right. Kissinger v. Genetic Eval. Ctr., 260 Neb.
431, 618 N.W.2d 429 (2000).
Given the foregoing, we find that the company was not
entitled to an unjust enrichment recovery solely because the
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district court found that the transfer of the buildings to Jerald
at the price he offered was economically lopsided. Even assum-
ing the result of the transfer was a much better deal for Jerald
than the company, this alone does not demonstrate that the
transfer occurred without an adequate legal ground or that it
was ineffective to work a conclusive alteration in ownership
rights of the buildings. And while the district court appears to
have concluded that Jerald was able to benefit from the circum-
stances solely because he was not willing to grant an easement
on his property for ingress to and egress from the buildings,
we see no basis to find that Jerald was obligated to grant such
an easement.
Aside from the bare economics of the transaction, Steven
and the company argued and the district court found that an
unjust enrichment recovery was warranted based on the rea-
soning of the Arkansas Court of Appeals in Trickett v. Spann,
2020 Ark. App. 552, 613 S.W.3d 773 (2020). Again, we dis-
agree. In that case, plaintiffs, a husband and wife, paid for
the construction of a house on real property owned by their
daughter and her husband. Plaintiffs lived in the home for a
time, but moved away after their daughter died. After plain-
tiffs had moved away and their daughter’s husband refused to
pay them for the home, they filed a lawsuit claiming unjust
enrichment and prevailed in the trial court. The appellate court
upheld the unjust enrichment recovery, but did so based on
the theory that an unjust enrichment recovery was appropri-
ate when a plaintiff provides improvements to a defendant’s
property, the circumstances were such that the plaintiff rea-
sonably expected the defendant to pay for the value of the
improvements, and the defendant was aware the plaintiff was
providing the improvements with the expectation of being
paid. The appellate court pointed to specific evidence in the
record demonstrating that plaintiffs expected their daughter
and her husband to pay for the home and that the daughter’s
husband accepted the home knowing that his in-laws expected
to be paid.
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While there is some surface similarity between this case and
Trickett v. Spann, the unjust enrichment rationale applied there
does not fit here. Unlike the plaintiffs in Trickett v. Spann,
Steven and the company can point to no evidence in the record
that the company constructed the buildings on Jerald’s land
with the expectation that Jerald would pay for them or that
Jerald allowed the buildings to be built there knowing that
the company expected to be paid. The company did not even
exist when the buildings were constructed. At that time, Jerald
and Steven were operating as a general partnership. And even
if that fact can be set to the side, there is also nothing in the
record that suggests that when the buildings were constructed,
Steven expected Jerald to pay him for the buildings, or that
Jerald allowed the construction of the buildings knowing that
such payment was expected.
Not only do we find the district court’s rationales for its
unjust enrichment judgment unpersuasive, we find that its
judgment is inconsistent with other principles of the law of
unjust enrichment. First, an unjust enrichment recovery is
generally unavailable when a party conferring a benefit has
the opportunity to form a contract with the party receiv-
ing the benefit, but neglects the opportunity to do so. See 1
Restatement (Third) of Restitution and Unjust Enrichment,
§ 2, comment d. (2011). The rationale for this principle is that
when voluntary transactions are feasible, it is preferable “to
require the parties to make their own terms [rather] than for
a court to try to fix them.” Indiana Lumbermens Mut Ins v.
Reinsurance Results, 513 F.3d 652, 657 (7th Cir. 2008). See,
also, 1 Dan B. Dobbs, Dobbs Law of Remedies § 4.9(4) at
690 (2d ed. 1993) (providing that “[i]f the parties could have
contracted but did not, the plaintiff generally is denied recov-
ery of the non-cash benefit”). Here, the company appears to
be claiming that it is entitled to an unjust enrichment recovery
because Jerald and Steven, through their partnership, conferred
a benefit on Jerald by constructing the buildings on his land
many years ago. But, at that time, Steven knew the buildings
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were being constructed on Jerald’s land. As Steven’s counsel
conceded at oral argument, there was no evidence that Steven
was deceived as to the buildings being built on Jerald’s land;
rather, he “went into this eyes wide open.” Despite knowing
where the buildings were being constructed, Steven did not
insist on contractual terms, but, in the words of the U.S. Court
of Appeals for the Seventh Circuit, is asking “a court to try
to fix them.” Indiana Lumbermens Mut Ins v. Reinsurance
Results, 513 F.3d at 657.
[12] In addition, the doctrine of unjust enrichment is rec-
ognized only in the absence of an agreement between the par-
ties. Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 (1996).
Steven and the company claim, and the district court found,
that Jerald was unjustly enriched by receiving the buildings
for his offered price of $18,000 and that he should have to pay
more. But this overlooks the fact that the parties agreed that
the district court should order the receiver to sell the buildings
to Jerald for that price. To this, Steven and the company will
no doubt respond that both they and Jerald agreed that a sale
should take place on those terms with the reservation that the
sale would not preclude further pursuit of an unjust enrichment
claim. While this reservation certainly permitted Steven and
the company to pursue an unjust enrichment claim after the
sale, it did not change the law of unjust enrichment that gov-
erned it. And in our view, despite the parties’ agreement that
an unjust enrichment claim could still be pursued, the company
could not, consistent with unjust enrichment principles, agree
to sell the buildings to Jerald for one price and also ask that the
district court order him to pay more. Such an outcome results
in Jerald’s effectively purchasing the buildings for much more
than he offered and agreed to pay.
Because we find that the district court erred in entering
judgment for the company and against Jerald on the com-
pany’s unjust enrichment claim, we reverse that judgment and
remand the cause with directions to enter judgment in Jerald’s
favor.
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Because we find that the unjust enrichment judgment was
erroneous, we need not consider Jerald’s contention that the
district court erred in its calculation of the amount Steven was
unjustly enriched. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it. Cain v. Lymber, 306 Neb. 820, 947
N.W.2d 541 (2020).
V. CONCLUSION
We find that we lack jurisdiction to review the district
court’s order denying Jerald’s motion for further directions.
We find that we have jurisdiction to review the district court’s
order finding that Jerald was unjustly enriched. On that issue,
we find the district court erred and therefore reverse, and
remand with directions to enter judgment in Jerald’s favor.
Appeal dismissed in part, and in
part reversed and remanded
with directions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485559/ | The maternal grandparents of these two children brought an action for the termination of the parental rights of the natural mother and father. The mother and father are married but separated. The natural mother and her two children have resided with the petitioners since the separation.
Both natural parents have signed "consent and waiver" forms, and both testified that they were willing to have their rights terminated. The court has a duty, however, to make whatever judgment it deems in the best interest of the children. In this case the children have been residing continuously with their natural mother since birth and regard her as their mother. The natural mother is employed. The natural father visits the children from time to time. Neither parent is unfit, and neither has in fact abandoned the children.
The principal effect of a change in legal custody of the children would be to enable their grandfather, who recently became eligible for Social Security benefits, to apply for higher benefits on account of additional dependents. This in itself would not be contrary to the interest of the children. In return, however, the children *22would be divested of any right to future support from their natural parents. This cost is too high.
The petitions are denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485563/ | *41Opinion and Order on Various Motions:
I. MOTION FOR FURTHER CONTINUANCE
At the outset we address the plaintiff’s motion for a further continuance of the hearing on his "Motion for Reconsideration of Order Denying Plaintiff’s Second Motion to Set Aside Dismissal" in #62-81 and his motion for reconsideration in #68-86.
The informal motion to continue was contained in a handwritten note dated March 4, 1987, and received by the Clerk of Courts on March 10, the day before the scheduled hearing. The note was sent from. Hawaii by plaintiff’s counsel. It did not comply with the rules pertaining to the form of motions, contained no affidavit of service upon opposing counsel and had not in fact been received by opposing counsel as of the time of the scheduled hearing. It alluded to a pending settlement of the case. Obviously, a defendant in whose favor judgment has been rendered remains free to pay money to the plaintiff if he so desires. Under the circumstances, however, an allegation that this is about to happen is an insufficient basis for yet another continuance.
II. THE WORKMEN’S COMPENSATION CASE
On August 2, 1985, the Workmen’s Compensation Commission made the award of which the appellant complains. A series of efforts to secure a reconsideration of the award culminated on February 24, 1986, in a final denial of a rehearing by the Commission. Counsel for the plaintiff, Mr. Fred Rohlfing of Hawaii, filed an appeal from the award in the High Court on or about March 15, 1986.
The appeal would have been timely but for the fact that Mr. Rohlfing, who had been a member of the American Samoa Bar Association, was no longer a member in good standing, having failed to pay his dues for 1984, 1985, and 1986. The papers were also not accompanied by the required filing fee. The Clerk of Courts, on the instructions of the then-Chief Justice, returned the papers to counsel in Hawaii. He immediately (March 25) responded by paying the three years’ dues, but inexplicably did not also re-file the appeal. Instead counsel states that he consulted with various local lawyers for several months before re-filing the appeal on June 6, 1986. Even on the most liberal possible *42interpretation of the statutory 30-day period for filing of appeals from Workmen’s Compensation Commission awards, counsel should have filed by April 24 (30 days after he received notice that his initial attempt to appeal had been unsuccessful). As of March 25, 1986, plaintiff’s counsel was a member in good standing of the American Samoa Bar and was perfectly capable of filing the very papers he had once already attempted to file. Instead he waited well over two additional'months. The court was therefore correct in refusing to order the certification and transmission of a record on appeal, and in denying counsel’s various attempts to secure a reconsideration of the initial refusal.
III. THE CIVIL ACTION
On October 21, 1981, the plaintiff effected service against the present defendants in a civil action arising out of the same accident that was the basis of the Workmen’s Compensation Commission award. We note that the civil action was almost certainly barred by the two-year statute of limitations, since the accident had happened on or about October 2, 1979, and there is no suggestion in any of the pleadings of special circumstances that would have caused the action not to accrue until later. The statute of limitations was pleaded as an affirmative defense, but the court never had to rule on it because the case was dismissed instead for failure on the part of plaintiff’s counsel to prosecute it.
The order of dismissal was rendered on December 11, 1985, pursuant to an order of June 21, 1984, that the case would be dismissed unless good cause to the contrary should be shown by July .20, 1984. Plaintiff’s local counsel in American Samoa had responded with an affidavit to the effect that "the matter should go to trial, all things being considered, in October or November of 1984." When counsel did not in fact move to set the case for trial during those months or submit any explanation whatever during the eighteen months between June 1984 and December 1985, the court dismissed the case.
Upon receiving notice of the dismissal, Mr. Rohlfing moved for a reconsideration. The basis for this motion was that Mr. Rohlfing had not been personally informed of the June 21 order. Mr. Rohlfing had, however, joined local counsel who had appeared on a number of occasions on behalf of. Mr. *43Kaho. Notice to local counsel was therefore entirely appropriate.
As is his wont, Mr. Rohlfing also sent personal letters to the Clerk of Courts and to the trial judge. In the letter to the Clerk he apprised the Court for the first time of his contention that the case had been automatically stayed during 1984 and 1985 on account of the bankruptcy of Continental Airlines, a co-defendant along with the present defendants. (Plaintiff voluntarily dismissed the case against Continental after a settlement was reached.)
Mr. Rohlfing submitted no authority, however, for the proposition that the automatic stay o.f suits against parties in bankruptcy proceedings provided by 11 U.S.C. 362 also operates to stay proceedings against solvent co-defendants. The United States Courts of Appeal that have considered the question are uniformly of the opinion that it does not. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (10th Cir. 1984); Williford v. Armstrong World Indus., Inc., 715 F.2d 124 (4th Cir. 1983); Wedgeworth v. Fibreboard Corp., 706 F.2d 541 (5th Cir. 1983); Austin v. Unarco Indus., Inc., 706 F.2d 1 (1st Cir. 1983); Pitts v. Uarco Indus., Inc., 698 F.2d 313 (7th Cir. 1983); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th Cir. 1983). At any time between 1981 and 1985, therefore, Mr. Rohlfing was free to press his client’s suit against the present defendants. The court was well within its discretion in dismissing the action for his failure to do so. See Link v. Wabash Ry. Co., 370 U.S. 628 (1962).
In his letter to the trial judge, Mr. Rohlfing stated that his co-counsel in American Samoa had been "principal counsel when the failure to respond to your notice of potential dismissal occurred" but was "no longer a co-counsel for the Plaintiff in this matter." He requested that the hearing on his motion for reconsideration, scheduled for February 18, 1986, "be handled by conference telephone call." Mr. Rohlfing did not explain why, if local counsel and not Mr. Rohlfing had been the client’s "principal counsel," the Court should give legal effect to a dismissal of the principal counsel signed by another counsel but not by the client. (Subsequent to the February 18 hearing:, a dismissal of local counsel signed by the client on March 4 was filed with the Court.) Nevertheless, the court attempted to accommodate Mr. Rohlfing: the trial judge’s notes, which he inserted in the case file, *44reflect that he called Mr. Rohlfing’s office on February 13 and was told that Mr. Rohlfing was out of town until February 18. The judge asked Mr. Rohlfing to call back, but Mr. Rohlfing did not call on the 18th. The motion to reconsider was therefore heard on the basis of Mr. Rohlfing’s written submissions and the arguments of local counsel. The motion was taken under advisement, however, pending the expected call from Mr. Rohlfing.1
Mr. Rohlfing subsequently communicated with the Clerk, apparently by telephone, in or around June of 1986. The Clerk told him the case had been taken under advisement. In October 1986 Mr. Rohlfing wrote another letter to the trial judge. On November 10, 1986, he filed a second motion to set aside the order of dismissal, alleging no grounds other than those already discussed. The motion was denied after a hearing on December 23. (Mr. Rohlfing asserts that he waited for the court to call him on December 23 and then attempted to call the court several times during the day. The record reflects that the judge and the other attorneys were in court for the December 23 hearing, and the present writer has been assured by court personnel that all High Court telephones were being answered at all times between 7:30 a.m. and 4:00 p.m. Although Mr. Rohlfing has asserted that he has been "a victim of Polynesian communications" during the course of this case, he was always free to circumvent such problems by appearing personally in court on behalf of his client, as is the general custom in American Samoa and elsewhere. In any case, his motion was so clearly without merit that oral argument could not have made a difference.)
*45The Motion for Reconsideration of Order Denying Plaintiff’s Second Motion to Set Aside Dismissal is denied.
CONCLUSION
Mr. Rohlfing’s memoranda contain the suggestion that if the High Court does not reopen these cases his client’s constitutional right to due process of law will have been denied. On the contrary, the court seems to have afforded over the years a good deal more process than was due. Although it is always advisable in any jurisdiction for a lawyer operating from another place to join local co-counsel, this court has tried to accommodate those off-island lawyers who choose not to do so. Such arrangements can work, but only if the off-island lawyer is willing to exert somewhat more than the usual diligence. In this case the client’s procedural problems arose from the lawyer’s unusually casual attitude toward the case.
The motions are denied.
. The transcript of the February 18, 1986, hearing reflects the judge’s decision that "I’ll take the thing under advisement because Rohlfing has written. We’ll listen to what he has to say on the telephone and decide it." Mr. Rohlfing’s letter of October 18, 1986, however, indicates that his office did give him the message that Judge Murphy had called, "but not until subsequent to the hearing date of February 18th. Accordingly, I had assumed that in due course I would receive a written order/decision on the motion." This dogged determination to regard the ball as in someone else’s court is the hallmark of Mr. Rohlfing’s conduct of these cases. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485564/ | Plaintiff sued as guardian of her minor child to recover for injuries suffered by the child when he was struck by defendant’s vehicle. At the conclusion of the plaintiff’s case, counsel for defendant moved for summary judgment. The motion was granted. Plaintiff has requested this statement of our findings of fact and conclusions of law.
FINDINGS OF FACT
The defendant’s vehicle struck plaintiff’s child when the child walked suddenly into the road. The child had been standing in front of a bus and could not be seen by drivers approaching from behind the bus until the moment he stepped out into the road. The other passengers who had disembarked from the bus had completely crossed the road before the child stepped into the roadway. The point of collision with defendant’s vehicle was at the extreme right end of the front of the vehicle, indicating that the child stepped into the road at the last possible moment before impact. There was *47no evidence of excessive speed or other negligence on the part of the driver. The child sustained a fractured jaw and superficial injuries to the head and face, all of which seemed to have healed by the time of trial.
CONCLUSIONS OF LAW
The defense of "he darted into the road at the last moment" is often asserted but seldom proved. In this case, however, the testimony of the plaintiff herself established that this was what happened. Contrary to the suggestions in the plaintiff’s memorandum in support of a new trial, the mere fact that a yehicle strikes a pedestrian does not give rise to strict liability without fault, or even to a responsibility on the part of the defendant to' prove that he was not negligent. It is true that drivers who approach buses stopped on the side of the road should look out for disembarking passengers, but in this case the plaintiff’s own evidence suggests that a reasonable driver would have been justified in concluding that the disembarking passengers had already crossed the road. Plaintiff failed to carry her burden of proof that the defendant was negligent, or even to present any evidence of such negligence. Even if defendant did have the burden of disproving his own negligence, the plaintiff’s testimony that her child stepped out from behind the bus at the last moment would satisfy this burden. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485565/ | Opinion and Order on Post-Trial Motions:
The parties were divorced on October 29, 1984. The court gave custody of the parties’ six.children to respondent, Ofeira Brown Dellumo. Petitioner, James Dellumo, was ordered to pay alimony of $100 per month and child support of $50 per month per child. In late 1985 the order was modified to give custody of two children, Cathy and Angel, to petitioner, and also to require petitioner to pay $5200 (13 payments of $400 per month) to respondent in liquidation of her share in the family business. Each party now alleges that the other has violated the ' order in several respects. Petitioner also asks that the court quash a garnishment secured by *49respondent against the corporation that now owns the family business, and that the order be modified to discontinue the payment of alimony and to reduce the amount of child support.
I. CHILD SUPPORT ARREARAGES
The total amount of payments should have been $300 per month from November 1985 through March 1985, or $3900, plus $200 per month from December 1985 through March 1987, or $3200, for a total of $7100. Petitioner has submitted evidence that he paid $4180 to respondent for "alimony and child support"; we will credit this toward child support. We will also credit the $350 he paid to the Clerk of the High Court, as well as $200 reflecting a garnishment of his personal bank account and a cash payment during February. A $100 payment made by petitioner to his attorneys, which was to have been forwarded to respondent but was ultimately returned to the petitioner, will not be credited. Two payments of $25 each of invoices on Top Shop accounts will not be credited toward child support but will be discussed later. The total amount of arrearages on child support, therefore, is $7100-($4180 + $350 + $200) or $2370.
It is unclear how much of this money is owed to the respondent and how much is owed to the Department of Social Services of the state of Hawaii, which received an assignment of child support payments in return for making AFDC payments to some of the children while they were in Hawaii, and which may or may not still be caring for the children. The'Clerk of Courts has already forwarded $350 to the State of Hawaii pursuant to a Uniform Reciprocal Enforcement of Support claim.
We therefore make the following order with respect to child support arrearages: Petitioner shall pay $200 per month to the Clerk of the High Court on or before April 15th, 1987, and continuing until the entire $2370 (plus interest on the unpaid balance at the rate of 1/2% per month from March 15, 1987) has been paid. The Clerk will ascertain what amounts are owed to the State of Hawaii (including the $1603 which petitioner has already been ordered to pay) and will apply petitioner’s payments to retiring this debt. If, as seems quite possible, the total debt to the State of Hawaii exceeds $2370, the balance will be satisfied out of other funds owed by petitioner to respondent. (The Court will ensure, in other words, that petitioner is not required to pay the same debt twice.) If *50the debt to Hawaii should be less than $2370, the balance will be paid by the Clerk to respondent.
II. ALIMONY ARREARAGES
Since all amounts paid by petitioner as "child support and alimony" have been credited to child support, the entire amount from the date of judgment to the present remains due. $100 per month from November 1984 until March 1987 amounts to $2900. Against this amount, however, petitioner claims credit for certain items of merchandise respondent received from the family business, the price of which she agreed to have deducted from her alimony payments. We have examined the records of such receipts proffered by the petitioner, and find that only $217.10 can be charged against the alimony payments in accordance with the agreement.
Respondent agreed that "shortages' or losses on any invoices from the Top Shop or Fabric Arts Printing that I have signed for merchandise that I have recieved" (sic) could be deducted. Two of the documents submitted by petitioner are pages from loose leaf notebooks which do contain what appears to be respondent’s signature as well as references to items of merchandise, but the pages contain no reference to any receipt, purchase, loss, shortage, or invoice; nor are the signature and the lists juxtaposed in such a way as to give an observer any confidence at all that the person whose name is on the page has received the items in question. Two of the documents submitted seem to be records of payments on an account (apparently the same two $25 payments claimed by petitioner in his list of alimony and child support payments), and -also seem to have been signed not by the respondent but by the petitioner himself. Another invoice for $88.21 contains notations indicating that all but $13.00 was paid. (We give respondent credit for this amount plus the entire amount on invoices number 7432, 7435, 2478, and 2479, although the "Not Paid" entries on these invoices are written below the petitioner’s signature and in another hand.) The alimony arrearages therefore total $2900 - $217.10, or $2682.90.
We will allow petitioner to postpone payment of alimony arrearages until after the payment of all child support arrearages, provided that the $200 monthly payments are made on time. After the back child support has been paid (in about fourteen months) the alimony arrearages should be paid to the Clerk of the High Court in the amount of $200 *51per month on or before the 15th of each month. This monthly payment will be made until the petitioner has paid $2682.90 plus interest on the unpaid balance at 1/2% per month. The Clerk will first remit to the State of Hawaii any amounts remaining on the back child support debt, and shall remit all further amounts to the respondent.
III. THE PROPERTY SETTLEMENT
The'parties agree that the petitioner has paid $2400 of the $5200 property settlement, and that $2800 remains to be paid. The payment schedule will be discussed below.
IV. THE GARNISHMENT OF THE CORPORATE BANK ACCOUNT
Petitioner has moved to quash a writ of garnishment directed at a bank account in the name of South Pacific Clothiers, Inc. This corporation was organised in mid-1984 (a few months before the petitioner sued the respondent for divorce) and ownership of the business which had formerly been owned and run jointly by petitioner and respondent was transferred to the corporation. This was the very business in respect to which the Court ordered petitioner to pay respondent $5200 in liquidation of her share, and whose difficulties petitioner has cited as evidence of his own inability to pay alimony and child support. Petitioner is the general manager of the corporation and owns 50% of the stock. He and his new wife each draw a salary of about $400 per month from the corporation, and apparently sometimes live in the building that houses some of its operations. This is the corporation on whose account petitioner claims an offset of $1473 (of which the court has awarded $217) from his alimony payments, although he submits evidence that he repaid the corporation only $50 from his personal accounts. There is, in' other words, abundant evidence that both parties have treated the corporation as the mere alter ego of the petitioner, and that it would be grossly unfair to allow him to shelter assets and income behind the corporate veil while defaulting on thousands of dollars in child support, alimony, and a property settlement whose purpose was to compensate the respondent for the loss of her share in the very business now conducted by the corporation.
On the other hand, the petitioner testified that another person, apparently unconnected with *52the present litigation, owns the other 50% of the stock in the corporation. Assuming that he acquired his interest at arm’s length and without notice of the circumstances giving rise to the formation of the corporation, it would be unjust to allow the assets of the corporation to be liquidated to satisfy the personal debts of his co-proprietor. Assuming that petitioner’s new co-owner was not extraordinarily foolish, however, petitioner must have brought something of value into the corporation, and that something belonged mostly to the respondent and to the six children of the marriage. Balancing the inequities, we conclude that the best solution is to refuse to quash the writ and to apply the amount obtained (about $1900) to the $2800 owed by the petitioner on the property settlement. No future seizure of corporate assets will be permitted, however, without a clear prior showing that petitioner is fraudulently sheltering assets or income.
We will allow petitioner to postpone payment of the remainder of the property settlement (about $900 plus interest on the unpaid balance at the rate of 1/2% per month) until after payment of the child support and alimony arrearages has been made. He will then pay $200 per month to the Clerk of the High Court, who will forward the money to the respondent.
V. FUTURE PAYMENTS
The order will be modified to suspend future alimony payments, although respondent retains the right to ask that alimony be reinstituted if circumstances warrant.
Petitioner shall continue to pay $50 per month for each of the four children not in his custody. Within three days of the receipt of this order, counsel for respondent shall file with the Clerk of the High Court an affidavit from his client stating the whereabouts of the three children and whether she is still receiving AFDC payments from Hawaii. If they are in Samoa being cared for by respondent and her family, all child support shall be paid to the respondent. If the children are in Hawaii being cared for by the Department of Social Services, payments on their account shall be made to the Department.
VI. CUSTODY AND VISITATION
Custody of the children will remain as it is, *53although each party retains the right to call to the attention of the court any circumstances warranting a change in custody. Each party is enjoined from interfering in any way with the visitation rights of the other party.
CONCLUSION
On or before the 15th of April and of every month thereafter until further notice, the petitioner shall pay $400 to the Clerk of the High Court. $200 of this amount will pay his child support obligation for the current month to the respondent and/or the State of Hawaii. The other $200 will go to repay his arrearages, in the following order: (1) child support owed to the State of Hawaii; (2) child support owed to the respondent; (3) alimony; (4) property settlement. Wilful failure to make any such payment when due will be punishable as contempt of court.
Respondent shall immediately notify the court of the present whereabouts of the three children who were formerly being cared for in Hawaii.
The motion to quash the writ of garnishment is denied. The funds obtained pursuant to the writ will be delivered to the respondent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485566/ | *55The plaintiff and two of the defendants in this action were candidates for the Togiola title in 1985. After the death of the previous titleholder, defendant Maui’a registered the title in his own name. This registration was challenged by defendant Te’o and by the plaintiff, who was then called by the title Ufagafa. Each of these three men claimed that the Togiola family, or the greatest part of it, supported him for the Togiola title. Since the family could not resolve its differenóes, the controversy came before the High Court.
By the time of the trial, candidate Maui’a had removed to Hawaii and a fourth candidate had dropped out of contention, stating that he would support either Te’o or Ufagafa. It was the unanimous decision of the four Samoan Associate' Judges sitting on the case that the two remaining candidates, Te’o and Ufagafa, were about equal in their hereditary right to the title. The Samoan judges also found that the family was divided among all four candidates with no candidate prevailing. The judges found that Ufagafa clearly prevailed in forcefulness, character, leadership, ' and familiarity with Samoan customs, and also in value to the- family and community. The Court therefore decided that Ufagafa should hold the Togiola title. The Appellate Division upheld this decision.
Shortly after the Appellate Division issued its opinion, the new Togiola began preparations for his saofa’i, which was held on February 24 of this year. On February 17, however, another saofa’i was held, purporting to bestow the -Togiola title on Tafesilafa’i, who had not previously been a candidate for the title. Since that time Tafesilafa’i has been holding himself out as the holder of the Togiola title, and Te’o and Maui’a have been supporting him in this claim. This action, brought by the lawful holder of the title, seeks to enjoin the defendants from continuing to hold out Tafesilafa’i as Togiola.
The laws of American Samoa clearly give the court power to enjoin someone from holding himself out as the holder of a title that has been lawfully registered in the name of another person. A.S.C. 43.0303. Indeed, the Fono has enacted a law making it a crime for anyone to claim a title that belongs to another person. A.S.C. 1,0414. We are most reluctant, however, to issue an order that interferes with what a person chooses to call himself. If the defendants had done nothing other *56than to sav that Tafesilafa’i was really Togiola, we would be strongly inclined to leave it to the Togiola family and to the traditional leaders of the Territory to correct this erroneous impression.
We do, however, have the obligation to prevent people from interfering with the rights of others. Togiola complains that the defendants have interfered with his own right to exercise the powers appurtenant to the title. The Court has also heard a statement from Paramount Chief Le’iato, for whose saofa’i preparations are currently underway, indicating that the possibility that his saofa’i will be disrupted and the harmony of the whole Eastern District fractured as a result of the present controversy is a matter of great concern to him.
The evidence establishes that at a meeting called last week for the purpose of making preparation for the Le’iato saofa’i, Tafesilafa’i came in and sat in the place traditionally reserved for Togiola. When he was asked to leave by Leota, who had called the meeting and in whose house it was, he refused. An argument ensued, and a talking chief of the Togiola family was beaten by some sons of Tafesilafa’i. At the hearing, defendants did not attempt to rebut this evidence.1 Furthermore, Tafesilafa’i testified that he and he alone had the power to make legal decisions concerning Togiola family lands, and that he intended to actively interfere with any decision by Togiola Talalelei *57Tulafono to build a house or conduct other activities on family lands. (Asked exactly what he would do to interfere, he stated that he would begin by going to court, but if he lost he would still not allow any such buildings to be built.)
The defendants believe that they are justified in their posture because they and they alone represent the blood members of the Togiola family,¡ This has unfortunately become a standard tactic in matai title disputes: if you cannot win any other way, claim that only the members of your own clan are "true" blood members of the family. It is clear, however, that Togiola Talalelei Tulafono is descended from Togiola titleholders including the original titleholder. t He presented evidence of this at the trial over the title, and Te’o did not challenge this evidence.
The defendants’ attempt to portray this as a controversy between "the family" on the one hand and “the Court" on the other is particularly ironic, because the two previous titleholders--who are more closely related to the defendants than to the plaintiff, and whose administration of the family in recent years seems to be the basis for the defendants’ attitude that their side of the family is the only "true" side --- were themselves chosen by the Court.
In 1952 the Court awarded the Togiola title to one Fuaga, who went on to hold it for about thirty years; the losing candidate in that case, whose membership in the family was not challenged, was the great-uncle of the plaintiff in this case, Togiola Talalelei Tulafono. On the death of Togiola Fuaga in 1982 the family again found itself unable to agree, and the Court awarded the title to Mapu, the father of defendant Te’o-. When one side of the family has held the title not through family consensus but through judicial decisions, it is particularly unbecoming for that side to call foul --- much less to threaten active disobedience to Court orders --- when the Court subsequently awards the title to another side of the family.
Moreover, this title came to the Court in 1984 not because of anything the plaintiff did but because the defendants could not agree among themselves. Maui’a was the first to register the title. His claim was challenged first by another family member and then by Te’o. The plaintiff, who was ultimately awarded the title, did not file his claim until after the controversy was well under *58way. A candidate who files a claim with the territorial registrar knowing that the family has not reached a genuine consensus and that his claim will be opposed by other members of the family, who wages a court battle and then an appeal asking the Court to award him the title, is in no position to complain about "Court interference in family matters" when somebody else wins the case.
It is the judgment of the Court, therefore, that Tafesilafa’i can call himself anything he wants, although courtesy and a desire for peace within the family should militate strongly against his continuing to call himself by the title Togiola.
The defendants are enjoined, however, from interfering in any way with the right of Togiola Talalelei Tulafono to exercise the powers appurtenant to the Togiola title. This specifically includes, but is not limited to, the power to make decisions concerning family land.
The defendants are also enjoined from committing, encouraging, or countenancing any acts of violence in connection with this controversy.
The defendants are further enjoined from interfering with the conduct of the Le’iato saofa’i. Rather than spell out in detail what is forbidden by this part of the injunction, we direct the defendants to comply with the requests of Paramount Chief Le’iato and of those authorized to speak for him in connection with the saofa’i.
It is so ordered.
. The defendants conducted their own defense at the hearing on the preliminary injunction, as did the plaintiff, who is an attorney. One of the defendants called to the Court’s attention the fact that the hearing was held on one day’s notice and that they had therefore been unable to retain counsel. The short notice was made necessary by the imminence of the Le’iato saofa’i, preparations for which were actively disturbed last week by the defendants and their associates. The Court attempted to explain to the defendants their rights (e.g., to cross-examine the plaintiffs’ witnesses and to put on their own evidence) at each stage of the proceeding. If defendants feel that they were prejudiced by the short notice, or wish to change the Court’s ruling in any way, they may secure counsel and bring the matter for a hearing on the question of a permanent injunction. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485568/ | Seven members of the territorial House of Representatives brought this action alleging that the Governor of American Samoa has entered into several leases of government land in violation of A.S.C.A. § 37.2030. That section provides that no such lease for a period of ten years or longer shall be effective until it has been submitted to the Fono. It further provides that if any such lease is disapproved by a resolution adopted by both houses of the Fono within thirty days of its submission, the lease shall not take effect.
Counsel for the Governor admits that he has not been submitting leases to the Fono. Nor, in fact, did the previous Governor do so at any time after March 2, 1984, when the then-Attorney General gave his opinion that A.S.C.A. § 37.2030 violates the American Samoa Constitution. This opinion was based on the decision of the United States Supreme Court in I.N.S. v. Chadha, 462 U.S. 919 (1983), which held that a similar federal statute violated the United States Constitution.
The government defendants have moved for summary judgment. The motion is not based on whether the plaintiffs (some of whom are no longer members of the Fono) have standing as legislators, citizens, taxpayers, or otherwise, so we do not address that question. Nor are we called upon to decide how, if at all, this court could obtain jurisdiction over the Small Business Administration and the King of Tonga. Rather, the government defendants ask for a judgment that A.S.C.A. § 37.2030 is unconstitutional.
*87I. The Constitutionality of the "Legislative Veto"
The Supreme Court in Chadha construed certain provisions of the United States Constitution. It did not suggest that state or territorial courts were bound to construe similar provisions in their own constitutions in the same way. It is fairly common for similarly worded constitutional and statutory provisions to be construed differently in different jurisdictions. This is true not only because reasonable people may differ about what words mean but also because the circumstances under which a law has been adopted and applied may vary widely from place to place. Nevertheless, we regard an opinion of • the United States Supreme Court as highly persuasive authority whose reasoning should be given careful consideration even when ' it does not directly apply to a matter before us.
Chadha held that a "legislative veto" provision in a federal statute was unconstitutional. The law in question gave the executive branch the power to grant "hardship exemptions" to immigrants who would otherwise be deported, but provided that no such exemption would be effective if either house of Congress passed a resolution disapproving it. The Court held this provision to violate two provisions of Article I, section 7 of the United States Constitution: the "presentment clauses," under which all legislative acts must be submitted to the President for his signature or veto; and the bicameralism clause, which provides that no law can take effect without the concurrence of both houses of Congress.
Since A.S.C.A. § 37.2030 provides that both houses of the Fono must concur in order to disapprove a lease, this case does not give us occasion to consider whether the Court’s analysis of the bicameral requirement of the United States Constitution also applies to the American Samoa Constitution.1 Like the law struck down in Chadha. *88however, the lease law in this case gives the legislature the power to bring about a certain result --- the ineffectiveness of a lease--without the approval of the executive. If bringing about such a result constitutes "lawmaking" then it violates American Samoa’s presentment clause, which provides that "no law shall be enacted except by bill," and that "every bill . . . shall be presented to the Governor for his approval." Rev. Const’n of Am. Samoa art. II § 9.
The proponents of the legislative veto argue that the resolution of disapproval is not a "law." Rather, the "law" is made when the statute containing the legislative veto provision is enacted by the legislature. That law is presented to the executive, who then has a chance to sign or veto it. The resolution of disapproval is not itself a form of "lawmaking," but a subsequent condition on whose fulfilment or nonfulfilment the effects of a law will depend. It is not uncommon for laws to be enacted which delegate authority to the executive only on condition that something happen in the future. A law might delegate the President the power to impose wage and price controls if and only if the rate of inflation reaches a certain level, or to invade a country if and only if that country invades the United States. In such cases it is not the rate of inflation or the enemy generals who "make law," even though some action of theirs is necessary to trigger the result contemplated by the law. In a law with a legislative veto provision, the delegation of authority is made dependent on the condition that a resolution of disapproval not be passed.
The United States Constitution contains a powerful answer to this argument. Such quibbling *89about how a legislative action should be characterized was anticipated and dealt with by the framers of the Constitution. As the Court pointed out in Chadha.
Presentment to the President and the presidential veto were considered so imperative that the draftsmen took •special pains to assure that these requirements could not be circumvented. During the final debate on Art I, § 7, cl 2, James Madison expressed concern that it might easily be evaded by the simple expedient of calling a proposed law a "resolution" or ,"vote" rather than a "bill." . . . As a consequence, Art. I, g 7, cl 3 . . . was added.
462 U.S. at 946-47. The second clause of Article I, section 7, provides only that every “Bill" passed by Congress shall be presented to the President. The third clause, inserted to meet Madison’s concern, provides that every "Order, Resolution, or Vote" to which the concurrence of the House and Senate is necessary shall also be presented to him. Whether or not a resolution of disapproval constitutes “lawmaking," it is clearly an "order, resolution, or vote," and the failure to submit it to the President violates the federal, constitution.
There is no corresponding provision in the American Samoa Constitution. Not only is the presentment clause of the territorial constitution limited to "bills," but the very next section contemplates something called a "joint resolution" whose passage requires a majority of the members of both Houses but not the consent • of the Governor. Rev. Const’n of Am. Samoa, art. II, g 10. In light of the requirement of article I, section 9, that no law shall be made except by "bill," it seems that our Constitution contemplates some legislative activity which is not "lawmaking" but which is important enough to require a constitutional majority of the legislature. Such activity might include resolutions disapproving executive actions.
The Court in Chadha did not, however, place its primary reliance on the language of the presentment clauses. Rather, it took the position that the "nature" of the action of the House in reversing the decision to let Chadha stay in the country "manifests its legislative character.” 462 U.S. at 994. Since in deciding to reverse the *90executive decision Congress would no doubt be motivated by the same sorts of policy considerations that influenced it to delegate the authority in the first place, the decisions are of the same kind.
Having decided that legislative vetoes were a form of lawmaking, the Court stressed the careful attention given by the framers of the United States Constitution to devising a system of "checks and balances" that would prevent the concentration of power in any one branch of government. The Court conceded that "the 'sharing’ with the Executive by Congress of its authority over aliens in this manner is, on its face, an appealing compromise.“ 462 U.S. at 958. It even recognized that the choice imposed on Congress if the legislative veto were unavailable --- to delegate to the executive irrevocable power to give exemptions from the immigration laws, or to delegate no power at all and consider a "private, bill" for every single person requesting an exemption --- might "seem clumsy, inefficient, and unworkable." Id. at 959. Nevertheless;
it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency. The records of the Convention and debates in the States preceding ratification underscore the common desire to define and limit the exercise of the newly created federal powers affecting the states and the people. There is unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.
Id. at 958-59. The legislative veto provision therefore was held to violate the United States Constitution.
Our task is to determine whether these general policy concerns, which the Chadha Court found to underlie the presentment clauses of the federal constitution, are also dispositive in the interpretation of the somewhat different provisions of the American Samoa Constitution. This is *91necessarily a speculative enterprise.2 In the absence of- detailed legislative history, the language itself may be the best evidence available of the concerns that motivated its enactment. There are, however, other important differences between the two documents, many of them having to do with the fact that Samoa in 1966 was not Philadelphia in 1787.
Framers of all modern constitutions have been able to benefit not only from the ideas that generated the United States Constitution but also from the results of that experiment. Not all of these results are as the framers seem to have anticipated. It would be fatuous to describe the role of the modern executive branch as limited to the day to day execution of policies made by the legislature. In response to the bulk and complexity of the functions performed by the Twentieth Century state, the executive has come to exercise broad policy making authority. Similarly, from the very beginning the classic formula by which all legislation is supposed to be general and prospective has been riddled with exceptions. Congress often passes laws to require or forbid the construction or operation of particular highways, post offices, and dams. Indeed, the legislative veto that was struck down in Chadha as "inherently legislative" (because it involved policy making) might at least as easily have been struck down as "inherently executive" (since it involved an *92attempt to enforce a policy in particular cases).3
A modern account of the separation of powers, rather than relying on inherent characteristics of actions to be performed by the executive and the legislature, should begin by acknowledging that the branch with immediate control over most of the resources makes most of the policy. In most areas in which government has taken the field, the operating definition of executive authority is whatever has not been pretty clearly forbidden by the legislature. And the legislature, even if it is constantly in session, has time only to set the process in motion and to correct what it regards as the most egregious errors of its delegates. Defenders of the legislative veto insist, not without reason, that it is an important substitute for some of the checks and balances that did not turn out to be effective in preventing the concentration of power in the executive branch. By making it easier for the legislature to supervise the quasi-legislative activities of the executive, it reduces the likelihood that the executive will enforce policies actively opposed by those who were supposed to be the principal policy makers.
Whatever the abstract merit of this argument, Chadha held that it was foreclosed for the federal *93government by the clear language of the Constitution and by the specific intentions of its framers. The American Samoa framers and fatifiers, however, not only wrote and enacted a different document but did so at a time when the legislative veto had become an established part of the governmental landscape. By 1983 there were over 200 federal statutory provisions of this type in areas including but not limited to national defense, international trade, energy regulation, historic preservation, and land management. Many of these provisions had been enacted prior to 1966. Although they had occasionally been criticized, mostly by members of the executive branch, each of the six Presidents whot had served between 1929 and 1966 had signed bills containing legislative veto provisions; the Justice Department under. Presidents Roosevelt,. Kennedy, and Johnson had specifically defended their constitutionality. See I.N.S. v. Chadha, 462 U.S. at 969 n.5 (White, J., dissenting), and sources cited therein.4 Moreover, there is no record of any President ever having failed to honor a resolution of disapproval by Congress. In the absence of constitutional language clearly prohibiting such a device, it does not seem reasonable to attribute to a group of constitution makers in 1966 the intention of forbidding its use.
Moreover, there are differences between the federal government and that of American Samoa which suggest (contrary to the Court’s analysis in Chadha of the federal system) that the legislative veto tends not toward the concentration of power within the territorial government but toward its diffusion. The Fono, which has practically no *94staff and is in session only for a few weeks out of the year, seems far weaker in relation to American Samoa’s executive branch (which in recent years has become the territory’s largest employer) than Congress is in relation to the President. By the same token, prior to Chadha critics of the federal legislative veto argued that it facilitated policy making not by the whole legislature but by committees or even by committee staffs. In contrast, the individual members of a small legislature in a small place are far more likely to take an active interest in the resolutions brought before them. In matters of pressing current interest the Fono is nothing if not deliberative.
Perhaps the most important special circumstance in American Samoa, at least in the case of this particular legislative veto provision, is the special relationship that the Fono has always held to the preservation of Samoan customs and traditions, with particular regard to land. As it happens, the federal courts seem to be in the process of carving out an exception to the holding in Chadha. which would allow Congress to veto decisions of the Secretary of the Interior with regard to the disposition of public lands. See National Wildlife Federation v. Watt, 571 F. Supp. 1145, 1156-57 (D.D.C. 1983); cf. National Wildlife Federation v. Clark, 577 F. Supp. 825 (D.D.C. 1984); Pacific Legal Foundation v. Watt, 529 F. Supp. 982 (D. Mont. 1982). The distinction is based on the idea that in such cases Congress is acting in a "proprietary" rather than a strictly "legislative" capacity. The government defendants argue that these cases are irrelevant to this one, since the federal constitution specifically provides that Congress shall have the power to dispose of public lands. U.S. Const’n art. IV § 3. On the contrary, we believe the relationship of the Fono to land in American Samoa is at least as clearly established as that of Congress to public land in the United States.
Land is generally recognized, for reasons of culture and scarcity, as American Samoa’s most precious commodity. Until the first elected Governor took office in 1978 the members of the Fono were the only native Samoan officials who.had anything to say about its disposition, and they came to regard themselves as its peculiar guardians. This status is reflected in the third section of the Bill of Rights of the American Samoa Constitution, which makes it "the policy of the Government of American Samoa to protect persons of *95Samoan ancestry against alienation of their lands and destruction of the Samoan way of life," authorizes "such legislation as may be necessary to protect the lands," and prohibits changes in laws regarding alienation of land without approval not only by the Governor but also by two-thirds of all the members of each house of two successive legislatures. Rev. Const’n of Am. Samoa, art. I § 3. The constitutional provisions for the election and qualifications of members of the Senate --- a Senator must be "a registered matai of a Samoan family who fulfills his obligations as required by Samoan custom," and is chosen "in accordance with Samoan custom" by county councils consisting of other matais --- also reflect and strengthen the traditional status of that body in ensuring "sober second thought" with regard to measures concerning land and culture.
The enactment of A.S.C.A. § 37.2030, the law providing for legislative veto of public land leases of ten years or more, was more or less simultaneous with the institution of elected governors.5 It seems to have reflected a desire *96that a lease of public land for a long period of time be regarded as an unusual event, of sufficient gravity to merit deliberation by the Fono as well as the participation of the Governor. This desire is consistent not only with the language of the territorial constitution but also with the spirit that informed it: the senior matai of a Samoan family is entitled to the same sort of power and respect within the family that the Governor enjoys within the territory, and yet he should not make important decisions about land without consulting the whole family.6
*97In light of all these circumstances, and also because the court has observed the general outcry that occurs against any measure (however harmless or salutary it might appear to the casual observer, and however attenuated its relationship to land law) that is even vaguely suspected of having a tendency to lead to the "Hawaiianisation” of land in Samoa, we are unable to conclude that a representative group of Samoans who met twenty years ago intended to make it unconstitutional to require the submission of long-term public land leases to the Fono for deliberation and possible disapproval.
It is true, of course, that the same object could have been achieved simply by denying the executive the power to lease land for over ten years. .An act of the legislature would thus be required whenever such a lease would be desired. If the language and history of the American Samoa Constitution were similar to those of the federal constitution, this would be the only permissible way to achieve the desired result. Since they are not, however, the legislature was free to give the Governor more authority without surrendering all authority. Under A.S.C.A. § 37.2030 the executive is free to enter into negotiations, which may be facilitated by the involvement of only a few people. Both the executive and the potential lessee understand that any contract they conclude is conditional --- but not upon the cumbersome and time-consuming process required for a change in the land laws. Rather, under A.S.C.A. § 37.2030 it is enough that the lease is sufficiently fair from the standpoint of the general community that both houses of the legislature do not rise up in arms against it.
A resolution of disapproval is not a "bill" and it is not a "law." The law is A.S.C.A. § 37.2030, wherein the Governor and the legislature *98agreed to the rules of the game with regard to disposal of public lands. These rules provide simply that the executive branch is not the only player. This arrangement does not violate the American Samoa Constitution7.
II. "Joint" v. "Concurrent" Resolutions
The government contends that since A.S.C.A. § 37.2030 provides that legislative disapproval of leases shall be by "concurrent resolution," and since Article II, section 9, of the American Samoa Constitution requires that “no law shall be enacted except by bill," resolutions of disapproval must be purely rhetorical exercises that are not binding on *99the executive. We have already rejected the assumption that in order to trigger a certain result, an activity of a legislature (or, for that matter, of an executive or a judge or a general) must constitute a "law." The law that binds the executive to honor resolutions of disapproval is A.S.C.A. g 37.2030, which was submitted as a "bill" and signed by the Governor.
A related problem is somewhat more troubling. Article II, section 10 of the Constitution refers to bills and joint resolutions, but section 2030 refers to a third entity called ' a concurrent resolution. "Joint resolutions" and "concurrent resolutions" are used for different purposes by different legislatures. Although we have no evidence before us on this point, we take judicial notice of the fact that the Fono ordinarily proceeds by concurrent resolution, requiring only a simple majority of the members actually voting in each house. We must also recognize the unfortunate practice of lifting whole statutes from the books of other jurisdictions with insufficient attention to whether their terminology meshes with related provisions of American Samoan law. This may be just another instance, all too familiar to students of the American Samoa Code Annotated, of the rather sloppy use of different terms in related sections. Where the terms seem to be more or less interchangeable, the courts tend to read them in relation to each other.8
The American Samoa Constitution clearly contemplates that the Fono may do some things without the approval of the governor, by means of a "joint resolution." Rev. Const’n of Am. Samoa, art. II g 10. Since the consent of a majority of the members of each house is required for the *100passage of such resolutions (id.), the effects they may have must include some important ones; one can hardly imagine constitution makers going to the trouble of requiring a majority of the total membership of both houses in order to commend a local sports team or thank the outgoing officers for a job well done. If the Fono were to proceed on a resolution of disapproval according to the provision of article II, section 10 requiring a majority of all the members in each house for joint resolutions, the fact that the statute would seem on its face to authorize the less rigorous procedures commonly used for a concurrent resolution would not render the resolution unconstitutional or non-binding. If, on the other hand, A.S.C.A. § 37.2030 was a deliberate attempt to authorize disapproval of leases by less than the constitutional majority required for joint resolutions, or if it is so construed in practice by the Fono, then it raises a difficult question: if such an important action can be taken without observing the requirements of article II, section 10, then to what legislative actions does the constitutional requirement apply?
For the purposes of the present motion we need not decide this question. If at some time in the future the Governor submits a proposed lease to the Fono, and the Fono rejects the lease under procedures requiring less than a majority of the entire membership of each house, then the Court might have to decide whether article II, section 10, has been violated. If the Fono chooses instead to require a majority vote of the entire membership of each house --- construing article II, section 10, to apply to all resolutions which have any legal effects, as opposed to resolutions that merely express an opinion --- then the question may never come before the court.
III. Laches
Finally, the government defendants urge that the plaintiffs are barred from attacking the particular leases at issue in this case because of laches --- that is, because they waited too long to bring their claim. This contention has merit. The former Governor stopped submitting leases to the Fono in 1984, perhaps even earlier. There was nothing secretive about the Governor’s action, and nothing that showed contempt for the law: he was acting on the basis of an official legal opinion of the Attorney General which had some support in a decision of the United States Supreme Court on a *101related question. If plaintiffs had brought an action for injunctive and declaratory relief in 1984, and if they had been successful, they would have prevented the conclusion of most of the leases they now attack. They would have stopped all construction and other operations on the land affected by the remaining leases. Instead they took no action until sometime after October 1985, when one of the plaintiffs introduced a resolution in the House of Representatives that threatened to file suit if the Governor entered into any future leases without submitting them to the legislature. The resolution did not pass. Its effect was to send a message to the executive branch and to lessees that it was probably all right to proceed with leases, and that in any case the leases already signed were certainly safe. Accordingly, we hold that the plaintiffs waived their right to object to any leases signed before they filed suit in June of 1986.
Conclusion
The motion to dismiss is granted insofar as it applies to plaintiffs’ demands for invalidation of the particular leases signed before their suit was filed.
The motion is denied insofar as it applies to plaintiffs’ demand for declaratory relief and other relief concerning leases signed after suit was filed.
. Another issue raised by the immigration law considered in Chadha. which was important to the circuit court and also to Justice Powell but not to the Supreme Court majority, was that the legislative veto provision might constitute a legislative usurpation of the authority of the judiciary. Whether an immigrant will face hardship if *88deported is the sort of issue that might be appealed to a court if it were not appealable to Congress. See 462 U.S. at 959-67 (Powell, J., concurring); Chadha v. I.N.S., 634 F.2d 408 (1980). Since the issues likely to arise in considering the approval or disapproval of a land lease --- having overwhelmingly to do with such things as the scarcity of land, the desirability of the proposed use, and the fairness of the price --- are not legal questions in which a court would ordinarily become involved, this issue is irrelevant to the case before us.
. It is rendered even more speculative by the fact that in 1966, when the American Samoa Constitution was adopted, the Governor was appointed by the Secretary of the Interior and had broader powers (of appointment, for instance) vis a vis the legislature than elected governors have had since 1978. It can be argued that the test of a law’s constitutionality under the separation of powers provisions of the 1966 constitution is whether those who enacted it would have wished to prohibit such a law if they had anticipated the institution of an elected Governor. A better test may be to examine the understanding that prevailed in 1978 about how the 1966 Constitution was to be adapted to deal with the new constitutional arrangement. See note 5, infra.
. See the discussion of this question by Judge Kennedy in Chadha v. I.N.S., 634 F.2d at 431-32. The government defendants in this case do argue that the legislative veto invades inherently executive functions. They cite the United States Supreme Court’s opinion in Bowsher v. Svnar, No. 85-1377 (decided July 7, 1986), holding the Gramm-Rudman-Hollings Budget Control Act unconstitutional insofar as its enforcement was committed to an officer removable by Congress rather than by the President. The facts of Bowsher are quite different from those in this case, and the Court’s analysis of the general concerns underlying the separation of powers within the federal government relies heavily on the analysis in Chadha. We do not believe, therefore, that Bowsher adds anything to the defendants’ case that is not already supplied by Chadha. For the reasons discussed in the text, final approval or disapproval of government land leases in American Samoa is not an "inherently executive" function.
. The 1966 Constitution was "ratified and approved" by President Johnson’s Secretary of the Interior after having been approved by a Constitutional Convention in American Samoa and by a majority of the voters in the 1966 territorial election. See Rev. Const’n of Am. Samoa, Preamble. If the Johnson Administration believed legislative veto provisions to be constitutional even under the highly restrictive language of the United States Constitution, it hardly seems appropriate fo impute to the same Administration the intention or understanding that the American Samoa Constitution would prohibit such provisions.
. It is important to recognize that the institution of the elected Governorship was itself perhaps the most important constitutional event in the history of American Samoa. It brought with it some changes that are clearly of a constitutional nature although they are contained not in the Constitution itself but in the statutes. For instance, in 1978 A.S.C.A. §§ 4.0112 was amended to provide for confirmation of department heads by the Fono. The constitutional provision which had been in effect when governors were appointed by the Secretary of the Interior, under which the Governor had apparently unrestricted power to appoint such officials, was not amended and remains part of the Constitution. See Rev. Const’n of Am. Samoa art. IV § 11. Despite the surface tension between the statute and the pre-existing constitutional provision, the arrangement made in 1978 has been respected. The constitutional provision referring to the governor’s appointive power contains an exception for "officials whose appointment is otherwise provided for," but it is not at all clear that this refers to provisions in ordinary statutes. See Rev. Const’n of Am. Samoa art. IV sec. 12. Rather, the statute *96seems to have been respected because it was understood by everyone that constitutional provisions enacted prior to 1978 must be construed .to acknowledge and reinforce, rather than to defeat or distort, the new constitutional arrangement made in 1978. The law being challenged in this case was adopted by the same legislature and Governor who provided for confirmation of executive appointees, as part of the same arrangement for the sharing of power under the new regime.
Cf. National Wildlife Federation v. Watt, supra, 571 F. Supp. at 1157:
[I]t is common historical knowledge that in the years before the Constitution was adopted (and for many years thereafter) Congress was in session for only brief periods and in recess for many months at a time. .. Public lands were matters of even greater public and political interest than they are now. It is not inconceivable that courts will decide from the text and context of Article IV, Section 3, that its Framers contemplated that Congress’ proprietary power to "dispose of" public lands included the power to dispose of public land to the Executive as a trustee .... subject to an express and narrow condition that a specified Committee of Congress could . . . suspend that delegation.
The language of Article IV, however, contains no suggestion of an exemption from the strict provisions of the federal presentment clauses. *97Moreover, the contextual circumstances cited by the court in Watt apply with far greater force in American Samoa than in the continental United States. Even if the reasoning in Chadha applied to the American Samoa Constitution, therefore, the legislative veto of land leases would seem to be within the "public lands exception" suggested by Watt.
. If we had decided that the provision did violate the Constitution, we would then have to decide whether to strike down the whole statute or just the condition that leases be presented to the Fono for possible disapproval. This is a question of legislative intent: If the Fono and the Governor had known in 1978 that the legislative veto provision was unavailable, would they have decided to give the Governor the absolute right to lease public lands for more than ten years, or to deny him such a right altogether? Although this question depends on evidence not before us--including the state of the law prior to 1978 and the specific evidence, if any, of legislative intent at the time the section was passed --- our initial reaction is that it is unlikely the Fono would have agreed to give the Governor absolute power. A.S.C.A. § 1.0109, providing that t¿he unconstitutionality of one provision does not affect the validity of other provisions, is not to the contrary, for the general purpose of the lease law is to limit executive authority, and the remainder of the section can be given effect simply by omitting the legislative veto clause. It would then read simply, "No lease of real property owned or controlled by the government which extends for a period of 10 years may be effective." If, therefore, we found the legislative veto were unconstitutional, we might have to conclude that the Governor had &o authority to lease land for ten years or more.
. For instance, a section of the criminal statutes entitled "Culpable mental state---Definition" provides definitions of the terms "purposely," "knowingly," and "recklessly." A.S.C.A. g 46.3202. The second degree murder statute uses the last two terms, but for no apparent reason uses "intentionally" in the place where one might expect to find "purposely." A.S.C.A. § 46.3503. Rather than declare the murder law unconstitutional or "non-binding," however, we have treated "intentionally" as the equivalent of "purposely." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485569/ | Plaintiff was a passenger in a car driven by defendant Samana and owned by defendant Moaali’itele (Malamamaisaua Car Rental), who had rented it to Samana. The car was involved in an accident which the evidence shows to have been caused by the negligence of defendant Samana. Plaintiff sued the driver, the owner, and the insurance company (AID) which had insured the vehicle.
Defendant Samana was served with process but then removed from the Territory. She was not present at trial and has not appeared in the action through an attorney or otherwise. Defendant AIU moved for summary judgment on the ground that the insurance policy it had issued on the car had been cancelled for nonpayment of premiums. The hearing on the motion for summary judgment was held on the morning of trial. We granted summary judgment for AIU and then proceeded to trial on the claims against the other defendants. ■
I. The Cancellation of the Policy
We will begin by stating for the record our findings of fact and conclusion of law with regard to the cancellation of the policy.
Defendant Moaali’itele, the insured under the policy, urged that it had never been cancelled. His position was based on two grounds: (Í) He had no personal recollection of the cancellation, and it was not reflected in the records of the government agencies that are supposed to keep such records.
*104(2) Even if AIU did attempt to cancel the policy, it failed to follow the procedure set out in A.S.C.A. 8 22.2013, which requires that the insurer notify the Director of Administrative Services at least ten days before the effective date of the cancellation.
We found, however, that AIU’s manager had in fact given proper notice of the cancellation. He produced copies of letters to Moaali’itele and to the Insurance Commissioner, and he testified that they had been sent after a number of demands in writing and in person that the premiums be paid. (He also produced a copy of the last such demand, threatening cancellation in two weeks and dated two weeks prior to cancellation.) AIU also produced evidence that the Insurance Commissioner at the time --- to whom the function of receiving notices of cancellation had been expressly delegated in writing by the Director of Administration--regularly lost official documents, many of which he seems to have kept in his car.
Unfortunately, AIU’s manager testified that the notices had been delivered by his secretary. He testified that he invariably used this method, that he knew his secretary to be an extremely reliable person, and that in the several years of her employment it had never come to his attention that a letter she was supposed to -have delivered had not in fact been delivered. Although we recognize that this is perhaps the most common method of delivery of important documents in American Samoa, it is far better in cases such as this one to use registered mail or at least to get written receipts. On balance, however, we found it more likely that the records were lost by the government (also a sort of custom here) than that the notices were never delivered.
We further concluded that AIU had complied with the statutory notice requirement when it sent a notice of the cancellation to the Insurance Commissioner, to whom the Director of Administration had directed that all such notices be sent.
II. The Liability of the Car Rental Agency
Defendant Moaali’itele (Malamamaisaua Car Rental) argues that he cannot be held liable for the negligence of the driver just because he owned the car and rented it to her. His counsel cites authority to the effect that under the traditional *105common law rule a rental agency would be considered a "bailor" that assumes no liability for the negligence of its "bailee." Orose v. Hodge Drive-It-Yourself Co., 9 N.E.2d 671 (Ohio 1937); cf. Smith v. Hertz Rent-a-Car, 377 F.2d 885, 887 (1967) (taking note, with apparent approval, of a Virgin Islands municipal court decision to this effect).
The common law concept of bailment seems a blunt and awkward instrument for the resolution of controversies such as this one. "Bailors" include the person who leaves his private automobile in a garage for repairs, the friend who lends his car to a friend, and Hertz Rent-a-Car. A rule which treats these three kinds of defendants alike, denying liability unless the defendant knew or should have known that his "bailee" was unfit to drive, will have the ironic effect of ensnaring the friend quite often, the garage client occasionally, and Hertz almost never. This is because Hertz is the only one of the three that regularly puts automobiles into the hands of people about whom it knows almost nothing. Moreover, such a rule gives car rental companies a strong incentive to continue knowing as little as possible about the people to whom they rent. It is an odd rule.
Accordingly, a number of states have enacted statutes imposing liability on the owner of a car for damages caused by the negligence of anyone who uses it with his consent. The courts of one state, Florida, have achieved the same result by application' of the common law concept of "dangerous instrumentalifrt.es." See Susco Car Rental System v. Leonard, 112 So. 2d 832, 836 (1959):
The principles of the common law °do not permit the owner of an instrumentality that is . . ,. peculiarly dangerous in its operation, to authorize another to use such instrumentality on the public highways without imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle . . . properly operated when it is by his authority on the public highway.
Cf. MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916). (per Cardozo, J.) ("This automobile was designed to go fifty miles an hour. . . . Precedents drawn from the days of travel by stagecoach do not fit the conditions of travel today."). Rather than treat the cár rental company *106as someone who has simply left an item in the care of another, the Florida Supreme Court in Susco analogized the company to an employer who has entrusted his automobile to an employee. So long as the employee is using the car for purposes that generally further the employer’s business, the employer is vicariously liable for the employee’s negligence. This is true even if the employer had no reason to know the employee would be negligent, and even if the employee was violating the employer’s specific instructions concerning the care to be taken.
The reasoning of Susco seems persuasive, at least as applied to companies that are in the business of renting automobiles. A car that has been rented is on a business errand for its owner, just as surely as if it were being used by an employee. That it happens to serve the business purposes of a rental company to .entrust its automobiles to anyone with a driver’s license and.a Visa card --- indeed, that the whole point of the business is to put as many vehicles as possible into the care of strangers, and to maximize the number of hours and miles that each vehicle is on the highway --- is an unpersuasive, argument f.or imposing a less stringent standard of liability than is imposed on the employer whose employees’ use of his automobiles is occasional and incidental.1
*107If the Fono had enacted no law applicable to this case, choosing instead to leave to the courts the development and application of common law principles, we would be strongly inclined to adopt the Florida rule. We need not reach this question, however, since we find that the defendant violated a statutory duty to the plaintiff when he allowed the vehicle to be operated on the highway without insurance.
A.S.C.A. § 22.2003 requires the owner of a vehicle to purchase and maintain liability insurance not only for losses occasioned by his own negligence, but also for those inflicted by "any other person who uses the vehicle or vehicles with [his] express or implied permission." Section 22.2018 gives an injured person the right to bring a direct action against the insurer for any damage *108covered by the policy, whether or not the owner of the vehicle would be liable; and sections 22.1001 and 22.2002 forbid the operation on the public highway of any automobile that is not covered by such a policy.
Even if the defendant rental car company was not directly liable for the damage inflicted by its negligent lessee, these statutes did impose a responsibility to see to it that no such damage would be inflicted that was not covered by insurance. Plaintiff was subjected to such a loss because the defendant company breached its statutory duty not to put an uninsured car on the road.
We recognize that courts should be cautious about defining the breach of a statutory duty as actionable negligence --- even where, as here, the statute was enacted to protect people in exactly the plaintiff’s situation against the risk of the very harm that occurred. That a legislature has imposed a criminal sanction on certain conduct does not mean that it also intended to give persons injured by such conduct the right to recover in tort.
In this case, however, the very purpose of the law was to ensure recovery in tort for victims injured by impecunious drivers. If the question had. been put to the enacting legislators, it is hard to imagine that they would have been surprised or disconcerted at the possibility that an owner who violates the law might be required „by a court to compensate persons who suffered uninsured losses because of his violation. That the legislature enacted a criminal penalty for violation of the insurance law does not mean that it intended to exclude all other remedies. The legislature has also enacted criminal penalties for running a red light and making an illegal left turn, and has never specifically stated that these acts shall constitute negligence in civil actions. Where a statute restates, reinforces, or gives rise to a community standard about how people ought to act toward each other, it should not be regarded as in any way inferior to standards that the courts discovered on their own with no assistance from the legislature. When it is reasonably foreseeable that the failure to observe a community standard will cause a particular ° kind of harm to a particular kind of victim, „ such a victim can generally recover when he suffers such harm., See generally Prosser & Keeton, supra. § 36.
*109We hold that the defendant rental company, in allowing its automobile to be operated on the highway without the insurance required by law, violated a duty to the plaintiff. Requiring the company itself to compensate the plaintiff (in an amount not greater than would have been covered by insurance if the defendant had not breached its duty)iS a remedy that seems fully consistent with the nature of the duty and with the purpose of the statutes that impose it.
Damages
The plaintiff testified that she received cuts on ’ her face, neck, back, and arm, and that she spent “one day" in the hospital. She testified that she was unable to move her neck and arm for several weeks after the accident, that she still has some pain from the accident, and that small pieces of glass occasionally emerge from her skin where the cuts were. She did not testify that her cuts needed stitches or other medical attention. There was no expert testimony on the nature and extent of her injuries, and no medical records were introduced. Taking into* account the awards customarily given in American Samoa for similar injuries, we assess her damages at $1000.
Judgment will be entered against defendants Samana and Moaali’itele, jointly and severally, in the total amount of $1000.
. The justification for master-servant liability has been put in terms of the control that the employer exercises over his employee. Prosser and Keeton on Torts § 70 at 501-02 (5th ed. 1984). Liability is regularly found, however, under circumstances where the imputation of such control is obviously fictitious. See id. at 503 ("If the other factors involved indicate that the forbidden conduct is merely the servant’s own way of accomplishing an authorized purpose, the master cannot escape responsibility no matter how specific, detailed and emphatic his orders may have been to the contrary.")
There are, however, more persuasive arguments that may account for the survival of the master’s liability if not. for its origin. First, in the abs.ence of vicarious liability it will be profitable for employers to choose and instruct their employees in ways which (while falling just short of actionable *107negligence against the employer himself) maximize the possibility that money will be made or saved for the employer regardless of the risk of harm to people outside the enterprise. Assessing the damage done in the course of the enterprise against the enterprise itself, on the other hand, tends to ensure that the total costs of the enterprise (to everyone, not just to the employer) do not exceed the benefits generated by it. In any case, considerations of cost and benefit aside, it seems unfair to let the damage resulting from a negligently executed business venture fall on a randomly selected member of the public rather than on the person who would have profited had the venture succeeded.
Arguments very similar to these have been advanced for the imposition of strict liability without fault on all business enterprises. We do not mean to make such a suggestion. The total severance of liability from fault, aside from its tendency in practice to burden some enterprises with liability • not fairly attributable to their conduct, may actually have the long-term effect of encouraging some kinds of carelessness and other wrongdoing. These risks do not seem so strong when liability is imposed for indisputably culpable conduct on one who is closely connected with it and may have benefited from it. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485570/ | 'On Motion in Limine:
This matter came on for hearing upon defendant’s motion to disqualify for cause all those prospective jurors who are unable to read, speak, and understand the English language. The motion in essence seeks to challenge a significant sector of the community otherwise eligible to serve as jurors under A.S.C.A. 8 46.1504. This enactment’s effect also qualifies as jurors those persons who are able to read, speak and understand the Samoan language although neither literate nor conversant in English. It is this sector of the community which defendant seeks to disqualify .
*111Defendant argues that his constitutional right to the effective representation of counsel, as secured by the territorial and federal constitutions, would be denied him if he were tried before a non-English speaking jury. He contends that, "A defendant in a criminal case has a right to have his case heard by jurors who understand his lawyer, the witnesses, and the judge without the necessity of an interpreter".
Central to plaintiff’s claim against the status quo is the fact that the judge’s instructions on legal matters will have to be interpreted to a non-English speaking jury. The concern raised is that certain legal concepts--the varying degrees of homicide, reasonable doubt, and the presumption of innocence--- do riot lend themselves to adequate translation into Samoan terminology.
The first observation is that legal notions of the type referenced by defendant are of themselves difficult to formulate in layman terms even with the English language. Secondly, the Court is unable to accept as a self evident truth that English labels are more adequate than Samoan labels to convey such legal concepts in layman terms. Without some showing, the Court is not able to declare unconstitutional an enactment by the Fono, which obviously came about with cognizance of the bilingual situation in the Territory, upon the mere recitation of disagreement with the system.
Even if defendant’s assumptions may be conceded, his argument is not tenable. It places emphasis, in the name of due process, upon reception by the jury of purely legal matters--instructions by the judge --- but the effect of that is to necessarily undermine the crucial role of the jury to find the facts. Experience tells us that in the great majority of the cases, the jury receives the testimony from Samoan speaking witnesses. Therefore, with an English speaking jury, interpretation of such testimony from Samoan into English is unavoidable. The corollary of defendant’s argument is the same perceived evil that gives rise to his complaint, that is, interpretation.
Further, the fact finder’s role in sorting out the truth must be more meaningful when a witness speaking and thinking in Samoan is addressing a juror speaking and thinking in the same language. This is significantly the case when it comes to *112those factors which lend themselves only to the intuitive process, such as demeanor, deportment and intonation.
Also, effective representation of counsel, would involve effective cross-examination of a witness. In the case of the Samoan speaking witness, the desired result of effective cross-examination must,’ on defendant’s hypothesis, deteriorate after ' the interpretation of the witnesses’ response to a non-Samoan speaking jury.
The question» naturally follows where the system should place prominence: receipt of facts by the jury, or receipt of the law by the jury? The conclusion is that myopic pre-occupation with one aspect of the system serves no good purpose if to displace or compromise other aspects of equal importance. »
Finally, and perhaps most fundamental, it is randomness of selection from all cross-sections of the community which is at the root of jury systems. This is an integral feature with the system historically accepted as best enhancing "fairness".
Defendant’s argument, however, necessarily canvasses a departure from randomness in favor of a tailor made and selective jury makeup, to fit a particular defendant. While the defendant has the undeniable right to trial by an impartial jury according to our notions of justice, he has never had the right to a trial by any particular jury. Our system is an adversary one, and “fairness" involves all parties, .with neither having any vested right to a particular juror.
The motion is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485572/ | If the judicial fact finding process were a purely quantitative exercise, the effect of each party’s evidence in this case would be simply to cancel the other party’s evidence out. As it happens, our qualitative analysis of the evidence leads us to essentially the same conclusion.
Plaintiff testified that he was operating his vehicle in a non-negligent manner when defendant, who was approaching in his vehicle from the opposite direction, crossed the center line of the highway onto plaintiff’s lane and side-swiped plaintiff’s vehicle, causing sundry damage to person and property. Plaintiff had a close relative who was riding with him at the time who corroborated plaintiff’s testimony to the detail.
Defendant’s version was the laterally inverted image of plaintiff’s case. Defendant had plaintiff crossing the center line. Like the plaintiff he produced a close relative who had been a passenger in his vehicle and who corroborated his story.
The only agreement between the parties was *132that the collision occurred: on a straight stretch of the main east-west highway at or around Nu’uli; in the early hours of the morning; in conditions described by defendant to be "perfect".
Hereafter the testimony parted in similarities. Plaintiff testified that after the collision defendant continued on without stopping, and so he gave chase. He finally caught up with defendant in Utulei, where defendant had turned into the intersection going towards the Administration Buildings. After taking the license number of the other vehicle, plaintiff proceeded to the Police Station and filed a complaint.
On the other side, defendant testified that when he saw plaintiff’s vehicle cross the center line he attempted to swerve to the curb. He was, however, limited in his actions owing to a temporary embankment of excavation dirt built up on the shoulder of his side of the road. The embankment was said to be due to Public Works’ having been laying pipelines. He testified that after the collision he was the one who stopped his vehicle and plaintiff was the one who drove on. Defendant then walked around his vehicle and found that his side mirror on the left was damaged. He assessed his damage as insufficient to prompt him to attempt to chase after the other vehicle at that hour in the morning. He continued eastward but made another stop off the road to take another look at his vehicle. When asked, he testified that at this time there was no one else in sight. He resolved to make no more of the incident and continued onward to meet a friend.
Defendant testified further that on his way home he was surprised when stopped by an officer who questioned him about the earlier incident. After giving his version of the collision at the Police Station, he heard no more of the matter until plaintiff filed this suit.
The initial impression gleaned from this testimony, given the hour of darkness at which the collision occurred, could well be that one of the parties was honestly mistaken about the location of his vehicle in relation to the dividing line at that moment. The extraordinary extent to which the two stories diverge, however, makes it necessary for the Court to consider carefully the credibility of each.
In the Court’s view, plaintiff’s testimony was *133in many instances both evasive and self serving.
When plaintiff was asked the location of defendant’s vehicle at the time the chase was commenced, plaintiff readily ventured a definite location out of his sight and quite some distance away, apparently in the hope of assigning high speed to the defendant. Plaintiff’s evidence would also have him undertaking the chase specifically at the posted speed limit. The testimony vascillated, however, between his initial estimate of 35 mph and a revised estimate of 25 mph, once the plaintiff was made aware that the actual posted speed limit was the latter.
When questioned about the presence of construction or excavation at the scene, plaintiff definitely denied such. It became clear to the court, however, that his responses were purposely limited to a denial that physical activity was taking place at the time the accident occurred, which was around one o’clock in the morning. He was not about to address, without some prodding, whether there was an embankment, although the Court finds it difficult to believe that he did not know that this was the question he had been asked.
Further, his testimony regarding the extent of property damage fell woefully short of being persuasive. He testified that he had received two repair damage estimates from separate mechanics.. One was for $400 and the other for $500. Neither estimate was produced in court, but plaintiff stated that he opted for the $400 mechanic and allowed that repairs cost him $400.
The testimony later developed that the $400 mechanic was a friend of plaintiff’s son who worked at a certain garage. That labor with repairs was without charge.
When questioned on the elements of the $400 estimate, however, given that no labor charge was involved, plaintiff responded that the $400 was expended on material that the mechanic had told him to purchase. Except for the paint, plaintiff was unable to name what the material comprised, attempting to feign ignorance about technical labels assigned to auto parts.
The authorities are replete with statements that the onus is on plaintiff to establish by evidence of preponderating weight that it was more probable than not that the injury complained of was *134caused by defendant. So as not to appear to give ritualistic veneration. to. .labels such as "preponderance of the evidence" and "balance of probabilities", we quote a leading treatise.:
The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the Gourt to direct"a verdict for the defendant.
Prosser & Keeton on Torts § 41 at 239 (5th 1984) (citations omitted).
In our view, the evidence presented (by plaintiff on the one hand ,and by defendant on the other) in proof of causal connection is equally balanced, in that the facts are as consistent with one theory of causation as with the other. In other words, the facts in this matter lead to the conclusion that the cause of the injury "may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable". Gedra v. Dallmer Co., 91 N.E.2d 256, 260 (Ohio 1950). In order to sustain the plaintiff’s claim on the evidence presented, the needed finding of proximate cause would rest solely on possibilities and conjecture. If we believed that plaintiff’s credibility was superior to .that of the defendant we might still . conclude that he had proven his case. For the reasons stated, we do 'not so conclude. The only reasonable inference that can be drawn in the circumstances is that the proximate cause of plaintiff’s- damage is unknown and unproved.
In these circumstances the plaintiff, as a matter of law, must fail. Judgment will enter accordingly in-favor of the defendants. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485573/ | Opinion and Order on Motion to Dismiss:
Plaintiff alleges that his employment was terminated because of his participation in unsuccessful efforts to organize a union. Defendant has moved to dismiss on the ground that the complaint falls within the exclusive jurisdiction of the -National Labor Relations Board (NLRB).
The NLRB has asserted its jurisdiction over employers in American Samoa who otherwise meet its jurisdictional standards. Van Camp Sea Food Co., 212 NLRB 76 (1974). If a complaint charges an *136unfair labor practice over which the NLRB has jurisdiction and if the NLRB has not declined to exercise its jurisdiction, the dispute resolution process set forth in the National Labor Relations Act and its amendments pre-empts the jurisdiction of state and federal courts. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959); see 29 U.S.C. § 164(c). The NLRB clearly has jurisdiction over complaints that an employee has been discharged for attempting to organize a union. 29 U.S.C. §§ 157, 158(a)(1). The decision by the NLRB to exercise its jurisdiction over tuna canneries and other employers in American Samoa who have the requisite impact on interstate or foreign commerce would seem to preclude the High Court from exercising jurisdiction.
Plaintiff urges, however, that the distance between American Samoa and the NLRB regional office in San Francisco, and the consequent expense and inconvenience for employees who wish to bring complaints before the NLRB, bring this action within an exception to the rule of NLRB preemption. In Garmon the Supreme Court noted that in certain cases "the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." 359 U.S. at 244. These cases, however, involved efforts by the states to regulate conduct (usually violence) which was regarded as objectionable on some other ground than that it constituted an unfair labor practice. See 359 U.S. at 244 n.2 and authorities cited therein; id. at 247. In this case, on the other hand, plaintiff asks the court to enforce the precise policy entrusted to the NLRB.
The Supreme Court has since made it clear that the "local feeling and responsibility" exception in Garmon did not give local courts the authority to define and punish unfair labor practices. Indeed, courts cannot decide cases involving conduct even arguably prohibited by the federal labor relations laws unless the labor relations aspect of the case is merely incidental. See Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 304-05:
If the charges in [the plaintiff’s] complaint were filed with the Board, the focus of any unfair labor practice proceeding would be on whether the statements or conduct on the part of the *137Union officials discriminated or threatened discrimination against him . . . Conversely, the state-court tort action [for intentional infliction of emotional distress] can be adjudicated without resolution of the ’merits’ of the underlying labor dispute. . . .
At the same time, we reiterate that concurrent state-court jurisdiction cannot be permitted when there is a realistic threat of interference with the federal regulatory scheme. . . . Simply stated, it is essential that the state tort be either unrelated to employment discrimination or' a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.
Although the Court’s statement in Farmer was not technically necessary to its holding, it is a statement too strong and clear for us to ignore. We recognize the logistical and financial difficulties that the assertion of jurisdiction over American Samoa must occasion for this plaintiff and others. If the NLRB were sitting in Pago Pago rather than in San Francisco, however, nobody would even think about bringing a complaint like this one in the High Court. Employment discrimination on account, of union activity is perhaps the single most obvious example of conduct committed to the regulatory authority of the NLRB. We are therefore precluded from sitting in judgment of such conduct.
The action is dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485574/ | Although the natural parents have consented to this petition for the termination of their parental rights, we cannot grant the petition. The petitioners are 64 and 58 years old, and the natural parents are much younger. Although the testimony and the child service protection reports varied somewhat on how long the child had been living with the petitioners, it appears that for most of his ten years he has lived with his natural parents. (For several years the natural parents were residing with the petitioners.) The child is, of course, free to live with the petitioners, to regard them as his adoptive parents for all purposes relevant to Samoan custom, and to give them the love and respect that are owing to *139parents. A voluntary "fa’a Samoa adoption" does not require the approval of the Court. The only thing that would be gained by a legal adoption would be higher Social Security benefits for the petitioners, and in return the child would have to give up all future rights of support from his adoptive parents. We do not believe this to be in the best interest of the child.
The action is dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485576/ | Opinion and Order on Mótions to Reconsider and for Attorney Fees in No. 44-86 and Motion for Default Judgment in No. 45-86:
These actions were brought in an effort to persuade the Court to grant relief from a final judgment ■ rendered in 1983 and upheld by the Appellate Division early in 1986.
Counsel for plaintiff, Joseph Willis, makes no new arguments but simply reiterates the arguments he advanced unsuccessfully in Willis v. Willis, 2 A.S.R.2d 102 (1986), and in the consolidated land, civil, and probate cases leading up to that appeal. He wants the Court to reverse the earlier judgment of the trial court and of the appellate court that a tract of land called Lepuapua belongs not to him but to the Willis family.
Plaintiff’s reliance on Rule 60 of the Trial Court Rules of Civil Procedure is inapposite. There is no new evidence and there was no fraud, surprise, or similar circumstance in the prior proceedings. Nor does A.S.C.A. É 3.0242(b), which permits rules of "practice or procedure" to be subordinated to natural justice and convenience, give us the authority to overturn the result of a prior decision in the absence of any of the factors enumerated in Rule 60. The doctrine of res judicata is a principle of substantive law, not of practice or procedure. The court will not interfere, therefore, with the earlier court’s judgment that Lepuapua was acquired by right of original occupancy by the Willises as a family, and not by deed to plaintiff or to his mother, Falesau Willis. Nor can we see the ghost of a chance that any future trial or appellate court will do so.
*146There is, however, one matter raised by the complaint in LT 45-86 which was not before the Court in any of the earlier cases. Plaintiff alleges, and has proven by uncontroverted documents and affidavits, that defendants Asuega and Poyer have secured building and zoning permits by signing legal documents to the effect that Lepuapua is their individual property. This was contrary to the holding in Willis v. Willis, which found that Lepuapua was the communal land of the Willis family. The trial and appellate courts recognized that the Willises were not a traditional Samoan family with a matai, but attempted to finesse this problem by observing that the Willises are Samoans who have been living as a Samoan family and by ordering them to dfecide according to Samoan custom how the land should be used.
There are several unanswered questions in this part of the Court’s holding, and all of them are presented by the building and zoning permits in this case. All of the statutes having to do with communal land, including those that tell the Court how to decide whether Samoan custom has been followed, assume that the family has a senior matai. In this case, for instance, plaintiff would seem at first glance to be entitled to judgment by default in LT No. 45-86, since neither Dora Asuega nor Purcilla Poyer is the senior matai of the Willis family and each has signed documents required by law to be signed by the senior matai. The problem is that the. Willises not only do' not have a matai but are prevented from selecting one by the law that prohibits the creation of new matai titles. And yet the court in Willis v. Willis clearly did not intend that nothing could ever be built on the property.
We could resolve -¿hese difficulties by construing Willis v. Willis as having declared the six Willis brothers and sisters to have become owners of Lepuapua as tenants in common. Under this construction, the land would be "communal" in the sense that each brother and sister obtained an undivided interest in the land as a result of their joint occupation and cultivation, but it would not be Samoan communal property for the purposes of any of the statutes requiring action to be taken by a matai. This seems to comport with how the Willises have been treating the land: the permits signed by defendants Asuega and Poyer, for instance, are legal if the land is held by a tenancy in common but not if it is Samoan communal property. Another respect in which a tenancy in common differs from *147traditional Samoan land tenure is that any co-owner is entitled to a partition of the property.
The Court has a duty, imposed by the failure of defendants in No. 45-86 to file an answer or otherwise to controvert the allegations that they have treated the land as their own individual property, to dispose somehow of the loose ends left by Willis v. Willis. On the other hand, we are reluctant to announce any disposition without first giving all parties a chance to address it. Accordingly, we will reserve judgment on the motions before us in order to request any arguments or suggestions the parties might have on the following questions:
1) Should Willis v. Willis be construed as having declared the six Willis brothers and sisters to hold Lepuapua as tenants in common?
2) If not, what other construction of the decision will allow the parties to build on the land, bring actions against encroachment by non-family members, and otherwise administer it without violating the statutory restrictions on communal land?
No party is required to respond to these questions. If any defendant wishes to do so, he should file his response by June 12. If plaintiff Joseph Willis wishes to respond, he should do so by June 26. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485577/ | Five parties claim the right to hold the title "Fano" of Faga’alu. The findings of.the Court with regard to' the four statutory criteria . are as follows:
I. Best Hereditary Right
*149The issue of who has the best hereditary right to a title has always been fraught with uncertainties, and the decision of the Court in In re Matai Title "Sotoa", 2 A.S.R.2d 15 (1984) injected even more uncertainty into the inquiry. Prior to that decision, the Court for many years had allowed each candidate to claim his closest relationship to any holder of the title: the child of a titleholder would have a 50% or 1/2 relationship, the grandchild of a titleholder 25% or 1/4, and so on. In the Sotoa case the parties had stipulated that the blood relationship of each candidate should be figured not to the nearest titleholder but to the original titleholder. Rather than simply accept the parties’ stipulation for the purposes of that case, the Court announced a rule purporting to apply to all cases. Since then, however, the Appellate Division has suggested that the Sotoa rule has caused unexpected problems --- particularly the difficulty of reaching agreement on who the original titleholder was--- and that it might be better for the Court to revert to the earlier rule, to adopt some other rule, or to allow for the possibility that different families may have different traditions with regard to who has the best hereditary right. In re Matai Title "Le’iato", AP No. 7-86 (Dec. 22, 1986); In re Matai Title "La’apui", AP No. 6-86 (January 22, 1987). Accordingly, we will rank the candidates both according to the Sotoa rule --- or, more precisely, a variation of the Sotoa rule that has been used by the parties in this case and others in which there was disagreement about who the first titleholder was --- and - according to the prior rule.
Four of the parties trace their blood relationship to Fano Fealofani. Although all parties but Puleleite agree that there were other titleholders before Faleofani, he was the common ancestor to whom these four candidates agreed their "original" blood relationship should be calculated, and whose four children gave their names to the four most widely acknowledged clans of the family. In relation to Fano Faleofani, candidates Aviata and Fa’agaihave a 1/16 relationship and candidates Puleleite a 1/32 relationship.
The genealogy submitted by candidate Fa’atiliga differed markedly from those of the other four. He did not acknowledge that Fealofani ever held the title, suggesting instead that there are only two clans tracing their ancestry to the two children of Fano Leo’o. Some other candidates *150disputed Fa’atiliga’s membership in the family, suggesting instead that the Fa’atiliga family is a separate family which has become closely connected over the years to Fano. It is undisputed that Fa’atiliga is an orator who has an important role in Fano family events and who sometimes serves as spokesman for the Fano family, but family traditions vary with respect to whether such orators must be blood members of the family. Even the tradition within the Fa’atiliga family or clan itself seems uncertain: Fa’atiliga testified that legal documents required to be signed by the sa’o of his family are sometimes signed by Fano and sometimes by Fa’atiliga. Assuming, however, that Fa’atiliga is a member of the Fano family and that his blood relationship should be traced to Leo’o, it is 1/32.
Accordingly, under the Sotoa formula (or the nearest equivalent to it that can be applied in this case) candidates Aviata and Fa’agai prevail.
Under the pre-Sotoa formula Fa’agai clearly prevails. His father was Fano Sailiata, which gives him a 50% relationship to the title. Under this formula candidate Ova (Eddie Lisi) has a 1/8 relationship (to Fano Tuiaimo’o), Aviata and Puleleite each have a 1/16 relationship (to Fano Faleofani and Fano Misipaga respectively). Fa’atiliga has a 1/8 relationship to Fano Ese’ese assuming that there was . a Fano Ese’ese, a proposition to which only one other candidate agrees.
II. Support of the Clans
Support of the clans is also difficult to calculate. Based on the number of signatures on each petition, the testimony at trial about the meetings that took place within the family, and the candidates’ reactions to questions by opposing counsel about their own feelings regarding the other candidates, we find that Fa’agai ranks first, commanding the overwhelming support of the Fa’agai clan and widespread support within other clans; Aviata is second with the clear support of the Tautai clan and substantial support in other clans; Fa’atiliga is third with the support of his own clan (assuming that it is in fact a clan of the Fano family) and some support in other families. Puleleite and Eddie Ova Lisi did not show substantial support.
*151III. Forcef uln’ess. Character, and Knowledge of Samoan Custom
On the third criterion the leading candidates are also Fa’atiliga, Aviata, and Fa’agai. Fa’atiliga is a brave and virtuous man with a long history of dedication and service to the village, the Territory, and the United States, but his knowledge of Samoan custom was not as strong as that of some other candidates. Aviata has also demonstrated his strength and leadership ability through his distinguished service to the government as well as to the family, and he ranks second to Fa’agai in this area. We rank Fa’agai first: his long service as a matai within the family and as its spokesman on many important occasions has made him intimately familiar with Samoan custom, his unblemished record during thirty years of loyal service to -the government speaks for his character, and sixty-five years of devoted service to the family are the strongest possible evidence of his readiness to lead the family.
IV. Value to the Family and the Community
While we believe each of the candidates has shown his value to the community and the family, Aviata and Fa’agai are the clear leaders on this issue. Aviata is a leading attorney and a former Attorney General of American Samoa, and has been active in family and community affairs. The value of Fa’agai to the family and the community is somewhat different than that of Aviata, but it is no less important. Although there is no question that the Fano family would benefit from the leadership of a man of Aviata’s stature, we feel that it will benefit even more from the guidance of Fa’agai, who has demonstrated his productivity and his wisdom without ever leaving the bosom of the family. The difference in the ages of the two men is also important: Aviata is forty-one, while Fa’agai has acquired the knowledge and experience of sixty-five years but remains as alert and vigorous as a forty-one year old.
Conclusion
Fa’agai prevails on the second, third, and fourth issues, and either prevails or is tied with Aviata on the first issue. Accordingly, we hold that Fa’agai has the right to hold the title Fano. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485579/ | Defendant was convicted of Sodomy and Sexual Abuse in the- First Degree. The victim was his *157sixteen-year-old daughter. He asks for reconsideration of the verdict and for a new trial on the grounds that exclusion of the public from the courtroom during the testimony of the victim violated his right to public trial, and also on the ground that the government had not proved "sexual intent" in connection with the acts he performed on the girl.
I. Public Trial
The public was excluded from the courtroom only during the testimony of the complaining witness, who had requested such exclusion. The prosecutor indicated to the Court that the girl had asked that she not be required to repeat the details of the sexual acts in front of family members. The court held a public hearing, in accordance with the holding in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), so that members of the press and public could present any arguments they might have in favor of their being allowed to remain in the courtroom during the victim’s testimony.
The only people who requested to stay were family members. Most of these people were members of the immediate family of the defendant and the victim, and they testified that they wished to be in the courtroom in order to influence their sister’s testimony. The testimony of her half-brother Joe Masaniai was that he wanted to "look her in the eye" so that she would not tell the vicious lies she had been telling about their father. Taking into account the demeanor of the witnesses and the history of alleged harassment of the girl by family members, the court determined that what they really wanted was to deter her from telling her story without referénce to whether it was true or not. (Subsequent events bore this out: at trial it became clear that Mr. Masaniai had coached his family in an elaborate network of lies about the victim of his crimes, in an effort to convince the court that none of the events she complained of had ever happened and that she was a pathological liar. At an earlier time, however, his strategy had been somewhat different: he had bragged to disinterested persons, two of whom testified at trial, that his "checking" of his daughter’s private parts was the will of God and that the practice was the cause of his other daughters’ success in life.)
*158The other group of people who wished to remain in the courtroom consisted of two persons more distantly related to the defendant and the victim, who testified that they were curious about what the true facts were. Although this is the usual interest that members of the public have in a courtroom proceeding, it is outweighed in some cases both by the interest of a victim (especially a minor victim) in not becoming an object of salacious curiosity. See Globe Newspaper Co., supra, 457 U.S. at 607-08 (footnotes omitted):
We agree . . . that the first interest --- safeguarding the physical and psychological well-being of a minor--is a compelling one .... A trial court can determine on a case by case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.
In this case the court did its best to comply with the requirements of the Globe case --- which, incidentally, involved the public’s first amendment rights rather than the sixth amendment right of a defendant. The court was (and is) convinced that exclusion of the public during the victim’s testimony was necessary. The curiosity of distant relatives and other members of the public was outweighed by the need to protect her psychological well-being. The interest of the closer relatives was stronger, but so were the reasons for excluding them. They were a large, forceful, and demonstrative group of people who were determined to intimidate the victim. Both her interest in not being subject to such pressure and the interest of the court and the public in enhancing the possibility that the victim would testify truthfully and thoroughly would have justified the exclusion, even if the intimate nature of her testimony had not. See, e.g., United States v. Eisner, 533 F.2d 987 (6th Cir. 1976); United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969).
II. Sexual Intent
The "sexual abuse" statute, A.S.C.A. § 46.3612, requires that there be a touching of the private parts without consent and "for the purpose *159of arousing or gratifying sexual desire of any person." A.S.C.A. § 46.3601. ■ Although Mr. Masaniai told his daughter that his intent was to see whether she was a virgin or not, he took several minutes to do this, and whispered to her repeatedly that she was a good girl and that he loved her. We inferred sexual intent from these circumstances and from the nature of the act.
The sodomy statute, A.S.C.A. § 46.3611, does not require any proof of sexual intent; the penetration of the genitals with the hand suffices. We decline the invitation of defense counsel to read a requirement of sexual intent into the statute.
This is not to say, as defense counsel suggests, that a doctor could be convicted for performing a gynecological examination; that was clearly not the intent of the legislature. Despite the similarity of Mr. Masaniai’s act to certain ceremonies that were said to be part of the preChristian Samoan tradition, we emphatically do not believe the legislature intended any exemption for such acts. Indeed, there is no reason to believe that sexual pleasure was not derived from them. In any case, such acts were specifically prohibited by statute prior to the enactment of the American Samoa Code Annotated, and the statutes we have cited are broad enough to prohibit them along with what Mr. Masaniai did.
The motion is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485580/ | Defendant American Samoan Government, hereafter "ASG", moves for summary judgment in the above-entitled matter, asserting absolute immunity as a matter of law from suit premised on a cause of action provided under the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985.1
Section 1983 is remedial in nature and authorizes a civil action for deprivation of federal rights against a person acting under the color of state or territorial law, custom, or usage. The Supreme Court has variously explained the main purpose of this enactment as: enforcing the provisions of the Fourteenth Amendment; and interposing the federal courts between the States and the people, as guardians of the people’s federal rights. Monroe v. Pape, 365 U.S 167 *162(1961); Mitchum v. Foster, 407 U.S 225 (1972); District of Columbia v. Carter, 409 U.S 418 (1973). As a measure then to secure compliance with the fourteenth amendment, which on its face speaks only to "States", the inclusion of "Territories" within the enactment was explained in District of Columbia v. Carter, supra. The Court here noted: that section 1983 was derived from an Act of Congress of April 20, 1871, (17 Stat 13), referred to as the Klu Klux Klan Act; as originally enacted, section 1 of the 1871 Act applied only to action under color of the law of any "State"; the phrase "or Territory" was added without explanation in the 1874 codification and revision of the United States Statutes at large (Rev. Stat. § 1979); that since the territories are not "States" within the meaning of the fourteenth amendment, this addition was presumably an exercise of Congress’ power to regulate the Territories under art IV, 83, cl 2 of the Constitution. Carter, 409 U.S. 418, 424 n. 11.
Justice Brennan, writing for the Court, suggested policy reasons for this inclusion in 1874. First, the Court noted that logistical difficulties at the time did not allow, as a practical matter, effective control directly from Washington over the various territories and their officials. Accordingly, the extent of self government (albeit delegated) actually existing in the territories was nearly as broad as that enjoyed by the states. The Court further added that, given the transitional nature of territorial status ("foredained" to statehood), Congress could treat the Territories, for purposes of enforcing federal rights, as "inchoate States".2
American Samoa as an inchoate State seems inconsistent with reality, and while 42 U.S.C. 8 1983 does on its face extend to violations *163committed under color of territorial law, this Court has recently stated in Banks v. American Samoan Government, 4 ASR 2d 113 (1987), that the enactment
cannot be taken as a decision by Congress to extend every application of every constitutional provision into every territory. Such a construction would be radically inconsistent with The Insular Cases. which were decided some years after the language of section 1983 was first enacted and which held that some constitutional provisions remained inappliable in unincorporated territories.
Id. at 128 n.7. Cf. Tuivai v. Suiava 2 A.S.R. 2d 35 (1983).
IMMUNITY
ASG argues that thf,' eleventh amendment to the United States Constitution effectively secures immunity from suit to an unconsenting state, and that same legal immunity is enjoyed by territories such as American Samoa.
Plaintiffs in reply make the curious observation that there is an apparent conflict between art. Ill 8 2 of the Constitution on the one hand, and the eleventh amendment thereof on the other. Further, it is contended that while the States have been zealous in expansionism with the notion of "sovereign immunity", plaintiffs pose the question as to whether anyone could "seriously contend that a territory can’t be sued because of the Eleventh Amendment, in its own courts, by its own citizens . . .
If there is a conflict between these two constitutional provisions, it would appear to follow on the usual rules of construction that a succeeding amendment provision ought to prevail. Indeed, as a matter of historical fact, the eleventh amendment came about in shock reaction to the federal courts entertaining a suit against the State of Georgia instituted by a citizen of another in the case of Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). See Monaco v. Mississippi, 292 U.S 313 (1934).
Plaintiffs’ claims herein are premised on a statute intended to enforce the fourteenth *164amendment, thus the relevant . conflict to look for,if any, is whether this amendment took anything away from the earlier eleventh.
The Supreme Court has held that the eleventh amendment, and therefore the doctrine of sovereign immunity as applicable to the states, was necessarily limited by the provisions of the fourteenth amendment. Significantly, § 5 thereof empowered Congress to legislate appropriately to enforce the fourteenth amendment. Fitzpatrick v. Bitzer, 427 U.S 445 (1976). Congressional override of state immunity was therefore available, however the court has required that any Congressional intent to override must be clear and explicit. See Employees v. Dept. of Public Health & Welfare, 411 U.S 279 (1973); Hutto v. Finney, 437 U.S 678 (1978).
With regard to the Civil Rights Act of 1871, 42 U.S.C. § 1983, the cases are settled that Congress did not intend by the general language of the Act to overturn -the eleventh amendment immunities of the several states. In Edelman v. Jordan, 415 U.S 651 (1974), the court held that the word "person" as appearing in 8 1983 did not include "states", and accordingly the enactment did not abrogate eleventh amendment immunity. This holding was subsequently reaffirmed in Quern v. Jordan, 440 U.S 332 (1979). See also Alabama v. Pugh, 430 U.S 781 (1978); Pennhurst State School & Hospital v. Haldeman, 465 U.S 89 (1984); Kentucky v. Graham, 473 U.S _ (1985).
Accordingly, absent waiver of sovereign immunity or consent to suit, an action for damages under 8 1983 may not be maintained against any of the several states.
TERRITORIAL IMMUNITY
It follows that the next question before the Court is whether the doctrine of sovereign immunity3 is applicable to ASG, the governmental *165entity of the unincorporated territory of American Samoa.
The little authority that exists on the subject favors an affirmative holding.
In Kawananakoa v. Polybank, 205 U.S 349 (1907), the territory of Hawaii asserted its immunity from suit to being joined, without its consent, to a foreclosure action. Justice Holmes explained the source of- sovereign immunity on general principles as follows:
A sovereign is exempt from suit, not because of any formal conception or obsolete theory, tbut on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends... ' As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory but naturally is extended to those that in actual administration originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights. A suit presupposes that the defendants are subject to the law invoked. Of course it cannot be maintained unless they are so. But that is not the case with a territory of the United States, because the Territory itself is the fountain from which rights ordinarily flow.
Id. at 353.
This principle of immunity - was also extended by the court to be applicable to the unincorporated territory of Porto Rico in Porto Rico v. Rosaly, 227 U.S 270 (1912). Here the Gourt was concerned with interpreting § 7 of the Organic Act of Porto Rico which, included the language "to sue and be sued". The Court first noted that immunity from suit is necessarily inferred “from a mere consideration of the nature of the Porto Rican government." Id. at 274. Secondly, to interpret 8 7 of the enactment as taking away the implied *166immunity would be, as the court reasoned, destructive of the system of government created by Congress for Porto Rico "with defined and divided powers, legislative, executive and judicial ... ." Id. at 277.
Upon general principles, the doctrine of sovereign immunity must be implicit with the system of government existing in the Territory of American Samoa. In actuality, the territorial government in American Samoa has all those sovereign attributes to pass, amend, repeal and enforce laws from which persons within its jurisdiction derive their rights. The system of government created for the territory and deriving its ultimate authority from Congress in 48 U.S.C. § 1661(c) has defined and divided powers, legislative, executive and judicial. It possesses automony similar to those of a sovereign government or state. See also In Re Hooper’s Estate, 359 F.2d 569 (3d Cir. 1966).
Upon the practical ' considerations stated by Justice Holmes, it is this Court’s conclusion that the Territory of American Samoa possesses immunity from suit without its consent or waiver.4
The conclusion follows that plaintiffs’ action under 42 U.S.C. i 1983 directed against ASG for monetary damages is subject to the territory’s claim to immunity as asserted in its answer filed herein. From precedent established in connection with the other United States territories, American Samoa would be excluded from the term "person" as used in § 1983. U. Insular De Trabajadores v. Autoridad De Las Fuentes, 431 F. Supp 435 (D.P.R. 1975), Carreras Roena v. Camara de Comerciantes, Etc., 440 F. Supp 217 (D.P.R. 1976).
This Court is further not impressed with plaintiffs’ interpretation of the Government Tort Liability Act, A.S.C.A. § 1203 et. seq., to predicate a waiver. Plaintiffs argue that the following language: "as a private individual under like circumstances," appearing in § 43.1203(a); and *167"where the government, if a private person, would be liable," appearing in 8 43.1209(a), constitutes a waiver of immunity to the extent whereby "ASG" maybe then juxtaposed within the meaning of "person" as contained in 42 U.S.C. 8 1983.
The suggestion at best is desperate, and we decline to give such unintended effect to the Government Tort Liability statute which particularizes the limited circumstances of sovereign consent. '
42 U.S.C. 8 1985 CLAIM
Plaintiffs’ conspiracy claim under 42 U.S.C. 8 1985 remains to be considered.
The complaint appears to be wanting in specificity and is short on the pleading requirements set out in Griffin v. Beckenridge, 403 U.S 88 (1971). Be that as it may, suffice it for us to say that the same principles applicable to the definition of a "person" under 42 U.S.C. 8 1983 are also relevant to the same issue under 8 1985. Thompson v. New York, 487 F. Supp 212 (N.D.N.Y. 1979). See also True v. New York State Dept. of Correctional Services, 613 F. Supp 27 (W.D.N.Y. 1984).
For the same reasons appearing above, that the meaning of the word "person" in section 1983 excludes "State", qua State, (as well as excluding "Territories”), we hold that plaintiffs’ claim directed against ASG under 8 1985 is also subject to the territorial immunity asserted.
CONCLUSION
ASG’s motion for summary judgment is granted. An action for damages pursuant to 42 U.S.C. 88 1983 and 1985 does not lie against the entity, qua entity, American Samoa Government absent waiver of immunity or consent to suit thereunder.
It is so ORDERED.
. Plaintiffs’ complaint is equivocal in setting out the basis of their claim for relief. However, in responsive Memorandum of Points & Authorities opposing an earlier ASG motion for dismissal", plaintiffs clarify their action as grounded on 42 U.S.C. §§ 1983 and 1985.
. The case involved a 8 1983 suit against the District of Columbia. The Court held that the District could not come within the meaning of "State or Territory" as appearing in the enactment. The reasoning was: federal control in Washington was effective and practical; and the District by its very nature could not be treated as an "inchoate State". Unlike thé transitional character of a territory, the capital’s makeup in the governmental scheme was lasting and permanent.
. The doctrine of sovereign immunity from suit, rooted in the ancient common law, was originally based on the monarchical, semi religious tenet that "the King can do no wrong." In modern times, it is better explained as a rule of social policy that protects the state from burdensome interference with state funds, property, and *165. instrumentalities. 72 Am. Jur. 2d, States, etc. 8 99
. While American Samoa differs with other territories to the extent that its territorial government is not a product of an Organic Act, this difference does not detract from its autonomy and self governing features which the Supreme Court found determinative in Kawakanakoa and Porto Rico v. Rosaly. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485581/ | Olovalu is a tract of land in Malaeloa. For at least eighty years the title . to it has been theoretically unresolved, although in fact several families have lived together more or less peacefully.. In 1907 the ancestors of most of the present parties joined in an action to assert the claims of their families to 'the land called Olovalu. Amituanai et al. v. Uo, #18-1907. The defendant in the 1907 case, Uo Sopo’aga, was apparently a famous land-grabber from Leone who had registered Olovalu at the territorial registrar’s office along with substantial parts of neighboring Pava’ia’i, Futiga, and Ili’ili. When the case was finally heard in 1911, Chief • Justice Dwyer gave judgment for the plaintiffs-and advised them "to distribute the land amongst themselves." This they may have done, but • there is no record that they told the court or the territorial registrar about it.
The absence of official boundaries did not matter until the early 1980s when plaintiff Tuileata ' returned from a long period overseas, claimed the Tuileata title which had been vacant for about thirty years, surveyed nearly the whole of Olovalu along with parts of adjoining tracts, and registered it all as Tuileata land. This registration caused a chain reaction resulting in the assertion by almost everyone in the neighborhood of a boundary dispute with almost everyone else.
The Tuileata survey is almost as ambitious as the one made in 1906 by the hapless Uo. It encroaches on land that has long been occupied by everyone else, and has had the effect of uniting the other families in a desire to rid the neighborhood of Tuileata.
From the testimony, at trial and from the maps and surveys presented by the parties, we conclude as follows:
1) The boundaries of Olovalu are defined by the Amituana’i and Tuiolemotu - surveys, with the exception of a small portion in the southeast corner (in and around the cinder pit) that is claimed by Amituana’ i, Tuiolemotu», Tuileat.a, Ti’a, and Ms. Letuligasenoa. Since Amituana’i, *170Tuiolemotu, and Ti’a have asked the court to let them reach an agreement regarding the boundaries of this land, and since Letuligasenoa’s pleadings and testimony amount only to a general plea not to let anyone take her land, we express no opinion on the overlapping parts of these parties’ claims.
2) We also make no finding with regard to ownership of the area covered by the "Tuia’ana survey." It is clear that this was once owned by Tuia’ana, who also held the title Letuli. It is not clear from the evidence before us. whether it was Letuli family property or the individual property of Tuia’ana. Ti’a originally came on the land as a guest or relative of Tuia’ana, and would seem to have rio claim to it at all except by adverse possession. The evidence he submitted--that he alone received the economic proceeds of the property, although close relatives, of the late Tuia’ana continue to live on it and although at some times in the past he acquiesced in references to it as Tuia’ana land "out of respect for Tuia’ana" --- would not be enough to establish adverse possession if the issue were before us. See Sialega v. Taito, LT # 18-85 (opinion rendered July 22, 1986). Since the Letuli family is not a party to this litigation, however, and since Lupelele Letuligasenoa appeared only to prevent Ti’a or anyone else from securing title to what she regards as her land., we reach no decision on this question.
3) With the exception mentioned above, the Amituana’i family owns the land included in its survey.
4) With the same exception, the Tuiolemotu family owns all the land that is included in its survey and not by the Fe’a survey.
5) The only part of Olovalu established by a preponderance of the evidence to belong to the Tuileata family is that occupied by the plantations of Fe’a. At trial Fe’a claimed that this was his individual land, inherited from his father who first cleared it from virgin bush along with other young men from Ili’ili. The evidence establishes, however, that the land owned by people from Ili’ili (including the Letuli or Tuia’ana land) is to the south and southeast of Olovalu, whereas the survey of Fe’a encompasses land entirely within the boundaries of Olovalu (as surveyed in 1906 and as resurveyed recently). We also take judicial notice of the proceedings in Tuileata v. Talivaa, # *1712-1956, in which it is made reasonably clear that Fe’a’s father was occupying Tuileata family land on account of his marriage to a daughter of Tuileata (the mother of the present Fe’a).
We therefore hold that the land within Fe’a’s survey that is also within the Tuiolemotu survey is communal land of the Tuileata family. It has, however, long been assigned to the use of Fe’a and his immediate family, who could not be deprived of it without the extensive consultation and just compensation that are an essential part of the relationship between a sa’o and the- members of his family. See Talili v. Satele, LT # 18-86 (decision rendered February 20, 1987), and cases cited therein.
We express no opinion on who owns the western portion of the land surveyed by Fe’a, beyond the boundary of the Tuiolemotu survey.
With the exceptions noted above, the Amituana’i and Tuiolemotu families may register their surveys and the Tuileata family may register the Fe’a survey.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485582/ | *173In recent weeks the Court has been presented with three motions for new trial that were filed more than ten days after the announcement of judgment. In two cases the attorney argued that the filing of papers by the Court subsequent to the announcement of judgment extended the time during which a motion for new trial could be filed. In the third case the attorney stated that he did not receive a copy of the judgment in his court box until several days after it had been filed by the Clerk.
In all three of these cases the trial judge considered the motion for new trial on its merits over the objections of opposing counsel, since in each case counsel for . the moving party had a plausible argument that the ten day period for filing the motion might have begun with some later event than . the initial announcement of judgment. Obviously, these rulings are subject to review by the Appellate Division.
For guidance in futuré cases we call your attention to the following points and authorities:
1) Motions for new trial "shall be filed within 10 days after the announcement of judgment . . . . " A..S.C.A. § 43.0802 (emphasis added).
2) Although a judgment is not "effective" unless it is reduced to writing (TCRCP Rule 58), it may be “pronounced" either in writing or from the bench, and "the date of the entry of the order or judgment for all purposes is-the filing date of any papers or the date of the pronouncement from the bench." High Court Rule 23.
3) The common practice during the last few years has been for the judge to sign a written judgment prepared by the prevailing attorney. We are willing to sign such documents whenever attorneys think they would be useful; both of us, however, have great difficulty construing the word "announcement" in A.S.C.A. § 43.0802 to mean any event subsequent to the initial announcement of a judgment.
In an effort to avoid the confusion that can result when the written entry of judgment bears a different date than the pronouncement from the bench, we have instructed the Clerk to file a written entry of every judgment announced from the bench. Such an entry should be made on the same day as the judgment is announced. (If in any case *174the Clerk should fail to make such an entry, however, A.S.C.A. § 43.0802 would still seem to provide that the statutory period for filing motions for new trial begins with the announcement of judgment.)
4) Once a judgment has -been "announced," subsequent events --- such as th& reduction of an oral opinion to writing, the receipt by counsel of notice of the judgment, or a correction of an error or omission in the opinion or judgment --- do not extend the time for filing motions for new trial. See T.C'.R.C.P. Rule 60(a), which provides that the trial judge may correct "clerical errors . . . and errors . . . arising from oversight or omission" at any time prior to the docketing of an appeal, and even afterward with the consent of a judge of the appellate division. See also Fai’ivae v. Aumavae, AP No. 2-76, holding that the trial court has no authority to accept a motion filed -later than ten days after announcement of judgment --- and that the Appellate Division therefore has no jurisdiction to entertain an appeal in such a case --- regardless of any arguments, equitable or otherwise, to the contrary.1
5) Obviously, it is possible to imagine corrections so substantial that they would amount to the announcement of a new judgment. In such a case the Court would presumably announce that it was amending its judgment pursuant to Rule 59(d) rather than merely correcting clerical errors, omissions, or oversights pursuant to Rule 60(a). In this case the time for filing motions for new trial would begin anew. Similarly, when a judge announces at the conclusion of a trial that he will issue a written opinion, findings of fact, and/or conclusions of law at a later date rather than announce his findings . and conclusions from the *175bench, he may also wish to delay the formal announcement of judgment in order to give the attorneys the full ten days to review his written opinion prior to filing any post-trial motion.
6) An attorney who is in doubt about the date on which a motion must be filed would be well advised to ask the Court for immediate guidance rather than to assume that the period has been extended.
7) Finally, T.C.R.C.P. Rule 7(b)(1) requires that every motion "shall state with particularity the grounds therefor." This is especially important in the case of a motion for a new trial, since the purpose of requiring such a motion before an appeal is to avoid unnecessary appeals by giving the trial judge a chance to see the error of his ways. Although a motion for new trial will obviously not be as well researched as the appeal which may follow, it should put the trial judge and the opposing party on fair notice of the particular errors that will be alleged in the appeal.
. In Fai'ivae Justice O’Connor equated "announcement" with the docketing of a judgment by the clerk. He did so in response to an argument that the ten day period might begin at some later point, such as the delivery to counsel of formal notice of the judgment. His opinion did not address the situation in which judgment is pronounced orally from the bench. In such a case, for the reasons we have stated, the statute clearly requires us to count the period from the date of the initial pronouncement rather than of the docketing or any later eventi | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485583/ | The Court has recently received several complaints from witnesses who have received subpoenas a day or two before trial, although the attorney who sent the subpoena knew or should have known weeks or months before that he would need, the witness’s testimony.
This is one of the many reasons that attorneys should • begin their trial preparation well in advance of the scheduled trial date. Courtesy requires that a person who is going to be required to inconvenience himself for the convenience of the Court and the parties be notified as far in advance as possible.• Ordinarily such notice should be given informally shortly after the trial date has been set, and the attorney should check a couple of weeks before trial to verify the witness’s availability and to find out whether a subpoena will be necessary. This is particularly important in the case of surveyors, doctors, government officials, and others who are frequently called to testify.
In some cases there will be compelling reasons to notify a witness of the need for his testimony only a day or two in advance. That the attorney only got around to serious trial preparation in the last couple of days is not a compelling reason. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485585/ | We cannot grant the requested termination of parental rights. Aside from the apparent failure to serve the natural father in accordance with the court’s order allowing publication or with the alternative method provided by statute, the prospective adopting parent is the child’s seventy-six-year-old great-grandmother.
*182Although the Court greatly admires grandparents and other relatives who provide love and shelter to the children of family members who are less well situated to take care of them, there are some cases in which a fa’a Samoa adoption would be proper but a legal adoption would not. Every child has a strong interest in having natural or adoptive parents who will be able to support him and legally obliged to do so until he reaches the age of majority. This child is only two years old. When she reaches the age of majority her natural parents will be in their thirties and the prospective adoptive parent will be ninety-two years old. We understand that other family members may be willing to take over the care of the child if her great-grandmother should become unable to care for her, but this can happen whether or not the leggil rights and obligations of parenthood are shifted' from the natural parents to the great-grandmother. The only question before us is whether the natural parents’ legal rights and obligations should be terminated, and we conclude that they should not. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485586/ | On Motion to Vacate Judgment:
The prisoner, Malesala Masaniai, was convicted of Sodomy and Sexual Abuse in the First Degree. The complaining witness was his seventeen-year-old *184daughter. He was sentenced to concurrent terms of five and ten years in the correctional facility, with the sentences suspended on condition that two years actually be served.
About two months after Masaniai’s conviction, defense counsel moved for a reduction of sentence and proposed to call the victim as a witness at the hearing on this motion. On the day set for the hearing, defense counsel informed the Court that although the witness had originally been called for the purpose of requesting clemency for her father, counsel had just been informed that she might instead recant the testimony she gave at trial. In this case the defense would request not that the sentence be reduced but that the conviction be vacated. The court continued the matter for two weeks so that both sides could prepare for a hearing on such a motion.
At the hearing, the prisoner’s daughter did recant her testimony. The government then recalled one of the witnesses at the trial, a social worker who had been assigned to investigate this and previous allegations of sexual abuse by Mr. Masaniai. This witness reiterated his earlier testimony that Masaniai had admitted performing sexual acts upon his daughter on the pretext of checking to see whether she was a virgin. The social worker also testified that the victim had recently told him of her intention to lie to the Court in order to secure her father’s release.
Defense counsel argues that the victim’s new testimony must at least induce a reasonable doubt about whether Masaniai committed the crime, and that his conviction must therefore be vacated. Although in light of our factual conclusion it is unnecessary for us to reach this question, we doubt that this is the test to be applied to a motion such as this one. It is one thing to say that the defendant must be acquitted even if the judge or jury believes him to be guilty unless the government has met the extraordinarily difficult burden of proving him guilty beyond a reasonable doubt. It is quite another thing to say that the record of every trial shall remain perpetually open and that the defendant must be set free --- again, even if the judge or jury still believes him guilty --- if at any future moment the accumulation of evidence against the defendant should fall slightly below the formidable standard it once met. The family and friends of every convicted criminal would have a strong incentive to effect changes in *185the testimony of every witness and all the time in the world to accomplish this task.
In this case, however, even the application of such a standard would not change the result. Both judges who convicted the prisoner are still convinced beyond a reasonable doubt that he is guilty.
Several factors lead us to this conclusion: First, the testimony of the social worker to which we have already referred, as well as the unrecanted testimony of another witness who testified that Mr. Masaniai had admitted the act to her. Second, the demeanor of the complaining witness, which at trial was that of a witness who was telling the truth and at the recent hearing was that of a witness who was lying in order to protect a loved one. Third, the victim’s admission --- after an initial denial that her testimony was induced in any way by her family --- that she had decided to recant after her attempts to be reaccepted as a member of her family had been rebuffed, and that when she went to visit her father in the correctional facility virtually his first words to her were that his fate was in her hands.
The Court has always clearly understood that the victim loves her family and does not wish to punish her father for what he did. We understand and sympathize with her feelings about this, and we admire her willingness to help her father although we cannot condone the means she has chosen. Under the circumstances --- including the seriousness of the crime and Mr. Masaniai’s determination to evade its consequences by lying and by getting other family members to lie for him, which effectively eliminated the alternative of family counseling--the Court concluded that punishment was necessary. The most recent episode bolsters that conclusion.
The motions are denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485587/ | Defendant Patea S moves to dismiss, or in the alternative for summary judgment, in the above-captioned matter. Defendant asserts, inter alia, "res judicata”, in that the subject matter of this case concerns lands called "Laloulu" which had already been the subject of litigation between the parties in Patea S. v. Taulaga et al., No. 270-1965, 4 A.S.R. 739 (1966).
The Court, after due consideration to the arguments of Counsel, the pleadings, affidavits, and other matters on file herein, as well as the file in the prior 1966 matter, concludes as follows:
That the lands "Laloulu" as more particularly described in the 1966 case docketed No. 270-1965, was adjudged in that case to be the communal property of the Patea family of Vatia;
That judgment rendered in the said case was a final and valid decision of this .Court;
*187That the same communal families before- the Court today were before this Court in 1966;
That the matter before the Court today is an attempt by plaintiff to relitigate the same issues before the Court in case No. 270-1965; and
That relitigation is precluded.
Accprdingly it is Ordered:
1) Defendant’s motion for summary judgment is granted and the above entitled matter is dismissed;
2) Defendant is awarded reasonable attorney fees against plaintiff in an amount to be approved by the Court upon verified application by Defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485588/ | Final Opinion and Order:
In our initial opinion on these matters we proposed that in order to enable the Willis heirs to own and develop the land Lepuapua "communally" in the absence of a family matai, the Court’s decision in Willis v. Willis, 2 A.S.R.2d 102 (1986) should be construed as having recognized the six Willis brothers and sisters as tenants in common. In response to our request for reactions to this *189proposal the defendants have filed a document by which they "submit to the [court’s] cpnclusion that the intention of the trial court’s finding that the Willis family over land 'Lepuapua’ as communal means tenants in common." Plaintiff Joseph Willis has written a letter to the Chief Justice reiterating the arguments he made in Willis v. Willis to the effect that Lepuapua is his individual property. Since these arguments have already been rejected by the trial court and the appellate court, we are unable to consider them.
For the reasons stated in our original opinion on these cases, therefore, we declare that each of the six children of Alexander and Falesau Willis holds a one-sixth undivided interest in Lepuapua.
In the judgment of the Court, the sum of $450 already taxed against the plaintiff to cover the defendants’ attorney fees in No. 44-86 is sufficient to cover the brief post-trial proceedings as well as the original hearing. No further fees will therefore be awarded. The plaintiff should of course obey the Court’s original order.
*191INDEX
ADMIRALTY
Unification of common law and admiralty procedure was a factor court should consider in determining whether to. apply prior rule that maritime liens could only be foreclosed in admiralty and ship mortgages could only be foreclosed in courts of common law or equity. Security Pacific National Bank v. M/V Conquest, p. 59.
Although Ship Mortgage Act was inapplicable in High Court of American Samoa, its provisions could be applied by analogy by court in applying general law of admiralty. 46 U.S.C.'§§ 911 et seq. Id.
Under the general law of admiralty applicable in American Samoa, ship mortgage which complied with statutory requirements of a Preferred Ship Mortgage created a maritime lien enforceable in admiralty, and its priority was the same as it would have been if foreclosed in federal district court. Id.
To allow lienholder to obtain higher priority by foreclosing in jurisdiction that does not have a federal district court, where Congress apparently intended to create uniform set of priorities and parties contracted accordingly, would give rise to unjust enrichment. Id.
ADOPTION
Where child lives with natural parents as well as prospective adopting parents and the only apparent effect of a termination of parental rights would be to enable a prospective adopting parent to obtain higher Social Security benefits, the termination will be denied. In re Two Minor Children, p. 21.
Notwithstanding the consent of child’s natural parents to the termination of their parental rights and obligations so that child could be adopted by another couple, such termination would not serve the best interests of the child where (1) the prospective adopting parents were sixty-four and fifty-eight years old, (2) the natural parents were much younger, (3) the child had lived for most of his life with his natural parents, and (4) the only apparent advantage of a legal adoption would be increased Social Security benefits for the prospective adopting parents. In re A Minor Child, p. 138.
*192In order for a child to leave his natural parents and live with another couple as their adopted child in accordance with Samoan custom, it is not necessary that the child be legally adopted or that the legal rights and obligations of the natural parents be terminated. Id.
In assessing the best interests of a child for the purposes of a proceeding to terminate parental rights so that the child can be adopted, the court must consider the prospective adopting parents’ ability to support the child until the child’s majority and may therefore consider the ages of the child, of the natural parents, and of the prospective adopting parents. In re A Minor Child, p. 181.
The best interests of a two-year-old child would not be served by terminating the parental rights and obligations of her natural mother so that she could be adopted by her seventy-six-year-old great-grandmother. Id.
AMERICAN SAMOA GOVERNMENT
Legislative resolution disapproving lease of government land, pursuant to statute giving binding effect to such resolutions, was not a "law" within the meaning of a constitutional provision requiring all laws to be enacted by bill rather than resolution. Rev. Const’n of Am. Samoa art. II § 9. Tuika Tuika v. Governor of American Samoa, p. 85.
By making it easier for the legislature to supervise the quasi-legislative activities of the executive branch, a territorial statute providing for "legislative veto" enhanced the diffusion of power among the different branches of government. A.S.C.A. § 37.2030. Id.
Under Constitution of American Samoa the legislature, and particularly the Senate which is composed of traditional chiefs chosen according to Samoan custom, has a peculiar relationship to the preservation of land and culture. Rev. Const’n of Am. Samoa art. I § 3, art. II § 4. Id.
Administrative board, given statutory authority to advise agency and to perform such • duties as governor assigns, had no authority to issue binding personnel decisions absent explicit grant, especially when Code sets forth hiring and *193termination procedures that do not involve board. Bánks v. American Samoa Government, p. 113.
Where evidence indicated that decision to terminate probationary employee was made by appropriate executive official with governor’s approval rather than by advisory board, court would not question the decision. A.S.C.A. §8 7.0102, 7.0206, 7.0211. Id.
Federal constitution would not prohibit American Samoan hiring preference, which is reasonably calculated to alleviate the difficulties that attend a government composed largely of officials with no knowledge of the local language and culture and who generally remain in the territory only temporarily. Id.
Where government attorney advised government official against retaining separate counsel in grievance procedure, but did not claim to be representing the government official, and where there was no evidence that the official’s failure to employ separate counsel deprived her of any remedy that would otherwise have been available to her, the attorney’s conduct did not entitle the official to recover damages against the government. Id.
Territorial immunity from suit may be implied from similarities between structures of American Samoan and state governments. Ferstle v. American Samoa Government, p. 160.
American Samoa Government, immune from suit absent consent or waiver, is not a "person" for purposes of federal civil rights statute. 42 Ü.S.C. § 1983. Id.
Government Tort Liability Act does not constitute waiver of immunity from suit so as to give right of action against territorial government under federal civil rights law. A.S.C.A. § 43.1203 et seq. ; 42 Ü.S.C. § 1983. Id.
Territorial government is not a "person" liable under federal civil rights law for conspiracy to violate federal rights. 42 U.S.C. 8 1985. Id.
APPEAL & ERROR
In the absence of evidence of contrary Samoan custom, appellate court would not reverse trial *194court judgment that candidate for matai title could cumulate two separate claims to ancestry from original titleholder in determining the degree of his blood relationship to titleholder. In re Matai Title La’apui, p. 7.
Trial court.judgment becomes final on parties who do not appeal or who dismiss their appeals, and they cannot appear in trial court proceedings on remand after successful appeal by other parties. Security Pacific National Bank v. M/V Conquest, p. 59.
ATTORNEY FEES
Counsel should be appointed by the court without cost to a criminal defendant only when he is genuinely unable to pay for his own lawyer. American Samoa Government v. Fesagaiga, p. 29.
For the purpose of determining whether a criminal defendant is unable to pay for his own lawyer, the court should consider all funds available to the defendant from all sources, not just the income from his employment. Id.
Party defending against attempt to relitigate claim previously decided against claimant could recover reasonable attorney fees. Taulaga M. v. Patea S., p. 186.
ATTORNEYS
Where government attorney advised government official against retaining separate counsel in grievance procedure, but did not claim to be representing the governmentv official, and where there was no evidence that the official’s failure to employ separate counsel deprived her of any remedy that would otherwise have been available to her, the attorney’s conduct did not , entitle the official to recover damages against the government. Banks v. American Samoa Government, p. 113.
CONSTITUTIONAL LAW
Constitutional right to due process of law is not denied when a court which has repeatedly accommodated counsel’s unusual requests and overlooked procedural irregularities finally ceases *195to do so and dismisses the action. Monte Kaho v. Ron Pritchard Ground Services, Inc., p. 40.
Similarly worded constitutional and statutory provisions may be construed differently in different jurisdictions, especially where they have been adopted and applied in different circumstances. Tuika Tuika v. Governor of American Samoa, p. .85.
Territorial statute providing for a "legislative veto" of leases of government land did not violate American Samoa Constitution. A.S.C.A., § 37.2030; Rev. Const’n of Am. Samoa art. II §§ 9 & 10. Id.
Legislative resolution disapproving lease of government land, pursuant to statute giving binding effect to such resolutions, was not a "law" within the meaning of a constitutional provision requiring all laws to be enacted by bill rather than resolution. Rev. Const’n of Am. Samoa art. II § 9.-Id.
By making it easier for the legislature to Supervise the quasi-legislative activities of the executive branch, a territorial statute providing for "legislative veto" enhanced the diffusion of power among the different branches of government. A.S.C.A, § 37.2030. Id.
Under Constitution of American Samoa the legislature, and particularly the Senate which is composed of traditional chiefs chosen according to Samoan custom, has a peculiar relationship to the preservation of land and culture. Rev. Const’n of Am. Samoa art. I § 3, art. II § 4. Id.
Fact that jurors who speak only Samoan must receive jury instructions through translator does not violate constitutional right to due process; need for translation is inevitable in bilingual territory where many witnesses and jurors speak one language but not the other. 46 A.S.C.A. § 46.1504. American Samoa Government v. Agasiva, p. 110.
Judiciary must not substitute its own judgment for that of executive branch on what is in "the best interest of the government." A.S.C.A. § 7.0211. Banks v. American Samoa Government, p. 113.
A government employee with no contractual or statutory right to continued employment may be fired for any reason or even "for no reason whatever" without a denial of due process; only *196exception is that employee cannot be terminated for a reason that itself violates some constitutional right, such as free speech or equal protection of the laws. U.S. Const, amdt. 14. Id.
Personnel board’s recommendation not to employ plaintiff was not shown to have been motivated by constitutionally impermissible gender-based discrimination when it could have resulted from past experience applicable to employees of either sex and plaintiff failed to bring evidence suggesting otherwise. U.S. Const, amdt. 14. Id.
Personnel board’s recommendation not to employ plaintiff was not shown to have been based on allegedly unconstitutional statutory Samoan hiring preference when evidence showed overwhelmingly that Board’s .recommendation was a response to undue manipulation of hiring process by plaintiff’s husband. Id.
In "unincorporated" territories the federal constitution applies only insofar as its tenets restate "those fundamental limitations in favor of personal, rights" that are "the basis of all free government" or insofar as Congress expressly extends a particular constitutional provision to the territory. Id.
Although the due process clause of the federal constitution, which implicitly. forbids racial discrimination by the federal government, binds the territories in at least some of its applications, it does not necessarily bind the territories in the same ways and to the same extent as in the continental United States. U.S. Const, amdt. 14. Id.
Federal constitution would not prohibit American Samoan hiring preference, which is reasonably calculated to alleviate the difficulties that attend a government composed largely of officials with no knowledge of the local language and culture and who generally remain in the territory only temporarily. Id.
Federal constitutional requirement that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" applies to states and not to unincorporated and unorganized territories. U.S. Const, art. IV g 2. Id.
*197Federal civil rights laws do not operate to extend into territories those applications of the federal constitution that would not apply in the territories, under the doctrine of the Insular Cases. 42 U.S.C. .g 1983. Id.
Neither the rights to free speech and'afree press nor a criminal defendant’s constitutional right to a public trial preclude a court from excluding members of the public from the courtroom during the testimony of juvenile complaining witness in a rape case, where the court has determined after a public hearing that such exclusion.is necessary to protect the witness’s psychological well-being or to prevent her from being harassed and intimidated. American Samoa Government v. Masaniai, p. 156.
Territories» are not 'jst.ates" within meaning of fourteenth amendment, so Congress acted under its constitutional power to regulate territories when it revised civil rights statute to include territories. ü!s. Const, art. IV § 3; 42 U.S.C. § 1983. ■ Ferstle v. American Samoa Government, p. 160.
Applicability of remedial civil rights statute to American Samoa does not extend application in territory of any federal constitutional provisions that would not otherwise apply under the doctrine of the insular Cases. 42 U.S.C. § 1983. Id.
Conflict between constitutional provisions are ordinarily resolved in favor of the more recently enacted. Id.
Absent waiver of sovereign immunity or consent to suit, action for' damages under civil rights law may not be maintained against any of the several states. 42 U.S.C. g 1983. Id.
Sovereign immunity is premised on the notion that there can be no action to enforce a right against authority that created the right. Id. '
Territorial immunity from suit may be implied from, similarities between structures of American Samoan and state governments. Id. g
CONTRACTS
To allow lienholder to obtain higher priority by foreclosing in jurisdiction tb&t does not have a federal district court, where Congress apparently *198intended to create uniform set of priorities and parties contracted accordingly, would give rise to unjust enrichment. Security Pacific National Bank v. M/V Conquest, p. 59.
Notarization serves to assure the authenticity and validity of signatory’s assent to a document, and there is a strong presumption that a notarized signature is valid. Mailo v. Soane, p. 140.
CORPORATIONS
Territorial statute providing that shareholder may either cast all his votes for one candidate for corporate office or divide his votes among as many candidates as there are positions did not leave corporate management free to choose which of these two methods would be followed; rather, it required that each shareholder be given the option of choosing how to cast his votes. A.S.C.A. § 30.0142. Fa’atiliga v. Lútali, p.l.
Where notice of corporate election was in the newspaper rather than by mail or personal delivery as required in the corporate by-laws, but where there was no testimony that any shareholder had not in fact received notice of the meeting, the alternative method of notice was not shown to have interfered with the shareholders’ right to vote. Id.
Court would allow assets of corporation to be garnished to satisfy judgment owed by ex-husband to ex-wife under divorce decree, where (1) business had been jointly owned and managed by husband and wife, (2) husband had formed a corporation in which he and another person owned all the shares and had secured wife’s agreement to transfer the business to the corporation a few months before husband filed for divorce, (3) evidence suggested that corporation now owned assets formerly belonging to husband and wife, and (4) the amount garnished was less than the amount of payments long overdue on a property settlement which had been ordered by the court to compensate wife for her interest in the business now owned by the corporation. Dellumo v. Dellumo, p. 48.
COURTS
Statute prescribing participation in matai title dispute of one law-trained judge, as well as four *199associate judges who are not lawyers but who are chosen for their familiarity with Samoan custom, did not require that the law-trained judge be present during all deliberations of the associate judges. A.S.C.A. § 3.0240. In re Matai Title La’apui, p. 7.
Automatic stay of suits against bankruptcy petitioner does not operate to stay proceedings against solvent co-defendants. 11 U.S.C. § 362. Monte Kaho v. Ron Pritchard Ground Services, Inc., p. 40.
Trial Court had discretion to dismiss action four years after it had been filed, eighteen months after court had given notice that the case would be dismissed unless good cause to the contrary should be shown, and one year after the date that counsel estimated he would move for trial, when no such motion had been made. Id.
Constitutional right to due process of law is not denied when a court which has repeatedly accommodated counsel’s unusual requests and overlooked procedural irregularities finally ceases to do so and dismisses the action. Id.
When court is considering the application of judge-made rules rather than legislation or a constitution, it has the duty to consider whether changed circumstances warrant modification of such rules. Id.
When Supreme Court has not had occasion to reconsider a precedent for almost a century, almost all applications of precedent have been overruled by statute, and Supreme Court has overruled similar precedents in closely related or analogous areas, lower court may conclude that the precedent no longer represents the law that would be applied by Supreme Court. Id.
Territorial statute permitting jurors who can read, speak, and understand Samoan but not English does not violate defendant’s constitutional right to effective assistance of counsel. 46 A.S.C.A. § 46.1504. American Samoa Government v. Agasiva, p. 110.
Fact that jurors who speak only Samoan must receive jury instructions through translator does hot violate constitutional right to due process; need for translation is inevitable in bilingual territory where many witnesses and jurors speak one *200language but not the other. 46 A.S.C.A. § 46.1504. Id. '•
Disqualification • of jurors in Samoa on basis of their inability to speak, read, or understand English would defeat concept ,of randomness that underlies idea of»trial byi impartial jury. Id.
Assertion of jurisdiction s by the National Labor Relations Board over complaints charging unfair labor practices by employers in American Samoa precludes, ■ territorial cou|;t from exercising jurisdiction over such complaints. 29 Ü.S.C. § 164(c). Su’a v. Star Kist Samoa, Inc., p. 135.
The distance between American Samoa and the NLRB regional office iij, San Francisco, and consequent expense and incdnvenience of bringing complaints there, were not "interests so deeply rooted in local feeling and responsibility" that territorial court could exercise jurisdiction over complaints that would otherwise be within the exclusive jurisdiction of the. National Labor Relations Board*. Id.
Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies o| justice and convenience does not give the court power to overturn a final judgment in the absence of „new ' evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60. Willis v. Willis, p. 144.
CRIMINAL LAW
Police officer’s uncontroverted testimony that speed limit sign had been posted because the road was near. a school -did not bind the court to find that the posted limit applied only during school hours.' American Samoa Government v, Sale Uo, p. 14.
Burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence. Id.
"Proximate cause" within the meaning of homicide by vehicle statute is proven if the traffic regulation violated by the defendant was designed to prevent the sort of harm that actually occurred and the *201violation was a substantial factor in bringing about the accident. A.S.C.A. § 22.0706. Id.
Counsel should be appointed by the court without cost to a criminal defendant only when he is genuinely unable to pay for his own lawyer. American Samoa Government v. Fesagaiga, p. 29.
For the purpose of determining whether a criminal defendant is unable to pay for his own lawyer, the court should consider all funds available' to the defendant from all sources, not just the income from his employment. Id.
When each of two crimes requires proof of an element not included in the other, and when defendant sought severance of the two charges and immediately pleaded guilty to the less serious offense, trial on the other charge does, hot constitute double jeopardy. American Samoa Government v. Moafanua, p. 33.
Territorial statute permitting jurors who can read, speak, and understand Samoan but not English does not violate defendant’s constitutional right to effective assistance of counsel. 46 A.S.C.A. § 46.1504. American Samoa Government v. Agasiva, p. 110.
Neither the rights to free speech and a free press nor a criminal defendant’s constitutional right'to a public trial preclude a court from excluding members of the public from the courtroom during the testimony of juvenile complaining witness in a rape case, where the court has determined after a public hearing that such exclusion is necessary to protect the witness’s psychological well-being or to prevent her from being harassed and intimidated. American Samoa Government v. Masaniai, p. 156.
Where statute defines the crime of sexual abuse to include the purpose of arousing or gratifying sexual desire, such purpose can be inferred by the trier of fact from the defendant’s conduct. Id.
Statute defining the crime of sodomy does not require proof that defendant committed the act with the purpose of arousing or gratifying sexual desire. A.S.C.A. § 46.3611. Id.
That defendant’s conduct was similar to preChristian ceremonial practices was no defense in prosecution for sexual abuse and sodomy, since territorial legislature enacted no statutory *202exception for such practices. A.S.C.A. §§ 46.3611, 3612. Id.
Although a defendant cannot be convicted of a crime unless the evidence establishes his guilt beyond a reasonable doubt, a conviction should not be vacated merely because at some time after the conviction the accumulation of evidence against the defendant falls slightly below this standard. American Samoa Government v. Masaniai, p. 183.
That a complaining witness in a sexual assault case later recants her testimony does not of itself require that the conviction be vacated. Id.
Conviction of father for sex crimes against his minor daughter should not be vacated on account of later statement by the complaining witness that she had testified falsely at trial, at least where (1) other witnesses reaffirmed thei-r testimony concerning defendant’s admissions and (2) court concluded from testimony and demeanor of complaining witness that she had testified truthfully at trial and had been moved to recant only because of pressure from her family and a desire to help her father. Id.
CUSTOM
Long occupancy of land by one family is not necessarily inconsistent with ownership by another family. Leota v. Faumuina, p. 11.
There is a strong presumption that land in American Samoa is communal rather than individual-property. Id.
Communal land given in atonement for an offense committed by a family member is presumed to become the communal property of the victim’s family rather than the victim’s individual property. Id.
Samoa was the actual historical location of the Garden of Paradise. Talili v. Satele, p. 23.
Absent special circumstances, senior matai of a Samoan family must respect the right of family members who have long resided on family land to continue residing on family land. Id.
Right of Samoan family member to occupy a particular piece of land is not absolute; senior matai of family may reallocate land within family *203by providing displaced family members with equivalent land. Id.
Right of Samoan family member to use family land for economic purposes is subject to the right of family to contributions in proportion to the value of the fruits of occupancy. Id.
Senior matai of Samoan family should not take major steps with regard to family land without prior consultation of family, and particularly of family members directly affected. Id.
When a rule of law has been adopted in an overwhelming majority of the jurisdictions with which forum state has contact, the rule may give rise to changed customs and usages within forum. Security Pacific National Bank v. M/V Conquest, p. 59.
Under Constitution of American Samoa the legislature, and particularly the Senate which is composed of traditional chiefs chosen according to Samoan custom, has a peculiar relationship to the preservation of land and culture. Rev. Const’n of Am. Samoa art. I § 3, art. II i 4. Tuika Tuika v. Governor of American Samoa, p. 85.
Where there was insufficient evidence to resolve dispute among candidates for matai title about the identity of the original titleholder, and where recent trial court opinion announcing a rule that ancestry of matai title candidates should be traced to the original titleholder had been criticized in subsequent opinions of appellate court, the trial court in a later case would attempt to calculate each candidate’s ancestry both to the nearest titleholder and to the titleholder who was the nearest common ancestor of the candidates. In re Matai Title Fano, p. 148.
That defendant’s conduct was similar to preChristian ceremonial practices was no defense in prosecution for sexual abuse and sodomy, since territorial legislature enacted no statutory exception for such practices. A.S.C.A. §§ 46.3611, 3612. American Samoa Government v. Masaniai, p. 156.
DAMAGES
Rental company that allowed its automobile to be operated on the highway without insurance required *204by law was liable for damages suffered by person injured by negligent driver of company’s automobile, up to the amount that would have been covered by insurance if the rental company had not breached its statutory duty to provide insurance. A.S.C.A. §§ 22.1001, 22.2002-03. Foma’i v. Samana, p. 102.
EQUITY
Where plaintiffs had waited three years to file suit after territorial Attorney General had announced that a . territorial statute was unconstitutional, and government had granted a number of leases during the intervening years that did not conform to requirements of the statute, action for declaratory judgment that the statute was unconstitutional would be entertained but demand for the invalidation of leases signed prior to the date suit was filed was barred by laches. Tuika Tuika v. Governor of American Samoa, p. 85.
Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60. Willis v. Willis, p. 144.
EVIDENCE
When opinion of witness is admitted into evidence, court need not accept opinion as fact but must give it the weight to which the court believes it is entitled. American Samoa Government v. Sale Uo, p. 14.
Police officer’s uncontroverted testimony that speed limit sign had been posted because -the road was near a school did not bind the court to find that the posted limit applied only during school hours. Id.
Burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence. Id.
Evidence that automobile struck a pedestrian, *205without more, does not constitute proof that driver was negligent. Matalolo v. Penitusi, p. 46.
"Preponderance" standard means that if the parties’ contradictory versions of the facts have equal evidentiary support and the plaintiff cannot establish superior credibility, the defendant must prevail. Lafaele v. Continental Insurance Co., p. 131.
Notarization serves to assure the authenticity and validity of signatory’s assent to a document, and there is a strong presumption that a notarized signature is valid. Mailo v. Soane, p. 140.
Notarization of defendant’s alleged signature on a deed, together with similarity of some characters in the signature to undisputed specimens of defendant’s handwriting, was evidence that could not be overcome by defendant’s assertion that the signature on the deed was forged. Id.
Where statute defines the crime of sexual abuse to include the purpose of arousing or gratifying sexual desire, such purpose can be inferred by the trier of fact from the defendant’s conduct. American Samoa Government v. Masaniai, p. 156.
Although a defendant cannot be convicted of a crime unless the evidence establishes his guilt beyond a reasonable doubt, a conviction should not* be vacated merely because at some time after the conviction the accumulation of evidence against the defendant falls slightly below this standard. American Samoa Government v. Masaniai, p. 183.
That a complaining witness in a sexual assault case later recants her testimony does not of itself require that the conviction be vacated. Id.
Conviction of father for sex crimes against his minor daughter should not be vacated on account of later statement by the complaining witness that she had testified falsely at trial, at least where (1) other witnesses reaffirmed their testimony concerning defendant’s admissions and (2) court concluded from testimony and demeanor of complaining witness that she had testified truthfully at trial and had been moved to recant only because of pressure from her family and a desire to help her father. Id.
FAMILY LAW
*206Court would allow assets of corporation to be garnished to satisfy judgment owed by ex-husband to ex-wife under divorce decree, where (1) business had been jointly owned and managed by husband and wife, (2) husband had formed a corporation in which he and another person owned all the shares and had secured wife’s agreement to transfer the business to the corporation a few months before husband filed for divorce, (3) evidence suggested that corporation now owned assets formerly belonging to husband and wife, and (4) the amount garnished was less than the amount of payments long overdue on a property settlement which had been ordered by the court to compensate wife for her interest in the business now owned by the corporation. Dellumo v. Dellumo, p. 48.
Notwithstanding the consent of child’s natural parents to the termination of their parental rights and obligations so that child could be adopted by another couple, such termination would not serve the best interests of the child where (1) the prospective adopting parents were sixty-four and fifty-eight years old, (2) the natural parents were much younger, (3) the child had lived for most of his life with his natural parents, and (4) the only apparent advantage of a legal adoption would be increased Social Security benefits for the prospective adopting parents. In re A Minor Child, p. 138.
In order for a child to leave his natural parents and live with another couple as their adopted child in accordance with Samoan custom, it is not necessary that the child be legally adopted or that the legal rights and obligations of the natural parents be terminated. Id.
Claimant family judicially determined to be communal owners of disputed tract could not banish other claimant who had long been assigned use of it without the extensive consultation and just compensation which are an essential part of the relationship between sa’o and members of his family. Tuileata v. Amituana’i, p. 168.
Natural father’s parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be made to give actual notice. In re A Minor Child, p. 181.
*207A party seeking the termination of parental rights must provide notice to the child’s natural father, either by the statutorily approved method, or by publication if permitted by court order. Id.
In assessing the best interests of a child for the purposes of a proceeding to terminate parental rights so that the child can be adopted, the court must consider the prospective adopting parents’ ability to support the child until the child’s majority and may therefore consider the ages of the child, of the natural parents, and of the prospective adopting parents. Id.
The best interests of a two-year-old child would not be served by terminating the parental rights and obligations of her natural mother so that she could be adopted by her seventy-six-year-old great-grandmother. Id.
INSURANCE
Statute requiring the owner of a vehicle to purchase and maintain liability insurance for losses inflicted by any person using his vehicle, and related statutes forbidding the operation of uninsured vehicles on the public highway and giving an injured person the right to bring direct action against the insurer, were intended to ensure recovery /in tort for victims injured by drivers who could not afford to pay damages. A.S.C.A. §§ 22.1001, 22.2002-03. Foma’i v. Samana, p. 102.
Rental company that allowed its automobile to be operated on the highway without insurance required by law was liable for damages suffered by person injured by negligent driver of company’s automobile, up to the amount that would have been covered by insurance if the rental company had not breached its statutory duty to provide insurance. A.S.C.A. §§ 22.1001, 22.2002-03. Id.
JUDGMENTS
Trial court judgment becomes final on parties who do not appeal or who dismiss their appeals, and they cannot appear in trial court proceedings on remand after successful appeal by other parties. Security Pacific National Bank v. M/V Conquest, p. 59.
*208When Supreme Court has not had occasion to reconsider a precedent for almost a century, almost all applications of precedent have been overruled by statute, and Supreme Court has overruled similar precedents in closely related or analogous areas, lower court may conclude that the precedent no longer represents the law that would be applied by Supreme Court. Id.
A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances. T.C.R.C.P. Rule 60. Willis v. Willis, p. 144.
Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60. Id.
Judgment that disputed tract was "communal land" of a family that was not a traditional Samoan family with a matai left open the question how family was to exercise rights of ownership under land statutes presuming the existence of a senior matai, since family was prohibited by statute from creating a new matai title. A.S.C.A. §§ 1.0401, 37.1502-03. Id.
Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution. Taulaga M. v. Patea S., p. 186.
Judgment declaring land belonging to a family that was not a traditional Samoan family with a matai to be "communal land" would be construed as having recognized family members as tenants in common of the land, thus enabling them to own and develop land "communally" notwithstanding the nonexistence of a matai. Willis v. Willis, p. 188.
JURISDICTION
Assertion of jurisdiction by the National Labor Relations Board over complaints charging unfair labor practices by employers in American Samoa precludes territorial court from exercising *209jurisdiction over such complaints. 29 U.S.C. § 164(c). Su’a v. Star Kist Samoa, Inc., p. 135.
The distance between American Samoa and the NLRB regional office in San Francisco, and consequent expense and inconvenience of bringing complaints there, were not "interests so deeply rooted in local feeling and responsibility" that territorial court could exercise jurisdiction over complaints that would otherwise be within the exclusive jurisdiction of the National Labor Relations Board. Id.
LABOR RELATIONS
Assertion of jurisdiction by the National Labor Relations Board over complaints charging unfair labor practices by employers in American Samoa precludes territorial court from exercising jurisdiction over such complaints. 29 U.S.C. § 164(c). Su’a v. Star Kist Samoa, Inc., p. 135.
The distance between American Samoa and the NLRB regional office in San Francisco, and consequent expense and inconvenience of bringing complaints there, were not "interests so deeply rooted in local feeling and responsibility" that territorial court could exercise jurisdiction over complaints that would otherwise be within the exclusive jurisdiction of the National Labor Relations Board. Id.
MATAI TITLES
In the absence of evidence of contrary Samoan custom, appellate court would not reverse trial court judgment that candidate for matai title could cumulate two separate claims to ancestry from original titleholder in determining the degree of his blood relationship to titleholder. In re Matai Title La’apui, p. 7.
Statute prescribing participation in matai title dispute of one law-trained judge, as well as four associate judges who are not lawyers but who are chosen for their familiarity with Samoan custom, did not require that the law-trained judge be present during all deliberations of the associate judges. A.S.C.A. § 3.0240. Id.
Court may enjoin a person from holding himself out as the holder of a matai title that has been *210lawfully registered in the name of another person. A.S.C.A. § 43.0303. Togiola v. Tafesilafa’i, p. 54.
Territorial statute makes it a crime to claim a matai title lawfully registered in the name of another person. A.S.C.A. § 1.0414. Id.
Losing contestants in matai title dispute and their supporters who subsequently participated in a ceremony purporting to bestow the title on someone other than the person in whose name it was lawfully registered, who disrupted a meeting, and who proclaimed their intention to interfere with the decisions and acts of the lawfully registered matai had transgressed the rights of the lawful matai and would be enjoined from further transgressions. Id.
Judgment that disputed tract was "communal land" of a family that was not a traditional Samoan family with a matai left open the question how family was to exercise rights of ownership under land statutes presuming the existence of a senior matai, since family was prohibited by statute from creating a new matai title. A.S.C.A. §§ 1.0401, 37.1502-03. Willis v. Willis, p. 144.
Where there was insufficient evidence to resolve dispute among candidates for matai title about the identity of the original titleholder, and where recent trial court opinion announcing a rule that ancestry of matai title candidates should be traced to the original titleholder had been criticized in subsequent opinions of appellate court, the trial court in a later case would attempt to calculate each candidate’s ancestry both to the- nearest titleholder and to the titleholder who was the nearest common ancestor of the candidates. In re Matai Title Fano, p. 148.
MINORS
Where child lives with natural parents as well as prospective adopting parents and the only apparent effect of a termination of parental rights would be to enable a prospective adopting parent to obtain higher Social Security benefits, the termination will be denied. In re Two Minor Children, p. 21.
Notwithstanding the consent of child’s natural parents to the termination of their parental rights and obligations so that child could be adopted by another couple, such termination would not serve *211the best interests of the child where (1) the prospective adopting' parents were sixty-four and fifty-eight years old, (2) the natural parents were much younger, (3) the child had lived for most of his life’with his natural parents, and (4) the only apparent advantage of a legal adoption would be increased Social Security benefits for the prospective adopting parents. In re A Minor Child, p. 138.
In order for a child to leave his natural parents and live with another couple as their adopted child in accordance with Samoan custom, it is not necessary that the child be legally adopted or that the legal rights and obligations- of the natural parents be terminated. Id.
Natural father’s parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be made to give actual notice. In re A Minor Child, p. 181.
A party seeking the termination of parental rights must provide notice to the child’s natural father, either by the statutorily approved method, or by publication if permitted by court order. Id.
In assessing the best interests of a child for the purposes of a proceeding to terminate parental rights so that the child can be adopted, the court must consider the prospective adopting parents’ ability to support the child until the child’s majority and may therefore consider the ages of the child, of the natural parents, and of the prospective adopting parents. Id.
The best interests of a two-year-old child would not be served by terminating the parental rights and obligations of her natural mother so that she could be adopted by her seventy-six-year-old great-grandmother. Id.
PRACTICE & PROCEDURE
Where court found that circumstances required expedited hearing on motion for preliminary injunction, defendants who had not had time to retain counsel could redress any injury occasioned by the short notice by retaining counsel and bringing the matter for another hearing. Togiola v. Tafesilafa’i, p. 54.
*212Where plaintiffs had waited three years to file suit after territorial Attorney General had announced that a territorial statute was unconstitutional, and government had granted a number of leases during the intervening years that did not conform to requirements of the statute, action for declaratory judgment that the statute was unconstitutional would be entertained but demand for the invalidation of leases signed prior to the date suit was filed was barred by laches. Tuika Tuika v. Governor of American Samoa, p. 85.
"Preponderance" standard means that if the parties’ contradictory versions of the facts have equal evidentiary support and the plaintiff cannot establish superior credibility, the defendant must prevail. Lafaele v. Continental Insurance Co., p. 131.
A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances. T.C.R.C.P. Rule 60. Willis v. Willis, p. 144.
Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60. Id.
Insufficient pleadings are properly attacked by motion to dismiss for failure to state a claim rather than with motion for summary judgment. T.C.R.C.P. Rule 12(b)(6), Rule 56. Pene v. American Samoa Power Authority, p. 152.
Court may treat a motion for summary judgment as a motion to dismiss for failure to state a claim when moving papers, though improperly styled, clearly state the latter. T.C.R.C.P. Rule §6, Rule 12(b)(6). Id.
Court may invoke T.C.R.C.P. Rule 12(b)(6) on its own motion. Id.
A complaint sufficient to state a claim upon which relief can be granted must describe the alleged injury and set forth a basis for imposing liability on defendant; conclusory allegations will not suffice. Id.
*213American Samoa Constitution. A.S.C.A. § 37.2030; Rev. Const’n of Am. Samoa art. II §8 9 & 10. Tuika Tuika v. Governor of American Samoa, p. 85.
Where plaintiffs had waited three years to file suit after territorial Attorney General had announced that a territorial statute was unconstitutional, and government had granted a number of leases during the intervening years that did not .'conform to requirements of the statute, action for declaratory judgment that the statute was unconstitutional would be entertained but demand for the invalidation of leases signed prior to the date suit was filed was barred by laches. Id.
Judgment that disputed tract was "communal land" of a family that was not a traditional Samoan family with a matai left open the question how family was to exercise rights of ownership under land statutes presuming the existence of a senior matai, since family was prohibited by statute from creating a new matai title. A.S.C.A. 88 1.0401, 37.1502-03. Willis v. Willis, p. 144.
Land held to belong to family members as tenants in common is "communal" insofar as each member held an undivided interest in the land by virtue of joint occupation and cultivation, but was not Samoan communal property for purpose of statutes requiring action to be taken by a matai. A.S.C.A. 8 37.1502-03. Id.
Tenancy in common differs from traditional Samoan land tenure in that any co-owner is entitled to a partition of the property. Id.
Party claiming ownership of disputed tract could not establish acquisition of title through adverse possession with evidence that he alone received economic proceeds of tract, since close relatives of previous owner still inhabited tract and claimant occasionally acquiesced to references to tract as possession of previous owner. Tuileata v. Amituana’i, p. 168.
Claimant family judicially determined to be communal owners of disputed tract could not banish other claimant who had long been assigned use of it without the extensive consultation and just compensation which are an essential part of the relationship between sa’o and members of his family. Id.
*214Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution. Taulaga M. v. Patea S., p. 186.
Judgment declaring land belonging to a family that was not a traditional Samoan family with a matai to be "communal land" would be construed as having recognized family members as tenants in common of the land, thus enabling them to own and develop land "communally" notwithstanding the nonexistence of a matai. Willis v. Willis, p. 188.
STATUTES
Territorial statute providing that shareholder may either cast all his votes for one candidate for corporate office or divide his votes among as many candidates as there are positions did not leave corporate management free to choose which of these two methods would be followed; rather, it required that each shareholder be given the option of choosing how to cast his votes. A.S.C.A* § 30.0142. Fa’atiliga v. Lutali, p.1.
Statutes enacted in other jurisdictions, or applying to different but related subjects than those before the court, are among the factors courts should consider in applying and fashioning judge-made law. Security Pacific National Bank v. M/V Conquest, p. 59.
Although a federal statute does not apply to proceedings in the High Court of American Samoa, its passage by Congress should be taken into account in determining whether changed current circumstances warrant the application of rules announced in nineteenth-century precedents. Id.
Although Ship Mortgage Act was inapplicable in High Court of American Samoa, its provisions could be applied by analogy by court in applying general law of admiralty. 46 U.S.C. §§ 911 et seq. Id.
Similarly worded constitutional and statutory provisions may be construed differently in different jurisdictions, especially where they have been adopted and applied in different circumstances. Tuika Tuika v. Governor of American Samoa, p. 85.
*215Court may, . in its discretion, dismiss without prejudice a complaint that fails to state a claim upon which relief can be granted. T.C.R.C.P. Rule 12(b)(6). Id.
Statutory period for filing a motion for a new trial commences with the announcement of judgment. A.S.C.A. § 43.0802. Judicial Memorandum, p. 172.
An order or judgment is entered for all purposes on the date any judicial writing is filed or any pronouncement made from the bench. High Court Rule 23. Id.
The Clerk of Court will file a written entry of any judgment announced from the bench; the failure of the Clerk to do so, however, does not prevent the statutory period for filing motions for new trial from commencing with the announcement of judgment by the court. A.S.C.A. § 43.0802. Id.
Events subsequent to the announcement of judgment, such as the issuance of a written opinion, receipt by counsel of notice of the judgment, or the correction of an error or omission in the judgment, do not extend the time for filing motions for new trial. Id.
A correction so substantial as to create a new judgment, or a statement from the bench indicating informally what the judgment will be but reserving formal announcement of judgment until a later date, would cause the statutory period for filing motions for new trial . to begin on the date of the correction or of the formal announcement rather than on the date of the initial announcement. Id.
Counsel uncertain of the date by which motion for new trial must be filed should request the court’s guidance rather than assume the filing date has been extended. Id.
A motion for new trial should be sufficiently thorough and specific to inform the court and opposing counsel of the particular grounds for the requested relief. T.C.R.C.P. Rule 7(b)(1). Id.
Persons who are likely to be called as witnesses should be notified as far in advance of trial as possible. Judicial Memorandum, p. 176.
Natural father’s parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be *216made to give actual notice. In re A Minor Child, p. 181.
A party seeking the termination of parental rights must provide notice to the child’s natural father, either by the statutorily approved method, or by publication if permitted by court order. Id.
Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution. Taulaga M. v. Patea S., p. 186.
REAL PROPERTY
Long occupancy of land by one family is not necessarily inconsistent with ownership by another family. Leota v. Faumuina, p. 11.
There is a strong presumption that land in American Samoa is communal rather than individual property. Id.
Communal land given in atonement for an offense committed by a family member is presumed to become the communal property of the victim’s family rather than the victim’s individual property. Id.
Absent special circumstances, senior matai of a Samoan family must respect the right of family members who have long resided on family land to continue residing on family land. Talili v. Satele, p. 23.
Right of Samoan family member to occupy a particular piece of landv is not absolute; senior matai of family may reallocate land within family by providing displaced family members with equivalent land. Id.
Right of Samoan family member to use family land for economic purposes is subject to the right of family to contributions in proportion to the value of the fruits of occupancy. Id.
Senior matai of Samoan family should not take major steps with regard to family land without prior consultation of family, and particularly of family members directly affected. Id.
Territorial statute providing for a "legislative veto" of leases of government land did not violate *217Territorial statute providing for a "legislative veto" of leases of government land did not violate American Samoa Constitution. A.S.C.A. § 37.2030; Rev. Const’n of Am. Samoa art. II §§ 9 & 10. Id.
Statute requiring the owner of a vehicle to purchase and maintain liability insurance for losses inflicted by any person using his vehicle, and related statutes forbidding the operation of uninsured vehicles on the public highway and giving an injured person the right to bring direct action against the insurer, were intended to ensure recovery in tort for victims injured by drivers who could not afford to pay damages. A.S.C.A. §§ 22.1001, 22.2002-03. Foma’i v. Samana, p. 102.
That a legislature has imposed a criminal sanction on certain conduct does not always mean that it also intended to give persons injured by such conduct the right to recover in tort. Id.
Where a statute restates, reinforces, or gives rise to a community standard, and when it is reasonably foreseeable that the failure to observe this standard will cause a particular kind of harm to a particular kind of victim, such a victim can generally recover damages in tort when he suffers such harm. Id.
Territorial statute permitting jurors who can read, speak, and understand Samoan but not English does not violate defendant’s constitutional right to effective assistance of counsel. 46 A.S.C.A. § 46.1504. American Samoa Government v. Agasiva, p. 110.
Federal constitution would not prohibit American Samoan hiring preference, which is reasonably calculated to alleviate the difficulties that attend a government composed largely of officials with no knowledge of the local language and culture and who generally remain in the territory only temporarily. Banks v. American Samoa Government, p. 113.
Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60. Willis v. Willis, p. 144.
*218Territories are not "states" within meaning of fourteenth amendment, so Congress acted under its constitutional power to regulate territories when it revised civil rights statute to include territories. U.S. Const, art. IV 8 3; 42 U.S.C. 8 1983. Ferstle v. American Samoa Government, p. 160.
Extension of remedial civil rights statute to territories was premised initially on the concept, unjustifiable as applied to modern American Samoa, of territories as “inchoate states". 42 U.S.C. 8 1983. Id.
Applicability of remedial civil rights statute to American Samoa does not extend application in territory of any federal constitutional provisions that would not otherwise apply under the doctrine "of the Insular Cases. 42 U.S.C. § 1983. Id.
Absent waiver of sovereign immunity or consent to suit, action for damages under civil rights law may not be maintained against any of the several states. 42 U.S.C. 8 1983. Id.
American Samoa Government, immune from suit absent consent or waiver, is not a "person" for purposes of federal civil rights statute. 42 U.S.C. 8 1983. Id.
Government Tort Liability Act does not constitute waiver of immunity from suit so as to give right of action against territorial government under federal civil rights law. A.S.C.A. 8 43.1203 et seq.; 42 U.S.C. 8 1983. Id.
Territorial government is not a "person" liable under federal civil rights law for conspiracy to violate federal rights. 42 U.S.C. 8 1985. Id.
TAXATION
In proceeding involving issue of fraudulent intent to evade tax, government bears burden of proof by clear and convincing evidence: 26 U.S.C. 8 7454. Ah San v. Lutali, p. 177.
Normal three year statute of limitations for collection of delinquent taxes expands to six years when taxpayer failed to report over 25 percent of his includible gross income in tax return. 26 U.S.C. 8 6501(e)(1)(A). Id.
*219In determination whether taxpayer omitted 25 percent or more of gross income from return, in order to trigger special six-year statute of limitation, an item is not "omitted" if taxpayer did not include the item in gross income but referred to it elsewhere in the return or in an attachment in a matter sufficient to apprise the government of its nature and amount. 26 U.S.C. § 6501(e)(1)(A). Id.
Where- government’s own documents indicate that taxpayer included allegedly omitted items on return, but simply did not include them in calculation of gross , income, items were not "omitted" so as to justify special six-year limitation of actions to remedy taxpayer omissions of over 25 percent of gross income. 26 U.S.C. § 6501(e)(1)(A). Id.
TOETS
Evidence that automobile struck a pedestrian, without more, does not constitute proof that driver was negligent. Matalolo v. Penitusi, p. 46.
Common law concept of "bailment," which would be less likely to result in imposition of liability on a rental company that had put an automobile into the hands of a stranger than on a private individual who had lent a car to a friend, is inappropriate doctrine for the resolution of cases involving automobiles and other dangerous instrumentalities. Foma’i v. Samana, p. 102.
Eental company that puts as many vehicles as possible into the care of strangers should not be judged by less stringent standard of liability than that imposed on employer whose employees use vehicles in the course of his business. Id.
Statute requiring the owner of a vehicle to purchase and maintain liability insurance for losses inflicted by any person using his vehicle, and related statutes forbidding the operation of uninsured vehicles on the public highway and giving an injured person the right to bring direct action against the insurer, were intended to ensure recovery in tort for victims injured by drivers who could not afford to pay damages. A.S.C.A. §§ 22.1001, 22.2002-03. Id.
*220That a legislature has imposed a criminal sanction on certain conduct does not always mean that it also intended to give persons injured by such conduct the right to recover in tort. Id.
Where a statute restates, reinforces, or gives rise to a community standard, and when it is reasonably foreseeable that the failure to observe this standard will cause a particular kind of harm to a particular kind of victim, such a victim can generally recover damages in tort when he suffers such harm. Id.
Rental company that allowed its automobile to be operated on the highway without insurance required by law was liable for damages suffered by person injured by negligent driver of compány’s automobile, up to the amount that would have been covered by insurance if the rental -company had not breached its statutory duty to provide insurance. A.S.C.A. §8 22.1001, 22.2002-03. Id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485589/ | Plaintiff Development Bank sues to collect an overdue balance of $10,004.05 on a promissory note. With interest, costs, and attorney fees the amount of the requested judgment.is $14,355.51. Defendants claim that their signatures on the note were obtained by fraud and that the much smaller obligation they actually incurred to the Bank has been discharged.
The undisputed facts are that the debt was originally incurred by Mr. Ilalio’s half-brother in connection with the purchase of a pickup truck for *3business purposes. It was the understanding of the parties that the note was secured by the truck. Although the Bank does not .have copies of the documents by which this security was effected, counsel for the Bank has informed the Court that such documentation would have consisted either of "being the 'legal owner’ on the certificate of title" or of a written chattel mortgage agreement.
In 1981 or early 1982 the half-brother left the Territory. The truck was left in possession of Mr. Ilalio, who also used it for business purposes. He soon began receiving telephone calls from Bank officials who stated that they intended to repossess the truck unless he agreed to accept liability for his half-brother’s debt. According to Mr. Ilalio, he repeatedly informed the officials that he would agree to be liable for the fair value of the truck but not for any' greater amount. Finally, on June 1, 1982, he was warned that if he and his wife did not go down to the Development Bank immediately to sign the papers, it would be sold to one of the "other customers" who were "lined up waiting to buy it."
Mr. and Mrs. Ilalio did go to the Bank and sign the papers. Mr. Ilalio testified, however, that the promissory note was entirely blank when it was presented for his signature, and that on an accompanying "application" the line indicating the amount of the loan was left blank. He testified that he was told only that his monthly payments would be $165, and that the .Bank would have to figure out the total amount of the loan and fill it in later. He also testified that he believed he was agreeing only to pay the Bank for the value of the truck.
A few months later, Mr. and Mrs. Ilalio themselves left the Territory, having paid $580 on the note. The truck was left with another relative. In June of 1983 two men from the bank came to this relative’s house and took the truck. It was sold, apparently by private sale, for $6000.
In 1986 Mr. and Mrs. Ilalio returned to American Samoa. They were soon contacted by Development Bank officials who told them they still owed over $10,000 in principal plus accrued interest on the promissory note. Mr. and Mrs. Ilalio then went to the Development Bank and signed an agreement acknowledging this debt and agreeing to pay $200 per month on .it. They made three *4payments and then stopped, giving rise to this suit.
The defendants, who are not represented by counsel, make arguments that are similar to several of the traditional grounds on which courts have sometimes held contracts unenforceable:
1^ Fraud or Mutual Mistake. Defendants say that they only agreed to obligate themselves for the value of the truck, which was about $6000, and that the amount of $15,164.16 was filled in by Development Bank officials without their knowledge or consent. If they are telling the truth the contract is voidable for fraud or mutual mistake, depending on whether the officials knew of the defendants’ understanding.1
Although we would not usually be inclined to believe that anyone would sign a blank promissory note, in this case it may well be true. Mr. Ilalio did not impress us as an untruthful witness. The documentary evidence submitted by the Bank is not inconsistent with his story: on the "application" the. amount of the loan and a few other items seem to have been written by a different hand and with a different pen than the items containing personal information on Mr. Ilalio. The Bank presented no witness to the transaction, probably because neither of the Development Bank officials with whom the defendants- dealt is currently employed by the Bank, both of them having gone to jail for activities similar to those of which the Ilalios accuse them. See American Samoa Government v. To’oto’o, 2 A.S.R.2d 61 (1985) (larceny, fraud, embezzlement, making a false entry in an official record); American Samoa Government v. Suisala, CR Nos. 4-85 and 5-85 (eleven counts of embezzlement, one count of tampering with a witness). See also Filioiali’i v. Adams, CA No. 124-85, affirmed. 3 A.S.R.2d 105 (1986), documenting an attempt by these same officials, acting on behalf of the Bank, to "sell" and take a "mortgage" on property that belonged to someone else. But the strongest *5argument for the credibility of Mr. Ilalio’s story is the implausibility of the alternative •hypothesis: that he willingly agreed to buy a $6000 truck (not the truck itself, actually, but the use of it for as long as he kept making payments and his half-brother did not return) for $15,000 plus several thousand dollars in interest.
2) Unconscionabilitv. We need not decide which of these two improbable events took place, however, because in either case the agreement was unenforceable. If the Bank actually did sell the Ilalios the' conditional use of a truck (or even the whole truck) for over twice its market value, it was a contract "such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other." Hume v. United States, 132 U.S. 406 (1889), quoting Earl of Chesterfield v. Jannsen, 28 Eng. Rep. 82, 100 (Ch. 1750). According to the common law of contracts, which applies in American Samoa except when it conflicts with territorial statutes or is unsuitable to local conditions, such a contract is unconscionable and should not be enforced.2
This is not to say that a party can be relieved of his contractual obligations simply because he made a bad bargain. Although courts have occasionally held contracts to be unconscionable on the sole ground that there was a gross disparity in value between the two considerations exchanged, this tends to substitute the court for the contracting parties as the judge of value. The essence of the right to contract is the freedom of each person to decide what he is *6willing to pay for the things he wants, even if his value choices differ from those made by most other people.
And yet the idea of "fair" or "market" value is not altogether irrelevant to the determination of whether a contract should be enforced. When a person pays too much more for a thing than he could have paid by walking down the street to another place of business, it raises doubts about whether the transaction was free from fraud and coercion. By the same token, even the most serious questions about the fairness of the bargaining process become far less serious if the considerations given and received by the weaker party seem to be about what they would have been if the process had been above board. (The typical person who 'did business with the corrupt former management of the Development Bank, for instance, would have received $15,000 in exchange for his signature on a promise to repay $15,000 plus interest. Unlike the defendants in this case, who are being sued on a '"loan" that was not a loan at all, such a person would have a difficult time proving that he was damaged by irregularities in the bargaining process.)
Accordingly, most courts have held that a contract is unenforceable only when there is convincing evidence both of "substantive" and of "procedural" unconscionability:
(W]hen a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or ' even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of 'the contract are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.
Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965) (footnotes omitted).
In this’case, assuming Mr. and Mrs. Ilalio actually did sign a document obligating them to pay $15,000 for the use of the truck, it was a contract of adhesion presented to them by a Bank official with vastly superior bargaining power and business *7sophistication (and with a certified penchant for dishonesty, sharp practice, and self-dealing) along with a threat that an implement of their livelihood would be "sold" to "another customer" if they did not sign immediately. Assuming that the Bank had a legal right to repossess and sell the truck, a threat to do so would generally not render the resulting contract void for duress. It did, however, contribute to the “absence of meaningful choice" which requires that the court inquire into the substantive fairness of the contract before enforcing it against the defendants. Williams v. Walker-Thomas Furniture Co., supra, 350 F.2d at 449.
The Bank soon did repossess the truck, which was the only thing it ever gave the Ilalios. It also has received about $1200 of the defendants’ money, which is enough to compensate it for their use of the truck during the time between the contract and the repossession. The Bank demands that we order the Ilalios to pay another $10,000 plus interest; this we decline to do.
3) Accord and Satisfaction. The previous discussion assumes that the truck was worth about $6000. This was the uncontroverted testimony of Mr. Ilalio, who said that at the time of this transaction brand new pickup trucks were selling for $7000 or $8000. Nothing else is known about the truck except that it was a 1970s model and that it was sold by the bank in 1982 for $6000; the bank no longer has any records concerning the transaction or the truck. Accordingly, we find as a fact that it was worth between $6000 and $7000. If, however, the truck had actually been worth an amount close to the $15,000 the Ilalios allegedly agreed to pay for it,3 it is not at all clear that the Bank had the right to sell it for far less than its market value and then recover the balance of the loan amount from the defendants.
*8The heady days of creditor self-help unfettered by due process of law are gone now, if indeed they ever existed. At common law á mortgagee had no right to repossess without resort to judicial foreclosure unless there was a clear and explicit provision in the contract giving him the right to do so. There is no such clause in the chattel mortgage form submitted by the .Bank, which may or may not have been the form signed by Mr. Ilalio’s half-brother. Nor would such a provision be clearly implied by the Bank’s designation 'as "legal owner" on the title to the truck, where the Bank led the buyer to understand that the designation was intended as a security device rather than an actual statement of who owns the vehicle. (Vagueness and ambiguity in security devices, as in other contracts, are resolved against the drafter.)
In any case there is always an obligation to exercise good faith in the execution of contracts. In the case of secured transactions one incident of this obligation is that a creditor who seizes and. sells a thing to satisfy his debt must exercise due diligence to secure a fair price for it. This obligation has been codified by statute in all fifty states; where it does not require a judicial foreclosure or an advertised public sale it at least requires that the sale' be conducted in accordance with commercially reasonable practices and that there be notice to the mortgagor. See, e.g., Uniform ’ Commercial Code §§ 9-504t07. Creditors who repossess things and dispose of them without such indicia of good faith have been held to have accepted them in full payment of the whole debt, either under the principle of- accord and satisfaction (as the defendants argue in this case) or because in the absence of circumstances ensuring an accurate appraisal of its value the thing is presumed to be worth the amount of the debt. If we thought the truck had been worth $15,000 or anything close to it in 1981, we would be strongly inclined to believe that its unadvertised sale for $6000 in 1982 was a breach of the obligation of good faith which relieved the defendants of any obligation to pay the balance of the amount due on the note.4
*9Accordingly, the action is dismissed.
Parol evidence is admissible to show that an agreement reached by the parties was improperly reduced to writing because of fraud or mutual mistake, or that there was no agreement at all for one of these reasons. See 2 Corbin on Contracts § 580 at 431-40 (rev. ed. 1960), and cases cited therein.
See A.S.C.A. § 1.0201 (reception of common law in American Samoa); Tung v. Ah Sam, 4 A.S.R. 764 (1971) (in construing the common law, court should ordinarily follow the Restatement of the Law); Restatement of Contracts 2d §208 (1981) ("If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce, the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.’’). See also Mauga Family v. Mauga, 1 A.S.R. 587 (1938) (principles of equity are part of the law of American Samoa).
No evidence has been presented concerning the loan originally incurred by the half-brother. We do not know, therefore, how a truck that apparently cost no more than $8000 when it was new came to be secured by a loan with a balance of $15,000 by the time the Ilalios were required to assume it. This could have been the product of several years’ accumulation of „ interest, or perhaps of consolidation of the truck loan with other debts owed by the half-brother to the Bank.
We understand that the dubious circumstances that gave rise to this case are not the fault of the current management of the Development Bank. Against innocent third *9parties, however, the Bank has only those rights that were legitimately acquired at the time its contracts were made. It did not acquire any new rights simply by purging the officials whose misdealings tainted some of its contracts. This does not, of course, prevent the Bank from recovering against people who dealt with the former management but who are not shown to have been victims of their improper activities. Indeed, in cases where third parties are shown to have colluded with the former management to obtain contracts grossly disadvantageous to the Bank, the new management can presumably recover the ill-gotten gains.
One of the transactions involved in this case did take place after the new management had taken over. This was the occasion on which the defendants, having returned to American Samoa, signed a document styled an "agreement," acknowledging the debt and promising to resume monthly payments. Asked by the Court why he signed this document if he did not really believe he owed the money, Mr. Ilalio explained that he and his wife had just returned to the island, were attempting to reestablish themselves, and did not want trouble. This explanation would not be good enough if they had actually owed the Bank any money to begin with and if the "agreement" were offered only as evidence that the statute of limitations had been waived or for some other incidental purpose. In fact, however, there was no consideration for this "agreement" and it was therefore not legally binding on the Ilalios. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485593/ | This matter came on for hearing upon plaintiff’s motion for default judgment. Defendant Talo Lava, having been noticed with hearing of the motion, appeared pro se.
The complaint seeks judgment on a promissory note made by defendant in favor of plaintiff evidencing a loan made. With interest, costs, and attorney fees, the plaintiff bank seeks judgment in the sum of some $15,298.29 plus post-judgment *25interest. The note in question is for the face amount of $10,000.
Defendant contests the amount of his indebtedness to the bank,1 claiming that he never received the total $10,000 purported to be ’loaned to him, and that the bank official who dealt with him at the time, Tamafili Suisala, allegedly in concert with a certain contractor, helped themselves to the loan proceeds without his knowledge or consent.
This story is becoming distressingly recurrent, and the bank official accused has since been removed from his position as vice president of the bank and is currently serving a jail term on a miscellany of theft-related convictions. ,,
FACTS
Promissory Note I
Defendant’s version is that he applied to the bank for a loan of $10,000 to wall in his open structure, built by the government’s disaster relief agency consequent to a landslide occurring in his village. His loan request was approved initially only up to an amount of $6,000, by Suisala. A copy of a promissory note to this effect was not found in bank files, but evidence of this loan transaction is found in a chattel mortgage document dated April 13, 1981, executed by defendant to secure repayment of $6,000. Defendant says that he was disbursed some $4,000 of the loan proceeds for the purchase of materials for the project. He also contacted a builder trading under the name of "Kilipoa Construction" to close in the existing structure with cement blocks. He accepted this builder after he was given an estimate for labor of $300.
The Loan Disbursement Schedule of the bank reveals that between April 13, 1981, and May 26, 1981, the sum of $2,681.04 was disbursed for materials, and the bank’s records contain corresponding receipts from various merchants to this effect.
*26On the other hand, between June 16', 1981, and July 2, 1981, the sum of $3,296.46 was disbursed by the bank to Kilipoa Construction without any explaining documentation or signed approvals by the borrower. Also, an additional sum of $22.50 was disbursed to the bank on July 2, 1981, which item brought the disbursements to $6,000.
One curious document we find in the bank’s file is a contract form under Kilipoa Construction letterhead, dated June 25, 1981. The document contains the notation in Samoan to the effect that: "Talo is agreeable that the agreement pertaining to his house in Se’etaga has ceased in effect." This document also contains a notation, "Pd. Ck #10598, 6/24/81." (Cross referencing the Loan Disbursement Schedule, a payment of $1,150 was made to Kilipoa Construction on this date.) The document purports to be signed by Talo Lava; when it was produced to the defendant, however, he denied signing the said document. He states that his agreement with Kilipoa was fixed at $300.
We accept defendant’s testimony on the forgery of his signature. The construction ceased after the use of the purchased material aforementioned, leaving about twelve feet of walling left to be-completed. Thereupon defendant went with his contractor to draw on the balance of the loan proceeds, which defendant believed to be about $1,900. Of course there was no money there, and the contractor must have known this as he was disbursed funds without defendant’s say-so. When defendant confronted the bank official Tamafili Suisala on where the loan monies went, the official countered by approving an additional $4,000 loan, which the defendant was told would finish off the enclosing plus add an extension to his house.
Promissory Note II
After dismissing defendant’s complaints on the balance of the loan proceeds with the tender of an extra $4,000 credit line, Mr. Suisala had a new promissory note drawn up for the face amount of $10,000, together with a corresponding chattel mortgage, both dated July 7, 1981. These he got the defendant to sign. Additionally, in his manner of efficiency with the records, we note of the Disbursement Schedule that the $6,000 loan reference is penned out and the figure $10,000 written over holographically.
*27We further find on file with the bank a Construction Contract dated July 6, 1981, under Kilipoa Construction letterhead. It is signed at the signatory block for a "Company Representative" while unsigned at the block designated for "Purchaser." It purports to bear defendant’s signature midway down the page, but defendant claims that he did not sign this document. The document further has a designation "Price," which is filled in with the figure "3200," and a designated heading "10% Deposit" filled in with the amount "$2500."
Again we accept defendant’s version of this document, that it wras not signed by him. The document has a carbon copy on file, and the proposed signature of defendant on the original does not appear on the carbon. It looks to the Court that the purported signature of defendant was later added on the original, after it was separated from the carbon. Further, the document is hardly at arm’s length in purport. Just how the deposit sum of $2,500 equates to ten percent of $3,200 belies the ordinary in commercial transactions.
We go to the disbursement schedule again and find that on July 8th, 13th and 24th, 1981, the total sum of $3,900 --- of the $4,000 credit line- -- was disbursed to Kilipoa Construction. Again the disbursement receipts reflect unilateral action by the bank without any involvement on the part of borrower.
Defendant said that hereafter the contractor dealt directly with Mr. Suisala. Work recommenced on the house, but. instead of completing the wall work with cement blocks as started, the contractor finished it off in wood. The extension itself to the house was at the contractor’s control. Defendant complained that the same involved a dropped floor level and was only partially extended along the breadth of the building. Defendant states that one day, without warning, the contractors failed to return, and while the resulting extension was substantially completed, the roof has leaked from the outset.
Defendant stopped paying the bank on the ground that Mr. Suisala and Kilipoa Construction were in collusion, and so advised Mr. Suisala when the latter confronted defendant on non-payment. Defendant invited Suisala to sue him. As things have turned out, Mr. Suisala is no longer able to *28be involved, and the current bank officials have inherited the litigation.
One further document among the exhibits received warrants mention. This is an "Agreement" dated March 26, 1987, prepared by the Bank and signed by defendant, whereby defendant acknowledged the indebtedness on the "promissory note(s)" and in consideration of the bank’s forbearance to sue, defendant agreed to repay the notes according to the payment schedule therein provided. This document also contains provisions to the effect that defendant waived all defenses. Bank employee Siao Elisara, who sat down with the defendant when this document was signed, was not able to explain to defendant what the provisions of this agreement meant, save to inform defendant that the agreement correctly reflected his indebtedness to the bank.
On the foregoing, we consider the extent of the indebtedness, if any.
Indebtedness
Our analysis of the facts leads us to the conclusion that the promissory notes executed by defendant --- for $6,000 and then for $10,000---do not evidence indebtedness. The notes at best reflect a window-dressing exercise with the records of the bank, to disguise the underlying dealings that in fact occurred. Firstly, defendant was availed of a credit facility up to the amount of $6,000, and defendant acknowledged that he drew down on the proceeds to purchase building materials. While defendant was of the understanding that he had drawn $4,000 of the loan amount, the bank’s records in fact show $2,681.04. The balance of the .line of credit (less $22.50 paid to the bank) was disbursed by the bank, without defendant’s knowledge or consent, to pay the builder, with whom defendant had contracted on the basis that labor costs would be $300.
We find that this was a breach of the loan contract by the bank. Our conclusion that there was a unilateral breach of the loan contract is affirmed by defendant’s expectations that there was still available credit when he visited the bank to further draw for the purchase of additional building materials. As it happened, defendant’s queries on the balance of the loan were countered by Suisala’s arranging of an additional $4,000 line of credit.
*29At this point, the $6,000 note was presumably-withdrawn and destroyed and a new note drawn up in the face amount of $10,000. As far as records go then, for audit purposes, the bank’s funds were accountable on paper.
As stated in the facts, the second $4,000 credit line was again unilaterally disbursed by the bank through its officials without the knowledge and consent of the borrower. This was clearly evident on the disbursement receipts, which were conspicuously blank in terms of borrower’s acknowledgment.
Again we conclude a breach of contract by the bank through the actions of its officials. Borrower testified that he had no idea how the said $4,000 was handled and that Suisala dealt only with the builder thereafter. This testimony was corroborated by bank employee Siao Elisara. Further, the builder received $3,900 of this money notwithstanding that the asserted building contract on file, dated July 6, 1981 (and purported to be signed by defendant), stipulated a contract price of $3,200.
CONCLUSION
We conclude a breach of contract by the bank through the actions of its employees, although we could have equally found on the facts a conclusion within the realm of fraud.
This notwithstanding, our conclusions are not to say that defendant did not benefit in the matter. Although not to his entire satisfaction, his house was improved with bank funds.. On the basis of the evidence, we find the defendant indebted to the bank in the following amounts: $2,681.04, being the cost of materials purchased with the proceeds of the first note; plus $300, being the defendant’s understanding of labor costs; plus $3,200, being the builder’s assessment of the value of labor and materials expended in completing the enclosure of defendant’s house together with the added extension. i This last figure we find as the reasonable value of those labor and material costs.
Plaintiff’s claims for attorney fees and costs are disallowed. The cause of action provided in the terms of the promissory notes for attorney fees and costs are inappropriate for the same reasons *30for which we find the said notes to be inappropriate evidence of the indebtedness.
ORDER
It is accordingly Ordered, Adjudged and Decreed that plaintiff have judgment against the defendant Talo Lava in the sum of $6,181.04 plus interest accruing to date hereof at the rate of 8% per annum, to be computed as follows: interest on $2,981.04 to accrue from April 13, 1981; interest on $3,200 to accrue from July 7, 1981.
It is further Ordered that all payments made by defendant to plaintiff' to date shall be first applied to interest as’ above stated, and the balance, if any, to principal.
It is further Ordered that plaintiff shall have post-judgment interest at the rate of 8% per annum.
Notwithstanding default, defendant may appear to contest the extent of the indebtedness. TCRCP Rule 55(b). See also Peitzman v. City of Illmo, 141 F.2d 956 (8th Cir. 1944), cert. denied 323 U.S. 718. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485594/ | Plaintiff, a merchant, shipped on or about November 21, 1983, to one Taipe Vaka in Nukualofa, Tonga, goods invoiced at the value of $6,179.30. He has not been paid for the same. Plaintiff has attempted to collect from Vaka in Tonga, but has been without success.
Plaintiff has filed its complaint in American Samoa against Vaka and, in addition, against defendant Blankenship as an agent of Vaka. Vaka has not been served process and accordingly is not before the Court.
Blankenship contests agency, and plaintiff at trial moved to amend its complaint to the effect that Blankenship was alternatively a guarantor of *32the indebtedness. The Court grants the Motion, 1 TCRCP Rule 15(b).
FACTS
Gebauer (the President of plaintiff Ryan Inc., and hereafter collectively with his company referred to as "plaintiff") and Blankenship were at the outset very good friends. Theirs was obviously a friendship which permitted the sort of familiarity that breeds contempt, which when taken into the context of business tends to generate lawsuits and a falling out in friendships. Such was the case here.
Plaintiff at the time was just starting out in business as a purveyor, of food products. Defendant, who was at the time established in the lumber and builder’s supply business, allowed his friend Gebauer to operate provisionally out of his lumber yard at the Industrial Park. Things were fine until Mr. Vaka visits town. Vaka is taken to the lumber yard by a Tau Tafisi, another of defendant’s friends who operated his business, in part, at defendant’s premises.
Vaka, Tafisi and Defendant Blankenship meet on the possibility of doing business. Among other things, Vaka is interested in the importation of food products into Tonga, so Blankenship introduces Vaka to Gebauer. Gebauer does not know Vaka from a bar of soap and looks to the defendant for assurance of payment. Here the testimony conflicts.
Plaintiff testified that when he sought assurance from the defendant of payment, defendant advised him to ship the order and that he (the defendant) would stand good on payment.
*33On the other hand, defendant takes the position that he never guaranteed the order. He was merely a conduit for introduction. Vaka was interested in food products and, as he did not deal in food lines, he introduced Vaka to plaintiff as one who dealt in food.
The Court finds that the evidence preponderates in favor of plaintiff’s version. The documentary evidence received is corroborative. A delivery docket evidencing supply to a vessel at the docks designates defendant Blankenship as the source of the order. Also, plaintiff’s invoice contains the same designation, as well as the transaction terms, namely "FOB --- Pago" and "Charge.“ Plaintiff testified that after he showed defendant proof of delivery, defendant signed the invoice.
Mr. Blankenship was not new to the world of business. His acknowledging the invoice and the terms therein contained point to circumstances--a business context --- which place him beyond being a mere conduit.
CONCLUSION
On the evidence before us it is the Court’s conclusion that defendant was primarily instrumental in securing the supply of the order with assurances to plaintiff that the latter would be paid. Whether viewed as a product of agency or of surety, the defendant is liable to plaintiff.
Accordingly plaintiff shall have judgment against the defendant in the sum of $6,179.30 plus interest at the presumed rate as provided in A.S.C.A. § 1501, namely 6% per annum.
It is so ORDERED.
The motion was made over the objection of counsel for defendant. At trial, the motion was taken under advisement and the Court directed counsel for briefing. To date the Court has yet to receive briefs, although the time limit set for such has lapsed. Viewing the merits of the motion, the Court is unable to conclude prejudice to the defendant by allowing the amendment, -.as no different factual allegations are entailed. Noting the liberality envisioned by the scope of the rules, the court allows the motion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485595/ | *36On Motion to Reconsider:
The question before us is whether we erred in granting respondent’s motion to set aside a divorce decree.
FACTS
Petitioner (Mr. Wray) filed this action on December 14, 1983, seeking a divorce on the grounds of habitual cruelty and desertion. Respondent (Mrs. Wray) answered, denying the substantive allegations of the complaint and also alleging that both parties lived in Hawaii and not in American Samoa. The respondent further pled that she had filed an action for divorce in Hawaii. She moved that the action be dismissed on the grounds that the court lacked jurisdiction and that American Samoa was an inconvenient forum.
Then-Chief Justice Gardner ordered that the American Samoa proceedings be stayed on the ground that "the ends of justice and fairness require that this action should be tried in Hawaii." Justice Gardner concluded that “[a]11 the factors considered establish inconvenience of this court and convenience of the Hawaiian court." He ordered a stay rather than a dismissal "so that if obstacles develop to prompt litigation in Hawaii, the parties may resume litigation here."
On February 9 of this year, about three years after the stay was granted, counsel for Mr. Wray filed an "Ex Parte Motion to Vacate Stay and Proceed with Hearing on Plaintiff’s Complaint." It alleged that "the action in Hawaii has been pending for about five (5) years"; that "Paulette Wray has failed to prosecute that action with diligence"; and that Mr. Wray was therefore "entitled to an immediate hearing on his petition for divorce pursuant to the order of the court dated March 30, 1984 [i.e., Chief Justice Gardner’s order staying the Samoa proceedings]."
This ex parte motion was filed at 3:05 on a Monday afternoon. It was brought to the chambers of then-Associate Justice Murphy, who in the absence of the Chief Justice from the Territory was temporarily (until the following evening) in charge of assigning and scheduling cases. Justice Murphy scheduled a hearing on the motion for the following afternoon.
*37The lawyer who had represented Mrs. Wray in the American Samoa proceedings three years earlier was notified late Monday afternoon that the case would be heard Tuesday. He appeared at the hearing and requested a ten-day‘ continuance so that he could contact his client in Hawaii. He stated that he had attempted repeatedly to reach her by phone during the eighteen hours or so since he had been notified of the hearing and had been unsuccessful. He did not know whether his client would at that point oppose the granting of a divorce decree in American Samoa or acquiesce in such a decree. Indeed, he said that he had assumed that the proceedings had reached a final conclusion in Hawaii, and that if they had not he knew of no basis on which to oppose the lifting of the stay after three years. He simply asked for a few days in which "to contact my client and determine what her position is."
Counsel for Mr. Wray opposed a continuance on the ground that there could be no real dispute on the merits of whether to grant a divorce, since Mrs. Wray had filed for a divorce in Hawaii and Mr. Wray in Samoa. Therefore ten days could make no difference. Since his client was temporarily in the Territory from Hawaii --- where both parties do in fact reside, although they once resided in American Samoa and Mr. Wray claims his legal domicile here --- and it would be difficult for him to come to the Territory again soon, the divorce should be granted that day.
After a brief hearing (the sole evidence on the merits consisted of Mr. Wray’s counsel asking him whether the allegations of habitual cruelty and desertion in his petition were true and Mr. Wray responding that they were1) Justice Murphy denied *38the motion for a continuance and granted the divorce. He expressed his agreement with Mr. Wray’s contention that since both parties wanted to be divorced no purpose could be served by a ten-day delay. Although the judge stated that the request for a continuance was "not unreasonable," he assured counsel that "Mrs. Wray would have an opportunity to contact you and set it aside [in the] ten days that you are talking about . . . . " (This was an apparent reference to the ten days after judgment during which the losing party may file a motion for new trial.)
Mrs. Wray did not file a motion for new trial within ten days. On March 5, however, twenty-five days after the date of the decree, she filed a motion to set aside the decree in accordance with Territorial Court Rule of Civil Procedure 60(b). This rule provides that the court may grant relief *39from a judgment after the expiration of the ten-day period on any of several extraordinary grounds. The grounds for her motion were "newly discovered evidence" and "fraud." She alleged (1) that the decree "was based on untrue statements made by the petitioner at the time of the hearing" and (2) that Mr. Wray was aware when he moved for the expedited hearing that Mrs. Wray had just left Hawaii for a month-long trip to Europe and therefore that counsel would be unable to reach her.
Upon her return to Hawaii on March l,.Mrs. Wray had received her lawyer’s messages to contact him. Her reaction upon learning that a divorce had been granted in American Samoa was one of shock and outrage; she had talked with Mr. Wray on the telephone on February 7, just before she left for Europe and he for Samoa, and he had said nothing about reopening the American Samoa proceeding. Mrs. Wray maintains, contrary to the representations that persuaded Justice Murphy to lift the stay order imposed by Chief Justice Gardner, that she has diligently pursued her Hawaii divorce action and that substantial progress has been made in that action. She further maintains that the delay in bringing those proceedings to a final conclusion has been caused' partly by a serious accident suffered by Mr. Wray in 1984 and his subsequent recuperation, partly by a serious financial setback suffered in the same year and ensuing legal complications, and partly by Mr. Wray’s own delaying maneuvers.
These actions on the part of Mr. Wray, of which he denies some details but which are proved by the affidavits and other exhibits submitted, included:
(1) Failure to sign a negotiated divorce settlement to which he had previously agreed. On September 24, 1984, Mr. Wray’s then-counsel wrote to Mrs. Wray’s counsel in order "to confirm that we have a settlement in the above-referenced matter based on my client’s acceptance of Mrs. Wray’s alternative counter-offer . . . . " It is inconceivable that Mr. Wray’s lawyer would have written such a letter without authority to do so. On October 10, 1984, a document incorporating the agreement (which had already been reduced to writing when Mr. Wray’s attorney had communicated his client’s acceptance of it) was sent to Mr. Wray for his signature. It was never signed.
*40(2) Failure to inform Mrs. Wray that he intended to renounce the settlement to which he had previously agreed. At the time Mr. Wray received the document he was in the hospital and was physically unable to sign his name. In the same month he suffered a serious financial setback, leading to corporate reorganization proceedings which are not yet resolved. Mrs. Wray maintains that Mr. Wray never told her that he would not sign the agreement, but only that he did not presently have the money to comply with it. Under the circumstances she was willing to wait until the conclusion of the corporate reorganization proceedings. She maintains that her first notice that he had finally renounced the Hawaii settlement was in March of this year when she learned of the decree he had obtained in Samoa. Mr. Wray does not deny this; indeed, the statement in his affidavit that Mrs. Wray "never brought up the proposal [i.e., the settlement to which he had agreed] with me again" seems implicitly to admit that he never notified her of any intention to renounce it.
(3) Tenacious resistance to discovery requests. At least one controversy over Mrs. Wray’s attempts to discover Mr. Wray’s assets appears still to be pending in the Hawaii court.
(4) A request in mid-1986, after his Hawaii attorney had requested and been given permission to withdraw, for a continuance in order to find a new attorney. The court granted him "at least three weeks" to do so.
(5) Subsequent failure to retain new counsel in the Hawaii proceedings.
The hearing on the motion to vacate the American Samoa divorce decree was postponed twice at the request of counsel for Mr. Wray.2 The *41motion was heard on May 6 and the decree was set aside. We declined at that time to decide whether Mr. Wray (a member of the bar in this Territory) had committed "fraud, misrepresentation, or other misconduct" in making an ex parte motion for a hearing at a time when he knew Mrs. Wray’s counsel would be unable to reach her, and in withholding his knowledge of her whereabouts from the court even when the judge based his decision on the understanding that Mrs. Wray and her counsel would have ten days after the judgment in which to contact each other and decide whether to move for a new trial.3 We decided, however, that this was at *42least the sort of ."surprise" on which relief can be granted under Rule 60(b)(1). Moreover, Mrs. Wray’s affidavits to the effect that substantial progress had been made in the Hawaii proceeding, and that the delays in that proceeding had been partly unavoidable and partly the result of Mr. Wray’s own efforts, were "newly discovered evidence" on whether the stay in the American Samoa proceeding should have been lifted.
Mr. Wray now urges us to reverse our ruling and reinstate the divorce decree. He makes three arguments:
(1) A Rule 60(b) motion to set aside a decree "should not be used as a substitute for an appeal";
(2) Even if a court finds that a proceeding was tainted by fraud or unfair surprise, or that there is newly discovered evidence which counsel could not have discovered by diligent efforts in the original proceeding, the court should deny a *43Rule 60(b) motion unless it further finds that the aggrieved party alleges facts which, if proved upon retrial, would result in a decision on the merits. In the case before us petitioner urges that evidence and arguments about whether the stay should have been lifted are irrelevant Unless respondent also produces evidence that there is no ground for a divorce between the parties.
(3) Mr. Wray has also submitted his own affidavit contesting Mrs. Wray’s version of the reasons for the delay in the Hawaii proceeding.
I. Rule 60(b) as a "Substitute for Appeal."
Petitioner is correct in pointing out that a court should not grant a Rule 60(b) motion on the basis of objections that could have been raised in an appeal. Although our decision to vacate the decree was based on surprise and newly discovered evidence, we did comment on other irregularities in the proceeding in which the decree was granted.
It is difficult to imagine circumstances that would justify the denial of a brief continuance requested by an attorney for a represented party who has received less than 24 hours’ notice of a hearing in a matter that has lain dormant for three years, who has been unable to contact his client, and who does not know the facts of the case or his client’s position on the merits. To proceed immediately to final judgment against a party who is subject to the aforementioned disadvantages would seem to constitute such a gross abuse of discretion that it should surely be reversed on appeal or on a Rule 59 motion for new trial.4 *44Since objections to the judge’s conduct of the proceeding could • have been raised by appeal, .however (or could have been so raised if .Mrs. Wray’s counsel had been able to reach her within ten days of the judgment), petitioner is correct in his contention that we should not consider them on a Rule 60(b) motion*.
The decree in this case, therefore, should not h^ve been set aside unless the setting aside was justified by facts and arguments that were unknown to petitioner’s counsel and therefore could not have been raised by appeal, or unless the failure to bring an appeal constituted "excusable neglect" within the meaning of Rule 60(b)(1). The facts and arguments unavailable to Mrs. Wray’s counsel as bases for appeal were (1) the filing of an ex#parte motion.for an immediate trial of the divorce action at a time when .Mr: Wray knew (but the judge and Mrs. Wray’s counsel did not know)' that Mrs. Wray would be .incommunicado for about a month; (2) the representations by Mr. Wray and his counsel that Mrs. Wray had not diligently pursued the Hawaii proceedings and that the condition set by Chief Justice Gardner for lifting the stay order had therefore been met; and (3) her later submission of convincing evidence that she had in fact pursued the Hawaii action .diligently, so that the stay should have remained in force.
We conclude that this course of- events comprised misrepresentation, unfair surprise, and newly discovered evidence, each of which would be sufficient to justify relief under Rule 60(b). At the very least it is clear that Mrs. Wray’s failure to file a motion for new trial within the requisite 10 days --- during which she was still away from home, not in communication with her lawyer, and unaware of the divorce decree, as Mr. Wray knew she would be --- vías "excusable neglect" sufficient to justify relief under Rule 60(b).
II. The Likelihood of a Different Outcome on Retrial
Even on the assumption that the decree in this case was tainted by one or more of the circumstances under which a court may grant relief under Rule 60(b), petitioner argues that we had no power to grant such relief because respondent did not fulfil an additional requirement that she must assert "a meritorious defense to the facts supporting the relief granted." Although no such requirement is explicit in the rule itself, *45petitioner cites numerous cases denying relief under the identical federal rule in the absence of claims or defenses which, if proved, would justify a different result on retrial.
While this court is not bound to interpret its own rules in conformity with every judicial gloss that has been written on the federal rules, we are in full agreement with the cases cited by petitioner. Whether to grant relief from a judgment is a matter of judicial discretion and should only be granted "on such terms as are just." T.C.R.C.P. Rule 60(b). It hardly seems just to put the parties and the court through a second proceeding when there is no chance that the parties will emerge with different rights and obligations than they had as a result of the first proceeding, however badly flawed it might have been.
The setting aside of the divorce decree was anything but this sort of pointless exercise. In the first place, Mrs. Wray has asserted defenses on the merits; in her answer to the petition she specifically denied the allegations of habitual cruelty and desertion. In light of the minimal and highly conclusory evidence adduced in support of these allegations, Mrs. Wray’s equally conclusory denials would satisfy the requirement that there be some prospect of a different outcome on retrial.5
*46More importantly, the petitioner’s insistence that there must be a defense "on the merits" misapprehends the nature of the rule he urges us to apply. A "meritorious defense" is not synonymous with a "defense on the merits." A defense can be meritorious although it concerns jurisdiction, standing, ripeness, forum non conveniens (the principal issue in this case), or any other issue that might cause a court which had heard both sides of the story never to reach "the merits." See, e,g., Misco Leasing, Inc., v. Vaughn. 450 F.2d 257 (10th Cir. 1971) (trial court’s decision that it has jurisdiction over the person of the defendant can be relitigated on a Rule 60(b) motion although no other defense is raised).
The application of the "meritorious defense" rule to this case is further obfuscated by petitioner’s frequent reiteration of the argument that there is no dispute on the merits because Mrs. Wray also wants a divorce. The parties have been litigating against each other not because they cannot agree about whether they should be divorced, but because they have serious disagreements about what their rights and obligations should be upon dissolution of the marriage. The weight of the evidence on this motion supports Mrs. Wray’s contention that Mr. Wray’s recent sortie into the High Court of American Samoa was an effort to divest the Hawaii court of jurisdiction to enforce a settlement including detailed provisions for child custody, support, division of property, and assumption of liabilities, which is apparently unacceptable to him, and perhaps also to divest the court of jurisdiction to enforce an order for support pendente lite with which he has not complied. Whether or not these issues comprise *47"the merits" of the divorce action, they are important questions on which the parties disagree.
We are unpersuaded by petitioner’s contention that these issues are immaterial to the Rule 60(b) motion because Justice Murphy made no final- order with respect to them. There is some chance Mrs. Wray could eventually obtain the post-divorce relief she seeks by coming to American Samoa to litigate these aspects of her case, but there are important reasons --- including the difficulties a court can encounter in dealing with persons and property outside its jurisdiction, differences in the law (including choice-of-law rules) applied in different places, and logistical problems inherent in litigating 2500 miles from home --- that could substantially affect both the timing and the ultimate likelihood of any such order.
Nor is it inconsequential that the Hawaii decree would be on the ground that the marriage has been "irretrievably broken," whereas the order summarily entered in American Samoa brands Mrs. Wray as habitually cruel and a deserter.6 Even if this were the only point of genuine dispute between *48the parties, Rule 60(b) would authorize relief and the circumstances of this case would convince us that justice requires it.
In any case, Mr. Wray’s actions convince us that he agrees with Mrs. Wray’s assertion that it would be substantially to her disadvantage to shift jurisdiction of all remaining issues to Samoa. Chief Justice Gardner’s order staying the Samoa proceedings was based on his conclusion that it would be contrary to "the ends of justice and fairness" to put her at such a disadvantage. That order was made after full briefing and argument by counsel for both parties. It was summarily vacated on Mr. Wray’s explicit and unchallenged representation that Mrs. Wray had unreasonably delayed the Hawaii proceedings. We have concluded, on the basis of evidence unknown to the judge and to respondent’s counsel at the time, that this representation was false and that Justice Gardner’s decision that Hawaii was the fairest and most convenient forum should therefore not have been disturbed. If we were otherwise correct in this judgment, it is utterly irrelevant that each party wishes somehow and somewhere to be divorced.
The principal purpose and effect of Mr. Wray’s motion in the High Court was to divest his wife of the right to proceed in Hawaii. This right is important and potentially fruitful: both parties are obviously convinced that its exercise is likely to result in the ultimate placement of dollars in the pocket of one party rather than the other. A proceeding that divests such a right without notice or the opportunity to be heard cannot be insulated from review by invocation of a rule designed only to prevent relitigation of proceedings which, although tainted, have not worked any real disadvantage on the losing party.
III. The Status of the Hawaii Proceeding
After the hearing on this Motion to Reconsider, Mr. Wray submitted an affidavit to the effect that some of the delay in the Hawaii proceeding has been caused not by himself but by Mrs. Wray. The affidavit alleges that since June of 1986 (the end of the period of "at least three weeks" that the judge gave Mr. Wray to find a new lawyer) Mrs. 'Wray has been free to press for a conclusion of the Hawaii action and has not done so.
*49Mrs. Wray does nob disagree with this allegation, but says she was under the impression that both parties were waiting for the conclusion of Chapter 11 bankruptcy (reorganization) proceedings involving South Pacific Island Airways, Inc. (SPIA), a Corporation founded by Mr.. Wray which she characterizes as "the parties’ principal marital asset." She attests that "Mr. Wray has never indicated to her that he would not comply with the agreement [i.e., the Hawaii divorce settlement]; instead he has consistently claimed that he does not currently have any. money with which to do so." She further attests that she believes the SPIA proceedings "are approaching a final disposition," and that she "was willing to wait until SPIA’s financial situation was resolved before moving to enforce the agreement," since Mr. Wray may "then have the funds necessary to implement" this agreement.
Mrs. Wray’s affidavit and that of her Hawaii attorney establish that she has not been guilty of unreasonable delay. To begin with, there is á big difference between the eight months (from June 1986 until February 1987) during which she actually failed tó act and the five years alleged by counsel for Mr. Wray or the three years cited by Justice Murphy. The record still reflects that most of the delay since 1984 was either unavoidable or brought about by Mr. Wray. Moreover, Mrs. Wray convincingly asserts that Mr. Wray’s actions in the course of the Hawaii proceedings had led her to believe he was in no hurry.7 As Mr. Wray himself points out, his recuperation from the accident he suffered in 1984 is not yet complete. With regard to the relationship between the SPIA proceedings and the Wrays’ divorce, it is quite plausible that Mrs. Wray saw no point in moving for a final order (which would have brought to a head not only the $500,000 property settlement to which Mr. Wray *50seems to have agreed but also the many thousands of dollars in overdue alimony and child support which he seems not to have paid) at a time when Mr. Wray would have been unable to comply with it. Nor is it unreasonable, in the context of all the circumstances, for her to be reluctant to move for a final order at a time when the "principal marital asset” is temporarily worth far less on paper than it has been during most of the marriage and than it might be a few months from now, when "she has been informed and therefore believes that Mr. Wray may receive a substantial cash settlement for his interest and continued participation in managing SPIA.“8
Finally, even if the duration and circumstances of Mrs. Wray’s inaction were sufficient to give us doubts about whether Justice Gardner’s order should have been lifted, such doubt should be resolved against the finality of the summary and one-sided process --- characterized by Justice Murphy as "in the nature of a default proceeding" --- that purported to dispose of these complex questions. See Klapprott v. United States, 335 U.S. 601 (1948) (amendment of Rule 60(b) in 1948, providing that courts can grant relief not only for the reasons specifically listed but also for any other reason justifying relief, "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice"); Tolson v. Hodge, note 5 supra. 411 F.2d at 130 ("It has been held in an extensive line of decisions that [Rule 60(b) is] to be liberally construed in order to provide relief from the onerous consequences of defaults and default judgments."); Tozer v. Charles A. Krause *51Milling Co., 189 F.2d 242, 245 (1951) ("Any. doubt should be resolved in favor of the petition to set aside the judgment so that cases may be decided on their merits." That a trial court applied “a standard of strictness rather than one of liberality in concluding that justice did not require that the judgment be set aside" compelled reversal.)
Conclusions
To reiterate, we find:
(1) The filing of an ex parte motion to vacate a stay in a matter that had been dormant for three years and to proceed to immediate judgment against the respondent, when petitioner (a) had talked with respondent two days before and had said nothing to her of his intention to make such a motion, (b) knew that petitioner would not be reachable by her attorney for about a month, and (c) did nothing to correct the judge’s impression that counsel would be able to contact the petitioner within the ten-day period for the filing of a motion for new trial, constituted unfair surprise within the meaning of Rule 60(b).
(3)The false and misleading representations made by Mr. Wray and his counsel to the effect that Mrs. Wray had unreasonably delayed the Hawaii proceedings were misrepresentation within the meaning of Rule 60(b).
(3) The evidence now before the court, unavailable to counsel for Mrs. Wray and to the judge at the time of the summary proceeding in February, concerning the actual conduct and status of the Hawaii proceedings constitutes newly discovered evidence within the meaning of Rule 60(b).
(4) Even if the above circumstances did not establish other grounds for relief under Rule 60(b), they would establish that Mrs. Wray’s failure to file a motion for new trial within ten days after the date of the divorce decree was excusable neglect within the meaning of the Rule.
(5) Mrs. Wray has asserted defenses to the allegations of habitual cruelty and desertion which, if proved upon retrial, would defeat the American Samoa divorce action.
*52(6) Even if there were no dispute between the parties on the grounds alleged in the divorce petition, the question of the fairest and most convenient forum for the divorce proceeding is inextricably intertwined with matters of substance on which the parties do disagree. There is a sufficient likelihood that the summary American Samoa proceeding effected a real change in the situation of the parties that it should be vacated to allow for plenary consideration of all matters in dispute between the parties (including the threshold question of the most convenient forum) after notice and an opportunity to be heard.
The setting aside of the divorce decree leaves both .parties exactly as they were on the morning of February 9, 1987. Either party is free to move at any time for an immediate conclusion of the Hawaii proceedings or, with notice to the other party and arguments sufficient to convince the Court that Hawaii is no longer the fairest and most convenient fox'um, for a reopening of the American Samoa proceedings.
The motion is denied.
Petitioner’s counsel did not even allude to the grounds for divorce in his initial direct examination. At the conclusion of this examination respondent’s counsel moved to dismiss, pointing out that the grounds for divorce had not been established. The following exchange ensued:
MR. TULAFONO (counsel for petitioner): Well, Your Honor, if he hasn’t cross-examined yet, I would like then to ask the Court to allow me to ask just a couple more questions of Mr. Wray just to repeat what is in his verified *38petition?
THE COURT: All right, go ahead.
MR. TULAFONO: Q. Mr. Wray, you’ve stated during the course of the marriage Mrs. Wray has lack of interest [in the] desire[s] of petitioner] and has habitual cruelty towards yourself causing extreme and physical anguish, is that correct?
A. That’s correct.
Q. And that Mrs. Wray has deserted you since July 19 of 1982, is that correct?
A. That would be correct.
Q. And then in following with that you have since lived separately as you’ve previously testified?
A. Yes, she wanted to go off on her own in July 1982. She summarily left the house leaving me with the kids for the better part of the month and the kids went back and forth and up to then through March of 1983 she begged me to leave the house because she wanted to have a complete mind to pursue her own career and finally in March of ’83 it got to be impossible for me to remain in the same house.
THE COURT: Gentlemen, I realize that the statute of American .Samoa [provides for] divorces on the bases of fault. I think fault has been established in this case. . . .
We recount the reason for our delay in hearing the Rule 60(b) motion in response to Mr. Wray’s contention, made in connection with a motion filed May 28, 1987, that until the previous week he had had no .reason to suspect that the February 10 decree might not be final, and that the sudden and shocking discovery that he was not really divorced was a source of acute mental anguish.
In fact, a copy of Mrs. Wray’s motion to set aside the divorce decree was served on Mr. Wray’s counsel in early March. On March 13, *41upon the first request for a continuance by Mr. Wray’s counsel, this court took the unusual step of issuing a written opinion on a motion for a continuance. We granted the continuance but made it clear that the motion to set aside the divorce decree was receiving "active and serious consideration." This was done so "that nobody in Hawaii would be misled about the status of the American "Samoa proceedings. That Mr. Wray apparently did not learn of the motion until two months later wa“s due to difficulties of communication between him and his lawyer. We recount this procedural history not to criticize Mr. Wray or his lawyer but to make■ it clear that the Buie 60(b) proceedings have been conducted with scrupulous regard for the rights of both parties.
. We do now decide, on the basis of the numerous affidavits and exhibits submitted by both parties, that the following false or misleading statements constituted misrepresentations:
(a) Petitioner’s representation in his ex parte motion to vacate the stay order that "the action in Hawaii has been pending for about five (5) years."
(b) The representation in the same motion that "Paulette Wray has failed to prosecute that action with diligence."
(c) Mr. Wray’s testimony at the February 10 hearing that he could "recall no particular request" by Mrs. Wray for a "particular property division or distribution." As the exhibits and affidavits make clear, she had requested a detailed settlement including $500,000 in cash and Mr. Wray’s attorney had communicated his client’s agreement to this *42settlement. This misrepresentation was material because a truthful answer might have brought out important facts about the actual status of the Hawaii proceedings, thereby leading the court to conclude that Mrs. Wray had in fact pursued her action with diligence.
(d) Mr. Wray’s testimony that "for the past year and a half" he had given Mrs. Wray no- funds and that "she has not asked for any." Although perhaps not technically untrue, this statement was highly misleading in that it ignored the continuing effect of a court order obtained by Mrs. Wray in September 1985 (almost exactly a year and a half earlier) requiring Mr. Wray to pay support arrearages. Again, a less misleading answer might have called attention to the diligence with which Mrs. Wray has pursued the Hawaii action.
We make no finding that any of these statements constituted "fraud"; at least some of them may have been honestly believed by Mr. Wray and/or his lawyer, or may have been within the scope of an attorney’s zealous representation of his client. In specifying "fraud, misrepresentation, or other misconduct" ¿ts bases for relief from a judgment, ‘however, Rule 60(b)’ clearly authorizes such relief on the basis of non-fraudulent misrepresentations when justice so requires.
. Indeed, in rejecting the motion for a ten-day continuance Justice Murphy relied heavily on his belief that Mrs. Wray would be able to file a motion for a new trial within ten days, making any arguments she would have made if she had received notice of the trial. Reasonable people can differ over the extent to which the possibility of a motion for new trial mitigates the unfairness of holding a trial without any notice whatever to the defendant. Justice Murphy’s observation, however, underscores the injustice of allowing the February 10 decree to remain final when Mrs. Wray in fact had no reasonable opportunity to file a motion for new trial within ten days.
See, e.g.. Tolson v. Hodge, 411 F.2d 123 (4th Cir. 1969) (allegation in party’s pleading that "the sole proximate cause of the accident was defendant’s decedent’s negligence" met meritorious defense criterion); Feliciano v. Reliant Tooling Co., 691 F.2d 613 (3d Cir. 1982) (affirmation by lawyer for insurance company that the law supported his client’s contention that its policy did not cover the plaintiff’s injury was sufficient to meet meritorious defense criterion on Rule 60(b) motion); Keegel v. Key West & Carribean Trading Co., 627 F.2d 372, 374 (D.C. Cir. 1980) (the meritorious defense criterion is met by "broad and conclusory" allegations so long as they "contain 'even a hint of a suggestion’ which, proven at trial, would constitute a complete defense").
At the February 10 hearing, after Mr. Wray’s brief testimony concerning his wife’s alleged desertion and habitual cruelty and Justice’s Murphy’s finding that fault had been proven, Mrs. Wray’s attorney stated that "the *46grounds have been established as sufficient to my needs." If, as petitioner suggests, this should be construed as a judicial admission, it was clearly an admission that Mrs. Wray had not authorized her attorney to make and would not have authorized him to make if she had been given an opportunity to discuss the case with him prior to the hearing. It was therefore not effective as a waiver of her right to deny that she was habitually cruel or had deserted Mr. Wray. See In re Gsand, 153 F.2d 1001 (3d Cir. 1946), and authorities cited therein.
The statutes of American Samoa do not provide for divorce on the ground of "irretrievable breakdown." Unlike the statutes of Hawaii and most other states, the territorial statutes provide only for "fault-based" divorce unless the parties have been living separately for more than five years. See A.S.C.A. S§ 42.0201-08; Lea’e v. Lea’e, 3 A.S.R.2d 51 (1986). The territorial Senate recently debated and emphatically rejected a bill (submitted by the Governor at the suggestion of the author of the present opinion) that would have allowed "no-fault" divorce after only two years of separation. Petitioner’s assertion that there is no difference "on the merits" between the "habitual cruelty and desertion" divorce he seeks here and the "irretrievable breakdown" divorce respondent seeks in Hawaii amounts to a contention- that there is no difference between the law the Fono enacted and the law it rejected. Even if the court were otherwise disposed to accept the argument that "since both parties want a divorce, what’s the big deal?" our responsibility to enforce the statutory law of American Samoa precludes us from so doing.
Mr. Wray could easily have disabused his wife of this notion, but did not even arguably do so in time for her to have taken any action in the Hawaii proceedings before he moved to lift the stay in Samoa. On February 7, the day before Mrs. Wray left for Europe and Mr. Wray for Samoa, he mentioned the desirability of concluding a divorce in order that they could become "friends” once again. He proposed, however, no particular terms or timetable and did not mention the possibility of reopening the Samoa proceedings.
We express no opinion on the merits of the substantive questions lurking behind the parties’ positions on procedural matters. We cannot competently decide, on the state of the present record, who really owns the stock in SPIA or whether Mr. Wray should have signed the agreement to which his attorney agreed in 1984. If these matters are to be resolved in this court it should be at the conclusion of a trial with full ' briefing and argument. We merely conclude that in the context of the whole history of these proceedings Mrs. Wray’s inaction for a few months during 1986, even if it was partly motivated by considerations of strategy, does not constitute unreasonable delay. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485596/ | Announcement from the Bench by
REES, C.J.:
We are here to announce our judgment at this time, which is, there will be judgment for the Plaintiffs in the amount of $22,000.00. Now we’ll also announce our reasons from the bench and if either side wants to provide anything in writing on some of the figures, they may be subject to correction. We’re simply going to give you our best calculations at this time. Dealing with the issues one by one:
First of all, the Government asserts that ASPA is simply not liable for this sort of thing. There is a provision in the Administrative Code which if it were within the power of the ASPA Board of Directors would absolve ASPA from virtually all of the liability they could ever have had. We think that’s inconsistent first with the explicit statutory provision that says that ASPA can sue and be sued, and second with the general rule that provisions that tend to absolve the person who makes them from liability for his own negligence are to be strictly construed.
If ASPA were a private company, even if they’d gotten the Plaintiffs or the Plaintiffs’ decedent to sign something that says no matter what we do in the course of providing you electricity, no matter how negligent we are, we are exempt from any liability, except uhder the most extraordinary circumstances that provision would be invalid as contrary to public policy. So, far from the net weight of public policy being in favor of exoneration from liability for negligence, most of the jurisprudence on public policy is exactly to the contrary. I’ve got to believe that if public *55utilities could have absolved themselves so broadly and so easily we wouldn’t have any Michigan case in 1983 talking about the standards of liability for public utilities. So we don’t believe that that provision operates to exonerate ASPA at least where, as here, negligence is clear.
We don’t have to reach the question whether there is a stricter standard for liability for a public utility than the reasonable person standard, because in this case the reasonable person standard was violated. The reasonable person in the business of providing electric power to people would check his wires more than once every 35 years to see that they were not in need of replacement.
The tree trimming issue is a little more difficult, in light of the testimony in this case about how difficult it is to get on people’s lands and trim trees. We think there was a duty at least to ask permission. If permission had been denied by the communal land owner, obviously we would have a much different situation. But in light of the industry standard (as proved by the manual that everyone seems to agree was a fair statement of industry standards) tree trimming apparently is a normal incident of maintaining power lines. While there might be special problems in American Samoa, none of the judges think that that justifies the provider in throwing up his hands and simply saying, "Well, nothing can be done." There was a duty to make some effort.
Again, it’s not necessary even to reach the tree trimming issue because whether or not they should have trimmed the tree, they should have replaced the wire and the bare wire by itself would have been enough to cause the accident. So at least there was clear negligence in not replacing that wire.
The deceased, however, was obviously contributor!ly negligent. We believe that it was clearly negligent for ASPA not to check the wires knowing that insulation can become frayed and that when these things are close to people’s houses they can cause electrocution. While we also think that ASPA was under some duty to recognize that people do climb trees, certainly the decedent was in a position to know (at least once he had the idea that there might be some electrical current running through the tree) not to be up there. He was of sufficient age and discretion to realize that by going up that tree with a metal pole he was taking *56a great risk. Our view is that each of the parties’ negligence was so clear that although it’s hard to come up with any precise standard, we will attribute half of the negligence that caused' this accident to ASPA and half to decedent.
Now, as far as the calculation of damages is concerned, the hardest thing is to calculate future income and how much of that future income would have been given to the parents. Obviously it’s very speculative that he would have been a plumber or that he would have been something else. He was obviously a bright boy who was likely to do something with his life, yet at some point how much of that money would have been given to his parents is hard to say. However, I’ve discussed it with the Samoan judges who have more experience than I do in evaluating what is customary here and it’s pretty clear that the net financial benefit that his parents derived from him was about $1,000.00 per year. We don’t know whether he would become a brain surgeon. We wouldn’t know if he would have died soon in another way. The likeliest thing is to assume that that rate would have continued, that $1,000.00 or whatever the real dollar equivalent of $1,000.00 was for the rest of his life and his parents’ lives would have continued to be the financial benefit they derived from him. Now a lot of things could have happened. He could have gotten married and moved away from home and begotten several children, in which case the amount might have gone down or the amount might have gone up. The Samoan judges are comfortable as I am with saying that $1,000.00 a year is about right for the amount that the parents can expect a child to give to them here in this territory. So we’re going to say that it’s $1,000.00.
Then there is a question of how long. Obviously it’s not the decedent’s life expectancy that matters because the parents are older than he was. There was no specific evidence of his parents’ ages, but both the appearance of his father and the usual custom in such things leads us to say they are between 20 and 30 years older than he is. The life expectancy of a woman is slightly more than the life of a man which would be 71 years, and the parents can expect to have received that money from him for the rest of their lifetimes, which is to say 20-30 years. So we will say 25 years and we will say that $25,000.00 is the financial loss that the parents suffered; however, it’s more complicated than that because you’ve got *57to figure out the future discounted value of $25,000.00.
I have checked A.L.R. Proof of Facts, which I thought would be good for something, which doesn’t even turn out to be good for this; because all it tells is a whole lot of different rules about discounts depending on interest and inflation rates and depending on things like that. The figure that seems intuitively correct to me --- keeping in mind the facts that $1,000.00 isn’t going to be worth $1,000.00 25 years from now and that it’s not as simple as how long it takes the money to reach a certain amount at a specified interest rate--assuming an interest rate of six percent, which is what there is now, and assuming inflation of about what there is now, our best estimate is that the present discounted value of $25,000.00 or its real dollar equivalent in the future years is about $16,000.00. So we will award $16,000.00.
Obviously, if either party has statistics suggesting this calculation is wrong he can move for reconsideration or new trial and we’ll be more than ready to entertain that sort of evidence. Since there wasn’t any evidence, we’re going to make the estimate that it’s $16,000.00.
None of the other items are very easy either. Probably the most important thing in terms of. the parents’ real loss isn’t the financial loss that they would suffer. It’s the loss of their son’s moral and emotional support and companionship. That is an element of our award and the estimated amount is $20,000.00. It’s not as high as in the Tedrow case or a lot of cases in the States, but it’s higher than some cases in American Samoa and it’s our best estimate.
The next item is the funeral. We’ve had a complicated discussion about the extent to which fa’asamoa obligations should be considered in connection with these kinds of awards, but in light of the obligation that a wronged party has to minimize damages, we simply don’t feel comfortable with charging ASPA for sixty kegs of beef. It’s well-known that in Samoan culture whatever you give is supposed to come back to you sooner or later somehow. Depending on where you are in the scale of society, you either do a little worse or a little better by the end of the year in all the fa’alavelaves, you going to other people’s and others coming to you. So it’s hard to calculate what the net cost of a fa’alavelave is. We think *58that with the value of the casket and the necessity of preparing a body and even (aside from the giving to other people) the aspect of providing some accommodation for people at the funeral, $3,000.00 is a fair award for the funeral. Therefore we will award $3,000.00 as funeral expenses.
Now finally there is the claim for decedent’s pain and suffering. Contrary to the position taken by the Government in this case, the Court believes that A.S.C.A. §§ 43.5001 and 5002 merely state the rule that prevails in most jurisdictions: that there are two separate kinds of actions. One of them is the wrongful death action, which consist of the damages.that are suffered by other people when somebody dies. The other is the survival action, which consists of whatever he would have been able to recover. The representatives of the estate can sue for him. I’ve read § 43.5002 during the break. We think the decedent could have sued, if he had lived, for the pain and suffering that he suffered; therefore his successors in interest can sue, whoever they are. There is an allegation in the complaint that the parents are the representatives of his estate; that allegation is to be construed liberally, so we will award this item of damages to the parents in their capacity as representatives of the estate. This means that all probate rules have got to be complied with. We will award damages for pain and suffering. Again, it’s terribly difficult, but in light of the damages that are usually awarded, this was a painful death but it was a painful death in which the period of consciousness lasted for 30 seconds. It wasn’t as painful as in some kinds of death for which higher awards have been made. So we will award $5,000.00 as pain and suffering in the survival action.
Since we’ve awarded the funeral expenses not to his estate, but to the parents who paid them, the only element in the survival action is $5,000.00 for his pain and suffering.
Therefore the total is as follows: $16,000 for future income that the parents have lost; $20,000 for the loss of support, companionship, and all of those non-pecuniary elements of the wrongful death action; $3,000 for funeral expenses; and $5,000 for pain and suffering. That comes up to $44,000 divided by two which is $22,000.
Now actually $2500 of that $22,000 is going to the estate, to the parents in their capacity as representatives. The other $19,500.00 is to the parents in their own capacity. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485597/ | On Motion for Preliminary Injunction:
This matter came on for hearing upon plaintiff’s application for a preliminary injunction.
The relevant factual background to the application is as follows. Plaintiff seeks to rebuild a house on certain communal land "Suasua" of the Nua family of Ta’u, Manu’a. The structure that had existed on the lands was destroyed by the hurricane that occurred earlier this year. Plaintiff consulted defendant Nua, the senior matai of the Nua family, who refused to give his consent to the rebuilding. It is the matai’s position that *60defendant, who is said to have a number of other homes elsewhere in Ta’u, had abandoned the preexisting structure sought to be rebuilt many years ago. The matai has intentions of building a support facility to the family’s guest house on the location in question.
On the above, plaintiff seeks a preliminary injunction to enjoin the matai and family from interfering with his (plaintiff’s) intended building plans.
The Court is of the unanimous opinion that the interlocutory order sought is inappropriate under the circumstances. Such an order would serve to preempt what is properly the matai’s decision making sphere, prior to the opportunity to hear this matter on the merits, and in effect to facilitate positively a change in the status quo through judicial order.
Further, under A.S.C.A. § 43.1301 (j), plaintiff is required to demonstrate great or irreparable injury. No such showing has been made, whereas plaintiff has admitted on the stand that he is not put out of living quarters without the intended rebuilding.
The Court will accept, however, the suggestion of defendant to maintain the status quo by enjoining either party’s use of the location in question for building proposes, pending final disposition hereof.
Pursuant to A.S.C.A. § 43.0303(a)(3), an order will issue accordingly.
It is hereby Ordered that both parties are enjoined, pending further order of Court, from building any structure on that portion of the communal lands “Suasua" that was the location of a structure previously occupied by plaintiff Niumata Mailo and destroyed by Hurricane Tusi in January, 1987. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485598/ | Plaintiff, Itai Sataua, while a pedestrian on the Fagasa highway, was struck from the rear by a vehicle and thereby suffered injury. Plaintiff sues the owner of the vehicle, the driver, and Continental Insurance Co., which insured the vehicle. Service of process was not achieved on the driver and no appearance has been made on his behalf. Trial commenced on July 15, 1987, and the hearing was continued over to July 21, 1987, owing to the unavailability of witness Dr. Tuato’o, who was involved with emergency surgery. On the latter date, Dr. Tuato’o was again unable to attend court because of his medical duties and since the area of his testimony would be concerned only with the question of damages, the parties, rather than further defer the proceedings, stipulated to bifurcate trial and submit the issue of liability to the Court.
FACTUAL BACKGROUND
The registered owner of the vehicle is defendant Mrs. Esterita Himphill. She is also the named insured on a compulsory third party liability insurance policy issued by Continental Insurance Co., in accordance with the provisions of the Compulsory Insurance Act, A.S.C.A. § 22.2001 et. seq.
While Mrs. Himphill was away on vacation, her husband had arranged for a certain garage in Fagasa to do body repair work to the vehicle. On an appointed day, Mr. Himphill had the vehicle picked up and taken to the garage for the requested repairs. He had also arranged for the vehicle to be returned to his home upon completion of repairs and in the meanwhile, he departed to Western Samoa for a few days.
Upon Mr. Himphill’s return to the territory, he learned that the vehicle, while still in possession of the garage, was wrecked in an accident. The evidence showed that one Tanielu Satiu had taken the vehicle, in the course of which a collision arose involving the plaintiff. It was not clear whether Tanielu was an employee of the garage or not, however he lived with the garage owner and thereby managed access to the car keys. He had taken the vehicle for his own purposes and while returning to Fagasa on a Saturday evening in *63an intoxicated state, he ran the car to one side of the road, striking plaintiff, and then attempted to race off again but drove to the opposite side of the highway and ran the vehicle against a breadfruit tree.
It was clear on the testimony of eyewitnesses that Tanielu, at the time, was operating the vehicle in a negligent manner, and as a proximate result of that negligence, plaintiff suffered multiple injuries. The question before us, though, is whether the vehicle owner can be held liable under the circumstances, as well as her insurance carrier, which is properly joined pursuant to the right of direct action provision of the Compulsory Insurance Act, A.S.C.A. § 22.2018.
LIABILITY
Plaintiff urges alternative foundations for liability: firstly, on the basis of "consent" under the Compulsory Insurance Act; and secondly, on the basis of a “principal/agent" relationship between Himphill and the garage owner. On the latter alternative, plaintiff further urges the Court to be mindful of "the generally expansive interpretation of vicarious liability in Tung v. Ah Sam, 4 A.S.R. 764 (1971)."
Defendant, on the other hand, contests the existence of a "principal/agent" relationship on the reasoning that the garage owner is an "independent contractor" whose injurious acts may not be imputed to the vehicle owner. Further, defendant contends that the facts do not show the existence of "consent" necessary to sustain statutory liability.
For purposes herein, the acts of Mr. Himphill in garaging the vehicle may be attributed to Mrs. Himphill, as the registered vehicle owner, under an agency foundation. Mr. Himphill acted at all relevant times in furtherance of the vehicle owner’s purpose and interest.1
*64We ' consider plaintiff’s contentions in the reverse order presented to us.
I. Agency
As stated above, plaintiff urges consideration of an "expansive" interpretation of vicarious liability said to be exemplified in Tung v. Ah Sam. supra. The Court is unclear with this reference. In Tung v. Ah Sam, liability of the taxi owner and his insurer for the tortious conduct of the driver employee were founded on: the familiar common law master/servant relationship and standards imposing a high degree of care on common carriers towards the safety of their passengers; and statutory .liability for the injurious conduct of a driver operating a vehicle with "express or implied" consent. We recognize "expansive" legislative treatment to accommodate the impact of the automobile on society,2 as well as liberal construction of the Compulsory Insurance Act,3 but *65beyond that the precedents of this Court have gone no further in extending vicarious liability.
The agency situation advanced by plaintiff is that the vehicle repairman, Ieremia Seigafo, is an employee of the Himphills, and therefore the latter are vicariously liable for the wrongful acts of "Ieremia and his people." In answer to the defendant’s position that Ieremia is an "independent contractor," plaintiff argues that the facts do not establish that Ieremia is engaged in the activity of vehicle repairs, and that no evidence has been presented that Ieremia has a licensed business establishment, which would evidence independence of control.
We are unable to agree with plaintiff, and we draw different conclusions from the evidence. Mr. Himphill testified that the vehicle was delivered to a garage in Fagasa for body work, and while the testimony did not enlighten us one way or the other on the repairman’s background, Ieremia is not any less an independent contractor merely because of the possibility that body work may not be his regular trade and that he may not be licensed. In Yearwood v. Peabody, 164 S.E. 901 (Ga. App. 1932), a casual repairman, who was neither a mechanic by trade nor generally engaged in the business of repairing automobiles, was nonetheless found to be an independent contractor. The Court so held since the labor or work involved was independent of the vehicle owner. See also De Loach v. Hicks, 177 S.E. 822 (Ga. App 1934). It is therefore relevant to look for control or absence of control by the vehicle owner as opposed to the background of the repairman in determining their relationship for purposes of liability questions.
At common law, it is recognized that a garageman who has possession of a vehicle for the purpose of repairing it, free from direction or *66control by the owner, becomes the bailee of the vehicle as “independent contractor" and the vehicle owner therefore is not liable for injury sustained as a result of the negligent operation of the vehicle. 60A C.J.S. Motor Vehicles §§ 438, 1026 et. seq.
On the facts of the present case, there was nothing in the evidence to point to anything but an independent contractor relationship. There were no directives by Mr. Himphill to the garage to evidence control of any sort over the manner in which the repair work was to be executed. In fact, after the vehicle was turned over, Mr. Himphill went to Western Samoa for a few days, anticipating the repairs to be complete upon his return. He was merely interested in the result of the work and not how leremia undertook it. In these circumstances we conclude against plaintiff’s agency alternative, finding a "respondeat superior" theory of liability to be inapplicable on the facts.
II. Consent
We go on then to consider whether there is statutory liability upon the basis of "express or implied consent". A.S.C.A. § 22.2003.
The facts point to consent inasmuch as Mr. Himphill had arranged for the vehicle to be picked up for repairs and then for redelivery to him, subsequent to repairs. But then can it be said of this manifestation of express consent --- the vehicle to be driven to and from the garage--that unlimited permission therefore follows during the interim possession of the garage owner?
Plaintiff argues that it may so be said. The submission is that A.S.C.A. § 22.2003 does not distinguish between consent for a specific use on the roadway and general consent. To permit such a distinction would defeat the purposes of the statute by allowing owners the convenience of avoiding liability by imposing conditions on any grant of permission.
The argument is appealing, as it raises subjectivity on the i>art of defendants, and hence the statute is susceptible to being rendered nugatory. The courts have recognized that an owner cannot restrict the "manner" in which the vehicle is being operated in order to escape statutory liability. For example in Henrieta v. Evans, 75 P.2d 1051 (Cal. 1938), the Court said: ". .. . if *67the owner permitted the use of the car . . . though he gave specific instructions as to the manner of operation, the speed and care in' driving, etc., it would not be reasonable to hold that the use was without permission if any of these detailed instructions were violated, for in such case the liability of the owner could in almost every case be defeated by some showing of violation of authority." 75 P.2d at 1053 (citations omitted).
On the other hand, this is not to say that "consent" may not be limited. The courts have also recognized that consent, as envisioned by the automobile consent enactments, may be limited in scope as to time, place, and purpose. Union Trust Co. v. American Commercial Car Co., 189 N.W. 23 (Mich. 1922); Heavilin v. Wendell, 241 N.W. 654 (Iowa 1938); Henrieta v. Evans, supra; Krausnick v. Haegg Roofing Co., 20 N.W.2d 432 (Iowa 1945).
In the light of the above we are unable to conclude on the evidence that Tanielu’s use of the vehicle for a Saturday night excursion came within the purview of Mr. Himphill’s expressed consent for the vehicle to be driven to and from the garage. The evidence did not show any connection between Tanielu’s driving of the vehicle and any referable purpose for which the vehicle was turned over to the garage by Mr. Himphill.
We next consider implied consent. Unlike express consent which is affirmative in character and directly given, the cases have spoken of "implied consent" under the statute with respect to the omnibus clause of a liability policy as involving "inference or circumstances arising from a course of conduct or relationship between the parties in which there is mutual acquiesence or lack of objection under circumstances signifying assent." Allstate Ins. Co. v. State Farm Mutual Automobile Ins. Co., 195 S.E.2d 711, 713 (S. Car. 1973). It "indicates a sufferance of use or a passive permission deduced from failure to object to a known past, present, or intended future use under circumstances where the use should be anticipated." Bradford v. Sargent, 27 P.2d 93, 96 (Ca. 1934).
In the. present matter, the evidence showed no other relationship or course of conduct between the Himphills and Ieremia, save this instance of garaging the vehicle for body work. In such a context, the courts have found "implied consent" where the nature of the work requested is such as *68to suggest or indicate to a reasonably prudent person that the car must be or will be driven to accomplish the work or repair. Zuckerman v. Parton, 184 N.E. 49 (N.Y. App. 1933). No such circumstances existed here. Mr. Himphill testified that the garage had no reason to test drive or otherwise use the vehicle. The repairs requested had nothing to do with mechanical work, it was for body repair and a paint job. Even if this factor could .be conceded to plaintiff and the vehicle could somehow be expected to be on the roads consequent to repairs, the Court is not able, on the facts, to infer implied consent for use of the vehicle by Tanielu for reasons entirely unrelated to why the vehicle was with the garage in the first place. To do so in the name of liberal construction and expansive interpretation would take us into the realm of the imaginative, the speculative, and indeed the legislative. The statutory criterion is "consent" and that fact must appear on the evidence in order to bring the wrongful acts of a driver within the coverage of compulsory insurance policies.'
Finally, plaintiff also suggests a theory of liability based on the owner’s relaxed control over access to the vehicle and suggests a "duty" to keep or prevent his vehicle from improper or unauthorized use. The plaintiff alludes to Minute v. Hartford Fire Insurance, CA No. 3260-75 (1976), and Te’o v. Continental Insurance, AP No. 16-84 (1985), which cases involved the factual situation of parents leaving the car keys lying around and accessible to errant children. In the Minute case, the Court found the absence of implied consent and the result is thus inapposite to plaintiff’s position. The Te’o matter is factually distinguishable, as there the evidence pointed to past conduct and a relationship which gave rise to sufficient inferences of acquiescence signifying consent. That is not the case here.
The contention, however, approaches the “special circumstances" rule applied in some states. This is a variant of the "entrustment" measure and renders an owner liable, for negligently leaving .keys in the car, to third persons injured by a thief who foreseeably steals the vehicle. See, e.g., Hoskin v. Robles, 159 Cal. Rptr. 369 (1979).
The facts here do not bear out such "special circumstances" and we leave the applicability of such rule to another day.
*69CONCLUSION
On the foregoing, it.is the conclusion of the Court that defendants Esterita Himphill and Continental Insurance are not liable to plaintiff. As against these defendants, the matter is dismissed and accordingly, it is so ORDERED.
The vehicle was purchased by both Mr. & Mrs. Himphill for their mutual use. For practical purposes they jointly held the car, however we need not decide in this matter whether or not Mr. Himphill was an "owner" for purposes of the Compulsory Insurance Statute.
It has been said the liability under 'automobile consent enactments’ is purely the result, of "legislative fiat in cases where no agency, master and servant or other relationship existed through which the negligence of the driver could be imputed to the owner." Lind v. Eddy, 6 N.W.2d 427, 431 (Iowa 1942). In effect an arbitrary statutory agency is created, which results in vicarious liability. Prosser & Keeton On Torts § 7.3, p. 527 (5th ed. 1984).
Tung v. Ah Sam, supra. Unrelated to statute, some Courts have enlarged on the doctrine of "negligent entrustment". (Liability here is primary and not imputed.) Notably, the Courts of Florida have categorized automobiles as "dangerous instrumentalities" for which the owner is held responsible when operated negligently by another. The "dangerous instrumentality" rule is purely policy in origin. In Foremost Dairies v. Godman, 26 So. 2d 773 (Fla. 1946), the Supreme Court of Florida reasoned that while an owner’s entrustment may not in itself be wrongful, he is nonetheless held liable ", to insure his neighbor against any consequent harm not due to some cause beyond human foresight." Id. at 774. The rule has not been followed in other states and remains peculiar to Florida. Prosser, p. 524; cf. *65Castillo v. Bickley, 363 So. 2d 792 (Fla. 1978), where the court held the "dangerous instrumentality" rule to be inapplicable to a garageman who is an independent contractor. The policy behind the Florida rule is "financial responsibility," and the Fono has made such a policy statement with the enactment of the Compulsory Insurance Act. We need not therefore consider the desirability of the Florida policy. See Foma’i v. Samana, 4 A.S.R.2d 102 (1987). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485599/ | On motion for reconsideration:
Plaintiff argues that we erred in holding the automatic stay provision of the federal Bankruptcy Act, 11 Ü.S.C. § 362(a), binding on the High Court of American Samoa.
Plaintiff, Southwest Marine, is an American Samoa corporation. Defendant S & S Contracting is a foreign corporation doing business in American Samoa. In January of this year Southwest Marine sued S & S for damages and other relief in connection with an alleged breach of contract. S & 5 did not answer and Southwest Marine moved for a default judgment. On March 18, just before the hearing on that motion, the Clerk of the High Court received a document from a Honolulu attorney for S 6 S. It was entitled, in pertinent part, "NOTICE OF FILING. OF VOLUNTARY PETITION UNDER CHAPTER 11 AND OPERATION OF STAY."
The default hearing was continued at the request of counsel for Southwest Marine. At the continuation of the hearing the Court expressed the opinion that the federal bankruptcy statute required a stay of this proceeding, but granted a further continuance so that counsel could assemble authorities for the contrary proposition. After a complicated series of informal discussions, more or less amounting to a ruling that the stay provision does apply, Southwest Marine filed this motion for reconsideration.1
*7311 U.S.C. § 362 provides that a petition filed under Chapter 11 of the Bankruptcy Act "operates as a stay, applicable to all entities, of . . . the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor ... ." In Rainwater v. The Sea Encounter, 3 A.S.R.2d 87 (1986), we held that an action in the High Court of American Samoa is a "judicial, administrative, or other action or proceeding" within the meaning of this provision. Plaintiff urges us to overrule that decision on several grounds:
(1) that "although informal, the practice of the High Court has been to the contrary of what the court is now appearing to believe";
(2) that American Samoa is outside "the judicial jurisdiction of the United States";
(3) that other provisions of the bankruptcy laws of the United States do not extend to American Samoa; and
(4) that "to require plaintiff to go to Hawaii and adjudicate its claims against S & S is inherently unfair."
I. Stare Decisis
Before addressing plaintiff’s arguments on the merits we should consider whether we are bound either by our prior holding in The Sea Encounter, supra, in which we decided the precise question that is now before us, or by the contrary informal practice claimed by plaintiff.
According to the rule of stare decisis a • decision of this court, even a decision of the Trial Division that was not appealed, should be followed by judges deciding subsequent cases in the *74Trial Division unless there is some compelling reason not to follow it: That the judge in the later case would have decided the earlier case differently is presumably not a "compelling reason." We do not, however, feel very strongly bound by our decision in The Sea Encounter, for the following reasons: (1) the decision was made at the conclusion of a summary proceeding without the benefit of full briefing and argument by counsel; (2) the risk that the reflection and deliberation the earlier judge brought to bear on the issue will be casually disregarded is quite low, since the Justice who decided The Sea Encounter is also the author of the present opinion; (3) counsel argues that The Sea Encounter itself departed from precedent without explanation or analysis; and (4) in cases -involving statutory or constitutional interpretation the court’s primary responsibility is to apply the enacted law faithfully; the duty to follow judicial precedent is accordingly weaker than in common law cases in which judge-made rules are themselves "the law."
For the same reasons, we do not regard the "informal practice of the High Court" prior to The Sea Encounter to be conclusive of this case. Indeed, we are still unsure about whether there was any such practice. As nearly as the Court can determine, it consisted primarily of one unreported case in which attorneys for the debtor argued that the bankruptcy stay did apply here, attorneys for the creditor argued that it did not, and Chief Justice Gardner avoided reaching the issue by granting a stay on the ground of forum non conveniens. Since the result was consistent with the proposition that the bankruptcy stay applies here and also with the proposition that it does not, it cannot be cited as authority for either proposition.
At the default hearing counsel also alluded to a case in which he himself had represented an American Samoan corporation that was the subject of Chapter 11 proceedings in Hawaii, and in which a civil action in the High Court had been allowed to proceed. Since we allowed the continuance partly in order for counsel to refresh his memory about that case, and since he does not cite it in his *75memorandum, we assume the question,was not decided in that case either.2
*76There is, of course, no case in which it is not possible to argue that stability and predictability require adherence to precedent; the aforementioned circumstances suggest, however, that the law on this point may fairly be regarded as unsettled. Moreover, the question whether a court has assumed jurisdiction it does not have is one of those which it is not so important to have settled as to have settled right. We therefore proceed to the merits of plaintiff’s arguments.
II. "The Judicial Jurisdiction of the United States
Plaintiff directs our attention to the definitional section of the Bankruptcy Act, which defines “'United States,’ when used in a geographical sense" to include "all locations where the judicial jurisdiction of the United States extends, including territories and possessions of the United States." 11 U.S.C. § 101(49). Plaintiff then states that American Samoa is outside the judicial jurisdiction of the United States.
Plaintiff does not tell us why this might be. The statute tells us that when it uses the term "United States" in a "geographical sense" it means all locations within United States judicial jurisdiction, but the latter term is itself nowhere defined. The only thing we are told about the "judicial jurisdiction of the United States" is that it ”includ[es] territories and possessions," a datum that cannot be regarded as terribly helpful to the plaintiff’s case. Yet plaintiff’s memorandum treats the assertion that American Samoa, although a "territory or possession," is outside the judicial jurisdiction of the United States as self-evident.
It is possible (although certainly not self-evident) that the cited language could denote some but not all territories and possessions. Neither the statute nor the plaintiff, however, suggests any basis on which we might conclude that American Samoa is excluded. There is, of course, no "Article III court" in this territory or in any other; territorial * courts are established by Congress pursuant to the general legislative powers granted by Article I of the Constitution and the power granted by Article IV to make rules and regulations for the territories. American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828). This argument, however, proves too much, *77for the section makes it clear that at least some territories are to be regarded as within "the judicial jurisdiction of the United States."
One might try to distinguish American Samoa from the other territories on the ground that’ it is the only territory which is not within the jurisdiction of any federal district court. (The other territories have courts which, although established pursuant to Article 1 and/or Article IV, are called "district courts" and have essentially the same jurisdiction as United States District Courts established under Article III.) The statutory definition does not, however, limit itself to places where there are federal district courts. In the absence of any such limitation there is no reason to suppose that any territory into which the writ of any court of the United States extends is without the judicial jurisdiction of the United States.
The only court physically located in this Territory is the High Court of American Samoa. The High Court was established pursuant to authority granted the President of the United States by a law of the United States.3 The commissions hanging on the walls in the chambers of the Justices purport to issue under the authority of the United States. The High Court exercises judicial power that can be divested only by an Act of Congress.4 *78We need not decide, however, whether the existence of the High Court would be sufficient to put American Samoa within the judicial jurisdiction of the United States; for it is quite clear that Article III courts can and do exercise judicial power here.
In King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975), the United States Court of Appeals for the District of Columbia Circuit exercised judicial power in the territory by means of a writ directed to the Secretary of the Interior. The court did not discount the possibility of a more direct exercise of federal judicial power, by writ of certiorari or other writ of review from the United States Supreme Court to the High Court of American Samoa. Id. at 1143-44 n.3; see U.S. Const, art. III § 2 ("The judicial power shall extend to all Cases, in Law and Equity, arising under . . . the Laws of the United States . . . .In all [such] Gases . . . the supreme court shall have appellate *79jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."); Durousseau v. United States, 10 U.S. (6 Cranch) 307 (1810) (Supreme Court may review decisions of a territorial court).5
*80There is nothing new or paradoxical about the proposition that the "judicial jurisdiction of the United States" can extend into a territory not because a federal court of first instance sits there but because a court in Washington, D.C., has power to review judicial or other decisions taken there. The Constitution leaves it up to Congress whether there are to be any federal courts at all other than the Supreme Court. U.S. Constitution art. Ill; see generally C. Wright, Handbook on the Law of Federal Courts § 1. No one argues, however, that if Congress had established no inferior tribunals the judicial jurisdiction 'of the United States would include only Washington, D.C., and not Maryland or Kansas. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).6
Jurisdiction is the right to wield power. For us to declare American Samoa to be without the judicial jurisdiction of the United States would *81entail the assertion that there is no court of the United States, including the United States Supreme Court, whose order we would be bound to obey. We do not believe this to be true.
III. The Reach of the Bankruptcy Act
Intertwined with plaintiff’s general argument that American Samoa is outside the jurisdiction of the United States is a narrower argument that the automatic stay provision of 11 U.S.C. § 362 should be construed not to apply in American Samoa because certain other provisions of the bankruptcy laws do not apply here.
Plaintiff directs our attention particularly to 11 U.S.C. § 109(a) ("[W]ho may be a debtor") which provides that only a person residing or having a domicile, a place of business, or property in "the United States” can file a bankruptcy petition. Since this provision is cited in connection with plaintiff’s assumption that American Samoa is outside the judicial jurisdiction of the United States, it does not advance the inquiry. If this section and the aforementioned definition of "the United States" were the only provisions bearing on bankruptcy' petitions in American Samoa, it would seem that residents of the Territory could file such petitions.7 Even more *82importantly, the statute neither expresses nor implies.that the places in which one must live or work in order to be a debtor are the only places in which the automatic stay applies.
Bankruptcy is generally not available to residents of American Samoa, not because of the sections cited by plaintiff but because there is generally no court in which residents may file their petitions. 28 U.S.C. § 1472 provides that such petitions must be filed in "the bankruptcy court for a district . . .in which the domicile, residence, principal place of business in the United States, or principal assets in the United States" is located. Since there is neither a bankruptcy court located here nor any provision designating American Samoa as part of any district with a bankruptcy court, there exists no court with jurisdiction to entertain a bankruptcy action when the debtor’s residence, domicile, principal place of business, and principal assets are in American Samoa.
It does not follow, however, that a bankruptcy court which has acquired jurisdiction over a debtor may not issue orders concerning the debtor’s property, and with his legal rights and obligations generally, that are binding in American Samoa. For the reasons we have given in our discussion of “the judicial jurisdiction of the United States," it is clear that Congress has the power to prescribe that an extraterritorial court has the power to issue orders that are binding in the Territory. The question, therefore, is one of legislative intent: whether Congress intended to give bankruptcy courts the power to enjoin8 actions in the High Court of *83American Samoa or, more likely, whether Congress would have so intended if it had adverted to the question. While the unavailability of a forum for entertaining bankruptcy petitions is one piece of evidence that might bear on that question, it is not the only evidence or the most important.
The best evidence of what Congress intended is what it enacted. 11 Ü.S.C. § 362 provides that a stay is "applicable to all entities" and that it precludes the commencement or continuation of "a judicial, administrative, or other action or proceeding against the debtor." The provision contains no limitations. That the stay is effective not only against proceedings in other bankruptcy courts but against all proceedings--including proceedings in state courts, which even more clearly than the High Court of American Samoa are not federal courts and have nothing to do with bankruptcy --- is made clear not only by the list of carefully circumscribed exceptions that follow the general statement that proceedings against the debtor are automatically stayed, but also by a legislative history which is even more emphatic than the language of the law itself. The report of the House Judiciary Committee accompanying 11 U.S.C. § 362(a) stated that
the scope of this paragraph is broad. All proceedings are stayed .... Proceedings in this sense encompasses civil actions as well, and all proceedings even if they are not before governmental tribunals."
H. Rep. No. 95-595 accompanying H.R. 8200, 95th Cong., 1st Sess. (1977) p. 340, reproduced in 11 U.S.C.S. at p. 25 (emphasis added). This language seems to have been designed to make it absolutely certain that no judge in any "judicial, administrative, or other proceeding" involving a bankruptcy debtor would read it as saying anything but "This Means You,"
The committee report also makes it clear why Congress wished to stop all proceedings against bankruptcy debtors as soon as the petition was filed:
The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection *84efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.
The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor’s property. . . . Bankruptcy is designed to provide an orderly liquidation procedure under which all creditors are treated equally.
Id. To imply an exception for proceedings in the High Court of American Samoa would, with respect to debtors who are subject to the jurisdiction of a bankruptcy court but who are for any reason amenable to process in American Samoa, defeat the purpose of the law we are asked to construe. It would mean that such debtors were given no "breathing spell" and that all their creditors were not treated equally.
The absence of a forum for bankruptcy actions in American Samoa may have been accidental or it may have been the result of a conscious legislative policy choice.9 In either case it is an *85insufficient reason for implying an exception to the stay of "all proceedings" involving a debtor who is the subject of a bankruptcy action in a court that does have jurisdiction.
The one case cited by plaintiff for the proposition that the bankruptcy stay does not apply in American Samoa illustrates instead the appropriateness of construing 11 U.S.C. § 362 to stay any proceedings which Congress would have the power to regulate. In re Fotochrome, Inc., 377 F. Supp. 26 (E.D.N.Y. 1974), aff'd sub nom. Fotochrome, Inc., v. Copal Co., Ltd., 477 F.2d 512 (2d Cir. 1975), held a bankruptcy stay inapplicable to an arbitration proceeding in Japan. The decision dealt primarily with the effects of two treaties requiring the United States to give binding effect to Japanese arbitral awards. Insofar as it had anything to do with the construction of 11 U.S.C. g 362, however, it held the stay provision inapplicable "outside the territorial limits of the United States" not as a matter of statutory construction but for reasons of constitutional and international law: in "extranational matters" a United States court has no power over persons and tribunals who do not have "minimum contacts" with the forum. 377 F. Supp. at 29. The bankruptcy stay provision does not apply to Japanese tribunals, in other words, because Congress has no power to make it apply to such tribunals.
*86The Fotochrome court expressly "recognize[dj .that this result might somewhat disturb the draftsmen of the Bankruptcy Act. Upon a petition for bankruptcy they would have expected the court to summon all the creditors of the bankrupt to press their claims at one time and place." Id. at 31. Since Congress has no power to make rules that bind Japanese courts, a creditor who sues an American bankrupt in Japan must be accorded an advantage over other creditors even though this is clearly contrary to the central purpose of the bankruptcy law. Since Congress does have the power to bind the High Court of American Samoa, no such advantage need be afforded a creditor who sues an American bankrupt in American Samoa. Rather, the language and purpose of the statute prevail.
IV. Fairness
The short answer to the contention that it is "inherently unfair" to "require plaintiff to go to Hawaii" is that bankruptcy is unfair. Viewed from the perspective of a creditor, the whole point of the bankruptcy .laws is to deprive one of what was formerly one’s due. The need to file papers in a distant forum is irritating, but not nearly so irritating as the strong possibility that one will not recover at all. Neither of these burdens falls uniquely on plaintiffs who live in Samoa. If S & S has any creditors in Maine or in Puerto Rico the bankruptcy law clearly requires them to litigate their claims in Hawaii alongside those of Southwest Marine, at even greater expense and inconvenience. The unfairness, if any, is built into the statute and the remedy must be legislative rather than judicial.
One could argue that it is especially unfair to force a creditor to participate in his debtor’s bankruptcy proceeding when the creditor himself would be ineligible for bankruptcy in the event he became insolvent. This unfairness may or may not be mitigated by the alternative remedies available in American Samoa; in any case, it is an insufficient reason for us to give the statute a construction that seems contrary to its language and purpose. .The st$y provision itself, however, provides that a stay may be terminated or modified "for cause" by the bankruptcy court. 11 U.S.C. § 362(d). If Southwest Marine can convince the Hawaii bankruptcy court that the equities require litigation in the High Court of American Samoa to be exempt from the stay, we will be willing and able to proceed.
*87Order
The motion for reconsideration is denied, All further proceedings are stayed.
On' June .9 counsel filed a memorandum arguing that the automatic stay provision does not apply to the High Court of American Samoa, and also moved for an expedited hearing (on June 10) on his' motion for default judgment. The motion for expedited hearing was informally denied first by the Associate Justice and then by the Chief Justice. Counsel construed the second refusal to hold an expedited hearing (which was based in part on the Chief Justice’s failure to be convinced by counsel’s memorandum that the stay *73provision does not apply) as an "order denying further proceeding on defendant’s motion for Default Judgment." He then filed this "Motion for New Trial or Reconsideration." At the hearing on the motion the Court agreed to regard the previous events as a’denial of Southwest Marine’s motion for default judgment so that this motion for reconsideration could be taken under advisement on its merits.
At oral argument on this motion for reconsideration, counsel called the Court’s attention to a very recent case in which the High Court did proceed to judgment despite informal notice of a bankruptcy petition. Development Bank v. Siofele, CA No. 10-86 (unreported case decided from the bench June 17, 1987). That case was decided on its most unusual facts: (1) A few minutes before the first scheduled hearing on a motion for default judgment, the Clerk of the High Court was notified by the defendant that he had filed for bankruptcy. (2) The Court announced this at the hearing and continued the matter indefinitely for the reasons we express in this opinion. (3) The attorney for the plaintiff subsequently learned that the defendant’s bankruptcy petition had been dismissed (it was not clear whether voluntarily or involuntarily) shortly after it was filed. (4) Another hearing was scheduled on the motion for default judgment, and notice was sent to the defendant. (5) The defendant wrote from California to request a continuance on the ground that he was studying for the bar examination. (6) The Court denied the continuance, concluding that if the defendant had not filed a frivolous or meritless bankruptcy petition he would have had plenty of time to litigate his case and then study for the bar. (7) The day before the second hearing, defendant called the judge from California and told him he had filed another bankruptcy petition "to keep this case from going to trial." The implication was that the second petition would also , be dismissed as soon as it had served its immediate purpose. The Court told the defendant, and later announced at the default hearing, that the vexatious filing of multiple frivolous actions was outside the scope of the bankruptcy laws and therefore of the automatic stay provision. The Court also relied on the fact that it had no credible evidence before it that a second petition had in fact been filed. Finally, the Court made it clear that it would regard itself as bound by any contrary order of the California bankruptcy court. The case is clearly distinguishable from this one.
48 U.S.C. § 1661(c) provides:
Until Congress shall provide for the government of such islands, all civil, judicial and military powers shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct.
See also Exec. Order No. 10264, 3 C.F.R. at 765 (delegating executive authority over American Samoa to the Secretary of the Interior); Rev. Const’n of Am. Samoa, Preamble (approval by the Secretary of the Interior of the territorial constitution); id. art. Ill § 1 (”[T]he judicial power shall be vested in the High Court of American Samoa).
See 48 U.S.C. § 1662a (section added •in 1984) (providing that the territorial constitution can be amended only by an Act of *78Congress). The territorial constitution provides that "the judicial power" in American Samoa shall be exercised by the High Court. Rev. Const’n of Am. Samoa, art. Ill 8 1, quoted in note 3 supra.
After the enactment of 8 1662a in 1984, under which the High Court exercises its "judicial power" at the pleasure of Congress rather than of the territorial legislature or the Secretary of the Interior, it would seem clear that the territory is within "the judicial jurisdiction of the United States" even without resort to the possibility of extraterritorial judicial review. But even if --- as might be inferred from King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975), discussed in the text infra --- the High Court originally had no real "judicial power" but was a mere administrative tribunal reporting to the Secretary of the Interior and reversible at his will, and even if this status has somehow survived the 1984 statute, the High Court would still seem to be bound by the bankruptcy stay provision., ' The provision expressly applies not only to "judicial proceedings" but also to "administrative proceedings" and "other proceedings." 11 U.S.C. 8 362(a). The Department of the Interior is certainly within the judicial jurisdiction of the United States, and by its terms 8 362 would apply to the administrative tribunals of the Department.
Durousseau has often been cited for its strong affirmation, in dictum, of the proposition that when Congress has not expressly granted appellate jurisdiction to the Supreme Court it should be presumed to have exercised its power to make an exception to the Court’s jurisdiction. See id., 10 U.S. (6 Cranch) at 313-14. It is important to note, however, that this observation rested on what the Court took to be the intent of the Judiciary Act of 1789, as manifested in the structure of that Act: "they have described affirmatively [the Court’s appellate] jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it." Id. at 314. The courts of American Samoa, on the other hand, were created pursuant to general power given the executive in a statute outside the parts of the United States Code dealing with the jurisdiction of courts. See authorities cited in note 3 and 4 supra. It would therefore be unrealistic to infer any intention on the part of Congress to make an implicit exception to what would otherwise be the jurisdiction of the United States Supreme Court. Indeed, there would be a certain tension between such an implied exception and the precise holding of Durousseau, which was that (despite the general presumption stated above) the appellate jurisdiction of the United States Supreme Court over the decisions of the court for the "District of Orleans" was implied although not expressed by the statute defining that court’s original jurisdiction. Id. at 317. The Court had this to say in support of its holding:
The constitution here becomes all important. The constitution and the laws must be construed together. It is to be recollected that the appellate powers of the Supreme Court are defined in the constitution, subject to such exceptions as Congress may make. Congress has not expressly made any exceptions; but they *80are implied from the intent manifested by the affirmative description of its powers. It would be repugnant to every principle of sound construction to imply an exception against the intent.
Id. at 318 (per Marshall, C.J.).
The unhelpfulness of this line of argument is compounded by the absence.of any link between § 101(49) (the section discussed above, defining "United States") and i 362 (the automatic stay provision). Although the definitional section tells us what is meant when the statute refers to the United States, the automatic stay provision does not refer to the United States. The effect of a i 362 stay is nowhere expressly limited to the United States, in a geographical sense or any other sense. As it happens, the automatic stay provision is ineffective outside the judicial jurisdiction of the United States unless the bankruptcy court acquires personal jurisdiction over the parties to the foreign proceeding; but this is because United States courts have no power to assert such jurisdiction, not because of any limitation contained in the statute. From what can be discerned from the statute itself, in other words, an automatic stay applies anywhere Congress has the power to make it apply. See Part III infra.
Counsel for plaintiff has provided the court with a copy of an order in an unreported Hawaii bankruptcy case which relies on the section providing "who may be a debtor," among other authorities, for the proposition that "the United States bankruptcy system has never been applied in American Samoa." In re Kava Bowl, Case No. 84-00083, United States Bankruptcy Court for the District of Hawaii. The court’s principal reliance, however, was on the failure of Congress to provide any forum in American Samoa for bankruptcy petitions. In any case, the Hawaii bankruptcy court was faced only with the question whether a resident of American Samoa with no substantial assets or business contacts with Hawaii could file a bankruptcy action in Hawaii. The Kava Bowl opinion did not to purport to decide the question before us; in context it is clear that when the court spoke of the "bankruptcy system" not being "applied in American Samoa" it was referring only to "who may be a debtor" and not to any other *82direct or indirect effect the bankruptcy laws might have. For the reasons given in the text of this opinion, our decision in this case is fully consistent with the holding in the Kava Bowl case.
The automatic stay differs from an injunction in that it becomes effective without an order of the bankruptcy court. The court retains, however, the power to dissolve or modify the stay, and it is in all other respects identical to an injunction or temporary restraining order. See 11 U.S.C. § 362(d)&(e).
Conditions in American Samoa differ from those in the United States proper in a number of ways that might justify a deliberate decision not to create a bankruptcy remedy here. Very few people earn a substantial enough income to make it worth their while to pay the attorneys’ fees and administrative costs necessary to shield future income from creditors. Those who do have substantial income frequently have sufficient contacts with Hawaii or some other jurisdiction to avail themselves of the bankruptcy remedy in that jurisdiction. Moreover, the territorial legislature has created other remedies which serve many of the purposes of "consumer" bankruptcies. The principal asset owned by most Samoans is land, and a statute provides that the land of a Samoan is not subject to execution other than to satisfy a mortgage on the land. A.S.C.A. § 43.1528. See also A.S.C.A. § 43.1501 (judgment debtor may apply for an order in which "the court shall allow the debtor to retain such property and such *85portion of his income as may be necessary to provide the reasonable living requirements of the debtor and his dependents"); A.S.C.A. g 27.1501 (limiting sales of goods on credit). On the other side of the ledger, the introduction of federal bankruptcy petitions in the Territory would entail a costly and complicated set of administrative institutions and procedures, and would be further complicated by the widespread belief that the introduction of a federal district court in the Territory would lead to the erosion of traditional institutions. While these factors are highly relevant to the question whether the remedy of a bankruptcy petition should be available in American Samoa, they have little or nothing to do with the question whether a stay or an injunction incident to a bankruptcy proceeding in another jurisdiction is or ought to be effective in the Territory. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485600/ | Petitioner seeks a decree of divorce dissolving his marriage to the respondent on the grounds of "habitual cruelty and ill usage" under A.S.C.A i 42.0202. Petitioner appeared with counsel while respondent did not. Respondent has filed with the Clerk a document acknowledging service of the Summons and Complaint, stipulating to default judgment, and waiving any right to contest the action.
Petitioner testified that he and his wife have been separated since 1986 with the parties agreeing to go their own separate ways. For some time prior to the separation, the marital partnership had, for all intents and purposes, broken down. The reality with the parties is that they have strayed from each other with differences arising in wants, interests and social pursuits. There has been no social interaction as a family for some time; however, petitioner was quite candid in stating his reluctance to point the blame on anyone. Rather, he has viewed the degeneration of the marriage as being attributable to the parties’ environment and *89social surroundings and in this regard, petitioner feels it would be unfair to assign fault to anyone. Both parties accept that with their general situation as it is, it would be intolerable for both of them to persist with the status quo.
Notwithstanding the apparent incompatibility which seems to have arisen between the parties, and notwithstanding their agreement to seek a divorce, it-is the opinion of the court that no grounds have been established upon which a divorce decree may issue under the laws as existing in American Samoa.
The territorial statutes (A.S.C.A. §§ 42.0201-08) reflect "fault-based" divorce as opposed to the "no fault" concept used in many other jurisdictions which recognize "incompatibility" or "irreconcilable differences" as grounds to dissolve a marriage. Ah Mu v. Ah Mu, CA No. 3073-75 (1975); Lea’e v. Lea'e, 3 A.S.R.2d 51 (1986). The only "no fault" based situation provided in American Samoa is continuous and voluntary separation for an extended period of five years. See A.S.C.A. i 42.0202(5).
It is the province of the Fono, and not of the Court, to decide between "fault-based" and "no fault-based" divorce. Ah Mu v. Ah Mu, supra. Irrespective of the awareness that for all practical intents and purposes a marriage may have broken down, and that continuance of the marriage may have a more negative effect on the parties than its termination, our duty is quite clear with the unambiguous enactment. As this court observed in Wray v. Wray, 5 A.S.R.2d ___ (1987), a recent legislative review opportunity resulted in the Fono turning down a bill proposing to reduce the voluntary separation period, above-mentioned, from five years to two years. Legislative policy in American Samoa on "no fault" divorce is thus made very clear.
Even though respondent has agreed not to contest the proceedings, this Court is obligated to "examine all parties and witnesses, and . . . take all evidence," and must dismiss the petition if the allegations thereunder have not been proven. A.S.C.A. §§ 42.0205-06; Chun v. Chun, 3 A.S.R.2d 23 (1986). See also T.C.R.C.P. Rule 55(e).
On the foregoing, the petition is dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485601/ | Plaintiff Uiva Te’o filed this action in 1982, complaining that Salofi Sotoa and his family were trespassing on his land "Etena." Sotoa responded *91that the land was actually part of his property called "Kokoland."
Te’o maintains that he has worked the disputed tract since 1935, that the Court affirmed his title to it in LT No. 73-77, and that Sotoa began to occupy it in 1979 or 1980 while Te’o was on a six-month trip to the United States.
Sotoa’s estate (the original defendant having died ' during the course of this litigation) takes the position that he and Te’o "settled their boundaries" subsequent to the court’s judgment in No. 73-77 and agreed that the disputed tract (which Sotoa claimed to have cleared from virgin bush in 1973) belonged to Sotoa.
Our findings and conclusions are as follows:
Findings of Fact
1) The land in dispute, with the exception of a narrow strip --along the western boundary, was awarded to Te’o in LT No. 73-77. It is clear from the testimony and the supporting exhibits that the tract at issue in this case includes "that small portion of the land on the southwest corner of the Fanene claim claimed by him, plus a small segment to the west of it" which was "deemed to be the property of Uiva Teo as his individually-owned land" in Te’o v. Fanene et al., LT No. 73-77 (decision and judgment in consolidated cases rendered December 13, 1977) at page 37. The disputed tract also includes a strip about fifty feet wide, still further to the west, which was not at issue in the Fanene litigation.
2) Although Salofi Sotoa was a party to LT No. 73-77 and the cases consolidated with it, and although he claimed portions of the land claimed by Uiva Te’o and by Fanene, he neither claimed any part of the tract that is the subject of the present case nor objected to the claims made by Te’o and Fanene that they owned the tract.
3) The judgment in the consolidated cases was affirmed on appeal in Te’o v. Fanene, AP No. 13-78 (decision rendered February 21, 1980). The portion of the trial court’s judgment awarding the presently disputed land to Te’o was not appealed by any party.
4) Meanwhile, on January 12, 1979, the trial court issued an order stating that "the court, sua *92sponte, has reopened the case to view once again the land which is the subject matter of the dispute." This was about a year after the judgment in the case, and some months after the appeal had been docketed in the Appellate Division.
5) After the appellate court’s decision, the trial court held a conference “to carry out the judgment, more particularly, the filing of amended maps and descriptions with the court and the Territorial Registrar." Order issued April 21, 1980, at page 2.
6) At this conference Uiva Te’o was represented by his then-attorney. Salofi Sotoa, a licensed legal practitioner, was representing himself.
7) At this conference Sotoa told the Court that he and Uiva Te’o had "agreed on a change in their mutual boundaries." It appears from the memorandum order issued by the Court that Te’o’s attorney knew nothing of this alleged agreement. Based upon Sotoa’s representation, the Court ordered the parties to file an amended map and description of the lands awarded them in the decision. Order issued April 21, 1980, at page 3.
8)Two months later the Court held another conference. It is clear from the memorandum and order issued at the conclusion of this conference that there was (at least at this point) no "agreement" between Te’o and Sotoa for a "change in their mutual boundaries." Rather, Sotoa "presented a map which appears to include those lands in the South-West corner which have been determined to be the property of Uiva Te’o." This was described as a matter in "contention" between the parties. Order and Memorandum issued June 18, 1980, at page 2. See also Transcript of Preliminary Injunction Hearing, LT No. 40-82, October 26, 1982 [hereinafter cited as 1982 Transcript], part I at page 11 (testimony of Uiva Te’o):
I remember one time I was informed by my lawyer this matter is now before the court. I think this hearing was held upstairs. I think one of the Samoan judges sitting on the bench right now was sitting on that hearing, and there was only one question asked by the presiding Justice, Did I agree to give Mr. Sotoa that two and a half acres of land now in dispute? My answer to that was No. *93After that hearing I was approached by the defendant telling me that he’s going to buy the land. Now, I think that Sotoa was not telling the truth to the presiding Judge that I had given him the land.
The Court ordered that a hearing should be scheduled in August or September to resolve this and other disputes. There is no evidence that such a hearing was held.
9) Instead, Sotoa ordered a survey of the disputed tract with the intention of offering it for registration. Somehow Te’o got hold of a copy of this survey and offered it for registration in his own name early in 1981.
10) Sotoa filed an objection to Te’o’s survey on May 5, 1981, stating that Te’o had "agreed to our boundaries as set forth with our Bob Wire and coconut trees."
11) In accordance with the statutory procedure for objections to the registration of land, the dispute was referred to the Office of Samoan Affairs. At the conclusion of a meeting held at the Office of Samoan Affairs on or about October 20, 1981, Uiva Te’o signed a statement saying that he withdrew his registration.
12) Although there is conflicting evidence about what happened at the October 1981 meeting, we do not believe that Uiva Te’o intended to acquiesce in Sotoa’s claim to the land or that he manifested any such intention. He later testified that he had been informed both by his attorney and by the mediator at Samoan Affairs that if he had already been awarded the land by the Court there was no need for him to file a registration:
Throughout the four years I have been trying to do my best to get Sotoa off my land. . . . One time I went and registered the land at the Office of Registration, and I also informed my counsel, Moega Lutu, that I had done so already. This is because I am inexperienced and lack knowledge on the procedures of registration of land. But my counsel informed me no, you are not supposed to do that because -you have already won the case and that is sufficient. That registration that I *94did, Sotoa filed an objection to my registration of the land. ... I was questioned by the Secretary of Samoan Affairs on what happened. I explained to them .... I thought that all land owners who won land in the cases have to register their portions. However, my counsel, Moega Lutu, informed me I don’t have to do that because whatever the court decrees I have won the case and that is sufficient. I was scolded and advised by the Secretary of Samoan Affairs that the action I did registering the land was not feasible because the land was on record based on the court decision. . . . Sotoa tried to make me sign withdrawal of my registration. I said it doesn’t matter. Even if I sign a withdrawal or do sign a withdrawal, -nothing changes. Because now I understand everything after my counsel advised me, that the land remains mine.
I told Sala [the Samoan Affairs mediator] I do not wish to sign this paper because I am the owner of that land. But he still urged me to sign, and I told him repeatedly either I sign or 1 don’t sign it but 1 won the land already based on the case mentioned.
1982 Transcript at 1.7, 13, 21-22.
13) This testimony, given about a year after the meeting in question, is consistent with Te’o’s testimony in 1987 that he had signed a withdrawal of his registration because the Samoan Affairs official who presented it to him told him that Sotoa had already agreed to withdraw his claim so that the matter would not go to court. In general, however, we do not believe Te’o’s 1987 trial testimony to be a reliable version of what happened at the 1981 ' meeting. This is possibly because Te’o, who is 81, had confused the 1981 meeting at Samoan Affairs with the 1982 High Court hearing on the preliminary injunction. His 1987 testimony concerning the former seems more accurately to describe the latter.
14) Unfortunately, there is no other reliable evidence of what happened at the 1981 meeting. No transcript is available. The mediator testified in 1987 that he did not remember the details of the 1987 meeting, but referred the Court to his 1982 *95testimony. His 1982 testimony was itself vague and conclusory: “I don’t recall exactly what Te’o said . . . . But he said something to the effect that he doesn’t think his offer for registration is valid." Neither this testimony nor the withdrawal itself is inconsistent with Te’o’s claim that he had stated his willingness to withdraw his registration because he believed his offer for registration to have been technically inappropriate as a means of asserting his ownership. (Later in the 1982 hearing the mediator became more definite and specific in his recollection that Te’o said he did not own the land. This testimony also lacked detail and was couched in conclusory terms, and seems to have been the product of the witness’s irritation at cross-examination by Te’o’s counsel.)
15) The only evidence for the contention that there was a "boundary settlement" is that on two occasions between 1979 and 1981 Te’o and Salofi Sotoa’s wife encountered each other on the land and had discussions about it. Mrs. Sotoa’s negotiating technique seems to have been to secure Te’o’s acquiescence to broad and unobjectionable propositions, principally that all land belongs to God and that neighbors should live in peace and harmony. She would then draw detailed and self-serving conclusions from these premises and interpret Te’o’s evasive answers as acquiescence. The two parties’ versions of one of these discussions were as follows:
I told you Te’o the two of us are on the land. I don’t want any trouble. All I want is to help you and assist you. What are these surveys for? . . . And I said Te’o, the land is God’s land. There is no specific land owned by Te’o or Sotoa. My purpose of visiting the land because this is our barb wire with my children. This is our boundary. Where is yours? Then you said you don’t have any land in there. You don’t wish to make a survey, and the reason why you went on the land is because your lawyer has advised you to. . . . Te’o said well, this is the cocoa tree, what is your opinion? Now, I said this is my barb wire and you put your mark right underneath the barb wire. This cocoa tree is the key point of my verbal agreement with Mr. Te’o . . . . That day Mr. Lutu [Te’o’s then-attorney] came on the land. I made an agreement with Te’o already..... I feel it’s a *96misunderstanding between Te’o and his counsel ....
1982 Transcript at 1.31-32 (testimony of Iseulaolemoana Sotoa).
I told [Sotoa] to remove the crops. One day Mrs. Sotoa and her brother came and told me this land belongs to God. I told them that is true, even though it’s God’s land but it’s within the jurisdiction of the Tualauta County. This land is where .it’s supposed to be and I own that land.
id. at 1.5-6 (testimony of Uiva Te’o).
16) Although Te’o was represented by counsel at all relevant times, all of the alleged agreements including the signed withdrawal of registration at the October 1981 meeting occurred when his lawyer was not present. On the day of the encounter described in (15) above, sometime in 1980, he called his attorney who came to the land to discuss the matter with the Sotoas. In her 1982 testimony Mrs. Sotoa was at pains to point out that the "verbal agreement" had "already been settled" by the time the attorney arrived. 1982 Transcript at 1.3.3, 37. This was apparently an, attempt to deal with the problem that no such agreement was evident during the subsequent discussions that included the attorney. See id. at 37. The Sotoas take the position that this proves that Te’o did not want the land but that his attorney wanted it for himself. On the contrary, we draw the inferences (from this incident and from Te’o’s statements to the Sotoas that "my lawyer insists that I survey this land") that (1) Te’o was intimidated by Sotoa, an experienced legal practitioner, and did not wish to discuss the merits of the dispute without his lawyer present; and (2) Te’o was also attempting to deflect from himself to his lawyer the Sotoas’ suggestions that it was unneighborly of him to survey the land.
17) On numerous occasions before and after the two alleged verbal agreements and the October 1981 meeting at Samoan affairs, Te’o asserted his ownership of- the land in various ways. These included assigning people to work on the land, going on the land to supervise their work, telling the Sotoas to get off, destroying the Sotoas’ crops and fences, and taking legal action several times (the 1977 lawsuit, the 1980 hearing at which he denied Sotoa’s previous representation to the Court *97that he had given the land to Sotoa, the attempted registration in 1981, and the filing of this lawsuit in 1982) to assert his ownership. Moreover, the October 1981 meeting was neither the first nor the last in a series of meetings or attempted meetings between the parties, and ' it is clear from the whole course of these meetings that the parties had a continuing disagreement. See 1982 Transcript at 1.7-8.
18) There is no evidence that the Sotoas ever gave Te’o anything, not even an intangible right or asset such as the renunciation of a colorable legal claim to some other land, in exchange for his alleged renunciation of ownership.
19) We believe Te’o’s 1982 testimony concerning the October 1981 meeting and associated events to be the most credible account of these events. It is the only version that is internally consistent and that makes any sense in light of other facts that are undisputed or proven. Te’o never had any reason to give up the land he was awarded in the 1977 case,' he never had any intention to do so, and we do not believe that the Sotoas ever believed he had such an intention.
Conclusions of Law
1) When the award of this land to Te’o in LT No. 73-77 was not appealed, the judgment acquired the effect of res judicata against the Sotoas. We are bound by that judgment, as the Court has been ever since early 1978, and we would be bound even if we concluded that Sotoa rightfully owned the land prior to 1977.
2) The trial court had no jurisdiction to "reopen" the award of the land to Te’o and did not purport to do so. The original judgment, which was ambiguous in some respects, was unambiguous with regard to this land. In April 1980 this tract was added to the list of matters that might be readjusted not because the Court thought any readjustment necessary in order to "carry out" the judgment, but because Sotoa told the Court that Te’o had agreed to let him have the land. The Court’s remarks in April and June of 1980 with respect to this land could not have divested Te’o of his title and did not purport to do so.
3) Te’o never agreed to withdraw his claim of ownership. The document he signed does not in terms withdraw the claim that he owns the land, but *98merely withdraws the offer of registration. Many people in American Samoa do not register land that they claim to own. Although Te’o had the legal right to register the land, and although registration is advisable for a variety of reasons, it is not essential to ownership.
4) In any case, there would have been no consideration for such a contract. Although the renunciation of a colorable claim by one party can be consideration for the renunciation of such a claim by the other party even if it is later established that one of the claims was without substance, in this case there is no evidence that Sotoa gave up such a claim or anything else.
5) Finally, a "settlement" of a claim that had already been litigated, purporting to "adjust the boundaries" set by the Court’s judgment, would ordinarily have been submitted to the Court for its approval. The Court in 1980 seems to have ordered just that. If Sotoa had presented the document signed by Te’o to the Court shortly after October 1981 as a "settlement," we believe Te’o would have renounced it as he renounced every other such alleged "settlement." We believe no court would approve any settlement that was (1) negotiated between a licensed legal practitioner and an adverse party represented by counsel without the participation of the adverse party’s counsel; (2) clearly disadvantageous to the party who was not a legal practitioner; (3) renounced by the adverse party soon thereafter; and (4) strikingly similar to an earlier "settlement" asserted in Court by the legal practitioner, the existence of which was denied by the adverse party as soon as he and his lawyer had had an opportunity to consult.
. Order
The defendant estate, its agents, representatives, and those in concert with them are permanently enjoined from going onto the land, with the exception of the narrow strip on the western edge of the tract that is outside the boundaries of the tract awarded in LT No. 73-77. No order is made with respect to that strip of land, neither party having proven its right to occupy said land. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485602/ | On motions for temporary restraining order and order to show cause:
The complaint and other documents filed by the plaintiff allege that defendant and the Taito family are building a house on "land Oneoneloa of plaintiff" without the plaintiff’s permission.
Unless the Court is missing something,- this is a truly remarkable complaint. Less than a year ago the Court spent many hours trying to resolve a dispute between plaintiff, defendant, and their respective families about who owned Oneoneloa. The result was a decision that Oneoneloa is the property of the Taito family. Sialega v. Taito, 3 A.S.R.2d 40 (1986); Sialega v. Taito, 3 A.S.R.2d 78 (1986). The plaintiff had a right to appeal the judgment of the Court, but chose not to do so. It is therefore final and binding on the Court as well as on the plaintiff.
*100Perhaps plaintiff believes that this land is a different tract than the one involved in the 1986 case. If so, he should amend his complaint and the defendant will have to answer. (Obviously, however, plaintiff should not do this if this is actually the same land as the Oneoneloa he claimed to own in 1986. His counsel can advise him about the legal penalties for perjury and for the filing of frivolous lawsuits.)
In the meantime, however, the temporary restraining order and the order to show cause requested by the plaintiff are denied.
Moreover, since plaintiff seems to be attempting by means of this action to deprive the defendant and his family of the rights they were adjudged to have in last year’s case, it seems appropriate that they be restrained from such interference unless and until they can convince the Court that this case is somehow different from the last.
Therefore the following orders will issue:
(1) Pursuant to the power given the Chief Justice or Associate Justice to make "such order as to him may seem just" in any land case (A.S.C.A. § 43.0304), Sialega and those in concert with him are hereby restrained from doing anything to interfere with the use and enjoyment of Oneoneloa by Taito and his family until further order of the Court.
(2) Counsel for the plaintiffs is hereby ordered to file with the Court by Friday, August 7, all records of the proceedings in the Office of Samoan Affairs to which he refers in his "Memorandum of Points and Authorities."
(3) Plaintiff has until Friday, August 14, to file an amended complaint if he wishes to do so. If no amended complaint is filed by then, the case will be dismissed with prejudice.
(4) Counsel for plaintiff will serve a copy of this Opinion and Order on the defendant, Taito Tui, along with copies of all the plaintiffs’ pleadings and accompanying documents, and shall file an affidavit with the Court stating the time and manner in which such service has been made no later than Friday, August 7.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485605/ | On motion for new trial:
Plaintiff Development Bank sued Mr. and Mrs. Ilalio for the balance due on a promissory note. The Ilalios appeared pro se. They said they had signed a blank note which they had been given to believe would be completed in an amount of about $6000, not the $15,164 that was later filled in by the Bank, and that they had agreed to sign the note in exchange for the continued use of a truck which was worth about $6000. The Bank later seized the truck and sold it for $6000. We held that the Ilalios did not owe the Bank any money. Plaintiff moves for new trial on a variety of grounds.
I. "Separate" Findings and Conclusions
Plaintiff begins by urging that there was "no effective judgment" in this case because "[njeither the Court’s Opinion and Order nor the Clerk[’]s Entry of Judgement contain findings of fact and conclusions of law stated separately as required by Rule 52, T.C.R.C.P.. As a result, Plaintiff is unable to ascertain what legal conclusion the Judgement is based upon." (Emphasis in plaintiff’s motion.)
We believe that our opinion, which was divided into sentences, paragraphs, and general areas of discussion rather than into numbered and labeled "findings" and "conclusions," nevertheless contained findings of fact and conclusions of law that were sufficiently "separate” to comply with the rule. The opinion was written this way in the hope that it would be more informative than an opinion written by the numbers. We append, *113however, a document in the form requested by-plaintiff .
II ■_Failure to "Enter a Take-Nothing Judgment"
As a further ground for its-contention that there was "no effective judgment," plaintiff points out that "the Opinion and Judgement both purport to dismiss Plaintiff’s action, as opposed to entering a take-nothing judgement."
In "purporting" to dismiss the action we were of course doing exactly what plaintiff’s counsel refers to as "entering a take-nothing judgement." We suspect that counsel’s objection was grounded not in any confusion on this point but in a desire to eliminate any lingering doubt we might have had about whether he liked our opinion.
Counsel has cited no authority for the proposition that “dismissal" is an inappropriate term for a denial of all the relief requested by the plaintiff after an adjudication on the merits, and we have been unable to find any. An argument might be grounded in Rule 41 of the Territorial Court Rules of Civil Procedure, which lists a number of circumstances under which actions may be dismissed and does not refer to dismissal after adjudication on the merits. The rule specifically provides, however, that "any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under 19 T.C.R.C.P., operates as an adjudication upon the merits." T.C.R.C.'P. Rule 41(b). (This provision also disposes of counsel’s suggestion, in response to a question from the Court at oral argument on this motion, that it is difficult to tell whether a dismissal is with or without prejudice.)
Whether to deny all relief after an adjudication on the merits by saying "the action is dismissed," "judgment is entered for the defendant," "the defendant takes nothing," or some other phrase seems to be a matter of style that varies from judge to judge, with one term or another possibly predominating in some regions or jurisdictions. In the first 400 pages of the most recent bound volume of the Federal Supplement, for instance, there are six cases in which the complaint or action was "dismissed" after plenary *114adjudication of the merits.1 The first few cases in the most recent volumes of American Samoa Reports and of American Samoa Reports (Second Series) also yield such instances.2 Even if "entering a take-nothing judgment" were the preferred form, this sort of thing is not the stuff of which successful motions for new trial are made.
III. Defective Pleadings
Plaintiff argues that the issues of fraud or mutual mistake, unconscionability, and accord and *115satisfaction were "not tried" and furthermore that they "could' [not] have been tried" because they were not "affirmatively pled" and furthermore were not "pled with particularity."
As in matters (1) and (2) above, we believe counsel would have us elevate form over substance. Moreover, the formal standards counsel belie.ves we should have imposed on the pleading filed by this pro se defendant are stricter than those customarily observed by attorneys in this jurisdiction.
Unfortunately, the principle that a pleading must contain a succinct and informative statement of the party’s claims or defenses is often honored in the breach. Pleadings too often deny things that the pleading party knows perfectly well to be true, .deny "for lack of information" averments about which all the information to be had is in the possession of the party doing the denying, and recite conclusions of law rather than statements that put the opposing party on fair notice of how the pleader will try to get the Court to reach such conclusions. The Court has attempted in recent years to effect a gradual reformation of these and related practices. We have concentrated on devices by which judgments have been taken against people to whom notice was- nonexistent rather than merely sketchy, but we have also freely granted motions to require the amendment of inadequate pleadings. Our efforts in this regard have met with a modest degree of success and with an even more modest degree of enthusiasm. Uninformative pleadings are still the rule rather than the exception.
In the High Court as in the federal courts, "pleadings shall be so construed as to do substantial justice." T.C.R.C.P. Rule 8(f). The practical effect of this overarching principle has been aptly stated by Professor Moore:
Litigation is not an art in writing nice pleadings. . . . The pleading rules are designed to eliminate delay, and reduce the pleading requirement to a minimum. . . . "Loose pleading" is the cry of an alarmist who unconsciously would punish the client because of the latter’s unfortunate choice of a lawyer who happens to be a poor pleader. The real importance of the Rules dealing with pleadings is that they make pleadings, in and of themselves, relatively unimpor*116tant. Cases are to be decided on the merits.
2A Moore’s Federal Practice par. 8.02 at 8-9.
The principle of construction to do substantial justice has been held specifically to apply to the requirements of affirmative and particular pleading imposed by Rules 8(c) and 9(b) respectively. Trinity Carton Co. v. Falstaff Brewing Corp., 767 F.2d 184, 194 (5th Cir. 1985); Machado v. McGrath, 193 F.2d 706 (D.C. Cir. 1951), cert. denied, 342 U.S. 948 (1952).
The principle of construction to do justice is at its strongest when the pleading was drafted by a pro se litigant rather than by an attorney. Pro se pleadings should be construed to state a cause of action or a valid defense unless the Court "can say with assurance" that "it appears 'beyond doubt that the [litigant] can prove no set of facts in support of his claim which would entitle him to relief.’" Haines v. Kerner, 404 U.S. 519, 520-21 (1972), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Indeed, the very fact that "in the great run of pro se cases, the issues are faintly articulated and dimly perceived" imposes on the trier of fact
a greater burden and a correlatively greater responsibility ... to insure that constitutional deprivations are redressed and that justice is done. . . . Accordingly, the Court in considering the defendants’ motion to dismiss will not permit technical pleading requirements to defeat the vindication’ of any constitutional rights which the plaintiff alleges, however inartfully, to have been infringed.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), quoting Canty v. City of Richmond, 383 F. Supp. 1396 (E.D. Va. 1974), aff’d, 526 F.2d 587 (4th Cir. 1975), cert. denied, 423 U.S. 1062 (1976).
Although the reported cases tend to involve pro se plaintiffs rather than defendants, the principle that generates them seems even more compelling when someone who cannot afford a lawyer is called into court against his will. (Nor do we believe our duty to construe pleadings so as to avoid the inadvertent surrender of legal rights by *117a pro se litigant is limited to cases in which the rights in question are grounded in the Constitution rather than in statutory or common law.)
In any case, the pleading to which plaintiff takes exception was if anything unusually informative for a pleading filed in the High Court. It is true that the defendants did not use the words fraud, mutual mistake, unconscionability, or accord and satisfaction. We doubt that the defendants know those words, and they had no obligation to use them. "Under Rule 8, a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. It is not necessary to set out the legal theory on which the claim is based." Siegelman v. Cunard White Star, 221 F.2d 189 (2d Cir. 1955) (per Harlan, J.). Rather, defendants told the plaintiff and the Court that they had executed a promissory note "only on the value of the truck which was at that time about $6,000.00" and that “[i]n the year 1983, [plaintiff] Development Bank ceased the truck from us, and sold it to another client. So we assumed that the balance owed has been cleared." These statements put the plaintiff on fair notice (1) that the defendants denied making a contract in the amount of the note plaintiff planned to introduce as evidence; (2) that in the event the Court concluded they did sign such a note, the only value they received for it was a $6000 truck; and (3) that when the plaintiff took the truck back the defendants believed they were taking it in lieu of further payments. These three contentions--which support, respectively, the legal conclusions called fraud or mutual mistake,3 unconscionability, *118and accord and satisfaction --- were the very ones defendants made and proved at trial.4
Moreover, the reason for the affirmative and particular pleading requirements is to avoid unfair surprise. Even if we were to hold that defendants had technically failed to comply with these requirements, we should deny,a motion for new trial in the absence of some plausible basis on which to conclude that plaintiff was unfairly surprised or otherwise prejudiced by the assertion of affirmative defenses at trial. See Bull’s Corner *119Restaurant, Inc., v. Director of Federal Emergency Management Agency, 759 F.2d 500 (5th Cir. 1985). The only basis alleged is that "plaintiff would show that it could have produced additional documentary evidence tending to disprove any defense of fraud or mistake." We requested at the oral argument on this motion, and then requested again in writing, that plaintiff submit any such evidence so that we could consider it in deciding whether to grant a new trial. None has been forthcoming.
Finally, any defects in the pleadings were mooted by the introduction at trial of evidence on the basis of which the Court found itself compelled to conclude that defendants never signed a note for the amount in question and that in any case the contract alleged by the plaintiff was unconscionable. Plaintiff’s counsel did not object to the introduction of this evidence,5 and *120introduced much of the evidence for the holding of unconscionability6 himself.
“The legal rights of the [parties] are to be determined by the law and the facts of the case and not by some language of the claim." . . . " [Particular legal theories of counsel yield to the court’s duty to grant the relief to which the prevailing party is entitled, whether demanded or not.". . . The fact that a [party] may have erred in his choice of legal theory will not preclude him from obtaining relief under another legal theory.
2A Moore’s Federal Practice par. 8.14 at 8-86, quoting Kowalewski v. Pennsylvania R.R. Co., 141 F. Supp. 565, 569 (D. Del. 1956) and Gins v. Mauser Plumbing Supply Co., 148 F.2d 974, 976 (2d Cir. 1945) (per Clark, J.). The alternative proposition ---- that a court, having listened to the evidence adduced by both sides at trial and concluded on the basis of that evidence that a contract never occurred or was otherwise legally unenforceable, should enforce it anyway --- was the sort of thing Mr. Bumble had in mind when he observed that "the law is a ass, a idiot." In the present case it would tend to validate the portrayal of courts in a "bourgeois" society as operating primarily to increase the leverage that the powerful enjoy over the powerless.
*121IV. Fraud or Mutual Mistake
Plaintiff also contends that "there was no evidence, or insufficient evidence, to support a finding of fraud or mistake."
Defendants’ principal contention at trial was that they had signed papers which were blank or nearly blank, and which they understood would be completed in an amount of about $6000. All three judges examined the documents and found them consistent with this testimony. We found Mr. Ilalio to be a credible witness, and we also took judicial notice of the fact that the Bank officers with whom the Ilalios dealt were later convicted of various fraud-related crimes whose details were quite similar to those alleged by the Ilalios in this case. The Bank did not offer any testimonial evidence to rebut the defendants’ version of these events. Accordingly, the preponderance of the evidence supports the defendants’ contention. In our original opinion we called this contention "fraud" (if the Bank officials knew of the Ilalios’ understanding and nevertheless filled out the contract in a different amount) or "mutual mistake" (if the Bank officials were unaware of the Ilalios’ understanding). Another way to say the same thing is that there was no agreement between the parties on an essential term of the contract and therefore there was no contract. The plaintiff was entitled to the return of what it gave the defendants; this it has received.
V. Unconscionability
We also held that the contract alleged by the Bank was unconscionable; it was a contract "such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other," and was therefore not enforceable irf a court of law and equity. Plaintiff urges that this holding was in error.
Plaintiff seems to argue that in order for a contract to be legally unenforceable under the doctrine of unconscionability it is necessary to find both "failure of consideration" and a complete lack of "voluntariness" such as would be necessary to support a defense of duress. On the contrary, if either or both of these findings were necessary to the conclusion that a contract was unconscionable the doctrine of unconscionability would have no separate existence. See, however, Restatement of Contracts 2d § 208 (1981), quoted in *122footnote 2 of our original opinion. See also Lampley v. Pertuit, 199 So. 2d 452, 454 (Miss. 1967), quoting Bethea v. Mullins, 85 So. 2d 452, 456 (1956) and 16 Am. Jur. Deeds § 33:
"[I]f the inadequacy of consideration is so glaring as to stamp the transaction with fraud and to shock the common sense of honesty, a court of equity will intervene. If the consideration is grossly inadequate, equity in any case will lay hold of slight circumstances of oppression, fraud, or duress in order to rescind the conveyance."
3ji the present case there was some consideration for the note the Bank says the Ilalios signed, but it was so grossly inadequate as to raise serious questions about the bargaining process.7 And the Ilalios, as plaintiff points out. were legally and physically free "to refrain *123from contracting at all," just as the people in other unconscionability cases were free- not to buy refrigerators, stereos, or dance lessons. There was no "legal duress" in those cases or in this one. The evidence, however, is replete with indicia of unequal bargaining 'power, sharp practice, and the absence of any real bargaining process. If the Ilalios had signed a $15,164 note at all (which we believe they did not) the transaction would have presented a classic case of unconscionability as defined by the cases and other authorities cited in our original opinion.
VI. The Seizure and Sale of the Truck
The plaintiff also urges that we erred in observing that if the truck had been worth $15,000 plaintiff probably would not have had the legal right to seize it without judicial foreclosure, sell it for $6000 in an unadvertised private sale without notice to the defendants, and then proceed against them for the remaining $9000 plus several thousands of dollars in interest, costs, and attorney fees. Although we believe this to be a correct statement of the law, we refrain from reiterating our reasons. The statement was obiter dictum. It was made in the hope of administering, in advance of any litigation in which the issue is unavoidable, what plaintiff characterizes as a "rude surprise" to anyone who might be planning such a transaction. (We did err in stating that the sample mortgage form contains no provision to the effect that the Bank may repossess without judicial foreclosure. It does contain such a provision.)
VII. The Subsequent "Agreement"
Finally, plaintiff urges that we erred in finding that there was no consideration for the "agreement" signed by Mr. Ilalio in 1986, by which he" undertook "in consideration of the creditor’s forbearance from suit on the promissory note" to pay the amount due on the note and to "waive all defenses .of the statute of limitations and other waiveable defenses" in the event of a lawsuit.
We agree with plaintiff that there are circumstances in which forbearance to press an invalid claim can be consideration for a new agreement. Our statement that "[i]n fact . . . there was no consideration for this 'agreement’ and it was therefore not legally binding on the *124Ilalios” was too broad in its implications if not in its application to the facts of this case.
Forbearance from pressing a claim that is later found to be invalid can be -consideration for a new pz-omise provided that, at the time the new promise is made, the forbearing party believes in good faith.that his claim is just. Restatement of Contracts 2d § 74; Corbin on Contracts § 140. This does not mean, however, that courts are bound to accept and enforce at face value every piece of paper declaring itself to be a settlement. On the contrary, such documents are customarily given somewhat stricter judicial scrutiny than contracts involving more palpable consideration.8
Such scrutiny is especially appropriate when the invalidity of the initial "agreement" was due to gross inadequacy of consideration, inequality of bargaining power and sophistication, and circumstances which are not technically fraud and duress but somewhat resemble them to the naked eye. If the law gave a person or institution in possession of such a document the absolute power to dissociate it from the shameful circumstances of its birth simply by calling the "debtor" in, showing him his signature on the document, and getting him to sign another one just like it under threat of immediate legal proceedings, we would not need courts. Collection agencies would do.
We are not suggesting that the new management of the Bank operates as the old one did, or that any individual Bank officer had reason to know the circumstances under which the Ilalios signed the first document. (Indeed, from plaintiff’s pleading it appears that the new management of the Bank may have believed until shortly before the trial of this case that Mr. and Mrs. Ilalio actually received the $15,164 which is the stated consideration for the promissory note.) The plaintiff in this case, however, is not any particular officer but the Bank itself. When the Bank concluded the "settlement" in 1986 it was chargeable with the knowledge and with the actions of its agents who dealt with the Ilalios in 1982. *126It therefore cannot be said to have believed in good faith that the Ilalios owed it $13,000. Such good faith is essential for forbearance on an invalid claim to constitute consideration. See generally Corbin on Contracts § 140.9 The 1986 agreement therefore lacked consideration.
Even if the Bank were held to be in good faith (as we hold it was not) with regard to the validity of its original -claim, forbearance to sue on it would not fix everything that was wrong with it. This is true for several reasons.
First, although the new management of the Bank has not engaged in the sorts of practices the old management did, the second transaction cannot fairly be described as one in which two parties *127worked out a "settlement" of their differences at arm’s length. The 1986 document was a contract of adhesion offered on a take-it-or-leave-it basis by one of the most powerful economic institutions in the Territory to a party who was far poorer and far less sophisticated than the drafting party and who was unrepresented by counsel. Although he was physically free (just as he was in 1982) "to refrain from contracting at all," the Bank threatened him with an immediate lawsuit if he did not sign. It is unfortunately the case that such a threat will often induce people, particularly poor people and people in American Samoa, to sign just about anything. When it presented Mr. Ilalio with the 1986 document the Bank knew or should have known that Mr. Ilalio would probably be far more afraid of a lawsuit than he had any good reason to be (than, for instance, the Bank itself would have been if Mr. Ilalio. had been threatening to sue it on a questionable claim) and that whether he signed would have more to do with this fear than with any estimate of the validity of his defenses.10
*128Another reason the 1986 "agreement" should not constitute a bar to Mr. Ilalio’s assertion of his defenses to the original promissory note is that it did not clearly purport to do so. Rather, the 1986 document was itself vague and ambiguous on what the defendants’ rights would be in the event the parties eventually faced each other in litigation. It provides that in the event of such litigation Mr. Ilalio "shall waive all defenses of the statute of limitations and other waiveable defenses." This clearly implies the preservation bf his right to assert other, "non-waiveable" defenses.
What might these be? At the very least they would seem to include defenses which, although they may be reconcilable with the classical premises of contract law, exist at least partly to protect the general public or the integrity of the legal system. The clearest example of such a nonwaiveable defense is illegality. We would be inclined to put fraud and unconscionability on the list as well, but we need not reach those legal questions in order to construe the "waiveable defenses" clause in the 1986 "agreement." If it is not clear to the Court that fraud and unconscionability are "waiveable," it certainly would not have been clear to a reasonable person in the position of Mr. Ilalio. Vague and ambiguous *129language is to be construed- against the drafter. Moreover, the phrase "the statute of limitations and other waiveable defenses" clearly connotes "the statute of limitations and other defenses like it," that is, technical barriers to the enforcement of an otherwise just debt. Accordingly, by the best reading of the "agreement" itself Mr. Ilalio preserved his right to assert substantive defenses to the validity of the original contract. (Mrs. Ilalio, who did not sign the 1986 document, has not waived any defenses.).
Yet another reason that the 1986 transaction should not be held to have accomplished everything the Bank would like it to accomplish is that the Bank gave up very, very little. There was not one penny’s worth of compromise on the substance of the claim. There was no delay in foreclosing any security interest --- the truck, it will be recalled, already having been taken. And a judgment against a poor person in American Samoa is worth very little in and of itself. It does not give rise to a power to seize the debtor’s real property unless it is secured by a specific mortgage on such property. A.S.C.A. g 43.1528. With regard to personal property and future income, the judgment debtor has a legal right to an order allowing him to retain whatever is necessary to support himself and his dependents and also to comply with customary obligations (often quite extensive and burdensome) to his extended family. A.S.C.A. g 43.1501. As a practical matter this exempts just about everything. The $200 per month that the Bank was to receive under the agreement (and did receive for several months) was almost certainly higher than what it would have received if it had secured a judgment and tried to execute it. The agreement was, in other words, a far better deal for the Bank than for the Ilalios even if we do not extend it beyond its most obvious meaning to include a waiver of the defenses of fraud and unconscionability. This was true, moreover, for legal and practical reasons that were well known to the Bank and almost certainly not known to the Ilalios.
All this is not to say that signatures on documents never mean anything, but only that they do not always mean everything. If the 1982 transaction had been above board and the Bank were using the 1986 agreement for the purpose for which it seems to have been designed --- to toll the statute of limitations --- its forbearance from suit would be valid consideration for Mr. Ilalio’s *130agreement to waive the statute. The Bank’s palpably detrimental reliance on his explicit agreement to waive the statute would overwhelm, the equitable arguments against enforcement.11 The document is not, however, a complete substitute for all the missing substantive elements --- a meeting of the minds or some objective manifestation thereof, considerations that were even arguably equivalent, parties of roughly comparable bargaining power and sophistication, and a bargaining process untainted by sharp practice--in the absence of which the original transaction did not give rise to a binding contract or a just debt.
VIII. Due Process
The Bank argues that our original holding was in derogation of its right to due process of law. Since we believe the holding to have been in accordance with law and with the evidence and pleadings in the case, we conclude that it did not deprive the Bank of due process.
Order
The motion for new trial is denied.
. Wharton v. Abbeville School Dist. No. 60, 608 F. Supp. 70, 73 (S.D. Cal. 1984) ("the Complaint is hereby dismissed" after trial on the merits); Lary v. United States, 608 F. Supp. 258, 263 (N.D. Ala. 1985) ("an order will be entered granting the defendant summary judgment and dismissing the case in its entirety"); Complaint of Tracy, 608 F. Supp. 263, 269 (D. Mass. 1985) ("the petition to limit liability is dismissed" after adjudication of the merits on motion for summary judgment); McGhan v. Ebersol, 608 F. Supp. 277, 288 (S.D.N.Y. 1985) ("The case is dismissed and the clerk is directed to enter judgment" on the merits after motion for summary judgment); Carter v. Oliver T. Carr Co., 608 F. Supp. 381, 383 (D.D.C. 1985) ("The complaint is accordingly dismissed with prejudice" after trial on the merits); Gibson v. Sullivan Trail Coal Co., 608 F. Supp. 390, 392 (D.V.I. 1985) ("Judgment will enter dismissing the complaint of the plaintiff" after summary judgment on the merits). The cited cases comprise six of the twelve cases in the 400 surveyed pages of the Federal Supplement in which the plaintiffs were denied all relief after an adjudication of the merits. Six of these cases were decided on motions for summary judgment and six after trial.
See. e.g., Folasa v. Scanlan, 4 A.S.R. 194, 198 (1961) (per Morrow, C.J.) ("Accordingly, it is ORDERED that the plaintiff Folasa’s petition be and the same is hereby dismissed" after trial on the merits); Tali v. Tupeona, 4 A.S.R. 199, 206 (1961) (per Morrow, C.J.) ("This petition must be dismissed."); Tumui v. Fa’alevao, 2 A.S.R.2d 33, 35 (1983) ("As to all other petitioners the matter is dismissed.").
Contrary to the plaintiff’s contentions, it is far from clear that the fraud or mutual mistake alleged in this case 'was an affirmative defense at all. If •defendants had admitted to the contract as charged by plaintiff but demanded to be relieved from it on the ground that they were induced to contract by means of extrinsic fraud, it would be an affirmative defense. In this case defendants pled and proved that the contract alleged by the Bank never occurred. Rather, defendants had agreed to a different contract and plaintiff’s agents had filled in the promissory note in the wrong amount. See Part IV infra. If a defense merely negates some element of the plaintiff’s prima facie case, it need not be affirmatively pled. *118Masuen v. E.L. Lien & Sons, Inc., 714 F.2d 55 (8th Cir. 1983).
We are not sure whether the basis for plaintiff’s argument that these defenses were not affirmatively pled is (a) that the names of the doctrines were not mentioned; (b) that the statements.in the answer were not detailed enough to put plaintiff on notice that the defenses would be raised; or (c) that the defenses should have been pled in separate paragraphs and labeled "affirmative defenses."
The first two contentions are dealt with in the text. As for the third contention, we think the "affirmativeness" requirement was met here by the statement of the facts giving rise to the defenses of fraud and unconscionability in a "Yes, but . . . . " format within a paragraph containing an admission. We have been unable to find any authority for the proposition that a separate paragraph is a sine qua non of the "affirmative pleading" requirement under the federal rule. In any case, we interpret our own Rule 8(c) to require only that affirmative defenses be affirmatively stated rather than subsumed in simple denials of the plaintiff’s prima facie case. For instance, if defendants had answered plaintiff’s allegation that they signed a $15,164 note with the word "Deny," they would not have complied with the rule. Instead they said, "Admit. But only on the value of the truck which was at the time about $6000." This indicated, although not artfully, the defense they planned to raise at trial.
The statement of the facts giving rise to the defense of accord and satisfaction was in a separate paragraph at the conclusion of the numbered admissions and denials.
At oral argument on this motion, counsel for the Bank suggested that he let the Ilalios tell their story to the Court in their own way because he believes that giving such an opportunity to pro se defendants gives rise to a desirable "catharsis": the defendants feel better about having to pay the amount demanded because the Court has listened to everything they have to say. We appreciate this sentiment, and we agree that a full and fair hearing may ease the pain of losing a case. One of the risks the Bank incurred when it opted to let the Ilalios have an unequivocal “day in court" rather than to raise technical objections at every turn, however, was that the Ilalios might win. In any case, we note that Mr. Ilalio was vigorously cross-examined by counsel for the Bank and also by the Court, and that none of the conclusions reached by the Court rested on evidence that was inconsistent with the pleadings or otherwise inadmissible. Although it is always conceivable that another trial might produce a different result, the Bank’s contention that it did not really hold the Ilalios’ feet to the fire at the first trial is insufficient to justify the expense and inconvenience of a second proceeding.' This is particularly true in a case in which the party seeking a new trial has full-time "in-house" counsel at its disposal whereas the parties who prevailed at the first trial cannot afford *120a lawyer.
Plaintiff’s evidence as well as defendant’s supported the conclusion that the only consideration received by the defendants for the $15,000 note was the conditional use of a $6,000 truck. This evidence was, incidentally, at variance with plaintiff’s pleading, which alleged that the consideration was "the loan of DBAS funds for the purchase of a vehicle." Vie point this out not to criticize counsel for plaintiff, whose pleadings are generally accurate and informative, but to underscore the inappr.opriateness of enforcing a hyperstrict construction of the rules of pleading against Mr. and Mrs. Ilalio.
In its memorandum in support of the motion for new trial plaintiff argues that the consideration for the Ilalios’ $15,000 debt was more than just the use of a $6000 truck. Plaintiff argues that the Bank forbore from suing Mr. Ilalio’s half-brother; that the Ilalios’ situation was therefore "analogous to the situation of a co-maker or co-signer"; and that "we do not know what consideration, other than the use of the truck,“ defendants "may have received from the relative."
This argument is contrary to the evidence. The Ilalios asserted in their pleadings and at trial that their only reason for signing anything and the only thing they received was the continued use of the truck; the Bank introduced no evidence of a promise to forbear or of any discussion of forbearance against the half-brother, much less of the hypothetical "other consideration" of which "we do not know." The evidence is overwhelming that the Ilalios contracted with the Bank only because of the Bank officials’ threats to "sell" the truck to "another customer" and that concern for the image and credit rating of the absent and judgment-proof half-brother was not a factor that was ever mentioned or considered by either side. The Ilalios were not, therefore, analogous to co-signors; rather, the Bank officials were analogous to used car salesmen.
See Corbin on Contracts § 140 and cases cited therein. Many of the cases in which courts have held settlements unenforceable concern accident victims who release tortfeasors or insurance companies from all liability in exchange for relatively *125small sums of money. The most common rationale is that the parties were mutually mistaken about the extent of the victim’s injuries; it is clear, however, that many of the cases have more to do with whether "the agreement was fairly and knowingly made." Farrington v. Harlem Savings Bank, 19 N.E.2d 657, 657 (N.Y. 1939). See also Mangini v. McClurg, 249 N.E.2d 386, 392 (N.Y. 1969) ("The requirement of an 'agreement fairly and knowingly made’ has been extended ... to cover other situations [i.e., cases where there was no actual fraud] where because the releasor has had little time for investigation or deliberation, or because of the existence of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of the injured party."); Perdikouris v. The S/S Olympos, 185 F. Supp. 140 (S.D.N.Y. 1960) (" [Considering the inadequacy of the consideration, the mistaken belief that libellant [an injured seaman] was cured, the circumstances surrounding the legal advice made available to libellant [a brief consultation with an attorney friendly to the shipowner], and libellant’s lack of full understanding of his rights, we reach the conclusion that respondent’s plea of accord and satisfaction must be overruled [and] the release set aside . . . .").
The principles at work in the personal injury release cases apply with equal force to the present case. In both situations (1) the party that drafted and pressed for the "settlement” is a business entity experienced in and familiar with such transactions; (2) the other party is an individual who has no such experience or familiarity and who generally signs the document without benefit of legal counsel; (3) the transaction was a whirlwind settlement in which there was no evidence that the weaker party negotiated, deliberated, or fully understood what he was giving up, and in which the stronger party employed threats or promises (usually threats or promises to do things that the stronger party had a legal right to do) to encourage a quick decision; and (4) the exchange was lopsided, consisting of the surrender of potentially valuable legal rights by the weaker party in exchange for a small sum or other trivial consideration from the stronger party.
Although courts have varied widely in their analyses of the reasons for the good faith requirement, they tend to focus not on whether the forbearing party "believe[s] his suit can be won" but on whether he has a reasonable belief "that it is just to try to enforce his claim." Corbin on Contracts § 140 at 601-02. This is true despite the fact that there may be some benefit to the alleged debtor and some detriment to the supposed creditor even in forbearance on an obviously unjust claim. The rule that forbearance on such a claim cannot be consideration is imposed "on grounds- of public policy. . . . [I]f it were recognized as sufficient, ill-founded claims would be infinitely increased in number and the offense that is known as blackmail would become a profitable racket." Id. at 597-98.
In this case the Bank officials who presented Mr. Ilalio with the 1986 “agreement" probably believed they had a good chance to prevail on their claim. They might have concluded this even if they had known (as the Bank itself must be held to have known) all the facts about the original transaction; equitable defenses often depend on the discretion of the trial judge. This means only that the Bank might reasonably have believed its claim to be unjust but winnable. For the practical reason given by Corbin, and for the related reason that many judges regard blackmail enforcement as bad for their image and for their insomnia, forbearance to press such a claim cannot serve as consideration.
At trial Mr. Ilalio was questioned sharply by the author of this opinion about why he signed the "agreement" if he did not in fact believe he owed the Bank any money. After listening to Mr. Ilalio’s answers, observing his demeanor, and discussing the matter with the two Samoan Associate Judges who sat on the case, however, the author came to the conclusion that the "agreement" had more to do with the factors discussed in the text than with anything Mr. Ilalio believed, intended, or bargained for with respect to the Bank’s original claim against him.
Courts and commentators in the United States have long remarked the ease with which people can be induced to sign adhesion contracts containing the most draconian kinds of provisions, including waivers of important substantive and procedural rights in the event of litigation. This phenomenon is particularly pronounced among people in the lower economic strata; indeed, it is the phenomenon that gave rise to the doctrine of unconscionability and other mitigating devices. It is particularly strong in this Territory.
In the Samoan culture it is considered somewhat impolite to refuse almost any request, including a request to give away large amounts of money or other property. *128Avoidance of immediate conflict, with the possibility that real agreement can be reached at some time in the future, is greatly preferred to a direct refusal. This is especially true when a request is made by someone with a claim to superior social status or to official authority.
A related phenomenon is an unusually strong desire to avoid courts, which are authoritative and powerful yet mysterious, untraditional, and somewhat foreign. A threatened lawsuit therefore has a far more vivid ad terrorem effect on a person of limited means and sophistication in Samoa than it would have on the reasonable person in New York. It is inconceivable that an institution doing business in the Territory could remain unaware of this for very long, and the High Court cannot ignore it either.
This would be true as a matter of common law and equity even in the absence of the territorial statute explicitly providing that causes of action founded in contract are revived by signed admissions. See A.S.C.A. § 43.0128. This statute has no bearing on the present case. It provides only that a subsequent acknowledgement can "revive" an obligation that was formerly binding but has lapsed for some reason. It is fully consistent with our holding that an acknowledgment does not create (in the absence of non-trivial consideration and/or a process of genuine bargaining) a valid contract where there was none to "revive." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485606/ | Opinion and Order on Motion to Dismiss:
Defendants, Musu Faleafine et. al., move for dismissal of the complaint on two grounds:
(1) That plaintiff’s complaint avers a controversy concerning "communal" lands, and this action was commenced in the Lands and Titles Division of the High Court without compliance with the “mandatory” provisions of A.S.C.A. § 43.0302(a).
(2) That plaintiff’s failure to timely object to defendant Faleafine’s registration of land application with the Territorial Registrar, pursuant to A.S.C.A. § 37.0103, "estop[s]M plaintiff "from attacking the registration of this land by a collateral proceeding. "
A. A.S.C.A. 8 43.0302(al
This enactment provides that "[bjefore any action relating to controversies over communal land . . . may be commenced in the lands and titles division, each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his deputy" certifying that the procedure set out in the enactment (requiring a prior attempt to resolve the dispute before the Office of Samoan Affairs) has been undertaken without success, and that absent such certification the controversy cannot be resolved.
Defendants argue that the complaint herein was filed in the lands and titles division without heed to this provision.
Plaintiff, while acknowledging that the complaint was filed without the requisite *133certificate of irreconcilable dispute from the Secretary of Samoan Affairs, contends that the statute’s requirements are "procedural" in nature and not "jurisdictional," citing the annotations to the enactment.
The first observation that may be made of plaintiff’s argument is that there is no magic in the labels "procedural" and "jurisdictional" which would in any way add to, or take away from, the very clear legislative directive that a litigant who has a dispute concerning "communal" lands must first take his dispute before the Office of Samoan Affairs, prior to going to the Courthouse. The only exception to this requirement is the emergent need for preliminary injunctive relief to avert irreparable harm. See A.S.C.A. § 43.0302(b). Otherwise the enactment is of general application.
Secondly, the mere labeling of a defective pleading as "procedural" does not render such a pleading beyond dismissal in the proper and appropriate context. See TCRCP Rules 12(b)(l)-(5) and (7), which provide procedural grounds for dismissal.
The Court is not, however, entirely satisfied that circumstances herein necessarily warrant a dismissal of the complaint on the ground advanced. The defendants have answered the complaint and have entered appearances in open court with stipulations to consolidate. We take guidance from A.S.C.A. § 3.0242, which permits consideration of the equitable and the convenient, and we determine that the requirements of A.S.C.A. § 43.0302(a) may be secured under the circumstances by staying the action from further going forward, pending compliance with the proceedings with the Department of Samoan Affairs.
B. A.S.C.A. B 37.0103
Defendants’ contention here is that the land registration procedure set out in § 37.0103 provides the exclusive manner for filing objections or adverse claims. Plaintiff did not file an objection within the sixty-day time frame provided by the enactment, and accordingly the filing of this action is tantamount to an "indirect objection" which cannot be considered. Defendants cite Puluti v. Muliufi, 4 A.S.R. 672 (1965).
While defendants have styled their motion as one to dismiss, they have done so without *134sufficient particularity to indicate the defense(s) asserted, as required under TCRCP Rule 12(b). The Court, however, views the motion as addressing, the defense of failure to state a claim under Rule 12(b)(6), as opposed to defenses of avoidance under Rules 12(b)(1)-(5) and (7). As noted above, the latter basically address procedural defects in the claim, while here, defendants’ motion alludes to a statute (A.S.C.A. § 37.0103) as a basis in law, to bar relief.
The often stated standard with motions of the type before us is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41 (1957); Scheuer v. Rhodes, 416 U.S. 232 (1974). Given this standard, it has also been said that dismissal is only proper "when some insuperable bar to relief is obvious from the face of the complaint." Battle v. Liberty Nat. Life Ins. Co., 493 F.2d 39, 44 (5th Cir. 1974), cert. denied 419 U.S. 1110 (1975).
On the above, and considering the cited enactment, as well as having perused the complaint with the required liberality, the Court concludes that the bar1 spoken of in the enactment, may only sensibly operate against an objector if in fact the proposed registrant has complied with the statutory procedures set out thereunder. See A.S.C.A. § 37.0103(c). These procedures were obviously designed to give notice to all potential objectors to a proposed registration. See §§ 37.0102(c) and 37.0103(a).
We find no insuperable bar to relief as being obvious from the face of the complaint and therefore deny the motion.
It is accordingly Ordered that the proceedings herein are stayed pending satisfactory compliance with the requirements of A.S.C.A. § 43.0302(a).
For purposes hereof, we do not at this stage intimate a position one way or the other on the merits of this defense. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485607/ | On Motion for Judgment against Garnishees:
Plaintiff, the Development Bank, had judgment in the amount of $85,995.73 against defendants Frank and Leleaga Reed. On May 1, 1987, plaintiff served a notice of garnishment on the Credit Union, forbidding it to pay any debt it might owe to the Reeds and requiring it to retain any of. the Reeds’ property that might be in its possession. The notice also required the Credit Union either to answer a set of interrogatories propounded by the Development Bank or to appear in court to answer *137questions about any property and debts of the Reeds.
The Credit Union eventually appeared in court and admitted that both of the Reeds had savings accounts in the Credit Union, but asserted that the bulk of the funds in these accounts were pledged to secure loans to the Reeds from the Credit Union itself. The Credit Union maintains that the pledge gives it a lien prior to that of the Development Bank.
The Development Bank maintains that no law of American Samoa provides for a such lien; that the Credit Union did not comply with A.S.C.A. § 27.1510(2), providing that certain security interests are ineffective unless recorded in the office of the Territorial Registrar; and that the Credit Union lost any lien it might have had by giving Mr. Reed "constructive possession" of the funds and letting him "exercise dominion" over them by using them to pay off the Credit Union loan on May 18.
No territorial statute provides for the security device known as pledge. Indeed, there are hardly any statutes in American Samoa dealing with secured transactions. This does not mean, however, that it is impossible to have any such transactions. Rather, they are governed by common law principles except where those principles have been modified by statute or are otherwise inappropriate to local conditions. See A.S.C.A. § 1.0201 (reception of the common law in American Samoa); Tung v. Ah Sam, 4 A.S.R. 764 (1971) (in construing the common law, the High Court should ordinarily follow the Restatement of the Law).
Pledge was an institution firmly established in the common law. The first section of the Restatement of Security (1941) provides:
A pledge is a security interest in a chattel or in an intangible represented by a bailment for the purpose of securing the payment of a debt or the performance of some other duty.
As long as the pledgee retains possession of the thing pledged, he has a lien on it superior to those of judgment creditors. See Restatement of Security § 28 (1941). The essence of pledge is that the pledgor retains title to the property while transferring possession to the pledgee in order to *138secure a debt. Intangibles (such as the funds in the Reeds’ savings accounts) can be the subject of a pledge, but it is harder in such cases to determine who has "possession" of them. Courts have generally found sufficient possession of an intangible if the pledgor effects the transfer of an "indispensable instrument" that stands for the right to the intangible. If there is no such instrument, the pledgee must establish that he had actual control over the funds to the exclusion of the pledgor.
In this case the Credit Union has established that it had control over the pledged funds. According to the terms of its loan contracts with the Reeds and other borrowers, the borrower must deposit money into his savings account every two weeks by automatic payroll deduction. These deposits continue until the amount in the savings account is equal to half of the amount borrowed. During this time and thereafter the borrower must also make automatic payroll deposits to pay off the loan itself. All funds in the savings account are frozen --- that is, no withdrawals are allowed--until the amount due on the loan has been reduced to an amount lower than the amount in the savings account. At that point the borrower may withdraw only the excess; funds must be left in the account that are sufficient to secure the entire remaining balance on the loan.
This procedure establishes the pledgor’s dominion to our satisfaction. It is quite similar to other arrangements that have been held to create liens superior to those of judgment creditors. In Duncan Box & Lumber Co. v. Applied Energies, 270 S.E.2d 140 (W. Va. 1980), a bank made a business loan to the defendant for the purchase of a tract of land for subdivision and resale. A deed of trust served as security. When the defendant sought further financing to bankroll the actual resale, the bank required additional security in the form of a "reserve account." Defendant would maintain a balance of at least 25% of the unpaid debt and the bank would retain exclusive control of the account. The bank filed no financing statement to memorialize this security interest. After the defendant obtained the loans and incurred debts to third parties, it went out of business. A third party judgment creditor sought to satisfy its judgment by attaching the funds in the reserve account. After finding that ”[t]he agreement creating the reserve account was essentially a common law pledge," the court held the bank’s *139interest in the reserve account superior to that of the judgment creditors. 270 S.E.2d at 142.
The Duncan Box court noted that the pledge of a bank account is assessed under common law principles rather than the provisions of the Uniform Commercial Code or other statutes. Even though there was no "indispensable instrument," the agreement was "unmistakably intended to give the bank collateral security." Id. at 145. The defendant was required to make periodic payments into the account and had no access to deposited funds; only the bank could reach them.
The court further observed that it would be difficult if not impossible for a bank to prove a pledge interest in a bank account to which the depositor had withdrawal rights. 270 S.E.2d at 146 n. 11. Cissell v. First National Bank of Cincinnati, 476 F. Supp. 474 (S.D. Ohio 1978), also suggests this distinction. In discussing a statutory "security by possession" mechanism "akin to the common law ’pledge’," the court found no security interest in a bank account from which the debtor freely withdrew. Id. at 490-91. The court stated two important caveats. It stressed that its holding applied only to the facts as they existed before the parties had established a "collateral" account, more like that involved in the present case, which might have fit the requirements of a common law pledge. Id. at 491 n.9. Furthermore, the court declined to discuss the possibility of a security interest in an account containing funds alleged to be security commingled with other funds.
Duncan Box and Cissell indicate that funds held in the exclusive control of the creditor as security for a debt establish a common-law pledge even in jurisdictions in which the law of secured transactions is mostly statutory. This is part of the answer to the Bank’s contention that the Credit Union’s- lien is ineffective for failure to comply with the recordation statute. The rest of the answer is suggested by a perusal of the language and structure of the statute itself. A.S.C.A. § 27.1510 provides that no "mortgage, bill of sale, conditional sales contract, deed of trust or conveyance of personal property which is not accompanied bv a permanent delivery thereof to the vendee" is valid “as to persons who do not have actual notice" unless certain conditions are met. (Emphasis supplied.) The conditions are recordation, a writing signed in the presence of a *140witness, and an accurate description of the thing sold or secured and of the consideration. Id.
The obvious purposes of the statute are (1) to protect people who might otherwise extend credit to. other people in the mistaken belief that they own the things they possess and that those things are therefore likely to be available as security for any unpaid debts; and (2) to foil fraudulent assertions by judgment debtors that property in their possession actually does not belong to them but has been purchased by or hypothecated to friends or relatives. The transactions referred to in the statute are those which attempt to create non-possessory security interests.1 In the case of possessory interests, the possession of the thing by the creditor is at least as effective as recordation would be in giving notice to innocent third persons that the debtor may not own the thing free and clear. It is extremely unlikely, for instance, that anyone would extend credit in the *141belief that the debtor has ah unencumbered interest-in a- bank account unless this has been confirmed- by the bank itself.2
The principle of A.S.C.A. § 27 15-10. is the .same" one that generated the distinction between the common-law institution of pledge and non-passessory devxces such as.mortgage: possession is essential to- the former, while recordation or- some other substitute for possession is essential ' to- the latter. This distinctionhas survived .the enactment of -the secured- transactions statutes rn the United States, and ft is still the law-in American Samoa.
We- also disagree with, the Development Bank’s contention that- the Credit Union gave Mr. Reed-"constructive possession"- or allowed him to. "exercise dominion" over the funds by allowing him to use ^IST3-. 80 in the pledged account to payoff .the loan for-which it.was -pledged. That the funds were, earmarked for the. payment of - the loan was the very reason neither Mr. Reed nor. the Development Bank had any right to them,--.paying- off the secured loan was- the only thing the Credit Union crouldallow^ Reed to do. with- the account that did not constitute possession or dominion. The payment of the loan with the secured funds amounted to a bookkeeping entry rather than a real transfer of assets; it- did not-, enrich Mr. Reed and it did not iniure the Bank or any other creditor. Reed’s creditors- had exactly the same rights against exactly the same amount of his property- after the transaction as they did’ before it-
The Credit Union admits that it posses-s-es,. or did possess at some time, after- it was- served with t.he.notice of garnishment, $&61.0-5 in unsecured funds belonging- to Frank Reed. The Development Bank maintain-s that the correct amount is &7B9.94. The Bank appears to be correct: the Credit Union *142allowed Mr. Reed to withdraw $400 on May 5 and $289 on May 18, and still holds $100.94.
Judgment will issue for the Development Bank against the Credit Union in the amount of $789.94.
Although the requirement of "permanent delivery to the vendee" seems to be explicit only in its application to the last item on the list (conveyances of personal property), the distinction is implicit with regard to the other transactions covered by the statute. The security devices on the list (mortgage, deed of trust, and conditional sales contract) are those in which the person possessing the security interest does not possess the thing itself. The only remaining item on the list is the "bill of sale"; since such a document would purport to embody a "conveyance," the statute would not prevent it from being effective without recordation so long as it involved personal property and was accompanied by a transfer of possession.
We are not called upon to decide whether a financial institution could lose its prior lien on pledged funds by confirming the debtor’s ownership of the funds without mentioning the encumbrance on. them. Assuming that the person thus misled acted to his detriment on the information, such a result would seem quite consistent with the principles governing the law of secured transactions. It did not happen, however, in this case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485609/ | Plaintiff files for divorce upon the grounds of adultery and "ill usage and habitual cruelty." The petition does not seek ancillary relief in connection with custody of the parties’ minor children, nor in connection with support responsibilities.
Respondent herein did not file an answer to the petition and, while respondent is technically in default, the Court nonetheless required petitioner to be put to proof in accordance with T.C.R.C.P. Rule 55(e), to establish his right to relief by satisfactory evidence.
At the conclusion of petitioner’s evidence and examination of the petitioner by the Court in accordance with A.S.C.A. § 42.0205, the Court determined from the evidence presented that the case of the petitioner had been proven, and granted the petition. At this point, the respondent, who *147had not earlier come forward when the case was called, requested of the Court to be heard. The matter was reopened, and. the Court heard from the respondent.
Respondent testified that she was not the only adulterous party, however her testimony was conflicting. At first she stated that she was seduced into an adulterous affair with the complicity of her husband and the third party involved. Later on, respondent' testified that she never engaged in any adulterous relations with this third party.
Respondent’s primary point, as far as the Court could gather, was to impress upon the Court that petitioner was also guilty of wrongdoing in order to mitigate her occasions of infidelity. Respondent countercharged in her testimony that petitioner was cohabiting with a fellow employee; and that this cohabitation had resulted in the fellow employee’s giving birth to a child of petitioner’s.
When respondent was questioned as to the source of her knowledge in connection with her allegations, she stated that her information was gained from certain members of her family. She had no direct knowledge herself save to the extent that she had seen her husband’s alleged paramour driving around in her husband’s pickup truck during working hours.
Petitioner, on rebuttal, testified that at the time he was Assistant Manager for Food and Beverage at the Rainmaker Hotel, and in fact his vehicle was frequently used by his subordinates to make purchases for the Hotel. The fellow employee who was accused as his cross co-respondent, was one of a number of Hotel employees who used petitioner’s vehicle during working hours. He had put this explanation to his wife before and also explained to her that the woman who was the subject of her suspicions was already a happily married woman. Consistent with petitioner’s responses to the Court’s earlier examination, petitioner denied any wrongdoing on his part.
After weighing the testimony of both parties, the Court concludes that the evidence preponderates in favor of petitioner. After reopening the matter, the court has heard from respondent to see if there existed any legal ground for denying the petition under A.S.C.A. §8 42.0206 and 42.0208.
*148We find no such grounds, being impressed with petitioner’s superior creditability while, on the obverse, we find respondent’s allegations of fault with petitioner as being premised on the shaky foundations of hearsay, as well as conjecture.
The petition for divorce is granted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485612/ | Opinion and Order on Motion to Enforce Writ of Garnishment:
*156Plaintiffs were awarded a judgment of $51,243.74 against defendants Frances Opelle and Samoa Bottling Corporation. William Opelle, the husband of Frances and the co-owner of the corporation, was dismissed from the case because he had received a discharge in bankruptcy. The Opelles have removed to California. Plaintiffs served a writ of garnishment on Suhayl Alai, who manages Mrs. Opelle’s property in American Samoa, demanding that the rents he receives from the property be paid to them until their judgment has been satisfied.
Mr. Alai admits that he receives rents on three properties belonging to Mrs. Opelle. The rent on one property is $2000 per month, on a second property about $750 per month, and on a third property about $600 per year. He maintains, however, that all such proceeds "are subject to a security agreement executed by Frances Opelle to Nettie Cressman." Mrs. Cressman is the mother of William Opelle.
Assuming that the two security agreements executed in favor of Mrs. Opelle’s mother-in-law were not merely sham transactions designed to shelter income from creditors, the plaintiffs would still seem to be entitled to receive the rents in satisfaction of their judgment. A.S.C.A. § 37.1005 provides that "[i]n the absence of an agreement to the contrary, the mortgagor . . .is entitled to the use or possession of it until default." Although one of the security agreements transfers title to "the said real estate . . . and the rents, issues and profits thereof" to Mrs. Cressman, this transfer of legal title was clearly intended as a security device rather than as a conveyance of the present right to possess the land and the rents. Indeed, the agreement also provides that Mrs. Opelle "may retain possession of . . . and may use and employ" the land. Since Mrs. Opelle and not Mrs. Cressman has the present right to receive the rents, their garnishment by the creditors of Mrs. Opelle does not interfere with the rights of Mrs. Cressman.
Our conclusion is bolstered by the evidence of what has actually been happening to the rent money. Mr. Alai testified that he makes out the checks jointly to Mrs. Opelle and Mrs. Cressman, and mails them to Mrs. Opelle. A statement prepared by a California accountant employed by Mrs. Cressman indicates that substantially less than all of the *157rent money received by Mrs. Opelle has been applied to the balance on her debt to Mrs. Cressman.
Although it is possible that Mrs. Opelle is in default on her debt to Mrs. Cressman, this has not been alleged by Mr. Alai and we have insufficient evidence from which to conclude that a default has taken place. If this were alleged, we would need to decide whether the security agreement was a fraudulent conveyance designed to defeat the interests of other creditors. This would require evidence, inter alia, of the terms on which Mrs. Cressman acquired the note from the original creditor and of the consideration (if any) that she gave Mrs. Opelle in exchange for the execution of mortgages to secure pre-existing obligations that had theretofore been unsecured.
Deciding whether Mrs. Cressman was in default on the loan would raise similar questions, principally concerning whether Mrs. Cressman has tried to collect the debt in ways that inconvenience her daughter-in-law and not just her daughter-in-law’s other creditors. If Mrs. Opelle’s relations with Mrs. Cressman are to be interposed as obstacles against the collection of debts owed to third parties, they must be shown to have been conducted at arm’s length.1
Accordingly, Mr. Alai should surrender to the Clerk of Courts the rent money in his possession, as well as all rents received in the future and any other property belonging to Mrs. Opelle. The clerk will transfer the funds to the plaintiffs.
It is so ordered.
This is of course quite possible; indeed, plaintiff Margaret Landrigan is herself a sister of Mrs. Opelle. It appears from the present record, however, that Mr. Alai, the Opelles, and Mrs. Cressman are on one side and the Landrigans on the other. Fortunately, A.S.C.A. g 37.1005 makes it unnecessary for us to characterize the transactions among these parties on the basis of the sketchy evidence now before us. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485613/ | *159Opinion and Order on Post-Trial Motions:
Plaintiff Fonoti was adjudged the owner of communal land called Alatutui in Tafuna. Fonoti v. Fagaima, LT No. 73-83 (decision rendered April 7, 1986); Fagaima v. Fonoti, AP No. 12-86, 3 A.S.R.2d 112 (1986). Plaintiff has moved to evict a number of people who are currently occupying the land; these people include Mataese Manuma, who was a defendant in the case, and "Reverend Peleti and the Methodist Church," who were not defendants. The eviction of Reverend Peleti and the Methodists should have been brought as a separate action, but since they have been served with process and have participated in the hearings on the post-trial motions we will adjudicate their rights in this action.
The Court finds the facts to be as follows:
(1) The Manuma family first came on this land as licensees of the Fonoti family during the late 1940s. Fonoti v. Manuma, No. 18-1962 (per Morrow, C.J.).
(2) The Methodist congregation came to occupy the land on which the church now stands also during the late 1940s and also as licensees of the Fonoti family.
(3) Despite the status of the Manumas as licensees of the Fonotis and their adjudication as such in the 1962 case, defendant Mataese Manuma has for a number of years acted inconsistently with the continued ownership of the land by the Fonoti family and with his continued status as a licensee. These inconsistent actions are recounted in some detail in the opinion rendered after the trial of this case; they include the assertion in court that the Fonoti family does not own the land and the sale of parts of the land to third parties.
(4) Although Chief Fonoti was originally regarded as the "leading matai" in the Methodist congregation and had a substantial say in church decisions, in recent years Chief Fagaima has replaced Chief Fonoti in this role.
(5) Chief Fonoti contributed a substantial part, but by no means all, of the funds raised to build the present church building. It was not established, however, that there was any express or *160implied agreement that he would thereby acquire a property interest in the church building.
(6) The church building is worth some amount not less than $10,000 and not greater than $50,000.
From these facts we draw the following conclusions:
(1) Mataese Manuma is entitled to remove any buildings and fixtures belonging to him and to harvest any crops planted before April 7, 1986. Since he has occupied the land inconsistently with the terms of his license from the Fonoti family, however, and since he is not entitled to claim (at least not since 1962) that he believed himself in good faith to be the owner of the land, he is not entitled to any compensation for such improvements as permanent plantings. (In any case, his rent-free use of the land is adequate compensation for the value of any improvements.)
(2) Although Fonoti would seem to be entitled to compensation from Manuma for the damages he suffered when Manuma sold parts of the land to third persons, we have not been presented with sufficient evidence of the amount of such damages on which to base such an award. We therefore decline to award any such damages.
(3) Although there was nothing in the original arrangement between Fonoti and the Methodists that gave him a right to terminate their license if he should ever cease to have influence in church affairs, both sides agree that the continued presence of the church on Fonoti land would be inconsistent with either side’s quiet enjoyment of its property rights.
(4) Since the removal of buildings from land tends to produce economic waste, and since the irreconcilable differences between Fonoti and the Methodists have not been shown to have been brought about by the malice or bad faith of the Methodists, the law would ordinarily give the Methodist congregation a choice between removing their building from Fonoti land or leaving their building on the land and receiving fair compensation from Fonoti.
(5) Both Fonoti and the Methodists, however, have indicated a strong preference for the removal of the building rather than for an arrangement whereby Fonoti compensates the Methodists for its *161fair value. Accordingly, we order that they have the right to remove the building. (If they remove any part of it, they should remove all of it including the foundation.)
(6) Both the Manumas and the Methodists should remove themselves and their property from the land within sixty days.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485615/ | This is a traffic matter originating in the District Court. The defendant appeals by way of trial de novo to the Trial Division of the High Court pursuant to A.S.C.A. § 3.309.
FACTUAL & LEGAL BACKGROUND
Defendant was cited for careless driving in violation of A.S.C.A. i 46.1907(2)(B), a class C misdemeanor carrying a potential term of imprisonment of fifteen days. He moved to dismiss the complaint and summons below, which motion was *2denied. Upon trial, the defendant was convicted and accordingly sentenced.
Defendant restates his motion made below and the facts giving rise to the motion are stipulated as follows:
On the day of the alleged violation, the investigating officer attended the scene with both parties present. After the officer had completed his investigations, both parties were free to leave. However, two days afterwards, the officer issued a traffic citation to the defendant.
The defendant moves to dismiss the citation as defective. He argues that traffic laws which carry penalties of imprisonment are criminal laws, the prosecution of which requires compliance with the general criminal procedure for the issuance of "summons upon a complaint before a judge," A.S.C.A. § 46.1221 (a).
The officer had in fact issued a Uniform Traffic Ticket and Complaint-Summons to the defendant under the Procedure for Traffic Offenses Act, A.S.C.A. i 22.0801 et. seq.
Defendant, on the other hand, argues that the alternative Traffic Procedure statute is limited by its language to those circumstances where the officer is on the scene of a traffic accident. That if after the officer’s personal investigation, and if- probable cause is presented, the Uniform Traffic Ticket and Complaint-Summons may only then be utilized and issued to any driver involved in the accident, in lieu of pursuing a summons under the general criminal procedure. Defendant alludes that under the general criminal procedure, due process is granted, and thus the converse of hi.s contention is that traffic citations pursuant, to the traffic procedure enactments, unless issued at the scene, are short of due-process requirements.
Defendant’s reasoning is premised on his construction of A.S.C.A. ii 22.0802 & 22.0803. These provisions respectively read:
i 22.0802:
The procedure set forth in this chapter [ 8 ] may be employed in lieu of all others for violations of this title [relating to *3traffic offenses] not amounting to felonies. (Emphasis added.)
§ 22.080-3:
Except for felonies, a police officer at the scene of a traffic accident may issue a written traffic citation to any driver of a vehicle involved in the accident when, based upon his personal investigation, the officer has reasonable and probable grounds to believe that the person has committed an offense under the provision of this title in connection with the accident. (Emphasis added.)
It is defendant’s position that.the underscored word "may", as appearing in both provisions, implies a restricted exception to the general criminal procedure requirements mentioned above for the initiation of misdemeanor prosecutions. This restricted exception is "on the scene/probable cause."
CONCLUSION
We disagree with defendant’s overly restrictive reading of the Procedure for Traffic Offenses Act. The legislative purpose in enacting Chapter 8 is clearly set out in Section 22.0801, and that 'is ". . . to provide, a procedure for the adjudication of all vehicle code violations not amounting to a felony .... To this end, the procedure established by the, American Bar Association Standing Committee on Traffic Court and specifically the Uniform ' Traffic Ticket and Complaint is noted and approved." (Emphasis added.. ) .
The employment of the word "may" in the succeeding provisions relied on by the defendant denotes an ,“alternative" procedure for initiating the prosecution of traffic misdemeanor/infraction violations. The obvious legislative goal was to simplify the processing of minor traffic violations. In Thompson v. State, 570 S.W.2d 262, 266 (Ark. 1978), it was said that the use of the Uniform, Traffic Ticket. Complaint-Summons reduces delays, alleviates docket congestion and permits more economical use of the facilities of the police department, traffic courts, and the personnel of. the prosecuting attorney’s office. It would seem *4to us that to limit the scope of the enactment to that suggested by defendant would be largely to frustrate the whole purpose behind the legislative exercise.
The legislature has specified clear standards for the contents, of a Uniform Traffic Ticket and Complaint-Summons. See A.S.C.A. § 22.D807. The succeeding § 22.0810(b) is, by its terms, clearly in lieu of genera.1 criminal procedure as it provides that the complaint shall, be filed with the Clerk and sworn to by a police officer. Finally, i 22.0810, . while' stating that "the summons and complaint of the Uniform . Traffic ticket, shall be considered sufficient information to initiate and sustain .an action under . . ." the traffic code, goes further to provide that any due process deficiencies in notice given by the Uniform Traffic Ticket and Complaint may be cured by "proper" motion by the defendant' to require the government to furnish further particulars. Thus the deféndant’s due process reservations are less than apparent. See also People v. Boback, 243 N.E.2d 135 (N.Y. 1968).
On the reasons given above, the motion is denied.
TIMELINESS OF APPEAL
While raised by neither party herein, the record seems to suggest that final judgment of the Court below was entered June 9, 1987.' Pursuant to District Court Rule 15, an appellant seeking an appeal by way of trial de novo before the trial division must file his notice of appeal within five days of entry of judgment in the District Court. In the present matter, defendant’s notice of appeal appears to have been filed on the twentieth day succeeding the date of entry of judgment.
Defendant’s right to appeal would thus seem to have lapsed, unless the Court is missing something on the .. record. To this end, an order will also enter requiring defendant to show cause why his appeal should not be dismissed summarily, within ten days from date of entry hereof.
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485617/ | *17Petitioner, Tamafili Suisala, prays for a writ of habeas corpus to contest the validity of his incarceration pursuant- to judgment . and sentence entered by this court in American Samoa Government v. Tamafili Suisala, CR Nos. 4 & 5-85.
Petitioner was initially held over to the High Court to answer the charges in CR No. 4-85 of ten counts of embezzlement, ten counts of forgery, and one count of tampering with a witness in violation of various. provisions of ' the Criminal Code. Consequent to a plea bargain, the information was amended to contain eight counts of embezzlement and one’ count of tampering, with tjie other matters being dismissed. Petitioner, who was at all times represented by the Public Defender, entered pleas of guilt to the information as amended.
With regard to CR No. 5-85, petitioner' was initially charged with thirty-one counts of embezzlement and thirty-one counts of forgery. The information, as a result of plea bargaining,"was amended to , contain three counts of embezzlement with the dismissal of the others. Petitioner entered herewith ple.as of guilt respectively.
Resultantly, petitioner was adjudged and sentenced on the consolidated eleven counts of embezzlement to terms of imprisonment of seven years for each count, with -sentences to run concurrently. He was further sentenced to a term of five years imprisonment in connection with the count of tampering, which sentence was to run consecutively with the others.
Petitioner’s grounds for relief under the present-proceedings are:
(a) that petitioner in the. aforementioned criminal matters was denied his constitutional right to effective assistance of counsel in derogation of his sixth amendment rights under the United States Constitution, and his rights pursuant to art. I, i 6 of the Revised Constitution of American Samoa; and
(b) that the Court in the said criminal matters did not establish a factual basis for accepting pleas of guilt and that a verbatim record *18of the plea bargain proceedings was no longer available.
Good cause appearing, the writ was issued to respondents herein, and petitioner was granted an evidentiary- hearing on his allegations. Petitioner appeared with his Counsel, Frank Swett, and respondents with Assistant • Attorney General James Doherty.
HABEAS CORPUS
The common law writ of Habeas Corpus ad subjiciendum, or "the great writ" referred to in the federal constitution, art. I, § 9, is also preserved and made available in the Territory by art. I, § 7 of the Revised Constitution of American Samoa. The trial division of the High- Court of American Samoa has, by statute, specific jurisdiction to issue "all writs". See A.S.C.A. § 3.0208 (a)(7).
Historically, the writ was designed to obtain immediate relief from illegal detention, ana in this regard the purpose of the habeas corpus ■proceeding '. . . is not to inquire into the criminal act complained of, but into the right of liberty notwithstanding the act." Ex parte Tong, 108 U.S. 556, 559 (1883). The proceeding is not part of the underlying criminal case, but is an independent, collateral attack on the conviction. Peyton v. Rowe, 391 U.S. 54 (1968); Fay v. Noia, 372 U.S. 391 (1963); Ex parte Tong, supra. Further, habeas corpus is not a substitute for a writ of error nor is it in any sense an appeal, and therefore the writ is not the proper means by which to assail mere errors and irregularities i'n criminal proceedings. Eagles v. United States, 329 U.S. 304 (1946); Smith v. Bennett, 365 U.S. 708 (1961).
On the other hand, the writ reaches errors of constitutional dimensions. As the Supreme Court stated in Preiser v. Rodriguez, 411 U.S. 475, 485 (1973), "[0]ver the years, the writ . of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law, even though imposed pursuant to conviction by a court of competent jurisdiction." (Citations omitted).
*19With these preliminary observations, we consider petitioner’s claims.
DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL
Petitioner alleges deprivation of sixth amendment rights in that his court-appointed counsel,, the Public Defender: .''failed to use basic methods of discovery"; failed to interview the former president of the Development Bank, Auina To’oto’o, whom • petitioner considered a "key witness" to his defense; failed to undertake, or was minimal with, pre-trial investigation; failed to explain' to petitioner that consecutive sentences could be imposed; failed to inform the Court of facts consistent with petitioner’s innocence, which should have been placed before the Court prior to the acceptance of guilty pleas; and failed to make a post-trial motion for reduction of sentence, or to inform petitioner of his right to such a motion.
At least since Gideon v. Wainwright, 372 U.S. 335 (1963), it has been settled law that the right to counsel secured by the sixth.amendment, and made applicable to the states by the fourteenth amendment, is a fundamental, right to a fair trial: See also Hamilton v. Alabama, 368 U.S. 52 (1961). This right to . counsel is also part of the fundamental law in the Territory by virtue of article I, section 6 of the Revised Constitution of American Samoa and statutorily embodied in A.S.C.A §§ 46.0502 and 46.1001.
In expanding on this right, the Supreme Court recently clarified that the sixth amendment goes beyond the perfunctory appointment of counsel and the perfunctory performance of counsel’s services. In United States v. Cronic, 466 U.S. 648 (1984), the Court reiterated that the right to counsel is the right to "effective" assistance of counsel. The Court went on to state that the standard for effectiveness mandated by the sixth amendment is:
the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversary testing. When a true adversarial criminal trial has been conducted --- even if defense counsel may have made demonstrable errors --- the kind of testing envisioned by the Sixth Amendment has occurred.
*20Id. at 656. By way of footnote, the Court added:
Of course, the Sixth Amendment does not require ’ that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot creaite one and may disserve the interests of his client by attempting a useless charade. ' At the same time, even when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the X^roseeution to its heavy burden of proof beyond reasonable doubt. And, of course, even when there is a bona fide defense, counsel may still advise his client to plead guilty if that advice falls within the range of reasonable competence 'under the circumstances.
Id. at n. 19.
In the Court’s view, the focus of the inquiry is not- on- the relationship of -the criminal defendant and his lawyer but on whether there has been meaningful adversarial- confrontation. The accused in order to make out a claim for "ineffective assistance" can only do so by pointing to specific errors- made by counsel at trial.
Also in a decision handed down the same day, Strickland v. Washington, 466 U.S. 668 (1984), the Court talked of "effectiveness" as being measured against an objective standard of "reasonableness" under prevailing professional norms as reflected in American Bar Association standards and the like. The Court was also careful to caution that such standards were but guides to determine reasonableness, and reaffirmed established judicial restraint from second guessing counsel’s tactical decisions from hindsight.
The Court in both cases made clear also that the burden of proving ineffectiveness of counsel, falling below the constitutional measure, lay with the defendant. The standard of proof is viewed against a strong presumption of reliability, in favor of effectiveness, and not only must the accused sufficiently identify unreasonable errors on' the part of trial counsel, he must also demonstrate that absent such errors, it would be. *21reasonably likely that the result of the case would have been different.
Given these guides, we turn to petitioner’s proofs.
We find petitioner’s allegations concerning lack of pretrial discovery and investigation to be entirely without foundation. Against the absence of any evidence by petitioner in this regard, we find the Court’s files on the criminal matters to be abundantly evident with extensive pre-trial discovery measures. We also accept the evidence of the Public Defender, which was undisputed by petitioner, that his office undertook numerous interviews of potential witnesses and reviews of documented evidence produced in connection with the charges. To this end, the Public Defender also submitted his work files. A perusal of these files highlights petitioner’s allegations as either being made with abject recklessness or by outright fabrication.
The Public Defender testified that petitioner was initially charged with some sixty or eighty counts of embezzlement and forgery and he was informed of a number of other potential charges being processed by the Attorney General. In response to discovery, his office obtained many documents in the way of checks and accounts, as well as ail the police and investigation reports leading up to the charges. He recalled numerous conferences with petitioner on this material. In the course of a number of investigations he was pursuing, he talked to different witnesses and people, and confronted petitioner with a number of inconsistencies he found with what petitioner had relayed to him. He further stated that this was not the usual case, in that he did not initiate dialogue on plea arrangement. It was the client who earlier urged the Public Defender to attempt to secure the "best deal."
When he entered into plea negotiation, the Public Defender testified that he kept petitioner informed during their various meetings. He further added that he had always advised the petitioner that he was prepared for trial if petitioner was not satisfied with the resulting plea agreement. In the course of these discussions with his client the Public Defender reviewed the possibility of *22winning and losing, and advised his client of the potential scope of punishment,1
On the other hand, the extent of petitioner’s testimony before us was the attempt to impress innocence. He testified that the $75,000 which he was accused of taking from. Development Bank was utilized to paint and repair the Lumana’i Building, belonging to the bank. , In support of this, petitioner invited the Court to consider the fact that Chief Justice Gardner, who presided at the criminal matters, had sent an investigator to Western Samoa in the attempt to discover where the money went. That investigation did not reveal any evidence of the money having gone to Western Samoa. On the other hand, petitioner claims, the money was neither visible in American Samoa, given his assets and the extent of his liabilities to- the local banks.
As alluded to above, these proceedings are concerned neither with guilt nor innocence. Ex parte Tong, supra. Rather, these proceedings are concerned with the legality or illegality of petitioner’s detainment notwithstanding the fact of -conviction. While petitioner has complained of the ineffective assistance of counsel with pre-trial duties, he has utterly failed in his burden to this regard. On the other hand, the evidence has been overwhelmingly to the contrary and shows the Public Defender to have done exactly what is demanded of him by prevailing professional norms. More will be said on petitioner’s above testimony.
On petitioner’s other allegations concerning ineffective representation of counsel, we hold that petitioner has failed, even to attempt, to discharge the burden required of him.
The importance he placed in the testimony of Auina To’oto’o is that the latter as then-president of the Development Bank had sanctioned the paint and repair work --- and therefore the expenditures *23--- to the Lumana’i Building which petitioner had undertaken.
We fail to see how this could have influenced a different outcome in the criminal proceedings. Firstly, counsel was unable to talk to Mr. To’oto’o, since Mr. To’oto’o was also criminally charged at the time with offenses of a similar import, and he was at the time under the advice of his own.counsel to remain silent. Secondly, we are reluctant to second guess counsel’s tactical strategy if, as petitioner alleges, counsel did not feel that the Court would believe Auina To’oto’o. Thirdly, it is less than reasonably likely that the knowledge and complicity of Mr. To’oto’o (who was petitioner’s superior at the bank) in the fact of misappropriation of bank funds would constitute the defense that would alter the outcome of the criminal matters. Indeed, in the light of other matters we discovered on record, the attempt of such a defense would approach a "useless charade". '
On his charge that counsel failed to frlace before the Court facts consistent with innocence, the facts alluded to are those related to the $75,000 being expended on the Lumana’i Building. Again, how this would alter the outcome of the criminal proceedings is unclear. In any event, petitioner himself related this story to the Court at his sentencing on March 15, 1987, as evident by the transcripts of those proceedings. For all petitioner’s concerns, the facts or allegations he desired before the Court were in fact before the trial court at the time.
Petitioner also faults counsel in faili^s oo explain to him the meaning of consecutive sentences. Petitioner’s testimony in this regard is the exact opposite of the Public Defender’s, who testified that he' had discussed with petitioner the potential range of sentence.
We have no reason to doubt the Public Defender’s credibility but have been presented cause to doubt petitioner’s, in the manner of his making other positive and serious allegations without the semblance of foundation.' We choose in favor of the Public Defender’s recollection and accordingly need not decide whether counsel’s actual failing to review with a client the meaning of consecutive sentences, gives rise to a *24constitutional or fundamental flaw, violative of the sixth amendment.
Finally petitioner seeks habeas corpus relief in that counsel failed to make a post judgment motion for a reduction in sentence. On this ground, the Court is unable to conclude that such a failure approaches constitutional dimensions. At the sentencing proceedings, a number of impressive character witnesses were called on petitioner’s behalf. Even a medical report on petitioner’s health was presented to the Court in mitigation of sentence. These matters considered, the Court rendered sentence accordingly. There has been no showing by petitioner herein of any additional grounds which would subsequently move a change of sentence given. Indeed the sentences rendered were within the lawful limits provided by statute and within the Court’s jurisdiction, and accordingly the sentences in no way touch on any suggestion of illegal detention. The ground as advanced is incontextual and inappropriate to these proceedings.
On the foregoing, it is the conclusion of the Court that petitioner has failed to establish that he was without the effective assistance of counsel within the constitutional meaning of that term.
FAILURE TO FIND A FACTUAL BASIS
Rule 11(f) of the Trial Court’s Rules of Criminal Procedure provides as follows:
Notwithstanding the acceptance of a plea of guilty, the Court should not enter a judgment upon such a plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
As noted by the Advisory Committee on the Federal Rules of Criminal Procedure, Rule 11(f) does not specify that any particular type of inquiry be made. However, in Santobello v. New York, 404 U.S. 257 (1971), the Court saw the rule as requiring the sentencing judge to develop on the record, the factual basis for the guilty plea, for example by having the accused describe the conduct giving rise to the charge. See also United States v. Rivera-Ramirez, 715 F.2d 453 (9th Cir. 1983). The cases have also admitted a number of other alternatives to satisfy the rule’s requirement. For example, *25the judge may summarize the indictment and ask the defendant if he understands the charge and whether he committed the enumerated acts. It is not necessary that the defendant establish in his .own words the factual basis. United States v. Lovelace, 683 F.2d 248 (7th Cir. 1982). The indictment itself may be specifically sufficient to establish the factual basis. United States v. Isble, 468 F. Supp. 152 (E.D. Tenn. 1979). Indeed, in United States v. Kritz, 586 F.2d 1178 (8th Cir. 1978), cert. denied, 442 U.S. 945, it was held that the exercise could be accomplished even without the defendant being addressed personally.
The rule itself envisages that the Court’s evaluation of a sufficient factual basis is not limited in time to the arraignment or T.C.R.Cr.P. Rule 11 hearing stage. The determination need not be made until prior to the time’ of judgment and sentencing and it is open to the court to look to other and " additional evidence sufficiently articulated on the record. See. e.g., United States v. Welterlin, 583 F.2d 346 (7th Cir. 1978), cert. denied, 439 U.S. 1127; Knight v. United Notes, 611 F.2d 918 (1st Cir. 1979).
With the foregoing comments, we look to-petitioner Suisala’s contention.
Contrary to petitioner’s assertion that a verbatim record of the criminal proceedings is not available, this Court has secured a transcript of those proceedings and copies have been supplied the parties. We also find as part of the record transcripts of depositions duly taken to preserve the testimony of witnesses Peni Fatu and Veve si. Gaopulu.
The record reflects that on February 22, 1985 the trial court was informed of a plea arrangement giving rise to amendments to the information and a motion for change of plea. Prior to taking the pleas, the Court directly informed defendant, that as a consequence of changing plea, defendant would necessarily waive his right to a trial by jury, his right to confront witnesses, and his right against self-incrimination. Counsel for plaintiff waived the reading of the resulting, information and defendant personally entered pleas to the various enumerated counts. The court further ordered a presentence investigation and invited the *26petitioner to give his "version of this unfortunate situation."
On or about March 15, 1985, the Court, prior to sentencing, invited the defendant to explain how the embezzled funds were expended. Defendant generally answered that the- amount of $75,000 was used to do repairs to the Lumana’i Building as well as to pay him for the repair work. Defendant also testified that while he was getting this special remuneration for attending to the Lumana’i repair work, he was also drawing regular salary from the bank as vice president. He decided to plead guilty in that part of the embezzled funds came to him personally, and he was aware on the advice of counsel that embezzlement was embezzlement whether the amount involved was one penny or $80,000.
The prosecution, on the Other hand, had a different version on the $75,000 ' which was presented to Court. Some thirty-one checks totalling $20,851 purportedly went to an Atamate Uta as annual stipend for janitorial services at the Lumana’i Building. The attorney general had an affidavit from Mr. Uta that petitioner presented 'him with checks of $650 every two weeks for his signature while Mr. Uta actually received only $250. On the money that was said to have been used to paint the Lumana’i Building, checks totalling $26,000.00 were issued to a Peni Fatu, and checks totalling $27,700.00 were issued to a Vevesi Gaopulu. The attorney general stated that while these men had worked on painting the Lumana’i Building, both were very surprised when apprised of the amounts said to have been paid to them by the Development Bank. It was also noted that some of these checks were signed by petitioner Suisala, who had signatory authority with the Development Bank.
The deposition of Vevesi Gaopulu revealed that he was a citizen of Western Samoa residing in American Samoa under the sponsorship of the defendant Suisala. He' acknowledged working temporarily at the Lumana’i Building for some three to four months and was paid $70 to $80 in cash by Suisala on a weekly basis. Mr. Gaopulu at deposition was presented a series of Development Bank checks made out to his name in the following amounts: $1,750; $950; $4,250; $5,500; $5,000; $4,500; and $5,750. He denied ever seeing these checks before or endorsing the same for payment.
*27Similarly, with the deposition of Peni Fatu we see the same scenario. In addition, Mr. Fatu te' tified about Mr. Suisala’s giving him $500 to leave for Western Samoa until the criminal proceedings with Suisala were concluded. Mr. Fatu attempted to depart the territory but was prevented by Immigration Officers owing to the pending cases. Mr. Fatu then met up again with Suisala, who took back his $500 and suggested that Fatu find a place to hide.
Considering the foregoing, we conclude that the criminal court had more than an adequate record to sustain a factual basis for the guilty pleas, and for judgment to be entered accordingly. In so concluding, we find that we need not intimate a view one way or other on whether an actual failing by a criminal court to comply with T.C.R.Cr.P. Rule 11(f) would constitute a constitutional or fundamental error that would give rise to habeas corpus relief.
CONCLUSION
It is the conclusion of the Court that the petition for habeas corpus relief shall be denied and that custody of the petitioner shall revert to respondents and the Executive Branch in accordance with judgment and sentence entered in cases docketed CR Nos. 4 & 5-85.
It is so ORDERED.
Petitioner, it will be noted, also complains of counsel for failing to advise him that sentences may be consecutive. Yet petitioner at the hearing herein attempted to frame the additional argument of "coercion to plea", in that counsel had waved at him the prospect of consecutive sentences. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485618/ | *29This case concerns the alleged wrongful death o-” Kiliona Logoa’i in an airplane crash. Plaintiff Axataua Logoa’i has moved for an order approving a settlement that has been reached with the defendant. She makes this motion in three capacities: for herself as surviving spouse; for the deceased and his estate as personal representative; and for the minor children as their guardian ad litem.
The settlement would award a total of $225,000. One-third of this would be deducted as attorney fees and costs. Prior to the deduction of fees and costs, the funds would be divided as follows:
To the estate of the deceased: 99,200.
To the plaintiff as surviving spouse: 86,800.
To the children:
Ma’alona 6,800.
So’oupu 9,300.
Kiliona 10,500.
Rosita 12,400.
The Court does not at present understand the basis for the proposed division of the $225,000. The division of this amount among the various plaintiffs was presumably of no concern to the defendant, ' its insurers, or its attorneys. Plaintiff and her attorneys were under a fiduciary duty to secure for the children the best possible settlement. The duty to be zealous in the protection of the interests of those to whom one owes a fiduciary duty is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary. Before approving the proposed settlement the Court is obliged- to satisfy itself that this duty has been observed.
As the Court presently understands the law regarding wrongful death and survival actions, most elements of awards in such cases --- the loss of financial support, companionship, affection, consortium, and parental guidance --- devolve directly upon the survivors. Only the damages suffered by the deceased himself (principally the pain and suffering incident to his death) would ordinarily accrue to the estate.. Many jurisdictions have adopted statutes under which even an action for these elbments could be brought *30directly.by the survivors, including the children of the deceased. See. e.g.. A.S.C.A. •§ 43.5052. Accordingly, the Court does not understand why the estate and the widow are each to receive about ten times as much as the average award to each child.
By signing the proposed-order the Court would certify that the fiduciary obligations established by the Court’s appointment of a guardian ad litem for the children had been met. For the reasons stated, I cannot make such a certification.
It is quite possible that under the circumstances of this case the proposed settlement is perfectly fair to the children. If so, counsel should state these circumstances upon a renewal of the motion. In the alternative, the Court would be willing to approve without further inquiry a settlement in which each child received twice as much as in this proposal, to be deducted pro rata from the proposed awards to the widow and the estate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485619/ | The Court has been asked to sign a "stipulated judgment." Although defendant is not represented by counsel, defendant is a corporation and is therefore presumed to be relatively sophisticated as defendants in these sorts of cases go. The Court is therefore willing to sign the judgment, provided that the officers of defendant corporation understand:
1) If they simply did not .contest the action and allowed judgment to be taken against the corporation, the interest awarded would be 6% (the amount the law prescribes in cases where the parties have not agreed on another amount) rather than the 14% provided in the stipulation; and
2) If they did not contest the action and allowed judgment to be taken against the corporation, no attorney fees would be awarded unless there was a provision for such fees in the contract or unless some extraordinary circumstance justified an award of attorney fees.
The defendants may have reasons to agree to a judgment substantially greater than would be taken against them if they simply did not appear. If so, the Court will sign such a judgment. If not, plaintiff remains free to take a default judgment for the principal amount of the debt plus interest at the legal rate of 6% and court costs of $5C. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485620/ | Opinion and Order on Motion for Reduction or Modification of Sentence:
Defendant, Michael Agasiva, prepared and filed pro se a- pleading styled "Motion for Reduction and/or Modification of Sentence". Amid the grounds asserted on the motion, the defendant alleges: the ineffective assistance of counsel; deprivation of his first amendment right to freedom of religion; discriminatory and ill treatment at the Correctional Facility; cruel and unusual punishment; and excessive sentence.
It will be noted that a prior motion for reduction of sentence has been made by defendant in this matter and was' denied. Ordinarily, the succeeding motion before us should be summarily denied. However, after taking into account the circumstances of the motion in the light of TCRCP Rule 8(f), which requires the Court to construe pleadings so "as to do substantial justice", we *34have approached the motion as a petition for habeas corpus relief to permit a collateral review of defendant Agasiva’s allegations. This flexible approach to construction takes on greater importance when the pleadings come from the cell of a oro se defendant rather than from the pen of a schooled attorney. See Gordon v. Leeke 574 F.2d 1147, 1151 (4th Cir. 1981). The federal courts have specifically authorized the treatment of pleadings attacking conditions attendant to prosecution and imprisonment as habeas petitions raising constitutional issues meriting habeas corpus review. See. e.g., Coronado v. United States Bd. of Parole, 540 F.2d 216 (5th Cir. 1976).
Agasiva’s motion alleges ineffective assistance of counsel on the ground that his trial attorney failed to file a timely appeal as he had requested of counsel. If factually correct, such a failure would deny the criminal defendant effective assistance of counsel in violation of the sixth amendment to the United States Constitution. Perez v. Wainwright, 640 F.2d 596 (5th Cir. 1981) cert. denied. 456 U.S. 910 (1982). Three important principles emerge from the decision in this case. •First, failure to follow a defendant client’s request to appeal his conviction amounts to constitutionally ineffective representation. Second, the defendant is entitled to habeas corpus relief in this instance without having to show prejudice or the doubtfulness of his guilt. Third, under such circumstances, the defendant should be permitted to submit an out-of-time appeal, id. at 598-99. See also Sapp v. Wainwright, 433 F.2d 317 (5th Cir. 1970).
This is notwithstanding an opinion by trial counsel that the appeal lacks legitimate grounds. Anders v. California, 386 U.S. 738 (1967), a Supreme Court decision discussed in this context more fully in Cannon v. Berry, 727 F.2d 1020 (11th Cir. 1984), requires of counsel who feels that an appeal is frivolous to so advise the Court and request permission to withdraw. Counsel is further required to file a brief pointing out any contents of the record that could conceivably support an appeal. Thus the Court becomes the arbiter of whether the appeal is frivolous and may thus be forborne, or whether it bears prosecuting and requires, the effective assistance of counsel.
*35On this ground alone, the Court was able to i^sue a writ to the executive branch to produce the defendant in order to permit an evidentiary inquiry into his allegations. Defendant’s pro se motion for reduction and/or modification, filed within the 120 day period permitted under T.C.R.Cr.P. Rule 35, was sufficient under Sapp, supra, to identify and protect his efforts to obtain post-verdict relief and to overcome his failure to file a timely appeal.
At the hearing herein, Agasiva advised the Court that he did not wish to pursue an appeal1 and the Court, after advising the defendant on several occasions about the availability of relief upon satisfactory showing, was satisfied that Agasiva has knowingly abandoned pursuing the availability of appeal.
We look to the remaining allegations of defendant:
Agasiva also complained of counsel for failing to inject a defense of "intoxication” provided under A.S.C.A i 46.3214. This complaint lacks merit, as the defense goes to "negative the existence of mental states of purpose or knowledge when those mental states were elements of the offense charged or of an included offense". Agasiva was convicted of manslaughter, an offense whose elements do not include “purpose" or "knowledge."
Unlike the situation in Perez (failing to file a timely appeal requested), where counsel’s conduct is presumed prejudicial, the ground of failing to *36raise a defense is not prejudicial per se. Proof therefore that the alleged omission of counsel fell below the sixth amendment standard of effective assistance, is required. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984). For reasons given, such ground, and therefore proof, is not available as a matter of law in this defendant’s case.
We turn to defendant’s post-conviction complaints.
Defendant excepts to being forced to participate in prayer sessions imposed by the prison authorities on all inmates. 'The. evidence herewith was not in dispute. The testimony was that after reveille each morning, a prayer session was held and every inmate was required to attend, without exception. Similarly, other religious sessions were imposed at general assembly, and those inmates who did not cooperate were known on occasions to be placed in holding cells. (Holding cells are not the best in accommodation at the prison.) The warden, while testifying that he took corrective action with regard to the holding cell as alternative to prayer, stated that he supported the general prayer sessions as conducive to rehabilitation goals.
Defendant, on the other hand, complains that he is Catholic by persuasion and while he earnestly participates in programs which the Catholic Church has in connection with the facility, he has strong objections to forced interdenominational religious activity.
The very first section of the territorial Bill of Rights (Rev. Const. Am. Samoa art I, §1) contains an establishment clause and a freedom of religion clause similarly contained in the federal Constitution. Little need be said that the blanket-imposition of religious programs upon nonconsenting inmates is hopelessly violative of the constitution. Cooper v. Pate, 378 U.S. 546 (1964). Accordingly, relief shall be granted as hereinafter appearing.
Defendant further complains of conditions permitted at the Correctional Facility which place him in constant fe,ar for his life. Defendant, on his behalf and the behalf of other inmates, complained about the free integration of one. *37inmate, Afoa- Mata’itusi, with the rest of the inmate population. Testimony was to the effect that Afoa was the institutional bully invested by the administration with a badge of authority by the creation of -a "matai" system at 'the Correctional Facility. This system was devised, also in the name of rehabilitation goals, to inculcate with the inmates the traditional notions of respect for the elders. ■ The said Afoa was one of three or four persons given recognition with matai status, with each such matai assigned jurisdiction over a particular group of inmates. These so-called matai were the inmate liaison with the administration, and were responsible for such things as assigning work detail. According to defendant, the matai influence of this Afoa was even more pervasive. Afoa controlled inmate sporting .activities, had a nursery business, and was permitted to market his plants during work detail outside the facility utilizing a government vehicle. He is also said to have usurped and displaced another inmate entrepreneur’s business of retailing convenience items to inmates.
The underlying cause of defendant’s complaints is that, given this influence and while currying-favor with the administration, -Afoa is a known dangerous felon.
Our review of the Court’s'files on inmate Afoa lends much credence to the fears expressed by defendant. Afoa was convicted and sentenced by this Court to imprisonment on June 28, 1978, for a term of fifteen years without work release for the crime of rape. The Court recommended that if Afoa be paroled he be deported immediately to Western Samoa. The sentencing court had before it a lengthy record of Afoa with the criminal justice system in Western Samoa. The presentence report concludes with the recommendation: "To safeguard the lives of others in the Community as well as inmates," defendant be incarcerated for fifteen years without release for any purpose and that the defendant be segregated from the rest of the inmates.
On July 5, 1978,. the said Afoa was convicted of murder in the second degree after viciously killing another inmate at the Correctional Facility. He was sentenced to imprisonment for a period of forty-five years to be served consecutively with ‘the sentence for rape. The *38court further prohibited work release and recommended, if possible, extra-territorial confinement in either a state or federal penitentiary.
Much of the foregoing record was known to defendant Agasiva, and he testified that Afoa in the attempt to assert his authority, or pule, has verbally threatened him with his life on several occasions, even in front of guards. His complaints to the administration are to no avail.
On the other hand, the Warden- presented himself as a character witness for inmate Afoa. In his opinion, the dangerously disruptive element at the facility has been the defendant Agasiva. Agasiva is said to view himself as superior to everyone else because of his educational background, and he seeks treatment different from everyone else, demanding privileges which everyone else must otherwise earn. By comparison, Afoa is held out as a model inmate. The confrontations highlighted by Agasiva are confrontations generated by Agasiva. The Warden denies any knowledge of a retail outlet ' undertaken by Afoa, but states that the nursery enterprise operated by Afoa has been sanctioned by his superior, and that the proceeds from the nursery are shared by Afoa and his inmate aiga for the purchase of toiletries. Afoa is seen to be the model for rehabilitation while Agasiva is seen to be disruptive of everything that is rehabilitative.
The court is mindful that habeas corpus is not available to the judiciary to review prison management and the nature and condition of a prisoner’s otherwise lawful confinement. It is not the Court’s business to superintend the administration of . the prisons, which is properly left to prison officials. However, habeas corpus is appropriate to review unconstitutional actions of prison officials and may be available in "exceptional circumstances rising to the level of constitutional deprivation." See generally 39 C.J.S. Habeas Corpus, § 96 et. seq.
With all due respect to the Warden and his judgment, and while giving him credit for daily and firsthand observation of the circumstances at the Correctional Facility, this Court has great difficulty in accepting the conclusion that inmate Afoa does not present a clear danger to the *39defendant and other inmates. Afoa’s record reveals the potential for viciousness and the concerns of the sentencing court are proving just as valid today as they were in 1978. According to the testimony, Afoa recently struck another inmate on the face with a piece of 2 x 4 lumber. (The Warden has dismissed this incident as having been fully settled. ) He punched another with a rock. He openly threatened to cut up another prisoner. The instrument used in the killing for which Afoa was convicted was a bush knife, and testimony had it that Afoa has ready access to such knives. He makes a point of being visible with a bush knife when his pule as a matai is challenged. He has threatened this defendant on different occasions.
We find substance in the fear expressed by the defendant.
In Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), cert. denied, 325 U.S. 887 (1945), the court held that: "A prisoner retains all rights of an ordinary citizen except those expressly or by necessary implication taken from him by law, which rights include the right to personal security against unlawful invasion." The Court further noted that while the government had the absolute right to hold a convicted prisoner, it also had the correlative duty to protect that prisoner against assault and injury. A prisoner is thus entitled to habeas corpus when, although lawfully in custody, he is deprived of some right to which he is lawfully entitled even in confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits. .Id. at 445.
We conclude on the facts that inmate Afoa presents a real danger to the defendant (and to quote defendant) from a "physiological and psychological perspective". We find defendant’s fears to be objectively demonstrated and they give rise to the situation whereby his term of imprisonment is made more burdensome than the law allows. Inmate Afoa is not only a dangerous felon, but he actively trades on his reputation in order to instill fear and to manipulate a following with certain of the inmate population. His potential for violence is exacerbated and perhaps encouraged with the ostensible imprint of official sanction *40connected with his h'eing given the cognizance of a matai.
Relief is accordingly appropriate in this matter to reinstate defendant’s imprisonment, exclusive of the added burdensome fears for his safety.
Defendant Agasiva’s other grounds for relief are without merit.
The court does not find that road work detail is "cruel and unusual punishment."
We further do not find that defendant.is being discriminated against with regard to provisional release programs. Agasiva’s complaints of discriminatory treatment are that other inmates are entitled to provisional release while his requests have been denied. These are matters properly left to the administration of the Correctional Facility. At the same time, we find no evidence of arbitrariness directed against the defendant Agasiva. His evidence was that inmate Afoa has been given road detail release, weekend leave, etc., in contravention of the sentence order of the criminal trial court. In our view, this was not a product of discriminatory preference, but managerial neglect. As the evidence showed, Afoa was somehow placed on the release programs long before Warden Tuiteleleapaga assumed the running of the Correctional Facility, and every other succeeding warden after this fact has merely followed suit in the assumption that Afoa was properly eligible for release privileges. As a management shortcoming, the facility’s officialdom will need to take appropriate corrective measures to comply with a final order of the Court which is still in full force and effect.
At the end of defendant’s entreaty is a further request to reduce or modify sentence. This Court remains affirmed that sentence imposed herein was appropriate having regard to the nature and circumstances of the offense as well as defendant’s background as required by A.S.C.A. i 46.1910. Essentially, defendant seeks to highlight his background as being very amenable to rehabilitation. But that is only part of the picture the Court must look at. We looked also to the "nature and circumstances of the offense" in this case and the facts then before us at *41sentencing. The Court was then also moved to consider a competing and equally important s<-itencing factor. That is "deterrence". The prospect for rehabilitation is a feature which logically follows the sentencing process but is properly under the auspices of the executive branch. The sooner defendant Agasiva comes to terms with the fact that rehabilitation programs are not in accordance with his own views and demands, but are in the hands of the appropriate law enforcement officials, the sooner he may be seen as amenable to rehabilitation programs. Our order denying sentence reduction entered July 14, 1987 remains unchanged.
CONCLUSION
The Court follows: concludes on the foregoing as
The custody Department Correctional conditions. required to defendant Agasiva shall remain in the of the American Samoa Government, of ^Public Safety, Territorial Facility subject to the ' following Defendant Agasiva shall not be participate in any religious programs at the Correctional Facility He shall be permitted to religious programs of his ordinarily made available Facility to inmates of persuasion. Inmate Afoa segregated from defendant Michael Agasiva and in compliance herewith, defendant Michael Agasiva shall not as a result thereof be segregated from the remainder of the inmate population. without his consent, participate in those own choosing as are at the Correctional Agasiva’s religious Mata’itusi shall be
■It is So OEDEEED.
Defendant’s purpose in raising the failure to appeal does not apparently seek reinstatement of an appeal opportunity out of time as a cure or remedy to his asserted prejudice. Rathe*, the alleged failure is being solely advanced to the trial court for its consideration ini the hope of some sort of offset prejudice value to be applied in favor of sentence reduction. Such a ground is of course without merit. As the defendant does not seek an appeal opportunity, we need not pursue the evidentiary hearing' oft the merits of the allegations concerning thifig. failure to file timely appeal. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485622/ | Opinion and Order on Motion for Summary Judgment:
George Philip Lokan died in 1986 and left what appears to be a will bequeathing all his assets to "my wife Lavinia Lokan to be used for the general well being of herself and our [adopted] children, Leilani, Eivoni, Sefo, and Feleti."
Plaintiffs, the first wife of George Lokan and the two adopted children of his first marriage, seek inter alia to deny the ' admission of the wiil to probate.
*46For the purpose of deciding plaintiffs’ motion for summary judgment we must assume the truth of the evidence presented thus far by defendants and draw from the facts in evidence the inferences most favorable to defendants. We therefore assume that the document was meant by George Lokan to be his last will and testament; that he kept it in his safe with other valuable documents until he died; that the various markings that were made on the document represent his attempts to "update[] his will with interlineations as various CD’s matured or his property changed" (Affidavit of Louina Apted); and therefore that during the several years prior to his death he remained constant in his intention to bequeath all of his assets to Lavinia for her well-being and that of their four adopted children.
Plaintiffs allege first that as a matter of law the' document "does not evidence the requisite testamentary intent" to .be enforced as a valid will. Even without reference to extrinsic evidence, however, the document clearly manifests such intent. Lokan'wrote or caused to be written, "I, George Lokan do declare that the following list represents my assets" and "I further declare that in case of my death these assets become the property of my wife to be used for the general well being of herself and our children . . '. . ". He then added a "wish" that one of his sons oversee the operation of a certain business, and instructed the son "to see'k the advice" of a named individual in business matters. After listing his known assets, he sigjied the document and had it witnessed by two persons. The only formal requirements for a will in American Samoa are that it be in writing, signed, and witnessed by two persons. A.S.C.A. § 40.0102. No such legal requirement is imposed on anyone who wishes merely to list his assets and make some informal predictions and wishes about what is likely to kappen when he dies, and it is hard to imagine anyone taking the trouble to have such a statement witnessed. If anything, Lokan manifested his intent far more clearly in this document than he could have done by putting his signature on a more elaborate document obtained by an attorney from a form book.
A more substantial, objection to the validity of the will has to do with the changes that were made on the face of it during the years between its *47attestation and Lokan’s death. Such changes, as Cfunsel for plaintiffs correctly observes, must be attested if they cause a "new and distinct testamentary disposition." Oliver v. Union Nat’l Bank of Springfield, 504 S.W.2d 647 (Mo. App. 1974). Handwritten alterations on a formal will can become a "holographic codicil" in jurisdictions allowing for holographic wills as an alternative to the requirement of attestation, but only if the testator has satisfied the strictly observed requirement that the alterations be signed and dated. See Estate of Nielson, 165 Cal. Rptr. 519 (Cal. App. 1980). We need not decide whether A.S.C.A. § 40.0102 implicitly denies the validity of holographic wills in American Samoa, since Lokan neither signed nor dated the alterations to his will.
We disagree, however, with the contention of plaintiff’s counsel that the effect of the attempted alterations was to revoke the bequest to Lavinia and .divert some or all of the assets bequeathed in the original will to those who would have been his heirs if he were intestate. Under the doctrine of "dependent relative revocation," when a testator attempts to change a provision in his will and the attempted change is deemed invalid, the original provision remains in full force unless it appears that the testator would have preferred a simple deletion of this provision to its unmodified enforcement. See Oliver, supra, 504 S.W.2d at 651. In this case the evidence, at least as we must construe it for the purposes of this motion, is all to the contrary. The changes were apparently attempts to"update the will so that Lavinia and the children of the second marriage would receive new assets; under the doctrine of dependent relative revocation, the invalidity of these changes should not deprive their intended beneficiaries of whatever they would otherwise have received. Insofar as any provision of the original unaltered will purports to bequeath to Lavinia anything that George Lokan still owned when he died, such provision would seem to be valid whether or not he attempted to alter it.
This does not exactly dispose of plaintiffs’ contentions, however, for most of the alterations apparently occurred when Lokan traded in a matured certificate of deposit for a new one with a different number and in a larger amount. The certificates of deposit originally bequeathed are *48no longer part of the estate. The usual rule is that when the thing devised passes out of the estate before the testator’s death it "adeems,." leaving the devisee with no right to it or to the equivalent value in money or other property. See Atkinson on Wills i 134 at 742 (2d ed. 1953).
If, however, the thing'devised has changed in name or in form only, there is no ademption and the devisee is entitled to the new thing whether or not the testator has explicitly manifested such an intention. See id. § 134 at 747; Estate of Austin, 169 Cal. Rptr. 648 (Cal. App. 1980). In Austin the testatrix bequeathed a promissory note. Before her death the note was paid in full and the testatrix invested the proceeds (and some other money) in another promissory note. The bequest was held not to have adeemed. The designated recipient was entitled to receive the repayment of the second note (but only to the extent of the value of the first note).
Some courts would go even further, giving a devisee the whole value of a thing that was apparently regarded by the testator as a substitute even where this new thing cannot easily be regarded as a mere modification of the old. See, e.g., Estate of Shubin, 60 Cal. Rptr. 678 (Cal. App. 1967), where testator had bequeathed his house which was, however, condemned by the government. Testator took the proceeds plus some other money, bought a new house, and wrote its new address on his will 'in place of the old address without attesting the alteration. The court took this as conclusive evidence that the testator did not intend the devise to adeem, and the devisee took the second, more valuable house.
Shubin and other cases represent an apparent return to the classic rule that ademption takes place only in the absence of a contrary manifestation of the testator’s intent. See Atkinson, supra. § 134 at 741-42. After a trial on the merits of this case, when we will presumably know whether the new certificates of deposit were purchased solely with the proceeds of the old or whether other funds were added, we may have to choose between this •one and the contrary "nonintentionalist" rule that prevailed in 1953 when our edition of Atkinson was printed. (Such a choice may also be forced on us by whatever the .facts turn out to be behind original item 16 and *49attempted item 17 of the will: "16. Dwelling at Houmakelikao,' Tonga being sold to Flemming H'jelson" is crossed out with the notation "Sold and paid in full," and “17. 115’ by 274’ Landsite at Golf Course" is written in.) Even under the more restrictive rule, however, the new certificates of deposit would appear to devolve upon the beneficiaries of the old to the extent they were purchased with the proceeds.
Finally, the question of ademption may be mooted by the apparent intention of George Lokan to devise all of his property to Lavinia. When there is a general devise, property acquired after the execution of the will also passes to the devisee. See Atkinson §§ 132, 134 at 733-34, 742. There appears to be a general devise here. Since defendants have not moved for summary judgment and since the issue has not yet been addressed by either party, we defer consideration of whether this apparently dispositive datum might be overwhelmed by extrinsic evidence or otherwise.
The motion for summary judgment is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485623/ | PER CURIAM:
FACTS AND DECISION BELOW
Appellant Savea Enekosi was employed as a bus driver by Continental Bus Company when he sustained ah injury stipulated by the parties as compensable *51under the Workmen’s Compensation Act of American Samoa. At the time of the injury, Savea was paid frrty cents for each dollar received from bus passengers after gasoline expenses were deducted from the receipts.
Savea filed a Workmen’s Compensation Notice of Claim for benefits calculated on the basis of the minimum wage in the territory, not by salary received. Appellee Workmen’s Compensation Commission ("Commission") held a formal hearing, and issued findings and conclusions, including that: (1) Savea had sustained a compensable fifteen percent permanent partial disability to his hand, and (2) proper compensation was based on the highest of his average weekly wages in each of the four quarters immediately preceding ihe injury, as set forth in A.S.C.A. § 32.0621(d)(1) for employees whose wages are fixed by the day, by the hour, or by output.
Savea sought judicial review of the Commission’s decision, asking for benefits based upon the territory’s minimum hourly wage. The Trial Division held that Savea was an employee whose wages were fixed by output within the meaning of the statute, notwithstanding that his gasoline expenses were first deducted from passenger receipts. It also held that Saver’s benefits could properly be based upon his actual wage even if it was below the wage set by the Fair Labor Standards Act under federal law and the Minimum Wage and Hour Act of American Samoa. Savea now appeals both of those rulings.
DISCUSSION
This court has jurisdiction pursuant to A.S.C.A. § 32.0652. Although he appeals the ruling of the trial court, Savea attacks the original findings of the Commission as "not in accordance with law" as required by statute.
I
Savea first argues that the Commission erred in finding, and the trial court in affirming, that his average weekly wage was $42.83. He claims that, under A.S.C.A. §.32.0621(d)(3), a market wage for similar services should be used as a basis for his benefits because 'his hourly wage was not "fixed" or "ascertainable."
*52The Commission reached this figure by-averaging his weekly paychecks -for each of the four quarters preceding the injury, and usin'; the highest of the four averages --- the meihod of calculation prescribed in § 32.0621(d)(1) for employees whose wages are fixed by output. The Trial Division upheld the determination as being in accordance with law, saying that Savea’s wages were fixed by output within the meaning of the statute even though his gasoline expenses were first deducted from gross receipts.
We conclude, based on the record before us, that Savea’s wages are fixed by his output. The statute does not require that the marginal rate of pay for increased output remain constant. An employee may fall within the "output", category, even if pay is measured by other factors.
Savea further argues that, even if an “output" employee, his benefits should be based solely upon his receipts from output --- the "wage most favorable to the employee". A.S.C.A. § 32.0621(d)(1). He cites in his support Travelers’ Insurance Co. v. Curtis, 223 F.2d 827 (5th Cir. 1955), in which a truck owner-operator was paid a flat daily rate and required to pay ■ his own maintenance and operation costs. That court noted, first, that there was nothing in its record on which to base any calculation of those costs, and, second, that his wages were the amounts he was paid for his Work, not his net profit for the employment.
Here, Savea’s agreement with his employer was that he be paid a portion of the profits for his work; thus, the trial court’s holding was consistent with Travelers’. We note the Commission’s finding that he was dismissed from employment, largely because of high gasoline expenses. Savea himself was not required to pay fuel costs out of his wages. If he were, as the truck driver in Travelers’ was, the amount of the costs would have been of no consequence to his employer. Instead, his wages and the employer’s profits were both dependent upon his output net of gasoline costs. We therefore hold that the trial court used the correct method to determine Savea’s wage for,benefit purposes.
*53II
Savea’s second challenge to the Trial Division ruling is that it erred in basing his award upon an "i<bl.^al" wage, illegal because it was less than the minimum hourly wage for the territory under the Fair Labor Standards Act and the Minimum Wage and Hour Act of American Samoa, We disagree.
The economic aim of the workmen’s compensation laws is to restoré lost wages to one injured on the job. See, e.g., New Orleans Stevedores v. Turner, 661 F.2d 1031, 1042 (5th Cir. 1981) ("compensating for financial losses'"); Linquist v. Bowen, 633 F.Supp. 846, 865 (W.D. Mo. 1986) ("primary purpose...was income replacement for the disabled worker"). Its purpose is not to give him a windfall or, worse, an incentive to disregard safety regulations.
We do not mean to encourage the formation of illegal employment agreements; we address here merely the legality and propriety of the award itself. We find that the workers’ compensation award itself is in conformity with both the explicit requirements and the general purpose of the statute, and is not itself illegal. As the trial court indicated, if the appellant’s other averments with respect to illegality are true, he has several other courses of action open to him which he may wish to pursue. This proceeding is not the proper place to consider such issues.
The judgment of the Trial Division is therefore AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485624/ | PER CURIAM:
This is an- appeal from the trial court’s refusal to grant relief from a default judgment under T.C.R.C.P. Rule 60(b).
Appellee (hereinafter “Haleck") obtained' a judgment against Sataoa Kaleuati and later served Appellant (hereinafter "Bank") with a writ of garnishment and accompanying interrogatories. The writ required the Bank to retain all funds in its possession belonging to the judgment . debtor and either to answer the interrogatories concerning any such funds or to appear in Court on a specified day to provide the same information. The Bank did not answer the interrogatories, did not appear in Court, and allowed the judgment debtor to withdraw funds from his account.
The Bank was then ordered to appear in Court to show cause why judgment should not be entered against it in the amount of $6,713.02, the full amount of the judgment underlying the garnishment. This was in accordance with A.S.C.A. § 43.1806(c), which provides that a garnishee who fails to appear in response to the writ ‘ of garnishment without sufficient excuse is presumed to be indebted to the defendant In the full amount of the plaintiff’s demand.,. The order was accompanied by a subpoena duces tecum directed to the President of the Bank', directing him to appear and bring various records concerning the judgment debtor’s bank accounts. The Bank instead sent■the Clerk of the High Court a check for $17.78, the amount in the' judgment debtor’s account on the day it.received the order to show cause. (At the time the bank received the writ.of garnishment there had been about $360 in *56the debtor’s accounts) The President of the Bank delegated the duty to appear in Court to the Vice President/Cashier, who delegated it to a'clerk.
The Bank was not. represented by counsel at the hearing on the order to show cause; the clerk who had been instructed to bring the records to Court did not testify and the records were not introduced into evidence. The Court granted judgment against the Bank in the full amount of Sataoa Kaleuati’s debt.
Two weeks later (i.e., too late to make a motion for a new trial) the Bank filed the Rule 60(b) motion that is the subject of the present appeal. At the hearing on the Bank’s motion there wa^s only one witness, the Vice President/Cashier who had been told by the President to appear and who had sent the clerk’ instead. The clerk who had been present at the hearing on the Order to Show Cause was not presented as a witness at the Rule 60(b) hearing. The record on appeal therefore does not reflect what she would have said if she had been asked to testify concerning the Banks excuse for not complying with the .writ of garnishment,, or even whether she knew anything at all about what that excuse was. 1
*57The motion for relief from the judgment was denied, and the Bank appeals on the ground that the bank was "denied an opportunity to be heard" when its clerk was not called as a witness at the hearing' on the order to show cause.
The Bank itself, however, chose not to be represented by counsel and not to send any of its principal officers to the hearing on the order to show cause. The clerk who did appear did not ask to testify or to make a statement on behalf of the Bank. She did bring certain records (although not, the trial court concluded, all the records that were required by the subpoena) but there is no evidence that she was competent to testify about what the Bank’s expuse was for not appearing earlier. The judge clearly regarded her more as a courier than as a witness; she did nothing to dispel that impression; and the Bank put on no evidence at the hearing on its Rule 60(b) motion to suggest that the court’s original conclusion was incorrect.
In order to secure relief from a judgment under Rule 60(b), a party has the burden of proving not only that there was a technical flaw in the proceedings but that the flaw had some effect on the outcome. Moreover, such relief is discretionary and a denial of a Rule 60(b) motion should only be reversed if the trial court has abused its discretion. There was no abuse of discretion here.
Finally, the Bank urges that the judgment against it is void because the record does not reflect whether notice of the garnishment proceedings was given to the original judgment debtor. We need not decide whether the Bank has standing to assert the rights of the judgment debtor, since the issue was not raised in the trial court proceedings on the Rule 60(b) motion and therefore cannot be considered on appeal.
. The only evidence about whether the clerk was present and what she would have said if present was the following testimony of the Vice President/Cashier:
Q. Did you appear in court on May 10th?
A. I was off island.
Q. Do you know if anybody appeared in court on May 10th?
A. Yes, we had Miss Uta Ioselagi
represent the bank because both of us were off island.
Q. You and Roger both?
A. Yes.
Q. Did you give her instructions as to what to do?
A. Yes.
Q. What instructions did you give her?
A. We just asked her to bring over the file with her and just explain what happened when she’s going.to be questioned by any of the lawyers. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485772/ | The parties are all members of the Christian Congregational Church of Matu'u and Faganeanea (hereinafter referred to as the "church"). A dispute arose among the members stemming essentially from differences relating to church government and the management and use of church property. Plaintiffs, joined by a large number of sympathizers who signed the complaint, were aggrieved with what they perceived as increasing domination of the church's affairs by the minister, *111Rev. Fa'avae, and ranking Orator Savea. They complain that major property decisions were being made by the minister and Savea without the customary opportunity for input from the congregation. Testimony had it that during a confrontation between plaintiff Taito and defendant Savea, the latter justified his authority to dictate church affairs by reason of his traditional authority within the village council. By the same token, Rev. Fa'avae maintained that his active leadership with church property matters was consistent with his role as minister. Plaintiffs, on the other hand, claim that the secular affairs of the church were always handled by committees established with the approval of the congregation, and that major decisions were habitually referred to the congregation at regular business meetings which the minister would convene after Sunday worship. The minister was seen by plaintiffs as frustrating these review opportunities of the congregation by his failure to convene further business meetings. Instead, decisions were merely announced to the congregation by either Savea or the minister. The manner of decision making in connection with the demolition of the old church building and the construction of a new facility fomented the discontent.
Following a written complaint of plaintiffs and their followers, the minister was relieved of his duties by the elders of the Christian Congregational Church of American Samoa (hereinafter referred to as the "CCCAS").1 This prompted an angered reaction from defendant Savea to disavow the CCCAS elders and turn the church Methodist in denomination. The situation eventually escalated into a split among the members with separated Sunday worship although the defendants, on the other hand, attempted to maintain the appearance of business as usual. Plaintiffs then filed suit seeking to enjoin any action to change denomination. They further seek an accounting from the defendants of all church property and funds, and, pending such accounting, plaintiffs further pray to enjoin the further *112dissipation of church assets, including the expenditure of church funds.
Subsequent to the filing of suit, Savea retracted his secessionist threat after apologizing to, and making peace with, the CCCAS elders. Savea has also been instrumental in a number of reconciliation overtures to plaintiffs; however, the latter first insisted that defendants provide an accounting of church property before there could be a meaningful reconciliation. Although that accounting was not immediately supplied, the defendants finally acceded, pursuant to discovery requests, just prior to trial. As a result, the actual trial herein largely turned on the adequacy of that accounting.
Findings
On the evidence before us, we conclude that the defendants have satisfactorily made an accounting of church property and funds. With a few minor exceptions, we find no evidence of the suspected widespread abuse or misuse of church assets by the defendants. The evidence did show that certain church property (cash and household furnishings) was donated by the defendants and their followers to Rev. Fa'avae and his family on the occasion of the minister's departure from the village. We are also satisfied that the defendants had divided the pews of the old church building among themselves and that a few bags of cement belonging to the church were removed by certain members of the Savea family for use on Savea's own home. These discrepancies do not justify the expense of another accounting.
The remaining area of quarrel has to do with the authority to make decisions concerning the use of church property---an issue which has taken root because of confusion about church government. We proceed on the basis that a schism does not exist among the membership and accordingly we accept that Orator Savea has abandoned any ideas about seceding. On the evidence, we are satisfied that the church is in nature strictly congregational or independent in government makeup. As a congregational body, the temporal affairs of the church would generally vest in that form of government established by the congregation or membership. Watson v. Jones, 80 U.S. (13 Wall.) 666 (1871). The Supreme Court here explained that *113a congregational organization may be governed "either by a majority of its members or by such other local organism as it may have instituted." Id. at 675. With regard to the question of entitlement to use church property, the Court further stated that "[i]f the principle of government ... is that the majority rules then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere to the acknowledged organism by which the body is governed are entitled to the use of the property." Id.
Our cue then from Watson is first to identify the church's governing body, but our approach to this issue must be guarded nonetheless. Just as the First Amendment prohibits our delving into church property disputes which entail the consideration of doctrinal questions, it has also been stated that "where the identity of the governing body or bodies that exercise general authority within a church is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy." Eldership v. Church of God at Sharpsburq, 396 U.S. 367 (1970) (Brennan, J., concurring), 369-370. See also Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); Presbyterian Church v. Hull Church. 393 U.S. 440, 449 (1969).2
In the present matter, a possible area of First Amendment concern might be seen in Rev. Fa'avae's contention that his involvement with the *114church's secular affairs is an aspect of his role as minister. Arguably, the scope of a minister's role is a matter with ecclesiastical overtones. However, we are quite clear on the evidence that Rev. Fa'avae's views were not premised on anything relating to religious law or usage. Indeed, the minister explained his role understanding primarily on the basis of his own' experience. He testified that at his previous assignment, he was able to involve himself extensively with management of temporal matters without any objection from that congregation. On the other hand, a review of plaintiffs' complaint to the elders and the latter's reply memorandum of October 20, 1988, reveals that the minister was cited by the elders for, among other things, his dominant role in the church's secular affairs, resulting in a split in the congregation, to the detriment of his pastoral function. It is therefore very clear that Rev. Fa'avae's views are singularly held, and, in essence, they are nothing more than subjective conclusions on his part quite unrelated to any concerns of religious doctrine and practice. While we accept counsel's argument that a certain measure of deference has been traditionally accorded by the congregation to the minister (he has been recognized within the village with a symbolic salutation), that deference should not be confused with absolute power to govern.
We also reject any claims to the effect that the power to govern church affairs is vested in certain matai by virtue of their traditional rank within the village. As we have seen from Watson, supra the source of government power in a' congregational type church is the congregation itself. There is no inherent ecclesiastical governing power in the matai simply by virtue of their traditional, and secular, office of matai. The traditional respect accorded to matai by reason of their rank should not be similarly confused with absolute power to govern church affairs.
We find on the evidence as follows: The congregation has from time to time vested certain decision making authority in ad hoc working committees. The scope of that authority is naturally limited to the purposes for which a committee is formed. Those committees have comprised not only members of the congregation, but also the incumbent minister. At the same time, there is an established procedure for business *115meetings of the congregation. The congregation has certain reserved powers to approve or disapprove committee action.
Conclusions
Having said as much, we must also note that no one witness had any specific idea as to details of church government. The church did not have any established rules (written or otherwise) of government which the Court could look at and objectively identify its governing entity. Indeed, the present confusion with the parties may be simply attributed to the fact that the church does not have an operating manual, so to speak, to guide its present membership. (With noticeable despair, one of the plaintiffs conceded as much on the stand) . In these circumstances, the church had been able to function while the congregation was still cohesive through the ad hoc establishment of working committees. In a time of dissension, however, the result has been that situation of suspicion and disorder which the congregation now encounters.
As details of ecclesiastical government are not evident, we are enjoined from further inquiry into matters which are essentially policy development considerations properly within the congregation's bailiwick. Watson, supra. In terms of the power dispute before us, our inquiries are necessarily limited. We have first identified the source of governing power within the church as a congregational body. At the same time we have ruled out those claims to power inconsistent with that conclusion. That is, neither the minister nor the matai has inherent authority to govern independent of the congregation. This is not to say, however, that the governing power may not have been invested by the congregation in the minister or the matai. The evidence was simply far from clear as to precisely where the governing power lay. That is a matter for the congregation to define.
Finally, we consider the disputed disposal by the defendants of that church property, above listed, following the split. Applying "neutral principles of law," we hold that the defendants' division of pews among themselves and their followers was unlawful, and restitution must accordingly be made to the church. Similarly, the *116church's cement which was used for a private project of the Savea family must be replaced.
With regard to the property given to the minister and his family upon their departure from the church, we are satisfied on the evidence that this action has precedent and represents a. traditional farewell practice within CCCAS congregations. The questioning of such action is more appropriately a concern for the congregation rather than the civil courts.
Judgment is entered accordingly. Petition for accounting and injunctive relief is denied. .
It is so Ordered.
The church at Faganeanea and Matu'u is, like many other village congregations, affiliated with the Christian Congregational Church in American Samoa which has its principal offices at Kananafou, Tafuna, American Samoa. The membership adheres to and practices the tenets of faith as established by the CCCAS general assembly in which the church has representation. The CCCAS also certifies ministers for its affiliates.
In such a case, the court would attempt to apply the "neutral principles of law" approach announced in Presbyterian Church v. Hull Church, 393 U.S. 440 (1969) and developed in Jones v. Holf. 443 U.S. 594 (1979). In Jones the court in its discussion of the "neutral principles of law" approach to property disputes stated: "The primary advantages of the neutral-principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice." Id. at 603. Nonetheless, "general principles of property law may not be relied upon if their application requires civil courts to resolve doctrinal issues." Eldership v. Church of God at Sharpsburg, supra, at 370 (Brennan, J., concurring). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485626/ | PER CURIAM:
This is an appeal from a judgment of the Lands & Titles division in LT No. 3-85 awarding to Talae M: Tuitele the matai title “Tauaisafune" attached to the village of Amanave.
Appellant, Salufata Faate’a, argues that the trial court erred: in failing to make findings; in failing to find that appellee prevailed on the statutory criterion of hereditary entitlement provided in A.S.C.A. § 1.0409(c)(1); and in concluding against the weight of the evidence by finding in favor of appellant with regard to the third and fourth statutory criteria as contained in A.S.C.A. § 1.0409(c)(3) & (4).
For reasons given, we affirm the judgment below.
Contrary to appellant’s first submission, we find that the trial court did indeed make findings on each of the matters required by statute for consideration. These findings were the basis of the lower court’s conclusion that Talae M. Tuitele was better qualified to register the title.
Appellant’s remaining claims of error are essentially complaints regarding these findings. It is claimed that the trial court, while finding that both claimants were connected to the title, erred in not going further and finding who was *61better entitled. On the evidence, appellant claims that he prevails.
Hereditary entitlement, like any question of factj is a matter going to proof, and it is quite apparent on the record before us that neither party had satisfactorily sustained the burden of proving superior entitlement.' The record reveals inconsistencies in the testimony on: the original titleholder; clan derivation; and succeeding titleholders. As each party then attempted to demonstrate blood content through resort to the so called Sotoa rule1 by tracing descent lines to the original titleholder, the result was necessarily a factual variance before the trial court, owing to the contradictory lineages asserted.
The trial court was thus confronted with factors of credibility, and with such matters the appellate court must of necessity defer to the judgment of the trial court, who had the firsthand opportunity to consider the witnesses and their proofs. In re the Matai Title Togiola, 3 A.S.R.2d 127 (1986).
Finally, the standard for appellate review recurringly reiterated is that findings of the trial court may not be set aside unless "clearly erroneous". In re Matai Title Aoelua, 2 A.S.R.2d 104 (1986); Willis v. Willis, 2 A.S.R.2d 102 (1986). Our review of the record amply directs us to the conclusion that the lower court’s findings on the third and fourth criteria were substantially supported.
Accordingly, the decision of the trial court is AFFIRMED.
See In re Matai Title Sotoa, 2 A.S.R.2d 15 (1984). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485628/ | Per O’SCANNLAIN, J.:
Gray, Cary, Ames & Frye ("Gray-Cary") and certain crew members of the M/V Coinseco Alfa ("Alfa") bring appeals from orders of the Trial Division in favor of appellees arising out of foreclosure of various maritime liens against the Alfa in the High Court.
FACTS
In late 1982 HGN advanced $7 million to Pacific Tuna Corporation ("PTC"). The loan was secured by a preferred mortgage on four tuna boats *67owned by PTC including the Alfa. PTC defaulted in March' 1983 and HGN thereupon brought this ship’s libel action and secured the arrest of the Alfa by the Marshal for the High Court of Samoa. On June 20, 1983, subsequent to the arrest of the Alfa. PTC purported to convey a preferred ship’s second mortgage on the Alfa to the Gray-Cary law firm in payment for legal services.
Later in 1983, still during the pendency of this proceeding, PTC and HGN entered into a stipulation agreement whereby the Alfa would be allowed to undertake a single fishing voyage. The stipulation read in pertinent part as follows:
Whereas, . . . HGN is not desirous of obtaining ownership of Coinseco Alfa or any other vessel secured by the mortgage and . . . PTC is desirous of securing additional time to obtain financing for the vessel in order to clear the vessel of the mortgage and any other liens that may exist, it is.hereby stipulated [that] the High Court of American Samoa . . . appoints . . . John Sawiki as the receiver . . . of the Alfa to operate the vessel on one fishing trip commencing on or about November 20, 1983 and such future trips as the parties may mutually agree . . .
(5) that the receivers are authorized to borrow up to $375,000 ...
•■(6) that the receivers shall compensate the crew by payment of a specified sum for each ton of tuna caught or on a share basis (pursuant to industry custom) from the proceeds if any of each trip ....
(10) that all expenses and debts incurred by the receivers pursuant to the terms of this [stipulation] shall be de.emed to be expenses of administration and shall be • paid prior to any claims ...
(12) [n]othing contained herein shall be construed to be a waiver of any rights which HGN may have against the vessel or its catch arising out of or under the mortgage or the security agreement with PTC or otherwise on the vessel ....
Pursuant to this stipulation and order, co-receiver John Sawiki hired a new crew for the Alfa, contracting with each for various shares of the proceeds of the catch in excess of 200 tons. There is no evidence that Sawiki was able to borrow funds *68to outfit the vessel nor is there evidence that the crew advanced any funds which enhanced the value of the vessel. Although there were only 80,000 gallons of fuel in the ship’s bunker, the captain was assured by Sawiki that additional fuel would be delivered to the Alfa on the 'fishing ground. Relying upon this promise,, the captain and crew weighed anchor and commenced the voyage on March 7, 1984.
HGN apparently assumed that no fishing voyage would commence since the receiver was unable to borrow funds to outfit the Alfa. When HGN heard that the Alfa had embarked on a fishing trip, and without insurance, it made written demand for return of the vessel and filed suit when no response was forthcoming. Meanwhile, when no fuel was delivered to the vessel at the fishing grounds, the captain returned- the Alfa to Pago Pago on April 5, 1984 with only 78 tons of tuna in the hold. As the tuna catch was below the threshold amount of the share agreement, the captain and crew left the vessel and received no remuneration.
PROCEEDINGS IN TRIAL DIVISION
On May 16, 1985 certain members of the crew intervened in HGN’s libel action against the Alfa, claiming that they were entitled to excess post-arrest wages from the ill-fated voyage. The trial court held that (1) at all times relevant to the case the Alfa was in custodia legis (2) the fishing venture was purely a for-profit expedition, not for preservation of the estate, and (3) the crew was limited by the stipulation only to a percentage of the catch, and had no valid claim for wages. Accordingly, summary judgment was granted to HGN. In an accompanying order, the court held that Sawiki acted outside the scope of the stipulation order and therefore any expenses arising from the voyage were not expenses of administration payable out of the res.
On December 5, 1986, the Trial Division entered an order granting summary judgment in favor of HGN and declaring null and void Gray-Cary’s post-arrest mortgage on the Alfa for having been issued while Alfa was in custodia legis.
On January 20, 1987, the Alfa was sold at Marshal’s auction.
*69ANALYSIS
I: TIMELINESS OF APPEAL
Gray-Cary- filed its notice of appeal 31 days after judgement was entered but 7 days after motion for reconsideration was denied. Appellee argues that the appeal fails for lack of compliance with A.C.R. Rule 4(a)(1). Since the notice of appeal was filed within 10 days after the denial of the motion for reconsideration, we find the appeal timely.
II: JURISDICTION OF HIGH COURT
Gray-Cary argues that the High Court of American Samoa lacked jurisdiction to arrest the Alfa because the enforcement of preferred ship’s mortgages has been granted exclusively to the district courts of the United States under 46 U.S.C. i 951. Relying upon Star-Kist Samoa, Inc. v. The M/V Conquest, 3 A.S.R.2d 25 (1986), it argues that since the High Court is not formed under Article III, it cannot foreclose on a ship’s mortgage pursuant to the Ship Mortgage Act of 1920, 46 U.S.C. §§ 911-984.
It is beyond dispute that the courts of this territory, are not article III district courts. [citations omitted]. Nor has Congress vested our courts with the .jurisdiction of a non-article III district court pursuant to the ’territorial exception.’ Northern Pipeline Co. v. Marathon Pipeline Co., 458 U.S. 50, 64-65 (1982). Rather, the High Court of American Samoa is a territorial' court of discrete and limited jurisdiction, created pursuant to articles II and IV of the United States Constitution, and does not come within the plain meaning of ’district courts of the United States’."
The Conquest, supra. 3 A.S.R.2d at 27. Accordingly, since the High Court of American Samoa is not a U.S. district court, vessel' owners- cannot take advantage of the Ship Mortgage-Act here. Ld. at 29.
While this court cannot sit in admiralty under Article III, the Forio has provided us with admiral*70ty jurisdiction under A.SiC.A. § 3.0208(a)(3),. which reads in pertinent part as follows:
■ (a) The trial division of the High Court shall' be a ' .court of general jurisdiction . with power to ' hear any mattéi^ not otherwise provided fdr by statute. . Notwithstanding the forgoing, the trial division of the High Court shall have original jurisdiction of the following classes of cases and controversies:
(3) Admiralty and maritime matters, of which the trial division shall have both in rem and ip personam jurisdiction.
Admiralty jurisdiction need not be directly and specifically conferred upon territorial courts by Congress. In re Complaint of Interocean Ships. 2 A.S.R. 76, 83 (1985). Accordingly,, while we lack jurisdiction to. adjudicate a maritime foreclosure under 46 U.S.C. I 1857 see M/V Conquest, 3 A.S.R. at 27-28, we have jurisdiction in admiralty to apply substantive principles' of the maritime common law. See, e. g., Interocean Ships, 2 A.S.R. at 80. This court clearly had jurisdiction ' to determine the validity of a purported-mortgage, even if it did not have jurisdiction to foreclose.it. .
Here, Gray-Cary claims that the Trial Division lacked in rem jurisdiction to arrest the Alfa and thus to foreclose her first mortgage. While it is correct that this court could not proceed under 46 U.S.C. § 951, see M/V Conquest, 3 A.S.R. at 27, we have subject matter jurisdiction over the Alfa under A.S.C.A. § 3.0208(á)(3). Interocean Ships, 2 A.S.R. at 80. Accordingly, the High Court had properly placed the Alfa in cuktodia leáis at the time PTC delivered its second preferred mortgage to Gray-Cary. For that reason Gray-Cary’s argument is devoid of merit; its mortgage on the Alfa was properly declared null and void by the High Court.
*71mi.-QBEgi.S..-bJM.XQR_.LQST.....HASHES
A. Custodia Leáis
As a general principle, one who furnishes goods or services to a vessel in custodia leáis does not acquire a maritime lien against the vessel for the value of such goods or services. •. See New York Dock v. The Poznan, 274 U.S. 117, 120. (1927); Gilmore & Black, Law of Admiralty, 602-03 (2d ed. 1975); 2 Benedict on Admiralty i 46, at 3-65 (7th ed. 1983). Consequently, no lien can attach to a vessel while she is in judicial custody. Donald D. Forsh Assoc. v. Transamerica, 821 F.2d 1556, 1560-61 (11th Cir. 1987). In other words, events subsequent to seizure of a vessel may not give rise to liens on that vessel while she is in custodia leeis. Old Point Fish Co. v. Haywood, 109 F.2d 703, 705-06 (4th Cir. 1940).
However, "[t]he rule excluding .subsequent liens cannot be extended to vessels that are neither actually nor constructively in. the marshal’s possession." The Young America, 30 F. 789, 791 (S.D.N.Y. 1887). In Young America, a tugboat was placed in custodia legis following an accident but . allowed to ply the harbors in furtherance of its trade without restriction. Id. at 789. "In effect, the vessel was not in the custody of the court at all." .Id. at 790. The court thus held that additional liens accrued against the vessel after seizure could be levied in rem against the tug, since the ’original lien had never been enforced. Id. at 792. This principle was followed by the Ninth Circuit in Northwest Marine v. United States, 307 F.2d 537 (9th Cir. 1962). There, the court held that liens of a libeled vessel’s crew can take precedence over the prior liens of the. government.1 Significantly, *72however, though the crew members there had obtained their liens subordinate to the government, they already held valid maritime liens when the foreclosure libel was filed. 307 F.2d at 539.
B. Lost Wages
"Seamen are wards of admiralty and as such the courts of admiralty vigilantly guard against any encroachment of their rights." Putnam v. Lower, 236 F.2d 561, 569-70 (9th Cir. 1956). "[Djespite compensational differences, lay fisherman or sharesman possess a right similar to that enjoyed by regular seamen to lien the vessel and catch on board to secure their compensation." Id., at 570. Accordingly, a fisherman’s right to libel a vessel for his share of the catch is not lost when, due to the vessel’s negligence, no catch is obtained. Id.; Carbone v. Ursich, 209 F.2d 178, 183 (9th Cir. 1953). But see Old Point Fish Co. v. Hayward, 109 F.2d 703, 706 (4th Cir. 1940) (fisherman’s expected percentage of unrealized catch too speculative to allow maritime lien on vessel).
However, the interest in protecting a seaman’s wages does not supersede the principle of custodia legis. Therefore, "[i]t is well settled that no maritime lien can be allowed to seamen for wages accruing subsequent to the time the ship is taken into custodia legis . . . The theory here is that the act of seizing a ship, pursuant to legal process, effectively terminates the voyage, and thereby discharges the crew with no further claim for wages .... Putnam, 236 F.2d at 570 (footnote omitted). Thus, "seamen’s wage claims are only effective for those services performed prior to libel." Irving Trust v. The Golden Sail, 197 F. Supp. 777, 780 (D. Or. 1961) (unpaid wages of crew for period after arrest of vessel does not give rise to maritime lien for wages). See also Collie v. Ferguson, 281 U.S. 52 (1930); Old Point Fish, 109 F.2d at 705. But see The Herbert Rawding, 55 F. Supp. 156, 162-63 (E.D.S.C. 1944) (seamen entitled to payment on quantum meruit basis for services rendered after they filed their libel.)
*73Here, the stipulation agreement under which the Aifa was allowed to proceed expressly provided that the court retained c;ustody over the vessel. Cf. The Young America, 30 F. at 790. The stipulation was limited to a single' fishing expedition under specified terms and conditions. Id. The Alfa did not ply the seas in her usual custom but rather was at all times in the constructive possession of the court. Id. Indeed, HGN did not even know of the voyage until the vessel had weighed anchor and immediately brought suit to halt the ill-fated trip.
More importantly, the vessel was already under arrest when the crew was hired. Cf. Northwest Marine, 307 F.2d at 539. While the crew may have been able, under normal circumstances, to attach a maritime lien for wages on the basis of their unrealized catch, see Putnam, 236 F.2d at 570, the fact that the ship was already in custodia legis precluded any such wage lien. Id. at 570; Irving Trust, 197 F. Supp. at 789. Because the crew’s claim arose after the Alfa was placed in custodia legis. as a matter of law, the crew is estopped from obtaining a maritime lien for lost wages. Cf. Putnam, 236 F.2d at 570 (shipowner wrongfully abandoned percentage contracts before vessel entered custodia legis).
IV: CREW’S EXPENSE OF ADMINISTRATION CLAIM
While the general rule precludes securing liens on vessels in custodia legis. "[t]he most elementary notion of justice would seem to require that service or property furnished upon the authority of the court. . . for the common benefit of those Interested in a fund administered by the court should be paid from the fund as an ’expense of justice.’" New York Dock, 274 U.S. at 121 (emphasis added). While no lien can attach to a vessel while she is in judicial custody, services or property advanced to preserve and maintain the vessel under seizure, furnished upon authority of the court, has a claim to reimbursement from the sales proceeds, ahead of all lienors.2 Donald D. *74Forsh, 821 F.2d at 560-61; General Elec. Credit v. Drill Ship Mission Exploration, 668 F.2d 811, 815-16 (5th Cir. 1982). Compare United States v. M/V Andoria, 570 F. Supp. 413, 415-16 (E.D. La. 1983) (maritime lien against vessel for repairs, services, and other necessaries primed government’s claim for expenses for services or property furnished with respect to vessel prior to seizure) with Kingstate Oil v. M/V Green Star, 815 F.2d 918, 923-24 (3d Cir. 1987) (expenses incurred when ship’s charterer unloaded vessel’s cargo after its arrest were ' not entitled to preferential classification as administrative expenses where unloading was for sole benefit of charterer and Consignee and did not benefit any other party).
Nevertheless, from the evidence in the record, We conclude that outfitting of the A3 fa was in furtherance of the profit-making voyage and added no recognizable value to the res. Thus, the crew is not entitled to any reimbursement. See Kingstate Oil, 815 F.2d at 923-24.
CONCLUSION
The Marshal of the High Court of American Samoa properly arrested the Alfa under the maritime jurisdiction of the territory. Thus, the vessel was in custodia legis when the purported second preferred mortgage to Gray-Cary was issued. Accordingly, the trial court properly held this second mortgage null and void.
The crew members’ claims accrued after the vessel’s arrest. Thus, the maritime common law principle favoring seaman’s wages is superseded by the doctrine of custodia legis. Further, because the fishing expedition was a for-profit expedition, wage claims cannot be recognized as administrative expenses. Therefore, the Trial Division’s orders are AFFIRMED.
"We hold . . . that when the government, as mortgagee, elected, instead of foreclosing, to continue the operation of the vessel, for its own purposes and benefit, it did so at its. own risk, and not at that of appellant lienholders. It would be grossly unfair to permit the government, by proceedings that were essentially ex parte as to [the] appellants, to put the ship on the high seas on whatever terms it might choose, as a sort of floating credit card payable to the bearer, *72presumably able to incur maritime liens which would ordinarily, because later in time, prevail over those of appellants." Northwest Marine, 307 F.2d at 541.
Though expenditures, while a vessel is in custodia legis do not give rise to maritime liens, an admiralty court has equitable power to grant priority to claims arising from administration-of property within the court’s *74jurisdiction. Payne v. SS Tropic Breeze, 423 F.2d 236, 239 (1st Cir. 1970). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485629/ | Opinion and Order on Motion for Summary Judgment:
This case arises from an attempt by plaintiff Meapala Ma’ae to register the matai title “Ma’ae" of the village of Nu’uuli. An objection- was filed by Soliai, who does not want the title for himself but claims that Ma’ae is a lesser matai of the Soliai family and that according to family custom Soliai has the right to designate the holder of the Ma’ae title.
Plaintiff has moved for summary judgment on the ground that any traditional right of a senior matai to designate a lesser matai within his family has been overridden by A.S.C.A. i 1.0409, which specifies four criteria on which the court must evaluate candidates for a contested matai title. These four criteria are the best hereditary right to the title; the "wish of the majority or plurality of those clans of the family as customary in that family"; forcefulness, character and personality; and ' value to the family, village, and country. Since the wish of the senior matai of the family is not listed as a criterion, plaintiff urges that the Court is forbidden to entertain Soliai’s claim that he is entitled to name the titleholder. Indeed, it would appear from plaintiff’s motion and memorandum that no family member ever has standing to object ' to a proposed matai title registration unless that family member wants the title for himself. In any case in which there is only one claimant and that claimant possesses the minimum statutory qualifications to hold a title, the Court would have no choice but to award him the title even if every other member of the 'family vigorously objects.
This argument must be rejected. To adopt it would be to give powerful support to the unfortunate idea that the laws of American Samoa having to do with matai titles are at least irrelevant, and perhaps even hostile, to the customs and traditions of the Samoan people.
The statute defining the Court’s duty in matai title disputes --- which is exercised only when the family cannot reach agreement over who should hold the title ---attempts 'to approximate the factors *77which, according to tradition, the family itself would consider in reaching its decision. Any approximation is necessarily imperfect; legislators and judges are human beings who sometimes make mistakes. In considering the four statutory criteria for matai titles, however, the Court should always be guided by the overarching purpose of the statute, which is to preserve Samoan culture rather than to destroy it. The Court should interpret the statutes so as to minimize the extent to which customary law is modified or overridden by the imported procedural framework in which it now must be applied.
It is not inconceivable that some case might arise in which family custom is clearly inconsistent with A.S.C.A. § 1.0409 and has therefore been overridden by its enactment. It is by no means clear, however, that this is such a case. If Soliai should succeed at trial in proving that family custom gives him the right to designate the Ma’ae titleholder, then for the Court to designate someone else would hardly seem consistent with the wish of the majority or plurality of the clans "as customary in the family." A.S.C.A. § 1.0409(c)(2) (emphasis added). Such a titleholder. would in- any case seem to be of little value to the family, village, and country; and it is not clear that anyone could have any hereditary right at all to a title if it is proven that heredity traditionally played no part in its bestowal. See A.S.C.A. 8 1.0409(c)(1), (4). The Court need not award the title to a contestant simply because no one else claims it, but may allow the title to remain vacant if this is the wish or custom of the family. See Sami v. Semaia, 1 A.S.R. 481 (1933).
The motion for summary judgment is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485630/ | Opinion and Order on Motion to Dismiss:-
The, defendant is charged under A.S.C.A. § 46.4115 with having forged, a letter to the American Consulate General in New ' Zealand. Defendant has-*79moved -to dismiss, contending inter alia that the High Court has no subject matter jurisdiction ¡over the act because the alleged fraudulent intent was directed at one outside the territory. The authorities compel the conclusion, however, that the alleged criminal conduct was not without the High Court’s territorial jurisdiction.
Defendant correctly states that criminal acts taking place outside a state are within its territorial jurisdiction if those acts produce proscribed effects within the state. The leading case establishing this as a principle of international law, the "objective territorial" principle, is U.S. v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) (U.S. court had subject matter jurisdiction over acts undertaken abroad with the intent to causé restraint of trade within the U.S. in violation of U.S. law). We fully agree with defendant that jurisdiction over the alleged forgery would lie in New Zealand.
Defendant is mistaken, however, to the extent that he contends that jurisdiction lies exclusively in New Zealand. Rather, when conduct taking place within a state produces its effect in another state, the two states have concurrent jurisdiction over the transaction. See Public Prosecutor v. D.S., 26 Int’l. L. Rep. (Netherlands Supreme Court 1963). There, the Dutch defendant sent a defamatory letter from the Netherlands to an acquaintance in London, where the letter was received and read by the addressee. The defendant contended that any unlawful effect, and thus the crime, took place in England, whose courts alone could exercise jurisdiction thereover. The contention failed; the courts of the Netherlands, as a matter of territorial jurisdiction, were held empowered to take up the issue since the act had occurred there. See also Act Committed, but not Punishable in West Germany. by an Austrian. 101 Journal du Droit International 632 (1974) (Austria Supreme Court 1972) (same result even if the effect taking place in another state is not proscribed there). Thus even if the "effect" of the forgery took place in New Zealand, the High Court could exercise "its territorial jurisdiction over the case because the allegedly criminal conduct took place here. (The authority défendant. cites to the. contrary was an 1894 over-the-border shooting case in which the court expressly recognized that .its rule would not apply "in certain cases of false *80pretenses." State v. Hall, 19 S.E. 602, 604 (N.C. 1894).)
Defendant is also mistaken, however, in suggesting that forgery under local law must produce an "effect" in order to become criminal. The government can establish a criminal forgery by showing that "with the purpose to defraud, [defendant]: (1) makes . . . any writing so that it purports to have been made by another. ...” A.S.C.A. i 46.4115. The statute does not require that defendant actually have . tricked anybody; he need only have committed the described act with the intent to defraud. So long as the intent and the conduct coincided here., the court has' territorial jurisdiction over the complaint.
The motion to dismiss is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485631/ | On motion for summary judgment:
Plaintiff moves for summary judgment on its claim that defendant owes it the purchase price of about thirty hot water heaters. Construing the facts most favorably for defendant, plaintiff owes defendant the purchase price of forty hot water heaters. Liquidated debts, or those whose amounts have been determined or may be ascertained by calculation according to established market values, are generally proper subjects of setoff. See 20 Am. Jur. 2d, Counterclaim, Recoupment & Setoff; R.L. Pohlman Co. v. Keystone Consolidated Industries, 399 F. Supp. 330 (E.D. Mo. 1975).
The motion for summary judgment is therefore denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485632/ | Opinion and Order on Motion for Summary Judgment:
This action on overdue indebtedness stems from certain student loans taken out by Ron F. Fa’alevao with plaintiff, Development Bank of American Samoa, under the Federal Insured Student Loan Program (hereafter "FISLP"), made available pursuant to the provisions of Title IV, Part B of the Higher Education Act of 1965, 20 U.S.C. §§ 1071 et. seq. The plaintiff bank sues on three separate promissory notes, each with the face amount of $2,500 and respectively dated: October 31, 1977; July 1, 1978; and August 27, 1979.
FACTUAL BACKGROUND
Defendants herein were at all relevant times husband and wife. The husband, Ron Fa’alevao, at the times the loans were made, was a full time student attending law school in Fullerton, California, and as such he applied for FISLP financial assistance towards the costs of education.
In accordance with the Act, and- the regulations thereunder, 34 CFR 682, the FISLP is essentially a federal insurance fund which directly insures soft loans to eligible students made by a qualified state (or as here a "territorial") lender following certain stated criteria. Lenders qualify for the payment of federal interest benefits and special allowances on FISLP loans. The program pays a borrower’s loan obligation if the borrower dies or becomes totally and permanently disabled, or if the loan is discharged in bankruptcy. The fund pays the lender’s insurance claim if the borrower defaults. See 34 CFR 682.102 (b).
Mr. Fa’alevao’s application for FISLP benefits was made on a pre-printed federal form made and provided for in these cases. The form seeks information on the applicant’s family’s adjusted gross income, to be verified by signatures of all persons whose income is reported on the form. *83Besides a signature space for the applicant, the form also designates a signature space for: applicant’s spoU.se; applicant’s father; and. applicant’s mother. In the block designated for the spouse, the defendant Mrs. Pamata Fa’alevao executed the application form.
The application form further requires verified information from the applicant’s school, and if approved by the lender, the form contains a portion which the Development Bank also filled out.
The loans were variously approved, and the promissory notes utilized to evidence the loans were also pre-printed federal forms. The notes were produced to the court and purport to bear the signatures of both defendants.
At the time this suit was filed, Mr. Fa’alevao had long departed the territory and process was only served on Mrs. Fa’alevao, who, for all intents and purposes, maintains that Mr. F.a’alevab has abandoned his marital and family obligations since leaving the territory;
LEGAL DISCUSSION
After consideration of plaintiff’s proofs, namely the promissory notes and the loan application, we find certain factors apparent on the face of the documented evidence which attract a second look, in the light of plaintiff’s position that respondent Mrs. Fa’alevao had executed: (1) the loan application as a co-applicant; and (2) the promissory notes as either a primary or secondary obligor.
The factors we allude to that suggest a situation unlike the usual are the following. Firstly, the pre-printed promissory note form is couched in language which addresses only the situation of a singular obligor. Conspicuously absent from the language of the notes, are the usual references one expects with regard to co-makers, endorsers, and guarantors. Rather, the note provisions exclusively envisage the Federal Loan Insurance program, (provided under 20 U.S.C. § 1071 et. seq.) as the only surety for. repayment.
For example, clause IV(5) of. the notes provides that in the event of maker’s death or total and permanent disability, the unpaid *84indebtedness thereunder shall be cancelled. Such a term is inconsistent with the provision .for a comaker/co-obligor.
The very bottom of the note form contains in highlighted script print the heading CAVEAT, along with the following language: "This note shall be executed without security and without endorsement, except that, if the maker is a minor and this note would not, under state law, . create . a binding obligation, endorsement may be required." (emphasis added).
Provision number 1 of the notes requires that the construction of the terms thereof shall be "... in the light of Federal Regulations pertaining to [the] Act" [Title IV, Part B of the Higher Education Act of 1965 as amended, 20 U.S.C. § 1071 et. seq-.] We turn to those regulations for edification on the quoted caveat. The pertinent regulations promulgated pursuant. ■ to the- Act are contained in 34 CFR 682, Sub Part E, i 682.500 et. seq. Section 682.509(e)(2) provides in effect that the Secretary (of Health Education & Welfare) shall make available to FISLP lenders approved promissory note forms. Such'forms may not be added to or modified by a lender without 'the Secretary’s approval. Subsection (f) thereof provides as follows:-
(1) A FISLP loan must be made without security.
(2) With one exception, a FISLP loan must be made without endorsement. If a borrower is a minor and cannot under applicable local law create a legally binding obligation by his or her own signature, a lender may require an endorsement by another person on borrower’s FISLP note. For purposes of this paragraph, "endorsement" means a signature of any party —other than borrower --- who is to assume either primary or secondary liability on the note.
Given the foregoing, the conclusion is inescapable that Mrs. Pamata Fa’alevao’s signing of the notes was an entirely ineffectual exercise. Even if the plaintiff’s expectation at the time was that Mrs. Fa’alevao would be bound as an obligor, *85such an expectation was not in accordance with governing law. The promissory note forms may not bw amended by a FISLP lender unilaterally without the Secretary’s approval. Secondly, Mrs. .Fa’alevao could not be construed as having thereby given security for the repayment of the note. See clause number 1 of the note. Finally, it is quite clear from the regulations that the purpose and intendment of the "Caveat" as contained in the note was to embody the regulatory prohibition against requiring co-obligors.
This prohibition is not without purpose. Section 682.500 of the regulations outlines the circumstances under which loans may be insured under FISLP. These include the circumstances as may exist in a State or Territory whereby "no guarantee agency program is operating; or a guarantee agency program is operating but is not reasonably accessible to students . . . ." Additionally, subsection (d) thereof empowers the Secretary, as a condition for issuing loans under the FISLP, to require lender applicants to certify that conditions such as those mentioned above exist within the Territory. Accordingly, the plaintiff bank cannot be certifying the lack of guarantee' agency programs within the territory in order to qualify as a FISLP lender while making, or attempting to make, side deals to bind third party sureties.
We conclude against any liability on the part of Mrs. Pamata Fa’alevao as evidenced by the referenced promissory notes.
The motion for summary judgment is denied.
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485633/ | This is a land dispute essentially concerning a building site or "tulaga fale" on lands said by the parties to be known as "Auauli," located in the village of Ofu, Manu’a. No surveys were presented and the parties stipulated that the case before the Court did not involve a boundary dispute, but entitlement to the building site. The lands "Auauli," for descriptive reference, were further *87agreed to by the parties as being about one-half to one acre in area.1
The case arose as a result of defendant Taulafoga Tulisua’s building on a site claimed by the plaintiffs, the Olo family, as being the longstanding site of their family’s residence on Auauli.
The testimony was consistent in several respects. What may be described as the mauga/wharf portion of the land has been the house site of defendant and his immediate family for some time now. Towards the middle of the land was the location of the Olo family’s habitation, while to the immediate front thereof, towards the sami side of the land, was the habitual location of the Saleapaga guest house. Also located on the land at the sami/wharf portion is the building of Malietufa, a member of the Togiai family.
The parties’ versions as to entitlement to the land differed,' however.
Plaintiffs claim that the lands Auauli belonged- to the Olo family through initial occupation and cultivation. Testimony had it that members of the Olo family cultivated plantations on the land, which also is the burial place of mjiny k>f the family members.,- Fua’au Olo explained the presence of the defendant Tulisua on the land as having arisen through the permission of his father, the late Olo Fua’au.
Fua’au Olo, who is now sixty-five years of age, testified that he recalled that during his early youth his father, Olo Fua’au, had permitted a couple named Solipo and Lia to build a fáleo’o (a small fale) on the site which is occupied by the defendant Tulisua. This couple had a child named Taupati, who is today seventy-four years old, and who testified and corroborated the testimony of *88Fua’au Olo. It is said that Solipo and Lia had brought the defendant, his mother and his family onto to the land to live with them. Chief Olo supposedly had assented to this and, when Solipo and Lia departed Ofu around the year 1939, defendant’s family continued to live in Solipo and Lia’s faleo’o. They remain there to date after having rébuilt several structures on the same site.
With regard to Saleapaga, plaintiffs explained that the present guest house site of Saleapaga originally housed a joint guest house of Olo and Saleapaga. Over the years the Saleapaga people occupied the guest house, but at all times, it is said, with the permission of the Olo family.
With regard to Malietufa’s location, plaintiffs concede that that portion of the land belonged to Togiai, the neighboring family.
Defendant’s version, as expected, differs. Defendant claims- that the land Auauli is the communal family property pertaining to the Manamea title, and that Tulisua and Saleapaga are lesser matai of the Manamea. The land was said to have been donated by 'Faoa to the original Manamea as a token of gratitude for the latter’s assistance to Faoa in some past war with the people of Olosega.
This testimony was corroborated by the present Chief Faoa save for one detail. While defendant maintains the grant to have been outright, Faoa claims to have reserved the "pule" in the land although its exclusive use is with the Manamea title. It is argued that this explains the location of Malietufa, a member of the Togiai, and hence Faoa, family. Togiai is a lesser matai of the Faoa family.
Defendant Tulisua claims that the plaintiff family was in possession of the particular house site for many years with the assent of Manamea. According to defendant, he had taken it upon himself to build on the site previously in the occupation of the Olo family, because in his view the Olo family had abandoned the site since 1963.
We note parenthetically that this abandonment ground does not escape us without some bemusement. The current holder of the title Manamea has not lived on the village of Ofu for some time now and is last known, at least by defendant, to be *89somewhere within the United States. Both Manamea, defendants’ candidate for land ownership, and Olo, plaintiffs’ counter-claimant to ownership, have abandoned their "monotaga" responsibilities to the village of Ofu and thus, according to Chief Faoa’s testimony, the two are ho longer recognized in the Ofu village council.
Tulisua also asserts, as a monument to ownership, the burial site of Manamea and his family located to the sami/Olosega portion of the land. That site is said to contain the graves of the Manamea, Saleapaga and Tulisua members. It is argued by Tulisua, .in connection therewith, that the separation of the Olo members’ burial site adjacent to their house site indicates that they were treated as strangers to the land. Hence the reason for the non-burial of Olo family members within the ancestral grave site of the Manamea family. Tulisua further claims that Saleapaga had a long house to the Olosega portion of the land, which has not been rebuilt on today owing to the absence of family members remaining on the land.
On the evidence before us we make the following findings.
(1) Neither party has established, by a preponderance of evidence, title to the land "Auauli." The Court notes that this matter did not arise consequent to registration proceedings, whereby the claims of all possible contenders may be adjudicated. The evidence, among other things, also admitted the possibility of ownership in parties not before the Court, that is Faoa and Manamea.
The evidence pointed to inconsistencies with what are usually indices, of "pule" and hence ownership. For example, while the Olo family claims to own the land and to have assented to the occupation by Tulisua’s family, Fua’au Olo admitted that there was no history of “tautua," or traditional service, rendered by Tulisua to Olo. Secondly, the concept of a guest house shared with a titleholder who is said to be a «stranger to the-land (as essentially claimed by-'Olo) does not sit well with the members of this Court fee a qs^stomary norm,- and hence raises doubts regarding Olo’s claims to "pule".
*90On the other hand, the evidence tended to suggest that Tulisua’s family came upon the land subsequent to the Olo family. At the same time, Tulisua’s claims that ownership was vested in the Manamea was contradicted by his own witness Faoa, who claims that Manamea is his donee, but that he, Faoa, reserved "pule" when making the grant.
As far as the Court is currently concerned, there has been insufficient showing by either of the parties to explain how five different title holders, viz:’ Malietufa, Tulisua, Olo, Manamea and Saleapaga, are sharing the lands Auauli. We therefore leave to another time consideration of a logical and sequential trace of "pule" to explain the occupation of these five title holders.
We make no finding on ownership.
(2) We find that the Olo family had a history of possession of the lands Auauli limited to a house site, or "tulaga fale," which site.has housed in the past a number of replacement structures built by the Olo family.
(3) We find that plaintiff’s right to possession was not derivative from defendant Tulisua. Defendant Tulisua .has no superior entitlement, in his own right, to take possession of that site which has been occupied in the past by the Olo family.
(4) We find that defendant Tulisua completed building a structure on the Olo site around March of this year, without permission of the Olo family and without demonstrable cause. Such building was commenced shortly after Hurricane Tusi, which ocurred in January 1987, and it was undertaken over the continuing verbal objections of the Olo family to defendant Tulisua.
CONCLUSION
(1) The plaintiff family, Olo, has superior right to possession of the house site in question as against the defendant Tulisua.
(2) Tulisua, by building a second structure on the land Auauli on the site in question, has committed a trespass against the Olo family, and has in fact attempted to unlawfully evict the Olo family from its house site.
*91(3) Tulisua was put on notice by the Olo iamily of a pending dispute over building on the site in question. Accordingly, his persistence, nonetheless, in undertaking and completing the structure, is inconsistent with "good faith".
(4) As Tulisua is. wanting in good faith, he is therefore only entitled to remove his building, fixtures and appurtenances from the Olo house site, without any opportunity or right to demand, in lieu of removal, compensation from plaintiffs for improvements. Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987) .
(5) That Tulisua shall remove said building, fixtures and appurtenances within sixty days from the date of entry of judgment herein.
It is so ORDERED.
One witness, when asked by the Court to approximate the land area using the courthouse parking lot . as a reference, described an area which in our View is in excess of an acre.. From photographs presented of the location, it appears that the land is within the village proper and is surrounded by concentrated habitation. . | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485635/ | Opinion and Order on Motion for Preliminary Injunction:
Plaintiff Tavai Kaleopa, for himself and members of the Tavai family of Gataivai, seeks a preliminary injunction to enjoin the defendants from the further storage of fuel at the government fuel farm at Gataivai.
On the testimony presented, the basis of plaintiffs’ complaint was the extraordinary amount of fumes that emanated from the fuel farm, *98commencing last Thursday evening. At least one villager was prompted to remove his children to higher ground to escape the .full effect of these fumes. "
The testimony revealed that the unusual level of fumes arose -as a result of defendant PRI’s scheduled and annual cleaning of tank number- three, which generally stores about two-thirds of the island’s supply of unleaded gasoline. The cleaning process involved venting the fumes within the tank, transferring- the fuel therein, and draining accumulated slud^ at the bottom of the tank. Subsequent to cleaning, th- fume level subsided and the atmosphere returned to a tolerable state. Tank number three is not foreseeably scheduled for cleaning until the following year.
On the foregoing facts found, a preliminary injunction to essentially close the fuel depot, or at least enjoin the use of tank number three for further storage, would not be appropriate.
The complainant parent, Aga Osoimalo, has an adequate remedy at law. The facts do not reveal a continuing nuisance that would give rise to a multiplicity of suits. In any event our assessment of individual hardship versus public interest weighs against a provisional injunction.
Motion Denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485637/ | This matter is a land dispute arising after attempts by plaintiffs, the Seumalo family, to register a portion of land named "Alailoto’o" or "Loto’o," situated in the village of Vailoatai, VJes tern District. Defendants are individual members of a branch of the Satele family of Vailoatai who object to the registration attempts, upon the ground that the land in question is the communal property of the Satele family. While defendants acknowledge the use and occupation of the land (to the extent of some 5.54 acres more or less) by the Seumalo family, they emphatically reject the plaintiffs’ claim to entitlement in their own right, and hence registration of the land 'as such.
Plaintiffs’ testimony was to the effect that their'father, one Ikapoti, deceased, had in the early 1930s constructed a church, some church-related structures, and a number of other Samoan buildings for Vailoatai, at the behest of the village council. In recognition of his services, the village had given to Ikapoti some ten acres of land while the then-Satele Mosooi appointed the talking chief title of "Seumalo" to Ikapoti and his heirs.
The present titleholder is Seumalo I. Ali’imau, the son of Ikapoti, and he has continued, with his siblings, the occupation and use of the claimed portion of land.
Defendants, on the other hand, contest the attempted registration by plaintiff with the following reasoning: that while the land in question ,was designated for the use and benefit of the plaintiffs by Satele Mosooi, the plaintiffs, like all others who occupy Satele communal lands, *105do so only upon the traditional condition of rrndering service (tautua) to the Sa’o of the family. Defendants argue that while they themselves, as Satele family members, are occupying family lands', there is reason neither in law nor in custom whereby they could separate out for themselves alone that communal property which they occupy, just as there is no reason in law or custom whereby the Seumalo faction could expect to hold Satele family lands independent of the Sa’o’s title and the duty to render tautua corresponding with the use of family land.
In support of their position, defendants deny the existence of any land grant in return for services. Their version of the origins of Seumalo Ikapoti in Vailoatai is as follows: while acknowledging the latter to have built one Samoan structure for church purposes in the village, defendants have it that Ikapoti was fully repaid in the normal manner in accordance with custom. (That is, through the appropriate presentation of food, fine mats, money, and goods of traditional value.) While there was accord and satisfaction between the village and Ikapoti, defendants contend that the builder had decided to stay on in Vailoatai and pressed Satele Mosooi for a residential site. He is said to have petitioned Satele on at least three occasions for a piece of land and Satele finally acceded, making an assignment conditional on tautua.
To substantiate their position, defendants offered the following proofs. Poueli Satele testified of a prior attempt by Ikapoti and his wife, Malia, to seek Satele Solomona Faumuina’s permission to survey the land. Ikapoti was met with the response of either rendering service to the Satele title or removing himself and his family from the land. Defendants are also of the position that the compact concerning the land involved Satele Mosooi and Ikapoti only. They deny any involvement of the village.
Defendants further presented what they claim as documented family history recorded by Satele Mosooi. This writing alludes to the understanding that the land "Loto’o" was given by Satele to Ikapoti subject to the traditional service requirement, rather than being an outright village grant. A recent separation agreement was also. tendered to substantiate a recent affirmance of *106"pule" by Satele Mosegi on lands claimed to be "Loto’o."
Defendants further pointed to five additional and contiguous acres, said to be a part of the same land "Loto’o," as having been registered in the name "Satele" in' 1933. This was part of a joint Vailoatai/Taputimu village registration effort, preparatory to a long-term lease to the territorial government of what became known as the Feleti School and Taputimu farm.
In evaluating the competing claims of the parties, we find that the ■ scope of the original grant to Seumalo was about the five and one-half acres that is the extent of their net claims today. Their understanding ”0! a ten-acre grant is inconsistent with the fact. ' that the. adjacent portion of land had been registered in the Satele title since 1933 and occupied over the years by Satele’s lessee, American Samoa Government. It is further inconsistent with the fact that the extent of their occupation and use has been confined- to the five-plus acres now claimed, as was quite evident in their testimony.
With regard to this -area now claimed by Seumalo, we find that the evidence preponderates in favor of plaintiffs’ version. Firstly, ’the written family history submitted by defendants as having been prepared by Satele Mosooi suffers in fundamental respects. The documentation bears an illegible preparation date which could be read as either 1931 or 1951. If it is the case that the latter is the date of preparation, then of course Satele Mosooi could not have been the author, having died some time prior.
Defendants claimed, however, that the writing was in fact prepared in 1931. The real problem with this assertion is that Mosooi, as the alleged author in 1931, would have to be acclaimed among the biblical prophets, as the writings referred to specific events occurring at specific times after 1931. Rather, the writings appear more probable to the Court as having been prepared and recorded by the defendants’ side of the Satele family, in accordance with their version of the occurrence, at a date well subsequent to the tenure of Satele Mosooi. . The writings are not contemporary recordings and we give weight accordingly.
*107We are further persuaded by the testimony of the current Paramount Chief Satele Momosea, who did not join in defendants’ objections. His understánding of the extent of the traditional family holdings was that it was limited to the inward side of the village. According to Chief Satele’s testimony, family holdings in land did not reach the seaward side of the village, where the portion in dispute is located.
This testimony was corroborated by High Talking Chief Lopa speaking on behalf of the village. It was Lopa’s understanding that the registration in the name of Satele of the mentioned five acres of the Taputimu farm lease was the result of an accommodation by the pertinent village landowners at the time, in deference to their ranking matai Satele, in order that the latter could share in lease revenue. Lopa is in agreement with Chief Satele’s testimony that Satele land holdings did not traditionally extend to the seaward side of the village. Lopa further testified that the land now claimed by Seumalo was in fact the subject of a community grant by the same pertinent village landowners (who made the 1933 registration accommodation in favor of Satele), in recognition of Ikapoti’s service to the village. While these relevant landowners appointed the land "Loto’o" to Ikapoti, Paramount Chief Satele Mosooi appointed the honors bestowed with the title "Seumalo."
Talking Chief Lopa acknowledged that as far as the land donors were concerned, the grant to Seumalo Ikapoti in recognition of his services to the church was outright, and not to be disturbed. The village council was, however, showing some concern that some individual members of the Satele family were attempting to act in derogation of the grant and, more importantly, of the rights of the grantors themselves.
Finally, two other factors affected credence in defendants’ position. Satele Mosooi raised as a son one Ofe Satele Mosooi, now sqme seventy years of age. Ofe referred to Satele Mosooi as his father and testified from personal knowledge that his father was not literate, and therefore could not have authored the purported writings of 1931. Secondly, the recent Separation Agreement above referenced and executed by Satele Mosegi purported to have the lands there concerned as being named *108"Mauga land (Loto’o)." A certified copy of the original' Separation Agreement from the Territorial Registrar’s office showed the-land as named "Mauga land" only. The reference, in parentheses to "Loto’o" as contained in defendants’ exhibit is an additional writing to the instrument. The attempt, therefore, with ' an altered instrument, to demonstrate that portion of 'land as being a part of "Loto’o" for purposes of highlighting Satele’s "pule" seriously affects our assessment of credibility.
Plaintiffs, to the contrary, demonstrate use and occupation of Loto’o quite independent of any duty to render service to the Satele. Seumalo’s post-war claims to crop damage and land use by the United States Marines were filed by Seumalo "as matai and head of [the] family." We also find certain separation agreements over the land Loto’o executed by Seumalo as the matai of his family concerning the structures on the land erected by members of his family at various times. These separation agreements are subject to statutory posting requirements to permit third-party objections. No such objections have been noted before from the former Satele titleholders.
CONCLUSION
It is the conclusion of the Court based on the foregoing that the Satele family has no interest in the 5.54 acres being the land "Alailotoo’o" or "Loto’o," as more particularly described in Survey Pvt. No. 264-8-8.3 and claimed by the Seumalo family. Accordingly, the objections made by defendants herein are held to be without merit, and may therefore be disregarded by the Territorial Registrar.
Absent other third-party objections timely made, the Registrar is directed to register the said land "Alailoto’o" or "Loto’o" as the communal family land of the Seumalo family of the village of Vailoatai, in accordance with the statute made and provided for in these cases. See A.S.C.A. § 37.0103(c).
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486222/ | Opinion and Decision on Damages:
This case revolves around an explosion which took place on the purse seiner Ocean Pearl on November 21, 1983. This action, the final phase of a bifurcated trial, is all that remains of a number of suits filed in various jurisdictions. Due to the long history of the action, we briefly recite the facts as laid out in the court's Opinion and Decision on Liability, issued on December 22, 1992.
On November 16, 1983, the purse seiner Ocean Pearl set sail on a fishing *30voyage from Pago Pago, American Samoa. While on the high seas two days later, the diesel propulsion engine of the Ocean Pearl stopped, due to tainted fuel taken on in Pago Pago. For three days unsuccessful attempts were made to restart the stalled engine. On November 21, 1983, a now notorious attempt was made to restart the engine using a combination of ether-based starter spray and pure oxygen gas. After one encouraging try, the second attempt to so start the engine resulted in a low order explosion. The explosion damaged the engine and the engine room and severely burned six crew members and the captain, who eventually died of his injuries.
Subsequently, actions were filed by the injured crew members and the widow of the Ocean Pearl's captain, naming Interocean Ships, Inc. ("Interocean") as defendant. Each of these claims was settled by Interocean, which in turn brought actions against the companies that supplied the diesel fuel, the starter fluid, and the oxygen. Both the actions against the suppliers of the diesel fuel and the starter fluid were settled, and the remaining suit against the supplier of the oxygen, Samoa Gases, proceeded to trial on October 7-9, 1992.
The. court bifurcated the trial, addressing first the liability of Samoa Gases, if any, and reserving the determination of damages until now. At the first phase of the trial, the court, for the first time, applied the doctrine of strict products liability to an admiralty proceeding. The court found that Samoa Gases' failure to provide a warning label on the oxygen cylinders rendered the oxygen unreasonably dangerous and was a proximate cause of the explosion. Applying the principles of comparative fault, the court held Samoa Gases liable in proportion to the amount by which its fault furthered the accident. Reserving the question of damages for the second part of the bifurcated trial, the court did find that the crew, and therefore Interocean, should bear a significant quantum of responsibility for the accident, as they should have known of the danger of using pure oxygen. The court left the question of allocating percentage of fault between Samoa Gases, the crew of the Interocean, and the suppliers of the diesel fuel and starter fluid for the damages phase of the trial, and it is to these questions that we now turn.
This second phase of the trial, itself divided into two parts, took place on July 14-15, 1993 and December 13-15, 1993. Interocean requested total damages of between $2,373,962.88 and $2,578,962.88 (depending on the method of lost profits calculation, and excluding the request for prejudgment interest). The claims are requested for: (1) lost profits; (2) maintenance and cure payments made to the crewmen; (3) settlement *31payments made to the crew and the widow of the captain; (4) damage and repair costs; (5) attorney's fees and costs incurred in collateral litigation; and (6) prejudgment interest. We will address each aspect of the requested damages in turn, addressing first the question of apportioning liability between the parties.
At the close of trial, Interocean requested Samoa Gases be held liable for at least 50% of the damages, and not less than 25%. Samoa Gases requested that their liability be assessed at 0% of the damages, and not more than 1 %. In order to most accurately determine the percentage of fault of each player, we examine the causal roles played by both parties to this action, as well as by PRI (supplier of the diesel fuel) and Radiator Specialty (supplier of the starter finid, THRUST). Once percentages of fault are established, the dollar amounts actually paid by settling third parties are disregarded and liability is calculated pro rata.
COMPARATIVE LIABILITY
Assessing first the roles played by PRI and Radiator Specialty, we note that suits against each of these suppliers never came to trial. However, the defendant was given the opportunity, at the second phase pf the trial, to introduce evidence regarding the comparative fault of nonparties.
There has been no evidence submitted as to the liability, if any, of Radiator Specialty. Save for the fact of their settlement, which could be attributed to a variety of factors not pertaining to liability, this court has heard nothing more than allusions as to their liability. . The chief engineer testified, without contradiction, that he had used THRUST at least twice after the engine stopped working and prior to the explosion, with no discernible results at all (Deposition of Richard M- Gonsalves, December 19, 1990, p. 34-37). Samoa Gases's own witness, Andy Nesheim, testified that using THRUST as done by the crew of the Ocean Pearl was the proper thing to do, and is done all the time at Samoa Gases (Transcript, October 9, 1992, p. 11). There was no admissible evidence regarding the labeling of THRUST, or showing that the product was unreasonably dangerous. In the absence of any even minimally probative evidence tending to show that Radiator Specialty bore some quantifiable measure of responsibility, we decline to arbitrarily guess what that percentage may be. Therefore, .the percentage of liability assessed to Radiator Specialty is zero.
The evidence relating to the liability of PRI, the fuel supplier, was less speculative. While all parties seem to take it for granted that the fuel was *32in fact tainted, and therefofe the cause of the engine's failure in the first place, there was little proof before the court as to this fact.1 While fuel contaminates may have been a problem, at least at fiirst, whether or hot this was due to the negligence of PRI or Interocean remains unclear. However, the fuel tanks were drained and refilled with what was thought to be "good fuel" and the engine still did not start (Deposition of Richard M. Gonsalves at 27). While it.seems clear that PRI played some minimal part in the accident, the evidence does not reveal that it was a large role. Additionally, whatever their contribution may have beefo, the fuel itself did not cause the explosion. With all this in mind, we assess the liability of PRI at 1%.
We now look at the percentage of damages to be assessed against the two remaining players before the court - Interocean and Samoa Gases. We begin with Interocean. ■; ■■
Throughout all phases of this litigation, Interocean has never maintained that it was blameless. Indeed, it stated that it bears some measure of responsibility for the explosion, differing with Samoa Gases only as to how much. Interocean's liability can be traced-to two separate roots: the condition of the engine and the negligence of the-crew. There is evidence showing that the engine itself was -not functioning properly prior to the breakdown.2 Additionally, there was some evidence that the manner of fuel storage may have led to its contamination, and that the engine itself was poorly maintained (Transcript, December 14, ■ 1993, p. 68). • ■
Even more important is the obvious negligence of the crew. As defendants noted, this crew was-not new to the sea, nor were they *33unfamiliar with proper uses of oxygen.3 While Samoa Gases had the responsibility to label the oxygen cylinders, the captain and crew certainly had the responsibility to handle all materials in a workmanlike manner.
Because of Interocean's both passive and active roles in bringing about the explosion, we assess their degree of liability at 95 %. ■
The final participant, then, is the defendant before us, Samoa Gases. As the court concluded after the first part of the bifurcated trial, the lack of warning labels on the oxygen cylinders rendered the oxygen unreasonably dangerous and was certainly a proximate cause of the accident. However, within the particular fact situation before us, we cannot say that Samoa Gases bears the primary responsibility for the explosion.
Therefore, we assess the liability of Samoa Gases at 4%. With these percentages of fault in mind, we now turn to each category of damage claimed by Interocean.
*34LOST PROFITS
Lost profits are estimated by Interocean to be either $405,000.00 or $610,000.00, depending upon the method of calculation employed (average catch per day or profit per trip). Because of our finding in this area, it is unnecessary to determine which method, if either, should in fact be utilized.
Interocean is claiming that the loss of profits on this particular trip was due to the fault of Samoa Gases in not labeling the oxygen cylinders, and in causing the explosion. While we acknowledge that "(I)n admiralty it is well settled that fishing vessel owners and commercial fishermen may recover for lost fishing profits under the general maritime law of negligence.", Jones v. Bender Welding & Mach. Works, Inc., 581 F.2d 1331, 1337 (9th Cir. 1978) (citations omitted), this is not the type of case that lends itself to this recovery.
Cases that have allowed recovery of lost profits have done so when a defendant s actions were the proximate cause of the loss. In Jones, supra, the court found that overall there was no intervening cause between defendant's actions and plaintiff's losses (finding otherwise that plaintiff was entitled to pursue these damages, without ruling on whether they would be awarded on remand). In Reefer Queen Co. v. Marine Construction & Design Co., 440 P.2d 453 (Wash. 1968), a case where plaintiff lost 11 fishing days out of an otherwise successful fishing voyage due to faulty winches, the court noted that the lost profits calculation was based on not only plaintiff's expert witness testimony but on evidence as to the fish the vessel was catching immediately prior to and in between breakdowns. The court pointed out that the failure of the winches was due to defective shafts (and therefore defendant's negligence), and that once this problem was addressed, there was no further trouble. In Miller Indus. v. Caterpillar Tractor Co., 473 F. Supp. 1147, 1156 (S.D. Ala. 1979), appeal after remand 516 F. Supp. 84 (S.D. Ala. 1980), the court, in computing lost profits in a case where the defendant's actions were the only, and proximate, cause of the lost profits, said "This (computation of lost profits) includes a comparison to similar vessels engaged in the same fishery in the same general area as would have been fished by plaintiff but for the fault of the defendants." (emphasis added). In each of these cases, and others, lost profits were awarded when a defendant's actions were the direct cause of the loss. Additionally, while lost profits do not have to be calculated exactly, they generally must be `proved with reasonable certainty." Delta S.S. Lines, Inc. v. Avondale Shipyards, Inc., 747 F.2d 995, 1000 (5th Cir. 1984). application for rehearing den'd in part 753 *35F.2d 378 (5th Cir. 1989). This computation certainly cannot automatically transform a failing voyage into one where lost profits are at all recoverable. ' : ’ ■
In this case, Samoa Gases' failure to label the oxygen cylinders has been found to be a proximate cause of the explosion, but we cannot say that the explosion was the primary reason for the Ocean Pearl's loss of profits on the voyage under scrutiny. Prior to the explosion, the vessel had been adrift on the seas for three days, through no fault of Samoa Gases, with no demonstrated ability to- extricate herself from this predicament. Various methods had been tried by the crew and, as both parties agree, to no avail. While the explosion itself was proximately responsible for .other damages, it was not the "but-for" cause of the lost profits. ■ Indeed, from this court's observance of the evidence, it seems that this voyage would have resulted in the Ocean Pearl's being towed to shore, without completing its fishing expedition whether or not the explosion had taken place.4 The explosion does not negate the fact that the voyage was unprofitable, nor does it turn an unprofitable trip into a.lucrative one. To allow Interocean to-recover lost profits from what was turning out to be an unsuccessful voyage, simply'because of a subsequent event that, at most, added to its failure, would be palpably unfair. Therefore, the only evidence before us tends to establish that the breakdown of the engine, and the inability to fix it, was the proximate cause of the lost profits.
In the absence of any evidence illustrating that the engine was going to be repaired, save for the 'intervening-explosion; we cannot, and do not; hold Samoa Gases liable for lost profits.5 . .
MAINTENANCE AND CURE
Interocean seeks indemnity for'mairitenance and cure payments,made to *36the injured crew members in the total amount of $241,935.06.6 This figure is made up of expenses related to medical payments, ambulance receipts, food bills and telephone charges. In support of these payments, Interocean submitted receipts, copies of canceled checks and invoices. Samoa Gases did not dispute these.payments with any evidence.
For the cure payment of each injured crew member Interocean submitted copies of canceled checks made out to Hawaii's Straub Clinic and Hospital, American Ambulance.Service, various medical personnel and mileage reimbursements to and from doctors.7 Additionally, maintenance checks were also made out to each crew member.8 We have itemized the maintenance and cure payments expended to each crewman in the chart below:
Crew Member Maintenance Cure
Sitúa Brown - $1,284.00 $23,453.53
Afamiliona Faatasiga 3,132.00 34,986.91
Deolc Gon Kim 3,132.00 • 31 ,359.64
Tae Hong Kim 6,768.00 43,041.74
Antonio Lolesio 5,040.00 ■ 41,481.71
Robert Parkerson 7.140.00 41.115.53
Total $26,496,00 $215,439.06
Maintenance and cure are entitlements that have certainly withstood the tests of time and judicial scrutiny. "In fact, the duty of the shipowner to provide for the ill or injured seaman can be traced as far back as the Sea Codes of the Middle Ages." Rutherford v. Sea-Land Service, Inc., 575 F. Supp. 1365, 1369 (N.D.Cal. 1983), citing 2 Norris, The Law of Seamen, § 540 (1970). A seaman is entitled to maintenance and cure whether or not the injuries were received as a result of negligence. The Osceola, 189 *37U.S. 158, 47 L. Ed. 760 (1903) (superseded by statute on other grounds as stated in Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1979) and on remand 89 F.R.D. 322 (1980)). This right, to recover maintenance and cure without regard to fault, is among the most pervasive incidents of the responsibility anciently imposed upon a shipowner. Anguilar v. Standard Oil Co., 318 U.S. 724, 730, 87 L. Ed. 1107 (1943).
A shipowner does have a right of indemnity against a third party tortfeasor for maintenance and cure paid to an injured seaman. Black v. Red Star Towing & Transp. Co., Inc., 860 F.2d 30 (2nd Cir. 1988). We ask, although the issue was not explicitly raised by the parties, if a shipowner whose negligence has contributed to the injury pays maintenance and cure to a contributorily negligent seaman, is that shipowner entitled to contribution for maintenance and cure from a third party joint tortfeasor, also held to be at fault? The answer here is also yes. The third party should contribute the portion of maintenance and cure proportionate to fault. "[A] party whose neglect has in part contributed to the need for maintenance and cure payments . . . should reimburse the costs of those payments to the extent occasioned by its fault." Adams v. Texaco Inc., 640 F.2d 618 (5th Cir. 1981). "We think that equity, as well as good sense, should serve to limit the liability of a third-party tortfeasor to its proportionate share of fault in all cases where reimbursement is sought for maintenance and cure." Black, supra, 860 F.2d at 34. The fact that the claims for maintenance and cure were settled prior to trial does not bar contribution by Samoa Gases. Rogers v. New Jersey Barging Corp., 567 F. Supp. 822 (S.D.N.Y. 1983) (citations omitted).
We hold Samoa Gases liable for maintenance and cure payments equal to the amount of their assessed liability of 4%. On this element of damages, therefore, it is liable in the amount of $9,677.40.
•SETTLEMENT PAYMENTS
Interocean settled claims made against them by the injured crew members and the widow of the captain, and now seeks to be reimbursed by Samoa Gases.9 In support of these amounts, Interocean submitted copies of settlement checks, releases and court documents (before this court and others). There has been no evidentiary dispute as to the amounts actually *38paid. The settlement payments made are detailed below:
Crew Member Settlement Amount
Sitúa Brown $67,500.00
Afamiliona Faatasiga 135,000.00
Deok Gon Kim 105,000.00
Tai Hong Kim 165,000.00
Antonio Lolesi 150,000.00
John Medina 100,000.00
Robert Parkerson 185.000.00
Total' $907,500.00
It is true that "admiralty law recognizes that even where a party to a lawsuit settles, it may still bring an indemnity action against a joint tort feasor". Sea-Land Service, Inc., v. American Logging Tool Corp., 637 F. Supp. 240, 241 (W.D. Wash. 1985). We note that in 1985 Samoa Gases rejected Interocean's tender of defense of the personal injury and wrongful death claims (Transcript, December 14, 1993, p. 2). However, a failure to tender, alone, would not preclude an indemnity claim by Interocean, if that claim still presented a valid theory of relief. National Marine Service, Inc., v. Gulf Oil Co., 433 F. Supp. 913, 916 (E.D. La. 1977) (citations omitted).
Throughout the damages phase of the litigation, Interocean stressed that the settlement payments made were reasonable and, if anything, were low. Samoa Gases presented no evidence showing that the settlement payments were unreasonable in amount. Examining the photographs and testimony concerning the injuries received from the explosion, this court must agree. We have also been presented with little evidence as to the liability of Interocean to the settling crew members. However, it is not difficult for us to find, based on the voluminous material before the court, that Interocean would have been held liable, as our finding of its liability in the matter before us supports. The fact the crew themselves contributed to the injury does not preclude recovery by Interocean, if they were liable as well. West Coast Ter. Co. of Cal. v. Luckenbach SS Co., 349 F.2d 568 (9th Cir. 1968) (shipowner's action against stevedore for breach of indemnity contract). We also recognize the slight degree of fault that would render Interocean responsible to a Jones Act plaintiff. Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975); Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1542 (11th Cir. 1989). Therefore, we find that the settlements were not voluntary payments. Cases finding a third party *39tortfeasor liable for all, or partial, payments to one who has reached a settlement with crew members have then looked to the reasonableness of the amounts paid. Wisconsin Barge Line, Inc. v. Barge Chem 300, 546 F.2d 1125 (5th Cir. 1977).
In the case before us, we find that the settlements paid by Interocean and detailed above were all reasonable. Samoa Gases has already been held strictly liable and its degree of fault established at 4%. Following the principle of having each party bear their share of fault, Cooper Stevedoring Co. v. Kopke, 417 U.S. 106, 40 L. Ed.2d 694 (1974) (dividing liability equally in a non-collision case as proper under the circumstances), we hold Samoa Gases liable for 4% of the settlement payments made to the injured crew and the widow of the captain. Samoa Gases is to pay $36,300.00 in this area of damages.
DAMAGE AND REPAIR COSTS
Interocean claims damage and repair costs attributable to the explosion of $53,338.33, out of a total damage and repair cost of between $132,417.39 and $157,378.54. The damage and repair costs assigned by Interocean to the explosion consist of the following charges: turbo charger at a cost of $30,624.52; helicopter costs of $10,293.25; one-fourth repair crew costs of $3,137.50 and $2,349.90; one-fourth travel at a cost of $3,074.05; phone charges at a cost of $139.29; and miscellaneous charges of $2,657.87. These amounts were explained and checked for reasonableness by Kenneth F. Franke, a marine surveyor who investigated the Ocean Pearl's casualty and recommended repairs.10
On this issue, there was conflicting testimony as to what was actually damaged and how much repairs should have cost. While Interocean claims that the turbocharger was damaged by the explosion, there is evidence that it was not properly working prior to the explosion (Deposition of Richard M. Gonsalves, December 1990, p. 32-33) (prior to explosion, the chief engineer applied a test to see if the turbocharger was working and could not tell from the results if it was). Joseph Yandall testified that he felt the turbocharger was in poor shape and not properly functioning prior to the explosion. Specifically, he noted an imbalance of heat in the exhaust barometer readings from the engine, the presence of water in the fuel, sticking of the fuel injectors and the valves not being *40seated properly (Transcript, December 14, 1993, p. 102, 106). Mr. Yandall felt that it would have taken the same amount of time to repair the engine had the explosion never occurred and that some elements of the engine, (i.e., the blow-out covers) could have been repaired instead of replaced.
We first address the costs attributed to travel, repair crews, helicopter, phone and miscellaneous charges. On these issues there was little, if any, contradiction. Interocean submitted these costs, and then subtracted what they felt could not be attributed to the explosion itself. While Samoa Gases lodged a "general protest" against these charges, there was nothing approaching particularity for any challenges. From our review of the extensively documented record, it appears that these costs at least were reasonable and attributable to the explosion.
The record is not so clear as regards the turbocharger. While there was undoubtedly additional damage done to it due to the explosion at issue, the record is equivocal at best regarding its functioning just prior to the explosion. In sum, we have evidence before us stating that the turbocharger probably did work, probably did not work, and may have worked prior to November 21, 1983. From our review of the record, we can ascertain'that the turbocharger, while not functioning properly, was certainly affected by the explosion itself. Therefore, we assess the damages to the turbocharger attributable to the explosion at 50% of its total damage, or $15,312.26.
We are mindful that we should allocate damages liability in proportion to relative fault. United States v. Reliable Transfer, 421 U.S. 397, 44 L. Ed.2d 251 (1975). Therefore, we assess Samoa Gases liability in this area at 4% of $36,964.12, or $1,478.56.
ATTORNEY'S FEES AND COSTS
Interocean is claiming attorney's fees and costs as damages arising out of suits brought against it by the crew members and the widow of the captain in connection with the explosion. The total amount of attorney's fees claimed is $611,575.00, and the amount of costs is $154,597.00, for a total claim of $766,172.00.11 Interocean, in support of the claimed *41amount, submitted multiple invoices documenting the dates, descriptions, time and value of all services related to this claim, as well as a summary of this voluminous material. In response, Samoa Gases, while not challenging the doctrine or the legal authorities relied upon by Interocean, simply disputes any award. This position is bolstered by Samoa Gases' two-pronged assertion:
(1) first, that Interocean submitted insufficient evidence to prove that attorney's fees and costs were incurred and/or paid; and (2) second, that fees and costs that were paid were already reimbursed by the settlement amounts from PRI and Radiator Specialty.
In this case, Interocean’s submissions as to the amount of attorney's fees and costs must stand. Samoa Gases has submitted no proof going to the reasonableness of the fees and costs, any deficiency with Interocean's accounting system, any padding, or indeed any other evidence that would show that the costs themselves are unreasonable. With nothing to show that these fees and costs are anything other than what Interocean has submitted them to be, we accept them as offered.
Samoa Gases' assertion that Interocean's award in this area must fail due to settlements received from PRI and Radiator Specialty is without merit. This court has previously stated that the settlements reached with these parties is inadmissible. (Opinion and Interim Orders, September 3, 1993, P-5).
However, there are other difficulties with Interocean's request. While it is trite law that attorney's fees, in general, are not awarded, we acknowledge that there are exceptions to that rule. The general rule is ". . . against recovery of attorney's fees as such, by a party which incurs them in enforcing a claim against another. It is equally well settled, however, indeed it is hornbook law, that the reasonable expenses incurred by an indemnitee in defending a claim against him may be recovered of his indemnitor — and that these expenses include attorney's fees." Cotten v. Two "R" Drilling Co., Inc., 508 F.2d 669, 771 (5th Cir. 1975). This exception applies equally to courts sitting in admiralty, as it has been specifically held that admiralty courts have such equitable powers as to assess attorney's fees. McKeithen v. S.S. Frosta, 426 F. Supp. 307 (E.D. La. 1977) (pretrial order addressing discovery). However, we also note that "The prevailing party in an admiralty case is generally not entitled to an award of attorney's fees, absent statutory authorization." B.P. North America Trading v. Vessel Panamox Nova, 784 F.2d 975, 977 (9th Cir. *421986) (emphasis added) (citations omitted); see also In Re Sause Bros. Ocean Towing, 801 F. Supp. 378, 380 (D. Or. 1991) (the American Rule .requiring parties to bear their own attorney's fees generally applies in admiralty).
This case, however, does not fall into the exception as advocated by Interocean. Here Samoa Gases would, at most, only be held liable for attorney's fees equal to their percentage of fault and would not in any event fully indemnify Interocean.12 And as we hold today, Samoa Gases is responsible for contribution as regards damages caused by. the explosion and settlement amounts paid. In this type of situation, attorney 's fees and costs, between responsible parties, are not recoverable. Western Tankers Corporation v. United States, 387 F. Supp. 487 (S.D.N.Y. 1975). In Odds Bergs Tankrederi A/S v. S/T Gulfspray, 650 F.2d 652, 653 (5th Cir. 1981), the court stated: "In cases where contribution has been allowed for damages, both in admiralty and nonadmiralty, courts have generally denied a right to contribution for attorney's fees and expenses incurred in defense of the action brought by the injured party (citations' omitted)."
Here, although we awarded Interocean contribution, we have found from the evidence before us that it bears the vast majority of liability in this case. Cases have found that a party who is at fault, while defending against a victim's claim, cannot then turn to another liable party for attorney's fees in the first suit. Leingang v. Bottled Gas Corporation, 332 F.2d 959 (7th Cir. 1964). We agree with this reasoning, particularly where the original defendant is found significantly responsible.
In the case before us, Interocean would have had to defend against the claims, and incur attorney's fees, regardless of the role of Samoa Gases. While Samoa Gases may have garnered an indirect benefit from Interocean's actions, that alone does not make them liable for attorney's fees.13 Indeed, our entire opinion makes clear that each party should be *43held liable to their degree of fault. Here Interocean would have litigated, and settled, these claims regardless of the fact that any other parties may be held partially liable, and benefited themselves from the settlement, so attorney's fees are unrecoverable in contribution. Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190 (5th Cir. 1989); see also Lennon v. Aluminum Company of America, 279 F. Supp. 487 (S.D. Iowa 1968); Rauch v. Senecal, 112 N.W.2d 886 (S.D. Iowa 1962).
Therefore, Interocean is not entitled to attorney's fees or costs incurred in this collateral litigation. We hold that Samoa Gases is not liable for them in any amount.
PREJUDGMENT INTEREST
Interocean has requested an award of prejudgment interest and asked that this be calculated by setting a constant rate of interest based on a rate equal to the coupon issue yield, as determined by the Secretary of the Treasury, of the average accepted auction price for the last auction of 52-week United States Treasury Bills settled immediately prior to the date of the explosion (Interocean's Supplemental Bench Brief Regarding Recoverability of Prejudgment Interest in Maritime Law, July 13, 1993).
We acknowledge the fact that the general rule is to award prejudgment interest, although this award always lies soundly within the court's discretion. Masters v. Transworld Drilling Co., 688 F.2d 1013, 1014 (5th Cir. 1982) (citations omitted); Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1157 (5th Cir. 1990). However, it is also true that when certain "peculiar" circumstances exist, the discretion to deny prejudgment interest is sustained. Noritake Co. V. M/V HELLENIC CHAMPION, 627 F.2d 724, 728 (5th Cir. 1980); U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir. 1992). These peculiar circumstances have fallen into three categories: (1) "plaintiff's delay in bringing suit, ” (2) "the existence of a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved," and (3) "judgment in an amount substantially less than that claimed." Mecom v. Levingston Shipbuilding Co., 622 F.2d 1209, 1217 (5th Cir. 1980) (citations omitted); Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028 (5th Cir. 1986) (citations omitted). In the case before us, Interocean has claimed damages of over two million dollars, and Samoa Gases is being held liable for substantially less than that amount, fitting *44this case into the third category. In addition, the second category has been relied on in denying prejudgment interest in cases of apportioned fault, as this weakens a plaintiff's claim that his or her funds have been withheld by a recalcitrant party. Inland Oil and Transport Co. v. Ark-White Towing, 696 F.2d 321, 328 (5th Cir. 1983). In Inland Oil, two vessels collided on the Mississippi River, and fault was found to lie 25 % with Inland Oil and 75% with Ark-White and Murphy Marine. In upholding the denial of prejudgment interest, the court noted that "the decision regarding prejudgment interest will not be disturbed if it has a rational fit in the resulting judgement viewed as a whole." Inland Oil, 696 F.2d at 328. We think that not only does the case before us fit into the category of "peculiar facts" often alluded to, but that the denial of prejudgment interest is a rational aspect of the case as described herein.
Interocean has pointed out that the Ninth Circuit, in Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789 (9th Cir. 1980), has, in a footnote, apparently questioned the wisdom of denying prejudgment interest in cases with a high degree of contributory negligence. However, we note that in Alkmeon, a case referring to admiralty collisions, the court found that the only disputes were over allocation of fault and damages and both parties conceded some fault from the onset. The case was then remanded to determine whether or not special circumstances for denying prejudgment interest existed. Aside from the differences between the Alkmeon case and the one before us, we note that the denial of prejudgment interest is widely followed, and that the Alkmeon case has garnered criticism since its publication ( noted the "flaw" in Alkmeon and found that case did not require reexamination of the law regarding denials of prejudgment interest).
Because of the facts that (1) judgment is being rendered in an amount significantly less than claimed, and (2) our apportionment of liability finds Interocean substantially more liable than Samoa Gases, we deny any award of prejudgment interest in this case. Interocean is entitled, of course, to postjudgment interest at the rate of 6% per annum.
CONCLUSION
Based on the principles and law enunciated above, we find the following:
(1) The degree of liability for Radiator Specialty is 0%.
(2) The degree of liability for PRI is 1 %.
(3) The degree of liability for Interocean is 95 %.
(4) The degree of liability for Samoa Gases is 4%.
(5) Samoa Gases is liable for the following in damages:
*45Lost profits $ 0.00
Maintenance and cure 9,677.40
Settlement payments 36,300.00
Damage and repair 1,478.56
Attorney's fees and costs 0.00
Prejudgment interest 0,00
Total $ 47,455.96
Judgment shall enter accordingly.
It is so ordered.
The chief engineer testified that he initially thought there was a problem with the fuel and he changed the fuel filters, to no avail. He also changed 5 (out of 20) fuel injectors he found to be "sticking,1' also with no effect. The fuel pressure was found to be sufficient and the chief engineer concluded that the fuel was not the problem (Deposition of Richard M. Gonsalves, December 19, 1990, p. 24-27).
The chief engineer testified that when he first joined up with the Ocean Pearl on November 16th the departing chief engineer, Walter Cook, indicated that the engine had shut itself down when operating at high speed (Deposition of Richard M. Gonsalves, December 19, 1990, p. 17-19). Joseph Yandall testified that from his review of the evidence the Ocean Pearl left on its fateful voyage with a very faulty engine (on voir dire, transcript, December 12, 1993, p. 68).
The Captain, John Medina, came from a fishing family (Transcript, October 7-8, 1992, p. 161). The chief engineer, Richard Gonsalves, stated in his deposition that he attended junior college and the University of San Diego and began his fishing career in 1973. He passed examinations and received Coast Guard licenses as an assistant engineer and chief engineer, and served as a chief engineer for four years before coming to the Ocean Pearl. He testified that the boats he served on prior to the Ocean Pearl were of similar tonnage and had identical engines, and that his duties on them were similar in scope to those on the Ocean Pearl (Deposition of Richard M. Gonsalves, December 19, 1990, p. 7-12).
Whether or not Interocean is able to pursue a claim against those responsible for the engine failure, and for the subsequent lost profits, is not before the court at this time, and we decline to comment on it.
In any event, had we found the explosion to be the direct cause of transforming an otherwise profitable fishing voyage into a loss, we would have held Samoa Gases liable only to their percentage of fault. Miller Indus. v. Caterpillar Tractor Co., 473 F. Supp. 1147, 1156 (S.D. Ala. 1979) appeal after remand 516 F. Supp. 84 (S.D. Ala. 1980) (holding negligent actors liable for lost profits to their individual degree of fault).
Interocean actually requested maintenance and cure in the amount of $233,203.99. However, the payments made add up to the higher figure given. As there was no evidence regarding any lowering or subtraction of amounts, we assume the figure given by Interocean was error.
Cure payment receipts were admitted to the court as plaintiff's exhibits 19A through 19F.
Maintenance payment receipts were admitted to the court as plaintiff's exhibits 20A through 20F.
Neither party submitted detailed briefs on the topic. However, ?s the issue of settlement payments was treated by both parties as an aspect of requested damages, we address the issue in full.
See Deposition of Kenneth F. Franke, November 7, 1991, San Diego California, and attendant exhibits. We note that the defendant was not present at the deposition, although they had sufficient notice and opportunity.
At several points throughout the litigation there was confusion on the part of Interocean as to the total amount of claimed attorney's fees and costs. Our figures reflect the final ones given during the second half of the trial's second phase on December 14, 1993.
Ohio River Company v. Great Lakes Carbon Corporation, 714 F.2d 65 (8th Cir. 1983). This follows the tradition of courts sitting in admiralty and attempting to have assessments of liability be based on fault. In United States v. Reliable Transfer, the court, in replacing the admiralty rule of divided damages (in collisions or stranding) with a rule requiring, when possible, allocation of liability in proportion to relative fault, noted "The (old) rule produces palpably unfair results (where fault is not equal)." 44 L. Ed 2d 251, 259, 421 U.S. 397 (1975). In this case, fault is clearly not equal.
We note the possible distinction when the original plaintiff is awarded costs, and the original defendant then seeks contribution against a third-party tortfeasor. See Seal Offshore, Inc. v. American Standard, Inc., 777 F.2d 1042 (5th Cir. 1985). However, that is not the *43question directly before the court at this time. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485644/ | *134The facts and issues in this case are set out in our opinion on plaintiffs’ motion for summary judgment. After the denial of that motion the case came for trial. It is clear on the evidence that George Lokan’s will contained a general devise of all his property to Lavinia Lokan. The issue of ademption, raised by plaintiffs in their motion for summary judgment and again at the conclusion of the trial, is therefore moot. The estate should be closed and title to the decedent’s property vested in Lavinia Lokan.
As plaintiffs point out, however, the estate has been poorly administered. The Court is now asked to approve a "final accounting" containing expenses already paid, in numbers that are both round and large, for such vague and general items as “funeral supplies" and "professional services." An item apparently intended as an attorney’s fee, which would be entirely appropriate if -it were so designated, is instead referred to as an "honorarium." At the hearing the Court learned that one of the co-administrators, the son of George and Lavinia Lokan, had induced the other co-administrator to sign some blank checks for funeral expenses and had filled out and cashed one such check in the amount of $10,000; this money was used for improvements on Lavinia’s house at a time when it was not at all sure that she would prevail in this litigation. The co-administrators also took about $70,000 out of certificates of deposit and left it in a non-interest-bearing bank account for about a year. This cost the estate about $4000.
Since the only person ultimately injured by this maladministration was Lavinia Lokan and since most of it seems to have been done with her complicity, the Court will approve the final accounting with one modification: the administrators have not shown themselves to be entitled to fees. The accounting states that $1000 has already been paid to each of the two administrators and that each is still owed $893.59. The accounting also states that $865 is owed to co-administrator Stout for travel expenses. Stout is therefore' ordered to reimburse the estate in the amount of $135 within 15 days. Feleti Lokan is ordered to reimburse the estate in the amount of $1000 within 15 Jays.
*135Counsel ' for the estate is instructed to explain this order to the co-administrators, to Lavinia Lokan, and to the adopted children of George and Lavinia for whose "well-being" George wished the legacy to be used. Counsel is also instructed to file within 30 days a revised accounting to correspond with this order, as well as a proposed order precisely identifying the assets whose title should be transferred to Lavinia Lokan.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485645/ | On motion to invalidate deed:
In 1984 plaintiff Te’o Manuma obtained a judgment for $90,000 against defendant Anita Tedrow for the wrongful death of Te’o’s son. The judgment was upheld on appeal. Since that time Te’o has tried without success to satisfy the judgment. He now asserts a right to the proceeds from the sale of a tract of land and attached house allegedly owned by Mrs. Tedrow.
In April of 1981 Afatasi Burke agreed to buy this tract of land from the trustee for Douglas Craddick. In August 1983 Afatasi Burke assigned her interest in that agreement to Mrs. Tedrow. The judgment against Mrs. Tedrow arose after that assignment. The payments due the Craddick trust under the agreement were paid by Mrs. Tedrow’s husband, who also constructed on the land a house which has been used as the Tedrows’ family dwelling. In September 1986 Mr. Tedrow completed *138the payments due under the assignment to Mrs. Tedrow and the Craddick trust conveyed a deed of title. Rather than draw the ' deed in the name of Anita Tedrow as set out in the land sale contract and subsequent assignment, however, the seller conveyed the land to the Tedrows’ minor children. An agreement has since been reached for resale of the land, along with the house, to an unrelated party.
Plaintiff asks that the conveyance to .the children be set aside as a fraudulent one designed to defeat his rights as a creditor of Mrs. Tedrow. We believe plaintiff’s contention to be well founded.
Courts have a duty to scrutinize closely intra-family transfers of property that hinder creditors of the transferring individual. See Flesher v. Carter, 467 S.W.2d 276, 279 (Mo. App. 1971). Such scrutiny should include consideration of whether the transaction was attended by certain "badges of fraud": indebtedness of the transferor, lack of consideration for the transfer, a close •family relationship between the parties to the transfer, the pendency or threat of litigation, reduction or depletion of the transferor’s estate, and retention of the transferred property by whoever possessed it before the transfer. Smith v. Popham, 513 P.2d 1172, 1175 (Or. 1973); see generally 37 Am. Jur. 2d, Fraudulent Conveyances ii 10-14. The transfer of legal title of this land to the Tedrow children was festooned with such badges.
When Afatasi Burke assigned her rights under the land sale contract to Anita Tedrow, Mrs. Tedrow became the “Buyer" under the contract and acquired equitable title to the property.- Though the seller retained legal title, it held such title only as trustee for the purchaser. Mrs. Tedrow alone held the ownership interest in the property and the benefits of the land . sale agreement. See Fellmer v. Gruber, 261 N.W.2d 173, 174 (Iowa 1978); 77 Am. Jur. 2d, Vendor & Purchaser §§ 317, 319. Her status as equitable titleholder existed at the time the High Court rendered judgment against her in 1984.
The record teems with evidence that Mrs. Tedrow had legal title placed in her children’s names in 1986 solely in order to avoid leaving the property vulnerable to her judgment creditor. A *139sizeable judgment had been entered against Mrs. Tedrow .while she held equitable title to the property. Upon full payment, entitling her to legal title, she gave the property to her children for no consideration. She apparently has no other significant assets with which to satisfy the judgment, and she has tenaciously resisted plaintiff’s previous efforts to collect anything from her. The transfer of title to the children was not accompanied by any change in possession of the property. We conclude that it was designed solely to avoid satisfaction of the judgment and should therefore be set aside.
Defendant contends, however, that even if she did own the land its proceeds cannot be seized because they are subject to a "homestead exemption." The authority cited for this proposition, however, applies only where such an exemption is provided by statute. A homestead exemption can exist only if created • by the legislature. In re Doody’s Estate, 210 Or. 658, 313 P.2d 444 (1957). The Fono has not enacted such a law.
Defendant'argues that A.S.C.A. i 43.1528(a), which provides that "[n]o real property of a Samoan may be subject to sale under a writ of a court to satisfy any judgment," is the local equivalent of a homestead exemption and should be construed to exempt from seizure not only real, property but also proceeds derived from the sale of such property. We decline, however, to read into the statute a broad new meaning apparently uncontemplated by the Fono. Homestead exemption statutes in the United States and the land exemption in American Samoa are different kinds of laws enacted for broadly similar but far from identical purposes. The former, which typically exempt from seizure a specified dollar amount of the value of a single residence, protect the interest of an individual and his family in having a place to live and a modicum of financial stability. See Walker v. Hayes, 248 Ala. 472, 28 So. 2d 413, 415 (1946). A.S.C.A. § 43.1528, on the other hand, was enacted to buttress the protection of the traditional Samoan land ownership system that underlay the Treaties of Cession. In the United States a creditor can seize all of a debtor’s land with the single exception of a modest family residence, and.this very limited exemption has become a kind of property that is in some circumstances transferable. A Samoan, on the other *140hand, is given the right to keep all of his land for as long as he wishes no matter how many bad debts he has; the underlying principle is that Samoans should be discouraged from alienating their land under any circumstances whatever. Once a Samoan has voluntarily alienated his land and converted it into cash he has placed himself outside the letter of the sta+utory exemption and also beyond its rationale. Estopped to invoke the public policy that Samoans should not part with their land, he is then governed by the more general principle that people should pay their debts.
There is, however, another layer of equity beneath the "legal ownership" and the "equitable ownership" of the Tedrow land.. Mr. Tedrow, the wage earner of the Tedrow family and- a person against whom plaintiff has no judgment, actually made the payments on the land. He also paid for the house which, in the absence of a separation agreement, the law regards as a part of the land. Speaking equitably rather than in terms of legal title, Mr. Tedrow earned these wages and made these payments on behalf of his family unit. As is common with families in which only one spouse is Samoan, the Tedrows originally planned to place the land in the name of Mrs. Tedrow in order to avoid the restrictions on ownership of land by non-Samoans. If plaintiff had invoked some strictly legal right rather than a remedy that is within the Court’s equitable powers, we might be forced to conclude that it was simply the Tedrows’ bad luck that they had chosen to place title to the land in the name of the spouse who happened later to become a judgment debtor. It is within our discretion, however, to mitigate what would otherwise be the harsh effects of an equitable remedy such as setting aside a fraudulent conveyance.
Accordingly, we set aside this conveyance on condition that plaintiff receive only half the proceeds of the resale. This will allow the Tedrows, a family with two adult members only one of whom is a judgment debtor, to retain half the benefits of a series' of transactions in which the interests and efforts of both were thoroughly involved.1
*141Finally, we note with some apprehension the receipt of a "special appearance by Donald Tedrow" asserting that "[t]his court does not have jurisdiction over me or my property." The Tedrows have left the Territory and are no longer amenable to personal service. The Court has been assured by counsel for Mrs. Tedrow (who is also counsel for Mr. Tedrow in his special appearance) that no assets resulting, from the sale of the house and land have left the Territory or will do so pending the outcome of this proceeding. The Court has jurisdiction over Mrs. Tedrow and her property, which includes the proceeds of any sale of the house and land. William Reardon, counsel for Mr. and Mrs. Tedrow, has also successfully petitioned for appointment as a "special guardian" of the Tedrow children for the purpose of selling the real estate and retaining the proceeds of the sale in his trust account until further order of the Court. He sought this status under a power of attorney from Mr. Tedrow with the approval of Mrs. Tedrow.
*142' We are satisfied that Mr. Tedrow’s designation of Mr. Reardon as his attorney in fact with "full power to convey my residence located on the land above described and do all things necessary to effectuate such conveyance and transfer the proceeds thereof to me," coupled with Mr. Reardon’s appearance in pursuance of. this authority as petitioner in PR No. 22-87, gives the Court jurisdiction to enjoin Mr. Tedrow from transactions in connection with the property that is the subject of Mr. Reardon’s petition. It is settled beyond peradventure that a person who comes into court seeking affirmative relief from a court thereby subjects himself to whatever favorable ' or unfavorable judgment should ensue. An unfavorable judgment need not be limited to a denial of the relief the plaintiff seeks; it can include orders requiring him to pay damages to some other party or to obey an injunction or subjecting him to penalties for contempt of court. A plaintiff cannot evade these consequences merely by designating another person as his "attorney in fact" with power to get for him all the benefits the court may award but not to subject him to any of the liabilities. It should not, however, be necessary to test this proposition in this case provided that Mrs. Tedrow and Mr. Reardon obey the Court’s orders.
The Court Had jurisdiction to issue its orders in this case and in PR No. 22-87 directing that no funds received' in connection with the land or the house are to be removed from the Territory. At this time we reiterate that order and further order counsel for defendant, in that capacity and in his capacity as the petitioner in PR No. 22-87, to deposit any such funds in the registry of the Court where they will be held' pending the resolution of any further motions by plaintiff, defendant, Mr. Reardon in his. capacity as petitioner in PR No. 22-87, or any other proper party. It hardly seems necessary .to add that participation or collusion by any person within this Court!s jurisdiction in any effort to evade the effects of this order by removing assets from the Territory will be a violation of the order whether or not such person should be in physical or constructive possession of such assets.
No further transactions. with - regard to the *143land or house shall be conducted without the approval of the Court.
Counsel for plaintiff is strongly urged to serve writs of. garnishment upon any persons other than Mrs. Tedrow who might be in or come into possession of assets relevant to this case. This action should have been taken long ago.
It is so ordered.
Contrary to a suggestion made by defendants’ counsel, this solution has nothing to do with "dower rights" or with a judgment *141that Mr. Tedrow is the equitable owner (as that, term is traditionally used) of the land or the house. As a matter of "black letter law" Mrs. Tedrow had the legal right to receive the title to the 1-and and the house that goes with it. Her creditors had the right to seize the proceeds of any sale of the land and the right to insist that she not give up her legal right to receive title in anticipation of such a sale. Our decision that the Tedrows should retain half of the proceeds is an effort to prevent an equitable remedy from working inequity. Counsel for defendants is certainly right as a matter of law in stating that "fnleither the law of the relationship between a husband and wife or the Samoan land tenure system permits a conclusion that there is a divided 1/2 interest of each spouse during the marriage in the property acquired during the marriage." (Emphasis' in the original.) If we were to accept this as a' proposition limiting our ability to fashion an equitable remedy in this case, it would lead us not (as counsel wishes) to the conclusion that the whole proceeds should be regarded as belonging to Mr. Tedrow, but that the whole sum belongs to Mrs. Tedrow and can therefore be seized by her creditors. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485647/ | This matter arose upon plaintiffs’ attempts to have registered with the office of the Territorial Registrar, a certain 6.53 acre parcel of land, "Soata", in individual ownership. Defendant, Atoa Sipili, lodged an objection to the extent that 1.65 acres of the northwestern extreme of the said parcel was his individually owned claim. The difference then in acreage is not contested, and accordingly such remaining portion of the land may *2be registered in plaintiffs name in accordance, and in compliance, with A.S.C.A §§ 37.0101 et. seq.
At issue before the Court is entitlement to the 1.65 acres.
The lands contiguous to "Soata" have all been surveyed and registered with the Territorial Registrar. To the east or. airport side of "Soata", some 8.67 acres, was registered by Sipili Atoa, the father of defendant, in 1983. To the north or inland side, the land is bounded by a survey earlier established by one Otto Haleck. The western or Iliili side of "Soata" has a common boundary to a survey made by one, Misi Uaita, who in turn conveyed his interests to a Opapo Afualo. The southern boundaries to all these lands is the FAA dedicated road, a public highway.
Plaintiff, Folole Falefia, testified that she, her late husband, and children first went upon the land in 1959 and began clearing the bush and commenced cultivation. She testified that in these earlier times, the only other in the area was defendant’s father, Sipili, who worked the land from the airport side of plaintiffs. According to Folole, her family and Sipili co-existed in harmony, both sides working from the road way and clearing inland over the years. Boundary disputes were peaceably resolved and plaintiffs stated that they continued clearing the land until they encountered Otto Haleck to the north. They claimed that they have maintained their plantations to date on the whole of this land and in 1978, some of plaintiffs’ family actually built a residence on the property.
Mrs. Falefia further testified that in 1983 her family received notice of Sipili’s application to register title to the lands he had cleared. She consulted Sipili at the time and determined that the latter’s survey tracked their common understanding with the boundary and accordingly, did not object. Sipili’s claim was accordingly registered.
In the following year, plaintiffs reduced their claim to a survey for purposes of registration and in making their offer to register, defendant Atoa Sipili objected as stated. According to plaintiffs, the defendant Atoa Sipili *3shortly thereafter in 1985, crossed over the boundary established by plaintiffs with Sipili, and began planting crops on plaintiffs’ claim.
Defendant’s version on the other hand is as follows: some time in the year 1956, prior to there being a road, he had met the late Falefia in the vicinity. Falefia was clearing at that time at what is now the opposite side of the roadway, and he eventually proceeded over to the direction of defendant’s clearing. Atoa went on to state that, at the time, there was an Aoa tree located on what is now their common boundary towards the northern end, and that he had come to an agreement with Falefia, at the time, that whoever of the two reached the Aoa tree first could cut across the natural direction of the other’s clearing. Atoa claims that he reached this Aoa tree first but found that someone else had, at some time earlier, felled trees in the location. This someone, he later determined to be Misi Uaita. What was left uncleared by Misi Uaita, he, Atoa, completed in clearing and then commenced to plant crops in certain areas of the clearing. It is the supposed location of this Aoa tree which defendant claims as his point of beginning and his survey offered is essentially a straight line taken from this point of beginning to the opposing parallel boundary of plaintiffs’ survey.
In our assessment of the testimony and evidence presented, the Court finds in favor of plaintiffs. Defendant has attempted to impress the Court that it was his direction and control which resulted in his family’s land stake. This is difficult to accept when the evidence was quite clear that defendant’s father Sipili was concerned with establishing a claim to land from the outset. Given this finding, it is even more difficult to accept that defendant, as a 17 year old youth in 1956, would be entering into land pacts with the late Falefia without his father Sipili having a say in the matter.
We note the following as cogent: it was Sipili who cleared and cultivated alongside the Falefias throughout the many years involved in cultivating and developing the area; it was Sipili who registered his entitlement to the adjoining land "Mosooi" in 1983 and enjoyed the consensus of plaintiff as to the common boundary; Sipili’s 1983 registered survey did not attempt to encompass an *4additional area of land located in the natural direction of plaintiffs’ cultivation and clearing which developed parallel to Sipili’s on the airport side together with Misi Uaita to the Iliili side; Sipili did not object to plaintiffs’ offer for registration; for so many years these developers have been at harmony until defendant came into the picture and commenced the desperate exercise of planting crops in 1985 on what was claimed by plaintiffs.
Defendant also presented an alternative premise to entitlement. He attempted to set up a claim through Misi Uaita. Misi testified that the disputed area either belonged to him or was originally cleared by him, and that he was reserving this area for defendant who wanted the same for a business.
The testimony of Misi is also difficult to accept. In 1973, Misi conveyed his interests to the land adjoining plaintiffs’ claim to a Opapo Afualo. To these ends, Misi undertook the first survey in the vicinity. As a result of this survey, Misi’s boundary with plaintiffs was reduced to metes and bounds and his survey was put through without objection from the Falefias. To claim at this later stage that he also has an interest in the disputed 1.65 acres, outside the boundary line he had established in 1973, can hardly be taken as serious contention. Notwithstanding, Misi has not objected to the registration offer by plaintiffs which includes the 1.65 acres. Pursuant to A.S.C.A § 37.0103, any such claims he may have, may not now be considered. See Komiti Puluti v. Muliufi et. al. 4 A.S.R. 672 (1965).
CONCLUSION
It is the conclusion of the Court based on the foregoing that the land in dispute is the property of Folole Falefia and her children. Accordingly, the objection made by defendant Atoa Sipili is held to be without merit and may therefore be disregarded by the Territorial Registrar.
Absent other third party objections timely made, the Registrar is directed to register the land "Soata" as more particularly described in DRWG No. 326-8-85, as the individually owned land of plaintiffs in accordance with their offer of *5registration and compliance with the provisions of A.S.C.A § 37.0103(a).
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485648/ | PER CURIAM:
At about 11:00 in the dark of the night on April 12, 1986, at Amaluia, American Samoa, Pio Tauasosi, in the course of a series of events including rock throwing, house burning, and beer drinking, and for reasons best known to himself, fired a shotgun in the general direction of moving human figures nearby. Thereafter, Taesale Nelson was found dead with shotgun pellets in his left side, skull, and heart; Tuifanua Taetuna was found to have sustained gunshot injuries to his legs; and Ropati Hicks was found to have received three shotgun pellets in his stomach area and one shotgun pellet in an arm.
On April 28, 1986, an information was filed in the Trial Division of this Court charging Pio Tauasosi in three counts with (count I) murder in the second degree for the death of Taesale Nelson, (count II) assault in the second degree for the injuries to Tuifanua Taetuna, and (count III) assault in the second degree for the injury to Ropati Hicks.
Pio Tauasosi was tried on this information on July 25, 1986, and found not guilty as charged on each count. However, the trial court found him guilty of an assault in the first degree as a lesser included offense under count I in that "the *7Defendant did attempt to kill or cause serious physical injury" to someone. Judgment and sentence of 10 years imprisonment were entered on September 2, 1986.
In an opinion filed on October 20, 1986, denying a motion in arrest of judgment, Chief Justice Rees for himself and Judge Fruean wrote in part:
At the conclusion of the evidence, both judges were strongly of the opinion that the shot fired by the defendant was the same one that killed Sale Nelson and injured the two other boys. We did not, however, believe that the evidence established this beyond a reasonable doubt. [There was a suggestion that someone else had fired another shotgun, although there was no physical evidence of such an event.] We were therefore bound to acquit the defendant of murder.
The Court did find, however, that the defendant fired at someone. . . . Noting the well-established presumption that one who fires a gun at someone intends to kill him, the Court therefore found defendant guilty of assault in the first degree. . . . Since the evidence did not establish beyond a reasonable doubt that the defendant had intended to shoot more than one person or that he actually did shoot more than one person, he was acquitted of the two second-degree assault counts.
The motion in arrest of judgment and this appeal argue that assault in the first degree is not a lesser included offense of count I of the information as charged. and that defendant was therefore convicted of an offense of which he had no notice.
Murder in the second degree is defined by A.S.C.A. § 46.3503 as follows:
(a) A person commits the crime of murder in the 2nd degree if:
(1) he intentionally causes the death of another person;
(2) knowing that his conduct will cause death or serious physical *8injury, he causes the death of another person; or
(3) under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person.
(b) Murder in the 2nd degree is a class A felony.
Assault in the first degree is defined by A.S.C.A. § 46.3520 as follows:
(a) A person commits the crime of assault in the 1st degree if:
(1) he purposely or knowingly causes serious physical injury to another person; or
(2) he attempts to kill or cause serious physical injury to another person; or
(3) under circumstances manifesting extreme indifference to the value of human life he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes serious physical injury to another person.
(b) Assault in the 1st degree is a class B felony unless committed by means of a deadly weapon or dangerous instrument, then it is a class A felony.
Assault in the second degree is defined by A.S.C.A. § 46.3521 as follows:
(a) A person commits the crime of assault in the 2nd degree if:
(1) he knowingly causes or attempts to cause physical injury to another person by means of a deadly weapon or dangerous instrument;
(2) he recklessly causes serious physical injury to another person; or
(3) he attempts to kill or to cause serious physical injury or causes serious physical injury under circumstances that would constitute *9assault in the 1st degree under 46.3520, but:
(A) acts under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse; the reasonableness of the explanation or excuse is determined from the viewpoint of an ordinary person in the actor's situation under the circumstances as the actor believes them to be; or
(B) at the time of the act, he believes the circumstances to be that, if they existed, would justify killing or inflicting serious physical injury under the provisions of 46.3301 et seq.. , but his belief is unreasonable.
(b) The defendant has the burden of injecting the issues of extreme emotional disturbance under subparagraph (a)(3)(A) or belief in circumstances amounting to justification under subparagraph (a)(3)(B).
(c) Assault in the 2nd degree is a class D felony.
The information under which Pio Tauasosi was tried reads as follows:
C0UNT[I]: the above named defendant is charged with the crime of Murder in the Second Degree in that on or about April 12, 1986, at or around 11:00 p.m., at or near Amaluia, American Samoa, he recklessly engaged in conduct which create a grave risk of death and thereby causes the death of another person, to wit: defendant fired a shotgun toward certain people at night causing the death of Taesale Nelson in violation of A.S.C.A. 46.3503; Murder in the Second Degree; A Class A felony; Maximum penalty--Life Imprisonment.
COUNT [II]: [T]hat above named defendant is also charged with crime of Assault in the Second Degree that on or about April 12, 1986, at or around 11:00 p.m., at or near Amaluia, American Samoa, he causes or attempt to cause physical injury to another person by means of a deadly weapon or dangerous instrument, to *10wit: defendant fired his shotgun'toward certain people causing physical injury to Tuifanua Tuifanua in violation of A.S.C.A. Section 46.3521, Assault in the Second Degree; A Class D felony; Maximum penalty - 5 years imprisonment.
COUNT [III]: [Same as COUNT II, except for naming Bopati Hicks in place of Tuifanua Tuifanua].
Count I of the information references the entirety of A.S.C.A. 46.3503. However, it clearly tracks the language of A.S.C.A. 46.3503(a)(3). Counts II and III of the information reference the entirety of A.S.C.A. 46.3521. However, they clearly track the language of A.S.C.A. 46.3521 (a)(1). All counts leave out significant statutory language. Count I does not allege that the defendant acted "under circumstances manifesting extreme indifference to human life." Counts II and III do not allege that the defendant acted “knowingly."
By inadvertence, the judgment and sentence actually signed and filed on October 20, 1986, referenced A.S.C.A. 46.3520(a)(3). In his oral statement at the time of announcing his verdict, the trial judge was clearly basing the verdict of guilty of a lesser included offense under count I on A.S.C.A. 46.3520(a)(2). Defendant’s counsel moved to have the judgment corrected, and the government concedes that this motion was granted, although a written motion to this effect was not filed until July 1, 1987, and no written order granting the motion appears in the record on appeal.
Thus, the principal issue presented to this court is whether an attempt to kill or to cause serious physical injury to another person, as defined by A.S.C.A. 46.3520(a)(2), is a lesser included offense under the charge contained in count I of the information.
Appellant argues that count I by its precise language charges only reckless conduct as prohibited by A.S.C.A. 46.3503(a)(3), whereas assault in the first degree as prohibited by A.S.C.A. 46.3520(a)(2) requires proof of specific intent.
*11We agree with Appellant. The situation is similar to that which was presented to the Supreme Court of Maine in State v. Colson. 405 A.2d 717 (Me. 1979). There an indictment was brought charging that the defendant "did by force and against her will compel [a female] to engage in sexual intercourse, [the female] not being his spouse." The indictment tracked the language of subsection (1)B(1) of the rape statute. Id. The indictment did not include the language of subsection (1)B(2) which defines another form of compulsion, that is, a "threat that death, severe bodily injury, or kidnapping will be imminently inflicted on the person or any other person.“ The trial judge found that the defendant compelled the female to submit not by physical force but by implied threats of lesser magnitude than "death, serious bodily injury, or kidnapping," but that this was sufficient proof of the crime of rape. Id. The appellate court held that the specific grounds charged not having been proved, and the alternative grounds found not having been charged, the conviction could not stand. Id. at 721.
Here the statutes make a distinction among three definitions of murder in the second degree. The first two require proof of specific intent. The third requires proof only of reckless conduct. The statutes also make a distinction among three definitions of assault in the first degree. The first two require proof of specific intent. The third requires proof only of reckless conduct.
Pio Tauasosi was charged in count I with murder in the second degree committed as a result of reckless conduct as defined by A.S.C.A. 46.3503(a)(3). No specific intent was required to be proven under this charge. Assault in the first degree as defined in A.S.C.A. 46.3520(a)(2) requires proof of specific intent. Therefore, it cannot be a lesser included offense under A.S.C.A. 46.3503(a)(3).
The judgment of the Trial Division adjudging Pio Tauasosi guilty of assault in the first degree as defined by A.S.C.A. 46.3520(a)(2) is, therefore, REVERSED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485649/ | Plaintiff, a seaman off one of the fishing vessels anchored at defendant Star-Kist Samoa, Inc.’s dock, sues in damages for personal injuries sustained when run over by one of defendant’s fork lifts operating on the dock.
*13Defendant’s dock runs parallel with its shoreline facilities to which fishing vessels tie up to unload their catch. The unloading process utilizes standardized scows which are moved by fork lifts in and about the facilities. Empty scows are stacked to the edge of the wharf on the sami side for ready access with unloading, while at the same time, scows filled with fish could be variously stacked to the opposite side for thawing and receiving by the processing system. On the day in question, scows were variously stacked on both sides of the dock and these stacks in places were at least two wide and two high. Accordingly some restrictions in movement resulted. Testimony had it that movement at places was about a 9 foot corridor although generally there was room enough for 3 forklifts to manuever comfortably from opposing directions on the day of the accident.
At around 2:30 p.m. in the afternoon of April 20, 1987, and prior to a change in shift, plaintiff was walking along the shoreline side of the dock towards his vessel. He crossed the dock and continued walking along the sami side and then stopped to talk to someone, or some persons, aboard one of the vessels tied alongside the dock.
At the same time one Tesimoni, employed by defendant Star-Kist as a fork lift operator, was following in plaintiff’s direction with a scow loaded with trash which was being taken to a staging area. The scow contained a cardboard box protruding over the top by some 18 inches. According to the driver, this box did not affect his view of the dock and he had no idea how the accident occurred until the rear end tires of the forklift felt as though having run over something. The driver stopped his vehicle and saw plaintiff’s legs extending from underneath the back of the forklift with his upper body under the forklift itself. The accident as he pointed out occurred just beyond one of the stacked rows of empty scows alongside the same side of the dock. He estimated his speed at about 3 miles per hour as he was deliberately taking his time with this last movement owing to the fact that he was about to end his shift. The driver expressed puzzlement with how the victim ended up under the rear tires of the fork lift as the scow at the front of the lift and the guards or barrier where the forks are located would not have permitted the plaintiff to pass *14under the forklift if the collision with plaintiff occurred with the front of the vehicle.
An eye witness to the occurrence was one Daniel Ah San, also an employee of Star-Kist, who was on the dock monitoring the thawing scows of frozen fish destined for processing.
Ah San confirmed that the fork lift was operated in a slow fashion, and in his view, the operator’s line of vision was affected by the cardboard box on the trash scow. He also testified however that while he was able to see the operator’s head from where he was standing, he came to his conclusion about restricted vision in that he saw the operator stretch from side to side of the fork lift while it was moving. Further, he testified that he saw the left front side of the forklift hit the plaintiff who was then thrown to the ground and got his head caught between the wharf and the left boom of the forklift. He was eventually run over by the left wheel of the forklift before the driver stopped.
Prior to the collision, Ah San stated that he saw plaintiff walk from the eastern end of the dock along the shore side and then cross to the sami side. He continued walking past a stack of empty scows and then stopped to talk to person[s] aboard one of the vessels tied to the dock. While so engaged in conversation, he was struck by the fork lift.
LIABILITY
We conclude on the facts that defendant’s conduct at the time was wanting in the appropriate measure of care demanded in the circumstances. Forklifts are not in their nature instruments which may be operated with unrestricted vision, and accordingly, that extra degree of proper care is demanded of the operator. While we find that the operator’s line of sight was not necessarily hampered by the load he was carting at the time, we do conclude that the operator failed to maintain a proper look out in the circumstances. We accept the evidence that the operator was showing more concern for the width of his load by stretching from side to side, needlessly forgoing complete attention to the direction of movement of the forklift. The operator testified that he did not see the plaintiff at all until he felt his rear *15left tire being lifted off the ground. Further, the dock at the time was servicing vessels with parts of the dock reduced to narrow corridors because of the stacked rows of scows. It was just beyond a stack of these scows that the collision occurred and it appears to the Court that the plaintiff was probably hidden from the operator’s view until nearing the end of the stacked row. Given the slowness of the operator’s speed, proper attention could have avoided the accident.
On the other hand, the Court is not open to find that the proximate cause of injury is solely attributable to the fork lift operator. We conclude that plaintiff was also, in the circumstances, blameworthy, having failed to be sufficiently concerned with foreseeable risk attendant to the movement of machinery. Plaintiff, according to the evidence, is a seasoned fisherman and a ranking deck hand. Unloading and loading activities on a wharf should be familiar to him. That unlike the regulated flow of traffic on the highways, forklifts and like machinery on a dock are apt to move willy nilly from one point on the wharf to another. It goes without saying that a wharf servicing vessels with the necessary movement of machinery and equipment, is not the place for social discourse and casualness. Given the slowness of speed of the forklift, the court is equally unable to understand why the accident happened with plaintiff caught unaware, unless of course he was to that degree so rapt in conversation with others so as to render him completely unmindful of his locale, and the attendant risks involved with the locale.
We conclude and assess that proximate cause of injury was attributable as follows: plaintiff 40%, and the fork lift operator 60%. As there was no contention on the evidence about the operator being an employee of defendant Star-Kist Samoa, Inc., and acting at all relevant times within the scope of employment, the employer is liable for the negligent consequences of its employee’s conduct.
DAMAGES
The collision resulted in a number of injuries to plaintiff. He suffered facial lacerations and contusions, comminuted fractures to the left cheek bone (Zycoma) and part of the eye socket (floor, lateral and anterior wall of the left orbital). *16Plaintiff also sustained a crushing injury to the rib cage causing a flail chest and was found to have a fracture of the left femur. X-Rays also indicated a fractured pelvis.
Upon admission to the L.B.J. Tropical Medical Center, plaintiff’s lacerations were cleansed and repaired and a Steinman pin applied to his left knee area for traction pending surgery. He was placed in the Intensive Care Unit on a Ventilator because of his flail chest condition. After a week, plaintiff was weaned off the Ventilator to recommence breathing on his own. The doctor testifying, added that this initially was not without a lot of pain to the patient.
After sufficient chest recovery, plaintiff was required to undergo a number of surgical operations. Besides traction, treatment to plaintiff’s leg necessitated open reduction with metallic fixation (K Rod). Dr. No’ovao of the Surgical Clinic testified that plaintiff was complaining of hip pains and he had rescheduled plaintiff for further surgery to have the metal rod removed.
Some two weeks after, plaintiff again went into the operating room in connection with his facial fractures. He had to undergo an open reduction of the orbital fractures and immobilisation with wire and packing.
By and large, recovery was remarkable. Dr. No’ovao’s prognosis was as follows: with plaintiff’s chest, the doctor testified that lung function was almost back one hundred per cent. Plaintiff’s fractured ribs had healed completely and there was no evidence of fibrosis with lung tissues. Due to treatment, plaintiff’s right shoulder was literally frozen from motion for a period of a month and initially causing movement limitations with his arm. He was now able to lift his arm without assistance and while there may be fibrositis scarring of the shoulder joint, movement will be fully restored. Plaintiff’s leg injury was said to have healed nicely and movement was in the normal range. There was some slight pain experienced in plaintiff’s hip area, but as noted above, this was due to the rod installed in plaintiff’s leg and which would be removed.
*17Pelvic injuries had healed satisfactorily and in Dr. No’ovao’s assessment these injuries should not contribute to any disability.
Some disability will remain however as a result of plaintiff’s facial injuries. Treating physician, Dr. Saelua had plaintiff’s recovery as good. Bone fractures and graft (to build up the floor of the eye socket and align the eyes) had healed. Plaintiff has sustained nerve injury which will affect sensation, and the ability to make facial expression. Further, facial muscles concerned will atrophy and cause facial loss of tone and shape. Additionally plaintiff has lost normal eye closure ability which together with his facial muscle restrictions, give him the appearance of a sunken eye. With residual eye closure especially, the left eye will have the tendency to dry up and be exposed to irritants. In the way of relief, plaintiff is prescribed artificial tears, however, in Dr. Saelua’s assessment, the life of the fisherman with exposure to the sea and the elements was not recommended with plaintiff given his eye condition. Plaintiff is capable of resuming the life of manual work but he will need to seek employment in a sheltered environment.
Plaintiff was hospitalized at the L.B.J. Tropical Medical Center from April 20, 1987 until discharged on August 25, 1987, although his hospital records reveal that plaintiff was ready for discharge June 6, 1987, but continued to remain in hospital owing to placement difficulties.
Plaintiff’s personal data are that he is 48 years of age, married with 3 children, and two of whom are minors. He has been associated with the fishing industry for some 17 years and was at the time of the accident a leading deckhand. The industry rates a person of plaintiff’s experience at an earning scale of approximately $14,000.00 per annum.1
*18CONCLUSION
On the foregoing we assess damages as follows: for injuries, including pain and suffering, sustained, $80,000.00; for diminished earning capacity, $15,000.00; for medical costs $7,000.00; and for loss of earnings due to the accident $2,000.00.
In accordance with our finding of comparative negligence, total damages payable by Star-Kist Samoa, Inc. , as .the employer of the fork lift operator shall be $62,400.00.2
Judgment is entered accordingly, and it is so ORDERED.
Defendant Star-Kist did provide evidence to the contrary concerning plaintiff’s specific circumstances. Plaintiff has been crewing on a vessel whose last voyages have not resulted in profit. The greater part of the itemized factors used to calculate income for plaintiff was said to be directly related to net fish proceeds. In *18case of plaintiff’s vessel, this net figure has been a negative since plaintiff’s recent employment.
Plaintiff’s cause of action against the vessel owner for maintenance and cure was not pursued here. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485650/ | On Second Motion for Summary Judgment:
This motion, styled a "motion for summary judgment," appears to be in the nature of a motion for an amendment to the judgment awarded on February 21, 1986.
The existing judgment is for $4,880,461.14 plus interest from December 31, 1985 at the rate of 11.8%.
The judgment now requested would be for an amount in excess of $17,059,926.82.
Although the Court is not entirely sure it understands all the reasons for the difference between these two amounts, or why the plaintiff chose to proceed by motion for summary judgment rather than by motion for an amended judgment, the nub of the issue seems to be that "the plaintiff is now in a position to accelerate the amounts that would otherwise become due in the future so that the sale can go forward on a basis that will discharge all the debt secured by the mortgage." It has not been established to the satisfaction of the Court, however, that this relief was requested in the Complaint in Rem. Even on the assumption that this item was comprehended either in the general prayer for "a sum not less than $11,072,000” or within the other requested items (interest, certain expenses advanced by plaintiff, *20costs, and attorney fees), we are left with the question whether the contract debt was merged into the 1985 judgment. If so, the debt is now defined by the terms of the judgment rather than by those of the contract, and the only amounts that have come due since the date of judgment are for post-judgment interest.
We need not reach this question at this time, however, since no notice of the motion now before us was given to any interested party. It is arguable, as plaintiff contends, that when an action is in rem and there are no intervenors no party need be notified even of an extraordinary motion such as this one. We note, however, that during October 1987 a number of interested parties were served with documents indicating that plaintiff was moving to sell the vessel in order to satisfy its judgment. The gist of these documents seems to have been that the judgment to be satisfied would be for about $5 million and that other debts, ownership interests, etc., would be subordinate to this judgment. Such notice, together with the absence of any advance notice of the requested change in the amount of the judgment debt to $17 million, might well induce detrimental reliance by the parties to whom it was given.
We therefore decline to rule on the motion for summary judgment at this time.
It is suggested that counsel for plaintiff reset the motion with notice to everyone who was notified of the pending sale, and be prepared to address the questions whether the requested relief was comprehended in the complaint and whether the contract debt was merged into the original judgment debt. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485651/ | Plaintiff, Viliamu Chan Kau, offered to sell his aiga bus1 to his friend, the defendant Siatiu Samasoni. At the time the offer was made, sometime in February, 1986, the bus had been garaged for repairs. At plaintiff’s further insistence, defendant withdrew $600.00 from his savings bank account and handed the same to plaintiff, who defendant says was in need of cash at the time. As far as we can gather, the understanding between the *22parties at this point in time was that defendant would take possession of the bus when the same left the garage. About a week later, defendant, at plaintiff’s further request for money, gave plaintiff $2,000.00. And yet another week afterwards, defendant gave plaintiff another $150.00. Defendant by now had advanced plaintiff $2,750.00 while the bus was still being repaired. The overall price of the bus was to be $8,500.00 and we find that the parties’ intention was that the balance (less the deposit) would be paid off in installments while defendant operated the bus.
Plaintiff took delivery of the bus after repairs were completed and when defendant noticed the bus parked by the plaintiff’s home, he went to see the plaintiff. In the ensuing conversation, plaintiff advised defendant that a certain church organization had offered to purchase the bus with payment to be made in full. Plaintiff proposed to defendant to allow the bus to be sold to the church, and from the proceeds thereof, the defendant’s money would be refunded.
The next that defendant knew of the bus was that the same was garaged again for further repairs. It was shortly returned to plaintiff, whereupon defendant consulted plaintiff for the expected return of his money. Plaintiff did not have defendant’s money, whereupon the latter took the bus with plaintiff’s acquiescence.
Defendant’s theory at this point in time was that he was taking possession of the bus as security for the return of his money. It was his understanding that the church deal had fallen through.
Plaintiff on the other hand states that he had given defendant the option of maintaining their previous agreement of defendant purchasing the bus - and thereby taking possession immediately - or that defendant could wait until the sale to the church had come through and then defendant’s money could be refunded.
Defendant’s taking possession of the vehicle entailed his operating the bus for carriage. Some two weeks later, defendant persuaded plaintiff to sign over the ownership papers. Plaintiff said he was reluctant to do this because of the outstanding purchase money, but was persuaded by defendant who *23insisted in having the bus in his name for insurance purposes and thereby eliminating plaintiff’s exposure to liability.
While the bus was being operated by defendant, all that plaintiff subsequently received was $390.00. Plaintiff files suit.
Among defendants’ counterclaims is that the bus was continuously breaking down and in his calculation of receipts against expenses while the bus was operable, the bus had netted only $1,020.00 for the some 36 weeks he ran the bus. The bus while still in his possession, now needs repairs. The radiator had fallen off its rusted mounting shortly before Christmas, and since that time, the bus has been parked.
The Court is asked to adjust rights and obligations accordingly between the parties who have both attempted to advance various contractual theories in the case. In order to accommodate these theories, the Court would be required to undertake some rather fanciful and imaginative findings of common intents to reconstruct a resulting agreement. To the contrary we find as follows:
CONCLUSIONS
(1) The bus belongs to plaintiff. Plaintiff received from defendant the total sum of $3,140.00 anticipating the conclusion of a sale.
(2) A sale did not go through as anticipated. With intervening factors neither party had any definite commitments or intents regarding the sale arrangement originally anticipated.
(3) Defendant’s removal of plaintiff’s bus was with the intention to recoup his losses, not to undertake to purchase the bus; it was also with the plaintiff’s acquiescence as well as his appreciation that he owed defendant money.
(4) Defendant worked plaintiff’s bus and derived revenue therefrom for some 36 weeks.
(5) Defendant’s use of the bus, as we gather from regular gasoline receipts admitted into evidence as well as the fare schedule from Fagatogo *24to Tula, was more than adequate' to offset plaintiff’s monetary indebtedness.
(6) Plaintiff’s demands for the return of his bus negatives past acquiescence and any further attempts by defendant to retain possession of the bus would be tantamount to conversion.
On the foregoing findings, judgment will enter accordingly and it is So ORDERED.
1980 Ford CP-622. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485653/ | Plaintiffs, Bobbie Ferstle and Carol Holmes, filed suit for damages against: the American Samoa Government; the Cosmetology Board of American Samoa; the Department of Public Safety; two named members of the Cosmetology Board, Helga Lefiti and Gretchen Makaiwi; and others joined under the fictitious Doe identity. The claims essentially arise consequent to unsuccessful attempts by plaintiffs to persuade the Cosmetology Board to license plaintiff Carol Holmes as a Cosmetician/Hairdresser under the provisions of the Beauty Culture Act, (hereafter the "BCA") A.S.C.A *29§§ 31.1502 et seq. , and plaintiff Bobbie Ferstle as the proprietor of a beauty shop called "Mr. Paul’s". In addition, pending resolution of these applications, Ms. Holmes was placed under arrest at Mr. Paul’s by an officer of the Department of Public Safety for using a curling iron and thereby, allegedly practicing as a hairdresser in violation of the BCA. The plaintiffs urge that the arrest was unlawful and incited through a conspiratorial design of the defendants.
The complaint generally alleges that as a proximate result of the actions of defendants and each of them, plaintiffs have been specially and generally damaged.
As a result of pre-trial orders entered in this matter, the Cosmetology Board and the Department of Public Safety were stricken as inappropriate party-defendants. Justice Murphy’s reasoning appeared to be that both the department and the board were within the rubric, "American Samoa Government". Also as a result of these motions, plaintiffs identified their cause of action as based on the Federal Civil Rights Act, 42 U.S.C. sections 1983 and 1985. For reasons heretofore given, the Court had granted American Samoa Government’s motion for summary judgment in that a Civil Rights Act cause of action did not lie against the government as a matter of law.
At the time of trial, the two named members of the Cosmetology Board were the remaining defendants. Plaintiffs had not identified any of the defendants named in the complaint as Does.
FACTS & LEGAL BACKGROUND
One Paul Parks, a former resident of the territory, had owned and operated up until the close of 1985 a beauty salon known as "Mr. Paul’s". Employed with the salon as a beautician was plaintiff Carol Holmes. Ms. Holmes had apparently worked for Mr. Paul’s under the misapprehension that she was not subject to additional local licensing as she held a Washington State license. She assumed that she was able to do all the things she was permitted to do in Washington. It was her belief that that was how it works with all the states of the Union.
*30At or around the year’s end, the business was made available for sale after Mr. Parks had departed the territory, leaving Ms. Holmes to run and manage the salon. Also around this time frame, Plaintiff Bobbie Ferstle had returned to the territory for a visit and was introduced to the idea of acquiring Mr. Paul’s. Ms. Ferstle had then recently qualified as a beautician according to the laws of the State of California. Ms. Ferstle acquired the salon and then sought to obtain a business license.
Business License Act:
A business license is required of any person or entity proposing to engage in business within the territory. See A.S.C.A. §§ 27.0201 et seq. The licensing process is an annual requirement,1 and as a business license is by terms of the statute, deemed personal, it is not transferable.2 Accordingly, Ms. Ferstle had to apply for a license to operate Mr. Paul’s on her own standing.
In practice, the application for a business license entails a procedure of securing approvals from .a number of government agencies and commissions appropriate for licensure of the particular business activity proposed. These approvals are signified by the approving agency by signature on the application form provided for routing through the various agencies. After the application form is complete with the relevant approvals, and upon the applicant’s payment of a set fee, a business license is issued.
In plaintiff Ferstle’s case, the Cosmetology Board was a statutorily appropriate board included in the approval process by reason of the provisions of the BCA.
Beauty Culture Act:
The BCA was first enacted some time in 1973. According to the testimony of defendant Helga Lefiti, a longstanding salon operator in the territory, the enactment came about after a member of the public received severe chemical burns to her *31face as a result of "beauty" treatment. The Act is regulatory in purpose and classifies the grooming profession as "Hairdressers" and "Cosmeticians" and provides separate definitions of these terms. See A.S.C.A. § 31.1502(d),(e). As initially enacted in 1973, (26 A.S.C §g 1100 et. seq.) the statute provided for implementation by the Governor’s Office, but the 1983 amendment to the Act took this implementation function away from the Governor’s Office and created an independent licensing authority known as the “American Samoa Board of Cosmetology". See A.S.C.A. § 31.1502.1. This enactment established the board as consisting of 5 members appointed by the Governor for staggered 3 year terms. At least 2 of the membership must be licensed operators (i.e. "hairdresser" or "cosmetician") and the board elects a chairman from its members and meets quarterly or more frequently at the call of the chairman. Administrative and staff services for the board are to be provided by the Office of Economic Development, with legal assistance to come from the Office of the Attorney General.
Generally, the board is charged with a dual licensing function: the licensure of operators3; and the licensure of the facility for the beauty salon4.
The License Application Saga:
According to the testimony of plaintiffs, the license application was first initiated by Ms. Holmes toward the end of 1985 or early 1986. Ms. Holmes testified that she had taken the application to all the agencies and everything had checked out up until the Cosmetology Board.
Plaintiffs further testified that on or about the 11th or 12th of February, 1986, the application was taken personally by both of them to defendant Makaiwi as chairman of the Cosmetology Board. In the discussion that ensued, Makaiwi was apprised of Ferstle’s recent graduation under the State of California’s requirements. Makaiwi then opined *32that Ferstle would not be eligible under the BCA to be licensed as an "operator" in that the statute, which contained a reciprocity measure, also required a practical working experience of 3 years within the last 5 years immediately preceding the license application. What followed in the discussion was not clear to the Court, but the plaintiffs left the meeting with certain impressions. Their understanding was that Carol Holmes, with her Washington State certification, would demonstrate proof of qualification under the BCA as an "operator" for purposes of licensing, and that in the interim, they could proceed to open for business. Plaintiffs in their recollection were sure that Ms. Makaiwi had signed and approved the application for them to open for business, pending Ms. Holmes’ proof of practical experience.
Ms. Makaiwi on the other hand cannot recall signing anything as she was only one member of a board. In retrospect, she had no personal objection to the business being opened at the time provided Ms. Holmes could satisfy the Cosmetology Board of her practical background. She recalls advising plaintiffs that the board was convening in a matter of days and would take up the application.
The salon, still known as "Mr. Paul’s", was reopened on February 14, 1986. Ms. Holmes was clear on this date as it was Valentine’s Day.
In reviewing the numerous documented exhibits received into evidence, we find that a copy of plaintiff Ferstle’s actual application for a business license affirms Ms. Makaiwi’s recollection as more accurate. The application is dated 2/14/86, Valentine’s Day, and the Court notes that the section in the form for approval or declination by the Cosmetology Board is unsigned. The Court also notes on the application that the various other approving agencies that signed off on the form all did so on 2/20/86, which was after the time the meeting with Makaiwi was said to have occurred. In point of fact, even if Ms. Makaiwi had signed off on the application, in derogation of board function, a business license could not have been issued any earlier than February 20, 1986. Therefore, the salon was opened on February 14, 1986 prematurely and in violation of the licensing laws.
*33On or about February 19, 1986, the Cosmetology Board convened and included in the board’s agenda were the two license application: that of Ms. Holmes for board approval as an operator, and that of Ms. Ferstle for approval of the facility as a salon. The minutes of the meeting contain the following entry:
The Board had asked both Mrs. Ferstle and Mrs. Holmes to submit their Cosmetology licenses and official working experience reference for the Board’s evaluation. (Emphasis theirs).
Apparently as a result of this meeting, Chairman Makaiwi telephoned Ms. Ferstle and advised her that the salon could not be licensed until the board received proofs on the practical experience requirement under the BCA. Plaintiffs’ testimony was that the salon closed thereafter.
Two days afterward, on February 21, 1986, a quorum of the board reconvened to consider a telex message submitted by plaintiffs. The telex on its face showed transmission origin as the United States Coast Guard Center in Seattle, Washington, its text stated: "Carol Holmes was employed as a part time hairdresser for the past eight years with the CG Exchange", and it was sent under signature of Warrant Officer W.H. Hoit. Added and typed to the bottom left corner of the telex sheet was a "True Copy Certification" notation and the signature of a Lt. J.M. Holmes, USCG, Coast Guard Liaison Officer to the Government of American Samoa. Also appended to the telex was a memo under letterhead of the U.S. Coast Guard, Liaison Office, American Samoa, from Lt. Holmes to the Cosmetology Board. The memo bears the date "21 Feb. 1986” and the text is reproduced as an appendix hereto.
At this meeting of the Cosmetology Board, two of its members were absent. Those present were defendants Makaiwi and Lefiti and the board’s secretary, Mrs. Howland. The minutes prepared by Mrs. Howland indicated two things that bothered the board. One was the fact that the certifying Lt. Holmes was the husband of plaintiff Carol Holmes. Secondly, the board took umbrage with the suggestive references in Lt. Holmes’ memo about cross checking the validity of the telex with the Governor’s Office, coupled with the warning that the Office of the Governor was to be informed if *34problems arose with the board’s acceptance of the telex.
Needless to say, Lt. Holmes’ approach to the board was atypical of a liaison. He did Ms. Holmes no favors that day by, in effect, inviting suspicion and an appropriate degree of scrutiny from the board on the sufficiency of the offered telex showing. Although not reflected clearly in the minutes, Ms. Makaiwi mentioned another factor that inclined the board away from accepting the telex as sufficient. This was a reference in the telex to Ms. Holmes’ employment as a "part time" hairdresser for the previous 8 years. The board was uncertain whether 8 years "part time" could equate with 3 years “full time" as the statute appeared to the board to require.
The board voted against accepting the telex, but further decided to seek a legal opinion on the matter. The minutes reflect a meeting with Assistant Attorney General Griesmann that afternoon. He concurred with the board action and agreed to document his opinion, upon board insistence.
The actions, or inactions, of the board prompted Lt. Holmes, as his memo had promised, to take the licensing case up with a number of senior staff members in the Governor’s Office. He testified that he also saw the Lt. Governor as well as the board’s counsel Griesmann. His complaints did not go without sympathy. Defendants testified that they variously began to receive repeated telephone calls at their respective places of employment, from different staff members regarding the delay in approval of plaintiffs’ license applications.
The position of the staff members was explained in the testimony of Ms. Cher Vink, Special Assistant to the Governor. She testified that the license application matter came to her attention some time in late February or early March, 1986. The application and the Cosmetology Board was the subject of several discussions with the staff. There was dissatisfaction expressed over public complaints about frustrating delays in the licensing procedure.
On the other hand, the board’s concern, as given by the testimony of defendants, was the *35staff’s inordinate interference with the board’s duties over this particular application. Ms. Makaiwi testified that this particular application was the subject of more board meetings than any other she could recall, in the attempt to accommodate plaintiffs.
Added to the board’s perceived difficulties was confusion over the fact that their counsel had not only failed to give them the written opinion expected, but had also changed his opinion of the sufficiency of proofs. (Mr. Griesmann had departed the territory by the time of trial, however a transcript of his earlier deposition was stipulated for admission into evidence.) Counsel’s change of mind came about after having been presented by plaintiffs’ counsel, William Reardon, a photocopy of Ms. Holmes’ Washington State Cosmetology license. He deposed that this appeared to be sufficient information upon which to grant a license.
The board next met on March 14, 1987 and according to the exhibits in evidence, Attorney Reardon had earlier presented Ms. Makaiwi the Washington State license of Ms. Holmes, and left her a copy thereof. Presumably, this copy was before the board’s consideration in their meeting of March 14, 1987, but it apparently did not weigh sufficient with the board as demonstrating the practical requirement, notwithstanding counsel Griesmann’s views. The minutes of that day contain the following entry:
The Board has not yet received from both Mrs. Carol Holmes and Mrs. Bobbie Sue Ferstle their official working experience references as they were asked by Chairman Makaiwi. (Emphasis theirs).
The events of March 14, 1986 did not conclude here. The board decided to tell their side of the story to the Governor. Ms. Lefiti and Ms. Howland met on behalf of the board that same afternoon with the Governor. The agenda earlier determined and presented to the Governor was: the board’s request for new counsel; the board’s complaint about the active role taken by certain of the Governor’s staff in the case of plaintiffs’ license application; and finally certain concerns of the membership regarding the legality of the board’s then composition and uncertainty over the tenure of *363 of the members. Two of these matters require further elaboration.
Counsel Griesmann’s change of position revived with the board an old tension in their relationship with counsel, giving rise to membership questions regarding, and we quote, "his loyalty". The board had on earlier occasions requested of both the Governor and the Attorney General assignment of different "impartial" counsel. The board had considered counsel Griesmann to be unresponsive on earlier occasions and at times unable to discriminate his duties to the board from his other role as director of the Consumer Protection Bureau in situations of conflict.5
In the area of membership makeup and tenure uncertainty, the board’s concerns were as follows. The BCA requires that at least 2 board members be licensed operators. In fact, the board as then constituted had one such member, Ms. Lefiti. The board suggested to the Governor that either Ms. Makaiwi or Ms. Howland would offer to resign to permit the appointment of one other licensed operator. The membership recommended Ms. Dorothy Tarasawa. Secondly the board pointed out what was to them a typographical error in the Executive Memorandum containing the formal appointments of its most recent members, namely, Ms. Howland, Ms. Galea'i, and Mr. Ivi Peneueta. This Executive *37Memorandum #002-1986, dated January 2, 1986 had provided term expiry dates for all the 3 new members as being March 20, 1986, which literally meant tenure of some 77 days, and not reflecting the 3-year staggered terms required by the BCA. The board requested that corrective action regarding the apparent oversight be taken accordingly.
As it happened, the Governor’s staff had a different approach in rectifying these composition concerns, and more will be said of it later.
As noted above, notwithstanding production of Ms. Holmes’ Washington license, and attorney Griesmann’s opinion thereon, the board in it's meeting of March 14, 1986 was unpersuaded that the proofs (i.e. the telex and Ms. Holmes’ Washington certificate) had sufficiently demonstrated 3 years of practical experience.
This conclusion appears to have been anticipated by Ms. Holmes. At her request, a letter under United States Coast Guard letterhead, dated March 10, 1986, was mailed to Ms. Holmes bearing the following communication: "In reference to your telephone call this date. This letter is to certify to the fact that you were employed as a hairdresser with the CG Exchange for the past eight years." The letter was signed by W.H. Hoit, Chief Warrant Officer, and with the notation: "By direction".
On or about March 17, 1986, Ms. Holmes supplied her lawyer, Mr. Reardon with the said letter along with her written instructions indicating a desire to conclude the license that day with the hope of opening for business on the following. In accordance with his client’s request, Mr. Reardon visited Ms. Lefiti at her salon that day (Ms. Makaiwi was at this time absent from the territory) to discuss the letter from the Coast Guard. Ms. Lefiti refused to discuss the matter at the time and advised counsel to await the return of board chairman Makaiwi. On the other hand, counsel persisted in attempting to persuade Ms. Lefiti to sign something.
The exchange ended on a less than cordial note. Ms. Lefiti in her testimony reacted to being, in her words, "harassed" by counsel at her salon while she was working on a customer with *38chemicals. She refused to sign some' paper which counsel was insisting she sign. The Court learned nothing further of this piece of paper.
On the following day, counsel prepared a letter addressed to the Cosmetology Board demanding that the board convene within 48 hours with notice to his clients and for the board to sign the business license application. The letter was delivered to Ms. Lefiti on March 19, 1986 with distribution list to: the Governor’s Office; Mr. Griesmann; and board members.
Paper was met with paper. A letter was prepared by Ms. Howland and dated March 20, 1986, signed by both herself as Secretary and by Ms. Lefiti as Acting Chairperson. The letter was addressed to the Attorney General with a corresponding distribution list, including Mr. Reardon. The letter set out the board’s reasoning in not accepting the telexed message, and further acknowledged the Coast Guard letter of March 10, 1986, which would be acted upon only by the board when it convened after the return of the chairman in the following week. The letter further noted the board’s refusal "to be directed, and intimidated by Mr. Reardon’s time frame of 48 hours for the Board to convene". It concludes with reiteration of the request for different counsel.
From this point in time, the licensing saga is next placed at the Governor’s Office. We above noted the board’s concerns regarding composition and tenure and its recommendations for corrective action. The staff action taken in connection herewith was altogether different. Another Executive Memorandum, #37-86, was prepared and presented to the Governor for execution and made effective March 20, 1986. The memorandum had the effect of removing the three "short term" appointees, while substituting three new members, including the prior board’s recommendation of Ms. Tarasawa.
The following day produced a bizarre turn of events which placed the Governor in a compromising situation. Ms. Lefiti testified that she had received a telephone call from one of the secretaries at the Governor’s Office to assemble the Cosmetology Board for a meeting with the Governor on March 21, 1986. She was given no idea what the agenda might be and accordingly the rest *39of board (as Ms. Lefiti still believed them to be) was equally in the dark as to the purpose of the meeting. Similarly, counsel Griesmann was notified of the meeting and his deposition reveals that he had no idea of the purpose thereof.
On the evidence, the Governor was only expecting to formally announce and greet the newly constituted board as had been a practice in the past. On the other hand, Special Assistant to the Governor Lydia Faleafine testified that in the normal course of announcing new memberships on boards and commissions, the practice has been to notify outgoing members first, before announcing the incoming members. This did not happen in.this instance and Ms. Faleafine was at a loss as to why there was a departure from practice.
As it happened, a number of people congregated at the waiting lounge of the Governor’s Office without any concerted idea as to the purpose of the gathering. They comprised the old members of the board, the new members, and attorneys Griesmann and Reardon.
At the actual meeting with the Governor, Ms. Lefiti was the only old board member called to attend, along with the new members as well as counsel. Certain of the replaced and excluded members, upon ascertaining the situation, were vociferous in expressing disgust with the whole affair as a humiliation and a waste of time away from normal routine. Further, in reaction to a number of matters associated with plaintiffs’ licensing case, Ms. Howland had taken along to the meeting a strongly worded letter of resignation, which became more opportune for tendering at the time.
Inside the Governor’s Office, the meeting also escalated to a lively discussion tone, and while the evidence was not clear on how the matter arose, the merits of plaintiffs’ license application became a part of the agenda. The Governor rightly prevailed by deferring the issue to the new Cosmetology Board and closed the meeting. We find *40no further evidence of staff involvement after this date6.
One further matter for mention, which is chronologically contextual at this point is that Mr. Paul’s opened its doors for business as a "barber shop". While plaintiffs’ efforts to secure board approval continued to remain pending, the dialogue between counsel gave rise to the suggestion that a business license be also sought to operate a barber shop. Mr. Griesmann took the view as the Consumer Protection Bureau Director that barber shops were not covered by the BCA, and in point of fact, the Cosmetology Board had subscribed to this policy.7 Ms. Makaiwi testified *41that she was contacted by the Development Planning Office on the barber shop application, and she declined jurisdiction.
A barber shop license was issued on March 20, 1986, and on March 22, 1986, plaintiffs resumed business.
We come now to March 24, 1986, and a new set of characters enter the picture. Police Officer Marlene Moana visited Mr. Paul’s on this day where she encountered Ms. Holmes working with a customer. In Officer Moana’s words, she observed Ms. Holmes using a "curling iron" to curl hair and determined that Ms. Holmes was acting in violation of the BCA. She placed Ms. Holmes under arrest and took her to the police station. At the station Ms. Holmes, with the attendance of her counsel, Mr. Reardon, was put through the booking procedures and then released. The officer prepared and forwarded her report to the Attorney General’s Office with the recommendation for prosecution.
Officer Moana expressed her disappointment as a police officer that the Attorney General’s office had chosen not to prosecute. She testified that on the day prior to the arrest, she was summoned by the Commissioner of Public Safety and was assigned to investigate complaints about certain people undertaking hairdressing work without the appropriate approvals from the Cosmetology Board. In the course of her investigation, she researched the BCA and searched the licensing records at the Office of Development Planning, talking to a Mr. Petelo Uti. Mr. Uti referred her to defendant Makaiwi as someone from the Cosmetology Board to interview. She interviewed Ms. Makaiwi, and in relation to Mr. Paul’s, Ms. Makaiwi informed her that the owner Ms. Ferstle had applied to the board for a license to operate a beauty salon facility and was turned down. She was, however, aware that Ms. Ferstle had a barber shop license. With regard to Ms. Holmes, the board had also turned down her application for a hair styling license.
As a result of her investigations, Officer Moana visited three establishments, including Mr. *42Paul’s, where the arrest was made. At the other places she visited, the officer found the facility-located at the Pago Plaza center open, but without customers. She also visited a shop at the Rainmaker Hotel and found the same locked in the morning. She again checked this shop in the afternoon, and while it had opened, she found no customers there at the time.
Ms. Holmes testified that while no force or verbal abuse was used by the officer in effectuating arrest she was extremely upset and afraid over the whole thing. She was convinced in her mind that the police were sent to the shop by the Cosmetology Board to harass her and Ms. Ferstle. She suffered bouts of insomnia after arrest and was unable to settle down with any comfort at work. The fear associated with the experience visited her recurringly and about a week after the arrest she took a vacation off-island.
Ms. Holmes returned from vacation and was uncertain about wanting to return to work. She did at some time decide to go back to Mr. Paul’s but was not hired again. She stated that her relationship with Ms. Ferstle had deteriorated and she worked for some time at another facility and did not continue for too long thereafter. She has resigned that it is not necessary for her to work again and relive the possibility of encountering the police again. She is aware that sometime in May, 1986, a conditional license was eventually given by the board but she has ceased from practicing since October or November, 1986.
We find the next meeting of the board, newly reconstituted, as having taken place sometime in early April 1986. The Court was not provided minutes of this meeting; at the same time, the oral testimony overlapped indiscriminately with dates and time frames. The Court was, however, supplied minutes for a 4/25/86 meeting and a 8/27/86 meeting. Unfortunately, these minutes are not free of dispute. First, Ms. Makaiwi as chairman and Ms. Annesley Dalton as the new secretary are at odds over whether the 4/25/86 minutes were supplied to and approved by the board. Second, the minutes themselves are contradictory in details of dates of prior meetings, prompting reservations about contemporaneity in their preparation.
*43We gather, however, on the evidence that a meeting took place in early April, 1986 to consider the Coast Guard letter dated March 10, 1986 which attorney Reardon had taken up earlier with Ms. Lefiti.
Yet again, the board was not moved. Questions were raised focusing on the apparent conflict between the text of this letter and the text of the prior telex. Whereas the telex alluded to "part time" employment of Ms. Holmes with the CG Exchange, the letter which followed dropped the reference to "part time". The board resolved to inquire into the discrepancy themselves.
A letter was to have been written and sent off on behalf of the board to clarify Ms. Holmes’ Washington State work experience. Ms. Makaiwi was of the understanding that Ms. Annesley-Dalton would write the letter. Ms. Annesley-Dalton however was of the understanding that Ms. Makaiwi, as chairperson, would write the letter. In the interim, the annual Flag Day had arrived and necessarily, Ms. Makaiwi, as an employee of the department responsible in Flag Day preparations, did not call a board meeting until April 25, 1986.
At the 4/25/86 meeting of the board, the mixup with letter writing was confronted, and it was resolved that Ms. Makaiwi would compose a letter to be sent by registered mail, with each board member contributing $1.00 for postage. A letter went out under date April 26, 1986 to the board’s Washington State counterpart, seeking verification that Ms. Holmes has had three years previous working experience and that she holds a current license with Washington.
We find another letter dated May 9, 1986 from the chairman of the board and addressed to Ms. Holmes referencing a board meeting of May 3, 1986, whereby it was decided that a provisional license be issued to Ms. Holmes, subject to verification of practical background. No minutes were supplied us of this meeting for details.
A business license was eventually issued to Ms. Ferstle to operate Mr. Paul’s as a beauty salon subject to the conditional nature of Ms. Holmes provisional license, and subject to Ms. Holmes’ remaining to work with Mr. Paul’s to satisfy the *44BCA’s requirement that no facility license may be granted without a licensed operator aboard.
DISCUSSION
Our initial conclusion on the facts is that much of the tedium that arose with the evidentiary hearing in this matter could have been avoided if the parties had taken a little more time and effort with adequate pre-trial discovery. The defendants, while acquiescing in plaintiffs’ trial setting requests, were content with a series of piecemeal summary judgment motions (even at the eve of trial) with apparently little concern for factual background investigation.
Plaintiffs on the other hand took much trial time to dwell on some potential theories which the evidence came no where close to sustaining. Consequently, the issues were ill defined and to the close of arguments it was apparent to the Court that plaintiffs’ claims concerned the entire spectrum of any and all conceivable constitutional violations which might be subject to the remedial provisions of the federal Civil Rights Act, 42 U.S.C. sections 1983 and 1985. It was further suggested that there were remedies of a local nature which may arise, or ought to arise, by analogy with the mentioned civil rights enactment.
We turn to those theories of plaintiffs which should not have been considered had there been adequate pre-trial discovery.
The first of these would concern deprivation of rights through the board’s alleged “revocation" of plaintiffs’ licenses without procedural due process. As might be gathered from the above, there was much oral testimony, both direct and in rebuttal, concerning the date and time frame of the initial license application. The significance of this fact was that plaintiffs took the position that when they had first met with defendant Makaiwi, all other relevant government agencies had signed off their respective approvals on the license application. Plaintiffs were also sure that Ms. Makaiwi had signed in approval as well, and thus, they claim that a license was granted. It is claimed that they accordingly opened for business on Valentine’s Day only to have their license revoked a few days afterwards when Ms. Makaiwi called to advise that a license could not *45issue. In response at trial, Ms. Makaiwi was examined at length and testified to the contrary.
This dialogue on the stand, as it turned out, was entirely unnecessary had either party initially focused on the information given in the written license application itself.8 This document revealed that neither Ms. Makaiwi nor the other agencies had at the time signed off on the application, hence the possibility of a license grant never occurred. A "revocation" without procedural due process argument therefore was totally misplaced. There was never a license to revoke in the first place.
Secondly, much of plaintiff Holmes’ efforts centered on alleged deprivations consequent to arrest. We assume that the rights claimed as infringed concerned unlawful restraint of liberty and unreasonable search.9 As it happened, the arresting officer was not made a party to the proceedings; therefore any actionable conduct by the officer would have to be attributed to the named defendants as co-conspirators, or imputed to the said defendants upon some cognizable theory of vicarious liability. Against this, the only direct evidence presented by Ms. Holmes was to the effect that she was sure in her mind at the time that the police had been sent by the Cosmetology Board to harass her and Ms. Ferstle.
The evidence of Officer Moana, on the other hand, which would have been available on pre-trial discovery, was that: the Commissioner of Public Safety had directed her to instigate the investigation a day or so before hand; she researched the BCA herself for the enactment’s *46requirements; her initial inquiries with the license records office referred her to, and led her to interview, the defendant Makaiwi; she investigated a number of salons on the day in question, including Mr. Paul’s; while at Mr. Paul’s, and based upon her own visual determination that a misdemeanor was being committed, she executed the arrest.10
After examining Officer Moana’s written investigation reports, we find nothing untoward her testimony given. Even Ms. Holmes retracted noticeably on the stand, when asked about her impressions of Officer Moana’s testimony. Plaintiffs had no evidence, apart from intuition, approaching a conspiracy theory.
For reasons of insufficient evidence, the Court rejects all claims against defendants premised on the hypothesis of conspiracy, collusion, or otherwise acting in concert with the arresting officer.
We are further unable to find on the evidence any issue of equal protection. There is nothing to suggest, "purposeful discrimination", Snowden v. Hughes, 321 U.S 1 (1944), let alone evidence of any discrimination at all whether purposeful or otherwise. Nor do we find anything in the board’s withholding of the license as being "completely arbitrary and discriminatory" so as to constitute a denial of equal protection. Niemotko v. Maryland, 340 U.S. 268 (1951). Plaintiffs contend that while they had supplied to the board all the information which the board required, the license was nonetheless refused; from this plaintiffs infer a violation of equal protection in that they regard themselves as having been treated differently than others similarly situated. The evidence was to the contrary.
First the BCA standards governing license qualification or eligibility are clearly articulated, and the validity of these standards is not challenged. Section 31.1504 of the BCA (A.S.C.A. i 31.1504) reads in pertinent part:
*47(a) An operator may be licensed as a hairdresser and cosmetician provided the person is of good moral character; and
(1) is currently licensed to practice hairdressing in any state of the United States and has practiced as an operator for 3 out of the 5 years immediately preceding the application for licensure.
In the case of Ms. Ferstle, there can be no dispute with her ineligibility for licensure as an operator as she had only recently obtained certification from the State of California. She lacked practical standing.
Ms. Holmes on the other hand satisfied the first requirement of the enactment, to wit: currently licensed in another state. She was further required to demonstrate three years of practice within the preceding five year period. There is nothing mystical nor abstruse about this legislative directive and the standard having being legislative prescribed, what remained for the Cosmetology Board was a determination of factual issues and the application of the statutory criterion to them. The evidence was quite clear that plaintiffs were informed throughout the application process that the issuance of their licenses could not take place until they demonstrated that they had met one of the established standards, the practical experience requirement. Again, we stress our inability to find anything complicated about this standard that would require further elaboration by way of regulation or otherwise.
In viewing what plaintiffs had supplied the board, we find nothing arbitrary or capricious with the board’s conclusions of insufficient showing.11 We also note that the board is a fact finding body with a quasi judicial function, charged with the *48responsibility of examining qualification as legislatively prescribed. The board cannot be merely perfunctory in its duties given the social dangers which brought about the need to regulate the beauty treatment industry. The licensing of people who propose to work on the public with chemicals cannot, and should not, be undermined as a mere formality. As noted on the evidence, the Fono did not act on a perceived danger (beauty treatment was hardly culturally ingrained in the early 1970s) but on an actual and serious complaint. Further, the importance of maintaining proper implementation of the statute was again brought home vividly with the recent revocation of a license owing to another instance of severe chemical burns suffered by a member of the public.
In response to advice from the board for proof of practical experience, Ms. Holmes first presented a telex from the Coast Guard to certify that she had been employed by the Coast Guard Exchange for the past eight years as a "part time" hairdresser. This was not acceptable to the board for reasons above discussed. Again in response, Ms. Holmes subsequently supplied a letter from the same Coast Guard official with two variations to the content of the telex. That is, the reference to "part time" is dropped, and the official signed off with the notation "By direction". These variations are not without question. Ms. Holmes also supplied a copy of her State of Washington license which certified "standing" alone but not "practice". Again this was insufficient to the board, notwithstanding an intolerable amount of outside pressure to approve the licenses. The board stuck to its opinion and undertook to do some cross checking itself. It was either cross checking or a relenting to pressure that eventually gave rise to a provisional license.
Suffice it for us to say, however, that the conclusions arrived at by the Board cannot be said to have patently weighed against the proofs offered.
We accordingly conclude against any denial of equal protection.
We look to the remainder of plaintiffs’ due process claims. As held above, plaintiffs’ claims of due process denial based on a license "revocation" situation are without foundation. *49Alternatively, plaintiffs have contended that the hoard had failed to provide them a hearing and thus an opportunity to be heard on the board’s refusal to issue the licenses. This argument asserts a denial of procedural due process and presupposes that plaintiffs have a “property" and a "liberty" interest in the licenses sought, as these terms appear in the language of the Fourteenth Amendment.
Assuming that plaintiffs have such a protected interest, we hold for reasons given below that there was not a denial of due process in the circumstances.
It was explained by the Supreme Court in Mathews v. Eldridge. 424 U.S 319, 334 (1976) that
[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. (Citation omitted.) [It] is flexible and calls for such procedural protections as the particular situation demands.
Noting that the judicial model of an evidentiary hearing was neither required nor appeared to be the most efficacious method of decision making, the court generally stated that "the essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and an opportunity to meet it." Id at 348. Thus the requirements of due process contextually vary with the circumstances and the particular demands of the case. The only constant factor apparent with the Court in the review of its prior decisions is "that some sort of hearing is required before an individual is finally deprived of a property interest," Id at 333 (emphasis added). See also Parratt v. Taylor 451 U.S 527, 540 (1981). The opportunity to be heard is an opportunity which must be granted "at a meaningful time and in a meaningful manner." Mathews, supra. In Parratt, the court took care to point out that "at a meaningful time and meaningful manner" did not always mean a hearing opportunity prior to the initial deprivation of property. In Mathews a predeprivation hearing was seen as the exception "from the ordinary principle, established by [the] decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." Id. at 343.
*50In the light of these observations, we find on the factual circumstances before us that plaintiffs were in fact accorded more process than due. Firstly, there was no adverse administrative action by the Cosmetology Board that constituted a "final" deprivation of property that would trigger the due process requirements of notice and an opportunity to be heard. We find nothing suggestive on the evidence that the Cosmetology Board’s actions were tantamount to a denial of the license. Indeed, the resultant procedure utilized by the board approximated notice and the opportunity to be heard. Plaintiffs were advised from the outset, not only by the clear mandates of the BCA but by Ms. Makaiwi, that plaintiff Holmes would have to demonstrate proof of the BCA’s practical requirement. Ms. Holmes supplied a telexed communication which the board promptly considered. Plaintiffs were advised of the board’s findings of insufficiency and the proceedings did not conclude there. Plaintiff Holmes then tendered a further Coast Guard communication as well as her Washington State license. Again the board gave consideration to these proofs and finding the same to be inconclusive of the BCA’s criteria, their decision was made known to plaintiffs. Yet again, the proceedings did not terminate there. The board had not issued a denial and the proceedings were open to further submission of proofs. 12 Had the board *51proposed any final action to deny the application, a due process proceeding would then be required, see A.S.C.A. § 31.1508, and the hearing demanded by plaintiffs would be appropriate. Mathews v. Eldridge, supra; Parratt v. Taylor, supra.
Indeed, the interim procedures utilised by the board were constitutionally sufficient when considered in the light of the criteria announced in Mathews. 424 U.S at 335, namely; (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
The private interest concerned in this matter is a benefit in expectation subject to articulated standards of qualification. Proof of this qualification is within the plaintiffs’ control and any prejudice due to delay is also within that control. As plaintiffs were initial applicants they suffered no prejudice or loss through a change in status owing to any action or inaction on the part of the board that is apparent on the evidence. Indeed, the benefit under consideration is even more contingent than the benefit considered in Mathews, supra. In Mathews. the benefits considered were medical disability payments which were terminated through an interim procedure pending further investigation and showing of a continuing medical disability. In a sense, this was an accrued benefit and not one in expectation.
Turning to the second criterion, we cannot conclude that there was a risk of erroneous deprivation of interest owing to the procedures used by the board. As stated above, the procedures afforded procedural due process although undertaken in a piecemeal fashion.' Plaintiffs were advised of the needed showing, and responded with a series of *52proofs. In turn they were appraised on the inadequacies of the tendered proofs.
In any event, we do not see how the board’s resultant conclusions could have been otherwise even if the opportunity to be heard had been granted in the manner now demanded by plaintiffs rather than in the way the situation actually unfolded. The only proof tendered with this demand was the referenced Coast Guard letter transmitted "By direction" and so blatantly at variance with the content of the prior telexed communication. In these circumstances, it is not for the Court to say that a reasonable fact finder could not have, concluded as did the board.
Finally in terms of territorial interest and fiscal considerations, we do not find that the proceedings initially used by the board are without place. As stated in Mathews. 424 U.S. at 348, "[t]he ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness." It is consideration of administrative efficiency as necessarily limited by the standard of fairness.
With the Cosmetology Board’s procedures, the majority of the cases ought to be settled without the need for a judicial type hearing. If the BCA’s objective standards are met, there is no discretion with the board but to issue the license. See A.S.C.A. § 31.1503(a). As noted above, there is nothing difficult about these standards, and in the normal course, license approvals would be straight forward if applicants show ready compliance with the burden of proof expected of them. It follows therefore that the need for a judicial type hearing on every application, with attendant consumption of time, money, personnel and the like, is not optimum. These hearings are only required when proposed board action is to be final. This is our reading of A.S.C.A. 8 31.1508 and as long as there is room for administrative efficiency --- the board keeping its proceedings open for further consideration of proofs --- without compromising fairness, the requirements of procedural due process will not have arisen.
We conclude that an evidentiary hearing was not required herein and that the board’s proceedings were fully in comport with due process.
*53For the foregoing reasons judgment is entered in favor of the defendants.
APPENDIX "A"
TO: COSMETOLOGY BOARD
SUBJ: PROOF OF EMPLOYMENT
1. THE ENCLOSED, IS A MILITARY COMMUNICATIONS DISPATCH SENT FROM THE COAST GUARD COMMUNICATIONS CENTER IN SEATTLE WASHINGTON. AS THE PERSONNEL IN THE OFFICE OF COMMUNICATIONS WILL VERIFY, IT CAN NOT BE FORGED AND A LASTING RECORD OF IT IS AVAILABLE UPON REQUEST THROUGH THE U.S. MILITARY. IN ADDITION, I HAVE NOTARIZED THE COPY AS A DULY DESIGNATED NOTARY UNDER FEDERAL LAW. I HAVE ALSO TAKEN THE TROUBLE OF CHECKING THE VALIDITY OF THIS DOCUMENT WITH THE OFFICE OF THE GOVERNOR. THEY STATED THAT IT IS QUITE ACCEPTABLE AND THAT IF ANY PROBLEM ARISES OVER ITS ACCEPTANCE, I SHOULD LET THEM KNOW. THANK YOU FOR YOUR ASSISTANCE ON THIS MATTER. IF THERE ARE ANY QUESTIONS ABOUT THE DOCUMENT, I WOULD BE HAPPY TO ANSWER THEM.
/s/LT J.M.HOLMES
A.S.C.A § 27.0209.
A.S.C.A § 27.0212.
A.S.C.A § 31.1504, Licensure of Operators.
A.S.C.A § 31.1505, Licensure of Beauty Salons.
The merits of the board’s complaint are not at issue and warrant no comment from the Court, save to the extent that we need to mention the fact that a strain in relationship occurred. This is not to take anything away from counsel. His situation in the Territory highlights the peculiarities of a small community attempting to rise to meet growing demands of the modern day, necessitating a greater degree of multifarious roles being imposed upon individuals often without any corresponding increase in personal economic gain. Just a few years back, there was no Board of Cosmetology or Consumer Protection Bureau. Ironically, the members of the board, as is the case with those of other executive commissions, are themselves volunteers and have taken on these added duties in the name of civic responsibility.
The involvement of the Governor’s staff in the licensing proceedings was inappropriate. Given the above-noted 1983 Amendment to the BCA, licensing jurisdiction under the enactment was vested in a Cosmetology Board, created to displace the Governor’s office from involvement in the Act’s administration.
This policy is interesting, although somewhat curious. The term "hairdresser" as defined in the BCA ostensibly extends to what barbers traditionally do, that is, “cutting . . . the hair of another person". See A.S.C.A. § 31.1502(e). However the effect of policy has been to recognize or establish a special classification, "barber", as exempted from the regulatory scope of the BCA. The terms "barber" and "barber shop" do not appear in the BCA although counsel has referred us to certain health regulations in the American Samoa Administrative Code §§ 25.0201 et seq., where the terms "barber" and "barber shop" are in fact defined and respectively treated as synonymous with the terms "beautician" and "beauty parlor". These regulations were promulgated in 1964 by the Director of Health pursuant to the Facility Health Permits Act, now A.S.C.A. § 25.0501. This enactment has nothing to do with regulating, as a profession, barbers and beauticians. Its primary purpose is sanitation measures with facilities involving the public at large. Through the regulations, it requires, among other things, bathrooms with barber shops and *41beauty parlors. Hence the Health Department’s involvement with the approval process of plaintiffs’ application.
This document was admitted into evidence towards the end of trial, over defendants’ objection, as an attachment to certain police reports moved into evidence for other purposes.
Cf. Stogner v. Kentucky. 638 F. Supp 1 (W.D. Ky 1985). A warrantless search may be conducted of a pervasively regulated business or closely regulated industries [such as barbershops] long subject to close inspection and supervision. See also A.S.C.A §§ 31.1508, 31.1510.
46 A.S.C.A. § 46.0805(4) not only authorizes a police officer, but makes it his duty, to make a warrantless arrest when a misdemeanor is committed in his presence.
A reviewing court would probably have to take heed of the doctrine of primary jurisdiction. The social dangers prompting legislative regulation of the profession were significant. The regulatory board comprises not only a cross section of society but members of the profession themselves.
We are not unmindful of the possibility that an administrative agency might resort to recurring delay tactics which in the proper circumstances may amount to a denial of protected rights, but we do not feel that the circumstances here were such. Plaintiffs themselves could not escape blame for the delay as the burden was on them to expeditiously supply sufficient proofs as required by the BCA. See A.S.C.A. § 31.1503(a). On the contrary, it appears that plaintiffs gave up on further pursuit of proofs after supplying the referenced Coast Guard letter and were content to allow the licensing exercise to escalate to one of third parties --- the Governor’s staff, the board’s attorney, the new board membership, the Governor --- attempting to impress upon the board that the submitted proofs were sufficient. The board on the other hand *51rather than issuing a "denial" then, as it could have, took upon itself the burden of seeking those proofs, and hence kept its proceedings open for further action and the opportunity to be persuaded otherwise. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485654/ | *55Plaintiff, inter alia, is a supplier of building material and provides equipment for hire to contractors. Defendant is a contractor and was for some time in good standing with plaintiff who afforded defendant an open account facility to charge the purchase of material and the rental of equipment.
At a certain point in time, plaintiff notifies defendant about the account exceeding acceptable credit level and warned defendant that credit would be withheld if payment was not made. Defendant tenders first a check of $7,000.00 and a week later, a further check for $3,000.00. Both checks were drawn on Amerika Samoa Bank, who returned the checks unpaid. After a number of unsuccessful presentment attempts by plaintiff, this action was filed.
Plaintiff’s accounting presented to the Court shows an indebtedness of defendant incurred during the month of September 1987 and the first day of October, 1987, to be in the amount $13,419.02.
Defendant contests this asserted liability on two grounds. First defendant complains about an overcharge by plaintiff for ready mixed cement as exceeding firm quotations said to have been supplied by plaintiff to defendant.
We find no merit in this argument which appears to us to be no more than an after-thought to suit. The quotations pointed to by defendant pertained to a specific job at a specific work site in Nu'uuli. According to plaintiff, his charge for ready mix varied with location, and the quote referenced represents his charge for delivery to sites within the immediate location of his plant. At the same time, defendant routinely accepted the September deliveries to his work site in Atu'u, at the rate now complained of, without prior complaint. Finally, the tender by defendant of the checks for payment on account implies acceptance of the account, including the ready mix cement rate.
Defendant further counterclaims an offset for the value of certain subcontracting work rendered by defendant on behalf of plaintiff.
*56Offset value claimed is $9,200.00'prepared by and testified to by defendant’s accountant. It became very clear on the evidence that the offset accounting presented to the court for consideration did not reflect actual value of the subcontracting work, but demonstrated an exercise to inflate and maximize an offset in retrospect. Defendant’s credibility was far from impressive.
The subcontracting work in issue involved the waterproofing of three elevation shafts. The work required the application of some emulsion and fabric and plaintiff testified that in costing his bid for the main contract, he had allowed approximately $3,000.00 for the waterproofing work. The supervising engineer at the work site had recommended defendant for the work. Despite plaintiff’s repeated efforts to obtain a quote from defendant, the latter kept putting the matter off. A billing for $9,208.00 was finally submitted to plaintiff in early November, 1987, while the work, according to plaintiff, remained to be satisfactorily completed. Upon receipt of the bill plaintiff immediately objected and asked defendant for a break down while submitting his own comparative analysis of the man hours, material and mark up for the waterproofing involved. Plaintiff’s calculation amounted to $2,300.00.
In reviewing the break down submitted by defendant to the Court, we find that given the area of the three shafts and area of each roll of fabric, the defendant was attempting to charge the project some five times the amount of material needed to apply the shafts with 3 layers of the fabric.
We also find the contingency factor provided in the sum of $2,462.92 as completely unintelligible on testimony given. The accountant alluded to the cost of tools for the job, and when asked about whether it was a normal bidding practice to include capital costs, the witness talked of paint brushes, extension cords (since they worked at night) and even gasoline costs for transporting labor to sites. The witness was far from being self assured in pinning down and properly explaining this contingency factor.
Also on labor costs, an additional item of $925 is added and when questioned on this item, the witness went on to talk about "supervision" costs.
*57The court is unable on the above to conclude that the billing reasonably reflects a bidding exercise which would approximate reasonable value for the subcontract. To the contrary, the billing is seen as no more than a sorry attempt to provide a breakdown to an over-inflated statement for services.
On the other hand, we find the costing analysis submitted by plaintiff to be more realistic, given plaintiff’s bid reservation, and our review of the supplier’s actual invoices for the materials sold to the defendant.
We conclude that the sum of $2,330.00 may be properly applied as an offset in defendant’s favor.
Plaintiff further seeks exemplary damages on the allegation that defendant had tendered checks for payment on account in order to continue to procure credit. That while so obtaining the benefit of that credit, defendant had instructed his bank to put a stop payment on these checks.
We find the evidence insufficient to establish this claim. While plaintiff had testified that he only received verbal advisement from the bank of a stop payment order, a letter from the bank admitted into evidence cited "insufficient funds" for dishonoring the checks. No other evidence was presented. If a stop payment order was indeed initially given by defendant, the Court feels that this fact could have been open to better proofs given the ready availability of the bank, its officers and records to subpoena.
On the record before us, the Court finds in accordance with the bank’s referenced letter of explanation, that the checks in question were returned by the bank for insufficient funds. These circumstances do not warrant exemplary damages.
CONCLUSION
On the foregoing, it is the conclusion of the Court that defendant is indebted to plaintiff in the amount of $13,419.02 to be offset by the amount of $2,300.00. Judgment will accordingly enter in favor of plaintiff, R.P. Porter International, Inc., against defendant, Samoa Siding & Roofing, Inc., in the sum $11,119.02 with interest presumed *58from October 1, 1987 at the rate of 6% to the date of entry hereof. Plaintiff will further have post judgment interest at the rate of 6% until judgment is satisfied.
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485655/ | PER CURIAM:
Plaintiff alleged that his employment was terminated because of his participation in unsuccessful efforts to organize a union. Defendant moved to dismiss on the ground that the complaint falls within the exclusive jurisdiction of the National Labor Relations Board (NLRB). The trial judge granted the motion to dismiss. This appeal followed. We adopt the trial judge’s reasoning and repeat most of his excellent opinion.
The NLRB has asserted its jurisdiction over employers in American Samoa who otherwise meet its jurisdictional standards. Van Camp Sea Food Co.. 212 N.L.R.B. 76 (1974).
Earlier, the NLRB had held that it had no jurisdiction in Samoa. See. e.g.. Star-Kist Samoa. 68 L.L.R.M. 1532 (1968). However, their 1974 change of position here remained unchallenged until now. If a complaint charges an unfair labor practice over which the NLRB has jurisdiction and if the NLRB has not declined to exercise its jurisdiction, the dispute resolution process set forth in the National Labor Relations Act and its amendments pre-empts the jurisdiction of state and federal courts. San Diego Building Trades Council v. Garmon. 359 U.S. 236 (1959); see 29 U.S.C. § 164(c). The NLRB clearly has jurisdiction over complaints that an employee has been discharged for attempting to organize a union. 29 U.S.C. §§ 157, 158(a)(1). The decision by the NLRB to exercise *60its jurisdiction over tuna canneries and other employers in American Samoa who have the requisite impact on interstate or foreign commerce precludes the High Court from exercising jurisdiction.
Plaintiff urges, however, that the distance between American Samoa and the NLRB regional office in San Francisco, and the consequent expense and inconvenience for employees who wish to bring complaints before the NLRB, bring this action within an exception to the rule of NLRB preemption. In Garmon the Supreme Court noted that in certain cases "the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." 359 U.S. at 244. These cases, however, involved efforts by the states to regulate conduct (usually violence) which was regarded as objectionable on some other ground than that it constituted an unfair labor practice. See 359 U.S. at 244 n.2 and authorities cited therein; id. at 247. In this case, on the other hand, plaintiff asks the court to enforce- the precise policy entrusted to the NLRB.
The Supreme Court has since made it clear that the "local feeling and responsibility" exception in Garmon did not give local courts the authority to define and punish unfair labor practices. Indeed, courts cannot decide cases involving conduct even arguably prohibited by the federal labor relations laws unless the labor relations aspect of the case is merely incidental. See Farmer v. United Brotherhood of Carpenters. 430 U.S. 290, 304-05 (1977):
If the charges in [the plaintiff’s] complaint were filed with the Board, the focus of any unfair labor practice proceeding would be on whether the statements or conduct on the part of union officials discriminated or threatened discrimination against him . . . . Conversely, the state court tort action [for intentional infliction of emotional distress] can be adjudicated without resolution of the "merits" of the underlying labor dispute. . . . At the same time, we reiterate that concurrent state court jurisdiction cannot be permitted when there is a realistic threat of interference with the federal regulatory *61scheme. . . . Simply stated, it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.
Although the Court’s statement in Farmer was not technically necessary to its holding, it is a statement too strong and clear to ignore. We recognize the logistical and financial difficulties that the assertion of jurisdiction over American Samoa must occasion for this plaintiff and others. If the NLRB were sitting in Pago Pago rather than in San Francisco, however, nobody would even think about bringing a complaint like this one in the High Court. Employment discrimination on account of union activity is perhaps the single most obvious example of conduct committed to the regulatory authority of the NLRB. We are therefore precluded from sitting in judgment of such conduct.
The judgment of the Trial Division is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485656/ | On Motion to Dismiss:
In 1984 Meri-Mine Lutu was struck by what we assume for the purposes of this motion was a school bus driven by an employee of the American Samoa Government. Almost three years later Miss Lutu, a minor, filed a claim with the Attorney General through her parents. The Attorney General denied the claim, citing the statutory two-year limitation on commencing a tort action against the government. Miss Lutu then brought this action against the Government and the bus driver.
Reiterating its view that the action is too late, the Government has moved to dismiss. In the alternative the Government urges that the bus driver is not a proper party defendant.
*63I. The Statute of Limitations
Defendants argue that the territorial Government Tort Liability Act, A.S.C.A. § 43.1201 et seq. (hereinafter "GTLA") strictly confines the limitation period on tort actions against the Government to two years.1
Plaintiffs rely on another section of the Code which provides in pertinent part that a minor "shall have 1 year from after the termination of such disability within which to commence anv action regardless of anv otherwise applicable limitation period." A.S.C.A. § 43.0126 (emphasis added). Since Meri-Mine is still a minor, they argue, the statute of limitations has not even begun to run.2 Defendants contend, however, that this section does not apply to tort claims against the Government. They rely principally on federal cases holding that a provision of the United States Code affording *64similar protection to minors3 does not toll the two-year statute of limitations applicable to tort claims against the federal government.4 Since the GTLA was modeled on the Federal Tort Claims Act, and since the federal decisions uniformly regard the federal two-year limitation as absolute and unaffected by the provision tolling limitation periods during disability, the government contends that the American Samoa statutes should be similarly interpreted.
It is true that the federal courts require a tort action against the United States to be brought within two years even if the claimant is under a legal disability such as minority. See, e.g., Simon v. United States. 244 F.2d 703 (5th Cir. 1957); Pittman v. United States. 341 F.2d 739 (9th Cir. 1965); United States v. Glenn. 231 F.2d 884 (9th Cir. 1956). The cases generally rely on the principle that a sovereign government need not subject itself to suit at all. When it acts to waive its immunity and consents to be sued in tort, and when the statute creating the right to sue clearly imposes a time limit, then a party advancing a claim under that statute must comply *65strictly with its terms, including the time limit. See Simon, supra. 244 F.2d at 704-06. The courts regard it as clear from the language and history of the federal provisions that Congress was especially wary of having to defend stale tort claims. See Pittman supra. 341 F.2d at 741-42. Therefore the two-year limitation on tort claims in 28 U.S.C. § 2401(b) must be construed as an exception to the rule provided by 28 U.S.C. § 2401(a) tolling the limitation period in the case of a minor plaintiff. Pittman, 341 F.2d at 740-41; Simon. 244 F.2d at 704-05.
The Glenn court reached the same conclusion a little differently. Aside from the general tendency of sovereign governments not to issue broad waivers of immunity, it found no particular evidence of congressional intent one way or the other on the question whether the limitation on tort claims should run against a legally disabled claimant. The court noted that § 2401(a), creating a six-year general statute of limitations for claims against the government and suspending it for legally disabled persons, and § 2401(b), creating a two-year limitation on tort claims and containing no tolling words to cover disabilities, were incorporated into the United States Code from two earlier statutes. The statute that was the source for § 2401(a) included a disabilities exception; the source of § 2401(b) did not. As enacted, the two subsections of § 2401 provide two different rules: a general rule for non-tort suits against the government and a special and different rule for tort claims. In the absence of evidence in the language or history of the statute that the disability exception of § 2401(a) was meant to apply also to § 2401(b), the former must be read as having nothing to do with the latter. Glenn. 231 F.2d at 886-87.
Neither the reasoning of Simon and Pittman nor that of Glenn suggests a similar result in American Samoa. Indeed, the best inference that can be drawn from the structure and relationship of the two American Samoa statutes is exactly the opposite of the inference drawn by the Glenn court from the structure and relationship of the two federal provisions. The federal law says to those who might wish to sue the federal government:
(1) You have six years to bring your action, unless you are a minor or *66otherwise legally disabled in which case you have three years after the disability ends.
(2) If the action is a tort action you have only two years.
See 28 U.S.C. § 2401(a), reprinted in note 3 supra; id. § 2401(b), reprinted in pertinent part in note 4 supra. The American Samoa Code, on the other hand, says the following:
(1) You have two years to bring a tort claim.
(2) If you are a minor or insane you have 1 year after the disability ends to bring any action, regardless of how long you would have if you were not so disabled.
(3) You have one year to bring a tort claim against the government.
See A.S.C.A. §§ 43.0120, 43.0126, 43.1204.
The American Samoa statutes, in other words, are importantly different from the federal provisions in their language, their structure, and their apparent relation to one another. The federal statutes of limitation comprise two subsections of a single section, 28 U.S.C. § 2401. The two subsections appear to state different rules for different kinds of cases. The first subsection states a rule and immediately announces an exception for minors; the second subsection states a somewhat different rule and announces no such exception. This strongly implies that the exception applies to the former but not to the latter. See Glenn, supra, 231 F.2d at 886. In contrast, the exception for minors in American Samoa does not appear to have been intended only as a proviso or caveat to some particular statute of limitations. It is contained in a separate section of the Code and expressly announces its application to "any" action, regardless of "any" statute of limitations that would otherwise apply. A.S.C.A. § 43.0126.
In light of the differences in language and structure between the federal and territorial statutes, it would be most inappropriate to *67disregard the clear language of the latter on the basis of evidence (or judicial assumptions) about the intentions of Congress in enacting the former. The Simon and Pittman courts found that the dominant intention of Congress (or, more accurately, of the various Congresses that enacted and revised the various parts of 28 U.S.C. § 2401) was to ensure that the federal government would not have to defend stale claims. While the Fono seems to have shared this concern when it enacted the one-year limitation in the GTLA, it is not at all clear that this concern superseded all others. If anything, the strongest statement of legislative purpose that emerges from a study of the territorial statutes is the special solicitude for minors and insane persons reflected in the sweeping language of A.S.C.A. § 43.0126.
In any case, unlike a court construing the federal statutes of limitations we are not faced with the need to resolve a textual ambiguity or conflict by designating one of several competing legislative purposes as the dominant one. The American Samoa statutes are not ambiguous: the statute relied on by the government clearly establishes a one-year statute of limitations, and the statute relied on by the plaintiffs just as clearly makes an exception to "any" statute of limitations. No conflict between the statutes is visible to the naked eye: one states a rule, the other an exception to all such rules. The effect of introducing evidence that there was at least one statute of limitations to which the Fono did not really mean the exception for minors to apply--- or that when the Fono enacted the GTLA it implicitly changed its mind about the general exception for minors, and would have enacted an explicit exception to the exception if anyone had thought about it --- would be to supply ambiguity rather than to resolve it.
Reasonable people can differ on how a court should decide a case in which clear evidence of legislative intent clashes with what would otherwise be the apparent meaning of the text. This is not such a case: we are aware of no particular evidence about what the Fono actually did intend when it enacted any of the statutes at issue in this case. Rather, we are asked to deduce such an intention from a chain of assumptions and inferences to the effect that in enacting the various statutes at issue in this case the Fono *68intended (or, to be precise, "dominantly" intended; or, to be more precise, would have "dominantly" intended if anyone had adverted to the question) what the federal courts have decided Congress must have "dominantly" intended when it enacted a somewhat different set of statutes. We think it more consistent with the respect due a co-ordinate branch of government to assume that the Fono really did mean to exempt minors from "any" statute of limitations; and that it would have known how to amend this rule if it had meant to do so when it enacted the GTLA.
II. The Bus Driver
The government has also moved the Court to strike Silia Taugavau, the bus driver, as a party defendant. The motion is based upon two sections of the GTLA which together, according to the government, prohibit suit against an individual ASG employee when the claimant is proceeding under the GTLA. Two earlier decisions of this Court do imply that an individual employee can never be a defendant in a GTLA lawsuit in which the Government is also a defendant. Aga v. American Samoa Government, 3 A.S.R.2d 130 (1986); Moananu v. American Samoa Government, CA No. 133-85 (Decision and Order on Motion to Dismiss, November 12, 1986) (obiter dictum).
We are persuaded, however, that these decisions incorrectly apply the GTLA sections at issue. Rather, we believe the Court’s contrary holding in Tevaseu v. American Samoa Government. 5 A.S.R.2d 10 (CA No. 88-87, July 8, 1987), correctly construed these two sections, which provide as follows:
The judgment in an action, or the payment of a claim by the Attorney General, under this chapter shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.
A.S.C.A § 43.1207.
(a) The remedy by suit against the government as provided by this chapter for damage to or loss of property, or personal injury or death caused by the negligent or *69wrongful act or omission of any employee of the government while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee whose act or omission gave rise to the claim, or his estate.
A.S.C.A. § 43.1211(a).
Under A.S.C.A. § 43.1207, a judgment against the ASG precludes a later claim against the responsible employee based on the same transaction. This merely prohibits a claimant from recovering twice, not from suing the employee in the first place. See Henderson v. Bluemink. 511 F.2d 399, 404 (D.C. Cir. 1974) (construing an identical federal provision). With A.S.C.A. § 43.1211(a) the Fono has cloaked ASG employees with full immunity from personal liability for the consequences of wrongful acts committed within the scope of their employment. The government is therefore correct to argue that an individual government employee cannot remain a defendant once it is established that the wrongful conduct underlying the claim was committed within the scope of his employment. Unless and until that is established, however, suit against the employee is fully available and nothing in § 43.1211(a) suggests otherwise. (In fact, § 43.1211(b) requires the Attorney General to represent the employee under these circumstances.)
The government may wish to show that Silia Taugavau was acting without the scope of his employment when the accident with Ms. Lutu took place. In that case, Taugavau would remain an appropriate defendant. Alternatively, the government may be willing to stipulate that Taugavau was acting within the scope of his employment. Then and only then should he be stricken as a defendant.
The government’s motion is denied.
A.S.C.A. § 43.1204, the section of the GTLA relied upon by the government, provides:
A tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues.
Since a minor is no longer prohibited from bringing suit once a guardian ad litem has been appointed for him, and since Meri-Mine’s parents were appointed her guardians ad litem on December 18, 1987, it would seem that the statute of limitations in this case began to run on that date at the very latest. Since the guardians filed suit on the day they were appointed, we need not reach the question whether a claim by a minor for whom a guardian had been appointed would be barred if it were brought more than one year after the appointment.
. U.S.C. § 2401(a) provides:
Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.
The statute of limitations for tort claims against the federal government is contained in U.S.C. § 2401(b), which provides in pertinent part:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues .... | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485657/ | On Request to Approve Annual Accountings:
The High Court recently conducted a review of its guardianship files. The primary purpose of this exercise was to identify guardianships that should be terminated because the circumstances giving rise to them (in most cases the need to administer property belonging to a minor) had ended. The review also called to the Court’s attention a number of cases in which the guardian had failed to make required reports to the Court. In these cases the Court ordered that such reports be made within thirty days.
These two cases concern adults who were adjudged incompetent to manage their property and for whom the Development Bank of American Samoa was therefore appointed guardian. In PR No. 14-65 a *71guardian was first appointed in 1965 and regular annual reports were made through 1982. In January of 1983 the Court approved the expenditure of about half the money in the fund ($5101.60) for the improvement of a house in which the ward was living, on condition that written receipts for all expenditures be submitted to the Court. No such receipts were ever submitted and no annual report was filed for 1983 or any subsequent year. In PR No. 10-80 a guardian was appointed in 1980 and an annual report was filed for that year but for no subsequent year.
In response to the Court’s order for status reports on these two cases the Development Bank has submitted "annual accountings" indicating that all the money in each account was expended in the first year for which an annual report is overdue. No information is supplied about how the money was spent, to whom it was disbursed, or why it was disbursed without court approval. (The advance approval of the Court had been sought for all previous disbursements in each of these cases, and in No. 14-65 there was an explicit order to the effect that written receipts must be supplied to the Court.) We do not even know, and possibly the guardian does not know, whether the wards are dead or alive.
A fiduciary cannot discharge his accounting and reporting obligations merely by informing the Court that all the money is gone. The Court understands that the management of the Development Bank has changed hands several times since the early 1980s and that present management is not personally responsible for any breaches in fiduciary obligations that may have occurred during that time. Before the Court can decide what to do about these matters, however, it is necessary to get a clearer picture of what happened. This can probably be obtained from copies of the Bank’s records concerning the expenditures in question, supplemented if necessary by sworn statements from the present and former Bank officials and employees who handled the transactions and from the wards or their relatives. If the Bank prefers to proceed by means of hearings in open court, the Court’s resources (including the subpoena power) are of course available. The Bank should file revised reports or schedule hearings in these cases by April 4.
*72It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485658/ | On Motion for Reconsideration:
I. Facts and Procedural History
This guardianship arose out of Civil Action No. 59-83, Te’o v. Continental Insurance Co. The facts leading up to the petition of attorney William Reardon to be appointed guardian for the Tedrow children are set out in Te’o v. Continental Insurance Co., CA No. 59-83, 6 A.S.R.2d 135 (Opinion and Order on Motion to Invalidate Deed, issued December 18, 1987) [hereinafter cited as December 18 Order].
In Te’o the Court held:
(1) that an attempted conveyance to the Tedrow children of a tract of land upon which the Tedrow family home had been built was an invalid attempt to defeat the rights of Mrs. Tedrow’s creditors;
(2) that Mrs. Tedrow, who had contracted for the purchase of the land and in whose name the payments had been made until some time after the judgment against her, had remained the equitable owner of the land and all the improvements on it and had retained the sole right to receive legal title to the land and its improvements as soon as the payments were completed;
(3) that the proceeds of a subsequent sale of the land and its improvements --- which had been *75transacted by petitioner Reardon as "attorney in fact" for Mr. Tedrow, as guardian for the Tedrow children, and with the express consent of Mrs. Tedrow whom attorney Reardon has represented in the post-judgment stages of the Te1o case --- were the property of Mrs. Tedrow and were therefore subject to seizure by her creditors; but
(4) that since the money for the purchase of the land and the construction of the house seems to have come from Mr. Tedrow (apparently the sole breadwinner of the Tedrow family) and since Mrs. Tedrow’s creditors had invoked the Court’s equitable powers, the creditors would be allowed to seize only half of the proceeds despite Mrs. Tedrow’s legal title to the whole.
Mr. Reardon [hereinafter referred to as "the petitioner"] had sold the land and the house for a total of $65,000 with the approval of the Court. The Court’s approval was given subject to the condition that the entire proceeds be held in trust and not removed from the Territory until the Court had resolved the dispute in the Te’o case over the ownership of any such proceeds.! When the Court reached its decision on this question, it ordered that plaintiffs in Te’o (Mrs. Tedrow’s creditors) receive $32,500 of the proceeds and that the other $32,500 be retained by Mr. and Mrs. Tedrow. Anticipating appeals by both sides, however, the Court further ordered that the entire $65,000 be deposited in the registry of the Court pending further proceedings. December 18 Order, supra. A companion order was issued in this guardianship action.
On January 11, 1988, the Court heard a series of motions made by the present petitioner in response to the December 18 orders. In CA No. 59-83 --- appearing in his capacity as attorney for Mrs. Tedrow and also for Mr. Tedrow, who was "appear[ing] specially to assert his and his *76family’s rights," which was said to be "necessary because this court has issued orders jeopardizing the families property without due process of law"2 --- the petitioner moved for a reconsideration of that part of the Court’s order that had awarded $32,500 to the plaintiffs, and in the alternative for a stay of execution. In this guardianship action --- appearing in his capacities as special guardian for the children and "attorney in fact" for Mr. Tedrow --- he moved "to release the funds *77which were deposited in the court registry pursuant to the court order of December 18, 1987."
In CA No. 59-83 the Court denied the motion for reconsideration but granted the motion for a stay of execution pending appeal. In this guardianship action (PR No. 22-87) the petitioner’s "motion to release funds" was denied with respect to the $32,500 that had been awarded to the Te’o plaintiffs. The Court noted, however, that the Te’o plaintiffs had waived their right to appeal that part of the judgment that reserved the other $32,500 for the petitioner’s clients. With respect to this money the Court therefore granted the petitioner’s motion. The money was ordered to be released by the Clerk to the petitioner on condition that it be placed in trust for the Tedrow children. Reporter’s Transcript of Proceedings held on Jan. 11, 1988, at 2-3.
A few days later the petitioner made a further motion to the effect that the Court approve the deposit of $20,000 of the money that had been awarded to him into trust accounts for the Tedrow children. The motion went on to "inform" the Court that the remaining $12,500 would be deposited into Mr. Tedrow’s bank account. On January 22 the Court responded to this motion by instructing the petitioner to hold the whole $32,500 in trust for the children pending his appeal of the judgment in Te’o. The Court observed that the Tedrows’ and the petitioner’s contention in Te’o is that the land was validly conveyed to the children, and that if the appellate court were to accept this contention it might well conclude that the land and all its improvements (and therefore the entire proceeds of the sale, not just $20,000) belonged to the children.
The petitioner now moves for reconsideration of our January 11 order insofar as we refused to return the entire $65,000 to the Tedrows. He also moves for reconsideration of our January 22 order requiring that all of the $32,500 that was released to him should be held in trust for the Tedrow children pending appeal.
II. The January 11 Order
The motion for reconsideration of the January 11 order states three grounds, all of which boil down to the contention that the Court acted *78illegally on December 18 when it directed the petitioner to deposit the $65,000 into the registry of the Court.3 Such orders, however, are not only not illegal but are the standard procedure whenever a judgment creditor attempts to seize property allegedly belonging to his judgment debtor. Once the Court has determined that the property does belong to the judgment debtor, it is held by the Court --- not by the debtor and not by the creditor and not by the person previously in possession--pending a determination of the creditor’s right to seize it. See. e.e., A.S.C.A. § 43.0907 (attachment); A.S.C.A. § 43.1524 (execution); A.S.C.A. i 43.1811 (garnishment). That plaintiffs in Te’o proceeded by "motion for order in aid of judgment" and a "motion to invalidate warranty deed" and did not also seek writs of garnishment or execution may have been sloppy pleading, as the Court suggested several times during these proceedings; but it is not the stuff of which due process and other unnamed civil rights violations are made. Here both Mr. and Mrs. Tedrow had not only had an opportunity to be heard, they had actually been heard at some length prior to December 18 on the only question --- whether the funds did or did not belong to the judgment debtor --- on which they may have had a right to be heard.4
*79Once the Court had decided that the $65,000 did in fact belong to Mrs. Tedrow, it ordered the money deposited into the registry of the Court pending further proceedings about its ultimate disposition, just as would have happened in any other proceeding for post-judgment seizure. December 18 Order, CA 59-83; Order, PR 22-87, dated December 18, 1987. Any "taking" in such cases is, of course, only temporary; a permanent taking will occur if and only if it is determined after further judicial proceedings (i.e.. even more due process) that the person who possessed the money prior to its deposit in the registry of the Court had no right to it. Indeed, in this case half of the money was returned to the petitioner as soon as the Te ’o plaintiffs waived their right to appeal. The other half will also be returned if and when an appellate court should reverse this court’s judgment that the Te’o plaintiffs are entitled to it.
The real gravamen of petitioner’s "due process" contention, as he elaborated it in the hearing on this motion, was that the Court may have injured his reputation by requiring the money to be deposited in the registry of the Court rather than retained in his trust account. "What you said, essentially, [was that] Mr. Tedrow and I couldn’t be trusted." Reporter’s Transcript of Proceedings Held 2/4/88 at 4-5. Injuries to reputation are not generally cognizable as due process violations. Paul v. Davis, 424 U.S. 693 (1976). In any case, the inference drawn by the petitioner would only be justified if an order that funds be deposited in the registry of the Court were an extraordinary measure taken only against untrustworthy people. On the contrary, most lawyers and most parties are trustworthy and yet funds identified as belonging to judgment debtors are routinely placed in the registry of the Court pending post-judgment execution proceedings. See the discussion at pages 77-78, supra.
Finally, however, the history of these proceedings prior to December 18 --- the conveyance to the children, the "special appearance" by Mr. Tedrow to assert what turned out to be arguments not only about jurisdiction but also on the merits, and the employment of an attorney at law as an "attorney in fact" as a device by which the real party in interest could seek affirmative judicial relief while ostensibly remaining outside the *80Court’s jurisdiction --- did give the Court reason to believe that Mr. Tedrow was actively interested in getting these funds out of the Territory whether or not the Court so ordered. The Court could not be absolutely certain that a lawyer zealously representing such a client would be unable to discern some arguable loophole, exception, vagueness, or ambiguity in its earlier orders, or some jurisdictional or other ground on which the client might be arguably within his rights in disregarding these orders. Similarly, the Court was reasonably certain but not absolutely certain that petitioner’s statement that “none of the money will leave until the decision" (CA 59-83, Reporter’s Transcript of Proceedings September 10, 1987, at 6, emphasis added) meant until the ultimate outcome of the proceedings and not just until the trial court’s initial decision. Far from implying that petitioner is unethical, the Court was seeking to avoid a situation in which he might feel that his ethical obligation to represent his client zealously within the limits of the law required him to do something contrary to what the Court regarded as the meaning of its lawful orders.
The petitioner also takes strong exception to the use of the word "collusion" in the Court’s December 18 order. This word, however, was used not with respect to any action petitioner did take but with respect to an action --- co-operation in an effort to remove assets from the Territory--that he did not take. December 18 Order, slip opinion at 8.
III. The January 22 Order
In urging reconsideration of our January 22 order the petitioner (appearing as guardian of the children and also as "attorney in fact" for Mr. Tedrow) reiterates his objections to the January 11 order. He also argues that the Court has already approved the way in which he proposes to divide the proceeds: $20,000 to the children as the owners of the land, and $45,000 to Mr. Tedrow on the theory that he paid for the house that was built on the land and therefore owns it. For the Court to require that $32,500 be held in trust for the children pending an appellate decision that might result in a determination that it belongs to them, therefore, is said to constitute yet another violation of due process. The petitioner also contends that this order renders the sale of the *81house and land null and void, since Mr. Tedrow only approved the sale on the understanding that he would personally receive $45,000 of the proceeds.
The Court did sign, on October 2, 1987, an order drafted by the petitioner. One phrase in that order ("and deposit the sum of $20,000 to an interest bearing account in the name of the minors") might be construed outside its context as an approval of the proposed allocation of the property among Mr. Tedrow and the children. In fact, however, the Court signed the order only to formalize its earlier verbal approval of the petitioner’s request that he be permitted to proceed with the sale and hold the proceeds subject to the Court’s future orders on their disposition. The grounds for this request were that he had located a willing buyer for the house and that difficulties of communication with Mr. Tedrow made it impractical to delay the sale pending the resolution of the ongoing Te’o controversy. The question of how to divide the proceeds never came up. See CA 59-83, Reporter’s Transcript of Proceedings September 10, 1987, at 5-6. The Court had never heard arguments in support of the novel proposition --- that land and the structures erected on it can be owned by different people in the absence of a separation agreement --- which the Court is now supposed to have implicitly and finally approved when it signed the order.
Nor had the Court been presented with facts even arguably sufficient to support the relative valuation assigned to the house and the land by the petitioner. The sole evidence presented was Mr. Tedrow’s affidavit to the effect that the land originally cost $17,077. In order to address the question whether the proposed allocation of $45,000 to Mr. Tedrow as "owner of the house" and only $20,000 to the children as "owners of the land" was sufficiently fair to the children to merit Court approval, the Court would have had to know at the very least how much Mr. Tedrow had spent on materials and labor for the house. The Court did not demand any such evidence because it never for a moment considered reaching the question whether $20,000 would be a fair award to the children if the conveyance to them was valid and if., contrary to settled law and to the express terms of the land *82sale contract, they thereby acquired the land but not the structures built upon it.5
*83Instead, the Court signed the order on the explicit condition (set out in a handwritten appendix to the petitioner’s draft order) that "the removal from the Territory of any funds received in connection with the land or the house is enjoined pending further proceedings." PR No. 22-87, Order dated October 2, 1987 (emphasis in the original). If this was insufficient to deter the petitioner and Mr. Tedrow from relying on any implication in the language of the draft order that the Court was holding the children entitled at most to $20,000, the Court’s remarks at the next hearing certainly eliminated any arguable ground for such reliance. At this hearing (held prior to the completion of the sale) the petitioner asserted for the first time in open court his position that "Mr. Tedrow’s house" should be considered a piece of property separate from the land. The Court rejected this assertion, the petitioner repeated it, and the Court rejected it again at some length. Reporter’s Partial Transcript of Proceedings Held 11/04/87 at 10-11. The petitioner and the Tedrows nevertheless went ahead with the sale.
As it happens, the judges signing the present opinion agree with Mr. Tedrow that he is entitled to the $12,500 he seeks. Indeed, we have already held that he is entitled to $32,500. Our order on January 22 that the petitioner retain the money in trust for the children pending appeal was an interim order whose sole purpose was to preserve the power of the appellate court to decide to whom the money belongs. If an appellate court should affirm our holding that the conveyance to the children was invalid, or if the petitioner should choose not to appeal that holding, Mr. Tedrow will immediately be entitled to receive the $32,500. If the appellate court should accept the petitioner’s contention that the conveyance to the children was valid, it may go on to consider the question whether Mr. Tedrow is nevertheless the owner of the house and, if so, to assess the relative valuation of the house and the land; or it may remand these questions to the trial court, which has not yet had occasion to reach them. In either case it would seem distinctly possible that the children will be held entitled to the entire $65,000. If Mr. Tedrow wishes to obtain immediate possession of the $12,500 to which he believes himself entitled he may do so by posting a bond or by proposing to the Court some other way to guarantee that it will be *84returned if he should be held not to own it. Otherwise the petitioner should retain the money in trust pending further proceedings.
The motions are denied.
See CA No. 59-83 (Order issued September 3, 1987; Reporter’s Transcript of Proceedings, September 10, 1987, at 3-6). See also the "Order for Appointment of Special Guardian To Sell Real Estate of Minors" in this case, signed on October 2, 1987, and the handwritten note at the conclusion of the order.
Defendants’ Memorandum in Support of Motions, CA 59-83, filed December 28, 1987, at 4. The Court had previously asserted jurisdiction over any proceeds of the sale on the basis of evidence before it establishing a prima facie case that the real estate being sold was the property of Mrs. Tedrow, the defendant in Telo. See CA 59-83, Reporter’s Transcript of Proceedings, September 10, 1987, at 4. If any doubt remained about the Court’s jurisdiction to issue orders with regard to the disposition of these proceeds that bind Mr. Tedrow as well as the other interested parties, Mr. Tedrow’s expansion of his "special appearance" in Te’o beyond jurisdictional arguments to assert arguments on the merits would resolve it. T.C.R.C.P. Rule 12 is patterned on the corresponding federal rule, which effectively abolishes the distinction between special and general appearances by requiring that jurisdictional defenses and defenses on the merits be contained in the same pleading. Mr. Tedrow, however, appeared in Te’o not because he was named as a defendant but because he wished the Court to recognize his claim to ownership of the house and of the resulting proceeds. Even under Rule 12 such an appearance constitutes consent to the Court’s jurisdiction irrespective of whether it is styled "special." R. Clinton Construction Co. v. Bryant & Reaves. Inc.. 442 F. Supp. 838 (N.D. Miss. 1977). In any event petitioner’s appearance in this case pursuant to his status as "attorney in fact" for Mr. Tedrow, seeking affirmative relief from the Court with regard to these proceeds, would afford an independent ground of jurisdiction over the proceeds even if they did belong to Mr. Tedrow.
The three grounds, reproduced in their entirety, are (1) "[t]he taking of the funds on December 18, 1987 violated due process of law"; (2) “[t]here was not sufficient facts to warrant a taking without notice and opportunity to be heard at anytime"; and (3) “the civil rights of Petitioner and the real parties in interest were violated by the Court’s action in C.A. 59-83."
See. e.g. Defendants’ Memorandum in Opposition to Motion to Invalidate Warranty Deed and Prohibit Transaction of Land Without Court Approval, CA 59-83; Special Appearance By Donald Tedrow, CA 59-83; Petition for Appointment of Special Guardian to Convey Real Estate (filed in this case by the petitioner as "attorney in fact” for Mr. Tedrow); Reporter’s Partial Transcript of Proceedings Held 11/04/87 in CA 59-83 and PR 22-87.
Justices of the High Court have routinely refused to approve proposed divisions of property among minors and their guardians without clear and convincing evidence that the proposed divisions are fair to the minors. If the Court had reached the merits of the proposed allocation of the proceeds among Mr. Tedrow and his children it would have required a showing similar to that required in Logoa’i v. South Pacific Island Airways. Inc., CA No. 108-84, 6 A.S.R.2d 28 (1987), in which a proposed wrongful death settlement gave $187,000 to decedent’s estate and widow and only $39,000 to decedent’s children. The widow, who was also the children’s guardian, and her attorneys were required either to show that the children’s share was proportionate to what it would probably have been if the case had been litigated or to revise the settlement to give twice as much to the children. In cases such as. this one and Logoa’i the adult parties have almost always retained a single attorney to represent themselves and their children. The convenience and financial saving represented by such an arrangement will ordinarily justify it notwithstanding the potential for conflict of interest. However, "[t]he duty to be zealous in the protection of the interests of those to whom one owes a fiduciary duty is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary." Logoa’i. supra, 6 A.S.R.2d at 29.
In the beginning stages of the controversy concerning the Tedrows’ house, the potential for conflict among the arguable rights and interests of various family members must have seemed slight. In the present posture of the case this is no longer true. If petitioner wishes to press the argument that Mr. Tedrow was the sole owner of the house, he will of course wish to consider carefully whether separate counsel should be retained to press the children’s competing claim that the conveyance of the land to them also conveyed the ownership of any structures theretofore or thereafter built on the land. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485659/ | On Rehearing of Second Motion for Summary Judgment:
Manufacturers Hanover Bank brought this in rem action in 1985, seeking to foreclose its ship mortgage. The mortgage secured a debt whose principal amount was claimed to exceed $11,000,000. Neither the owners of the vessel nor any other interested party appeared in the action, and in February of 1986 the Court granted summary judgment. The judgment was in the amount of *86$4,880,461.14, the amount Manufacturers Hanover proved by affidavit accompanying its motion for summary judgment. The ship has since remained under arrest by the High Court pending an anticipated sale to satisfy the judgment.
On December 22, 1987, Manufacturers Hanover filed another motion also styled a "motion for summary judgment." An accompanying memorandum explained that at the time of the first motion "plaintiff was not in a position to accelerate the amounts due under the mortgage" and therefore sought only about $5 million rather than the entire $11 million debt; the second motion for summary judgment “merely seeks to update" the $5 million judgment by seeking a new judgment in excess of $17 million.
After a hearing on the second motion for summary judgment the Court declined to rule until plaintiff had given notice to all known interested parties. The Court suggested that plaintiff set the motion for rehearing after such notice was given and be prepared (1) to prove with specificity that all amounts now sought were among those requested in the complaint; and (2) to persuade the Court that the original contract debt was not merged into the 1985 judgment, barring further recovery. Manufacturers Hanover Trust Co. v. The Tifaimoana. 7 A.S.R.2d 18 (1988) (Opinion and Order on Second Motion for Summary Judgment, issued January 19, 1988).
On rehearing plaintiff has satisfied the Court that the complaint comprehended a demand for $10,738,848 in unpaid principal and (assuming that contractual interest has continued to accrue notwithstanding the entry of the 1986 judgment) $4,455,162 in accrued interest to February 8, 1988.
The other question is far more difficult. According to the rule of res judicata a final judgment (that is, any judgment that is not appealed or that is upheld on appeal) precludes relitigation among the parties of any question raised by the pleadings --- or indeed of any related question that might have been raised. Such a judgment is a bar not only to suits by unsuccessful litigants to undo judgments against them, but also to efforts by successful litigants to recover more than they were awarded.
*87Manufacturers Hanover urges the Court to construe the 1986 judgment as a "partial" one resolving some issues but not others. Counsel cites one case in which a court so construed an earlier judgment despite the reference of the judgment itself and of the underlying motion to "summary judgment" rather than "partial summary judgment." Teamsters Pension Trust Fund of Philadelphia and Vicinity v. John Tinnev Delivery Service, Inc. 732 F.2d 319 (3d Cir. 1984). That case, however, relied heavily on the fact that the complaint had sought several clearly distinct forms of relief under several separate contracts, whereas the motion for summary judgment had requested judgment only for damages on only some of the contracts. Even on its narrow facts the Teamsters case seems at odds with the principle of repose that gives rise to the rule of res judicata, since the court conceded that the judgment looked to the naked eye as though it had disposed of the whole lawsuit. 732 F.2d at 325. In the case before us there was a single obligation and a single paragraph in the complaint demanding the entire principal amount plus interest and expenses. We decline plaintiff’s invitation to assimilate this case to Teamsters by subdividing the principal and interest into separate claims for each date on which payments would have come due if there had been no default. Plaintiff had the contractual right to take judgment in 1985 for the entire principal amount, accrued interest and expenses, and post-judgment interest and expenses. Its decision to take a smaller judgment, at least in the .absence of any clear implication to the contrary in the caption or the text of its motion for summary judgment and accompanying memoranda, was a surrender of the right to take more.1 See *88Diaz v. Indian Head. Inc.. 686 F.2d 558 (7th Cir. 1982); Gasbarra v. Park-Ohio Industries. Inc., 655 F.2d 119 (7th Cir. 1981), and authorities cited therein.
The decision by Manufacturers Hanover to seek a smaller judgment than that to which it was entitled was taken for tax reasons. The price of tuna fish, and consequently of tuna boats, had declined drastically. In early 1986 it appeared unlikely that a judicial sale of the vessel would bring anything like the $11 million principal amount of the mortgage. (To the extent that a court sitting in the defaulted purse-seiner capital of the world cannot take judicial notice of this fact, it appears between the lines in plaintiff’s affidavits.) Taking into account the anticipated tax treatment of a $5 million judgment and of an $11 million judgment on which no more than $5 million was likely to be collected, plaintiffs deemed the former more valuable than the latter. Since then at. least two important things have happened: the market value of tuna and of tuna boats has increased substantially and the tax laws have changed. Since the tax considerations that motivated plaintiff’s earlier decision are acknowledged but not identified, we cannot tell whether the decision to seek a larger judgment now was motivated by one of these changes, by both of them, or by other factors as well.2 What is clear *89is that in 1988 a $17 million judgment on a vessel that may sell for more than $10 million is worth more than a $5 million judgment. This, however, is not a basis on which we can construe the earlier judgment as only a partial one.
These factors, however, together with other equitable considerations urged by plaintiff, do amount to a basis on which the Court can grant relief under T.C.R.C.P. Rule 60(b). As plaintiff points out, the judgment is only against the vessel. Neither the owners of the vessel nor any other human beings were sued or appeared in the case to assert their rights. Moreover, the plaintiffs actually did lend the $11 million, and the owners borrowed it but never paid it back. A holding that when the ship is sold the plaintiff will receive only the amount of its 1986 judgment plus post-judgment interest and expenses will probably mean that the remainder --- which could be several million dollars --- will revert to the owners, free and clear of any obligation to repay the $11 million they borrowed or any of the interest on it.
In a case in which the owners had been sued in personam, or in which they had personally appeared to assert their rights, these factors might be outweighed by the principle of repose. Litigation is an unpleasant experience; although there is no constitutional right to be free from double jeopardy in civil cases, the rule of res judicata serves much the same purpose. Moreover, a person who has been sued and who has had a judgment entered against him is likely to base subsequent actions on the settled expectation that there will be no further judgment. In contrast, the owners of the Tifaimoana have not been sued, have not had to pay anything since their default, and have not asserted their right to receive any money from the sale of the vessel. The only defendant ever
*90required to appear in this litigation, the Tifaimoana itself, has been resting peacefully throughout the ordeal. While we believe that plaintiff implicitly waived any absolute right to receive the full amount owing under the contract, the owners’ nonappearance constituted a far more explicit waiver. A judgment benefiting them would constitute a far more egregious windfall than that which will be afforded to plaintiffs if the relief they seek is granted. Accordingly, we hold that the unique circumstances of this case comprise an "other reason justifying relief from the operation of the judgment" under Rule 60(b).
The second motion for summary judgment is construed as requesting relief from the operation of the judgment and is granted as such. Judgment shall issue for the plaintiff in the amount requested, minus the “penalty interest" for which the court can ascertain, on the present record, no contractual basis. Plaintiff shall make diligent efforts to serve a copy of this judgment immediately on each person known to have had an ownership interest in the vessel prior to the foreclosure of the mortgage.
It is so ordered.
We respectfully disagree with the Teamsters court’s reliance on Rule 56(d), which requires that the trial judge examine the pleadings and evidence to determine what material facts remain in dispute after a motion for partial summary judgment has been granted. The rule applies only when "judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary." To cite it as authority for the proposition that a particular judgment did or did not resolve the whole case amounts to circular reasoning.
. One of plaintiff’s counsel has filed an affidavit to the effect that after the motion for summary judgment "the matter was then allowed to remain pending while additional amounts accrued. By leaving the matter pending, it was always plaintiff’s intention to seek additional amounts due if market conditions warranted . . . ." The Court is willing to believe that plaintiff subjectively intended to seek additional amounts "if market conditions warranted," at least in the sense that everyone wishes to keep his options open. We have scanned the record in vain, however, for any objective indicia that would have led a reasonable person to believe in 1986 that plaintiff wished the Court to resolve only some issues but not others. The case was left "pending" only in the sense that the ship was not sold. In that sense every case in which there is any *89possible need for post-judgment relief (i.e., nearly every case) is "pending" even after judgment. Until its second motion for summary judgment plaintiff never notified the Court that it regarded the matter as “pending" in any other sense; the clerk therefore quite reasonably made the notation "Closed 9/22/86," and the case was treated by the High Court as a closed case until the recent motion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485660/ | On Motion for Leave to Amend Answer:
Respondent American Samoa Government (hereafter "ASG",) and its tax office manager, move the Court for leave to amend their answer filed herein so as to add a paragraph alleging fraud on the part of petitioner with regard to the filing of his 1983 tax return. ASG advances the amendment under the misnomer "affirmative defense" obviously with the underlying sentiment of ensuring that fraud is put at issue to counter any limitations defenses which petitioner may have.
Petitioner excepts to the amendment for a number of reasons which the Court finds inconsequential, although distracting petitioner’s focus from matters for which he should have regard.
This matter arose upon tax payer’s pro se petition for redetermination of an ASG income tax deficiency determination for tax year 1983 and noticed upon petitioner by 90 day letter dated 8/24/87. The petition itself fails to plead the statute of limitations although as a defense, the statute of limitations must be properly pleaded as well as proven. Badway v. United States. 367 F.2d 22 (1st Cir. 1966). Failure to plead the statute of limitations as a defense constitutes a waiver of that defense. United States v. Gurley. 415 F.2d 144 (5th Cir. 1969). Further, under Tax Court Rule *9239, a party must set forth in his pleadings any matter constituting an avoidance or affirmative defense, including the statute of limitations. A mere denial thereof in a responsive pleading does not raise the issue. See Rule 39.
After the filing of ASG’s answer, and apparently prior to the service thereof upon petitioner, the latter files a motion to dismiss or in the alternative, for declaratory judgment. The moving papers now contain a reference to a “3 year statute of limitations."
Prior to the hearing of the motion, ASG files a responsive argument in opposition as well as a cross motion to amend its answer as aforesaid. At the time set for hearing of petitioner’s alternative motions, petitioner withdraws the same without, therefore, the Court considering the merits of the motions and the grounds there raised, including the limitations defense.
The issue is hardly before us, but the question irresistibly arises as to whether a limitations defense has been properly pleaded and therefore raised in accordance with the authorities above cited. If not, then the corollary, of course, is that the issue of fraud so as to prevent the operation of the statute of limitations would not be relevant.
Turning to the merits of ASG’s motion to amend its answer, we look to the requirements of Tax Court Rule 41 which provides, inter alia, that, "a party may amend his pleadings ... by leave of court . . . and leave shall be given freely when justice so requires."
Leave is a matter for the Court’s proper discretion and it appearing to the Court that leave would be promotive of justice, the motion is granted.
Petitioner may reply to and address the amended answer pursuant to the provisions of Tax Court Rule 37.
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485661/ | PRELIMINARY INJUNCTION
The defendants, Togotogo Leatuaina, Sinapati Leifitele Sotoa, and each of them, their respective aiga, agents, servants, attorneys and all those in active concert with them are hereby enjoined and restrained from any further building, construction or erection of structures upon lands "Masina" located in Tau, American Samoa, pursuant to *94Government of American Samoa Coastal Management Program, Development Planning Office Land Use & Building Permit Applications Nos. T9637-A dated 11/12/87; and T9614-A dated 11/24/87, for "FEMA" housing assistance, unless and until such Land Use & Building Permit Applications, or any succeeding applications therefor, have also been approved in writing by plaintiff Sotoa Savali or further Order of Court.
DISCUSSION
Our reasons for the foregoing are as follows: this dispute would be non-existent had the building permits referenced been routed to plaintiff Sotoa for written approval. The plaintiff’s position is that he has no objections to the proposed respective building by the defendants. He does object to what he regards as defendants’ attempts to undermine the "pule" of the senior matai to the building sites (parts of land "Masina" said to be the communal property of the Sotoa family) by their respective holding out in the said building permits as variously the owners of the land sites.
Defendant Sinapati Sotoa has avoided confronting these claims at this time by offering to desist from any further building and hence submit himself to a restraining order prayed for, while defendant Togotogo Leatuaina has countered with the claim that those parts of "Masina" incorporating his building site are in fact the communal property of the Togotogo family.
We are not convinced, for the limited purposes of this hearing, that the evidence preponderates in favor of Togotogo. We are mindful nonetheless of that competing factor requiring our consideration, namely, "hardship", and the possibility that defendants may lose their opportunities to participate in federal emergency housing aid because of the interval pending final disposition hereof. Accordingly it is the Court’s sentiment to maintain the status quo by holding plaintiff to his word of approval and offering defendants the option of participating in federal aid by submitting their respective Land Use & Building Permit applications to plaintiff’s approval.
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485663/ | On Motion to Set Attorney Fees:
In December 1987 we rendered judgment for the plaintiffs on a series of loans and guaranties executed in favor of the Pritchards and a pair of corporations of which the Pritchards were the principal officers. The plaintiffs now seek to recover attorney fees, as permitted by the documents embodying the loan agreements. Plaintiffs request ten percent of the amount of the judgment, which was nearly $300,000, and submit evidence that private attorneys retained to collect debts frequently charge their clients ten percent and in some cases far more. Defendants object to the proposed fee and contend that the Court should demand detailed accounts of the actual expenses incurred by plaintiffs for legal representation.
Plaintiffs contend that the contractual provision that defendants will be liable for a "reasonable" attorney fee means that they can recover whatever a reasonable fee would be, whether or not they actually paid such a fee. There are precedents, particularly in the decisions of federal courts, for the proposition that attorney fee awards may be far in excess of fees actually incurred. Such decisions, however, generally involve construction of federal statutes under which lawyers perform the function of private attorneys general who "have been encouraged by the courts to tilt the lance for justice by the awarding of generous fees." Rosenfeld v. Black. 56 F.R.D. 604, 605 (S.D.N.Y. 1972). While we do not wish to discourage plaintiffs’ attorneys or any others from tilting their lances in appropriate circumstances, the broad public purpose necessary to justify the "private attorney general" rationale is lacking in private debt collection cases. (Even if we did view the collection of unpaid debts as an activity to be sedulously fostered through fee awards in excess of actual fees paid, our authority to do so without specific statutory authority would be doubtful. See Alveska Pipeline Services Co. v. Wilderness Society. 421 U.S. 240 (1975). )
*104Our decision to award attorney fees to the plaintiffs was based on the written agreement of the parties. When a lender drafts a note obligating the borrower to pay "reasonable attorney fees" incurred by the lender in collecting the underlying debt, we must carefully scrutinize what a reasonable person would have understood that obligation to include. It is not unreasonable for a lender to condition a loan upon the borrower’s promise to pay collection expenses, nor for the borrower to make that promise. It is fanciful, though, to imagine that a party would understand such an agreement as obliging him to pay "reasonable" fees far in excess of what it actually costs the creditor to collect the debt.
Although an award equalling ten percent of the judgment would be perfectly reasonable under certain circumstances --- indeed, in cases involving smaller principal amounts we have routinely awarded plaintiff Development Bank this percentage in the belief that it is roughly equivalent to the bank’s actual costs of collection --- in this case it would give the bank a windfall. One of the factors a court should consider in awarding fair compensation is the nature of the relationship between attorney and client. Cf. ABA Model Code of Professional Resposibility, DR 2~ 106(B). The Development Bank was represented in this case by its in-house counsel. The purpose of employing in-house counsel is to secure a constantly available legal representative, especially for routine work such as debt collection, at a lower cost than would be necessary if the employer contracted for legal work on a project-by-project basis. Because we conclude that the provision in the contract for "reasonable attorney fees" meant the reasonable costs to the bank of collecting rather than a fixed percentage of the amount of the judgment, we will permit the bank to recover what it spent. (This indeed is why we included in the original judgment an award of "actual attorney fees to be proved by affidavit.")
The attorney who served as in-house counsel testified that his salary and benefits during the year in which he was employed by the Development Bank amounted to about $50,000, and that he spent about 1500 billable hours during that year. The cost of his services to the bank, then, computed on an hourly basis, was about $33 per hour. Counsel testified that he and his predecessor spent a *105combined total of 140 hours on this matter. The bank is therefore entitled to recover $4,620 for the fees paid to its attorneys while they served as in-house counsel. The attorneys for the Development Bank and for plaintiff Amerika Samoa Bank also testified that they charged $1,768 and $942 respectively for work done on the Pritchard matter as private attorneys, which amounts have been paid by the Development Bank. Finally, although no evidence on this question was presented, the Court will take judicial notice that the bank must have incurred collection costs other than those represented by the salary and benefits of the attorney and will take judicial notice that $1,000 would be an amount customarily and reasonably incurred for such expenses in a case such as the one before us. Plaintiffs may therefore recover as part of their judgment $8,330 in attorney fees.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485664/ | Mataitoa Tilo suffered a fatal heart attack in the spring of 1986. It appeared to the territorial Workmen’s Compensation Commission that the heart attack had resulted from the strenuous conditions of Mataitoa’s work in the Highway Division of the Department of Public Works, and the Commission awarded death benefits to his widow. Continental Insurance Company, the employer’s insurer, wishes us to overturn this award. They argue that the decision ignored evidence that Tilo had long had an infirm heart and that his history of high blood pressure, obesity, and hypertension negated any inference that his heart attack, which occurred at home well after work hours, had anything to do with his employment.
*107We can set aside the Commission’s decision only if it was "not in accordance with law." A.S.C.A. § 32.0652. Since the law requires the payment of workmen’s compensation for any injury "arising out of and in the course of employment," A.S.C.A. § 32.0520, the only question before us is whether the Commission’s finding is supported by substantial evidence. See Hartford Fire Insurance v. Workmen’s Compensation Commission. 1 A.S.R.2d 57 (1981).
The record is replete with evidence that would justify one in concluding that Mataitoa Tilo’s heart attack was triggered by the demands of his work. Medical treatment had brought his poor physical condition well under control in the months and weeks preceding his heart attack, during which time Tilo worked as a night watchman at the motor pool. He was then transferred to the highway maintenance outfit. His new assignment subjected him to vastly greater physical rigors than his former position had. Further, the circumstances of his transfer --- a punitive and involuntary one to a position of hard physical labor --- created emotional pressures that the testifying physician cited as another potential influence on the course of his infirmity. After his transfer, Mataitoa’s condition took a drastic turn for the worse. He left work each day exhausted and plagued by extraordinary headaches. His heart attack occurred eleven days after he had begun work on the road crew.
Continental bases it's appeal on evidence that Mataitoa’s medical condition was so precarious that he would eventually have succumbed to a heart attack whatever his work circumstances. This suggests at most that Tilo’s case could have been a close one for the Commission. We cannot say that a reasonable person examining the above facts could not conclude, as the Commission did, that the demands of Tilo’s job hastened his death. The right to appeal a finding of the Commission ensures that no employer will be forced to pay compensation (and no injured employee denied it) by a Commission decision based on whimsy rather than substantial evidence. It does not entitle the losing party to a new trial before a new tribunal. As long as reasonable people could differ on the facts presented to the Commission, its decision will be upheld on appeal.
*108The authorities cited in Continental’s brief compel rather than contradict our conclusion. The cases do not suggest that in all situations similar to Tilo’s the claims should be denied. They state instead that a Commission decision, whether for or against the claimant, should be affirmed on appeal if the evidence permitted the Commission to conclude as it did. See Roberts v. Industrial Commission, 509 P.2d 1285, 1286 (Colo. App. 1973). The evidence before the Commission in the claim of Mataitoa Tilo’s widow amply supported its determination that his death arose "out of and in the course of his employment," and the decision is affirmed.
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485666/ | The facts herein are: grandmother, a widow, is 79 years of age and seeks ultimately the adoption of her 10 year old granddaughter. To this end, the natural parents have brought these proceedings to relinquish their parental rights to the minor.
The minor’s natural circumstances are that she is one of four children. Her parents are 49 and 39 years of age respectively. Both are gainfully employed, and they have secured a family home.
*116The child is said however to have spent most of her life under the care of grandmother who lives next door to the child’s family home. Grandmother’s household also includes another married daughter, her husband and other grandchildren. We note from the reports of the Child Protection Services Agency that grandmother has had charge of many of her grandchildren, although she has only considered the adoption of the minor before the Court. The reports further reveal that by way of income, grandmother receives a monthly social security check of $175 and an allotment of $100 per month from one of her sons who is serving with the Armed Forces. Notwithstanding, it is also the conclusion of the Child Protection Services Agency, that the realities of grandmother’s household are that the daughter and son-in-law are in fact the breadwinners.
We have no doubts on the evidence that grandmother has exhibited the qualities of being a fit, loving and caring parent, but we are equally without doubt that she is not any more fit and suitable than the natural parents. Additionally, given the fact that a relinquishment order would have the final effect of divesting the natural parents of any further obligations towards the child --- A.S.C.A. § 45.0403(d) --- the respective ages of the grandmother and the natural parents bear significantly when weighed against the child’s remaining and expected years of dependency. In these circumstances the child would obviously be better off with her status quo remaining. There is nothing on the evidence to suggest any specific advantage to the child necessitating a relinquishment order. The relationship existing between the grandmother and grandchild may nonetheless continue.
We accordingly deny the petition as being contrary to the child’s best interests and welfare. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485667/ | As conceded by plaintiffs, this is not your run of the mill land dispute. The Court is again presented the infrequent occasion to intervene between the family matai and an individual family member who necessarily claims that the actions of the fo.rmer have transcended the permissible boundaries of "pule" and is in derogation of cognizable rights of the individual family member.
Plaintiff, Faaiu Toleafoa, is a blood member of the Tiapula family of Alao, American Samoa. She is joined by her husband, Aukuso Toleafoa, in this suit against the senior matai (sa'o), Tiapula Imo, seeking relief against the said matai for the latter’s alleged actions resulting in the removal of plaintiffs’ home and two outer structures (faleo'o) and in damaging assorted crops.
Plaintiffs were designated about a half acre of family lands by the late Tiapula Auina. In 1968 they had built a small structure on the location and moved thereon cultivating an area surrounding the structure. In 1977, plaintiffs rebuilt their living quarters and this essentially consisted of a Samoan type "fale" although covered with roofing iron. The cost of this structure at the time was said to be some $600.00 in materials.
Shortly after this structure was built, plaintiffs moved to the United States in 1979 and Mrs. Toleafoa testified that their primary purpose *119in moving was the education of their children. Their absence is thus claimed to be temporary.
Following their departure, Mrs. Toleafoa had her brother and then her sister occupy the premises but they in turn moved out to care for their own family homes.
To the date of hearing we find that plaintiffs are basically residing in the United States although there was a period of time when Mr. Toleafoa returned to Samoa in 1983 for the apparent purpose of maintaining the family homestead and to serve the matai. When Mr. Toleafoa returned, he took employment on island and initially stayed at Alao. He also visited his wife and children periodically in the mainland and it was during such an extended visit that the Toleafoas received word that their home and belongings had been removed at the instigation of the matai defendant. Mr. Toleafoa has not since returned to the territory, however Mrs. Toleafoa came to Samoa to meet with the matai and she eventually brought these proceedings.
Defendant matai has held the family’s title "Tiapula” since the year 1980 and agreed that plaintiffs’ structures were dismantled at his directions as senior matai. Defendant testified that for all intents and purposes, plaintiffs had abandoned their home and site. He was aware that plaintiff Faaiu’s sister was last living in the house but she had moved out in 1982. He also testified that in 1983 when Mr. Toleafoa returned to Samoa, said Toleafoa was welcomed back into the family and appointed the "matai taulealea" of Tiapula. However as things turned out, the matai’s expectations did not materialise. Toleafoa was said to have rarely visited Alao village, abnegated his duties as matai taulealea and failed to render tautua or participate in family affairs. The defendant further testified that he was embarrassed with complaints regarding the use of plaintiffs’ home for frequent drinking bouts by the village youth and with the place left unattended it was overgrown and accumulating a lot of trash.
Consequently at a family meeting called by the matai in 1986, he had instructed the family to dismantle the plaintiffs’ structures and clear the overgrowth. Defendant claims that besides notice to the family via the mentioned family meeting, he *120had specifically told Faaiu’s sister, Vaosa who had formerly occupied plaintiffs’ home, that the same was to be dismantled and the surrounding lands cleaned up.
For some time, however, no one in the family acted on the matai’s instructions and in the following year the matai specifically directed one Natia to dismantle plaintiffs’ structures and to clear the land. This was accordingly done and subsequently another structure was erected on the clearing and the same is claimed by the matai as hi s own.
When word got to the Toleafoas in the United States regarding their structures, Mrs. Toleafoa returned to the territory and confronted the matai. Chief Tiapula testified (and this testimony is corroborated by plaintiff) that his advice to Mrs. Toleafoa was that she concentrate on schooling her children; that upon their return and removal to the territory, a piece of family land will be designated for them. The matai went on to testify that there was more than enough family land to accommodate the plaintiffs upon their return. The consoling attempts by the matai were not acceptable to plaintiffs who now seek damages and an order from the court essentially seeking to undo what has resulted from matai action.
DISCUSSION
At the outset, it is the opinion of this Court that the particular facts of this case do not warrant judicial intervention as any conclusion beyond that would sanction the proposition that an individual family member’s right to communal family lands is absolute. Such a conclusion of course is neither grounded in law nor custom.
It is trite observation that a family member’s right to use of communal lands is subject to certain conditions. One is that reciprocal obligation to the family through "tautua" to the matai in accordance with custom. Talagu v. Te'o, 4 A.S.R. 121 (1974); Leapaga v. Masalosalo. 4 A.S.R. 868 (1962). The fact that a parcel of land has been designated to a family member for his or her use does not thereby terminate the matai’s pule over such land. Pisa v. Solaita. 1 A.S.R. 520 (1964) .
*121The implications of plaintiffs’ contentions suggest that somehow this obligation can be put on hold or suspended provisionally for certain purposes. That suspensory purpose advanced here by plaintiffs is the education of their children. Plaintiffs guardedly submit in the alternative that they have substantially satisfied this obligation by participating off-island in fa'alavelave that concerned other absent family members. Necessarily plaintiffs must suggest in connection herewith a somewhat fluid notion of "tautua".
Admittedly the Samoan way of life has been said to be "dynamic" and not "static" and has been amenable to change, Fairholt v. Aulava. 1 A.S.R.2d 73, 76 (1983), and one would have to be blind not to notice that certain forms of tautua in the past are not as readily observable today. But then "tautua" must surely vary from family to family and is in the final analysis a matter more apt for family definition. Thus any invitation to the Court to generalize parameters of what is and is not tautua would be to favor enhancement of the "static" through judicial fiat.
What may be generally stated is that a matai does not, and never has had to, discharge family obligations on his own, and it goes without saying that tautua to the matai ensures communal activity. But then that tautua becomes only an enforceable obligation against those family members occupying and using communal family lands. It is to these family members that the matai can look for traditional services with sanctions. If we were to otherwise prescribe exceptions to the customary obligation of tautua such as extended absence for educating children while permitting the extended encumbrance of communal family lands, then we would surely be adding to custom something not otherwise envisaged, and undoubtedly lacking in any factual foundation whatsoever.
In the present matter, the matai testified that plaintiffs have not rendered service and have not participated in family affairs. The matai’s conclusion can hardly be refuted. Plaintiffs in their many years of absence from the territory have not shared in the communal burden with fa'alavelave and obligations to the same extent that confronted the matai and on-island resident members. Further Mr. Toleafoa’s return to the territory in 1983 for purposes of tautua and participation in family *122affairs proved to be more in the way of good intentions rather than substance. Although presented the opportunity, he did nothing more than to positively affirm his own immediate family’s lack of tautua and service.
Another recognized limitation to a family member’s right to family lands is actual use and occupation of such land. Relinquishment of possession to land causes a reversion of the land back to the matai and family. Talagu v. Te'o, 4 A.S.R. 121 (1974), Relinquishment of possession may be either by voluntary surrender or by abandonment by the family member. Id. at 125. While a family member’s intentions may not have been to abandon the land, the issue of whether relinquishment has arisen and the matai has effectively taken over to the exclusion of the family member is "one of fact". Id at 125.
On the facts hereof we are satisfied that relinquishment of possession had occurred after the many years of absence by the plaintiffs. While plaintiff, Faaiu Toleafoa, may argue against relinquishment in that she had both her brother and then si-ster occupy the premises, we see no more resulting in this than arrangement for the sake of appearances. In substance, both the brother and sister had their own houses to look after which eventually caused both to move out of plaintiffs’ home. Indeed the sister Vaosa had in existence for many years her own more permanent structure in the nature of a "palagi" style home, which, as she testified, could not be neglected by her for any length of time. She in turn placed a non-family member to occupy plaintiffs’ premises when she moved out but even appearances were no longer evident with this final set up. As far as the matai knew, there was nobody living on the premises which were unattended, overgrown and accumulating a garbage heap. The land itself was doing no one in the family any good; there was no service arising in connection therewith; and the matai from his stance had no idea what plaintiffs’ plans were to return to the land, if ever.
In these circumstances, the question naturally arises, what is expected of a matai in the normal course, given the trust reposed upon him to look after family assets. This matai called a family meeting giving notice of his intentions, which notice was specifically given to plaintiffs’ *123immediate relatives on-island. Execution of the matai’s directives did not take place for another year and yet in the interim the matai was still left sitting in the dark by those family members whose interest would be affected by his decision making.
On the above alone, a holding would logically follow in favor of the matai, but of interest in this case was that this matai’s attitude in court did not really appear to emphasize the above factors in justification. As earlier noted, when he was finally confronted by plaintiffs, and after he had acted, his sentiment was not in the manner of eviction without further ado. Despite the bringing of these proceedings the matai nonetheless committed under oath to be steadfast with the conciliatory attempts he had first tendered plaintiffs, namely, that upon their return to the territory, a similar tract of family property would be ensured them. We can hardly imagine the more reasonable unless such would be that plaintiffs may have their cake and eat it as well.
It is appropriate to pause at this point and consider the cautions of Chief Justice Gardner in Fairholt v. Aulava (Supra), "declining to establish a precedent by which any malcontent family member can willy nilly run to court every time a sa'o makes a family decision with which he disagrees." Id. at 78. The Court here held that as "condition precedent to bringing an action against the sa'o or other family member, the family member must plead and prove a good faith effort has been made to settle the problem with the sa'o and within the family." ¿d at 78 (emphasis added).
While the evidence disclosed a conference with the sa'o the requirement of "good faith" on the part of family member was far from evident in this case. If any inferences may be drawn, it was that family member had an agenda to take the sa'o to court notwithstanding. Her prayer included damages of $10,000.00 for value of the dismantled home which the evidence at best pointed to $600.00 for building materials. Given ten (10) years of wear and tear, which was probably advanced by neglect, the actual market value of such a Samoan structure is questionable. Good faith? The prayer also seeks $20,000.00 in mental anguish suffered which the evidence at best showed no more than symptomatic of a condition for which common *124household aspirin would be the better suited relief. Again we question good faith. In circumstances of an extended period of continued absence from the family and family obligations, the refusal by plaintiffs of the matai’s offer to be furnished family lands upon their return to the territory - and thereby being in the position to meet customary obligations - is again a question mark on good faith.
As declared in Fairholt (supra) the court’s role in intra family disputes is a review one. The court will not substitute its judgment for that of the senior matai, absent a clear abuse of discretion. Such an abuse is clearly absent here on the record.
On the foregoing, it is the conclusion of the Court that plaintiffs have not in any way shown cause for judicial interference in what has otherwise been the proper exercise of matai jurisdiction. We therefore leave it to the matai’s good senses to resolve this matter in the manner he had proposed to plaintiffs in the first place and as subsequently promised by him on the witness stand.
We also dismiss the defendant’s counter-claim. We note with the last minute change of counsel that the counter-claim was not seriously pursued. This is no reflection on counsel Gurr who substituted for then counsel of record. The counter-claim asked the court to essentially fabricate a lease in retrospect between the parties in order to base a "quantum meruit" claim for rent against plaintiffs. This cause is utterly without merit. The court will construe a lease but it will not create one. The second count of the counter-claim not only mirrors plaintiffs’ claim for mental suffering, but also its entire lack of merit. We are equally unable to sustain here on the facts any such cause of action approaching the realm of torts.
It is accordingly ORDERED, ADJUDGED and DECREED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485668/ | On Request for "Notice of Publication":
This petition for termination of parental rights states that the child was left with the petitioners shortly after birth by the natural mother. It appears from the Child Protective Services report that the natural mother is a Western Samoan who was living temporarily in American Samoa with a sister' of one of the petitioners. The natural father is unknown to the Court and apparently also to the petitioners.
Petitioners have mailed a notice of the pendency of these proceedings to the natural mother at an address in Western Samoa. The address consists, as most such addresses do, simply of the name of a village. The notice is in the English language. No response has been received. *126Petitioners now request an order for service by publication on the natural mother and an unnamed natural father.
The requested order will issue. In order to be genuinely calculated to reach the petitioner the publication should be in an Apia newspaper and in the Samoan language, and a notice in the Samoan language should be mailed to the mother in her village in Western Samoa. See Memorandum of the Justices, 3 A.S.R.2d 33 (1986). In this case, however, petitioners might wish to consider making every effort to contact the natural mother in Western Samoa in order to serve her personally with notice of these proceedings, to make sure she understands what they are about, to solicit her testimony as a witness at the hearing on the petition, and to attempt to ascertain the identity of the natural father. This alternative to service by publication would not only minimize the risk of embarrassment to the natural mother, it would also maximize the chances that the petition for termination of parental rights will eventually be granted.
Except in extraordinary cases the natural parents are essential witnesses at the hearing on the merits of a petition for the termination of parental rights. Thé Court is extremely reluctant to terminate parental rights without some evidence that the natural parents fully understand what is involved in a legal termination and have voluntarily consented to it. Moreover, in cases involving a request for termination of the rights of an unnamed natural father the Court generally seeks to question the natural mother about his identity and whereabouts. Only in cases where it is genuinely impossible to secure the testimony of one or both natural parents, or where there is some other clear and convincing evidence that the parents genuinely understand and genuinely consent to the termination, should parental rights be terminated without such testimony. In this case the Court does not even have a Child Protective Services report on either natural parent.
Locating natural parents in Western Samoa and bringing them here for the hearing does, of course, impose a financial burden on the petitioners. The serious and permanent consequences of a termination of parental rights makes such a burden, in most cases, an unfortunate necessity.
*127The request for an order permitting service by publication is granted. In case the petitioners prefer to serve notice of these proceedings on one or both respondents personally in Western Samoa, such extraterritorial service is also hereby approved. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485669/ | On Motion for Reconsideration or New Trial:
On November 28, 1987, a fifteen-year-old girl went to the police station and gave a lengthy statement detailing the circumstances of her alleged rape the previous night by Ignatius Godinet, Jr. Godinet was arrested and became the subject of a criminal prosecution. On the partial basis of the girl’s testimony at the preliminary examination before the District Court, Godinet was *129bound over to the High Court on charges of rape, sodomy, and sexual assault. The Chief Justice of the High Court ordered that trial be set for January 19, 1988. The girl was to be the principal witness for the prosecution. Another alleged eyewitness, a fifteen-year-old boy whose prior statement and preliminary examination testimony had substantially corroborated the girl’s charges, left the Territory shortly thereafter for an undisclosed destination.
Four days before the date scheduled for trial, the complaining witness met with the prosecuting attorney and presented to him a handwritten and signed note given to her the night before by three relatives of the defendant. In the note those relatives promised to ensure that Ignatius Godinet would leave the territory and would never bother the girl again. It was clear that this assurance was given in exchange for the girl’s refusal to testify; the note purported to grant or reserve to her "the right to reopen this case" should the defendant return to the Territory.
No subpoena had yet been issued to the complaining witness. This failure, however, was apparently due only to the fact that no one had believed it necessary. The girl had approached the police on her own. She had fully cooperated with the Attorney General’s office in its preparation of the case. She had testified at the preliminary examination. When she informed the government of the agreement- she had reached with the defendant’s relatives, the government immediately sought to compel her appearance by issuing a subpoena. The girl did, however, fulfil her side of the bargain by disappearing, and the case against Ignatius Godinet was subsequently dismissed.
On January 26, 1988, the relatives who had signed the agreement appeared before this Court to show cause why they should not be held in contempt of court. Their .principal defense was that the agreement had -originally been the girl’s idea rather than their own. Two of the relatives, Alex and Frank Godinet, were nevertheless held to be in contempt. The Court explained that a criminal trial is not simply a private matter between the alleged victim and the defendant or his family, and that anyone who enters into an agreement whose purpose is to deprive the Court of its ability to proceed by making evidence unavailable thereby *130places himself in contempt of Court regardless of whether the agreement was originally his own idea or someone else’s. The Court further noted that the alleged ringleader in the incident was a fifteen-year-old girl and that Alex and Frank Godinet are adults who should have resisted any suggestion by her to enter into an illegal agreement. The Court did, however, accept their testimony about the circumstances of the agreement as tending to mitigate the offense and therefore suspended the six-month sentence.
Counsel for Alex and Frank Godinet now moves for a reconsideration of the holding that they were in contempt, or in the alternative for a new trial.
Counsel’s arguments can be distilled to two. First, counsel urges that the territorial statute purporting to give the Court power to punish contempt, A.S.C.A. § 3.0302(3), does not in fact confer authority to punish any particular kind of conduct. Rather, in order to be punishable as contempt an action must be prohibited by the separate contempt statute in the criminal code, A.S.C.A. § 46.4617. Second, since the witness had not been served a subpoena at the time of the agreement that she would not testify, there was no "process" of the Court for the agreement to have impeded.
The first argument is founded on a misunderstanding of the nature of the Court’s power to punish contempt. Courts necessarily possess the inherent ability to take steps to ensure the integrity of the process by which they decide the cases before them.
[T]he right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government and . . . courts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions.
Wood v. Georgia. 370 U.S. 375, 383 (1962). In other words, the High Court could hold someone in contempt even if there were no statutes at all. It happens that the Fono has affirmed this power by enacting A.S.C.A. § 3.0203. It has also enacted a separate statute, A.S.C.A. § 46.4617, which makes certain contumacious acts punishable by ordinary *131criminal prosecution. The criminal statute, which vests discretionary power in the executive to prosecute certain kinds of conduct, in no way diminishes the Court’s power to act on its own initiative under the former statute. Cf. Steinert v. United States District Court for the District of Nevada. 543 F.2d 69, 70 (9th Cir. 1976) (18 U.S.C. 8 401, a federal statute similar to A.S.C.A. § 3.0203, may give rise to criminal liability despite the existence of a separate statute making certain contumacious acts criminal offenses). Here lies the answer to the argument that A.S.C.A. § 3.0203 is "not capable of violation."
The defendants next argue that, since no subpoena had yet been served on the witness, their efforts to ensure her absence could not have been contumacious of the Court’s authority. This argument assumes not only that the term "process" as it appears in A.S.C.A. §8 3.0203 and 46.4617 must mean an affirmative and explicit command from the Court, but also that it is only possible to "resist" process that has already been formally issued.
The first of these two propositions --- that "resistance to process" should be narrowly construed to mean only the encouragement of disobedience to a subpoena rather than comprehending any deliberate obstruction of the process by which the Court conducts its business --- has support in at least one judicial opinion from another jurisdiction. See Sellers v. State. 90 So. 716 (Miss. 1922). We are inclined, however, to disagree with the holding in Sellers for the reasons stated in the vigorous dissent to that opinion and in the cases and other authorities cited therein. The phrase in our contempt statute on which defendants in this contempt proceeding rely, defining contempt to include in pertinent part "disobedience or resistance to [the Court’s] lawful writ, process, order, rule, decree, or command,"1 seems to have been designed to restate *132and incorporate the common law definition of contempt, under which efforts to secure the absence of a witness were contumacious regardless of whether the witness had been served with a subpoena. See Sellers. supra, at 717-22 (Ethridge, J., dissenting), and authorities cited therein.
Ultimately, however, we need not decide whether “process" means the judicial process itself or only a subpoena or other paper emanating from that process. For in this case a subpoena actually did issue, albeit a few days after the agreement between the defendants and the witness. The question before us, as formulated by the defendants themselves, is whether the agreement constituted "resistance to" that subpoena. This is a question of contractual interpretation. Surely a contract that explicitly required the girl to disobey any subpoena that might thereafter be issued would be a *133form of "resistance to" such a subpoena, notwithstanding the chronological order of the two documents. Cf. Montgomery v. Palmer. 59 N.W. 148 (Mich. 1894) (convincing witness to avoid service of a subpoena held to be contumacious under statute defining contempt in pertinent part as "unlawful interference with the process" of the court). The question in this case, therefore, is whether the parties to the agreement intended the girl to absent herself only in the event she received no subpoena. Such a construction would seem absurd. It is certainly at odds with the construction the girl herself put on the agreement: almost immediately after being served with the subpoena she dropped out of sight and subsequently wrote a letter to Ignatius Godinet’s lawyer, stating, "I only intend to honor my word and keep at peace with a family." It defies logic to suggest that the defendants have not resisted the process of the Court merely because they got to the witness before the subpoena did.
In any case, even if we found that the defendants in contempt resisted no "process," they certainly resisted an "order" of the Court and therefore committed contempt within the definition of A.S.C.A. §§ 3.0203. (See also A.S.C.A. g 46.4617(3) (emphasis added): contempt includes "intentional disobedience or resistance to the process, injunction, or other mandate of a court.") On December 9, 1987, well before the date of the agreement between the Godinets and the prospective witness, the Court ordered that Ignatius Godinet be tried on January 19, 1988 for two counts of forcible rape, one count of forcible sodomy, and one count of sexual abuse in the first degree. The whole purpose of the agreement into which the Godinets subsequently entered, as evidenced by its language and by the testimony of the defendants themselves at the contempt hearing, was to prevent that trial from taking place. This was "resistance to" the Court’s lawful order.
Notwithstanding our disagreement with the defendants’ proposed definition of contempt, we will grant their motion for a new trial. The earlier proceeding was necessarily held on short notice; defendants and their counsel, possibly because of inadequate time for preparation, seem not to have appreciated the legal standards that were to be applied and may therefore not have offered all the evidence they might otherwise have *134wished to offer. The judgment and the suspended sentences will therefore be vacated and a rehearing of the order to show cause will be set for June 15, 1988.
It is so ordered.
The quoted language is from A.S.C.A. 8 3.0203(3). The statute on which defendants in contempt contend this proceeding should be based, A.S.C.A. § 46.4617(3), forbids "intentional disobedience or resistance to the process, *132injunction, or other mandate of a court." For the purposes of determining whether defendants in contempt engaged in “resistance to process," the two statutes would appear to be identical. Defendants contend, however, that "process" in § 46.4617 refers back to a preceding section having to do with the obstruction of process servers, which defines "process" as "any writ, summons, subpoena, warrant other than an arrest warrant, or other process or order of a court." A.S.C.A. § 46.4616. We disagree with this contention. A statute making it illegal to obstruct process servers necessarily contemplates "process" only in the sense of papers issued by a court. For the reasons discussed in the text of this opinion, "the process . . . of a court" within the meaning of a contempt statute would seem to have a far broader meaning. As discussed in the text, however, it is not necessary for us to resolve this question, since defendants committed contempt even within the narrow construction they urge us to adopt. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485670/ | *135The facts in this case are as follows:
1) In 1987 Utuutuvanu Faatea offered a tract of land called "Fa’aea" in Amanave for registration as the communal land of the Utuutuvanu family. (A previous attempt by the same claimant to register the same land had been rejected by the Court on the ground that the claimant was not then the registered Utuutuvanu titleholder and therefore had no standing to offer land for registration on behalf of the family. Tutuvanu v. Niui’a. LT No. 16-84 (decided March 20, 1985).)
2) Mataituli Taua and Vaielua Lameko objected, claiming respectively that the land in question was the property of the Mataituli and Vaielua families.
3) Vaielua did not, however, file a complaint in this case when notified to do so.
4) Mataituli did file a complaint. The complaint was served on Utuutuvanu. There is no evidence in the record that a copy was served on Vaielua.
5) On March 15, 1988, the case between Mataituli and Utuutuvanu came for trial. Witnesses for Mataituli were himself and Tago Logoiafi. Utuutuvanu was his own witness.
6) The preponderance of the evidence at trial was to the effect that all or almost all members of the Mataituli family are also connected to the Utuutuvanu family and vice versa. Mataituli claims that Utuutuvanu is a lesser matai title of his family; Utuutuvanu claims that Mataituli is a lesser matai title of his family. Each party relies on his own family history and legend to support his claim. The Utuutuvanu family believes that the Mataituli family came to the land only because a Mataituli once married the daughter of an Utuutuvanu. The Mataituli family agrees that such a marriage occurred. Their legend has it, however, that the Mataituli family had lived on the land long before the marriage in question, and that the Utuutuvanu title itself was created and conferred on the first Utuutuvanu by an early Mataituli. The Court finds the two stories, in and of themselves, equally credible and coherent.
7) Tago Logoiafi, the pulenu'u of Amanave and also a member of the Mataituli family, testified *136that the Mataituli title is recognized within the village as independent of the Utuutuvanu family. Although this witness’s dogged efforts to avoid admitting that he was related to Mataituli were not helpful to his credibility, his substantive testimony was uncontroverted.
8) The preponderance of the evidence at trial was to the effect that the land offered for registration is part of a larger tract, also called Fa’aea, which is now occupied by Mataituli and by other family members who render service to Mataituli and not to Utuutuvanu.
We conclude that the offer of registration by Utuutuvanu must be denied. His family history affords no intrinsic basis to establish its own accuracy over against that of Mataituli. The other evidence --- occupancy of the land by Mataituli and by those rendering service to him, and the uncontroverted testimony to the effect that the village recognizes Mataituli as a title in its own right --- preponderates against the claim of Utuutuvanu.
We also conclude, however, that it would be inappropriate to order the registration of the tract as the property of the Mataituli family. In the first place, the tract represents only a small portion of what the Mataituli family claims to be the extent of Fa’aea, so if Mataituli wishes to register the whole of Fa’aea he would have in any case to make a new offer of registration.
Moreover, Mataituli’s complaint was never served on the other objector, Vaielua. Vaielua did receive a notice from the Clerk of the High Court to the effect that he must file a pleading within twenty days or lose the right to press his objection to the Utuutuvanu registration. The Mataituli family, however, could easily have brought the Vaielua family into this proceeding in order to test its claim against theirs but chose not to do so.
Finally, even apart from the failure to serve Vaielua, the case presented at trial by Mataituli was awfully thin. It was concerned almost exclusively with the relationship between the Mataituli and Utuutuvanu families, and was sufficient to defeat the Utuutuvanu registration *137but not to establish a title good against the world.
The offer of registration by Utuutuvanu is denied. If Mataituli wishes to register the land he should offer it for registration in accordance with the statutory procedures.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485671/ | *138On Motion to Dismiss:
This motion was based on failure of counsel for plaintiffs to file a brief by the deadline which had previously been set by the Court. At the hearing on the motion, held on April 11, counsel for plaintiffs expressed his uncertainty about whether he had actually missed the deadline. The motion was taken under advisement.
The Court has ascertained from the transcript of the earlier hearing, held on February 25, that counsel for plaintiffs was ordered to file his brief by March 10. The brief was instead filed on March 14. Nor was this the first deadline missed by counsel for plaintiffs in this case: the record reflects that counsel for plaintiffs filed on January 28 a motion to extend a deadline that had expired on January 15. The Court granted that motion with the observation that the consequences of attorneys’ failure to comply with Court rules should fall whenever possible on the attorneys themselves rather than on their clients. For the same reason, the present motion to dismiss is denied. We will, however, award the defendants and the real party in interest any attorneys’ fees and other expenses occasioned by the various delays and the pleadings and hearings related to them, such fees and expenses to be proved by affidavit.
At the April 11 hearing the Court also undertook to determine whether the parent/child relationship between the decedent and the real party in interest was legally terminated during the decedent’s lifetime. We have ascertained that it was not. The petition for termination of parental rights in Juvenile case No. 47~85 was not filed until April 25, 1985, and concerned only the parental rights of the child’s surviving father.
The case appears ripe for decision on the merits. Unless by May 27 any party has requested oral argument or filed another pleading requiring a further hearing, the Court will proceed to determine the case on its merits.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485672/ | On Motion for Reconsideration of Order Denying Summary Judgment:
*140For the purpose of this motion we construe the facts in the light most favorable to the plaintiff:
1) In 1955 the land "Lugavai" in the village of Pago Pago was registered as the individually-owned land of Molitui Sepetaio.
2) At some time between 1955 and 1966 Mrs. Sepetaio moved to California to live with her daughter Nancy Ferra, one of the defendants in this case. Relatives of Mrs. Sepetaio, including her brother T.S. Muasau, occupied Lugavai between the time she moved to California and her death in 1967, and may also have occupied it before she moved to California.
3) In 1966 a document purporting to be a lease of Lugavai was executed between the "Molitui family" as lessor and “Oka T.S. Muasau" as lessee. Oka T.S. Muasau was not only the lessee but also one of the signatories for the lessor. The other two were "Tumua T.S. Muasau" and Milaneta Roberts, plaintiff in this case.
4) In 1967 another document was executed, purporting to be a separation agreement for a building on Lugavai, which was represented therein as communal land of the Muasau family. T.S. Muasau signed both as the senior matai of the Muasau family and as the owner of the building.
5) A building was then built on Lugavai. This building was originally used as a residence by T.S. Muasau.
6) The document was later signed (we assume for the purpose of this motion) by Molitui Sepetaio.
6) In 1972 a document was executed purporting to convey the building from T.S. Muasau to plaintiff Roberts and her husband.
7) In 1978 the estate of Molitui Sepetaio was opened, apparently as part of an effort by-defendant Ferra to lay claim to Lugavai and to the building on it. Plaintiff Roberts and others filed a claim on the building. PR No. 9-78.
8) At least since the issue was contested in the probate case during 1979, each side in this *141dispute has known that the other claims the right to occupy the building and denies that the opposing side has any such right.
9) At some time during the 1980s plaintiff caused the building to be renovated. Although some repairs may have been necessary, it is undisputed that the building is no longer used as a residence and that the renovations were at least partly designed to make the building more suitable for commercial rental.
On these facts we conclude that the building is the property of plaintiff Roberts (and, on the state of the present record, of her unnamed husband). The best evidence on the current record is that Mrs. Sepetaio signed the 1967 separation agreement in order to allow Mr. Muasau to build his own house on her land, and that Mr. Muasau intended in 1972 to convey whatever interest he had in the house. Defendants are correct in observing that there were technical flaws in these documents: the separation agreement purported to describe Lugavai as communal rather than individual land, and the 1972 conveyance referred back to the legally irrelevant 1966 lease rather than to the separation agreement. These flaws, however, are insufficient to invalidate the conveyances or to cause the Court to construe them other than in accordance with the apparent intentions of the conveyors.
On reflection, however, we also conclude that the separation agreement did not convey to T.S. Muasau and his heirs or assigns a perpetual and irrevocable right to build, occupy, and rent out whatever structures they might choose. We decline to rule, as defendants seem to urge, that a separation agreement involving individually owned land can never be evidence of anything other than a license revocable at will. We also decline, however, to accept plaintiff’s contention that the Court should treat land as communal even though it has been registered as individual, provided only that it has been "occupied communally." Even if plaintiff could prove at trial that various relatives of Mrs. Sepetaio had occupied the land before and after its registration as her individually owned land, a holding that the land should treated for all practical purposes as the communal land of the Muasau family would be tantamount to calling the registration statute a liar to its face.
*142Such a holding would be particularly ironic in light of the fact that the land has in any case not been treated very communally in recent years: Mr. Muasau conveyed the building on it to his own daughter, who has moved to the United States and rented the building out as a commercial structure. Assuming for the sake of argument that we might conclude at trial that the separation agreement together with surrounding circumstances was evidence of a conveyance by Mrs. Sepetaio of a license that was not revocable at will for her brother to live on the land, the license surely lapsed when his assigns began renting the building out as a commercial structure.
Accordingly, we hold that the estate of Molitui Sepetaio has the right to reoccupy the land, including the right to order the removal of the building. We cannot decide on the present record whether the equities of the case are such as to require that plaintiff be given an option of removing the building or receiving from the estate some compensation for its value. In the event the parties cannot reach a settlement on this issue, either party may move for a further hearing.
The motion for reconsideration is therefore granted. Defendants’ motion for summary judgment is granted in part and denied in part, in accordance with the above opinion.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485673/ | Counsel: For Petitioner, Charles Ala’ilima
Petitioner Yvonne Fuimaono, the widow of the deceased, petitioned the Court for transfer of his assets to her in accordance with the provisions of A.S.C.A. § 40.0334. It is an essential prerequisite to the procedure provided in that section that the total assets of the deceased be valued at less than $10,000, and petitioner Fuimaono so attested in her petition.
The inventory of the contents of a safety deposit box held by the deceased clearly reveals that his assets include at least $10,838 in cash. Since our order that the assets of the deceased be transferred 'to petitioner Fuimaono was based on the erroneous assumption that the assets were less than $10,000, the order is hereby rescinded. The assets belong to the estate of Galu Fuimaono and the law prohibits their disposition except in connection with the lawful administration of the estate. They should be deposited immediately with the Clerk of the Court, where they will be held until the petitioner or someone else can be appointed administrator of the estate.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485674/ | REES, Chief Justice, and KRUSE, Associate Justice:
As many of you already know, we badly need a new way to deal with guardianships of the estates of minors and other legally incompetent persons.
The Development Bank, which formerly served as guardian of the estates of nearly all such persons in the Territory, does not wish to take on any new guardianships.
The only alternative currently in use, in which a parent or other guardian is ordered to hold funds in a trust account from which withdrawals may be made only with permission of the Court and to make periodic reports to the Court, has proven to be a disaster. A recent review of thirty or forty cases in which such orders had been made turned up almost no cases in which the guardians had fully complied with the Court’s order. More often the guardian had spent the money within a few months (sometimes within a few days) of receiving it, usually on things the guardian believed would benefit the child by benefitting the whole family.
*145Several attorneys of record in such cases have expressed surprise and dismay at the possibility that they might be held responsible for knowing whether their clients have complied with the Court’s orders, or even for knowing how to contact their clients when compliance has not occurred. Regardless of where the responsibility currently resides, it seems obvious that this is an unrewarding activity for attorneys and in the vast majority of cases can be done without an attorney.
We propose, without much enthusiasm but because extensive discussion among the Justices and several attorneys has yielded no better idea, that funds received by minors and other incompetent persons in the future be deposited directly into the registry of the Court. Such funds would be handled according to the following procedures:
1) The Clerk would put all such funds into an interest-bearing account or accounts, and would credit such interest to the account of the beneficiary.
2) No trusteeship fees would be charged; the administrative work would be absorbed into the general budget of the Court.
3) Disbursements would be requested of the Clerk, either in writing or by means of a personal visit from the guardian of record during business hours, and approved or disapproved by one of the Justices.
4) The parent or other petitioner would remain the legal guardian of record, but would be absolved of responsibility for any funds deposited with the Court. The legal guardian would not be required to make periodic reports concerning funds deposited with the Court, but would receive a copy of an annual report prepared by the Clerk and approved by a Justice.
5) Except in extraordinary cases requiring the continued services of an attorney, the Court would freely grant motions by attorneys to withdraw as counsel of record in guardianship cases.
6) These procedures are suggested to attorneys only as an option that should in most cases make life simpler for guardians, beneficiaries, *146attorneys, and judges. Any party remains free in any case to petition for a guardianship in which funds are kept elsewhere than in the registry of the Court. In light of past experience with private guardianships, however, the Court may require bonding and/or the continued involvement of the attorney to ensure compliance with its orders.
7) These suggested procedures obviously do not affect private guardianships that already exist. Insofar, however, as private guardians and their attorneys desire to convert to such an arrangement in order to absolve themselves of continuing responsibility for reporting and compliance, motions for the deposit of current guardianship funds into the registry of the Court will be freely granted.
We would appreciate your comments and suggestions on this and related matters. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485675/ | On Motion to Deposit Funds and for Attorney Fees:
On May 13, 1988, the Court signed an order approving an interpleader sought by the plaintiff insurance company but denying plaintiff’s request for attorney fees. In reply to a request from counsel, and in order to clarify our decision for the purposes of any such future requests, we now detail our reasons for denying those fees.
Whether to award attorney fees in interpleader proceedings lies within the discretion of the Court. See, e.g.. James Talcott, Inc, v. Allahabad Bank Ltd., 444 F.2d 451, 468 (5th Cir.), cert. den., 404 U.S. 940 (1971); Schirmer Stevedoring Co., Ltd., v. Seaboard Stevedoring Corp.. 306 F.2d 188, 194 (9th Cir. 1962). Such awards have sometimes been given to disinterested stakeholders who deposit the disputed fund with the Court. Courts that have done this usually reason that the stakeholder should be rewarded for promoting the expeditious resolution of conflicting claims or should be protected from having to bear the costs of avoiding conflicting claims that did not arise through its own fault. See. e.g.. Schirmer Stevedoring, supra 306 F.2d at 192. Scholars have likewise expressed their approval of awarding attorney fees to disinterested stakeholders in appropriate cases, pointing out that interpleader eliminates execution costs for prevailing claimants and generally does not significantly drain the interpleaded fund. See 3A J. Moore, Federal Practice par. 22.16[2]; 7 C. Wright & A. Miller, Federal Practice & Procedure § 1719.
*148While we recognize the general desirability of interpleader as a procedural device and do not suggest that circumstances could never arise that might justify an award of attorney fees to the disinterested stakeholder, we do not feel that such an award is appropriate in a case such as the one before us. Courts seem generally to have refused to grant fees in interpleader cases where the claims are of the sort that arise in the ordinary course of the stakeholder’s business. In Travelers Indemnity Company v. Israel. 354 F.2d 488 (2d Cir. 1965), for example, the court stated that it was "not impressed with the notion that whenever a minor problem arises in the payment of insurance policies, insurers may, as a matter of course, transfer a part of their ordinary cost of doing business to [the claimants] by bringing an action for interpleader." Id. at 490 (per Friendly, J.); see also Minnesota Mutual Life Insurance Co. v. Gustafson. 415 F. Supp. 615 (N.D. Ill. 1976).
Although it does benefit the Court and the claimants when an insurer interpleads a disputed fund, the insurer’s motives for doing so are generally not altogether altruistic. Chief among the beneficiaries of the procedure is the insurer itself: the possibility of conflicting claims to a policy fund is a quotidian of the insurance business, and by interpleading the fund the insurer avoids the cost of litigating the conflicting claims and ensures that it will be exposed to no further liability on account of that policy. See Gustafson, supra, 415 F. Supp. at 617-18. It should therefore be unnecessary to prod insurers to interplead by awarding them their attorney fees. Nor has a company that interpleads necessarily established its entitlement to recognition for extraordinarily virtuous conduct; sorting out claims upon their policies is what insurance companies are supposed to do. Thus neither of the reasons usually given for awards of attorney fees to stakeholders is at work in cases such as this one. Since we were not told of and cannot discover any circumstances to justify the payment of National Pacific’s legal expenses from the interpleaded fund, its request for attorney fees is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485676/ | Alofagia Sa’o made her living cleaning fish at the Star Kist tuna cannery. One Thursday in early 1985 she left the cannery before the end of her shift after a spell of dizziness and fainting, and she missed work again on Friday. On Saturday morning she began to convulse and lapsed into a coma, and she died of cardiac arrest a day later. The attending physician at the L.B.J. Medical Center concluded that Alofagia’s heart attack had been caused by severe bacterial meningitis, an inflammation of the membranes of the brain.
MajLala Pei later brought a claim for death benefits under the workmen’s compensation laws on behalf of Alofagia’s minor son, Manuia Pei.1 The Workmen’s Compensation Commission held a hearing at which the claimants presented the testimony of Dr. Aloiamoa Enesi, the physician who treated Alofagia, and of Mrs. Pei. Alofagia’s employer and its insurer contested their liability by arguing that the claimants’ evidence contained no indication that the disease was work-related. The Commission determined that Alofagia had contracted the bacteria that caused her death while acting within the course and scope of her employment, and on the *151basis of this factual finding it awarded benefits to Manuia. Star-Kist and Travelers now seek to have the Commission’s decision overturned.
The Fono has provided for the payment of compensation for any injury arising out of and in the course of employment and has delegated to the Workmen’s Compensation Commission the authority to hear and determine all questions posed by such claims. A.S.C.A. §§ 32.0520, 32.0636(a). Oncea claimant appearing before the Commission has shown the existence of an injury and an employment relationship, a presumption arises that the claim lies within the coverage of the workmen’s compensation laws. A.S.C.A. § 32.0642; Saunoa v. Workmen’s Compensation Commission. 2 A.S.R.2d 43 (1985); Hartford Fire Insurance Co. v. Workmen’s Compensation Commission. 1 A.S.R.2d 57 (1981); New Amsterdam Casualty Co. v. Hoage. 46 F.2d 837, 838 (D.C. Cir. 1931). The presumption operates to shift to the employer the burden of proving by substantial evidence that the injury was not caused by the employment.
Once the Commission has resolved a claim, that decision should be overturned on appeal only if it was "not in accordance with the law," A.S.C.A. § 32.0652, and a commission decision, whether for or against the claimant, will withstand challenge if it was supported by substantial evidence. Continental Insurance Co. v. Workmen’s Compensation Commission. 7 A.S.R.2d 105 (1988) (CA No. 141-87, opinion issued March 7, 1988).
Nobody would dispute that Alofagia’s death would be compensable if it could be established as a certainty that the fatal streptococcus entered her body while she was at work inside the Star-Kist facility. Of course it will nearly always be impossible to pinpoint the time and place of a bacterial infection. Yet that is the question that the Commission had the statutory duty to resolve in this case, by resort to the evidence presented and any reasonable inferences available therefrom. So long as the record contains evidence from which a reasonable person could conclude that Alofagia’s death was work-related, and it does not appear that the Commission arbitrarily and capriciously disregarded substantial evidence to the contrary, we will not disturb its decision.
*152While necessarily circumstantial, the evidence presented to the Commission was sufficient to support the conclusion that Alofagia contracted the disease while at work. The doctor who treated her testified that her heart attack resulted from bacterial meningitis and that the disease has a relatively brief incubation period, probably less than a week. The bacteria that cause this disease flourish in hot, damp areas. Alofagia worked in an environment that the Commission apparently believed especially conducive to the growth of these bacteria. There was further evidence that Alofagia lived in a house that was used as part of a government education program which enforced cleanliness standards, that the house was in fact cleaned every day, and that it was therefore less likely that the bacteria had come from her home.2 This cumulation of evidence is not overwhelming, but neither is it too flimsy to support the Commission’s inference that Alofagia contracted the disease at work.
The plaintiffs argue that the claimants below did not produce evidence sufficient to trigger the statutory presumption of work-relatedness and that there was substantial evidence tending to disprove *153causation. They cite New Amsterdam, supra, for the proposition that the presumption disappears when there is evidence that the employee died away from the workplace. This overstates the point of that decision, which is that "[i]f substantial evidence [disproving causation] is introduced, and no other evidence is introduced in behalf of the claimant, the presumption must give way." Id. at 838 (emphasis supplied). This is not such a case. The plaintiffs also contend, purporting to quote Pacific Employers Insurance Co. v. Industrial Accident Commission. 122 P.2d 570 (Cal. 1942), that the presumption does not apply unless the evidence shows that "it was quite probable, and in fact almost certain that the employee contracted the disease while engaged in his duties." A careful scouring of the opinion yields neither those words nor that idea. Nevertheless, the guiding principle of that case is germane to the resolution of this one:
It is not the function of this court to weigh conflicts in the evidence. . . .
"[C]ertainty is not required. It is not even required that the award be, in our judgment in accord with the preponderance of the evidence, in order that we be not at liberty to annul it. We cannot disturb the award unless we can say that a reasonable man could not reach the conclusion which the commission did."
Id. at 572-73, quoting City and County of San Francisco v. Industrial Accident Commission. 191 P. 26, 29 (Cal. 1920).
This is not a case that requires us to decide what would result if the claimants had relied only on the presumption in the face of the employer’s evidence against causation. The Commission had before it evidence from which a reasonable person might have concluded that Alofagia Sa’o died from a disease she contracted in the workplace. In that situation it is never appropriate for the High Court to reweigh what the Commission has already weighed. The complaint is therefore dismissed.
Malala Pei adopted Manuia after Alofagia’s death. Since the legal relationship of parent and child existed at the time of injury and death, the subsequent adoption did not affect the child’s right to compensation. Cf. Austin Co. v. Brown. 167 N.E. 874 (Ohio 1929) (a widow who remarried after her husband’s death from work-related injury was not thereby barred from receiving workmen’s compensation, since dependency was to be determined as of the time of the injury).
This is not to say that the evidence supporting the Commission’s conclusion was the only evidence in the record. On cross-examination by plaintiffs’ counsel, for instance, Dr. Enesi testified that he had never been to the Star-Kist fish cleaning facilities or to Alofagia’s home and therefore could personally reach no conclusion about whether she was more likely to have contracted the disease at work than at home. Dr. Enesi also testified on cross-examination that it is possible for a person with a strong immune system to have bacteria in his body for several months without contracting meningitis. The Commission’s conclusion that the disease was work related is not, of course, invalidated by the presence in the record of evidence that would have supported the opposite conclusion. The question before the Court is not whether the Commission’s conclusion was required by the evidence, or even whether it was supported by the preponderance of the evidence, but whether it was supported by substantial evidence. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485677/ | Counsel: Defendant Viliamu Satele pro se
On “Request for Confirmation of Legal Opinions by Governor’s Office“:
In 1981 the defendant in this case was tried for two counts of Murder in the First Degree. At the conclusion of the trial the Court found that all of the elements of first degree murder had been proved beyond a reasonable doubt. The defense had presented psychiatric testimony, however, that the defendant had committed the crime while suffering from a brain dysfunction. On the basis of this testimony the Court found the defendant Not Guilty by Reason of Insanity.
*155On June 9, 1981, the Court ordered that the defendant be committed to the Closed Intensive Security Unit of the Hawaii State Hospital. Subsequently the defendant requested a hearing for the purpose of demonstrating that he had regained his sanity, was no longer a threat to himself or others, and should therefore be released. At this hearing the defendant presented a psychiatrist and a neuropsychologist from Hawaii who testified that they could not detect any significant symptoms of a brain dysfunction. After considering this testimony along with other evidence and arguments at a series of three hearings held in late 1982, the Court found that further institutional confinement was no longer necessary. The Court imposed, however, the conditions that defendant reside with his wife in Los Angeles, California unless granted permission of the Court to reside elsewhere; that he "refrain from the use of alcohol; and that he consult with a physician periodically concerning his mental impairment.
That was the last the Court heard of the case until today, when we ' received a surprising communication from the defendant. This communication includes a copy of a letter from Lyle Richmond, Legal Counsel to the Governor, which reads in pertinent part as follows:
While the High Court of American Samoa imposed a condition prohibiting you from returning to American Samoa for a period of 10 years, it is the Attorney General’s . . . opinion that this restriction is unconstitutional and you are free to travel as you wish.
The defendant asks that the Court provide "confirmation of legal opinions by Governor’s office or a judicial adjudgement of my case."
The Court cannot provide the requested confirmation. In the first place, insofar as we are able to reconstruct the evidence that was before the Court in 1982 the conditions imposed at that time were not only constitutional but eminently reasonable. As the Court correctly observed, it was not conclusively bound by ”[t]he fact that certain medical witnesses are presently unable to diagnose" a dysfunction, but had an obligation to make its own judgment based on all the evidence at its disposal. This would have *156included the medical testimony adduced at trial as well as other evidence to the effect that life in Samoa had subjected the defendant to certain "pressures and conflicts" which left him unable to resist the urge to kill people. The Court’s finding that the defendant was no longer a threat to himself or others was conditional on his continued abstinence from alcohol and on his remaining in a particular environment. (Indeed, the report of the tests that were done on defendant in Hawaii shortly before the hearing, which was apparently at least part of the basis for the psychiatrist’s testimony that there were no currently observable symptoms of brain dysfunction, concluded that defendant’s "neuropsychological functions [were] generally within the normal range" but that the tests remained “consistent with earlier identification of broad frontal lobe difficulties." The report adds that "even moderate use of alcohol or mind-altering substances would be likely to produce a fairly rapid deterioration in his neuropsychological functioning to the level of functioning seen in previous testing a year ago, with the important implications regarding his judgement and decision-making abilities.")
Aside from whether the Court’s decision in 1982 was correct on the merits, however, it is astonishing and disturbing that the American Samoa Government should feel free to counsel disobedience to that decision. The government, like everyone else, is bound by court orders in proceedings to which it is a party. Courts sometimes make mistakes; a party who believes the court made a mistake in his case has a variety of post-judgment remedies at his disposal, but outright disobedience to the court’s orders is not among them.
In this case the Court’s 1982 order explicitly provides for its own modification upon a showing that the conditions are no longer necessary for the protection of the public. (It is unclear where the Attorney General’s office got the idea that the order was limited in duration to ten years.) Until such a showing is made, the defendant is prohibited from returning to Samoa and the government is bound to enforce this restriction. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485678/ | Plaintiff, Túfele Liamatua, is the current holder of the title "Túfele” pertaining to the village of Fitiuta, Manu'a. He claims, as successor to the title "Túfele", the trusteeship of land called "Atu'u" located in the Eastern District of Tutuila. This land was the subject of a conveyancing instrument (hereafter the "warranty *159deed") entered into on November 25, 1911 between Mauga Moimoi and his wife1 as grantors, and Túfele as "Trustee for the People of Manu'a" as grantee.
The warranty deed purports to convey a defined piece of property with the approval of the then Governor of American Samoa. It was duly accepted and registered in the Office of the Territorial Registrar. In form, therefore, the warranty deed is consistent with the requirements of the laws of the territory governing the alienation of communal lands. See A.S.C.A. §§ 37.0201 et. seq.
As trustee, plaintiff seeks the recovery or repossession of a certain part of Atu'u which is the location of a' small building (said to be about half as large as the dimension of courtroom No. 5) which is claimed by defendant Mrs. Alesene Mose.
Plaintiff’s intention for this site is to construct a building to house an administrative office wherein matters concerning the land may be handled and which may serve as a form of headquarters where the Manu'a District can conduct its affairs in Tutuila. Plaintiff testified at the time of the filing of his complaint that the said building had been left vacant and neglected for some two (2) years prior; and that since defendant is in possession of two (2) other double storey buildings located elsewhere on the said lands, and is earning rental revenue from business tenants, the recovery of the site in question for general district use would work no great prejudice to the defendant.
Pending trial hereon, defendant has established a sewing and laundromat business in the building.
*160The parties have different historical perspectives on the background of the land grant.
Plaintiff testified to the effect that the warranty deed formalized a written agreement of 1904 between the then Mauga and the then Túfele whereby the former had transferred the land Atu'u as a locality in Tutuila for the people of Manu'a to arrive and assemble at for conferences at a territorial level. At the time of the grant, the territorial topic for discussion in Tutuila was the "Mau".
Notwithstanding the warranty deed, defendant, a long standing resident of the area Atu'u, testified that the grant came about consequent to negotiations between Mauga and Tui Manu'a Elisara. Accordingly it is defendant’s position that the Túfele had no special say in the matter concerning the lands. As evidence hereof, the defendant alluded to prior instances when building permits and the like were executed not by a Túfele but by a succession of Manu'a District Governors, and then later by a land committee appointed by the District Council of Manu'a.
While we accept as fact that there was a period of time when District Governors and a land committee had executed various government permit applications with regard to land use, we are unable to accept this fact as proving defendant’s contention. Rather, the more plausible explanation was given by plaintiff that the involvement of the District Governors and the land committee came into being while the Túfele title was vacant. That indeed when the present holder took the title Túfele he was ignorant of the existence of the warranty deed until the matter was raised with him by the Office of the Attorney General in 1974, and that his only prior knowledge of the matter was that the former Túfele acted as caretaker to the land when the same in earlier times housed a few people including certain government quarters. That since being apprised of the deed, plaintiff has actively assumed the functions of trustee as therein provided.
We find that the warranty deed itself is the best evidence of the conveyancing transaction between Mauga and the people of Manu'a, and that it gives Túfele the power to act as trustee.
*161Defendant in addition offers alternative theories in derogation of the trust and accordingly against plaintiff’s claims to trusteeship. The more extreme of these is an argument that the warranty deed itself is void because it offends the common law rule against perpetuities. It is said that the trust established by the warranty deed is perpetual in effect because it may not vest within the appropriate limitation of a life in being plus 21 years.
The logical conclusion to this argument is the destruction not only of the trust conveyance but indeed of the very estate upon which defendant’s possessory rights to the land first came into being.
As it happens, we disagree with defendant. The policy reasons behind the rule against perpetuities have no relevant application to communal lands. As alluded to by defendant, the rule is grounded on public policy which disapproves the imposition of any fetters against the free alienability of estates. Nothing could be more incongruous with the notion of communal lands than a doctrine that is a product of economic policy favoring the free marketability of property. Communal lands are not freely alienable on the market. A.S.C.A. § 37.0204.
Even if the rule against perpetuities were applied, however, it would not invalidate the deed. Technically the rule is one against the remoteness of vesting of an estate or interest beyond the period of limitations settled by law. If we look to realities, the ownership of communal lands is in fact in that traditionally cognizable entity the "aiga'' or extended family. See, e. g. . Tuana'itau v. Pagofie. 4 A.S.R. 375, 381 (1963); Magalei v. Siufanua. 4 A.S.R. 101, 101 (1973); Fairholt v. Aulava. 1 A.S.R.2d 7.3, 78 (1983). The reports are also replete with cases which talk about "title” to land being acquired by Samoans through first occupancy and a claim to ownership. And it has also been early recognized that "title" may pass from one family to another through the latter’s long term and adverse use. Avegalio v. Suafo'a. 1 A.S.R. 475 (1933); Ilaoa v. Toilolo. 1 A.S.R. 602 (1937). Additionally "title" may also pass through conveyance by the matai with the consent of the *162family,2 and in accordance with the requirements of certain statutory provisions.3
Therefore the notion of vesting of title in a communal entity has long been established law in the territory and it follows that a communal estate donated by one communal entity to another communal entity must necessarily vest immediately. To argue otherwise is to dally with artifice.
We see no legally significant distinction between a simple inter-family conveyancing, and a transaction between a single family and a group of families wherein the latter is represented by a matai appointed by the donor to assume the fiduciary role that would otherwise belong to the sa'o or senior matai of a given family. The Samoan realities remain the same, and we find no statutory or applicable common law rule to the contrary.
Defendant alternatively claims title in the land through adverse possession in excess of thirty years. We find no merit in this claim. Her coming to possession was certainly not adverse but permissive.
She claims to have lived on the land for 40 years. She descends from Manuan parents and first went upon the land in her youth and lived with relatives who also originated from Manu'a, a Leasau and his wife Toliu. After living 10 years with the latter she married John Mose whose family were also people from Manu'a and who were also living on Atu'u. After marriage she moved in with her in-laws. It was some time subsequent to this that she and her husband built the building in question. Throughout this time, defendant was familiar with the fact that land use permits were signed by third parties and indeed even she herself sought Túfele’s permission on a building permit application to repair the structure in question as well as the structure belonging to Leasau and Toliu after the latter had departed the land.
*163Finally, defendant contends that the warranty deed does not provide for plaintiff Túfele’s claim to be trustee. Defendant contends that the language "successors and assigns" contained in the warranty deed is restricted only to those qualified to take in the late Túfele’s personal estate. We disagree. In looking to the tenor of the document there is really no intention to create some sort of individual interest that would devolve upon the late Túfele’s personal estate. The whole intention of the document is to divest from Mauga the land "Atu'u" for the benefit of a group of people and nothing more. Túfele’s significance reflects no more than conspicuous protocol. One ranking matai is dealing with another ranking matai on behalf of their respective communities, and this is exactly what the warranty deed reflects. The then Túfele’s trust capacity reflects no more than the usual customary land setting with matai control. It is inconceivable that Mauga had any intention of possibly placing this matai control in an untitled person as defendant’s interpretation of the instrument would allow. It is just as inconceivable from the grantees’ point of view that their possessory rights to Atu'u under the instrument could be subject to the control of an untitled heir of the late Túfele. Defendant’s suggestion just does not fit the Samoan context--even less so in 1911 when the matai influence was much more pervasive.
In our opinion, the sensible effect to be given to the purposes of the warranty deed is that successive holders of the title "Túfele" are the qualified trustees, as opposed to the lineal line of the late Túfele as suggested by defendant. (Certainly, practice did not bear out this contention in the way of exercising control over the land with land use permits.) Finally, the last paragraph of the warranty deed reads in part:
To have and to hold.... unto the said party of the second part [Túfele], his successors or assignees, IN TRUST for the USE and BENEFIT of the People of MANU'a". (Emphasis in the original.)
There is no hint of private devolvement in this language and we believe that the draughtsman was purposeful because in contradistinction the succeeding sentence referencing a quiet enjoyment *164covenant on the part of the grantor speaks in terms of Mauga, his wife and "their heirs".
Having thus sustained the warranty deed as evidencing the conveyancing transaction as well as being the basis for plaintiff’s claims to trusteeship, we consider the issue of whether plaintiff may retake possession of the land area in question, under the circumstances.
The most glaring intent of the conveyance is that the subject land would be held for the "use and benefit of the People of Manu'a". For practical reasons, possessory rights would be subject to the physical limitations of the land area, but beyond that the rights of actual occupants found on the land are no more than those of others from Manu'a. We thus reject any suggestion of any special individual entitlement, with defendant’s contention that those on the land for any given period of time have the right (or a power of appointment) to pass on their possessory rights to others of their choosing.4 This contention is repugnant to the intent of the warranty deed and the language therein used to establish the donee class "the People of Manu'a". It is also repugnant to- the very clear purpose in the warranty deed to provide for a "trustee".
*165To the contrary we hold that the logical consequence of the natural application of the warranty deed’s intent is that an occupant who voluntarily departs the land or abandons his possessory rights, does so in favor of the trustee and the People of Manu'a.5 Besides arriving at this conclusion through construction of the warranty deed, we find analogous precedent in the normal family land arrangements wherein the Court has held that when a family member has relinquished his possession of communal land it reverts to the matai and family. Talagu v. Te'o, 4 A. S. R. 121 (1974). It was further held in this case that while a family member’s intentions may not have been to abandon the land, the issue of whether relinquishment has arisen and the matai has effectively taken over to the exclusion of the family member is "one of fact". Id. at 125.
As noted above, plaintiff testified that the building in question had been left neglected and in disrepair for some two (2) years prior to the filing of his complaint. He therefore approached defendant to release the site for district use. In plaintiff’s view this request was reasonable by virtue of the fact that defendant had now come into full use of another two storey building vacated by the aforementioned Leasau and Toliu; and that when this building was vacated, plaintiff had decided to convert it to district use but was beseeched by defendant to allow her to take over and remodel the building and that the first floor would be made available for district use. Plaintiff acquiesced and by reason thereof was the subject of complaints about favoritism from other land occupants. As events turned out the first floor of this building is now occupied by a business tenant of defendant.
Since the filing of this matter, however, defendant has established a laundromat and sewing business in the building at issue.
*166In response, defendant denies that she had ever abandoned the premises. She claims that the building was only left vacant while she was deciding what sort of business to set up therein. She formerly operated a store there but did not want to go back into that line of business because of the way competition had developed.
In the circumstances, we find relinquishment or abandonment not to be readily observable. Had defendant actually departed the land altogether then a case of abandonment might be easier made. However, on the facts as we have them it may not be said with any measure of confidence that defendant’s actions or omissions are entirely inconsistent with her retaining possession of the premises and land,
On the other hand we find and uphold, in the circumstances, appropriate authority in the plaintiff Túfele to require of defendant to yield and surrender the site in question as consistent with his trust and duties reposed by the warranty deed. As we have noted, the deed’s very clear purpose was to provide a land site for the "use and benefit of the People of Manu'a". Just as clear, therefore, is the scope of the trust with which Túfele is charged and that is to secure the site for this general purpose. Now it can hardly be said that the fullest expression of this purpose equates with a handful of individuals accumulating land sites for purely business purposes. While this is not to say that a business use is necessarily not a permitted use under the terms of the grant, it is hard to see how the current situation accrues to the "benefit of the People of Manu'a."
In conclusion, we find that the following circumstances have arisen: The building site in question was defendant’s original business site. She subsequently came into possession of another site which located a two (2) storey structure and which has also become a leasehold business site. Subsequently she further came into possession of Leasaü and Toliu’s site, which also contained another two (2) storey structure, but on the understanding given to plaintiff Túfele that the first floor thereof would be remodelled by defendant for general district use. This use did not materialize because defendant brought in another business tenant. We hold in these *167circumstances that defendant’s present possessoryinterests have exceeded the ambit of the grant and accordingly find it within plaintiff’s charge under the warranty deed to demand and make available one of those business sites for general district use. The plaintiff trustee’s choice of the site in question is upheld as the more reasonable and in order to mitigate any immediate prejudice to defendant by reason of having to relocate or reallocate her business interests, it is the opinion of the Court that defendant have thirty (30) days from date hereof to remove her belongings or suffer the same to be made available for general district use at the trustee’s discretion.
Judgment is entered in accordance with the above findings and conclusions. It is so ORDERED.
Mrs. Mauga’s significance as a grantor appearing in the deed is probably nothing more than naivete on the part of the draughtsman who was obviously meticulous with considering matters of dower. In custom, as well as in law since developed, a person married into a family has no say with regard to that family’s lands. Dower rights are nonexistent in the communal land context. A.S.C.A. § 40.0106. See also Reid v. Puailoa. 1 A. S. R. 2d 85 (1983).
See. e. g., Satele v. Afoa. 1 A.S.R. 424 (1930), Mauga v. Soliai, 3 A.S.R. 108 (1954).
A.S.C.A. §§ 37.0201 et seq.
The self serving nature of this argument is best explained by the fact that the locality also contains the territory’s two largest private sector employers --- the canneries. They provide a captive market with their numerous employees for a number of food and retail outlets that have spawned in the area and thus rental revenue attractive to building owners. Accordingly the more buildings that an individual can maintain on the land the better. Indeed the economics of the area have given rise to the fact that certain occupants are actually leasing building space to other Manuans themselves and the evidence also suggested to non-Manuan business tenants as well. This development is hardly consistent with the obvious intent of the deed that the land be held for the benefit and use of the Manuan community.
This expectation is indeed borne out in actuality. Plaintiff testified that he is continuously receiving applications from otherwise qualified individuals from Manu'a for space within Atu'u. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485680/ | This matter came on for further hearing before the Lands & Titles Division upon remand from the Appellate Division in Sotoa v. Sotoa, 6 A.S.R.2d 91 (1987). A clear summary of the background to this case is outlined in the Appellate Division’s decision entered November 11, 1987 and we do not propose to restate that background here. It is sufficient for our purposes to note that while the trial court’s decision denying a petition to remove Sotoa Savali from his title was upheld, the Appellate Division did modify so much of that decision as follows:
1. The petition will be denied insofar as it seeks the removal of the Sotoa title from Sotoa Savali.
2. Insofar as some petitioners may be genuinely concerned that Sotoa Savali has not yet complied with the traditional requisites for assumption of the Sotoa title, however, the petition has merit.
3. Sotoa Savali must therefore act with all deliberate speed to organize the family and to assume the Sotoa title in accordance with custom.
4. Sotoa is further directed to use his best efforts to effect a genuine *12reconciliation among all members of the family, including Sinapati and those who have supported him.
5. All parties to this action and all those acting in concert with them are enjoined from interfering in any way with the exercise by Sotoa Savali of the rights and functions appurtenant to the Sotoa title, and are further enjoined to co-operate with him insofar as their cooperation is a traditional prerequisite to the exercise of such rights and functions. This injunction includes but is not limited to an absolute■prohibition of the use of the Sotoa title or of the exercise of any of its functions or perquisites by any other person.
Id., 6 A.S.R.2d at 96.
The Appellate Division further Ordered that:
6. The case is remanded to the trial court with instructions to hold a hearing in about six months to determine whether the parties have complied with this judgment and to take such further action as is appropriate at that time.
Id. Consistent with our mandate, a hearing was held on June 8, 1988.
DISCUSSION
Defendant/Appellee, Sotoa Savali, related a diary of his actions since the date of the appellate court’s decision and we find that he had done as follows:
That shortly after his.personal receipt of the appellate court’s decision, he had gathered at his residence in Tafuna those members of the Sotoa family in his support to review and discuss the said decision and its requirements. This meeting concluded with the consensus that Sotoa Savali should first seek conciliation with plaintiff/ appellant Sinapati Sotoa.
Immediately, Sotoa Savali made several attempts to contact Sinapati Sotoa who proved to be *13elusive and difficult to contact even to the appearance of engaging in the nursery game of "hide and seek." When the latter’s household in Manu'a would advise his absence there and presence on Tutuila, his Tutuila household members would at the same time advise that Sinapati was in Manu'a. The same sort of response was received from a fellow employee of Sinapati’s in Manu'a when his office was called. On another occasion when calling at 6:00 a.m. Sotoa Savali testified that he finally reached Sinapati by telephone at his home. After Savali had been asked who was calling and had identified himself, the answering voice he knew to be Sinapati’s stated that Sinapati had travelled to Tutuila.
It was not until the first week of December, 1987 that Sotoa Savali was finally able to physically confront Sinapati because both had responded to a district meeting called by Senators Túfele and Lefiti concerning hurricane relief demands sought by the people of Manu'a. Venue for this meeting was the Fono guest house on Tutuila. At the conclusion of this meeting Sotoa Savali requested of Sinapati the opportunity to meet and discuss the family’s situation. The meeting was cordial but Sinapati advised that they would get together at a more suitable time and to contact him another day.
Sotoa Savali at this period of time was operating under a timetable suggested by the family members in his support for a meeting of the family in Manu'a for the month of January 1988. Subsequent to the brief discussion with Sinapati, Sotoa Savali travelled to Manu'a on or about December 17, 1987. Sinapati was not available, being at work. However, Sotoa managed to get hold of Talking Chief Togotogo, the senior orator of the Sotoa family. He took up with Togotogo the wording of an appropriate public notice for the family meeting, seeking his suggestions as to time and venue. On venue of the meeting Sotoa inquired of Togotogo’s guest house, this being the only structure within the family that would reasonably accommodate a family gathering. Togotogo advised that it would be made available; however, on the timing of the meeting and wording of the notice, Togotogo suggested that Sotoa Savali work out the wording himself and that Togotogo as the signatory to the notice would review the draft at another day. Sotoa Savali departed that day for Tutuila *14and left word that he would attempt to contact Sinapati the following. The attempt to contact Sinapati the next day was the 6:00 a.m. call we mentioned above.
Sotoa Savali visited and talked to various family members and elders regarding the proposed meeting. He was cordially received even by Sinapati’s immediate relatives. He was counseled by some of the elders however that reconciliation can only be achieved if there is first a reconciliation with those family members living in Manu'a --- Sinapati and those in his support.1 This of course was difficult to approach given the lack of enthusiasm exhibited by Sinapati and his faction.
Sotoa Savali’s next meeting with Talking Chief Togotogo regarding the notice revealed a change of heart in the orator. He declined to be the signatory to the announcement and although he attempted to dissuade Sotoa Savali from the use of his house as venue for the meeting, he nonetheless was open to the use of his house. Sotoa then sought the counsel of Talking Chief Atiu, a ranking orator in the district, who advised him that a family meeting would be more appropriate in the month of February, 1988. The month of January not only involved the events of the New Year but a memorial service on the anniversary of the hurricane Tusi had been scheduled by the district council for January 17, 1988. The advice was heeded.
For the two weeks prior to the appointed day for the family gathering, a notice under the name of Sotoa Savali was regularly broadcast over the radio station. Sotoa testified that in the *15meanwhile he was assured by certain orators that Sinapati would attend the meeting and he made no further attempts to contact Sinapati.
Those members of the family who had travelled to Manu'a for the meeting found the hospitality uncharacteristic. The expected venue for the family meeting was temporarily secured from entrance with roofing iron and Talking Chief Togotogo was conspicuously absent. The meeting was in fact conducted in a makeshift tent shelter, and while some of the family members resident in Manu'a attended the meeting, Sinapati and his resolute supporters stayed away. It was learned (and confirmed on the witness stand by Togotogo) that the absentees had their own prior family meeting which ended with the consensus to absent themselves.
Two matters of significance arose with the family gathering. One was the presentation of the ava cup to Sotoa Savali; and secondly the family was resolved before the programming of any further family affairs that a family guest house be first erected to avoid the further indignity of having to meet under a tent.
The testimony further revealed that the paperwork with plans and building permits had been secured and that a guest house was the first order of business before attempting a traditional installation of the title. This was the explanation (or as viewed by the other side, the excuse) given for postponement of a traditional installation.
The opposing testimony was not to the contrary save the rebuttal by Chief Lefiti to the extent that he had not previously discussed affairs of the family with Sotoa Savali as the latter had claimed. Chief Lefiti recalled several discussions with Sotoa but on matters unrelated to the family.
The evidence for plaintiff/appellants focussed not on Sotoa’s actions and attempts to organize the family and assume the title Sotoa, but rather upon the results of those actions as they viewed them.
The merit of their argument is beyond our mandate. Even so, there is absolutely no rational appeal to the argument which in essence states: that defendant is unqualified as the matai because *16he has not achieved harmony within the family, the proponents of the argument themselves being antithetical to such harmony. The evidence was patently clear to this effect and outstandingly disastrous to plaintiffs/appellants’ cause was witness Malila Tunupopo’s display of obstinacy with gross exaggeration on the witness stand as well as Talking Chief Togotogo’s open inclination to defy court orders.2
These witnesses made clear that any attempts at harmony would be meaningless at the outset with this faction. Certainly in terms of Sotoa Savali’s efforts, this hearing has affirmed what the Appellate Division alluded to as "obstructionist" tactics on the part of plaintiffs/appellants.
Connected to this argument of qualification is the claim that Sotoa Savali would not achieve formal recognition by the village and district (the "faletolu") whereas his-opponent Sinapati has. In Chief Galea'i’s testimony, he likened the current situation of the family’s title within the village, county, and district to that of a baseball being parlayed back and forth among a number of players.
While the allegorical reference impresses the point that family dignity has suffered greatly, yet the Court finds itself without any evidence of any ameliorative action towards a restoration of that dignity from the side of plaintiff/appellants except for the naked alternative that: it is us or no one at all.
This family had failed in its primary duty to appoint a matai in accordance with custom. With the convenient availability of the judicial framework, the matter was taken to Court. Judicial proceedings involving matai title disputes have been statutorily circumscribed by the Fono. A.S.C.A. §§ 1.0401 et seq. The statute not only governs disputed claims to succession,3 but also provides for removal of an incumbent from title for *17cause.4 In our review of the various criteria exacted by the Fono for the Court’s consideration we find no legislative attempt whatsoever to include within those criteria the consideration of the views of the village council, the county council, nor indeed the district council, except possibly insofar as those views may be evidence of facts relevant to issues properly before the Court. To the extent that those views may be factually relevant, they were given full consideration by the trial court as well as by the Appellate Division in review. Indeed the claim by Sinapati and his followers that they had gained traditional recognition was found by the appeal court as not sustained by the record.
Under our mandate, the views of the various traditional councils are issues of fact properly before us to the extent that any matai appointee, whether by the family itself or as the result of court decision, is required to undergo certain customary requirements and formalities before there is acceptance and recognition by the village to which that title pertains. Certainly if the evidence here revealed a wilful or purposeful refusal by Sotoa Savali to comply with such customary requirements then there is a basis for relief in favor of plaintiff/appellants pursuant to the Appellate Division’s mandate. ( See Paragraph three (3) of the Appellate Division’s Order.) Beyond that, however, we reject any possible suggestion to the effect that there is some sort of absolute veto power reposed with the traditional council which may nullify the trial court’s conclusion in favor of another appointment in accordance with the wish of the council. We find no basis for such a contention within the pertinent enactments.
On the evidence before us we are unable to find any wilful or purposeful failure on the part of Sotoa Savali with regard to the requirements of custom. The testimony tendered by Sinapati and his followers with regard to custom was too obviously biased. It varied from conclusionary statements that custom was not followed to inconsistent statements of what was in fact custom. For example, the main point of contention given by plaintiff/appellant was that Sotoa Savali is not *18recognized according to custom because he has yet to be admitted to the "faleula." While we accept this as a requirement of custom in Manu'a we are unpersuaded that custom dictates the immediacy of this as prerequisite to recognition. The testimony was clear on a number of other instances regarding past and current matai appointees who have been given customary recognition pending admission to the faleula.
What in essence was being suggested to the Court was the selective enforcement of custom, and highlights the all too recurring tactic by disaffected litigants of canvassing their subjective views on custom as it suits their convenience. As noted by the Appellate Division:
This Court has become all too familiar with the contention that a law enacted by the Fono can be violated or ignored whenever the person who does not like it claims that the law is contrary to custom or tradition.
Sotoa, supra, 6 A.S.R.2d at 94. This sorry attitude is viewed as even more wretched given the number of leading legislators who have come from the Sotoa family.
While we necessarily hold in the converse that Sotoa Savali’s actions and attempts have sufficiently assured this Court of his definite plans to fully comply with the requirements necessary for customary recognition, and while we have not been persuaded on the immediacy of a traditional timetable for compliance, we are also mindful that such plans are not obviously free of the subjective. However, should Sinapati Sotoa and his followers continue to focus effort and energy to negate Sotoa Savali’s plans for customary compliance and to impede the possibility of harmony within the family as a whole, then they cannot continue to be heard to complain. In these circumstances there is much wanting in the way of sincerity, if not honesty, with the continuing claim that there is no tranquility or dignity in the family and therefore the matai should be removed. Harmony involves more than the matai’s efforts and on the facts before us the asserted lack in harmony among the family is not a fact which is attributable to the matai.
*19Finally, our record substantiates the finding that the injunctive provisions of the Appellate Division’s Order were not followed by certain of the complainants and those in active concert with them. We are not able to find however at this point that there has been wilful disobedience as the testimony led us to the conclusion that the decision was not clearly explained to those family members comprising the plaintiffs/appellants. The misconception was readily apparent that’ the appellate remand was solely towards policing the matai and his attaining harmony within the family as well as his completing the customary requirements for title recognition within a six (6) month period. In a group setting where passion was evident, it takes merely one with erroneous impressions to influence the group with the wrong, albeit popular, interpretation. Energy was accordingly misplaced to hamper the matai from doing what he was ordered to do.
Certainly in this light plaintiff/appellants cannot be heard to complain. After their noncompliance with the Order to cooperate and not to interfere with the matai’s attempts, the argument that the matai is afoul of the Order sounds rather empty in substance.
CONCLUSION
In response to our mandate, we find on the facts that:
(a) Sotoa Savali has undertaken with deliberate speed to organize the family and to assume the title Sotoa in accordance with custom.
(b) Sotoa Savali has used his best efforts to effect a genuine reconciliation among all members of the family including Sinapati and those who have supported him.
(c) There has been a definite failure on the part of Sinapati Sotoa and some of his supporters to observe the enjoined cooperation required of them under paragraph five (5) of the Appellate Division’s Order.
(d) Plaintiff/appellants or some of them did not have the benefit of a full explanation of the extent of the decision of. the Appellate Division.
*20The following Order is entered accordingly:
1. Counsel for plaintiffs/appellants shall cause to be properly and fully explained to each and every one of his clients including those in their active support and concert, the entire Opinion and Order of the Appellate Division entered November 10, 1987 in Leifitele Sinapati Sotoa and Members of the Sotoa Family v. Sotoa S. Savali et al. AP. No. 20-86.
2. Counsel shall within 60 days of date hereof certify in writing to the Court the names and addresses of those individuals given an explanation as above ordered.
Evidently since the appellate proceedings, Sinapati Sotoa has established Ta'u as his ' primary place of residence and employment. This fact was not apparent on the record before the Appellate Division. Among the arguments advanced against Sotoa Savali was that he had not moved to Ta'u which is the historic seat of the Sotoa title. In response Sotoa Savali pointed out that indeed most of the family including the leaders of the litigation all resided in Tutuila and would only return to Ta'u for ceremonial occasions.
The orator was quick to point out that the Appellate Division’s decision was not fully explained to him, significantly the injunctive provisions.
A.S.C.A. § 1.0409.
A.S.C.A. §§ 1.0411, 1.0412. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485681/ | This is an action on account for unpaid freight and plaintiff seeks judgment against defendants in the sum of $7,000 together with such allowable interest and costs of collection.
The freight account is not disputed, however, defendant William Adams does dispute personal liability on the theory that the indebtedness is one which accrued against the corporate entity “Quality Furniture Manufacturing, Inc." Adams admits only to the extent that he was a minor shareholder in the said defendant corporation with the limited role of technical advisor, and he cites in his defense A.S.C.A. §§ 30.0114 and 30.0130 which exempt the private property of shareholders from such corporate liability.
Plaintiff on the other hand claims that in its past and extended dealings with Adams the impression gained was that the business "Quality Furniture" was not only owned but controlled by Adams. Plaintiff’s operations supervisor, Eugene Anderson, testified that he had had five years of personally dealing with Adams regarding shipments on behalf of the business Quality Furniture. As far as he was made aware Adams owned Quality Furniture and he had dealt with him (and no one else) without any understanding that Adams was a corporate agent as he now claims. In the course of these dealings and at the request of Adams, Anderson agreed on behalf of his company to allow shipments for Quality Furniture to be shipped to the territory on a freight collect basis. The resultant working arrangement was that Adams would usually satisfy each freight bill within 30 to 60 days of release of consignment.
For some time the relationship was mutually beneficial. On the freight in question, which was the subject of three separate bills of lading, Anderson testified that when payment had not been made in accordance with past practice he contacted Adams. The latter advised him that he would take *22care of the matter and indeed Adams subsequently tendered Anderson a check in partial payment of $3502.37, although leaving a balance remaining of $7000. After some discussion on the matter, Adams left with Anderson a signed writing containing the following:
July 8th, 1986
Gene:
Here is USD3502.37 on our account of $10,502.37. The balance I’ll pay as follows:
On or about 7/21/86 $3500.00
On or about 8/10/86 3500.00
This will balance up this shipment and leave me owing -0-
Thanks for your help
/s/Bill Adams.
The accompanying check tendered, although signed by Adams, contains the printed drawer identification as "Quality Furniture Manufacturing Inc."
As events turned out the promised payments were never made and somewhere in the ensuing dialogue between the parties leading up to this litigation, defendants advised plaintiff that Quality Furniture Manufacturing is a corporation since defunct and gone out of business. (See paragraph Second of defendant’s answer.)
DISCUSSION
As we stated at the outset, the indebtedness itself was not contested. At least insofar as Quality Furniture is in fact a corporate entity, its liability was not disputed and judgment may therefore enter against it. We also note that in as much as the business was in fact a corporate entity, we were not impressed with the testimony which sought in its effect to avoid liability by waving the banner "dissolution." As we understand the corporations statute, A.S.C.A. §§ 30.0101 et seq., dissolution is not a vehicle for avoiding creditors and on the evidence before us, we were left with grave reservations regarding the "bona *23fides" of the defendants. Firstly, it is apparent that contemporaneous with the claimed dissolution exercise, negotiations were undertaken by Adams as an individual and on behalf of a "Quality Furniture Manufacturing Inc.," to secure a long term leasehold on property located in Nu'uuli. See Adams v. Lafaele, LT No. 21-86 (1986). This case indeed resulted in a stipulated judgment acknowledging a leasehold estate in Adams and Quality Furniture Manufacturing Inc. Incidentally, another furniture business was then set up in this location. Notwithstanding, Adams testified that the defendant corporation was dissolved at the conclusion of 1986 after liquidating assets to satisfy a judgment debt outstanding against it at the time. Additionally, the Court is told that the new venture is a separate entity and Adams disclaims any interest therein, although the same is owned by his wife, and that he merely helps her out periodically.
In the light of pending claims against the original corporate entity the dissolution exercise and reincorporation is tantamount to a sham on creditors. A change in clothes does not render one a new person and in the eyes of equity liability will attach to all that is properly traceable to the original corporation. The leasehold estate above mentioned is, for example, available to this end.
We further find on the facts that defendant Adams is liable on the indebtedness. This liability is primary and contractually based as we construe his written undertaking of July 8th, 1986 given to Anderson. The language is unequivocally clear that the undertaking is a personal one as there is no suggestion whatsoever of a corporate commitment. Indeed the suggestion of such a corporate commitment would be nonsense from the point of view of Anderson and his employer since the underlying obligation, consistent with Mr. Adams’ defense, is already the corporation’s and thus any additional assurances by the corporation would be without consideration and meaningless to plaintiff. Rather, we construe the undertaking as being a separate and., additional assurance or guarantee given by Adanls in consideration of plaintiff’s forbearance from suing the corporation at the time. In turn, there was obviously reliance by plaintiff on this mentioned writing.
*24We accordingly conclude that defendants are severally liable to plaintiff in amount of $7000 and therefore plaintiff will have judgment against Quality Furniture Manufacturing Inc., and William Adams in the sum of $7,000.00 with interest to accrue on judgment as provided by law plus court costs.
It is so ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485682/ | In 1976 To'aitiiti Sagapolutele filed a petition in the High Court, requesting the appointment of the American Savings and Loan Association as guardian of his minor child’s estate. The purpose of the requested appointment was to provide for the administration of funds which the minor was to receive as compensation for injuries suffered in an automobile accident. The petition was granted.
*25In February of 1988 the Court ordered accountings or status reports in probate cases in which no such reports had been filed for several years. In this case no report had been filed during the twelve years since the guardian was appointed. The Court received no response to its initial order for an accovtnting or to a subsequent reminder; it therefore ordered To'aitiiti Sagapolutele to show cause why he should not be held in contempt of Court for failure to comply with the Court’s orders.
At the hearing on the order to show cause, the following facts appeared:
1) Although To'aitiiti Sagapolutele was the petitioner in the case, the petition requested the appointment of the American Savings and Loan Association (hereinafter the "Bank"), not the petitioner himself, as guardian of the estate.
2) The funds in the estate were, however, never turned over to the court-appointed guardian. Instead the petitioner’s attorney received the amount of $1500 from the insurance company, deposited it into his trust account, and withdrew his attorney fee of $500. He then gave the remaining $1000 to the petitioner (To'aitiiti) rather than to the court-appointed guardian (the Bank.)
3) The petitioner testified that he spent the $1000 on general family expenses, in violation of the Court’s 1976 order.
4) The Bank subsequently closed down its American Samoa office.
The petitioner, To'aitiiti Sagapolutele, is therefore ordered to restore the amount’ he wrongfully appropriated from the estate, plus the interest that would have accrued to the estate if the wrongful appropriation had not taken place. The Court takes judicial notice of the fact that the Development Bank of American Samoa, which took over the administration of minors’ estates when American Savings and Loan left the Territory, has paid interest on the funds in these estates at the annual rate of 5%, compounded annually, since 1976. The Court’s order was signed on November 8, 1976; allowing petitioner until the following January as *26a reasonable time for compliance with the order, petitioner now owes $1000 compounded annually for 11 years, or $1753.10.
Since the American Savings and Loan Association no longer does business in the Territory and the Development Bank does not wish to accept new guardianships, petitioner shall deposit the amount he owes with the Clerk of the High Court, who shall open a savings account in the name of the child’s estate. Petitioner shall deposit $100 no later than July 31, 1988, and $100 on or before the last day of each subsequent month until he has paid $1753.10 plus interest which shall continue to accrue on the unpaid balance at the rate of 5%. These payments should cause the debt to be paid in full no later than January of 1990. The Clerk will provide the petitioner with annual statements on the status of the account.
Failure on the part of the petitioner to make any payment when due, unless he has first petitioned the Court for an extension and shown good cause for such an extension, will constitute contempt of Court and subject petitioner to the penalties for such contempt.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485683/ | In 1986 the Court granted petitioner’s request for authority to receive funds belonging to her deceased husband, to pay debts and funeral expenses, and to "distribute the balance if any, to the person or persons entitled thereto pursuant to law.“ Such a transfer is authorized by territorial law when a decedent left property in an amount less than $10,000. A.S.C.A. §§ 40.0334 et seq. The Court granted the petition on two conditions: that the share of the estate to which each minor child was entitled be put. in to a trust account for that child, and that the Court be notified of petitioner’s compliance with its order. When over a year had gone by and the Court had received no notice of petitioner’s compliance, it ordered the petitioner to report on the disposition of the estate.
In her response and her testimony at a subsequent hearing, petitioner testified as follows:
1) She received $9,583 from the government in compensation for certain claims the decedent had made.
2) Two of the decedent’s six children were minors.
*283) Petitioner did not comply with the Court’s order to open trust accounts for the two minor children.
4) She paid $2800 to South Pacific Airways "to pay off air fair loans to SPIA of my children and me to bring my deceased husband to the states." She spent approximately $4,583 on a pickup truck. She paid her attorney $500. She paid about $2000 for funeral expenses. She also paid $500 to each of the four adult children and $200 to each of the two minor children.
5) The Court notes that these numbers add up to $12,283. This is $2700 more than petitioner admits receiving and $2,283 more than she is permitted to receive under A.S.C.A. §§ 40.0334 et seq. without a formal administration of the estate. The discrepancy may have been resolved by petitioner’s testimony at the hearing, which gives the impression that she may have been wrong in her earlier report to the Court that she distributed $2400 to the six children. This $2400 appears to have been part of the $4500 or so that was spent on the pickup truck.
6) No mention was made of the funds in decedent’s savings account, Bank of Hawaii account # 6034-716623, which petitioner had sought and been given authority to receive and transfer to the heirs.
In order to remedy her failure to comply with the Court’s original order, petitioner must transfer an amount equal to the total amount in the estate, minus legitimate expenses, to those entitled to it by law. We find these expenses to include the $2000 for funeral expenses and the $500 attorney fee. On the present record it appears that the $2800 paid to SPIA may have included more than just the charges for transportation of decedent’s body from California to Samoa; only $1000 of this amount will be allowed unless petitioner submits to the Court within 30 days an itemized receipt or other documentation showing a larger expenditure on this item.
This leaves $6083 (that is, $9583 minus $3500) as the amount that should have been distributed to the heirs. Petitioner herself as the surviving spouse is entitled to 1/3 of that amount, or *29$2027.67. See A.S.C.A. § 40.0103. The remaining $4055.33 should have been distributed equally among the six children. Each child should have received $675.88. If this amount had been placed in a trust account by January of ' 1987, each child’s share would now be worth $727.42 including accrued interest at five per cent.
The Court need not concern itself at this time with petitioner’s obligation to the adult children, who are legally competent to decide whether and how to seek payment of this obligation. This Court must insist, however, that petitioner comply with the original order that a trust account be established for each minor child.
Petitioner is therefore ordered to do as follows:
1) Submit to the Court no later than thirty days from the date of this order any documentation of expenses for the transportation of the decedent’s body, unless she accepts the Court’s estimate of $1000;
2) Submit to the Court a report on the status of the decedent’s savings account and of any funds that have been withdrawn from the account;
3) Pay to the Clerk of the High Court the amount of $100 on or before August 31, 1988, and on or before the last day of each month thereafter. The Clerk will deposit these funds into trust accounts for each of the two minor children. Petitioner’s obligation to make monthly payments will cease when she has paid the amount she was originally ordered to hold in trust for the two children, plus accrued interest at five per cent. Depending on the information petitioner provides the Court in connection with items (1) and (2) of this order, her payments should continue for a year or slightly longer. The Clerk will provide petitioner with a report on the status of the accounts every six months.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485684/ | On Motion for Summary Judgment:
This case comes to us on plaintiff’s motion for summary judgment. We therefore view the facts in the light most favorable to the defendants:
1) On December 22, 1982, plaintiff Bank of Hawaii (hereinafter referred to as the Bank) lent defendants Ropati and Carmencita Pene $5000. The purpose of the loan, according to the application filled out by Mr. and Mrs. Pene, was to finance a "promotional trip." The entire principal amount, plus a finance charge of $270.41, was to have been repaid by March 26, 1983, approximately ninety days after the date of the loan.
2) A 1976 Ford Grenada Ghia 2-door sedan was listed on the loan document as security. The Bank attempted to register its security interest with the appropriate office of the City and County of Honolulu, but was informed that its interest could not be registered without a Hawaii Certificate of Safety Inspection, a certificate of registration, a certificate of ownership, and a notarized bill of sale from the previous owners to Mr. and Mrs. Pene. The City and County office also noted that in the document of sale submitted with the proffer of registration the seller’s signature "does not appear similar to specimen on file."
3) The Bank has submitted an affidavit stating "Bank records clearly reveal" that Mr. Pene "did not assist in the Bank’s efforts to protect it’s [sic] security interest in the vehicle . . . ." The Bank has not, however, provided the Court with copies of those records or even given us any details about what records they are or exactly what they say Mr. Pene did and did not do. We are unable to accept the Bank’s conclusory characterization of its unidentified records as evidence, so we assume for the purpose of this motion that the failure to perfect the security interest was through no fault of Mr. or Mrs. Pene. (The Bank does produce evidence that Mr. and Mrs. Pene did *32not secure comprehensive and collision damage insurance on the automobile, but produces no evidence that they were under any obligation to secure such insurance.)
4) Mr. and Mrs. Pene did not repay the loan when it came due on March 26, 1983.
5) When no payments had been made by December 21, 1983, the loan was transferred from the Pearl City branch of the Bank to the Loan Adjustment Department for collection.
6) At some time during 1983, or perhaps shortly thereafter, a man from the Loan Adjustment Department whose name Mr. Pene does not recall visited him at his home in Hawaii. Mr. Pene told the Loan Adjustment man he had no intention of paying the loan. Mr. Pene’s presentation was quite forceful; among the topics discussed was Mr. Pene’s belief that the Bank of Hawaii was to blame "for the ultimate decay/deterioration of his [Mr. Pene’s] business associate and Employer, Reverend Lemuelu Utu." Mr. Pene did, however, offer to "surrender" the 1976 Ford to the Bank. The Bank representative never agreed to this proposal, at least not in so many words. However, at the end of the discussion Mr. Pene had the impression that the Bank representative was "quite happy" the Bank would be getting the car, since otherwise it would get nothing at all.
7) The Bank never took the car. On this point the Bank’s statement about what its records show is buttressed by the undisputed evidence that the security interest, for whatever reason, was never perfected. Under these circumstances the Bank’s statement that it did not take the car is highly credible. Mr. Pene, moreover, testified that he never checked to see whether the car had been removed from its place on the street.
8) The value of the car in 1983 was no more than $2400. For the purpose of this motion we accept as true Mr. Pene’s statement that he also left $3500 worth of radio equipment in the car, on the street, for the Bank to take, and never checked to see whether the Bank had taken it.
9) Shortly thereafter Mr. and Mrs. Pene moved to Samoa.
*3310) On February 25, 1985, Mrs. Pene responded to a Bank collection letter with a handwritten note acknowledging the debt but explaining that she and her husband were in difficult financial circumstances. She asked to be allowed to pay $100 monthly until she and her husband could find employment and increase the payments. For the purpose of this motion we accept as true Mr. Pene’s statement that he knew nothing of his wife’s letter.
11) Four payments in a total amount of $250 were made between March and August of 1985. We have been presented with no evidence about who made these payments.
Even on this version of the facts --- laden almost to the breaking point with assertions by Mr. Pene which we now accept as true but which would be most difficult to prove at trial --- the Court is bound to grant the motion for summary judgment.
The principal defense is that the conversation about the car between Mr. Pene and the Loan Adjustment representative was a settlement of the debt. If an officer of the Bank with real or apparent authority to make such a settlement had affirmatively agreed to Mr. Pene’s proposal that the Bank would take the car from the street and thereby absolve the Penes from further liability, the defense would be valid. Even if such a representative had not affirmatively agreed to the proposal, he might have bound the Bank by speaking or acting in a way that would lead a reasonable person to believe he had agreed to it. In this case, however, the proposal itself was not one that a reasonable person would assume was accepted unless such acceptance was clear and explicit.
The Bank had the legal right to repossess the car, sell it (assuming it could have perfected its security interest), and still hold the Penes for any remaining balance on the debt. The car itself was worth far less than the amount of the loan, and although we assume the existence of $3500 worth of radio equipment we have been presented with no evidence that any representative of the Bank had ever appraised it or even seen it. Moreover, even if the "official" retail value of the car and its contents was $5900 (the most generous estimate we can make on the present record) the Bank would have been likely to realize somewhat less than $5500 *34from their sale. Nor was this was a situation in which the creditor had sold the car to the debtor and in which repossession, if it had occurred, might conceivably have been construed as evidence of the seller’s intention to rescind the sale. The car appears to have belonged to Mr. Pene before he applied for the loan and to have been unrelated to the loan except as collateral security. Under these circumstances it would have been irrational for the Bank to release the Penes from liability when it could have taken the car without any such release.
We can easily believe that the Bank representative was daunted and discouraged by his conversation with Mr. Pene. He might even have been convinced that the car was the most the Bank would ever recover. That is not a “settlement," however, and no reasonable person would regard it as such. We assume today, as we must, that Mr. Pene emerged with the subjective impression that he had been released from liability. When two parties to a transaction differ in their impressions of it, a court will not automatically enforce either party’s subjective impression but must attempt to determine from all the circumstances of the transaction which impression was more reasonable. Even on Mr. Pene's own version of the facts, no reasonable person would have been justified in assuming that the Bank was surrendering any of its legal rights.1
*35Mr. Pene also suggests that the loan document is inadmissible as evidence because it contains his signature and that of his wife but no signature from a representative of the Bank. He suggests further that the loan application is inadmissible because it is only an application. We know of no basis for these contentions in the law of evidence. It is, in any case, undisputed that the Bank lent Mr. and Mrs. Pene $5000 and that Mr. and Mrs.' Pene actually received the money.
The Bank notes that the annual interest rate of twenty-one per cent is legal in Hawaii where the loan was made but that only eighteen per cent interest is being sought in this action. In the loan application Mr. Pene designated himself as "self employed" and said the loan was for a "promotional tour." The loan was therefore "solely for the purpose of carrying on or acquiring a business or commercial investment" within the meaning of A.S.C.A. § 28.1503 and the eighteen per cent maximum rate applies.
Finally, at the hearing on this motion Mr. Pene also expressed his desire to go to trial in order to prove the Bank of Hawaii responsible for the death of Reverend Utu. This contention, if true, would seem to give the heirs of Reverend Utu a cause of action for his wrongful death. That action has not, however, been shown to be so closely related to this one that it could be raised as a defense or counterclaim, notwithstanding Mr. Pene’s observation that the loan application designates Reverend Utu as the person who referred Mr. Pene to the Bank in the first place.
Since we hold for the Bank on the ground that Mr. and Mrs. Pene borrowed the money and never repaid it by settlement or otherwise, we need not reach the question whether Mrs. Pene’s admission of liability would have revived her obligation if there had been a settlement.
Judgment will enter for the Bank against Mr. and Mrs. Pene for the remaining principal balance of $4750; accrued interest on the unpaid balance at *36eighteen per cent from the date of the loan until the date of judgment; court costs; reasonable attorney fees and costs of collection as provided for in the loan agreement and to be proved by affidavit; and post-judgment interest at the rate of twelve per cent.
It is so ordered.
During whatever time he remained in Hawaii, moreover, Mr. Pene might have sought to confirm or correct his impression that his "surrender" had been accepted by the simple expedient of occasional visits to the spot in which he had left his car and its valuable electronic accessories. A reasonable person, or even a moderately curious unreasonable person, would certainly have done this. Mr, Pene testified that he did not.
If we could conclude on the present record that there was the slightest possibility the Bank had actually taken possession of the car, we would deny this motion in order to determine at trial whether this had happened and if so whether the Bank had disposed of the car in a commercially reasonable manner and *35how such disposition affected the amount the Penes owed the Bank. There is, however, no evidence to suggest such a possibility. | 01-04-2023 | 11-18-2022 |
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